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CASE NO.: Appeal (crl.)  1592 of 2007

PETITIONER: D. Sailu

RESPONDENT: State of A.P.

DATE OF JUDGMENT: 20/11/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.3627 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the order passed by a  Division Bench of the Andhra Pradesh High Court upholding  the conviction of the appellant (hereinafter referred to as  \021Accused No.1\024) for offence punishable under Section 302 of  the Indian Penal Code, 1860 (in short the \021IPC\022) and sentence  of imprisonment for life and fine of Rs.200/- with default  stipulation.

3.      Background facts as projected by the prosecution are as  follows:

       Accused persons D. Sailu, Ramaiah, D. Pentamma and  Yadaiah are described as A-1, A-2, A-3 and A-4.  Samuel  (hereinafter referred to as the deceased) was the husband of  Shantamma (P.W.1).  A-1 is the son of the elder brother of the  deceased, A-2 is the father of A-1, A-3 is the wife of A-2 and A- 4 is the younger brother of A-1. The deceased and the accused  were not on good terms as they quarrelled with each other  over bore water for the fields. Fifteen days prior to the date of  incident, the accused and the deceased quarrelled with each  other. On the date of incident i.e. 24.11.1999 at about 8.00  P.M., A-1 asked the deceased as to why he (deceased) scolded  the mother of A-1. The deceased told him that he did not scold  his mother. Then P.W.1, the wife of the deceased, caught hold  of the hands of A-1. A-4, the younger brother of A-1, came and  attempted to beat the deceased. P.W.1 pushed the younger  brother of A-1. A-2 beat P.W.1 with hands and A-1 stabbed the  deceased at the instigation of A-2 with a knife on the left side  of the stomach. As a result, the deceased fell down. A-3 also  came there along with A-2 and beat P.W.1. Thereafter, the  deceased was taken to the Sangareddy Hospital in an auto.

4.      The Village Administrative Officer gave Ex.P8 report to  P.W.14, who registered the case in Cr.No. 82 of 1999 under  Section 302 read with 34 IPC against Al to A4. P.W.15 took up  investigation, visited the scene of offence and conducted scene  of offence panchanama in the presence of P.W.10 and another  and seized controlled earth from the scene. Thereafter, he  proceeded to Government Hospital and held inquest on the  dead body of the deceased in the presence of P.W.12 and  others. He seized blood stained clothes from the body of the

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deceased. On inquest it was found that the deceased died as a  result of the injuries sustained by him. P.W.8 is the Doctor,  who conducted the autopsy, opined that the deceased died  due to shock and hemorrhage due to injury to vital organ. On  13.11.1999, A-1 to A-4 were arrested by the Sub-Inspector of  Police, Kondapur and produced before P.W.15. P.W.15  interrogated A-1 and A-1 gave confessional statement in Ex.P6  and in pursuance of the confessional statement, a knife was  recovered under Ex.P7. As A-1 also sustained injuries, he was  referred to hospital and examined by the Doctor and Ex.P.10,  wound certificate was issued. After receipt of the Forensic  Sciences Laboratory Report, he filed the charge sheet against  A-1 and A-3 for the offence under Section 302 read with 34  IPC. As A-4 was juvenile, he was produced before the Judicial  First Class Magistrate, Nizamabad, which is a juvenile Court.  A-2 was absconding.

5.      The learned Additional Judicial First Class Magistrate,  Modak at Sangareddy, after considering the material on  record, came to the conclusion that the offence alleged against  the accused is exclusively triable by the Court of Session and  therefore, he committed the case to the Court of Session. The  learned Sessions Judge took the case on file in S.C. No. 129 of  2001 and after hearing the prosecution and the defence and  after considering the material on record, charge for  commission of offence punishable under Section 302 read  with 34 IPC was framed against A-1 and A-3. As A-1 and A-3  denied the charge levelled against them, the prosecution  examined P.Ws. 1 to 15 and marked Exs. P1 to P12 besides  marking of M0.1 to prove its case.  PWs. 1 to 4 were stated to  be eye witnesses to the occurrence. 6.      The stand of the appellant before the trial court was that  the evidence of PWs 1 to 4 cannot be believed particularly  when they are related to deceased and the presence of A2 and  3 at the time of incident is very much doubtful as they belong  to some other village.   It was also contended that the medical  evidence corroded credibility of ocular testimony of PWs 1 to 4  as the injuries noticed were lacerated injuries which could not  been caused by a knife. PWs. 1 to 4 falsely implicated to  accused.  The trial court found the evidence of PWs 1 to 4 to  be credible and cogent and therefore convicted the accused  appellant.  It did not accept the plea of the accused that  offence under Section 302 IPC is not made out.

7.      The learned Sessions Judge accepting the evidence of  P.Ws. 1 to 4, to be cogent and credible came to the conclusion  that A-1 caused injuries to the deceased and therefore he was  convicted and sentenced as stated above. Benefit of doubt was  given to A-3 and accordingly he was acquitted.

8.      The judgment of the trial court was challenged before the  High Court and the pleas canvassed before the trial court were  reiterated.  The High Court as noted above did not find any  substance in the appeal and upheld the conviction and  sentence imposed.

9.      It was submitted by learned counsel for the appellant in  support of the present appeal, that PWs. 1 to 4 were related to  the deceased and therefore their version is tainted.  The  medical evidence rendered the ocular version improbable.       10.     Learned counsel for the respondent-State supported the  judgments of lower court and High Court.

11.     We shall first deal with the contention regarding

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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.

12.     In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953  SC 364) it has been laid down as under:-

\023A 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.\024

13.     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.

14.     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\022s  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:  

\023We 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 \026  \021Rameshwar v. State of Rajasthan\022 (AIR 1952

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SC 54 at p.59).  We find, however, that it  unfortunately still persists, if not in the  judgments of the Courts, at any rate in the  arguments of counsel.\024

15.     Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC  202) this Court observed: (p. 209-210 para 14):

\023But 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.\024

16.     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).              17.     The above position was highlighted in  Babulal Bhagwan  Khandare and Anr. V. State of Maharashtra [2005(10) SCC  404] and in Salim Saheb v. State of M.P.  (2007(1) SCC 699).

18.     The further plea related to primacy of medical evidence.   The ocular testimonies has been analysed in great detail and  has been rightly held to be cogent.   19.     Coming to the plea that the medical evidence is at  variance with ocular evidence, it has to be noted that it would  be erroneous to accord undue primacy to the hypothetical  answers of medical witnesses to exclude the eyewitnesses\022  account which had to be tested independently and not treated  as the \023variable\024 keeping the medical evidence as the  \023constant\024.    20.     It is trite that where the eyewitnesses\022 account is found  credible and trustworthy, medical opinion pointing to  alternative possibilities is not accepted as conclusive.  Witnesses, as Bentham said, are the eyes and ears of justice.  Hence the importance and primacy of the quality of the trial  process. Eyewitnesses\022 account would require a careful  independent assessment and evaluation for its credibility  which should not be adversely prejudged making any other  evidence, including medical evidence, as the sole touchstone  for the test of such credibility. The evidence must be tested for  its inherent consistency and the inherent probability of the  story; consistency with the account of other witnesses held to  be creditworthy; consistency with the undisputed facts, the  \023credit\024 of the witnesses; their performance in the witness box;  their power of observation etc. Then the probative value of  such evidence becomes eligible to be put into the scales for a  cumulative evaluation.  21.     The above position was reiterated in Krishan and Another

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v. State represented by Inspector of Police  [(2003)7 SCC 56]. 22.     Even otherwise, factually also the medical evidence is not  contrary to ocular evidence as claimed. On the contrary the  doctor (PW 8) has clearly stated as to under what  circumstances lacerated injury can be caused by a knife.

23.     Learned counsel for the appellant submitted that the  occurrence took place in course of sudden quarrel and,  therefore, the trial court and the High Court were not justified  in holding the accused-appellant guilty of offence punishable  under Section 302 IPC.       24.     In essence the stand of learned counsel for the appellant  is that Exception IV to Section 304 IPC would apply to the  facts of the case.      

25.     For bringing in operation of Exception 4 to Section 300  IPC, 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.

26.   The Fourth Exception to 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\022s 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 \023sudden fight\024  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 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  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 \023fight\024  occurring in Exception 4 to Section 300 IPC is not defined in  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 or mo re 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

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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 that 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 \023undue advantage\024 as used in the  provision means \023unfair advantage\024.  

27.     The above position is highlighted in Sandhya Jadhav v.  State of Maharashtra (2006) 4 SCC 653).   

28.     Considering the background facts, appropriate conviction  would be under Section 304 Part I IPC and not Section 302  IPC.  The conviction is accordingly altered.  Custodial sentence  of ten years would suffice.   29.     Appeal is allowed to the aforesaid extent.