Full Judgment Text
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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.