Full Judgment Text
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CASE NO.:
Appeal (crl.) 1269 of 2006
PETITIONER:
Salim Sahab
RESPONDENT:
State of Madhya Pradesh
DATE OF JUDGMENT: 05/12/2006
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P. (Crl.) No.3389 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
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.
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.
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
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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.
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.
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.
Before 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.
Learned counsel for the appellant reiterated the stands
taken by the High Court.
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.
The plea relating to interested witness is a regular feature
in almost every criminal trial.
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.
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
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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."
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.
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 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:
"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."
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."
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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.
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.
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’.
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.
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The above position was highlighted in Babulal Bhagwan
Khandare and Anr. V. State of Maharashtra [2005(10) SCC
404].
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.
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.
The appeal is allowed to the aforesaid extent.