2006 JTR(SC) 1234
2007 50 AIC 503 ; 2007 2 AICLR 576 ; 2007 1 ALD(Cri)(SC) 713 ; 2007 1 APLJ 52 ; 2007 2 BLJ(SC) 33 ; 2007 1 CriCC 1051 ; 2007 CriLR 78 ; 2007 2 JCR(SC) 213 ; 2007 1 RCR(Cri) 924 ; 2006 13 Scale 228 ; 2007 1 SCC 699 ; 2007 1 SCC(Cri) 425 ; 2006 Supp10 SCR 51 ; 2007 1 WLC 448 ; 2006 9 Supreme 613
2006(9) Supreme 613
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Salim Sahab - Appellant
versus
State of Madhya Pradesh - Respondent
Criminal Appeal No. 1269 of 2006
(Arising out of S.L.P. (Crl.) 3389 of 2006)
Decided on 5-12-2006
Counsel for the Parties :
For the Appellant : Javed Mahmud Rao, Advocate.
For the Respondent : Dr. N.M. Ghatate, Sr. Advocate, Merusagar Samantaray, M.K. Singh and C.D. Singh, Advocates.
IMPORTANT POINT
Where in a sudden fight accused and deceased started grappling and accused took out a scissors and assaulted deceased on his abdomen and chest, offence would fall u/s 304 part II and not u/s 302 IPC.
Act Referred :CRIMINAL TRIAL : .
(A) The criminal trial pertains to a homicide alleged to have been committed in the context of a sudden quarrel, invoking the provisions of Section 302 of the Indian Penal Code, 1860, which prescribes punishment for murder. The High Court convicted the appellant under this section, imposing a sentence of life imprisonment and a fine. The appeal challenges this finding, arguing that the offense falls within the scope of the Fourth Exception to Section 300 of the Indian Penal Code, 1860, which provides for acts done in a sudden fight without premeditation. This exception applies where there is a sudden quarrel, no premeditation, and the accused has not taken undue advantage or acted in a cruel or unusual manner. The case necessitates an analysis of whether the accuseds act of assault with a pair of scissors was a result of a sudden heat of passion in a mutual fight or a premeditated act of murder.
(B) Relationship is not a factor affecting the credibility of a witness, and close relatives can be independent and reliable witnesses. The plea of false implication based on relationship is generally without substance unless specific foundation is laid. Evidence of interested witnesses is not to be mechanically rejected, but must be judged on its cogency and credibility. The law distinguishes between Exception 1 and Exception 4 of Section 300, IPC, where the latter applies when there is a sudden fight without premeditation, but the accused must not have taken undue advantage or acted cruelly. The weapon used and the manner of attack are relevant to determine if undue advantage was taken.
Facts of the case:
The appellant was married to the deceased's relative, and following a dispute, he visited the deceased's house and engaged in an argument with the deceased and his wife. The appellant used a pair of scissors to assault the deceased during a physical grapple, causing injuries from which the deceased succumbed on the way to the hospital.
Findings of Court:
The trial court found the appellant guilty of murder under Section 302 IPC. The High Court dismissed the appeal, rejecting the contention of interested witnesses and the applicability of the Fourth Exception, and confirmed the conviction. The Supreme Court, however, held that the evidence of the neighbor witness was independent and that the plea of interested witnesses lacked substance. It further determined that the offense fell under the Fourth Exception of Section 300 IPC, as the fight was sudden and the accused had not taken undue advantage, and altered the conviction to culpable homicide not amounting to murder.
Issues:
Whether the witness for the prosecution being a close relative of the victim is a partisan witness and whether their evidence should be rejected. Whether the offense committed by the accused attracts Section 302 (murder) or comes within the ambit of the Fourth Exception to Section 300 (acts done in a sudden fight).
Ratio Decidendi:
The relationship of the witness does not automatically impair credibility, and evidence of interested witnesses is not to be rejected without justification. The Fourth Exception to Section 300 IPC applies where there is a sudden fight without premeditation and the accused has not used undue advantage. The use of a sharp weapon like scissors in a mutual fight does not necessarily imply an intention to kill, and the facts of the case did not reveal cruel or unusual conduct, thus the offense was held to be culpable homicide not amounting to murder.
Result:
The appeal was allowed in part, the conviction under Section 302 IPC was set aside, and the appellant was deemed guilty under the Fourth Exception of Section 300 IPC, with a sentence of seven years rigorous imprisonment.
(A) The criminal trial pertains to a homicide alleged to have been committed in the context of a sudden quarrel, invoking the provisions of Section 302 of the Indian Penal Code, 1860, which prescribes punishment for murder. The High Court convicted the appellant under this section, imposing a sentence of life imprisonment and a fine. The appeal challenges this finding, arguing that the offense falls within the scope of the Fourth Exception to Section 300 of the Indian Penal Code, 1860, which provides for acts done in a sudden fight without premeditation. This exception applies where there is a sudden quarrel, no premeditation, and the accused has not taken undue advantage or acted in a cruel or unusual manner. The case necessitates an analysis of whether the accuseds act of assault with a pair of scissors was a result of a sudden heat of passion in a mutual fight or a premeditated act of murder.
(B) Relationship is not a factor affecting the credibility of a witness, and close relatives can be independent and reliable witnesses. The plea of false implication based on relationship is generally without substance unless specific foundation is laid. Evidence of interested witnesses is not to be mechanically rejected, but must be judged on its cogency and credibility. The law distinguishes between Exception 1 and Exception 4 of Section 300, IPC, where the latter applies when there is a sudden fight without premeditation, but the accused must not have taken undue advantage or acted cruelly. The weapon used and the manner of attack are relevant to determine if undue advantage was taken.
Facts of the case:
The appellant was married to the deceased's relative, and following a dispute, he visited the deceased's house and engaged in an argument with the deceased and his wife. The appellant used a pair of scissors to assault the deceased during a physical grapple, causing injuries from which the deceased succumbed on the way to the hospital.
Findings of Court:
The trial court found the appellant guilty of murder under Section 302 IPC. The High Court dismissed the appeal, rejecting the contention of interested witnesses and the applicability of the Fourth Exception, and confirmed the conviction. The Supreme Court, however, held that the evidence of the neighbor witness was independent and that the plea of interested witnesses lacked substance. It further determined that the offense fell under the Fourth Exception of Section 300 IPC, as the fight was sudden and the accused had not taken undue advantage, and altered the conviction to culpable homicide not amounting to murder.
Issues:
Whether the witness for the prosecution being a close relative of the victim is a partisan witness and whether their evidence should be rejected. Whether the offense committed by the accused attracts Section 302 (murder) or comes within the ambit of the Fourth Exception to Section 300 (acts done in a sudden fight).
Ratio Decidendi:
The relationship of the witness does not automatically impair credibility, and evidence of interested witnesses is not to be rejected without justification. The Fourth Exception to Section 300 IPC applies where there is a sudden fight without premeditation and the accused has not used undue advantage. The use of a sharp weapon like scissors in a mutual fight does not necessarily imply an intention to kill, and the facts of the case did not reveal cruel or unusual conduct, thus the offense was held to be culpable homicide not amounting to murder.
Result:
The appeal was allowed in part, the conviction under Section 302 IPC was set aside, and the appellant was deemed guilty under the Fourth Exception of Section 300 IPC, with a sentence of seven years rigorous imprisonment.
Evidence - Affirmed the principle that the testimony of relatives should not be discarded merely due to their relationship with the deceased.
Witnesses - Reiterated the established rule regarding the credibility of related witnesses in criminal trials.
Provocation - Held that the use of a deadly weapon against an unarmed person constitutes taking undue advantage under the Fourth Exception to Section 300 IPC.
Evidence - Supported the proposition that relationship does not inherently impact the credibility of eyewitness testimony.
Evidence - Cited in confirmation of the court's stance on the testimony of partisan or related witnesses.
Culpability - Referred to regarding the principles applicable to sudden fights and mitigation of culpability.
Corroboration - Dispelled the common fallacy that the testimony of relatives or women requires independent corroboration.
Witnesses - The foundational case explaining that relationship to the deceased is not a ground for dismissing a witness's testimony.
Evidence - Relied upon to support the consistency of witness testimony in criminal proceedings.
Credibility - Ruled against the mechanical rejection of evidence from partisan or interested witnesses.
JUDGMENT
Dr. Arijit Pasayat, J. - Leave granted.
2. 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.
3. 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.
4. 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 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.
5. 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.
6. 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.
7. Before the High Court it was the appellants 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.
8. Learned counsel for the appellant reiterated the stands taken by the High Court.
9. 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.
10. The plea relating to interested witness is a regular feature in almost every criminal trial.
11. 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.
12. 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."
13. 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.
14. 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 Singhs 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 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."
15. 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."
16. 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.
17. 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 mens 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.
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offenders 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.
19. 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.
20. The above position was highlighted in Babulal Bhagwan Khandare and Anr. V. State of Maharashtra [2005(10) SCC 404].
21. 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.
22. 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.
23. The appeal is allowed to the aforesaid extent.
Appeal allowed partly.
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