JUDGMENT 1. :- This appeal is directed against the Judgment dated 13.11.1997, passed by learned Special Judge (Fake Currency Cases), Jaipur City, Jaipur, whereby the appellant - Ritesh Bhargava @ Bunti has been convicted for the offence under Section 302, Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 2000/-, in default of payment of fine to further undergo 4 months' Rigorous Imprisonment. 2. The brief facts of the prosecution case are that P.W. 1-Smt. Sita W/o Gulab Singh Choudhary resident of Plot No. 120, Shiv Colony, New Sanganer Road, Jaipur, made a verbal report (Ex. P. 1) to S.H.O. Police Station-Sodala on 24.6.1994 at 8.00 A.M. It was, inter alia, stated in the report that yesterday at 10.00 P.M. she alongwith her husband Gulab Singh, her son Manoj and Miss Prabhati, who is daughter of her Jeth was sitting in her house. Bunti and Raju: a pick-pocket, along with a person entered in the house. Her husband Gulab Singh made them to sit and asked her to prepare tea for them. Thereafter, a quarrel took place between her husband and Bunti on account of some dispute regarding money transactions and Bunti caused an injury with a knife on the abdomen of her husband. When she made hue and cry, a person came from the road and took her husband to hospital. She did not go to the hospital in the night. In the morning she was informed about the death of her husband. It was also stated that Bunti was known to her as he used to come to her house. 3. On the basis of the verbal report, S.H.O. Police Station Sodala, registered a case under Section 302/34, Indian Penal Code and investigation commenced. The Investigating Officer reached at the spot and prepared site plan Ex. P. 2. He also seized blood-stained bed-sheet from a room of the house of the deceased-Gulab Singh vide seizure memo Ex. P. 3. Blood smeared pieces of cement floor of the room was also seized and sealed vide Ex. P. 4. Inquest report-Ex. P. 5 of the dead body of Gulab Singh was prepared. Blood-stained Baniyan and Chaddi of the deceased-Gulab Singh were also seized vide seizure memo Ex. P. 8. Autopsy of the dead body of Gulab Singh was conducted by Dr. Blood smeared pieces of cement floor of the room was also seized and sealed vide Ex. P. 4. Inquest report-Ex. P. 5 of the dead body of Gulab Singh was prepared. Blood-stained Baniyan and Chaddi of the deceased-Gulab Singh were also seized vide seizure memo Ex. P. 8. Autopsy of the dead body of Gulab Singh was conducted by Dr. H.L. Bairwa (P.W. 10), Medical Jurist, SMS, Medical Hospital, Jaipur and he prepared the post-mortem report Ex. P. 15. It may be mentioned here that before death, Gulab Singh was medically examined by Dr. P.S. Choudhary (P.W. 11) on 23.6.1994 at 10.40 P.M. He found two injuries of sharp weapon on the person of Gulab Singh and prepared injury report Ex. P. 16. Statements of witnesses under section 161, Criminal Procedure Code were recorded. The appellant-Ritesh Bhargava was arrested on 24.6.1994 vide arrest memo Ex. P. 10. On his information and at his instance a knife was recovered on 24.6.1994 at 1.45 P.M. and the Investigating Officer sealed it and prepared a recovery memo Ex. P. 11. Pent and Shirt which the appellant was wearing were also seized and sealed vide seizure memo Ex. P. 20. Bed-sheet, knife, cloths of the deceased and the appellant, blood-smeared pieces of cement floor and control soil were sent to State Forensic Science Laboratory, Rajasthan, Jaipur (for short 'the FSL'). The report of the FSL is Ex. P. 22. On completion of the investigation, a chargesheet was laid against the appellant in the Court of Additional Chief Judicial Magistrate No. 7, Jaipur City, Jaipur, who committed the case to the Court of learned Sessions Judge, Jaipur City, Jaipur. In due course the case came up for trial before the learned Special Judge. The trial Court framed charge under Section 302, Indian Penal Code against the appellant. The appellant denied the charge and claimed to be tried. 4. The prosecution examined as many as 12 witnesses. In his statement recorded under section 313, Criminal Procedure Code, the appellant claimed innocence and stated that he was falsely implicated in the case. DW-1-Murarilal Sharma was examined in defence. 5. Learned trial judge after hearing the final submissions; convicted and sentenced the appellant as indicated hereinabove. 6. We have heard learned counsel for the parties, scanned and scrutinised the material on record. 7. DW-1-Murarilal Sharma was examined in defence. 5. Learned trial judge after hearing the final submissions; convicted and sentenced the appellant as indicated hereinabove. 6. We have heard learned counsel for the parties, scanned and scrutinised the material on record. 7. There is no dispute that the deceased met with homicidal death and this fact is established by the medical evidence on record. P.W. 11-Dr. P.S. Choudhary stated that on 23.6.1994 he was posted as Medical Jurist, SMS Hospital, Jaipur, and on examination of Gulab Singh he found the following two injuries on his person: (i) Incised stab wound on left hypochondriac region of abdomen. Sharp clean cut edges with elliptical shape transverse obliquely placed. (ii) Incised wound 1/2 cm. x 1/4 cm. on the left dorsal aspect, at middle finger base. 8. Dr. P.S. Choudhary also stated that the injury No. 1 was caused by sharp weapon. Injury No. 2 was simple and caused by sharp weapon. Opinion about the injury No. 1 was kept reserved till the X-ray report and opinion of Surgeon was received. Condition of the injured was not good and normal. Injuries were fresh. He prepared injury report Ex. P. 16 which bears his signature. 9. P.W. 10-Dr. H.L. Bairwa stated that on 24.6.1994, he was posted as Medical Jurist, SMS Hospital, Jaipur. At 3.45 P.M. he conducted the post-mortem of the deceased-Gulab Singh and found following injuries on the dead body: (i) Incised wound 1/2 x 1/4 cm dorsum of left little finger, at base of left hand, dark, clotted blood was present. The margins were clean cut, regular and well-defined. (ii) Incised wound 1/2 x 1/2 cm. x skin deep oblique over left side. Costal margin anteriorly and 8 cm. below left nipple dark, clotted blood over abdomen. The margins were clean cut regular and well-defined. (iii) Swelling over middle of chest and over sternum region, middle part. On further dissection-there was fracture of body of sternum with hematoma. (iv) stitched wound - 21 cm. long, vertically placed, middle of abdomen. (v) stitched wound - 3 cm. long oblique, right side middle of abdomen. (vi) stitched wound - 3 cm. long and obliquely placed over left side of hypochondriac region and upper part of abdomen. Internal Injuries: (i) stitched wound on the liver - 4 cm. long. There was hematoma around 1 x 1/2 cm. long, vertically placed, middle of abdomen. (v) stitched wound - 3 cm. long oblique, right side middle of abdomen. (vi) stitched wound - 3 cm. long and obliquely placed over left side of hypochondriac region and upper part of abdomen. Internal Injuries: (i) stitched wound on the liver - 4 cm. long. There was hematoma around 1 x 1/2 cm. Depth of the wound was 1 x 1/2 cm on lobe of liver. (ii) Hematoma over middle of diaphragm (iii) Hematoma over both kidneys. 10. Dr. Bairwa further stated that all the injuries were ante-mortem in nature. It was also stated by Dr. Bairwa that the injuries No. 4 and 5 were caused by the doctor when injured was operated upon. He also stated that in his opinion the cause of death was shock and hemorrhage due to the injuries to the vital parts of the body. Injuries were sufficient in ordinary course of nature to cause death.Learned counsel for the appellant did not challenge the testimony of Dr. Choudhary and Dr. Bairwa. In our opinion also, the statements of both the doctors are trust-worthy and it has been proved beyond reasonable doubt by the prosecution that the deceased-Gulab Singh met with homicidal death. 11. Learned counsel for the appellant contended that the FIR was not lodged immediately but it was made after 10 hours of the incident and no explanation for this delay was given by the prosecution during trial. He also contended that Smt. Sita (P.W. 1) did not go to the hospital to visit her injured husband which shows her unnatural conduct and proves that she was not an eye-witness of the occurrence. It was also contended that it is not clear from the prosecution evidence that who had taken injured Gulab Singh to the hospital. In the FIR, only one injury was mentioned whereas P.W. 11-Dr. Phool Singh Choudhary stated that there were two injuries on the person of Gulab Singh. This discrepancy creates doubt in the prosecution story. It was further contended that Ex. P. 1 was not the First Information Report of the incident as Police Station, Sodala was already informed by wireless by the Police Control-room about the alleged incident in the night. In the night Police Control-room got telephonic message about the alleged incident from SMS Hospital, Jaipur. It was further contended that Ex. P. 1 was not the First Information Report of the incident as Police Station, Sodala was already informed by wireless by the Police Control-room about the alleged incident in the night. In the night Police Control-room got telephonic message about the alleged incident from SMS Hospital, Jaipur. As per the contention of learned counsel, wireless message was the first information and case ought to have been registered on it and Ex. P. 1 is an inadmissible document in evidence because it was prepared during investigation. Learned counsel contended that in these circumstances, the appeal of the appellant deserves to be allowed. Alternatively, he contended that the act of the appellant does not amount to murder but, at the most, the appellant can be held guilty under Section 304 Part-II, Indian Penal Code. Learned Public Prosecutor supported the judgment of the trial Court. 12. We have considered the aforesaid contentions of the learned counsel for the appellant. The testimony of the eye-witnesses can not be disbelieved on this ground alone that the FIR (Ex. P. 1) was not lodged promptly. Only legal requirement is that ocular testimony of the prosecution should be scanned and scrutinised keeping in view the aforesaid fact. 13. P.W. 1 Smt. Sita is the wife of deceased-Gulab Singh. She stated that in the fateful night, at about 9.00 P.M. she was at her house. Ritesh @ Bunti and Raju came there. Her husband asked her to prepare tea. When she was preparing tea for them she heard hue and cry. Thereafter she went into the room and found Bunti causing injury with a knife to her husband Gulab Singh. She also stated that Raju was catching hold of Gulab Singh. Having seen her both Raju and Bunti fled away. When she made hue and cry two persons came there and took Gulab Singh to the hospital. One of them was Murarilal, who was known to her. She further stated that at the time of incident Miss Prabhati and her son Manoj were also present who had seen the occurrence. She also stated that she did not go to the Police Station immediately because she got frightened. When she got an information about the death of her husband she went to the hospital and the Police Station, where she made a verbal report which was written as First Information Report (Ex. She also stated that she did not go to the Police Station immediately because she got frightened. When she got an information about the death of her husband she went to the hospital and the Police Station, where she made a verbal report which was written as First Information Report (Ex. P. 1). In her cross-examination also she stated that the knife injury was caused in her presence. P.W. 2-Manoj is the real son of Gulab Singh. He supported his mother Smt. Sita and stated that Bunti caused injuries with a knife to his father. He also stated that Miss Prabhati who was with him had also seen the incident. P.W. 4 Miss Prabhati who is niece of Gulab Singh also deposed that she had seen Bunti causing knife injuries to her uncle - Gulab Singh. 14. It is true that Smt. Sita, Manoj and Miss Prabhati, are wife, son and niece of the deceased Gulab Singh respectively but on this ground their testimony can-not be rejected. The Apex Court in Hukum Singh & Ors. v. State of Rajasthan, 2000 CrLR (SC) 759 , held "that the Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "Interested Witnesses". The only premise for dubbing them as "Interested Witness" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their bread earner to book. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder vide; Dalip Singh v. State of Punjab, 1954 SCR 145 ; Gulichand v. State of Rajasthan, 1974 (3) SCC 698 and Dalvir Kaur v. State of Punjab, 1976 (4) SCC 158 . This Court also expressed the same view in Sukhdeo v. State of Rajasthan, 2000 (1) CrLR (Raj.) 281 . In its recent judgment in Lehna v. State of Haryana, 2002(3) SCC 76 , the Apex Court has reiterated the same view. 15. We have carefully read the statements of Smt. Sita, Manoj and Miss Prabhati. All of them were cross-examined at length and nothing has been pointed out to discard their testimony. Their presence on the spot is natural. In its recent judgment in Lehna v. State of Haryana, 2002(3) SCC 76 , the Apex Court has reiterated the same view. 15. We have carefully read the statements of Smt. Sita, Manoj and Miss Prabhati. All of them were cross-examined at length and nothing has been pointed out to discard their testimony. Their presence on the spot is natural. There is no reason as to why they would falsely implicate the appellant. Moreover, they get corroboration from the medical evidence as discussed above. On medical examination Dr. Phool Singh Choudhary found two injuries of sharp weapon on the person of Gulab Singh. In view of these facts we have no doubt in our mind that they are the witnesses of sterling worth and their testimony can be relied upon. It is true that Smt. Sita did not visit her husband in the hospital but this fact alone is not sufficient to disbelieve her. In her statement she also stated that the persons who took her husband to the hospital assured her that they would bring her husband immediately from the hospital after first aid. She also stated that because of the incident she got frightened. In our opinion, her explanation for not visiting her husband in the hospital is plausible and the aforementioned contention of the learned counsel for the appellant is liable to be rejected. 16. Apart from the statements of aforementioned three witnesses, P.W. 6 Mool Chand, who is an independent witness, stated that on 23.6.1994, he alongwith another constable went to SMS Hospital, Jaipur to get a man medically examined who was drunk, After getting him admitted in the hospital they were standing there. Two persons brought the injured, who told him that he was caused injury with a knife by Bunti. The injured also told that he resides in the territorial jurisdiction of Police Station Sodala. Thereafter, he tried to contact Police Station, Sodala on telephone but there was no response. Therefore, he informed the Police Control-room about the incident. On close and careful scrutiny of this statement, we find that P.W. 6 Mool Chand is a reliable witness and the deceased Gulab Singh had given his dying declaration before him, wherein he said that he sustained injury which was caused by Bunti with a knife. Therefore, he informed the Police Control-room about the incident. On close and careful scrutiny of this statement, we find that P.W. 6 Mool Chand is a reliable witness and the deceased Gulab Singh had given his dying declaration before him, wherein he said that he sustained injury which was caused by Bunti with a knife. There is nothing on record to reject P.W. 6 Mool Chand's testimony and it also corroborates the testimony of Smt. Sita, Manoj and Miss Prabhati. 17. As regards the contention of the learned counsel for the appellant that only one injury was mentioned in the FIR (Ex. P. 1), minute details need not be given in the FIR and the contention on the learned counsel has no force. 18. It is true that it has not been proved by the prosecution that who were the two persons who were alleged to have taken Gulab Singh to hospital but on this ground eye-witnesses Smt. Sita, Manoj and Miss Prabhti cannot be disbelieved. 19. The Apex Court in Ramsinh Bavaji Jadeja v. State of Gujrat, 1994 CrLR (SC) 303 , held as under: From time to time, controversy has been raised, as to at what stage the investigation commences. That has to be considered and examined on the facts of each case, especially, when the information of a cognizable offence has been given on a telephone. If the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be First Information Report. The object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the officer in charge of the police station to reach the place of occurrence. The object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the officer in charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on basis of that information, the officer-in-charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by person to the police offer "in the course of investigation", covered by Section 162 of the Code. That statement cannot be treated as First Information Report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as First Information Report. This can be illustrated. In a busy market place, a murder is committed. Any person in the market including one of the shop owners, telephones to the nearest police station, informing the officer-in-charge, about the murder, without knowing the details of the murder, the accused or the victim. On basis of that information, the officer-in-charge reaches the place where the offence is alleged to have been committed. Can it be said that before leaving the police station, he has recorded the First Information Report? In some cases the information given may be that a person has been shot at or stabbed. It cannot be said that in such a situation, the moment the officer-in-charge leaves the police station, the investigation has commenced. In normal course, he has first to find out the person who can give the details of the offence, before such officer is expected to collect the evidence in respect of the said offence. "The Apex Court has reiterated the same legal position in a recent case in T.T. Antony v. State of Kerala and Ors. with Damodaran P. and Ors. v. State of Kerala and Ors. and in the case of State of Kerala and Ors. "The Apex Court has reiterated the same legal position in a recent case in T.T. Antony v. State of Kerala and Ors. with Damodaran P. and Ors. v. State of Kerala and Ors. and in the case of State of Kerala and Ors. v. Revada Chandrasekhar and Ors., AIR 2001 SCW 2571 and held that apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for the purpose, by a police officer incharge of a police station is the first information report. 20. In the instant case, a telephonic message was received by police control room to the effect that a person named Gulab Singh R/o Plot No. 120, Shiv Colony, Sodala was caused a knife injury by Bunti. Gulab Singh was admitted in emergency ward of S.M.S. Hospital. In that telephonic message, date, time and place of incident was not mentioned. Address of the accused and details of the incident were also not mentioned. In these circumstances, it can be held that the information received at police control room was vague as well as cryptic. As stated by P.W. 12 Satyendra Singh, ASI Hariram was sent to the hospital for recording the statement of injured, but in the opinion of the doctor the injured was not fit to give his statement and, therefore, statement could not be recorded. Therefore, in view of legal position propounded by the Apex Court in the above referred authorities, it cannot be said that information supplied on phone to the police control room and wireless message given by police control room to P.S., Sodala was an FIR. Consequently contention of learned counsel with regard to FIR is rejected. 21. It may be observed here that the alleged recovery of the knife does not help the prosecution. The knife was alleged to have been recovered in presence of P.W. 7-Ramji Shah and P.W. 8 Ram Swaroop but they did not support the prosecution and turned hostile. They stated that no knife was recovered in their presence. In these circumstances, on the basis of sole statement of P.W. 12-Satyendra Singh, Investigating Officer, recovery of the knife cannot be held as proved. 22. In view of the above discussions and statements of P.W. 1 Smt. Sita, P.W. 2-Manoj P.W. 3-Miss Prabhati, P.W. 6-Mool Chand, P.W. 10 Dr. H.L. Bairwa, and P.W. 11-Dr. In these circumstances, on the basis of sole statement of P.W. 12-Satyendra Singh, Investigating Officer, recovery of the knife cannot be held as proved. 22. In view of the above discussions and statements of P.W. 1 Smt. Sita, P.W. 2-Manoj P.W. 3-Miss Prabhati, P.W. 6-Mool Chand, P.W. 10 Dr. H.L. Bairwa, and P.W. 11-Dr. P.S. Choudhary, we come to the conclusion that the prosecution has succeeded in proving that the appellant inflicted injuries with a knife to Gulab Singh which resulted in his death. 23. The trial Court has found the appellant guilty under Section 302, Indian Penal Code. It appears from the prosecution evidence that there was no previous enmity between the appellant and the deceased and the incident took place all of a sudden because of some dispute regarding money transactions. It also appears from the statement of P.W. 1 Smt. Sita that both the deceased and the appellant were having cordial relations prior to the incident. When the appellant came to the house of the deceased, Gulab Singh asked his wife Smt. Sita to prepare tea for the appellant and his companion Raju. On medical examination by Dr. P.S. Choudhary only two injuries were found on the person of the deceased. One of them was on the abdomen and another was on the middle finger. It appears to us that the deceased sustained injury on his middle finger of left hand when he attempted to save himself when the appellant was in process of causing injury on the abdomen. Thus, it is clear that only one knife blow was given by the appellant to the deceased. Apart from that, injury report of the appellant Ex. D. 5 demonstrates that he was also examined on 24.6.1994 and the doctor found as many as 6 injuries on his person. Although Smt. Sita denied this suggestion in her cross-examination that Bunti was caused injuries by her husband Gulab Singh and others. But in view of the injuries found on the person of the appellant, possibility cannot be ruled out that the appellant was attacked and caused injuries by the deceased and others and thereafter, to save himself the appellant caused injury with a knife to deceased Gulab Singh which proved fatal. In our opinion, the appellant had no intention to cause death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. In our opinion, the appellant had no intention to cause death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. Of-course the appellant had a right of private defence to cause injury to the deceased but in our considered view, by causing serious injury with a sharp weapon and that too on the abdomen which is a vital part of the body, he exceeded his right of private defence. The act of the appellant comes under exception 2 of Section 300, Indian Penal Code and in these circumstances he cannot be held guilty for murder under Section 302, Indian Penal Code but he is liable to be convicted under Section 304 Part-I, Indian Penal Code as the injury on the abdomen with a knife was caused by the appellant with the intention of causing such causing such bodily injury as was likely to cause death. 24. Consequently, the appeal of the appellant Ritesh Bhargava @ Bunti is partly allowed. While modifying the judgment and order of the trial Court the conviction and sentence of the appellant Ritesh Bhargava @ Bunti under Section 302, Indian Penal Code is set-aside and he is acquitted of this charge, instead we convict him under Section 304 Part-I, Indian Penal Code. The appellant has remained in custody for more than 8 years. In the ends of justice we sentence him to suffer 8 years Rigorous Imprisonment and a fine of Rs. 15000/-, in default of payment of fine to further undergo six months Rigorous Imprisonment. If fine is deposited by the appellant the same shall be paid to the widow of the deceased Gulab Singh.Appeal Partly Allowed. *******