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CASE NO.: Appeal (crl.)  1533 of 2007

PETITIONER: Gali Venkataiah

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO.  1533          OF  2007 (Arising out of SLP (Crl.) NO. 5907 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 appellant for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  and sentence of imprisonment for life and fine of Rs.1,000/-  with default stipulation in terms of the judgment of learned 4th  Additional Sessions Judge, Nellore.

3.      Background facts in a nutshell are as follows:          One Gali Krishnaiah (hereinafter referred to as the  ’deceased’) Gali Seethaiah and the appellant are brothers and  the relation between them was strained.  Prior to the incident,  the appellant threatened the deceased that he would kill him.   While so, on 13.09.1999, at about 8.30 a.m. the appellant with  an intent to kill the deceased, armed with a knife, went to him,  pulled him and stabbed on his left side of the chest and  caused vital stab injury, besides causing another cut injury  over middle of the left forearm.  The knife pierced into the  chest of the deceased and struck. When the sons of the  deceased raised hue and cry, the appellant left the spot leaving  the knife there itself.  On the way to the hospital, the deceased  succumbed to the injuries sustained by him. Based on the  complaint presented by the wife of the deceased (PW1), a case  in Crime No. 161 of 1999 on the file of the II Town (L & O) P.S.,  Nellore was registered and the same was investigated into.   After completion of investigation, charge sheet was filed.   Accused denied the charges and claimed false implication.   During trial, twelve witnesses were examined to further  prosecution version.  Placing reliance on the evidence of eye  witnesses PWs 1 to 3, conviction as noted above, was recorded  and sentence imposed.

4.      Challenging correctness of the judgment rendered by the  trial court an appeal was preferred before the High Court.    The primary stand was that the witnesses PWs 1 to 3 were the

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wife and the sons of the deceased and were, therefore,  interested witnesses.  Further the other witnesses who were  independent did not support the prosecution version.  In any  event it was submitted that an offence under Section 302 IPC  is not made out.           

5.      The prosecution supported the judgment of the trial  court.  The High Court noticed that the evidence of PWs. 1 to 3  is clear, cogent and credible and therefore the conviction  cannot be faulted.  It was also noticed that the evidence of  PW6 was to the effect that he found the appellant and the  deceased struggling with each other and therefore it was of the  view that the conviction as recorded by the trial court did not  suffer from any infirmity.

6.      In support of the appeal learned counsel for the appellant  submitted that the evidence of PWs. 1 to 3 should not have  been relied upon as they were related to the deceased.   Further the evidence of PWs. 4 and 6 who did not support the  prosecution version in its entirety should not have been acted  upon.  In any event, it was contented that the assault was  made in course of sudden quarrel.                                                                                  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:-

"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)

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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 \026  ’Rameshwar v. State of Rajasthan’ (AIR 1952  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."

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).  

13.     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).

14.   It appears from the evidence of the witnesses that the  relationship between the appellant and the deceased was  strained and much before the assault was made, there was  exchange of hot words between the accused and the deceased  and they were quarreling with each other.         

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15.     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.  16.     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’s sober reasons  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 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 "fight"  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 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".  17.     The above position is highlighted in Sandhya Jadhav v.  State of Maharashtra,(2006) 4 SCC 653.   

18.     Considering the factual background we are of the view  that the appropriate conviction would be in terms of Section  304 Part I IPC, custodial sentence of ten years would meet the  ends of justice.  The appeal is allowed to the aforesaid extent.