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CASE NO.: Appeal (crl.)  270 of 2001

PETITIONER: Sachchey Lal Tiwari

RESPONDENT: State of Uttar Pradesh  

DATE OF JUDGMENT: 06/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(With CRIMINAL APPEAL NO. 271/2001)

ARIJIT PASAYAT, J

       These two appeals are interlinked having their foundation on a  judgment of the Allahabad High Court.  Appellant Sachchey Lal Tiwari  (in criminal appeal no. 270 of 2001) and Bachchey Lal Tiwari  (respondent no.1 in criminal appeal no.271 of 2001 filed by the State  of Uttar Pradesh) faced trial for alleged commission of offences  punishable under Section 302 and Section 302 read with Section 34 of  the Indian Penal Code, 1860 (in short the ’IPC’).  Both were found  guilty and accordingly convicted while death sentence was imposed on  the former, life sentence was imposed on the latter. Reference was made  to the High Court for confirmation of the death sentence and appeals  were filed by the accused persons.  By the impugned judgment High Court  altered the sentence to life sentence for the former and directed  acquittal of the latter.    

       Facts giving rise to the prosecution of the two accused  are that  the complainant Achhaiber Misra (PW-I) and both the accused are  residents of Village Ledupur within the circle of police station  Sarnath district Varanasi in Uttar Pradesh. The agricultural fields of  the two sides also adjoin each other near the old brick kiln towards  east and south of the village. The ground level of the field of  complainant Achhaiber Misra is slightly higher than the level of the  plots of the appellants. On 3.11.1995 at about 6.45 A.M., the accused  persons Sachchey Lal Tiwari and Bachchey Lal Tiwari sons of Mahajan  Tiwari and Pintoo grand- son of Mahajan Tiwari were dismantling the  demarcating line (Mend) between the fields of the complainant Achhaiber  Misra and the accused. The complainant Achhaiber Misra witnessed it and  he along with his sons Vijai Shanker Misra and Surender Nath Misra  (hereinafter referred to as ’deceased’ by their respective names)  reached near the field and asked the accused not to dismantle the  demarcating line of the field. There was exchange of hot words between  the two sides. Pintoo grandson of Mahajan Tiwari took out a pistol and  handed it over to the accused Sachchey Lal Tiwari and then Pintoo and  Bachchey Lal Tiwari exhorted by saying that the complainant side should  be killed. On it Sachchey Lal Tiwari, accused fired with the pistol at  deceased Vijai Misra and deceased Surender, as a result of which both  sustained fire arm injuries and died instantaneously on the spot. The  occurrence was witnessed by Prem Nath Misra, Rama Kant Misra (PW-2) and  other village persons and thereafter the two accused and Pintoo ran  away from the scene of occurrence, leaving behind the dead bodies.

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Complainant Achhaiber Misra went to the police station Sarnath in  district Varanasi and lodged a written report (Ex. Ka-1) there at about  8.15 A.M. On it G.D. entry was made at the police station and a case  against the appellants was registered. The Investigating Officer, S.I.  Sri Sita Ram Chaudhary (PW-6) reached the scene of occurrence. He  inspected the site and prepared the site plan Ex. Ka-6. Thereafter he  recorded the statements of the witnesses and took the sample and blood  stained earth from the scene of occurrence and also prepared the  Panchayatnamas of the dead bodies. The dead bodies were sent to  District Hospital, Varanasi where post mortem examination was conducted  on 4.11.1995 vide post mortem reports Ext. Ka-17 and Ka-18. After  completing necessary formalities of investigation, charge-sheet was  submitted against the appellants who pleaded not guilty to the charges  and claimed to be tried. The defence of the accused was that they have  been falsely implicated in this case due to previous enmity and ill- will.

       In support of its case the prosecution examined seven witnesses  in all. Achhaiber Misra (PW-1), Rama Kant Misra (PW-2) were claimed to  be eye witnesses. The defence also examined Yagya Narain Misra (DW-1)  and Prem Nath Misra (DW-2). The learned lower court scrutinized the  entire evidence on record, believed the prosecution theory, convicted  the accused and sentenced them as above.  The High Court by the  impugned judgment upheld conviction of Sachchey Lal Tiwari but was of  the view that life sentence was the proper sentence.  It held the  evidence to be inadequate so far as accused Bachchey Lal is concerned,  and accordingly directed acquittal.

       Though the State of Uttar Pradesh had challenged alteration of  sentence in respect of accused Sachchey Lal, the same was dismissed by  this Court by order dated 19.2.2001. The appeal is limited to acquittal  of Bachchey Lal.   

       Mr. Shiva Pujan Singh, learned counsel for the accused  submitted  that evidence of PWs 1 and 2 is unreliable.  In any event, PW-2 is a  chance witness whose evidence should not have been believed.  Even if  prosecution case is accepted in toto, it only shows that the occurrence  took place in course of a sudden quarrel and, therefore, Section 302  IPC has no application.

       In response learned counsel for the State submitted that the  evidence of PWs 1 and 2 have described the incident in detail and same  have been held to be cogent and credible.  No infirmity has been  noticed and the appellant has not been able to show any infirmity  except describing PW-2 as a chance witness.  The case is clearly  covered under Section 302 IPC and Exception 4 to Section 300 IPC has no  application.  The cruel manner in which two persons have been brutally  killed makes the said Exception non-applicable.  In support of the  appeal filed, it was submitted that on the selfsame evidence Sachchey  Lal has been found guilty.  No plausible reason has been indicated to  discard it for acquitting Bachchey Lal.  In response, Mr. Shiva Pujan  Singh submitted that High Court has found evidence of PWs 1 and 2 to be  unreliable. The judgment being one of acquittal and the view being a  possible view, the appeal deserves to be dismissed.                            

        Coming to the plea of the accused that PW-2 was ’chance witness’  who has not explained how he happened to be at the alleged place of  occurrence it has to be noted that the said witness was independent  witness. There was not even a suggestion to the witness that he had any  animosity towards any of the accused. In a murder trial by describing  an independent witness as ’chance witness’ it cannot be implied thereby  that his evidence is suspicious and his presence at the scene doubtful.  Murders are not committed with previous notice to witnesses; soliciting

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their presence. If murder is committed in a dwelling house, the inmates  of the house are natural witnesses. If murder is committed in a street,  only passersby will be witnesses. Their evidence cannot be brushed  aside or viewed with suspicion on the ground that they are mere ’chance  witnesses’. The expression ’chance witness’ is borrowed from countries  where every man’s home is considered his castle and everyone must have  an explanation for his presence elsewhere or in another man’s castle.  It is quite unsuitable an expression in a country where people are less  formal and more casual, at any rate in the matter explaining their  presence.  The courts below have scanned the evidence of PW-2 in great  detail and found it to be reliable.  We find no reason to differ.     

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.

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 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’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 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’. These aspects have been  highlighted in Dhirajbhai Gorakhbhai Nayak v. State  of Gujrat [2003  (5) Supreme 223].  When the factual scenario is considered in the legal  principles indicated above, the inevitable conclusion is that Exception

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4 to Section 300 IPC has no application to the facts of the case. The  appeal filed by Sachchey Lal is without merit.  Now comes appeal filed  by the State.  

There is no embargo on the appellate Court reviewing the evidence  upon which an order of acquittal is based.  Generally, the order of  acquittal shall not be interfered with because the presumption of  innocence of the accused is further strengthened by acquittal. The  golden thread which runs through the web of administration of justice  in criminal cases is that if two views are possible on the evidence  adduced in the case, one pointing to the guilt of the accused and the  other to his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the Court is to  ensure that miscarriage of justice is prevented. A miscarriage of  justice which may arise from acquittal of the guilty is no less than  from the conviction of an innocent. In a case where admissible evidence  is ignored, a duty is cast upon the appellate Court to re-appreciate  the evidence where the accused has been acquitted, for the purpose of  ascertaining as to whether any of the accused really committed any  offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh  (2002 (2) Supreme 567)]. The principle to be followed by appellate  Court considering the appeal against the judgment of acquittal is to  interfere only when there are compelling and substantial reasons for  doing so.  If the impugned judgment is clearly unreasonable and  relevant and convincing materials have been unjustifiably eliminated in  the process, it is a compelling reason for interference. These aspects  were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.  State of Maharashtra (AIR 1973  SC 2622), Ramesh Babulal Doshi v. State  of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana  (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors.  (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5)  Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)  Supreme 17) and Suchand Pal v. Phani Pal and Anr. (JT 2003 (9) SC 17).  

The High Court analysed the evidence of PWs 1 and 2 to conclude  that it would not have been possible for PW-2 to hear the exhortation  as he was at a distance. It is not the evidence that the exhortation  was in a loud voice.  Evidence of PW-1 was vague about the exhortation.   The view taken by the High Court is a possible view.   

In that view of the matter we dismiss the State’s appeal.

In the ultimate, both the appeals are dismissed.