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Judgment
S.M. Rizvi, J.—This appeal is directed against the judgment of the learned Sessions Judge, Srinagar, dated 12-8-1987 recording a finding
of conviction against the appellant for the offence u/s 302, RPC and sentencing him to life imprisonment and a fine of Rs. 1000/-. The learned
Sessions Judge too has made a reference to this Court in terms of Section 374 of the Cr.P.C, for confirmation of the order of conviction and
sentence passed by him against the appellant. By this order, we shall dispose of both of them.
Briefly stated, the prosecution case is that on 25th of October, 1983, the complainant (PW 1) came to police station Maharaj Gunj Srinagar at
8.55 p.m. and lodged an oral report that he along with one Mohammad Ashraf Sofi (deceased) R/O Dalai Mohalla were proceeding towards their
home and on reaching at 'Saban Kocha', one Shabir Ahmad Khan son of Abdul Ahad Khan of Dalai Mohalla abruptly confronted them and
challenged Mohammad Ashraf Sofi (deceased) that he will not leave him alive today and simultaneously stabbed him in the belly with a dagger with
intention to kill him and also threatened him to be killed. On this report, the police registered a case with FIR No. 215/1983 for the offence u/s
307, RPC. At that very time, a police party left for the spot of occurrence along with the complainant which was hardly a few yards away. No
sooner they came out of the police station then, they found two police constables (PWs 22 and 23) getting two persons to the police station, and
they were the persons regarding whom the case was registered. The said two constables were on patrol duty and on their return, they had seen
those two persons grappling with each other at 'Saban Kocha'. Allegedly, Mohammad Shabir Sofi told them that Shabir has killed him. When both
of them were taken to the police station, it was found that Mohammad Ashraf Sofi was in a critical condition. He was bleeding and had received a
wound on the left side of the belly below his stomach. The police took the accused into custody and the injured was taken to the Hospital in a Jeep
where he could not survive for long and succumbed of this injury within a very short period of time. A post-mortem examination was conducted on
his dead-body after his death. The police started investigation immediately, and allegedly, at the pointing out of the accused recovered the dagger,
the weapon of offence, within a few hours after the occurrence. During the course of investigation, it was found that the deceased had a love affair
with the sister of the accused which was not liked by him and that was the motive for the occurrence. The police consequently challanged the
accused for the offence u/s 302, RPC.
The accused pleaded not guilty to the charge at the trial. The learned Sessions Judge during the course of trial examined as many as 20
witnesses. Thereafter, the accused was examined u/s 342 of the Cr. P.C. He admitted that the deceased used to tease his sister by using foul
language against her. According to him, it was the deceased and the complainant and some other persons who, allegedly, have not been examined
as witnesses, who had ambushed him in the dark of the night. Allegedly, according to him, the deceased caught hold of him and again used foul
language against his sister and called him as 'Salla', his brother-in-law. He tried to free himself from the clutches of the deceased. According to him,
the deceased had something in his hand by which he wanted to injure him. In the meanwhile, while they were grappling the police came on the spot
and in that very condition took them to the police station. The accused denied to have made any disclosure statement to the police or to have made
any recovery of the weapon of offence. He has also admitted that the Head Constable Abdul Rashid along with the Constable Anand Ji had taken
him along with the deceased to the police station soon after the occurrence, when they were grappling with each other.
The accused has not examined any witness in his defence.
The learned Sessions Judge has recorded the finding of conviction in question against the appellant on the following grounds, namely:
(1) The accused wanted to do away with the deceased, who allegedly, had a love affair with his sister and that was the motive for the commission
of the offence. The motive stands established according to him.
(2) The accused has admitted in his examination u/s 342, Cr. P.C., that the deceased used to tease his sister. Some love letters have been seized in
the hand of the sister of the accused and the hand-writing identified.
(3) The Head constable Abdul Rashid and Constable Anand Ji caught hold of the accused and the deceased at the place of occurrence while they
were still grappling with each other, and at that very time, brought them to the police station.
(4) The complainant was an eye-witness of the occurrence who within minutes of the occurrence reported the matter to the police.
(5) Within a few hours after the occurrence, the police recovered the weapon of offence at the behest of the accused.
(6) The deceased had told the Head Constable Abdul Rashid and Constable Anand Ji soon after the occurrence that the accused had killed him,
which he has treated as a dying declaration.
(7) The medical evidence has also proved that the death of the deceased was caused by the injury he had sustained at the occurrence which could
be caused by the weapon of offence recovered at the instance of accused.
(8) In the memo of appeal, the findings of the learned Sessions Judge have been assailed on the following grounds:
(1) That the finding of guilt has been purportedly based on the statements of witnesses whose evidence has not been correctly or objectively
appreciated and the evidence as reflected in the judgment, does not accord with the evidence actually recorded by the Court.
(2) That the trial Court has incorrectly characterised certain witnesses as eyewitnesses of the occurrence, though entire evidence regarding the
occurrence of stabbing is circumstantial. In any case, since the alleged eye-witness Ghulam Murtaza, has himself deposed before the trial Court
that he did not see the appellant stabbing the deceased, there are two possible inferences regarding the occurrence in question, one that the
deceased may have been injured during the scuffle while he or the complainant may have been holding or handling the weapon of offence; secondly
that he may have been stabbed by the appellant. Inasmuch as, these two inferences can be plausibly drawn from the circumstantial evidence on
record, the benefit of doubt should have gone to the accused and the finding of guilt should not have been returned against the appellant,
(3) That the motive attributed to the appellant has not been established by prosecution evidence, though it was obligatory on it to establish it in
clear and unmistakable terms, not only the existence of the same, but also the fact that it translated itself into the alleged offence.
(4) The trial Court has processed on unfounded presumptions and also applied incorrect standards of law as regard, the dying declaration,
allegedly, made by the deceased. The dying declaration can be taken as evidence only when its relevancy, materiality and competency is
established beyond any reasonable doubt. It is settled law that a dying declaration which is not given before a Magistrate, and not reduced into
writing, should not be ordinarily relied upon.
(5) That the disclosure statement of the appellant and consequent recovery of the weapon of offence has not been established. Assuming that the
alleged weapon of offence was discovered pursuant to the statement of the appellant, it would only establish that the appellant knew about the
existence of the knife at a particular place. From the existence of such a knowledge of the appellant, the trial judge could not come to the
conclusion that this very knife was used as a weapon of offence by him.
(6) That the deceased was admitted in the Hospital as an unidentified person which belies the prosecution case in respect of the dying declaration,
allegedly, made by the deceased, and the mention of the names of the deceased and the accused in the FIR and also the preparation of the injury
statement containing the name of the deceased.
(7) That the weapon of offence was not got examined by any expert and not even by the doctor who conducted the post mortem examination. It
was shown to the doctor as late as on 14-11-1983, and, therefore, it cannot be connected with the commission of offence.
(8) That no opportunity was afforded to the appellant on the question of sentence after finding him guilty for the offence u/s 302, RPC. The
affording of opportunity to an accused upon conviction is a mandatory provision of law, deviation from which renders the sentence unsustainable in
law.
We have heard the learned Counsel for the parties and have also thoroughly gone through the record.
Now, the points raised by the appellant in the memo of appeal which have been thrashed out by Mr. Beg during the course of arguments
threadbare, will be discussed and appreciated below, one by one, along with the formulations of the learned Sessions judge on which he has based
his findings.
(i) Firstly, we will deal with the question of motive, which, according to the learned trial Court stands established but is controverted by the
appellant. Allegedly, the deceased had a love affair with the sister of the accused which was not liked by him, and even before the alleged
occurrence he had threatened the deceased to be killed if he did not desist from it. The prosecution allegation is that the accused had a motive to
kill the deceased, so as to do away with him.
What is motive. Motive is that which makes a man to do a particular act. There can be no action without a motive, which must exist for every
voluntary act. Previous threats, previous litigations; or previous altercations between the parties are admitted to show motive. However, the mere
existence of motive is by itself not an incriminating circumstance. The motive for an act is not a sufficient test to determine its criminal character. By
a motive is meant anything that can contribute to give birth to, or even to prevent, any kind of action. Motive may serve as a clue to the intention,
but although the motive be pure, the act done under it may be criminal. Purity of motive will not purge an act of its criminal character. Motive
though not a sine qua non for bringing home the offence to the accused is relevant and important on the question of intention. Though the
prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the
accused. But, if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. It is not the
bounden duty of the prosecution to prove the motive with which a certain offence has been committed. It is sufficient if the prosecution proves by
clear and reliable evidence that certain person committed the offence, whatever the motives may be which induced him to commit that offence. The
question of motive is not material where there is direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the
intention of the actor. On going through the prosecution evidence, we find that there is sufficient proof to show that the deceased had a love affair
with the sister of the accused for some time before the alleged occurrence took place. Even, the love letters addressed to the deceased and written
by the sister of the accused, whose hand writing also stands established, have been brought on record. The accused had threatened to kill the
deceased previously also for the said affair, has also been proved by the prosecution. The PWs Ghulam Murtaza, Mst. Rashida, Farooq Ahmed
Sofi, Mohammad Amin Sofi have sufficiently proved the love affair in question and the previous threats given by the accused to the deceased.
Even, the accused could not deny it in categorical terms in his statement u/s 342, Cr. P.C. He has given it out clearly that he had a serious grudge
against the deceased who used to tease his sister.
It would be necessary to make it clear here that motive is not to be confused with intention. If a man knows that a certain consequence will follow
from his act, it must be presumed in law that he intended that consequence to take place, although he may have had some quite different motive for
performing the act. Whether the accused had the intention to kill the deceased is a different matter and this subject will be dealt with at its proper
place in this judgment when its turn comes to be discussed. Here, it suffices to say that the accused had a motive to kill the deceased,
(ii) Secondly, we will deal with the point raised in the memo of appeal and also argued by the learned Counsel for the appellant that the evidence of
the PWs has not been correctly appreciated by the trial Court.
We have seriously examined the statements of all the prosecution witnesses and the appreciation made thereof by the learned trial Judge, but we
could not ferret out any glaring mis-appreciation of evidence, allegedly, done by the learned trial Court. It is not correct to say that the said Court
has attributed statements to the witnesses which were not made by them. It is also not correct to say that the trial Judge has drawn inferences and
returned findings which are contrary to the evidence taken on record. This is a general type of allegation made against the judgment, but we could
not find out any specific instance of it therein. If we find any such specific instance in the judgment, that will be dealt with at its proper place as the
judgment proceeds. Suffice to say here, that in our opinion, there is no mis-appreciation of evidence done by the learned trial Judge and nor any
inference has been drawn which could vitiate the findings recorded by him in the judgment.
(iii) As regards the third contention of Mr. Beg that the trial Court has incorrectly characterised certain witnesses as eyewitnesses of the
occurrence, although the entire evidence regarding the occurrence of stabbing is circumstantial and that the alleged eye-witness, Ghulam Murtaza,
had denied to be the eye-witness of the same, which, therefore should give a benefit of doubt to the appellant; it requires some discussion of the
evidence of the said witness so as to clear the doubt.
Ghulam Murtaza is the complainant in the case. He has deposed that on the fateful evening of 25th of Oct., 1983, he was accompanying the
deceased when at 'Saban Kocha' the appellant confronted them. In the FIR, he has stated that the accused challenged the deceased and took out
a dagger with which he stabbed him. While deposing in the court, he has made a deviation from the FIR and stated that actually he saw the
accused taking out a dagger but before he could stab the deceased, he ran away from the spot to inform the police about the same. The police
station was quite adjacent to the place of occurrence. According to him, it was all in confusion that it was scribed in the FIR that the accused had
stabbed the deceased in his presence. When he took out the police party with him with a view to save the deceased from the clutches of the
accused, it was found outside the police station that the patrol party of the police had already caught hold of the accused and the deceased, while
they were grappling at 'Saban Kocha'. In this view of the matter, Mr. Beg argued that Ghulam Murtaza PW could not be treated as an eye-witness
of the occurrence of stabbing. In order to appreciate the evidence of the said witness objectively, the court had to keep in mind many things,
Firstly, the witness happens to be a neighbour not only of the deceased, but also of the accused. It cannot be lost sight of that all sorts of influences
must have been exercised over him on the side of the accused to save his life. In the FIR, he has stated that he saw the accused stabbing the
deceased. He has corroborated his statement made in the FIR in his statement u/s 161, Cr. P.C. also. However, in the trial Court he has made
some deviation in his version. He has no doubt stated that he saw the accused taking out a dagger, but before he could slab the deceased, he ran
towards the police station to get the police on the spot. By this deviation and whatever the reason for it, he does not lose the status of an eye-
witness. If his FIR is believed, he has seen the accused stabbing the deceased, and if his statement before the trial Judge is believed, it also leads to
the same conclusion. When he left the spot he had seen the accused with a dagger taken out by him with a challenge to kill the deceased. There
was none else on the spot at that time. Within minutes thereafter when he saw the deceased, being brought to the police station along with the
accused by another police party, he had been stabbed. May be, that he did not see the accused stabbing the deceased, but in the peculiar
circumstances of the case coupled with the evidence of other PWs, particularly the Head Constable Abdul Rashid and Constable Anand Joo, who
caught hold of the accused and the deceased while grappling at Saban Kocha, and more so, the corroborating statement of the accused himself in
his examination u/s 342, Cr. P.C. it leaves no room for any doubt that it was the accused alone who had stabbed the deceased. In these
circumstances, the PW Ghulam Murtaza is definitely an eye-witness of the occurrence.
According to Mr. Beg, only two possible inferences could be drawn from the evidence of Ghulam Murtaza PW:
(1) the deceased may have been injured during the scuffle while the accused or the complainant may have been holding the dagger;
(2) or he may have been stabbed by the accused. As these two inferences could be plausibly drawn, the benefit of doubt, according to him, was to
be given to the accused.
Now, it is to be seen whether these two inferences can be drawn and whether they are plausible. So far as the first alleged inference is concerned,
in our opinion, it can be drawn only in imagination. The dagger was seen by Ghulam Murtaza in the hand of the accused and to that extent there is
no doubt about it. This fact is admitted by him both in the FIR as also in his statement. This is also supported by the alleged recovery of the dagger
at the instance of the accused soon after the occurrence. The recovery part will, however, be dealt with ahead separately. The question of handling
or holding the dagger either by the complainant or by the deceased does not arise at all. There is no evidence of any kind to this effect and not
even a suggestion of the sort made to any witness or to PW Ghulam Murtaza that the dagger was even held or handled either by the deceased or
by the complainant, and, therefore, this kind of inference cannot be drawn in this case, if so, that will be imaginary inference and not actual. After
all, an inferenge is to be drawn from the facts of the case having relevance to the evidence of that case, which must be directly deducible from the
same. It should not be imaginary one and irrelevant to the facts of the case. The Court may presume the existence of any fact which it thinks likely
to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the
facts of the particular case. The presumptions and the inferences must be such which arise naturally from the facts of a case.
In these circumstances of the case, in our opinion, only one inference can be drawn that the accused stabbed the deceased.
(iv) With regard to the contention of Mr. Beg that the dying declaration has been applied by the learned trial Court on incorrect standards of law
which was never given before a Magistrate and nor reduced into writing, and, therefore, it vitiates the finding of conviction, it may be stated at the
very outset that in the present case the said declaration is very much relevant. Dying declarations are admissible under Clause (1) of Section 32 of
the Evidence Act, which along with Section 33 are exceptions to the general rule that hearsay evidence is not admissible. No particular procedure
has been prescribed by any provision of law for recording such a declaration and it is also not necessary to give any warning before a dying
declaration is recorded, the only thing for admitting a dying declaration in evidence is that it must be proved to have been made by the deceased. It
must narrate the cause and circumstances of his death. Even, a conviction based upon an un-corroborated dying declaration is legal. Even a layman
is competent to record a dying declaration and prove the same in the usual manner like other facts and documents. In Khushal Rao Vs. The State
of Bombay, it has been held by the Supreme Court that it could not be laid down as an absolute rule of law or even as a rule of prudence which
has ripened into a rule of law, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. It has also been held
therein that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. In order to
test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation and
that it has been made at the earliest opportunity and was not the result of tutoring by interested parties. A dying declaration may be written or oral,
it may be proved by the evidence of a witness who heard it made.
In the present case, the dying declaration is over and above the direct and circumstantial evidence. Soon after the occurrence when the deceased
and the accused were found grappling, the deceased had told the police party which caught hold of them that he was killed by the accused. This
was heard by Ghulam Murtaza PW also who was there at that time as also some other police constables. He had at that very time been stabbed
and within an hour or so succumbed to his injury. The deceased immediately thereafter collapsed and could not talk. His statement, therefore,
could not be recorded by anybody. The police wanted to record it in the Hospital but the doctor opined that he was not in a position to give a
statement. AH this is proved by documentary evidence.
In these circumstances of the case, the dying declaration made by the deceased is admissible so far as the identification of the accused is
concerned. Over and above this identification made by the deceased in his dying declaration there is other direct evidence of un-impeachable
character on record in this regard. We, therefore, overrule, the objection of Mr. Beg in respect of the dying declaration.
(v) Mr. Beg has also assailed the disclosure statement of the accused and consequent recovery of the alleged weapon of offence. He argued that
the witnesses of disclosure statement and the consequent seizure memo of the weapon of offence are not reliable, as they are not the residents of
the locality where the recovery was made.
No doubt, the witnesses of the disclosure statement and the seizure memo are not from the locality where the seizure was made, but it is not in
itself sufficient to discard their evidence. One of the witnesses is from Qamarwari and the other from Noor Bagh. The said places are about 2
KMs away from that locality. However, in Srinagar City, it cannot be deemed impossible or improbable for such witnesses to be present there,
The explanations given by the said witnesses for their presence on the spot are convincing ones, and, therefore, they are treated as truthful
witnesses. It is not required that witnesses to the recovery memo u/s 103, Cr. P.C. should be witnesses of the locality. Section 103 Cr. P.C. does
not in terms apply to such a recovery. It is confined only to searches made under Chapter VII of the Cr. P.C.
As regards the other objection of Mr. Beg that the disclosure and the recovery of weapon of offence would only establish the knowledge of the
accused about its existence at the place of recovery and unless connected with the commission of offence, it cannot involve the accused in the
crime. It is no doubt a legal proposition which cannot be disputed.
As a matter of fact, that is the pith and substance of Section 27 of the Evidence Act. The discovery of a material object is of no relevancy to the
question whether the accused is guilty, of the offence charged against him unless it is connected with the offence. It is, therefore, the connection of
the thing discovered with the commission of offence, which renders its discovery a relevant fact. The connection between the offence and the thing
discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of connection by the
Statement itself.
No doubt, the recovery of the dagger at the instance of the accused has been proved by the prosecution. Whether it was the same dagger which
was used by the accused in the commission of the offence has not been proved distinctly. The dagger should have been got identified by the only
witness who had seen it in the hand of the accused, i.e. Ghulam Murtaza. This has not been done. Whether he could identify it or not is a different
question. It could also have been identified by some expert witness, had it been blood stained. It was not sent for chemical examination. According
to prosecution, soon after the occurrence, it was thrown in a drain by the accused which was having mud and water. The blood stains, if any on it,
had washed off. They, have not, therefore, sent it for chemical examination. This explanation of the police is not convincing. It only shows
investigational incompetence of the Investigating Officer. If it was covered with mud, it should have been sent for chemical examination in that very
condition. It was for the chemical examiner to find out as to whether the blood stains, if any, were washed off or not. In these circumstances, it is to
be seen as to whether recovery of the alleged weapon of offence is in any way relevant in this case. It is also to be seen that in case there is no
evidence to prove that it was the same weapon which was used in the commission of the offence, whether it would in any way adversely affect the
merits of the case. The question is that in any particular case, if the alleged weapon of offence is not recovered at all due to any circumstances of
the case, or if recovered, there is no sufficient evidence to connect it with the commission of offence, what would be its effect on the merits of the
case, if otherwise, the court is convinced that the offence has been committed by an accused person.
As evidence there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly
established the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. The
standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully estiblished and the chain of evidence furnished
by those circumstances must be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused.
Under Section 6 of the Evidence Act, facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction,
are relevant, whether they occurred at the same time and place or at different times and places. This Section 2 admits these facts the admissibility
of which comes under the technical expression res gestae (i.e. the things done including words spoken, in the course of a transaction, but such facts
must form part of the same transaction. A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of
facts etc. Occupying a much longer time and occurring on different occasions or at different places. Where the transaction consists of different acts,
in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of
place, continuity of action and continuity of purpose or design.
Similarly, u/s 7 of the Evidence Act, facts which are the occasion, cause or effect, immediate or otherwise, or facts in issue, or which constitute the
State of things under which they happened, or which afforded an opportunity for their occurrence or transaction are relevant.
In the case on hand, it has been established by the evidence of PW Gh. Murtaza that the appellant had a dagger in his hand at the time of
occurrence, with which he stabbed the deceased or wanted to stab him. From the evidence of the PWs Abdul Rashid and Anand Ji it is
established that soon after Ghulam Murtaza saw the appellant with dagger in his hand, the deceased and the accused were grappling and the
deceased was trying that he was killed by the accused, and he was bleeding at that time. By the evidence of PWs Ghulam Nabi and Mohammad
Shafi it is established that soon after the occurrence a dagger was recovered at the place of occurrence in pursuance of disclosure of the appellant,
from a drain. That place of occurrence is the same where PW Ghulam Murta/a saw the appellant with a dagger in his hand and where the PWs
Abdul Rashid and Anand Ji caught both the accused and the deceased grappling with each other. That palce is the same where the recovery of the
dagger in question was made at the instance of the accused soon after the occurrence. In these circumstances, the recovery of the dagger at the
instance of the accused soon after the occurrence, even though not identified or got identified by Ghulam Vlurtaza PW, forms part of the same
transaction.
Every criminal charge involves two things : first, that a crime has been committed; and secondly, that the accused is the author of it. If a criminal
fact is ascertained - an actual corpus delicti established - Presumptive proof is admissible to fix the criminal. A restriction has been said to exist
against the use of circumstantial evidence in the case of the well-known rule that the corpus delicti sould not in general be inferred from other facts,
but should be proved independently. But, it is not necessary (and indeed in the case of some crimes it would be impossible) to prove the corpus
delicti by direct and positive evidence. If the circumstances are such as to make it morally certain that a crime has been committed, the inference
that it was committed, is as safe as any other inference. More accurately stated, the rule is that no person shall be required to answer or be
involved in the consequences of guilt without satisfactory proof of the corpus delicti, either by direct evidence or by cogent and irresistible grounds
of presumption.
In the present case, it is established that the crime has been committed. It is also established that the appellant is the author of the same. The PW
Gh. Murtaza is definitely an eye-witness of the occurrence despite his part retraction, as stated above. The PWs Abdul Rashid and Anand Ji are
also very important prosecution witnesses who have proved it that very soon after the occurrence, they found the deceased and the accused
grappling at the place of the occurrence, when the deceased had already received the injury and was crying that he was killed by the accused.
Soon thereafter, the deceased succumbed to the injury in the hospital. The FIR was lodged by Ghulam Murtaza PW within minutes after the
occurrence, wherein he mentioned the names of the deceased and the accused in unambiguous terms. Within a few hours of the occurrence, the
accused made a disclosure statement wherefrom the alleged weapon of offence was recovered. No doubt, due to investigational incompetence the
said weapon was sent to the chemical examiner for the reason mentioned above and nor was it shown to PW Ghulam Murtaza for its identification,
who alone had seen it in the hand of the accused at the time of the alleged occurrence. Even, in the Court it has not been shown to the said witness.
Obviously, the weapon of offence must have connection with the commission of offence, and otherwise, its recovery will not help in proving the
same. It could have such connection if it was found blood-stained and that blood tallied with the blood group of the victim. Unfortunately,
according to the Investigating Officer, it was recovered from a drain where it got washed off in water and mud. It could also be linked with the
crime, had it been shown to the only eye-witness of the alleged occurrence, i.e. Gh. Murtaza. This also has not been done. Despite all this, the
recovery of the dagger soon after the occurrence at the behest of the accused from a drain quite adjacent to the place of occurrence, is very much
a relevant fact and forms part of the same transaction.
In these circumstances of the case, the objection of Mr. Beg is overruled.
(VI) Mr. Beg argued that in the Hospital record the deceased was first shown as an unidentified person and his name was not mentioned therein.
According to him, if the names of the deceased and the accused were mentioned in the FIR and the PWs Abdul Rashid and Anand Ji who
allegedly caught hold of the accused and the deceased while grappling at the time of the occurrence, heard the deceased crying that he was killed
by the accused and named him also then why was he entered as unidentified person in the Hospital record. He submitted that the FIR and the
dying declaration have been manipulated in order to implicate the accused in the crime.
We have given our due thought to this argument of Mr. Beg also. This argument appears attractive one on the first impression. But on close
scrutiny of the prosecution evidence and all the circumstances attending it, the alleged doubt is not sustainable. It is a fact that when the deceased
was taken to Hospital, his name was not mentioned there. He was admitted as an unidentified person in the first instance. It is also a fact that in the
FIR, the names of the accused and the deceased have been given by Gh. Murtaza PW. It is also a fact that Abdul Rashid and Anand Ji constables
have stated that the deceased when found grappling with the accused was crying that Shabir killed him. This is also correct that in the injury
statement the name of the deceased stands entered. All these facts, however, are clearly explainable, when seen in the actual background.
Admittedly, the deceased was in a critical condition when he was brought to the police station along with the accused. He was bleeding and his
intestines had come out from the abdominal wound. He was at once rushed to the Hospital in a Jeep by some police constables. They were not
knowing him. Even if, the deceased had, allegedly, said that he was killed by Shabir (accused), which was heard by Abdul Rashid and Anand Ji
PWs, he was not asked his own name by them. So, they did not know his name when he was admitted in the Hospital. He was, therefore, firstly
entered there as an unidentified person. The Hospital record shows that he was soon thereafter identified by the SHO and his name was shown
properly. In the injury statement also, it has been stated that the deceased is not in a position to state his name and address. No doubt, in the first
column of the injury statement, the name and address of the deceased has been given, but it is in a different ink from that of the main writing
thereon. It is manifest that the said entry in the first column has been made later on. The injury statement as usual has five columns. The first three
columns have been filled in later on; when the deceased was sent to Hospital as a patient, at that time only, two columns were filled in which
related to the apparent injuries. Now, the point is that if in the FIR the name of the patient was mentioned, why it was not reflected in the injury
statement, where in the last column it is staled that he could not give his name and address. It appears, that all this has happened in a hot haste. The
deceased was in a precarious condition at that time and the officer who prepared the injury statement was not given any replies by him and he,
accordingly, recorded so. The FIR must have been recorded by another Police Officer, most probably, by the Moharir of Thana in his office
room. Obviously, such minor things do happen in such situations. In our opinion, there is nothing fishy in the matter, and, therefore, this objection of
Mr. Beg, being without any force, is also overruled.
(VII) It was contended by Mr. Beg that the alleged weapon of offence was not got examined by any expert, and that it was shown to the doctor
after 18 days of the occurrence, and, therefore, it lacks all the attributes of the weapon of offence and as such, has no connection with the
commission of offence.
This argument of Mr. Beg stands already replied in the above discussion. Suffice to say, that in the peculiar circumstances of the case, its recovery
is a relevant fact. No doubt, it is a fact that it has not been sent to any Chemical Examiner and nor got identified properly by the lone eye-witness.
It is also a fact that it was sent to the doctor for its examination on 14-11-1983, whereas the occurrence had taken place on the evening of 25-10-
1983. This examination, however, was for some other purpose as to whether it could cause the injury in question and whether it was sufficient to
cause death of the deceased.
As already stated above, all this happened due to investigational incompetence of the concerned police and (hat is why the recovery of the alleged
weapon of offence has not been held to be directly connected with the commission of the crime and it has only been held to be a relevant fact for
proving the alleged occurrence. Needless to mention that if otherwise the offence is brought home to the accused by sufficient evidence, the non-
connection of the weapon of offence with its commission in a direct manner will not detract from the actual occurrence. Such eases are conceivable
and there are numerous instances of the kind, where neither the weapon of offence and nor the dead body could be traced out, and even then the
guilt was brought home to the accused person. Such recoveries, either of weapon of offence or of dead body and other connected things are only
pieces of evidence in proving the offence against the accused. The main thing to be proved is the commission of offence itself. The corpus delicti of
a crime is the body of the substance of the crime charged, which involves two elements : (.1) Injury to a specific person or a violation of statute, (2)
criminal agency of someone in producing that injury or violation. !
The corpus delicti must be proved beyond reasonable -doubt and it must be generally proved by circumstantial evidence as long as such evidence
measures up to the standards laid down by the Courts.
Corpus delicti is not established by a mere showing of the absence or disappearance of the alleged victim. In law, conviction for the offence of
murder, does not depend necessarily upon corpus delicti being found. There must, however, be reliable evidence, direct or circumstantial of the
commission of the murder, though the corpus delicti is not traceable.
(VIII) The last argument of Mr. Beg was that no opportunity was afforded to the appellant on the question of sentence after finding him guilty for
the offence u/s 302, RPC. According to him, the affording of such opportunity to a convict is a mandatory provision of law, deviation from which
will render the sentence unsustainable.
From the perusal of the judgment, impugned, it transpired that the learned trial Court has not afforded any opportunity to the appellant on the
question of sentence. Whether this deviation is sufficient to render the sentence unsustainable is a point to be seen. In our opinion, it is not so,
particularly after the appellant was convicted for the offence u/s 302, RPC. the offence u/s 302 is punishable either with death or imprisonment for
life. There is no other sentence provided for the said offence. The minimum sentence for that offence is imprisonment for life, and, therefore, even
if, an opportunity would have been afforded to the appellant after finding him guilty for the offence u/s 302, the trial Court could not have reduced it
to any other sentence. In that view of the matter, no prejudice has been caused to the appellant by not affording him an opportunity of being heard
on the question of sentence. Had it been any other offence not punishable with death or imprisonment for life, it could-definitely prejudice an
accused. However, we have afforded an opportunity of being heard to the learned Counsel for the appellant not only on the question of conviction,
but also on the question of sentence. We will deal with both the questions in this judgment at its proper place. Before doing so, we would briefly
consider the merits of the case, so as to ascertain the correctness or otherwise of the findings recorded by the learned Sessions Judge in respect of
the conviction of appellant for the offence u/s 302, RPC.
The prosecution case has already been stated at the very threshold of the judgment and need not be reiterated. The gist of the statement of the
accused recorded u/s 342 of the Cr. P.C. has also been stated and how far and to which extent it amounts to confession/admission and what
would be its effect on establishing the offence against him, has also not been noticed. The most important witness is Ghulam Murtaza who has
lodged the FIR also. His statement too has already been stated in the judgment. In the FIR, he has stated that he himself saw the accused stabbing
the deceased. However, when he appeared in the Court as a witness, he did not fully corroborate the FIR. He stated that he saw the dagger in the
hand of the accused and when he threatened to stab the deceased with it, he ran away from the place of occurrence and rushed into the Police
Station which was nearby, so as to inform the police about it. We have already appreciated his evidence and despite his retraction he has
corroborated the prosecution case. From his evidence, it is sufficiently established that the accused attacked the deceased with a dagger, and in the
circumstances of the case, it is quite safe to infer that it was the accused who stabbed the deceased and caused such an injury to him which was
sufficient to cause his death and did actually cause his death. In our opinion, this witness is a truthful witness and has emerged as such from the
cross-examination. Despite the fact that both the accused and the deceased happened to be his neighbours, and both sides must have tried their
best to influence him either way, he has given the correct version about the alleged occurrence.
As regards the PWs Abdul Rashid and Anand Ji, their evidence also is very important. Both of them are police officers and were on petrol
duty on the evening of the fateful night when the alleged occurrence took place. On reaching the place of occurrence, they found the accused and
the deceased grappling with each other. The deceased had caught hold of the accused when they arrived on the spot. They caught hold of them.
They saw the deceased was bleeding and had already received an injury in his abdomen. While bringing them to the police station the deceased
told them that the accused has killed him. According to them, the deceased was in a critical condition and from the police station, he was taken to
the Hospital in a Jeep where he succumbed to injury immediately. Both the witnesses, in our opinion, are truthful witnesses and have no bias
against the accused. In their cross-examination, their credibility could not be taken in any manner whatsoever.
The PW Ghulam Murtaza and his wife Mst. Rashida have sufficiently proved that the deceased was in love with the sister of the accused. Even
before the alleged occurrence, the accused had threatened the deceased of dire consequences. The accused has admitted in his statement u/s 342,
Cr. P.C., that the deceased used to tease his I sister. From this evidence and the other evidence in the shape of love letters written by the sister of
the accused to the deceased, which have been seized during the course of investigation and form part of judicial record on the file. It is amply
proved that the accused had a motive in the commission of the offence.
There is strong medical evidence on the file in respect of the cause of death of the deceased. Dr. Nazir Ahmad has conducted post-mortem
examination on the dead body of the deceased. According to him, the deceased had died of profuse bleeding in abdomen caused by a deep
incised wound by a sharp instrument in the umblical region of the abdomen. The bleeding has led to severe irrecoverable shock and death.
As regards the evidence of the disclosure and recovery of the alleged weapon of offence, its evidentiary value has already been discussed
above in this judgment.
From the evidence on the file coupled with some admissions made by the appellant in his statement recorded u/s 342 of the Cr. P.C. it has
been amply established that the deceased's death was caused by an injury inflicted on him by the appellant. In our opinion, this has been proved
beyond any shadow of doubt that the deceased was stabbed by the appellant, which resulted in his death.
Now, the question is whether the injury caused by the appellant to the deceased which resulted in his death was intentional or otherwise.
Whether by causing such injury, he intended to cause his death or not.
Murder is defined in Section 300, punishment whereof is given u/s 302, RPC. Section 300 reads, as under:
Except in the case hereinafter except, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing
death, or -
Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the
harm is caused, or -
Thirdly,- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or -
Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury
as is likely to cause death, and commities such an act without any excuse for incurring the risk of causing death or such injury as aforesaid.
It would be profitable to refer to the definition of culpable homicide and which is defined in Section 299, RPC, and is reproduced below:
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
We have already found that the appellant caused an injury on the body of the deceased by a dagger which was seen by the sole eye-witness
Ghulam Murtaza in his hand at the time of the occurrence. The question is whether the appellant caused that injury with the intention of causing his
death or with the intention of causing such bodily injury as he knew to be likely to cause his death or with the intention of causing bodily injury
which was sufficient in the ordinary course of nature to cause death or while causing such injury, he knew that it was imminently dangerous that it
must in all probability cause death or such bodily injury as was likely to cause death. In order to go into this question, we have also to keep in view
that the accused as also the deceased were both young persons and no other person assisted either of them when the occurrence look place. No
evidence is on the file in this regard. It is also in evidence as stated by Ghulam Murtaza, the lone eyewitness, that the appellant did not stab the
deceased suddenly without his knowledge. He first challenged him in the presence of Murtaza. In the ordinary course of human conduct by way of
self defence, the deceased could resist the assault made by the accused, and if so, it could cause injury to him on any other part of the body also
and not necessarily on any particular part of the body. Had the injury been caused at his back, at his leg or at his arm or at some other unvital part
of the body, it was not likely to cause his death. Had that injury been caused on any portion of the body except front position of the body, it was
not likely to cause death. Admittedly, according to medical evidence, there was only one injury on the body of the deceased and that was on his
abdomen. There is no evidence on the file that anybody else assisting the appellant caught hold of the deceased and the accused stabbed in his
abdomen. That being so, how can it be inferred that the appellant intended to cause an injury only on the abdomen of the deceased. The most
probable inference deducible from the facts and circumstances of the case, is that during the assault made by the appellant on the deceased, the
latter had put up some resistance. This is also proved from the evidence of the PWs Abdul Rashid and Anand Ji also, who had seen them
grappling with each other. As the appellant had an upper hand in the attack because he was armed with a dagger and that fact must have
weakened the resisting power of the deceased, and that way, the abdomen of the deceased received the injury.
But it cannot be inferred that it was so intended by the appellant. In absence of any such evidence that the appellant intended to stab the deceased
only in abdomen, the Court has to draw an inference which could be most probable in the circumstances of the case. The only plausible inference
to be drawn is that the appellant made an assault on the deceased with the knowledge that the dagger could hit any part of the body, vital or
otherwise. The injury in the abdomen proved fatal as there was profuse blood loss in the body of the deceased, which caused his death. Had the
injury been received by some other part of the body not vital for life, it could not have caused his death. The intention of the accused can be
inferred only from the circumstances of the case. Admittedly, only one injury was caused to the body of the deceased which could show that the
appellant had not the intention of causing death to him. If he had such intention, he could have caused more injuries on his body. Only abdomen of
the deceased got stabbed. This would show that he had the knowledge of causing bodily injury only. However, the question is whether he knew or
could have the knowledge that the bodily injury caused by him on the body of the deceased was sufficient to cause his death or was likely to cause
his death.
We have given our serious consideration to this question, and in our opinion, from the facts and circumstances of the case the only probable
inference which can be drawn is that the appellant caused the bodily injury to the deceased with the knowledge that it was likely to cause his death.
As the inference of intention on the part of the appellant to cause the death of the deceased in our opinion, is not probable the offence of murder as
defined in Section 300, RPC. is not brought home to him. He has not caused the death of the deceased with the intention of causing his death or
with the intention of causing bodily injury as was likely to cause death or with the intention of causing bodily injury which was sufficient in the
ordinary course of nature to cause the death or with the knowledge that the injury caused by him was imminently so dangerous, that in all
probabilities it could cause the death. That being so, the appellant has not committed the offence as defined u/s 300, punishment whereof is
provided u/s 302, RPC.
Now, it is to be seen as to what offence the appellant has committed. As already stated above, in our opinion, the appellant caused the injury
to the deceased with a dagger with the knowledge that it was likely to cause death. He has not stabbed the deceased with the intention of causing
his death or with the intention of causing such bodily injury as was likely to cause death. He, however, had the knowledge that by stabbing the
deceased with such type of dagger, it was likely to cause his death. He has, therefore, committed an offence of culpable homicide as defined in
Section 299, RPC and punishable u/s 304, RPC. In Section 304, RPC, there are two parts. For punishing an accused in the first part, it must be
proved that the act : by which the death was caused, was done with the intention of causing death or of causing such bodily injury as was likely to
cause death. As already stated, in our opinion, it is not proved that the appellant herein had the intention of causing the death of the deceased and
nor the intention of causing such bodily injury as was likely to cause death. In our considered opinion, it has been proved that he had the
knowledge that the injury caused by him was likely to cause death but without any intention to cause death or to cause such bodily injury as was
likely to cause death. He has, therefore, committed an offence punishment whereof is provided in the second part of Section 304, RPC. This is the
only probable inference which we have been able to draw that the appellant caused the injury to the deceased with the knowledge that it was likely
to cause his death. There is no shadow of doubt in our mind in this regard, and in our opinion, it has been reasonably established that the appellant
had the knowledge that his act was likely to cause the death of the deceased.
In these circumstances of the case, the appeal is allowed to the extent that the conviction of the appellant for the offence u/s 302, RPC. is
annulled and hereby altered into a conviction for the offence u/s 304, RPC. As the offence u/s 304, Part-I I, is proved against him, he is convicted
for the offence u/s 304, Part-II. The order of conviction passed by the learned Sessions Judge stands, accordingly, modified.
As regards the sentence, the offence u/s 304, Part-II is punishable with imprisonment of either description for a term which may extend to ten
years and also to fine. In our opinion, there are no extenuating circumstances to take a lenient view in favour of the appellant. He is, therefore,
sentenced to rigorous imprisonment of ten years and a fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo a rigorous
imprisonment for six months. The sentence awarded on the appellant by the learned Sessions Judge is, accordingly, altered and the appeal is
allowed to that extent,
As this Court has partly allowed the appeal, as mentioned above, and the appellant has been convicted for the offence u/s 304, Part-II, RPC.
and sentenced to a rigorous imprisonment of ten years only, the reference made by the learned Sessions Judge is rendered infructuous, which is,
accordingly disposed of.
The appeal is disposed of accordingly. Appeal file be consigned to records. The record shall be remitted back to the learned Sessions Judge,
Srinagar, for further necessary action under law.
M.L. Bhat J.
I agree.