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CASE NO.: Appeal (crl.)  556 of 2008

PETITIONER: Golla Yelugu Govindu

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 26/03/2008

BENCH: Dr.  ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.1041 of 2007) 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 dismissing  the appeal filed by the appellant questioning correctness of his  conviction for offence punishable under Section 302 of the  Indian Penal Code, 1860 (in short \021IPC\022) and sentence of  imprisonment for life and fine as imposed by learned IVth  Additional Sessions Judge, (F.T.C.), Anantapur.   2.      Background facts in a nutshell are as follows:

       The marriage between Dhanalakshmi (hereinafter  referred to as \021deceased\022) and the accused took place 14 years  prior to the date of incident. During the wedlock, they were  blessed with three children, namely, Golla Yelugu Adilakshmi  (PW2), Golla Yelugu Anjaneyulu (PW3) and Gollal Yelugu  Venkatesu (LW7).  At the time of marriage, the accused was  doing cultivation.  After marriage the deceased and the  accused lived happily for some years.  Due to addiction to  vices, he started ill-treating his wife, demanding her to get  money from her parents. About six months prior to the  occurrence, the accused beat and caused fracture to the hand  of the deceased and sent her along with her children to her  parents\022 house.  He again took them back by promising to look  after them well and kept his family at Pamidi.  Ten days prior  to the occurrence, the accused sold his autorickshaw and  cleared his debts and asked his wife to get money from her  parents to purchase another autorickshaw.  But the parents of  the deceased did not comply with the said demand.  On  20.6.2002 at about 2 A.M. while the deceased was in the  house, there was exchange of hot words and quarrel between  the accused and deceased. This happened in the presence of  their children.  Suddenly accused hacked the deceased on her  back with a sickle and the deceased fell down and the accused  once again hacked on the neck and left ear of the deceased  causing severe bleeding injuries.  Accused went to the house  of LW3 and confessed the offence before him.  LW3 went and  informed the same to the father of the deceased, PW1.  PW1  lodged a complaint before the police and on its basis a case in  Cr.No.35/2002 was registered for the offence punishable  under Section 302 IPC by PW11, who conducted inquest over  the dead body of the deceased in the presence of PWs. 5, 8 and  LW16: examined some witnesses and recorded their

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statements; seized the clothes and blood stained mat covered  under MOs. 1 to 4; prepared rough sketch under Ex.P.7,  forwarded the material objects to the Forensic Science  Laboratory, Hyderabad for analysis through the Judicial First  Class Magistrate, Gooty and arrested the accused on  25.6.2002, and at his instance MOs 5-sickle and 6-bag were  recovered.  PW6, the Medical Officer, who conducted autopsy  over the dead body of the deceased opined that the deceased  would appear to have died due to hemorrhage and shock due  to cut laceration over the throat involving the major blood  vessel.  After completion of the investigation, charge sheet was  filed.                    3.      In order to establish the accusations the prosecution  examined 11 witnesses and marked several exhibits and MOs.   The accused did not adduce any oral or documentary  evidence. He however pleaded innocence.  

4.      After analyzing the evidence of eyewitnesses PWs2 and 3,  and finding that they are corroborated by the evidence of PWs  1 and 7, the appellant was found guilty.

5.      In appeal, the appellant took the plea that PWs. 2 and 3  should not have been pleaded as they are of tender age and  were child witnesses.  The High Court found that PWs. 2 and 3  were children of the deceased and the accused and there was  no reason as to why they would falsely implicate their father.   The High Court also discarded the plea that they were under  the influence of PW1, their maternal grandfather.  As noted  above, the appeal was dismissed.  

6.      In support of the appeal, learned counsel for the  appellant submitted that reliance should be placed on the  evidence of PWs 2&3 and in any event offence under Section  302 IPC is not made out.   

7. Indian Evidence Act, 1872 (in short the \021Evidence Act\022) does  not prescribe any particular age as a determinative factor to  treat a witness to be a competent one. On the contrary,  Section 118 of the Evidence Act envisages that all persons  shall be competent to testify, unless the Court considers that  they are prevented from understanding the questions put to  them or from giving rational answers to these questions,  because of tender years, extreme old age, disease- whether of  mind, or any other cause of the same kind. A child of tender  age can be allowed to testify if he has intellectual capacity to  understand questions and give rational answers thereto.  This  position was concisely stated by Brewer J in Wheeler v. United  States (159 U.S. 523). The evidence of a child witness is not  required to be rejected per se; but the Court as a rule of  prudence considers such evidence with close scrutiny and  only on being convinced about the quality thereof and  reliability can record conviction, based thereon. (See Surya  Narayana v. State of Karnataka (2001 (1) Supreme 1).

8.      In Dattu Ramrao Sakhare v. State of Maharashtra (1997  (5) SCC 341) it was held as follows:

               \023A child witness if found competent  to depose to the facts and reliable one such  evidence could be the basis of conviction. In  other words even in the absence of oath the  evidence of a child witness can be considered  under Section 118 of the Evidence Act  provided that such witness is able to

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understand the answers thereof. The evidence  of a child witness and credibility thereof  would depend upon the circumstances of  each case. The only precaution which the  Court should bear in mind while assessing  the evidence of a child witness is that the  witness must be a reliable one and his/her  demeanour must be like any other competent  witness and there is no likelihood of being  tutored\024.

9.      The decision on the question whether the child witness  has sufficient intelligence primarily rests with the trial Judge  who notices his manners, his apparent possession or lack of  intelligence, and said Judge may resort to any examination  which will tend to disclose his capacity and intelligence as well  as his understanding of the obligation of an oath. The decision  of the trial court may, however, be disturbed by the higher  Court if from what is preserved in the records, it is clear his  conclusion was erroneous. This precaution is necessary  because child witnesses are amenable to tutoring and often  live in a world of make beliefs. Though it is an established  principle that child witnesses are dangerous witnesses as they  are pliable and liable to be influenced easily, shaped and  moulded, but it is also an accepted norm that if after careful  scrutiny of their evidence the Court comes to the conclusion  that there is an impress of truth in it, there is no obstacle in  the way of accepting the evidence of a child witness.

10.     It is submitted that Section 302 IPC has no application  as the assault was made during the course of sudden quarrel  and Exception 4 of Section 300 IPC applies.        11.     The residuary plea relates to the applicability of  Exception 4 of Section 300 IPC, as it is contended that the  incident took place in course of a sudden quarrel.           12.     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.

13.     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\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 \021sudden  fight\022 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

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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 \021fight\022  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 \021undue advantage\022 as used in the provision means  \021unfair advantage\022.     

14.     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 giving the  blows with the knowledge that they were likely to cause death,  he had taken undue advantage.         15.     Considering the factual scenario in the background of the  position in law as highlighted above, the inevitable conclusion  is that the appropriate conviction would be under Section 304  Part I IPC.  Custodial sentence of 10 years would meet the  ends of justice. Appeal is allowed to that extent.