Holding

The delay in recording witness statements, being explained, is not fatal; the evidence establishes the appellant’s common intention to kill, so the conviction under Section 302 r/w Section 34 stands, and remission must be considered under the policy prevailing at the time of conviction.

Summary

The appellant, Firoz Khan Akbarkhan, was convicted along with a co‑accused for murder under Section 302 read with Section 34 of the IPC, based on eyewitness testimony that he stabbed the deceased with a knife. He challenged the conviction, arguing that the delay of two to three days in recording witness statements under Sections 161 and 164 of the CrPC rendered the evidence unreliable, that the incident occurred in the heat of the moment and should be reduced to culpable homicide under Section 304‑I, and that he was entitled to remission of his life sentence. The Supreme Court held that the explained delay in recording statements was not fatal, that the eyewitness accounts, despite minor discrepancies, proved the appellant’s participation and common intention, and that the conviction under Section 302 r/w Section 34 was proper. The Court also clarified that remission must be considered according to the policy in force at the time of conviction, allowing the appellant to file a fresh application for premature release. Consequently, the appeal was dismissed, but the appellant was permitted to seek remission under the applicable policy.

Issues considered

Whether a delay of two to three days in recording eyewitness statements under Sections 161 and 164 of the CrPC defeats the prosecution's case.
Whether the concurrent conviction under Section 302 read with Section 34 of the IPC is justified on the basis of common intention.
Whether the facts fall within any exception to Section 300 of the IPC, permitting conviction under Section 304‑I instead of Section 302.
Whether the appellant is entitled to remission of his life sentence under the remission policy applicable at the time of conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 164, s. 432
Indian Penal Code, 1860s. 300, s. 302, s. 304-I, s. 34

Headnote

Issue for Consideration Whether the concurrent conviction of the appellant u/s.302 r/w s.34, Penal Code, 1860 is justified; whether he is entitled to remission of sentence. Headnotes† Evidence – Delay in recording statements of witnesses – When not fatal – was convicted u/s.302 r/w s.34, Penal Code, 1860 – Appellant inter alia contended that he was implicated in a false case as there was delay in recording of the statements of the witnesses: Held: Delay in recording witness statements is not always fatal to the prosecution’s

Subjects

MurderKnifeCommon intentionSection 302, Penal Code, 1860Section 34, Penal Code, 1860Eyewitness testimonyDelay in recording statements under Sections 161, 164 of Code of Criminal Procedure, 1973Concurrent convictionHindu-Muslim RiotsInformant examined as defence witnessPrior intention to cause bodily injury by knife, Weapon sufficient to cause deathActual incarcerationMinor and immaterial inconsistencies/discrepanciesCulpable homicide not amounting to murderRemission policyPremature releaseProvision/policy in vogue at the time of convictionMore beneficial policy

Judgment

[2025] 3 S.C.R. 933 : 2025 INSC 387

Firoz Khan Akbarkhan
v.
The State of Maharashtra
(Criminal Appeal No. 257 of 2013)
24 March 2025
[Abhay S. Oka, Ahsanuddin Amanullah* and
Augustine George Masih, JJ.]

Issue for Consideration
Whether the concurrent conviction of the appellant u/s.302 r/w s.34,
Penal Code, 1860 is justified; whether he is entitled to remission
of sentence.

Headnotes†
Evidence – Delay in recording statements of witnesses –
When not fatal – Appellant alongwith other co-accused was
convicted u/s.302 r/w s.34, Penal Code, 1860 – Appellant inter
alia contended that he was implicated in a false case as there
was delay in recording of the statements of the witnesses:
Held: Delay in recording witness statements is not always fatal
to the prosecution’s case and the Court needs to examine such
delay, if any, in the facts and circumstances of the particular
case – Delay in recording witness statements, moreso when the
said delay is explained, will not aid an accused – In the present
case, the delay of 2-3 days in recording the statements of the
eye-witnesses u/s.161, CrPC was thoroughly explained by the
witnesses, including the Investigating Officer, to the effect that
there were riots in the area – Thus, the Investigating Officer was
involved in maintaining law and order in the affected area – No
adverse inference can be drawn on this count – Furthermore, the
presence of the appellant at the site of the incident and stabbing
the deceased on the stomach repeatedly is established – Minor
and immaterial inconsistencies/discrepancies do not harm the case
of the prosecution – Prosecution has proved the case beyond
reasonable doubt – However, on facts, appellant given liberty to

* Author
934 [2025] 3 S.C.R.

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apply afresh for remission – Code of Criminal Procedure, 1973 –
ss.161, 164 – Remission. [Paras 20, 21, 30]

Penal Code, 1860 – Exceptions to s.300; s.304-I – Appellant
convicted u/s.302 r/w s.34, Penal Code, 1860 – He alternatively
argued that the incident occurred in the heat of the moment
after an altercation on the spot – Present case if covered
under any of the exceptions to s.300:
Held: No – Appellant was armed with a knife – The intention to
kill was very much present from the beginning – Every eyewitness
stated that he inflicted the knife stabs on the deceased which could
only have been possible if the knife was already with him indicating
that he had come with prior intention to cause bodily injury by
knife, a weapon sufficient to cause of death – Conviction cannot
be converted from s.302, IPC to one u/s.304-I, IPC. [Para 23]

Evidence – Informant-deceased’s sister not examined as a
prosecution witness, but as a defence witness – Relevance,
if any:
Held: It does not matter as to whether she was produced as a
witness from the side of the prosecution or from the defence –
The pertinent aspect is that she was before the Trial Court, and
the prosecution, or the other accused, had the occasion and the
opportunity to cross-examine her, which was availed of – Her
testimony has been consistent with the version in the FIR and in
sync with the other eye-witnesses. [Para 23]
Sentence/Sentencing – Remission of sentence – Law pertaining
to – Discussed. [Paras 27-29]

Case Law Cited
Ganesh Bhavan Patel v. State of Maharashtra [1979] 2 SCR 94 :
(1978) 4 SCC 371; Jagjit Singh v. State of Punjab [2005] 1 SCR
559 : (2005) 3 SCC 689; State of A.P. v. S Swarnalatha [2009]
12 SCR 289 : (2009) 8 SCC 383 – distinguished.
Lal Bahadur v. State (NCT of Delhi) [2013] 5 SCR 744 : (2013)
4 SCC 557; Baldev Singh v. State of Punjab [2013] 9 SCR 547 :
(2014) 12 SCC 473; Sunil Kumar v. State of Rajasthan [2005] 1
SCR 612 : (2005) 9 SCC 283; V K Mishra v. State of Uttarakhand
[2025] 3 S.C.R. 935

Firoz Khan Akbarkhan v. The State of Maharashtra

[2015] 8 SCR 1 : (2015) 9 SCC 588; Goutam Joardar v. State
of W. B. (2022) 17 SCC 549; State of Haryana v. Jagdish [2010]
3 SCR 716 : (2010) 4 SCC 216; Union of India v. V Sriharan
[2015] 14 SCR 613 : (2016) 7 SCC 1; Bilkis Yakub Rasool v.
Union of India [2024] 1 SCR 743 : (2024) 5 SCC 481; Mafabhai
Motibhai Sagar v. State of Gujarat [2024] 10 SCR 1448 : 2024
SCC OnLine SC 2982; State of Himachal Pradesh v. Lekh
Raj [1999] Supp. 4 SCR 286 : (2000) 1 SCC 247; Narayan
Chetanram Chaudhary v. State of Maharashtra [2000] Supp.
3 SCR 104 : (2000) 8 SCC 457; State of Madhya Pradesh v.
Ramesh [2011] 5 SCR 1 : (2011) 4 SCC 786; Mekala Sivaiah
v. State of Andhra Pradesh [2022] 6 SCR 989 : (2022) 8 SCC
253; Rameshji Amarsingh Thakor v. State of Gujarat, 2023 SCC
OnLine SC 1321 – relied on.
Shahid Khan v. State of Rajasthan [2016] 2 SCR 284 : (2016)
4 SCC 96; Jafarudheen v. State of Kerala [2022] 5 SCR 721 :
(2022) 8 SCC 440 – referred to.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Murder; Knife; Common intention; Section 302, Penal Code, 1860;
Section 34, Penal Code, 1860; Eyewitness testimony; Delay in
recording statements under Sections 161, 164 of Code of Criminal
Procedure, 1973; Concurrent conviction; Hindu-Muslim Riots;
Informant examined as defence witness; Prior intention to cause
bodily injury by knife, Weapon sufficient to cause death; Actual
incarceration; Minor and immaterial inconsistencies/discrepancies;
Culpable homicide not amounting to murder; Remission policy;
Premature release; Provision/policy in vogue at the time of
conviction; More beneficial policy.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
257 of 2013
From the Judgment and Order dated 26.07.2012 of the High Court
of Bombay at Nagpur in CRLA No. 92 of 2008
936 [2025] 3 S.C.R.

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Appearances for Parties
Advs. for the Appellant:
Kiran Suri, Sr. Adv., Ms. Nidhi.
Advs. for the Respondent:
Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Shrirang B.
Varma, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S.
Phanse, Adarsh Dubey.

Judgment / Order of the Supreme Court

Judgment

Ahsanuddin Amanullah, J.

Heard learned senior counsel/counsel for the parties.
2. The present appeal assails the Final Judgment and Order dated
26.07.2012 (hereinafter referred to as the ‘Impugned Judgment’)
passed by a learned Division Bench of the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur (hereinafter referred to as the
‘High Court’) in Criminal Appeal No.92 of 2008, whereby the appeal
filed by the appellant was dismissed and Judgment dated 23.11.2007
passed by the Adhoc District Judge-3 and Additional Sessions Judge,
Amravati (hereinafter referred to as the ‘Trial Court’) in Sessions
Trial No.143 of 2005, was upheld. Aggrieved, the appellant is before
this Court.

THE FACTUAL MATRIX:
3. The appellant (accused no.1) and two other co-accused (accused
no.2/Md. Jakaria and accused no.3/Kalimkhan)1 were prosecuted for
offences punishable under Section 3022 read with Section 343 of the

1 There is some inconsistency as far as the spellings of the names of the accused and witnesses are
concerned, with slight variations in different record. However, these inconsistencies are irrelevant for
the purposes of the present adjudication as the identities of the persons concerned is not in the realm of
dispute.
2 ‘302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment
for life, and shall also be liable to fine.’
3 ‘34. Acts done by several persons in furtherance of common intention.—When a criminal act is
done by several persons, in furtherance of the common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone.’
[2025] 3 S.C.R. 937

Firoz Khan Akbarkhan v. The State of Maharashtra

Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). The
case of the prosecution is that on 18.04.2005, at about 11.00 PM in
the night, there was a quarrel between the accused and one Sukhdeo
Mahadeorao Dhurve (hereinafter referred to as the ‘deceased’) at
S.T. Stand, Village Hiwarkhed. Thereafter, on the fateful day, i.e., on
19.04.2005 at about 9.00 AM, the deceased went to Gujri Bazar and
he came near a hair saloon/shop, which is in front of the shop of
PW3 (Nandu Ganjre). In the meantime, the three accused reached
there and there was hot talk between the deceased and the accused,
on account of the alleged illicit relations between the informant
Ramkala (deceased’s sister) and one Rashid Kazi of that village.
Suddenly, accused no.2 caught hold of the collar of the deceased.
The appellant took a knife and inflicted blows by means of said
knife on the chest of the deceased, while accused no.2 kicked the
chest and neck of the deceased. Accused no.3 was also present
at the time of such assault. Having sustained serious injuries, the
deceased was bleeding. It was stated that many persons gathered
around the deceased while blood was oozing from his mouth. The
accused threw the knife at the site of the incident and fled from the
scene. Unfortunately, the deceased died on the spot itself.
4. PW7 (the Investigating Officer) received information about the incident
and he immediately reached the site with other police personnel. He
saw many persons gathered there, who were damaging houses and
beating each other up. The police managed to bring the situation
under control. The informant, sister of the deceased, gave an oral
report, which culminated into the First Information Report being
Crime No.61 of 2005 (hereinafter referred to as the ‘FIR’), lodged
at Morshi Police Station.
5. The informant stated that she was married to one Gajanan with whom
she had three children - one female and two males. She stated that
she started residing separately from her husband on account of
dispute(s) between them. She further stated that due to her (then)
on-going relationship with Rashid Kazi, which had caused tension
and disputes in the village, in the night of 18.04.2005, a quarrel
occurred between her brother and the accused over her relationship
with the said Rashid Kazi. The very next morning, on 19.04.2005,
the accused allegedly attacked the deceased with a knife in Gujri
Bazar, resulting in his death.
938 [2025] 3 S.C.R.

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6. The Trial Court convicted accused nos.1 and 2 for offence punishable
under Section 302 read with Section 34 of the IPC. It sentenced the
appellant and accused no.2 to suffer Imprisonment for Life and pay
a fine of Rs.1000/- (Rupees One Thousand) each and in default
of payment of the fine, to suffer further rigorous imprisonment for
six months each. The Trial Court acquitted the accused no.3. The
conviction and sentence of the appellant has been confirmed by the
High Court by way of the Impugned Judgment.

THE APPELLANT’S SUBMISSIONS:
7. Learned senior counsel submitted that he has been falsely implicated
in this case because he belongs to a particular community and the
persons belonging to the community of the deceased wanted to
create a false case against the appellant. It was submitted that all
the eyewitnesses deposed against the appellant because of the
rivalry between the two communities in the village.
8. It was further argued by the learned counsel that: the statements
of the witnesses were recorded after 2/3 days of the incident; the
deceased had sustained injuries during a riot; there is no cogent
and reliable evidence against the appellant; the delay in recording
of the statements of these witnesses itself indicates that nobody
had, in fact, seen the incident of assault on the deceased, and; the
witnesses had been manipulated later on by the police to create a
false case against the appellant.
9. It was submitted that from amongst the total 8 prosecution witnesses,
PW1 & PW2 had turned hostile. Learned senior counsel submitted
that though PW3 in his examination stated that he was an eye-
witness to the incident as the same took place at a near distance
in front of his shop, yet there is no explanation by him as to why
no attempt was made to prevent the appellant from inflicting knife
stab on the deceased, especially when they had stated that there
were repeated blows and that the accused no.2 had also given
kick blows on his chest and neck and many persons had gathered
there. He has stated that, surprisingly, in the crowd he could hear
somebody saying that whoever came to him would have to face the
same consequences though it is not attributed to any of the accused
including the appellant. It was submitted that as per PW3, the knife
was thrown by the appellant at the spot of the incident itself. Thus, it
[2025] 3 S.C.R. 939

Firoz Khan Akbarkhan v. The State of Maharashtra

was submitted that the conduct of the witness raises serious doubts
with regard to the veracity of his deposition and in such facts and
circumstances in law, the appellant is entitled to the benefit of doubt.
It was stated that PW4 was also an eye-witness and has almost
repeated the same version with a slight difference, being that he
states in his examination-in-chief that the knife might be the same
but he could not definitely say so as the knife was rusted. He further
stated that the police had recorded his statement after 2/3 days,
whereas the police had reached the spot within half-an-hour where
all the persons were said to have been present, and thus, there is
no explanation as to why the police could record the statement of
such vital eye-witness only after 2/3 days. With regard to PW5, who
also claims to be an eyewitness, learned senior counsel submitted
that he has also almost deposed in similar terms that the knife was
thrown by the appellant at the spot of the incident itself and after
2/3 days, the police recorded his statement.
10. As regards PW6, it is stated that the examination-in-chief is the same
as the others, with the only variance that accused no.3 is said to
have also been present at the spot and he also gave leg blows to
the deceased. PW6’s statement was also said to have been recorded
2/3 days after the incident.
11. PW7, who is the Investigating Officer had explained in detail the
incident and the action taken by him and also the panchnama for the
inquest and from where the clothes of the deceased were seized. He
has further stated that appellant no.1 was arrested on 19.04.2005
and accused nos.2 and 3 were arrested on 20.04.2005 and their
clothes were seized on which blood stains had been found.
12. As far as PW8 is concerned, he is the doctor who conducted the
post-mortem examination on the deceased.
13. It was submitted that DW1 is the informant herself and she has
explained that she knew only the appellant and not the accused
nos.2 and 3. It was contended that DW1, the sister of the deceased,
has not been produced as a prosecution witness, though she has
supported the version of other eye-witnesses that the appellant
inflicted blows of knife in the stomach of her brother, but has stated
that she had put her thumb-impression on the statement which was
written by the police as she could not sign.
940 [2025] 3 S.C.R.

Supreme Court Reports

14. It was stated that it was clear that in order to save themselves, the
accused nos.2 and 3 had put the entire blame for the incident on
the appellant.
15. Learned senior counsel further submitted that moreover, there is
discrepancy in the statement of the witnesses apropos occurrence
of Hindu-Muslim riots immediately after the incident, as not all the
witnesses have stated about the same. Despite this, there is no
explanation as to why the police took 2/3 days to record the statements
of the witnesses. It was submitted that neither in the investigation
nor in the record, it has come as to why the appellant would take
the extreme step of killing the deceased, that too, for the alleged
relations of the informant with Rashid Kazi, when no other motive
nor even any relationship of the appellant with Rashid Kazi has been
established. It was submitted that the informant, who claims to be an
eyewitness, says that she was there at some distance and had seen
the incident. However, she herself has said that there were 100-150
persons and thus, to say she would have actually witnessed the
unfortunate incident from amongst the crowd, cannot be believed.
It was suggested to us that the statement obviously is tutored and
deliberate so as to ensure that the appellant is convicted. Furthermore,
it was submitted that given the appellant’s character, there being no
past criminal antecedents or history, the appellant ought not to have
been convicted under Section 302, IPC and, at best, under Section
304-I4, IPC for the simple reason that the incident was not pre-planned
and occurred on the spot as all the eye-witnesses have admitted that
initially there was hot talk, followed by blows and a scuffle, whereafter
the stabbings, allegedly by the appellant, happened.
16. Learned senior counsel summed up the arguments by submitting
that in any view of the matter, sufficient doubts have been raised on
the prosecution story for which the benefit of doubt under the law
should go to the appellant. Thus, there has been a miscarriage of
justice, which, it was prayed, this Court should rectify by interfering
with the Impugned Judgment.

4 ‘304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable
homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine, if the act by which
the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely
to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely to cause death.’
[2025] 3 S.C.R. 941

Firoz Khan Akbarkhan v. The State of Maharashtra

SUBMISSIONS BY THE RESPONDENT-STATE:
17. Learned counsel submitted that the Impugned Judgment does not
need any interference as both the Courts below have concurrently
convicted the appellant and the prosecution case stands proved
beyond reasonable doubt. Circumstantial evidence also points
towards the factum of the appellant having murdered the deceased.
18. Learned counsel urged that even though there were minor
discrepancies but the fact that the appellant initially ran away from
the crime scene is enough to prove his complicity.
19. Learned counsel contended that the Impugned Judgment should
be upheld by this Court and prayed that the appeal be dismissed.

ANALYSIS, REASONING AND CONCLUSION:
20. To our mind, the prosecution has succeeded in proving its case
beyond reasonable doubt. Having carefully gone through the material
on record, especially the depositions of the witnesses and upon a
keen examination of the relevant aspects of the case, we find that
the presence of the appellant at the site of the incident and him
having stabbed the deceased on the stomach repeatedly has been
the consistent stand of the PWs who were eye-witnesses. The Courts
below have also concurrently found the same. The accused-appellant
has not been able to controvert the evidence on record. Minor and
immaterial inconsistencies and/or discrepancies shall not harm the
case of the prosecution, as held, inter alia, in State of Himachal
Pradesh v Lekh Raj, (2000) 1 SCC 247; Narayan Chetanram
Chaudhary v State of Maharashtra, (2000) 8 SCC 457; State of
Madhya Pradesh v Ramesh, (2011) 4 SCC 786; Mekala Sivaiah v
State of Andhra Pradesh, (2022) 8 SCC 253, and; Rameshji
Amarsingh Thakor v State of Gujarat, 2023 SCC OnLine SC 1321.
The following observations from Lekh Raj (supra) are instructive:
‘7. In support of the impugned judgment the learned
counsel appearing for the respondents vainly attempted
to point out some discrepancies in the statement of
the prosecutrix and other witnesses for discrediting the
prosecution version. Discrepancy has to be distinguished
from contradiction. Whereas contradiction in the statement
of the witness is fatal for the case, minor discrepancy or
variance in evidence will not make the prosecution’s case
942 [2025] 3 S.C.R.

Supreme Court Reports

doubtful. The normal course of the human conduct would
be that while narrating a particular incident there may
occur minor discrepancies, such discrepancies in law may
render credential to the depositions. Parrot-like statements
are disfavoured by the courts. In order to ascertain as to
whether the discrepancy pointed out was minor or not or
the same amounted to contradiction, regard is required
to be had to the circumstances of the case by keeping in
view the social status of the witnesses and environment
in which such witness was making the statement. This
Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC
767 : 1974 SCC (Cri) 243] held that minor variations in the
accounts of the witnesses are often the hallmark of the truth
of their testimony. In Jagdish v. State of M.P. [1981 Supp
SCC 40 : 1981 SCC (Cri) 676] this Court held that when
the discrepancies were comparatively of a minor character
and did not go to the root of the prosecution story, they
need not be given undue importance. Mere congruity or
consistency is not the sole test of truth in the depositions.
This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC
752 : 1981 SCC (Cri) 593] held that in the depositions of
witnesses there are always normal discrepancies, however,
honest and truthful they may be. Such discrepancies are due
to normal errors of observation, normal errors of memory
due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence, and the like.
Material discrepancies are those which are not normal and
not expected of a normal person.
8. Referring to and relying upon the earlier judgments of
this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC
505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] , Tahsildar
Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp
(2) SCR 875] , Appabhai v. State of Gujarat [1988 Supp
SCC 241 : 1988 SCC (Cri) 559 : JT (1988) 1 SC 249] and
Rammi v. State of M.P. [(1999) 8 SCC 649 : JT (1999) 7
SC 247], this Court in a recent case Leela Ram v. State of
Haryana [(1999) 9 SCC 525 : JT (1999) 8 SC 274] held:
“There are bound to be some discrepancies between
the narrations of different witnesses when they speak on
details, and unless the contradictions are of a material
[2025] 3 S.C.R. 943

Firoz Khan Akbarkhan v. The State of Maharashtra

dimension, the same should not be used to jettison
the evidence in its entirety. Incidentally, corroboration
of evidence with mathematical niceties cannot be
expected in criminal cases. Minor embellishment, there
may be, but variations by reason therefor should not
render the evidence of eyewitnesses unbelievable.
Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence….
The court shall have to bear in mind that different
witnesses react differently under different situations:
whereas some become speechless, some start
wailing while some others run away from the scene
and yet there are some who may come forward with
courage, conviction and belief that the wrong should
be remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any
set pattern or uniform rule of human reaction and
to discard a piece of evidence on the ground of his
reaction not falling within a set pattern is unproductive
and a pedantic exercise.”’
(emphasis supplied)

21. Insofar as the delay of 2/3 days in recording the statements of the
eye-witnesses under Section 1615 of the Code of Criminal Procedure,
1973 (hereinafter referred to as the ‘Code’) is concerned, the said
delay has been thoroughly explained by the witnesses, including the

5 ‘161. Examination of witnesses by police.—(1) Any police officer making an investigation under this
Chapter, or any police officer not below such rank as the State Government may, by general or special
order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such
officer, other than questions the answers to which would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination
under this section; and if he does so, he shall make a separate and true record of the statement of each
such person whose statement he records:
Provided that statement made under this sub-section may also be recorded by audio-video electronic
means:
Provided further that the statement of a woman against whom an offence under Section 354, Section
354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-AB,
Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or
Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall
be recorded, by a woman police officer or any woman officer.’
944 [2025] 3 S.C.R.

Supreme Court Reports

Investigating Officer, to the effect that there were riots in the area.
On this score, the Investigating Officer was involved in maintaining
law and order in the affected area. In the attendant facts and
circumstances, the course of action adopted by the police cannot
be termed unjustified and no adverse inference can be drawn on
this count. No doubt that Court has laid down that an inordinate
delay in recording witness statements can prove to be fatal for the
prosecution, as pointed out by three learned Judges in Ganesh
Bhavan Patel v State of Maharashtra, (1978) 4 SCC 371; however,
therein, the delay in recording statements of the material witnesses
was accompanied by a delay in registering of the FIR and the
surrounding circumstances, which led the Court to hold that there
was a ‘a cloud of suspicion on the credibility of the entire warp and
woof of the prosecution story.’ In Jagjit Singh v State of Punjab,
(2005) 3 SCC 689 and State of A.P. v S Swarnalatha, (2009) 8
SCC 383, the Court held in favour of the convict/accused, as the
inordinate delays therein could not be sufficiently explained. Delay of
about 27 days, in a case where communal violence had broken out,
was held not fatal, in Lal Bahadur v State (NCT of Delhi), (2013)
4 SCC 557. Delay of over 2 years in recording witness statements
was deemed not fatal, when explained, in Baldev Singh v State of
Punjab, (2014) 12 SCC 473. Delay in recording witness statements
was held not fatal per se in Sunil Kumar v State of Rajasthan, (2005)
9 SCC 283 and V K Mishra v State of Uttarakhand, (2015) 9 SCC
588. Delay in recording statements of witnesses was held to have
cast serious doubts on the prosecution version in Shahid Khan v
State of Rajasthan, (2016) 4 SCC 96 and Jafarudheen v State of
Kerala, (2022) 8 SCC 440. It was held, in Goutam Joardar v State
of W. B., (2022) 17 SCC 549, by a Coordinate Bench that ‘there
was some delay in recording the statements of the eyewitnesses
concerned but mere factum of delay by itself cannot result in rejection
of their testimonies.’ Per our understanding, Ganesh Bhavan Patel
(supra) is not an authority to contend that delay in recording witness
statements is always fatal to the prosecution’s case. Thus, stricto
sensu, delay in recording witness statements, moreso when the
said delay is explained, will not aid an accused. Of course, no hard-
and-fast principle in this regard ought to be or can be laid down,
as delay, if any, in recording statements will have to be examined
by the Court concerned in conjunction with the peculiar facts of the
case before it. Our reading of the above shall apply on all fours to
delays in the context of Section 164 of the Code.
[2025] 3 S.C.R. 945

Firoz Khan Akbarkhan v. The State of Maharashtra

22. Inasmuch as the question relates to the informant not having been
examined as a prosecution witness, we need only point out that she
was examined as a defence witness. The important factor is that she
and her testimony were available to the Trial Court in its pursuit of truth.
Thus, it does not matter as to whether she was produced as a witness
from the side of the prosecution or from the defence. The pertinent
aspect is that she was before the Trial Court, and the prosecution, or the
other accused, had the occasion and the opportunity to cross-examine
her, which was availed of. Her testimony has been consistent with the
version in the FIR and in sync with the other eye-witnesses.
23. Coming now to the alternate argument put forth by the appellant,
that since the matter occurred in the heat of the moment after an
altercation on the spot, such plea might have had some relevance
and we could have been open to considering the same, provided
the appellant was not armed with a knife. It is not the case put up
by either the prosecution or the defence that the appellant picked
up a knife from/around the spot and then inflicted stabs. Every
eyewitness has maintained that the appellant inflicted the knife stabs
on the deceased which could only have been possible if the knife
was already with him, which clearly indicates that he had come with
prior intention to cause bodily injury by knife which obviously is a
weapon sufficient to cause of death. In other words, the intention to
kill was was very much present from the beginning and is not covered
by any exception to Section 300 of the IPC. This persuades us to
refrain from converting conviction from under Section 302, IPC to
one under Section 304-I, IPC. No fault can be found with the Trial
Court and the High Court, which have rightly reached the conclusion
that the appellant was guilty as charged.
24. After the arguments concluded on the merits of the appeal, learned
senior counsel for the appellant submitted that the appellant had
already undergone more than 14 years of actual incarceration and
his case for premature release should have been considered by the
State. Vide Order dated 01.02.2024, this Court had directed the State
‘to consider the case of the appellant for grant of pre-mature release/
permanent remission as per the policy applicable.’ It was submitted
that he is entitled to be released under the most beneficial policy
which was in operation on the day when he completed his term,
under which he became fit for consideration for remission.
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25. Learned counsel for the State submitted that the appellant’s case for
remission has already been considered by the State and rejected by
order No.RLP1421/C.No.425/Prison-3 dated 13.08.2024 passed by the
Deputy Secretary, Home Department, Government of Maharashtra,
where it has been stated that he can be granted pre-mature release
only upon him ‘serving a sentence of 14 years of actual imprisonment
and 24 years inclusive of all remissions…’, subject to fulfilment of
certain other conditions. We were informed at the Bar that the total
undergone sentence, inclusive of remission, is nearly 20 years.
26. Learned senior counsel for the appellant submitted that the Court
may permit the appellant to apply afresh for remission as the stand
taken by the State is erroneous as in the case of the appellant his
case for remission has to be considered under the policy which
takes into account 14 years of actual incarceration and 20 years
total with remission and not 24 years as stated in the order dated
13.08.2024 (supra).
27. In State of Haryana v Jagdish, (2010) 4 SCC 216, it was laid down:
‘27. In Mahender Singh [(2007) 13 SCC 606 : (2009) 1
SCC (Cri) 221], this Court as referred to hereinabove held
that the policy decision applicable in such cases would
be which was prevailing at the time of his conviction. This
conclusion was arrived on the following ground : (SCC p.
619, para 38)
“38. A right to be considered for remission, keeping
in view the constitutional safeguards of a convict
under Articles 20 and 21 of the Constitution of India,
must be held to be a legal one. Such a legal right
emanates from not only the Prisons Act but also from
the Rules framed thereunder.”
xxx
54. The State authority is under an obligation to at least
exercise its discretion in relation to an honest expectation
perceived by the convict, at the time of his conviction that
his case for premature release would be considered after
serving the sentence, prescribed in the short-sentencing
policy existing on that date. The State has to exercise its
power of remission also keeping in view any such benefit
[2025] 3 S.C.R. 947

Firoz Khan Akbarkhan v. The State of Maharashtra

to be construed liberally in favour of a convict which may
depend upon case to case and for that purpose, in our
opinion, it should relate to a policy which, in the instant case,
was in favour of the respondent. In case a liberal policy
prevails on the date of consideration of the case of a “lifer”
for premature release, he should be given benefit thereof.’
(emphasis supplied)

28. Five learned Judges in Union of India v V Sriharan, (2016) 7
SCC 1 examined threadbare the contours of the law pertaining to
remission. In Bilkis Yakub Rasool v Union of India, (2024) 5 SCC
481, it was culled out as under:
‘181. With regard to the remission policy applicable in
a given case, the following judgments are of relevance.
182. In Jagdish [State of Haryana v. Jagdish, (2010) 4 SCC
216 : (2010) 2 SCC (Cri) 806], a three-Judge Bench of
this Court considered the conflicting opinions expressed in
State of Haryana v. Balwan [State of Haryana v. Balwan,
(1999) 7 SCC 355 : 1999 SCC (Cri) 1193] (“Balwan”) on
the one hand and Mahender Singh [State of Haryana v.
Mahender Singh, (2007) 13 SCC 606 : (2009) 1 SCC
(Cri) 221], and State of Haryana v. Bhup Singh [State
of Haryana v. Bhup Singh, (2009) 2 SCC 268 : (2009) 1
SCC (Cri) 710] (“Bhup Singh”) on the other. The question
considered by the three-Judge Bench was, whether, the
policy which provides for remission and sentence should
be that which was existing on the date of the conviction of
the accused or should it be the policy that existed on date
of consideration of his case for premature release by the
appropriate authority. Noting that remission policy would
be changed from time to time and after referring to the
various decisions of this Court, including Gopal Vinayak
Godse [Gopal Vinayak Godse v. State of Maharashtra,
1961 SCC OnLine SC 70 : (1961) 3 SCR 440 : AIR 1961
SC 600] and Ashok Kumar [Ashok Kumar Pandey v.
State of W.B., (2004) 3 SCC 349 : (2011) 1 SCC (Cri)
865], this Court observed that, liberty is one of the most
precious and cherished possessions of a human being
and he would resist forcefully any attempt to diminish
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it. Similarly, rehabilitation and social reconstruction of
a life convict, as an objective of punishment become a
paramount importance in a welfare State. The State has to
achieve the goal of protecting the society from the convict
and also rehabilitate the offender. The remission policy
manifests a process of reshaping a person who, under
certain circumstances, has indulged in criminal activities
and is required to be rehabilitated. Thus, punishment
should not be regarded as the end but only a means to
an end. Relevancy of circumstances to an offence such
as the state of mind of the convict when the offence was
committed, are factors to be taken note of.
183. It was further observed as under: (Jagdish case [State
of Haryana v. Jagdish, (2010) 4 SCC 216 : (2010) 2 SCC
(Cri) 806] , SCC p. 237, para 46)
“46. At the time of considering the case of premature
release of a life convict, the authorities may require
to consider his case mainly taking into consideration
whether the offence was an individual act of crime
without affecting the society at large; whether there
was any chance of future recurrence of committing a
crime; whether the convict had lost his potentiality in
committing the crime; whether there was any fruitful
purpose of confining the convict any more; the socio-
economic condition of the convict’s family and other
similar circumstances.”
That the executive power of clemency gives an opportunity
to the convict to reintegrate into the society. However, the
power of clemency must be pressed into service only in
appropriate cases. Ultimately, it was held that the case
for remission has to be considered on the strength of the
policy that was existing on the date of conviction of the
accused. It was further observed that in case no liberal
policy prevails on the date of consideration of the case of
a convict under life imprisonment for premature release,
he should be given the benefit thereof subject of course
to Section 433-A CrPC.
xxx
[2025] 3 S.C.R. 949

Firoz Khan Akbarkhan v. The State of Maharashtra

222.4. The policy of remission applicable would therefore
be the Policy of the State which is the appropriate
Government and which has the jurisdiction to consider
that application. The policy of remission applicable at
the time of the conviction could apply and only if for any
reason, the said policy cannot be made applicable a more
benevolent policy, if in vogue, could apply.’
xxx
223. On the basis of the aforesaid discussion, we arrive
at the following summary of conclusions:
xxx...’
(emphasis supplied)

29. In Mafabhai Motibhai Sagar v State of Gujarat, 2024 SCC OnLine
SC 2982 [where the coram comprised two of us (Abhay S. Oka and
Augustine George Masih, JJ.)], speaking through Oka, J., the Court
held, inter alia:
‘17. Our conclusions can be summarised as under:
(i) Under sub-section (1) of Section 432 of the CrPC or
subsection (1) of Section 473 of the BNSS, the appropriate
Government has the power to remit the whole or any part of
the punishment of a convict. The remission can be granted
either unconditionally or subject to certain conditions;
(ii) The decision to grant or not to grant remission has to
be well-informed, reasonable and fair to all concerned;
(iii) A convict cannot seek remission as a matter of right.
However, he has a right to claim that his case for the grant
of remission ought to be considered in accordance with the
law and/or applicable policy adopted by the appropriate
Government;
(iv) Conditions imposed while exercising the power under
sub-section (1) of Section 432 or sub-section (1) of Section
473 of the BNSS must be reasonable. If the conditions
imposed are arbitrary, the conditions will stand vitiated
due to violation of Article 14. Such arbitrary conditions
950 [2025] 3 S.C.R.

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may violate the convict’s rights under Article 21 of the
Constitution;
(v) The effect of remitting the sentence, in part or full,
results in the restoration of liberty of a convict. If the order
granting remission is to be cancelled or revoked, it will
naturally affect the liberty of the convict. …
(vi) …’
(emphasis supplied)

30. Having considered this aspect, as the appellant has undergone
more than 14 years and 10 months of actual incarceration and the
contention that his case be considered by the provision/policy in
vogue at the time of his conviction, if not, a more beneficial policy,
could be applied. In this background, this Court gives liberty to the
appellant to apply afresh with a detailed representation justifying
his claim to be considered for pre-mature release accounting for his
actual incarceration of over 14 years and with remission included,
of over 20 years. Upon such representation being filed, the State
Government shall pass a reasoned order expeditiously and latest
within 3 months from the date of filing such representation, having
regard to the position of law enunciated by us hereinabove.
31. The appeal is dismissed accordingly, subject to the observations
and directions supra.
32. The Registry is directed to return the original records to the concerned
Court(s) forthwith.
33. The efforts of Mrs. Kiran Suri, learned senior counsel and Ms. Nidhi,
learned Advocate-on-Record, who appeared for the appellant under
the aegis of the Supreme Court Legal Services Committee, are
appreciated.
34. I.A. No.21892/2021 is dismissed as not pressed.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Divya Pandey