D. SAILU v. STATE OF A.P

Citation: [2007] 12 S.C.R. 397

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, AFTAB ALAM

Case summary

D. SAILU v. STATE OF A.P.pdf

Judgment text

D. SAILU v. STATE OF A. P. NOVEMBER 20, 2007 [DR. ARIJITPASAYAT ANDAFTABALAM,JJ. ) _, Penal Code, 1860: s. 300 Exception 1and4, s. 302 and s. 304 Part I-Sudden fight between accused and deceased-Accused stabbed deceased-Courts below heldaccusedguilty under s. 302-Accusedpleading applicability ofException 4 ofs. 300-Held: Exception 4 ofs. 300 is applicable as accused had not taken undue advantage or acted in cruel or unusual .. manner-Fightsuddenly tookplace and there was nopre-meditation- Appropriate conviction under s. 304 Part-I and not under s. 302- -i Conviction alteredaccordingly. Evidence: Related witness-Testimony of-Evidentiary value of Medical evidence-Primacy of, over ocular evidence-Propriety of-Held: It is notproper to accord undue primacy to medical opinion pointing to alternative possibility when statements ofeyewitnesses are , ~ found credible and trustworthy.

~ Prosecution case was that A-1 was the nephew of deceased, A-2 was brother ofdeceased, A-3 was wife ofA-2 and A-4 was the brother ofA-1. The deceased and accused persons were not in good terms and had been quarrelling with each other over bore water for the fields. On the fateful day, A-1 asked the deceased as to why he scolded ·-Y the mother ofA-1. PW-1, wife ofthe deceased caught hold ofthe hands ofA-1. A-4 came and attempted to beat the deceased. PW-1 pushed the younger brother ofA-1. A-1 stabbed the deceased at the instigation ofA-2 with a knife. Deceased died as a result of injuries sustained by him The charges were framed under s. 302 IPC against A-1 and A-3. The Sessions Judge accepting the evidence ofP. Ws. 1to 4, to be cogent and credible, held that A-1 caused injuries to the deceased and therefore convicted for offence punishable under s. 302 IPC. Benefitofdoubtwas Igiven to A-3 and accordingly he was acquitted. The High Court upheld the conviction ofA-1.

In appeal to this Court, A-I-appellant contended that PWl to 4 were related to thedeceased and therefore theirversion is tainted; that the medical evidence rendered the ocular version improbable; that the occurrence took place in course ofsudden quarrel and, therefore, the trial courtand the High Courtwere not justified in holdingthe accusedappellantguiltyofoffencepunishable unders. 302 IPC and thatException IV to s. 304 IPC would apply to the facts ofthe case. ~ Partly allowingthe appeal, the Court HELD: 1. 1. Relationship is not a factor to affect credibility of a witness. Itis more often than not that a relation would notconcealactual culprit and make allegations against an innocent person. Foundation has to be laid ifplea offalse implication is made. In such cases, the court has to adopt acareful approach and analyse evidence to find outwhether it is cogent and credible. The ground that the witness being a close ..

relative and consequently being a partisan witness, should not be relied ,. upon, has no substance. [Paras 11and14) (404-A-B, GJ DalipSingh and Ors. v. The State ofPunjab, AIR (1953) SC 364; Guli Chandand Ors. v. State ofRajasthan, (1974) 3 SCC 698; Vadivelu Thevarv. State ofMadras, AIR(1957) SC 614; Masalti and Ors. v. State ofUP. , AIR (1965) SC 202; State ofPunjab v. Jagir Singh AIR (1973) SC 2407; Lehnav. State ofHaryana, (2002) 3SCC 76; Gangadhar Behera 'V andOrs. v. State ofOrissa, (2002) 8SCC381; Babula! Bhagwan Khandare andAnr. v. State ofMaharashtra, (2005) 10 SCC 404 and Salim Sahebv. State ofMP. , [2007) 1SCC699, relied on. D. SAILU v. STATE 399 1. 2.

The ocular testimonies has been analysed in great detail and has been rightlyheld to be cogent Itwould be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". [Paras 18and19) (405-H; 406-A, BJ 1. 3. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears ofjustice. Eyewitnesses' account would require a careful independent assessment and evaluationfor its credibility which should notbe adversely prejudged makinganyotherevidence, including medical evidence, as the sole touchstone for the test ofsuch credibility. The evidence must be tested for its inherent consistency and the ' .

inherent probability ofthe story; consistencywith the account ofother witnesses held to be creditworthy; consistencywith the undisputed facts, the 'credit' ofthe witnesses; their performance in thewitness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. [Para 20) [406-C-E] Krishan andAnr. v. State represented by Inspector ofPolice, [2003) 7 sec 56, relied on. -~ ' 1. 4. Even otherwise, factually also the medical evidence is not contrary to ocularevidence as claimed. On the contrary the doctor (PW 8) has clearly stated as to under what circumstances lacerated injury can be caused by a knife. [Para 22) [406-F] 2. 1. The Fourth Exception to s. 300 IPC deals with a case of prosecution notcovered by the FirstException. In both, there is absence of premeditation.

But, while in the case of Exception 1 there is total deprivation ofself-control, in case ofException 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which theywould not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is notthe direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that ablow may have been struck, orsome provocation given in the origin ofthe dispute or. in whatever way the quarrel may have originated, yet the subsequentconduct ofboth parties puts them in respect ofguilt upon equal footing. [Para 26) (407-C-E) 2. 2. A"sudden fighf' implies mutual provocation and blows on each side. The homicide committed is then clearly nottraceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. Forifitwereso,the Exception moreappropriately applicablewould 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 ifthe other had not aggravated it by his own conduct itwould not have taken the serious tum it did. There is then mutual provocation and aggravation, and itis difficult to apportion the share ofblame which attaches to each . ' fighter. [Para26] [407-E-G) 2. 3. The help ofException 4 can be invoked ifdeath is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender 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 4all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to s. 300 IPC is not defined in IPC.

It takes two to make a fight Heat ofpassion 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 ofthe verbal altercation in the beginning. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question offact and whether a quarrel is sudden or not must necessarily depend upon the proved facts ofeach case. For the application ofException 4, itis notsufficient to show that there was a sudden quarrel and that 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". Considering the background facts, appropriate conviction ~ would be unders. 304 PartIIPC and not unders. 302 IPC. The conviction is accordingly altered. [Paras 26 and 28) [407-G-H; 408-A-D] Sandhya Jadhav v.

State ofMaharashtra, [2006) 4SCC 653, relied on. CRIMINAL APPELLATE nJRISDICTION: Criminal Appeal No. >·. . j 1592 of2007. From the final Judgment dated 15. 7. 2005 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Cr!. A. No. 287/2003. Ajay Sharma for the Appellant. D. Bharathi Reddy for the Respondent. The Judgment ofthe Court was delivered by ' . DR. ARIJIT PASAYAT, J. 1. Leave granted. _, 2. Challenge in this appeal is to the order passed by a Division Bench of the Andhra Pradesh High Court upholding the conviction of the appellant (hereinafter referred to as 'Accused No. I") for offence punishable under Section 302 ofthe Indian Penal Code, 1860 (in short the 'IPC') and sentence ofimprisonment for life and fine ofRs. 200/-with default stipulation. 3. Background facts as projected by the prosecution are as follows: ... Accused persons D. Sailu, Ramaiah, D. Pentamma and Yadaiah are -. I described as A-1, A-2, A-3 and A-4.

Samuel (hereinafter referred to as the deceased) was the husband of Shantarnma (P. W. l). A-1 is the son ofthe elder brother ofthe deceased, A-2 is the father ofA-1, A-3 is the wife of A-2 and A-4 is the younger brother of A-1. The deceased and the accused were not on good terms as they quarrelled with each other over bore water for the fields. Fifteen days prior to the date of incident, _,, the accused and the deceased quarrelled with each other. On the date of incident i. e. 24. 11. 1999 at about 8. 00 P. M. , A-1 asked the deceased as to why he (deceased) scolded the mother ofA-1. The deceased told him that he did not scold his mother. Then P. W. l, the wife ofthe deceased, caught hold ofthe hands ofA-1. A-4, the younger brother ofA-1, came and attempted to beat the deceased. P. W. l pushed the younger brother of A-1. A-2 beat P. W. l with hands and A-1 stabbed the deceased at the instigation of A-2 with a knife on the left side of the stomach. As a result, the deceased fell down.

A-3 also came there along with A-2 and beat P. W. l. Thereafter, the deceased was taken to the Sangareddy Hospital in an auto. 4. The Village Administrative Officer gave Ex. P8 report to P. W. 14, who registered the case in Cr. No. 82 of 1999 under Section 302 read with 34 IPC against Al to A4. P. W. 15 took up investigation, visited the scene of offence and conducted scene of offence panchanama in the presence of P. W. 10 and another and seized controlled earth from the scene. Thereafter, he proceeded to Government Hospital and held inquest on the dead body ofthe deceased in the presence of P. W. 12 and others. He seized blood stained clothes from the body of the deceased. On inquest it was found that the deceased died as a result of the injuries sustained by him. P. W. 8 is the Doctor, who conducted the autopsy, opined that the deceased died due to shock and hemorrhage due to injury to vital organ. On 13. 11.

1999, A-1 to A-4 were arrested by the Sub- Inspector of Police, Kondapur and produced before P. W. 15. P. W. 15 interrogated A-1 and A-1 gave confessional statement in Ex. P6 and in pursuance ofthe confessional statement, a knife was recovered under Ex. P7. As A-1 also sustained injuries, he was referred to hospital and examined by the Doctor and Ex. P. 10, wound certificate was issued. After • receipt ofthe Forensic Sciences Laboratory Report, he filed the charge sheet against A-1 and A-3 for the offence under Section 302 read with 34 IPC. As A-4 was juvenile, he was produced before the Judicial First Class Magistrate, Nizamabad, which is a juvenile Court. A-2 was absconding. 5. The learned Additional Judicial First Class Magistrate, Modak at Sangareddy, after considering the material on record, came to the conclusion that the offence alleged against the accused is exclusively triable by the Court ofSession and therefore, he committed the case to the Court ofSession.

The learned Sessions Judge took the case on file in S. C. No. 129 of2001 and after hearing the prosecution and the defence and after ~ considering the material on record, charge for commission ofoffence punishable under Section 302 read with 34 IPC was framed against A- 1and A-3. As A-1 and A-3 denied the charge levelled against them, the prosecution examined P. Ws. 1to 15 and marked Exs. P1to P12 besides marking of MO. I to prove its case. PWs. 1to 4 were stated to be eye witnesses to the occurrence. -.. / 6. The stand of the appellant before the trial court was that the evidence of PWs 1to 4 cannot be believed particularly when they are related to deceased and the presence ofA2 and 3 at the time of incident is very much doubtful as they belong to some other village. It was also contended that the medical evidence corroded credibility of ocular testimony of PWs 1to 4 as the injuries noticed were lacerated injuries which could not been caused by a knife. PWs.

1to 4 falsely implicated to accused The trial court found the evidence ofPWs 1to 4 to be credible and cogent and therefore convicted the accused appellant. It did not accept the plea ofthe accused that offence under Section 302 IPC is not made ,.. out. 7. The learned Sessions Judge accepting the evidence of P. Ws. 1 to 4, to be cogent and credible came to the conclusion that A-1 caused injuries to the deceased and therefore he was convicted and sentenced as stated above. Benefit of doubt was given to A-3 and accordingly he was acquitted. # 8. The judgment ofthe trial court was challenged before the High Court and the pleas canvassed before the trial court were reiterated. The -1 High Court as noted above did not find any substance in the appeal and upheld the conviction and sentence imposed. 9. It was submitted by learned counsel for the appellant in support of the present appeal, that PWs. 1 to 4 were related to the deceased and therefore their version is tainted.

The medical evidence rendered the ~ ocular version improbable. 10. Learned counsel for the respondent-State supported the judgments oflower court and High Court. 11. We shall first deal with the contention regarding interestedness ofthe 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 ifplea 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. " 12. In Dalip Singh and Ors. v.

The State ofPunjab, 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 ofrelationship 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 ofprudence.

There is no such general rule. Each case must be limited to and be • governed by its own facts. " ~ 13. The above decision has since been followed in Guli Chand and Ors. v. State ofRajasthan, [1974] 3 SCC 698 in which Vadivelu Ihevar v. State ofMadras, AIR (1957) SC 614 was also relied upon. 14. 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 ofthe Members ofthe Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges ofthe High Court that the testimony ofthe two eyewitnesses requires corroboration.

Ifthe 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 ofno such rule. Ifit 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 ofthis Court endeavoured to dispel in - 'Rameshwar v. State ofRajasthan' AIR (1952) SC 54 at p. 59. We find, however, that it unfortunately still persists, ifnot in the judgments ofthe Courts, at any rate in the arguments ofcounsel. " 15. Again in Masalti and Ors. v. State of UP. , 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 ofpartisan or interested witnesses.......

The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure ofjustice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial (lpproach 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. " 16. To the same effect is the decision in State ofPunjab v. Jagir Singh, AIR (1973) SC 2407, Lehna v. State of Haryana, [2002] 3 SCC 76 and Gangadhar Behera and Ors. v. State ofOrissa, [2002] 8 sec 381. 17. The above position was highlighted in Babula! Bhagwan Khandare and Anr. v. State ofMaharashtra, [2005] 10 SCC 404 and in Salim Saheb v. State ofMP. , [2007] 1 SCC 699. 18. The further plea related to primacy of medical evidence. The [2007) 12 S. C. R. ocular testimonies has been analysed in great detail and has been rightly held to be cogent. 19.

Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers ofmedical witnesses to exclude the eyewitnesses' account which had to be tested independently and not .. treated as the "variable" keeping the medical evidence as the "constant". 20. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears ofjustice. Hence the importance and primacy ofthe quality ofthe trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test ofsuch credibility.

The evidence must be tested r for its inherent consistency and the inherent probability of the story; ~ consistency with the account ofother witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" ofthe witnesses; their performance in the witness box; their power ofobservation etc. Then the probative value ofsuch evidence becomes eligible to be put into the scales for cumulative evaluation. 21. The above position was reiterated in Krishan andAnr. v. State represented by Inspector ofPolice, [2003] 7 SCC 56. '- 22. Even otherwise, factually also the medical evidence is not contrary ,. _ to ocular evidence as claimed. On the contrary the doctor (PW 8) has clearly stated as to under what circumstances lacerated injury can be caused by a knife. 23.

Learned counsel for the appellant submitted that the occurrence took place in course of sudden quarrel and, therefore, the trial court ~d the High Court were not justified in holding the accused-appellant guilty v of offence punishable under Section 302 IPC. 24. In essence the stand of learned counsel for the appellant is that Exception IV to Section 304 IPC would apply to the facts ofthe case. 25. 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 ofpassion upon a sudden quarrel without the offender having taken undue advantage and not having acted in cruel or unusual manner. .. . J 26. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case ofprosecution 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 1there is total deprivation ofself-control, in case ofException 4, there is only that heat ofpassion 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 ofthat 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 ofboth parties puts them in respect ofguilt 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 ifthe other had not aggravated it by his own conduct it would not have taken the serious tum 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 ifdeath is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in 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 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 that 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". 27. The above position is highlighted in Sandhya Jadhav v. State ofMaharashtra, [2006] 4 SCC 653. 28.

Considering the background facts, appropriate conviction would be under Section 304 Part I IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence often years would suffice. 29. Appeal is allowed to the aforesaid extent. D. G. Appeal partly allowed.