SUPREME COURT OF INDIA
Salim Sahab
Vs
State of Madhya Pradesh
Appeal (Crl.) 1269 of 2006 (Arising Out of S.L.P. (Crl.) No.3389 of 2006)
(Arijit Pasayat and S. H. Kapadia, JJ)
05.12.2006
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 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 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."
The above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan in which Vadivelu Thevar v. State of Madras 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 'Rameshwar v.
State of Rajasthan' 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. 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."
To the same effect is the decision in State of Punjab v. Jagir Singh ,
Lehna v. State of Haryana and Gangadhar Behera and Ors. v. State of
Orissa 8. 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 6 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.
The above position was highlighted in Babulal Bhagwan Khandare and Anr. V.
State of Maharashtra 3.
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.