Sachchey Lal Tiwari Vs.
State of Uttar Pradesh  Insc 615 (6
Arijit Pasayat & C.K.
(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.
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
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
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 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.