2024 INSC 473

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 32 OF 2013

JOY DEVARAJ … APPELLANT

VERSUS

STATE OF KERALA …RESPONDENT

JUDGMENT

DIPANKAR DATTA J.

1. This criminal appeal, by special leave, calls in question the judgment and

order dated 28th September, 2011 of the Kerala High Court1 dismissing the

appellant’s appeal2 under section 374(2) of the Code of Criminal Procedure.

The impugned judgment upheld the conviction of the appellant by the

Sessions Court, Thalassery3 under sections 143, 147, 148, and 302 of the

Indian Penal Code, 1860 (“IPC”, hereafter) and, inter alia, the sentence of

imprisonment for life together with fine.

2. Bare reading of the impugned judgment reveals that the appellant, who

was part of an unlawful assembly, murdered Bobby4 in the evening of 26th

December, 1999 due to a dispute which arose on 24th December, 1999

Signature Not Verified

Digitally signed by
RADHA SHARMA
Date: 2024.07.08
17:41:22 IST
Reason:
1
High Court, hereafter
2
Criminal Appeal No. 12 of 2007
3
Sessions Court, hereafter
4
“victim”, hereafter
1
 between Sufras @ Rinku5 and Bennet Ignatius6. Since we are considering

this appeal which is at the instance of the appellant, being accused no.1,

the discussion in this judgment is proposed to be confined to the role of the

appellant only; however, the role of the other accused may be discussed

tangentially, if required.

3. The sequence of events preceding the death of the victim, according to the

prosecution case, reveals that the victim and PW5 were members of an

‘Anti-Liquor Movement’. They attempted to persuade the public to give up

drinking alcohol. On 24th December, 1999, PW5 got into an altercation with

A4 who allegedly was an illicit liquor vendor. The victim had supported PW5

in that altercation and, thus, had a run-in with A4. During the course of the

argument, A4 had threatened the victim with danger to his life and this,

according to the prosecution, formed the genesis for the attack on the

victim in the evening of 26th December 1999. On that day, Dikson Jerry7

was standing near the victim’s house with K.T. Varghese8 and Byju9. At this

time, the victim was standing on the street, at a distance of about 5 metres

from PW1, talking to K.R. Rainold Suresh10 and Jerry Mariyadas11, when

Renjith T.M.12 arrived on his scooter and joined the group of the victim.

Around 7:40 PM, all the accused persons including the appellant armed

with deadly weapons were seen approaching the victim. Sensing danger,

the victim tried to flee on PW4’s scooter but the scooter was cut off

5
“A4”, hereafter
6
“PW5”, hereafter
7
“PW1”, hereafter
8
“PW2”, hereafter
9
“CW2”, hereafter
10
PW3
11
PW6
12
“PW4”, hereafter
2
 immediately. The appellant, armed with a dagger, grabbed the victim, and

pulled him to the ground and proceeded to stab him with the dagger on the

left side of his lower chest. The other accused persons hit the victim with

hockey sticks. Further, after the conclusion of the attack on the victim, the

accused while retreating hurled a bomb at the door of PW1’s house. PW1,

PW2 and CW2 rushed the victim to the hospital, where he was pronounced

dead.

4. An F.I.R.13 under sections 143, 147, 148, 324, 302 r/w 149 of IPC was

registered at the behest of PW1 at around 22:45 PM at Kannur City Police

Station. Investigation of the F.I.R. culminated in filing of charge-sheet

against 15 (fifteen) accused persons and committal of the case to the

Sessions Court where it was registered as Sessions Case No.201/2002. The

accused persons stood trial whereupon the Sessions Court vide its

judgment and order14 found, inter alia, the appellant guilty of murder and

sentenced him to life in prison under section 302, IPC. The co-accused were

found guilty of lesser crimes and suitably sentenced.

5. The appellant has disputed the prosecution case and questioned the

credibility of the prosecution witnesses. Learned counsel appearing on his

behalf has presented the following arguments:

I. The testimonies of the eye witnesses are wholly unreliable as they

are full of material contradictions and gaps. The testimonies taken as

a whole cannot lead one to conclude that the burden to prove murder

was satisfied. The role of the appellant has been muddled in all three

13
No. 131 of 1999
14
dated 13th December 2006 in Sessions Case No. 201/2002
3
 eye-witness accounts and, thus, the benefit of doubt should be given

to the appellant.

II. PW1, who is also the first informant, has been inconsistent in his

version about both the weapon as well as the overt act committed by

the appellant. In the written complaint which was later converted into

the FIR, PW1 stated that he saw the appellant along with other co-

accused approach the victim with a dagger. He has further expressed

that other accused persons were armed with knives and hockey

sticks. The victim upon noticing the group approaching him, tried to

flee on the scooter of PW4 when the appellant together with Sanju15

pulled him to the ground from the scooter and stabbed him on the

left side of the stomach with the dagger. This version narrated in the

FIR has changed when PW1 testified in court. The dagger became an

axe, and there is no mention of A2 helping the appellant in pulling the

victim from the scooter. Similarly, PW2 has stated that the appellant

used a knife instead of a dagger or an axe as stated by PW1.

III. PW4, one of the eyewitnesses, had turned hostile during the trial and

did not support the case of the prosecution. His testimony is of

significance as, by the prosecution’s own admission, he was present

at the scene of the incident. The evidence of a witness cannot be

discarded merely because he has turned hostile, and thus the

testimony of PW4 raises serious questions about the chain of events

which led to the death of the victim. This is a chink in the

prosecution’s armour which clearly demonstrates that the prosecution

15
“A2”, hereafter
4
 has not been able to prove the case against the appellant beyond

reasonable doubt.

IV. Arguendo, assuming that the prosecution established through

evidence that the appellant did attack the victim with a knife, it was

not able to prove that the appellant attacked the victim with an

intention to cause death. The act cannot be placed within the confines

of section 300, IPC as the injury caused to the victim was not

sufficient in the ordinary course of nature to cause death. It has been

submitted that a singular stab wound on the lower chest is not a life-

threatening injury and the appellant cannot be said to have

possessed the intention or the knowledge that the harm inflicted

would cause the death of the victim. Thus, the conviction under

section 302 of IPC is altogether unsustainable.

6. Accordingly, learned counsel urged us to reverse the impugned judgment

and to set the appellant free.

7. Per contra, learned counsel for the respondent while defending the

impugned judgment and referring to the evidence on record submitted that

the concurrent findings and conviction recorded by both the Sessions Court

and the High Court do not warrant interference.

8. Having heard learned counsel for the parties and upon scrutiny of the

materials on record, we are now tasked to determine whether the

conviction of the appellant under section 302, IPC warrants interference by

this Court.

9. The present case is one of a premeditated attack carried out by a group

of 15 (fifteen) people resulting in the victim’s death. To decide the

5
 sustainability of the conviction, we have to consider two issues: first, how

far the evidence of the witnesses is credible and secondly, whether the

nature of offensive act comes within the purview of section 300, IPC.

10. The appellant has highlighted inconsistencies in the statements of the

prosecution witnesses regarding the weapon used in the crime and the

overt act that he was alleged to have committed. PW1 and PW2 both have

deposed in Court that they witnessed the appellant pulling the victim down

from the scooter and striking him with a sharp weapon. The discrepancy

arises because PW1 stated that the appellant inflicted blow on the victim

with an axe, whereas PW2 stated that the appellant stabbed the victim with

a dagger. None has mentioned about any knife being used as the weapon of

offence.

11. At this stage, we find it crucial to look at a couple of decisions of this

Court on credibility of a witness and what the requirements are to discredit

or contradict a witness.

12. This Court in Rammi v. State of M.P.16 held:

“24. When an eyewitness is examined at length it is quite possible for

him to make some discrepancies. No true witness can possibly escape
from making some discrepant details. Perhaps an untrue witness who
is well tutored can successfully make his testimony totally non-
discrepant. But courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so incompatible with
the credibility of his version that the court is justified in jettisoning his
evidence. But too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between the evidence
of two witnesses or as between two statements of the same witness)
is an unrealistic approach for judicial scrutiny.”
(emphasis ours)

16
(1999) 8 SCC 649
6
 13. The appellant has also pointed out that PW1’s statement recorded in

the FIR has substantial variations with his testimony in court, and this

would give rise to doubts as to the veracity of his testimony. Here, we find

it expedient to excerpt a passage from Tahsildar Singh v. State of U.P.17

which lays down the standard for “contradicting” a witness in the following

words:

“19. ‘Contradict’ according to the Oxford Dictionary means to affirm

to the contrary. Section 145 of the Evidence Act indicates the manner
in which contradiction is brought out. The cross-examining counsel
shall put the part or parts of the statement which affirms the contrary
to what is stated in evidence. This indicates that there is something in
writing which can be set against another statement made in
evidence. If the statement before the police officer — in the sense we
have indicated — and the statement in the evidence before the court
are so inconsistent or irreconcilable with each other that both of them
cannot coexist, it may be said that one contradicts the other.”
(emphasis ours)

14. The excerpted passage crystalises the burden which is placed on a party

seeking to discredit the testimony of a witness.

15. During commission of the attack leading to the crime, there were 15

(fifteen) people forming part of the unlawful assembly. We presume, it

must have been a very chaotic situation leading to certain discrepancies

having arisen in the statements of the witnesses. We cannot expect all the

witnesses, when under attack by the accused persons seeking to terrorize

those protesting against liquor trade, to possess stellar memories with an

accurate recollection of the events. The appellant was required to

demonstrate that the incongruities in the statements of the several eye

witnesses shook the roots of their credibility. The threshold for disbelieving

17
1959 Supp (2) SCR 875
7
 a witness is not mere discrepancy or inconsistency but material discrepancy

and inconsistency, which renders the account narrated by the witnesses so

highly improbable that the same may safely be discarded altogether from

consideration.

16. In the present case, there is evidence to the effect that the appellant was

part of an unlawful assembly which gathered at the place of occurrence.

The victim had in mind bringing a thriving trade in liquor to be brought to a

grinding halt. There was, thus, definite motive for the accused persons

including the appellant to throttle the voice of the victim. In such a

scenario, the appellant was required to point out serious loopholes in the

prosecution story for discrediting the witnesses. Unfortunately, our faith in

the credibility and reliability of the witnesses is unshaken. Although, there

are a few inconsistencies in the testimonies of the witnesses but the same

are minor and not substantial, as argued, so as to erode the credibility of

such witnesses. it is clear that PW1 and PW2 have spoken in one common

voice that the appellant was the one who stabbed the victim and that he

succumbed to the injury caused by such stab. The medical evidence of Dr.

Dinesh P.18 does support the version of PW1 and PW2 that the victim died

of haemorrhage caused by an incised wound. None of the discrepancies in

the statements of PW1 and PW2, pointed out by learned counsel for the

appellant, have the effect of shaking the root of their testimonies and make

their version unreliable or implausible. The incident took place at around

7:40 PM. Considering that it was evening time, it is possible that one of the

two eyewitnesses standing 5-7 metres from the scene of the incident

18
“PW8”, hereafter
8
 misidentified the weapon. Both eyewitnesses have, however, correctly

described the appellant having stabbed the victim in the lower

chest/stomach area on the left side. The medical report corroborates this

ocular testimony by noting that the incised wound was found 6 cm below

the nipple and 13 cm lateral to the midline of the chest.

17. Even otherwise, section 134 of the Indian Evidence Act, 1872 ordains that

no particular number of witnesses is required, in any case, to prove a fact.

Therefore, it is not the law that a conviction cannot be recorded unless

there is oral testimony of at least two witnesses matching with each other.

It is the quality of evidence and not the quantity that matters. If the

evidence of a solitary witness appeals to the court to be wholly reliable, the

same can form the foundation for recording a conviction. Viewed thus, the

conviction of the appellant does not call for interference based on the sole

testimony of PW2, which we have found to be entirely trustworthy. Version

of PW2 being sufficiently corroborated by PW1 (except the weapon) is an

additional ground not to accept the argument advanced by learned counsel

for the appellant to reverse the conviction.

18. PW4 who had turned hostile during the trial has deposed that he was not

present at the place of occurrence. While it is settled law that a witness

cannot be disbelieved on the sole ground of him turning hostile, the

hostility of PW4 does not particularly dent the prosecution’s case. He has,

in his testimony, not stated an alternative case which would lead us to

question the credibility of the other eyewitnesses. We do not find any merit

in the argument that merely because PW4 resiled from his statement given

to the police, the entire case presented by the prosecution is unreliable.

9
19. It is also quite understandable why PW4 turned hostile. It is anybody’s

guess that those who trade in illicit liquor people of might, who can go to

any extent to keep the trade thriving. Having witnessed the fate of the

victim, PW4 must have felt insecure and, thus, decided against standing by

the prosecution case to save his own life.

20. We hold, without equivocation, that the prosecution has been able to

establish beyond reasonable doubt that the appellant was the person who

stabbed the victim during the course of the attack by the accused persons

leading to his death.

21. The criminal act of the appellant as the one responsible for homicidal

death of the victim being established, we need to probe now whether such

act would come within the ambit of section 300, IPC. Sections 299 and 300

thereof have to be read together, as culpable homicide and murder are

closely related concepts. It is often said that culpable homicide is the genus

and murder is one of species in that genus. All murders are culpable

homicide but not all culpable homicides are murder.

22. Though closely related, culpable homicide and murder cover very

different acts. To decide the issue, we can profitably take the aid of the

decision of this Court in Pulicherla Nagaraju @ Nagaraja Reddy v.

State of Andhra Pradesh19 wherein certain factors have been listed to

glean if the aggressor had an intention to cause death:

“29… It is for the courts to ensure that the cases of murder

punishable under Section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of culpable homicide
not amounting to murder are treated as murder punishable under
Section 302. The intention to cause death can be gathered generally

19
(2006) 11 SCC 444
10
 from a combination of a few or several of the following, among other,
circumstances; (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether the act was
in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any
premeditation; (vii) whether there was any prior enmity or whether
the deceased was a stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused dealt a single blow or
several blows. The above list of circumstances is, of course, not
exhaustive and there may be several other special circumstances with
reference to individual cases which may throw light on the question of
intention.”

23. Applying the rubric provided in Pulicherla Nagaraju (supra) to the

present case, we find that the weapon used for the premeditated attack

was a dagger, which is considered a deadly weapon. The weapon was

carried by the appellant to the scene of the incident and not picked up

from the spot. The victim was stabbed in his chest, which houses

multiple vital organs of the body. There was no provocation from the side

of the victim. The appellant and other co-accused had reached the place

of occurrence with the premeditated intention to cause hurt to the

victim, which can be seen from the fact that they formed an unlawful

assembly armed with deadly weapons with the common intention to

attack the victim and thereby put an end to the movement triggered by

him to stop trade in illicit liquor.

24. The post mortem examination of the victim revealed the cause of death

of the appellant to be haemorrhage due to an incised wound on the apex

11
 of the heart. The apex of the heart is the lowest tip of the heart located

on the lower left side of the chest. In his cross examination, PW8 (who

conducted the post-mortem examination) noted that such an injury can

cause death within 5 (five) minutes of infliction. Needless to observe, the

heart is one of several vital organs of the body, and the appellant caused

such bodily injury, which in the ordinary course of nature was sufficient

to cause death.

25. The appellant’s submission that only one of the eight injuries sustained

by the victim is grievous and the rest are simple and hence there is no

intention to cause death, cannot be accepted after examining the facts of

the case. In Stalin v. State20, this Court held that death caused by a

single stab wound can also be considered murder if the requirements of

section 300, IPC are fulfilled.

26. To summarise, the appellant participated in a premeditated attack on

the victim, armed with a deadly weapon and stabbed the unarmed victim

on a vital organ causing his death. The conduct of the appellant is

covered by both clauses (1) and (3) of section 300, IPC. The intention to

cause death can easily be discerned from the conduct of the appellant

and the nature of fatal injury inflicted, which in the ordinary course of

nature was sufficient to cause death. Fulfilment of any one condition of

section 300, IPC is enough to convict the appellant under section 302

thereof, but in the present case not one but two conditions have clearly

been shown to exist to nail the appellant for murder.

20
(2020) 9 SCC 524
12
27. In conclusion, we agree with the High Court’s affirmance of the

conviction and find that the impugned judgment warrants no

interference. The criminal appeal, accordingly, stands dismissed.

28. The order dated 13th February, 2015 granting bail to the appellant

stands vacated. We direct the appellant to surrender before the

concerned court immediately but not later than 3 (three) weeks from

date to serve out the rest of his sentence.

……..………………………J
(DIPANKAR DATTA)

………………..……………J
(PANKAJ MITHAL)
New Delhi;
08th July, 2024

13