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CASE NO.: Appeal (crl.)  1172 of 2007

PETITIONER: Kulesh Mondal

RESPONDENT: The State of West Bengal

DATE OF JUDGMENT: 07/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1172                OF 2007 (Arising out of SLP (Crl.) No.4685 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Calcutta High Court upholding the  conviction for offence punishable under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’) and sentence of  imprisonment of life awarded by learned Additional Sessions  Judge, 2nd Court, Malda in Sessions Trial No.51/2001.  3.     Background facts in a nutshell are as follows:          On 13.2.1994 round about 2.30 p.m. a young girl called  Bharati Mondal was returning home, carrying a bundle of  ’Khari’ on her head. As the ’Khari’ struck on the body of the  appellant Kulesh Mondal, the accused Naresh Mondal  (acquitted by the High Court) and his brother appellant- Kulesh Mondal hurled filthy languages at her. Shocked by  such behaviour of the accused, the informant Naren Mondal  raised his strong protest. There ensued bickering amongst  them. It was followed by hurling of brickbats at the informant.  While such things had been going on, one Chakku Mondal  (hereinafter referred to as the deceased) was passing along the  road. He came to the spot to enquire as to what had been  going on there. Finding him there, the accused Naresh Mondal  dragged him to the place of occurrence and his brother  appellant Kulesh Mondal delivered a fatal blow on his neck  with a ’Hasua’. The injured Chakku Mondal having sustained  severe injury on his neck, efforts were made to shift him to the  hospital. Unfortunately, the injured succumbed to his injury  before his arrival in the hospital.

With the informant Naren Mondal reporting the incident  with the local P.S. Manikchak P.S. Case No.10/1994 dated  13/02/1994 under Sections 341/323/302/34 IPC was  registered against Kulesh Mondal and others. Following the  inquest over the dead body, the Investigating officer sent the  dead body to the Malda Sadar Hospital for post mortem  examination. The investigation proceeded in it usual way with  the Investigating officer preparing a sketch map of the place of  occurrence. He also seized blood stained earth, control earth,  few pieces of broken tiles and brickbats, some dry woods and  prepared seizure list in presence of the witnesses.

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Subsequently, the blood stained wearing apparels of the victim  were also seized. Despite raids being conducted, to apprehend  the culprits, the accused persons evaded arrest for a long  time. Eventua1ly, they were arrested one after another. The  arrest of principal accused Kulesh Mondal could be made only  on 18.6.1994. The Investigating Officer, in the meantime,  examined the available witnesses. The statement of Bharati  Mondal recorded under Section 164 of the Code of Criminal  Procedure, 1973 (in short the ’Cr.P.C.’) was collected.  Collection of the post mortem report was also made.  On  completion of investigation, charge sheet was submitted.

Following the commitment of the case, the learned  Additional Sessions Judge framed charges under Sections  3O2/34, 323/34 and 337/34 IPC against the appellant and  others. The accused persons having pleaded innocence, the  prosecution examined 14 witnesses to bring home the charges.  Amongst the notable witnesses were the eyewitnesses of the  occurrence, the witnesses of the seizure of the incriminating  articles, the doctor conducting the post mortem examination  and the officer who investigated the case. The learned Judicial  Magistrate recording the statement of Bharati Mondal was also  examined as a prosecution witness. Placing strong reliance on  the statements of the eyewitnesses and the supportive post  mortem report, learned Additional Sessions Judge convicted  the appellant Kulesh Mondal and his brother Naresh Mondal  for commission of offence punishable under Section 302 read  with Section 34 IPC.  The trial court found the evidence to be  credible and cogent and, therefore, found the two accused  persons guilty of offences punishable under Section 302 read  with Section 34 IPC.  They were sentenced to rigorous  imprisonment for life and fine of Rs.5000/- each, in default,  rigorous imprisonment for six months.  Both the accused  persons were, however, acquitted of the charges under Section  323/34 and 337/34 IPC.  The four other accused persons  namely Radhik Mondal, Anil Mondal, Uttam Mondal and  Dipen Mondal were acquitted, as the materials against them  were not found sufficient enough.

Aggrieved by the conviction and sentence under Section  302/34 IPC, both the convicted accused persons jointly  preferred an appeal before the High Court.           

4.      Before the High Court primary stand was that evidence of  relatives should not have been believed, no material evidence  was there to convict accused Naresh Mondal and in any event  Section 302 had no application. High Court did not find any  substance in any of the pleas and dismissed the appeal.  

5.      In support of the present appeal learned counsel for the  appellant submitted that the evidence of so-called eye- witnesses cannot be believed as they are related to the  deceased.  In any event only single blow was given in the  course of quarrel and, therefore, Section 302 IPC has no  application.

6.      Learned counsel for the State on the other hand  supported the order.  

7.      We may also observe that the ground that the witnesses  being close relatives and consequently being partisan  witnesses, should not be relied upon, has no substance.  This  theory was repelled by this Court as early as in Dalip Singh  and Ors.  v. The State of Punjab (AIR 1953 SC 364) in which

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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."

8.      Again in Masalti and Ors.  v.  The 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."

9.      To the same effect is the decision in State of Punjab v.  Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of  Haryana (2002 (3) SCC 76). 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  in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4)  SC 186).

10.     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.           11.     For bringing in its operation it has to be established that  the act was committed without premeditation, in a sudden

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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.

12.     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 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’.     

13.     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,

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he had taken undue advantage.   

14.     Considering the background facts in the light of the  principle set out above, the inevitable conclusion is that  Exception 4 to Section 300 IPC is applicable and the offence is  relatable to Section 304 Part I and not Section 302 IPC. That  being, so the conviction is altered.  Custodial sentence of 10  years would meet the ends of justice.

15.     The appeal is allowed to the aforesaid extent.