Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1. This appeal, by special leave, calls in question the judgment
and order dated 06th August, 2019 of the High Court of Judicature at
Bombay, Bench at Nagpur, whereby Criminal Appeal No 211 of 2016
carried by the appellant assailing his conviction under section 302,
Indian Penal Code, 1860 (for brevity ‘IPC’) and sentence of life
imprisonment with a fine of Rs.6,000.00 and a default sentence of
one year as well as sentence of seven years of rigorous
imprisonment and fine of Rs.4,000.00 for the offence punishable
under section 307, IPC was dismissed.
2. The prosecution case was that Nandkishor Korde (for brevity
‘the victim’) was murdered on 26th September, 2013 at around 5:00
pm by the appellant. The other three victims, namely Namdeo Korde
(P.W.2), Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received
stab injuries caused by a knife, also inflicted by the appellant. A
report was lodged soon thereafter by the mother of the victim
Rekhabai Korde, (P.W.1), leading to registration of an F.I.R. under
sections 302 and 307, IPC. The post-mortem report dated 27th
September, 2013 (Ext.35) recorded “stab injury to neck” of the
victim as the probable cause of death.
3. Consequent to the registration of the F.I.R., Police Inspector
Bharat Thakre (P.W.8) took up the investigation, visited the spot of
the incident and prepared spot panchnama. He found the spot of the
incident stained with blood and recovered a blood-stained knife, a
wooden stick stained with blood, three pairs of chappals, two
spectacles, and a blue dot pen. P.W.8 arrested the appellant and
since he too had received injuries, he was referred to the Rural
Hospital, Katol for his medical examination.
4. Upon completion of the investigation, a charge sheet under
sections 302 and 307, IPC was filed before the concerned court
against the appellant. Upon committal, charges for the above-said
offences were framed to which the appellant pleaded not guilty and
claimed to be tried.
5. The prosecution examined 8 (eight) witnesses to support of its
case. None was examined on behalf of the defence. However, the
appellant filed a written statement, which we propose to refer to at
a later part of this judgment. The Additional Sessions Judge largely
relied on the statements of P.W.2, P.W.3, and P.W.4 to convict the
appellant. The Court concluded that the appellant committed the
murder of the victim with the knife (Art.1) and also attempted to
commit the murder of P.W.2, P.W.3 and P.W.4. The defence of the
appellant appeared to the Court to be false and the prosecution was
held to have proved its case beyond reasonable doubt. This was
followed by the convictions and sentences, noted above.
6. The aforesaid judgment having been challenged before the
High Court, the relevant Division Bench was of the view that the
findings did not warrant any interference and that the appeal was
devoid of any merit; hence, it was dismissed.
7. The first limb of the arguments advanced by learned counsel
for the appellant is that the courts below clearly erred in convicting
the appellant. According to him, the following points deserve
a. Firstly, the courts below failed to appreciate that none of the
other persons present at the site of the occurrence, namely
Shankarrao Fartode, Umrao Charde, and Ramesh Korde (as
per the version of P.W.2) were examined as prosecution
witnesses. The courts ought to have inferred that had they
been produced they would not have supported the prosecution
case and, thus, were deliberately withheld. Non-examination of
such independent witnesses, therefore, should be held to be
fatal to the prosecution case.
b. Secondly, having regard to the age of the appellant (he was 58
years old on the date of the incident), it is quite improbable
that he could freely inflict stab injuries on the victim and the
others without anyone of the injured as well as the others
present at the site (Shankarrao Fartode, Umrao Charde, and
Ramesh Korde) even making an attempt to resist the appellant
from inflicting injuries as also to save anyone of the others.
c. Thirdly, it was necessary to establish, by examining these
independent witnesses, that it was the appellant who came
with the knife and holding it was on a stabbing spree resulting
in the death of the victim and injury to the others.
d. Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) who
deposed against the appellant were interested witnesses and,
therefore, not credible and their testimony ought not to have
been relied upon.
e. Fifthly, the courts below failed to take note that P.W.2 and
P.W.3 were both interested witnesses and it was a clear case of
false implication by suppressing the original story of the actual
f. Sixthly, it is surprising that although P.W.4 claimed to have
snatched the knife from the appellant, there is no injury on his
hand; on the contrary, there is no explanation from the side of
the prosecution with regard to the six injuries suffered by the
g. Seventhly, no motive could be established for the appellant to
assault the victim and P.W.2 as the dispute between the
parties arising out of unauthorized construction made by P.W.2
on the ground floor of the building of the appellant relates
back to the year 2003.
h. Seventhly, the knife was not recovered at the instance of the
appellant under section 27 of the Indian Evidence Act, 1872
but seizure has been shown to have been made at the site.
There being contradictory statements of P.W.2 and P.W.4, it is
unclear as to who introduced the knife in the scuffle.
i. Finally, the appellant was a permanent resident of Nagpur
whereas the place of the incident is Katol, a tehsil place
situated about 50 kms. from Nagpur. There could hardly be
any reason for the appellant to travel such distance and
murder the victim, and that too with a knife in broad daylight
and in the presence of a host of people.
8. The second limb of the arguments of learned counsel is that
even if it be assumed that death of the victim occasioned at the
hands of the appellant, as per the prosecution case the victim was
initially away from the place of incident and was the last to join the
scuffle. There was, thus, no premeditation on the part of the
appellant as such and the victim seems to have got injured
unintentionally in the scuffle between the appellant on the one side
and the victim, P.W.s 2, 3 and 4 on the other. Therefore, clearly, the
victim was not the target. He contended that conviction of the
appellant under section 302, IPC was erroneous on facts and in the
circumstances and that the evidence at best made out a case
punishable under section 304, Part II, IPC. The appellant has been
behind bars for nine years and it is only fair, just and proper that
this Court upon consideration of the materials on record directs his
release by converting the conviction from section 302, IPC to
section 304, Part II, IPC and sentencing him to the period already
spent in custody.
9. Learned counsel appearing for the State, on the other hand,
supported the judgment of conviction and order of sentence of the
Sessions Judge. He also submitted that the High Court took pains to
reappraise the evidence and finally concurred with the Sessions
Judge. No case having been set up by the appellant for interference,
he urged this Court to dismiss the appeal.
10. We have heard the parties, considered the evidence led by
them before the trial court and perused the judgment and order of
the trial court and the High Court.
11. Any detailed discussion of the oral evidence of the prosecution
witnesses is considered unnecessary in view of the “WRITTEN
STATEMENT” dated 31st March, 2016 (Ext.96) of the appellant
[Annexure ‘P-16’ to the paperbook], which was filed by him before
the trial court in his defence, in terms of sub-section (5) of section
313 Code of Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is
also noted that while replying to Q. No.79 in course of examination
under section 313(1), the appellant had referred to such a
12. The gist of Ext. 96, to the extent relevant for the purpose of a
decision on this appeal, is that the appellant used to come to Katol
from Nagpur for collecting rent every 2-3 months; that the appellant
came to Katol on 26th September, 2013 for collecting rent; that while
the appellant was returning from a credit society after withdrawing
money and climbing the stairs of his house, the victim spit on him
and threatened him by saying “Aaj tere ko fitate hai, tera game
bajate hai”; that while the appellant was leaving his house, P.W.2
gave a signal to the victim and P.W.4 by saying “Ala re ala”; on
seeing the appellant, the victim took out a knife and P.W.4 took out
a ‘fighter’ belonging to P.W.3 and started beating him; that the
appellant could take the knife with both his hands and in the
meantime P.W.2 and P.W.3 came forward to beat the appellant; that
while the appellant tried to save himself, the victim and P.W.s 2 to 4
sustained injuries; that the appellant too suffered serious injuries on
the fingers of both his hands, knife wounds on his chest and injuries
on his chest and right shoulder having been beaten by a wooden
stick. Immediately after such incident, the appellant went to the
police station for lodging a complaint against his assailants but the
same was not received. He was made to wait in the police station till
10.00 pm without his injuries being treated. He also stated that
P.W.s 2, 3 and 4 had strained relations with him and that is the
reason why they tried to seriously injure him.
13. There is a plethora of judicial pronouncements on
consideration of section 313, Cr. P.C., a few of which need to be
noted at this stage.
14. A bench of three Hon’ble Judges of this Court in State of U.P.
vs Lakhmi1 has extensively dealt with the aspect of value or utility
of a statement under section 313, Cr. P.C. The object of section 313,
Cr. P.C. was explained by this Court in Sanatan Naskar vs. State
of West Bengal2
. The rationale behind the requirement to comply
with section 313, Cr. P.C. was adverted to by this Court in Reena
Hazarika vs. State of Assam3
. Close on the heels thereof, in
Parminder Kaur vs. State of Punjab4
, this Court restated the
importance of section 313, Cr. P.C. upon noticing the view taken in
Reena Hazarika (supra) and M. Abbas vs. State of Kerala5
15. What follows from these authorities may briefly be
summarized thus:
1 (1998) 4 SCC 336
2 (2010) 8 SCC 249
3 (2019) 13 SCC 289
4 (2020) 8 SCC 811
5 (2001) 10 SCC 103
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a
valuable safeguard in the trial process for the accused to establish
his innocence;
b. section 313, which is intended to ensure a direct dialogue
between the court and the accused, casts a mandatory duty on the
court to question the accused generally on the case for the purpose
of enabling him to personally explain any circumstances appearing
in the evidence against him;
c. when questioned, the accused may not admit his
involvement at all and choose to flatly deny or outrightly repudiate
whatever is put to him by the court;
d. the accused may even admit or own incriminating
circumstances adduced against him to adopt legally recognized
e. an accused can make a statement without fear of being
cross-examined by the prosecution or the latter having any right to
cross-examine him;
f. the explanations that an accused may furnish cannot be
considered in isolation but has to be considered in conjunction with
the evidence adduced by the prosecution and, therefore, no
conviction can be premised solely on the basis of the section 313
g. statements of the accused in course of examination under
section 313, since not on oath, do not constitute evidence under
section 3 of the Evidence Act, yet, the answers given are relevant
for finding the truth and examining the veracity of the prosecution
h. statement(s) of the accused cannot be dissected to rely on
the inculpatory part and ignore the exculpatory part and has/have
to be read in the whole, inter alia, to test the authenticity of the
exculpatory nature of admission; and
i. if the accused takes a defence and proffers any alternate
version of events or interpretation, the court has to carefully
analyze and consider his statements;
j. any failure to consider the accused’s explanation of
incriminating circumstances, in a given case, may vitiate the trial
and/or endanger the conviction.
16. Bearing the above well-settled principles in mind, every
criminal court proceeding under clause (b) of sub-section (1) of
section 313 has to shoulder the onerous responsibility of scanning
the evidence after the prosecution closes its case, to trace the
incriminating circumstances in the evidence against the accused and
to prepare relevant questions to extend opportunity to the accused
to explain any such circumstance in the evidence that could be used
against him. Prior to the amendment of section 313 in 2009, the
courts alone had to perform this task. Instances of interference with
convictions by courts of appeal on the ground of failure of the trial
court to frame relevant questions and to put the same to the
accused were not rare. For toning up the criminal justice system and
ensuring a fair and speedy trial, with emphasis on cutting down
delays, the Parliament amended section 313 in 2009 and inserted
sub-section (5), thereby enabling the court to take the assistance of
the Public Prosecutor and Defence Counsel in preparing such
questions [the first part of sub-section (5)]. Ideally, with such
assistance (which has to be real and not sham to make the effort
effective and meaningful), one would tend to believe that the courts
probably are now better equipped to diligently prepare the relevant
questions, lest there be any infirmity. However, judicial experience
has shown that more often than not, the time and effort behind
such an exercise put in by the trial court does not achieve the
desired result. This is because either the accused elects to come
forward with evasive denials or answers questions with stereotypes
like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does
more harm than good to the cause of the accused. For instance, if
facts within the special knowledge of the accused are not
satisfactorily explained, that could be a factor against the accused.
Though such factor by itself is not conclusive of guilt, it becomes
relevant while considering the totality of the circumstances. A
proper explanation of one’s conduct or a version different from the
prosecution version, without being obliged to face crossexamination, could provide the necessary hint or clue for the court
to have a different perspective and solve the problem before it. The
exercise under section 313 instead of being ritualistic ought to be
realistic in the sense that it should be the means for securing the
ends of justice; instead of an aimless effort, the means towards the
end should be purposeful. Indeed, it is optional for the accused to
explain the circumstances put to him under section 313, but the
safeguard provided by it and the valuable right that it envisions, if
availed of or exercised, could prove decisive and have an effect on
the final outcome, which would in effect promote utility of the
exercise rather than its futility.
17. Once a written statement is filed by the accused under subsection (5) of section 313, Cr. P.C. and the court marks it as an
exhibit, such statement must be treated as part of the accused’s
statement under sub-section (1) read with sub-section (4) thereof.
In view of the latter sub-section, the written statement has to be
considered in the light of the evidence led by the prosecution to
appreciate the truthfulness or otherwise of such case and the
contents of such statement weighed with the probabilities of the
case either in favour of the accused or against him.
18. This is a case where it does not appear from the records that
the written statement (Ext. 96) engaged the attention of both the
trial court as well as the High Court. Applying the principles noted
above and for the reasons discussed below, there can be no quarrel
that non-consideration of Ext. 96, to a limited extent, in relation to
recording of conviction and consequently imposition of sentence,
has rendered it vulnerable to interference.
19. Ext. 96 refers to inculpatory admissions as well as seeks to
bring out exculpatory circumstances. The statement has to be read
in its entirety. The inculpatory admissions emerging from this
statement against the appellant are (i) his presence at the spot and
(ii) sustaining of injuries by the victim and the other prosecution
witnesses while the appellant, as claimed, was attempting to save
himself from getting injured. The exculpatory circumstances sought
to be established are (i) the appellant’s description of the act
complained of as involuntary, which was compelled by inevitable
circumstances and not guided by choice and, (ii) sustaining of injury
by him in the same transaction.
20. In view of the inculpatory admissions appearing from Ext.96,
the trial court, and the High Court while concurring with the trial
court, need not have laboured much to convict the appellant as the
person instrumental for the homicidal death of the victim by
discussing the evidence led in course of the trial in details. The
appellant’s presence at the spot and the victim and the injured
witnesses sustaining injury in course of the scuffle could be held to
have been established from Ext.96 itself. However, by not looking
into Ext. 96 with the other evidence on record, what the trial court
omitted to consider is, whether the prosecution was justified in
claiming that the offensive act amounted to culpable homicide
amounting to murder or whether the appellant being guilty of
culpable homicide not amounting to murder, deserved punishment
under section 304, Part II, IPC. True it is, the trial court considered
the arguments advanced on behalf of the appellant that (i) he had
“exercised his right of private defence”, and though (ii) “he
exceeded such right”, (iii) the present case at the most would fall
under section 304, Part II, IPC; but, it proceeded to overrule such
arguments by relying on the oral testimony of P.W.s 2 to 4. In the
process, the trial court failed to appreciate the defence version as
spelt out in Ext.96, which appears to us to be plausible. A senior
citizen who visits Katol from Nagpur, his place of residence, for
collecting rent, having the intention of murder would possibly not
attempt to do so in broad daylight and in the presence of witnesses,
and that too with a weapon such as a knife. Reading Ext.96 as it is,
we do find it probable that there could have been provocation at the
instance of the victim, who allegedly indulged in spitting on the
appellant coupled with verbal abuse, whereafter P.W.2 and later
P.W.s 3 and 4 sprang into action, resulting in a scuffle where both
parties indulged in inflicting injuries on each other resulting in an
unwanted loss of life.
21. Regrettably, pointed attention of the High Court does not
appear to have been drawn to Ext.96 by counsel on behalf of the
appellant, as a consequence whereof the Court went on to hold that
the “act could not be shown to have come in any of the exceptions
enumerated in Section 300 of IPC”, that “it is neither the result of
sudden provocation nor done in the heat of passion during quarrel”,
and that it had “no hesitation to hold that the death of Nandkishor
is culpable homicide amounting to murder”.
22. Be that as it may, we have no difficulty in proceeding to record
our conclusions resting on the evidence on record as well as Ext.96,
which the appellant voluntarily filed before the trial court as his
response to the incriminating materials appearing in the evidence
against him while being questioned under section 313, Cr. P.C, for
whatever it is worth. It appears to us to be a fair and proper
disclosure of the appellant’s version as to what transpired on that
fateful evening. The offensive act committed by the appellant has to
be appreciated in the surrounding circumstances noted below.
23. In the normal run of events, the victim as well as P.W.2 and
the appellant were not supposed to interact with each other on 26th
September, 2013. P.W.2 opened the shop of the victim because the
victim had not returned from the field. If P.W.2 had not opened the
shop, the appellant would probably not have met him. It was by
chance that the appellant and P.W.2 met each other. The victim and
the appellant had no quarrel with each other; whatever was there, it
was between the appellant and P.W.2. The inter se quarrel between
the two had long subsided. There is a missing link in the prosecution
case as to the motive of the appellant to inflict the blow on P.W.2
first. It is in the evidence of P.W.2 that he was reading a newspaper
sitting in front of the shop of the victim and that the appellant was
sitting in the saloon of Baburao Sawarkar (not examined), which
was opposite to the shop of the victim. The appellant, as per P.W.2,
was unarmed initially. P.W.2’s further version was that the appellant
went to his house, fetched a knife and then stabbed P.W.2 on his left
shoulder, neck and left-hand finger resulting in serious bleeding
injuries. The reason why the appellant suddenly on seeing the
septuagenarian P.W.2 would go to his house and return with a knife
is not there in the evidence. We shall, for the present, assume that
there were heated exchanges and that the appellant gave a blow to
P.W.2 first, and thereafter to the others one by one. Then again, the
victim who, according to P.W.2, was supposed to be in the field but
appeared in the scene from some other place all on a sudden, was
the third in the series to be stabbed by the appellant and, thus, was
not his target. Though there is no specific admission by the
appellant that he had stabbed the victim or the other injured
witnesses, reading of the contents of Ext.96 does evince an act of
retaliation spurred by sudden provocation resulting in a quarrel as
well as a scuffle which ultimately, most unfortunately, cost the
victim his life and left some others injured. The appellant too
sustained injuries in the scuffle and there is evidence on record that
one of the injuries was grievous, yet, the criminal law was
surprisingly not set in motion to bring to book those responsible for
inflicting such injury. It was in a sudden quarrel, which could have
been provoked by the victim and P.W.2, that blows followed from
each side. Most importantly, the circumstances in which the incident
occurred does clearly negate any suggestion of premeditation in
mind. That apart, it cannot be overlooked that while the victim was
middle-aged, the appellant was in his late fifties. At the time of the
alleged incident, apart from P.W.s 2 and 3, Shankarrao Fartode,
Umrao Charde, Ramesh Korde (all three not examined) were
present at the spot, as per the version of P.W.2. It is indeed
improbable that in the presence of such persons, the appellant
wielding a weapon like a knife would come to the spot with an
intention to commit the offence of murder overpowering all of them
without any sufficient reason or provocation. In our opinion, the trial
court lacked in objectivity by not examining the facts and
circumstances as to whether the situation was such as is likely to
reasonably cause an apprehension in the mind of the appellant that
there was imminent danger to his body, of either death or grievous
hurt being caused to him, if he did not act in private defence. To
impute intention to cause death or the intention to cause that
particular injury, which proved fatal, in these circumstances seems
to be unreasonable.
24. Exception 4 to section 300, IPC ordains that culpable homicide
is not murder if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or
unusual manner. The explanation thereto clarifies that it is
immaterial in such cases which party offers the provocation or
commits the first assault. Four requirements must be satisfied to
invoke this exception, viz. (i) it was a sudden fight; (ii) there was no
premeditation; (iii) the act was done in a heat of passion; and (iv)
the assailant had not taken any undue advantage or acted in a cruel
or unusual manner.
25. Taking an overall view of the matter, we are inclined to the
opinion that the appellant was entitled to the benefit of Exception 4
to section 300, IPC.
26. The upshot of the above discussion is that this is not a case
where the appellant could be convicted for murder of the victim. His
conviction for murder and sentence of life imprisonment are liable to
be set aside. It is ordered accordingly.
27. However, we think it proper to convict the appellant under
section 304, Part II, IPC. Since the appellant has suffered
imprisonment for more than nine years and he is presently in his
late sixties, we consider incarceration for such period as adequate
punishment. The appellant shall be released from custody forthwith,
unless required in connection with any other case.
28. Since the appellant has already served the sentence imposed
for commission of offence under section 307, IPC, based on a
conviction which is highly suspect, we allow it to rest.
29. The appeal stands allowed to the extent indicated above. No
30. Before parting, we observe that this is a case where the police
should have investigated the injuries suffered by the appellant too.
The appellant also did not pursue any available remedy to right the
wrong. However, in view of little less than a decade having passed
since the incident took place, any direction to investigate at this
distance of time may not yield any fruitful result. We, therefore,
refrain from issuing such direction.

New Delhi, ………………………………J
rd March, 2023. (DIPANKAR DATTA)
 S U P R E M E C O U R T O F I N D I A
Criminal Appeal No. 211/2023
PREMCHAND Appellant(s)
JJ.]...FOR ADMISSION and I.R. and IA No.184015/2019-EXEMPTION FROM
Date : 03-03-2023 This matter was called on for pronouncement for
 judgment today.
For Appellant(s) Mr. Sudheer Voditel, Adv.
Mr. Ravindra Bana, AOR
Mr. Simanta Kumar, Adv.
For Respondent(s)
 UPON hearing the counsel the Court made the following
 O R D E R
Hon’ble Mr. Justice Dipankar Datta pronounced the
reportable judgment of the Bench comprising Hon’ble Mr. Justice
S. Ravindra Bhat and His Lordship.
The operative portion of the reportable judgment reads as
under :
“26. The upshot of the above discussion is that
this is not a case where the appellant could
be convicted for murder of the victim. His
conviction for murder and sentence of life
imprisonment are liable to be set aside. It is
ordered accordingly.
27. However, we think it proper to convict the
appellant under section 304, Part II, IPC.
Since the appellant has suffered imprisonment
for more than nine years and he is presently
in his late sixties, we consider incarceration
for such period as adequate punishment. The
appellant shall be released from custody
forthwith, unless required in connection with
any other case.
28. Since the appellant has already served the
sentence imposed for commission of offence
under section 307, IPC, based on a conviction
which is highly suspect, we allow it to rest.”
The appeal stands allowed in terms of the
signed reportable Judgment.
All pending applications are disposed of.
(Signed reportable judgment is placed on the file)


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