REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.967 OF 2001

Arumugam …Appellant

Versus

State Rep. by Inspector of Police, Tamil Nadu …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the learned Single

Judge  of  the  Madras  High  Court  upholding  the  conviction  of  the

appellants for the offence punishable under Section 302 of the Indian

Penal Code, 1860 (in short ‘IPC’) so far accused A1 is concerned, and

the co-accused for the offence punishable under Section 302 read with

Section 34 IPC. Learned District and Sessions Judge, Tirunvelveli, has

held the appellant and the co-accused guilty and as aforenoted by

judgment dated 20.10.1989 in Sessions Case No.140 of 1987. Another

person Subbiah-A3 was charged for commission of offence punishable

under Section 323 IPC. A3 did not prefer appeal before the High Court

and A2 has also not filed any appeal before this Court.      

2. Background facts in a nutshell are as follows: 1

According  to  the  prosecution  appellant  herein  along  with

Shanmugavel A2 and Subbiah-A3 the father of A2 caused the death of one

Vairamuthu (hereinafter referred to as ‘deceased’) at 2.30 p.m. on

22.4.1986 at Villam village, Tenkasi Taluk. The first accused Arumugam

and the third accused Subbiah are brothers. The deceased is none other

than the brother of first and third accused. The accused, the deceased

as well as PWs 1 and 2 – the brothers of A1 and A3 and the deceased

were living as joint family in Palayampattu Street, Vallam village.

During the panchayat election in 1986, in Ward No.II, three persons

contested i.e. A1, the deceased Vairamuthu and one Murthi (PW4). The

first accused requested the deceased to withdraw his nomination. The

deceased refused to do so.  The first accused had withdrawn himself

from contesting in the election. The deceased was elected as a member

of the Ward No.II. After two weeks, there was an election for the

President of the Panchayat Board. On  21.4.1986  at  9  p.m.  the  third

accused Subbiah came to the house and questioned the deceased as to

how he received money to exercise his right to vote in the President

election. The deceased refuted the said charge and also beat A3 who

also beat the deceased. PW 4 and others separated the deceased and A3.

While  returning,  A3  shouted  that  by  any  means,  he  will  kill  the

deceased.

On the fateful day i.e. on 22.4.1986, the deceased was returning

from his mango grove at 2.30 p.m.  At that time, A1 armed with spike

(MO1), A2 armed with aruval (MO2) and A3 armed with stick (MO3), came

to his house.  A3 entered into the house and dragged the deceased by

holding the shirt and challenged saying “yesterday, you beat me, now

you beat me”. There was exchange of hot words. Immediately, A1 stabbed 2

the deceased on his right neck with the spike, which pierced through

the neck of the deceased and came out on the left side as stated by

PW1. The second accused cut the deceased on his leg with the aruval as

stated by PW1.  The second accused questioned the third accused as to

why the deceased was not yet killed. So saying, the second accused cut

the deceased twice on his head. The deceased swooned and fell down.

When PW1 tried to intervene, the third accused beat him with the stick

on  his  right  index  finger,  left  thigh  and  on  the  back.  When  A3

attempted to beat PW1 again, he avoided the same by bending and the

blow fell on the head of A1 who fell down. Thereafter, A1 tried to

pull out the spike MO1 from the neck of the deceased and the spike

broke into two pieces. A2 and A3, along with the weapons, ran away.

The spike was identified by PW1. The death was instantaneous.  The

occurrence was witnessed by PW1 and PW2, who are the brothers and PW3

the sister of the deceased as well as accused 1 and 3.

Pichai Kannu (PW1) and Ramakrishnan (PW2) went to Kutralam Police

Station and gave the complaint. PW13, the Sub Inspector of Police,

Kutralam Police Station recorded the statement of PW1 at 3.30 p.m.,

which  is  Ex.P1  as  attested  by  PW2.  He  also  prepared  the  first

information report on the basis of which investigation was undertaken.

3. After completion of investigation charge sheet was filed. Since

the  accused  persons  pleaded  innocence,  trial  was  held.   Primarily

relying on the evidence of PWs 1 and 2 the trial Court found the

accused guilty. As noted above, the accused persons pleaded innocence.

Two  appeals  were  preferred  before  the  High  Court  and  the  present

appeal is related to Criminal appeal no.854 of 1989 while other appeal

was numbered as Criminal appeal no.4 of 1992. Before the High Court

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stand was that evidence of PWs 1 and 2 should have been discarded as

they are related to the deceased. In any event, it was submitted that

Exception 4 to Section 300 IPC applies as the occurrence took place in

the course of sudden quarrel and, therefore, Section 302 IPC is ruled

out.       

4. The High Court did not find any substance in the aforesaid plea

and dismissed the appeal.

5. In  support  of  the  appeal,  learned  counsel  for  the  appellant

reiterated the stand taken before the High Court.  Learned counsel for

the respondent-State on the other hand supported the judgments of the

trial Court and the High Court.     

6. The plea relating to interested witness is a regular feature in

almost every criminal trial.  

7. We shall first deal with the contention regarding interestedness

of the witnesses for furthering prosecution version. Relationship is

not a factor to affect credibility of a witness. It is more often than

not  that  a  relation  would  not  conceal  actual  culprit  and  make

allegations against an innocent person. Foundation has to be laid if

plea of false implication is made. In such cases, the court has to

adopt a careful approach and analyse evidence to find out whether it

is cogent and credible.

8. In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953 SC 364)

it has been laid down as under:-

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“A  witness  is  normally  to  be  considered  independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.  Ordinarily a close relation would  be  the  last  to  screen  the  real  culprit  and falsely implicate an innocent person.  It is true, when feelings  run  high  and  there  is  personal  cause  for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However,  we  are  not  attempting  any  sweeping generalization.  Each case must be judged on its own facts.  Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence.  There is no such general rule. Each case must be limited to and be governed by its own facts.”

9. The above decision has since been followed in Guli Chand and Ors.

v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v.

State of Madras (AIR 1957 SC 614) was also relied upon.

10. We may also observe that the ground that the witness being a

close relative and consequently being a partisan witness, should not

be relied upon, has no substance. This theory was repelled by this

Court as early as in Dalip Singh’s case (supra) in which surprise was

expressed over the impression which prevailed in the minds of the

Members  of  the  Bar  that  relatives  were  not  independent  witnesses.

Speaking through Vivian Bose, J. it was observed:  

“We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.  If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule.  If it is grounded on the reason that they are closely related to the deceased we are unable to concur.  This is a fallacy common to many criminal cases and one which another Bench  of  this  Court  endeavoured  to  dispel  in  – ‘Rameshwar v.  State of Rajasthan’ (AIR 1952 SC 54 at p.59).  We find, however, that it unfortunately still

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persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”

11. Again in Masalti and Ors.  v.  State of U.P.  (AIR 1965 SC 202)

this Court observed: (p. 209-210 para 14):

“But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.  No hard and fast rule can be laid down as to how much evidence should be appreciated.  Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

12. To the same effect is the decision in  State of Punjab v.  Jagir

Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76)

and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).

As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr.

(AIR 1981 SC 1390), normal discrepancies in evidence are those which

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 those are always there however honest

and truthful a witness may be. Material discrepancies are those which

are not normal, and not expected of a normal person. Courts have to

label the category to which a discrepancy may be categorized. While

normal discrepancies do not corrode the credibility of a party’s case,

material discrepancies do so. These aspects were highlighted recently

in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).

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13. The substantive plea relates to the applicability of Exception 4

of Section 300 IPC.

14. For bringing in its operation it has to be established that the

act was committed without premeditation, in a sudden fight in the heat

of passion upon a sudden quarrel without the offender having taken

undue advantage and not having acted in a cruel or unusual manner.

15. The Fourth Exception of Section 300 IPC covers acts done in a

sudden fight.  The said exception deals with a case of prosecution not

covered by the first exception, after which its place would have been

more appropriate. The exception is founded upon the same principle,

for in both there is absence of premeditation. But, while in the case

of Exception 1 there is total deprivation of self-control, in case of

Exception 4, there is only that heat of passion which clouds men’s

sober reason and urges them to deeds which they would not otherwise

do. There is provocation in Exception 4 as in Exception 1; but the

injury done is not the direct consequence of that provocation. In fact

Exception 4 deals with cases in which notwithstanding that a blow may

have  been struck, or some provocation given in the origin of the

dispute or in whatever way the quarrel may have originated, yet the

subsequent conduct of both parties puts them in respect of guilt upon

equal footing. A ‘sudden fight’ implies mutual provocation and blows

on each side. The homicide committed is then clearly not traceable to

unilateral provocation, nor in such cases could the whole blame be

placed  on  one  side.  For  if  it  were  so,  the  Exception  more

appropriately applicable would be Exception 1. There is no previous

deliberation or determination to fight. A fight suddenly takes place,

for which both parties are more or less to be blamed. It may be that

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one of them starts it, but if the other had not aggravated it by his

own conduct it would not have taken the serious turn it did. There is

then  mutual  provocation  and  aggravation,  and  it  is  difficult  to

apportion the share of blame which attaches to each fighter. The help

of  Exception  4  can  be  invoked  if  death  is  caused  (a)  without

premeditation,  (b)  in  a  sudden  fight;  (c)  without  the  offender’s

having taken undue advantage or acted in a cruel or unusual manner;

and (d) the fight must have been with the person killed.  To bring a

case within Exception 4 all the ingredients mentioned in it must be

found.  It is to be noted that the ‘fight’ occurring in Exception 4 to

Section 300 IPC is not defined in the IPC. It takes two to make a

fight.  Heat of passion requires that there must be no time for the

passions  to  cool  down  and  in  this  case,  the  parties  have  worked

themselves into a fury on account of the verbal altercation in the

beginning.  A fight is a combat between two and more persons whether

with or without weapons. It is not possible to enunciate any general

rule as to what shall be deemed to be a sudden quarrel.  It is a

question  of  fact  and  whether  a  quarrel  is  sudden  or  not  must

necessarily  depend  upon  the  proved  facts  of  each  case.  For  the

application of Exception 4, it is not sufficient to show that there

was a sudden quarrel and there was no premeditation. It must further

be shown that the offender has not taken undue advantage or acted in

cruel or unusual manner. The expression ‘undue advantage’ as used in

the provision means ‘unfair advantage’.     

16. Where the offender takes undue advantage or has acted in a cruel

or unusual manner, the benefit of Exception 4 cannot be given to him.

If the weapon used or the manner of attack by the assailant is out of

all proportion, that circumstance must be taken into consideration to

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decide whether undue advantage has been taken. In Kikar Singh v. State

of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used

deadly weapons against the unarmed man and struck a blow on the head

it must be held that using the blows with the knowledge that they were

likely to cause death, he had taken undue advantage.

17. When the factual background is considered in the touchstone of

the legal position set out above, the inevitable conclusion is that

the  appropriate  conviction  would  be  under  Section  304  Part  I  IPC

instead of Section 302 IPC. Custodial sentence of 10 years would meet

the ends of justice.  Appellant who is on bail pursuant to the order

dated  21.1.2001  shall  surrender  to  custody  forthwith  to  serve

remainder of sentence, if any.     

18. The appeal is allowed to the aforesaid extent.

………………………………………………………J. (DR. ARIJIT PASAYAT)

………………………………………………………J. (DR. MUKUNDAKAM SHARMA)

New Delhi: October 13, 2008

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