Vs. State of Madhya Pradesh  Insc 904 (5 December 2006)
Arijit Pasayat & S.H. Kapadia
Out of S.L.P. (Crl.) No.3389 of 2006) Dr. ARIJIT PASAYAT, J.
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
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.
which led to the trial of the accused are as follows:
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.
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
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
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
the High Court it was the appellant's 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.
counsel for the appellant reiterated the stands taken by the High Court.
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.
plea relating to interested witness is a regular feature in almost every
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.
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.
is no such general rule. Each case must be limited to and be governed by its
own facts." 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.
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 Singh's
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:
are unable to agree with the learned Judges of the High Court that the
testimony of the two eyewitnesses requires corroboration.
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
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." Again in Masalti and
Ors. v. State of U.P. (AIR 1965 SC 202) this Court
observed: (p. 209-210 para 14):
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." 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
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
is provocation in Exception 4 as in Exception 1; but the injury done is not the
direct consequence of that provocation.
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.
help of Exception 4 can be invoked if death is caused
a sudden fight;
the offender's having taken undue advantage or acted in a cruel or unusual
fight must have been with the person killed. To bring a case within Exception 4
all the ingredients mentioned in it must be found.
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
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.
above position was highlighted in Babulal Bhagwan Khandare and Anr. V. State of
Maharashtra [2005(10) SCC 404].
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.
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
sentence of seven years rigorous imprisonment would suffice.
appeal is allowed to the aforesaid extent.