http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  1269 of 2006

PETITIONER: Salim Sahab

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 05/12/2006

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No.3389 of 2006)  

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Madhya Pradesh High Court at Jabalpur  holding the appellant guilty of the offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).   The appellant was sentenced to undergo imprisonment for life  and to pay a fine of Rs.50,000/- with default stipulation.  It  was directed that if the deposit is made, same shall be paid to  the legal heirs of the deceased. Though the trial court had  convicted the appellant in terms of Section 324 IPC and  imposed sentence of five years rigorous imprisonment and a  fine of Rs.1,000/- with default stipulations, the same was set  aside by the High Court.

Accusations which led to the trial of the accused are as  follows:

Farzana Bi (PW-4) was married to the appellant, but after  about a year of their marriage, the appellant started drinking  liquor and harassing her with the result her father Sheikh  Qadir (PW-1) fetched her back and sent her to the house of his  brother-in-law at Bhusaval. The appellant, therefore, tried to  bring back Farzana Bi (PW-4), but Sheikh Qadir (PW-1)  refused to send her and stated that if the accused quits  drinking, he will send his wife. On the date of the incident i.e.  8.2.1999, the accused had visited the house of Sheikh Qadir  (PW-1) and asked his wife Ruksana as to why they had refused  to send his wife and quarrel with Sheikh Qadir (PW-1) and  Ruksana.

On the same day at about 8.30 PM, while Sheikh Qadir  (PW-1) and his brother-in-law Saleem (hereinafter referred to  as the ’deceased’) were in their house, the accused approached  and started abusing and threatening them. The deceased  resented the conduct of the accused and turned him out of the  house. The accused objected to the intervention by the  deceased and started grappling with him. While grappling with  deceased Saleem, accused took out a pair of scissors, with  which he assaulted the deceased in his abdomen and chest  with the result the deceased fell down unconscious, and there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

was profuse bleeding from his wounds. The incident was also  witnessed by Gopichand. Accused Salim after assaulting the  deceased, tried to run away from the place of the incident, but  was caught by Pyara Saheb (PW-2). Accused assaulted Pyara  Saheb also, and extricated himself. Deceased was taken to the  Hospital for treatment, but on way he succumbed to his  injuries. Report of the incident was lodged by Sheikh Qadir (PW- 1). The inquest report was prepared and Pyara Saheb (PW-2)  was sent for medical examination. After completion of the  investigation, including seizure of the weapon of offence vide  seizure-memo (Ex.P/9) and referring the seized articles to  Forensic Science Laboratory, Sagar, the charge-sheet was filed  and the accused was prosecuted.

Accused pleaded innocence and false implication.  The  trial court on consideration of the materials on record more  particularly the version of the eye witnesses (PWs. 1, 2, 3 & 5)  held the appellant guilty and convicted and sentenced him  aforesaid.

 Before the High Court it was the appellant’s stand that  the evidence is primarily of interested witnesses and in any  event offence under Section 302 IPC is not made out.  It was  also submitted that the occurrence admittedly took place in  the course of sudden quarrel and therefore, Section 302 IPC  has no application. The High Court did not accept the plea  and dismiss the appeal.

Learned counsel for the appellant reiterated the stands  taken by the High Court.

Learned counsel for the State on the other hand  supported the judgment stating that PW 5, the neighbour of  PW-1 is an independent witness and he had no reason to  falsely implicate the accused.

The plea relating to interested witness is a regular feature  in almost every criminal trial.  

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.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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."

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.

       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."

       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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

       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). In the present case apart from the  evidence of PW-1, the evidence of PW-5, who has no axe to  grind, is there.  So, the plea regarding interested witnesses is  without substance.    

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.    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’.     

       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 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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

       The above position was highlighted in  Babulal Bhagwan  Khandare and Anr. V. State of Maharashtra [2005(10) SCC  404].

The factual scenario shows that during a quarrel between  the deceased and the accused, they were grappling and during  that quarrel, accused attacked the deceased with a pair of  scissors. It was not a very big sized weapon though it was  certainly having a sharp edged point.

In view of the factual position as noted above the  applicable provision would be Section 304 part II IPC and not  Section 302 IPC.  The conviction is accordingly altered.   Custodial sentence of seven years rigorous imprisonment  would suffice.

The appeal is allowed to the aforesaid extent.