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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1910 OF 2010

BALU SUDAM KHALDE AND ANOTHER ……APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA ......RESPONDENT(S)

J U D G M E N T

J.B. PARDIWALA, J.:

1. This appeal by special leave is at the instance of two convict persons and is

directed against the judgment and order dated 02.03.2009 passed by the High Court

of Judicature at Bombay in Criminal Appeal No. 637 of 2003 by which the High Court

dismissed the criminal appeal referred to above, and thereby affirmed the order of

conviction and the consequence sentence dated 12.03.2003 passed by the learned

Additional Sessions Judge, Pune dated 12.03.2003 in Sessions Case No. 323 of 2001,

by convicting both the appellants herein for the offence under Section 302 read with

Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and sentencing them

to suffer life imprisonment and a fine of Rs. 1000/- each with the stipulation that in

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default of payment of the fine they would undergo rigorous imprisonment for further

six months.

2. It may not be out of place to state at this stage that in all four persons were put

to trial including the two appellants herein in the Court of the Additional Sessions

Judge, Pune for the offence punishable under Sections 302 and 323 read with Section

34 of the IPC. The appellants herein are original accused Nos. 1 and 3 resply. The

original accused No. 2 and 4 resply were acquitted by the Trial Court.

CASE OF THE PROSECUTION

3. The case of the prosecution as unfolded in the evidence of the prosecution

witnesses and also detailed in the first information report is that on the fateful day of

the incident i.e., on 01.04.2001 at about 11.15 p.m., the first informant PW 1, namely,

Asgar Shaikh (Ex. 7) was chit chatting with his friend Abbas Baig (deceased). At that

time, while the appellant No. 2 herein accompanied by few other individuals was

passing by the side, he was accosted by the deceased Abbas. There was some verbal

altercation between the two. After sometime the appellant No. 2 herein accompanied

by the appellant No. 1 herein and the other two co-accused who came to be acquitted

by the Trial Court reached at the spot. A fight ensued in which, the first informant PW

1 Asgar Shaikh was assaulted on his head by means of weapons like sickle and sword.

This assault on the head of the first informant PW 1 is alleged to have been laid by the

appellant No. 1 herein. The first informant suffered a bleeding injury on his head.

Thereafter, a severe assault was laid on the deceased Abbas Baig by means of a sickle

and sword. It is the case of the prosecution that the appellants herein had dangerous

weapons in their hands in the form of a sword and sickle. The deceased Abbas Baig

suffered serious injuries on his body and ultimately succumbed to such injuries.

4. A first information report was lodged on 2.04.2002 by the PW 1 at around 2

a.m. i.e., just within three hours from the time of the incident. The deceased Abbas

Baig having suffered serious bleeding injuries was taken to the hospital in a rickshaw

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owned by the PW 3, namely, Nasir Khan. The deceased upon reaching the hospital

was declared dead.

5. The FIR Exh. 8 lodged by the PW 1 viz. Asgar Shaikh reads thus:-

“I Ajgar Ibrahim Shaikh aged 22 years, Occupation Turner, residing at 54

BP/251 Lohia Nagar, slum area, Pune. I hereby lodge my complaint as

under:

I am residing at the aforementioned address with my mother, father and

sister. I have been working as a turner past three years in the workshop

owned by Abdul Wahab Shaikh situated at Guruwar Peth, Pune in the name

of New Quality Instruments. Yesterday, i.e., on 1.4.2001, I left my house at

9.00 AM for reporting at the workshop. I worked out at the workshop for

whole day and came back at 7.00 PM. I had my dinner at 11.15 PM in the

night and thereafter went outside as I wanted to have paanmasala. When I

reached somewhere near the shop by name Shri Sai Car Auto Consultant, I

met my friend Abbas Baig (deceased) also a resident of Lohianagar, slum

area, Pune. I started cheating with my friend Abbas. At that point of time,

Santosh Khalde and one another boy were passing through the place where,

we were talking. My friend Abbas saw Santosh and told me that “Itni Raat

Ko Maa Chudane Ke Liye Kaha Ja Raha Hai? Tumhara plan kya hai”.

Santosh replied that he had no plan and was proceeding to answer nature’s

call. At around 11.45 PM, four persons, namely, Balu Khalde, Ramesh

Mohite, Raju Mohite and Santosh Khalde assembled and started talking with

us. At that time, Balu khale told him “Bajula Haat”. Abbas Baig told Balu

Khalde that “Usse kya baat kar raha hai?” talk to me. At that time, I told

them “Kaiko Lafda Kar Rahe Ho?” Balu Khalde took out a weapon like

Koita which he had hidden in his waist and hit me on my head. Ramesh

Mohite caught hold of Abbas Baig and Balu Khalde stabbed him with a small

bladed sword. We started shouting. One Firoz Babumian Shaikh residing in

the neighbourhood came out of his house and told Raju Mohite “What are

you fighting about?” Santosh Khalde abused Firoz Babumian. When people

started assembling at the place of the occurrence, all the four assailants ran

away. Abbas Baig was seriously injured and he fell down. He had suffered

injuries on his left paw, wrist, right hand and right shoulder. He was bleeding

profusely. I picked up Abbas in an injured condition and took him nearby

chokadi. At that point of time, one Nasir a rickshaw driver known to us also

living in the same slum came over there. I requested Nasir to keep a watch

on Abbas Baig as he would reach and call the police. Accordingly, I

alongwith Firoz Shaikh went to Lohianagar Police Station and informed

about the incidence to the police. The police arrived and immediately shifted

Abbas Baig to the nearby Sassoon Hospital. However, Abbas Baig was

declared dead by the doctor at the hospital.”

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6. The inquest panchnama of the dead body of the deceased was drawn at the

hospital itself. As a part of the investigation, the scene of offence panchnama was

drawn. The clothes of the deceased stained with blood were collected and sent to the

forensic science laboratory for chemical analysis. All the four accused were arrested

by the police. The clothes of all the accused were collected and sent to the FSL. The

dead body of the deceased was sent for post mortem. While the appellants herein were

in police custody, they are said to have made statements on their own free will and

volition that they would show the place where they had concealed the weapons of

offence i.e. the sickle and the sword. Ultimately, the discovery panchnamas were

drawn in presence of the panch witnesses. The statements of various other witnesses

were recorded by the police.

7. At the end of the investigation chargesheet was filed for the offence punishable

under Section 302 read with Section 34 of the IPC, in the Court of the learned

Magistrate. The learned Magistrate committed the case to the Court of Sessions as the

offence was exclusively triable by the Court of Sessions.

8. The Trial Court framed the following charge vide Exh.8. The translated version

of the charges framed against the appellants are quoted below:

“1. That you accused Nos. 1 to 4, on 01.04.2001, at about 11.45 P.M. or

thereabout, at Plot No. 54/BP, Lohiyanagar, Pune, in front of shop named

as Shri Sai Car Auto Consultant, either individually or in furtherance of

your common intention, did commit murder, by intentionally or knowingly

causing the death of Abbas Sanaulla Beg, and thereby committed an

offence punishable either under Section 302 of the Indian Penal Code

simpliciter or Section 302 read with 34 of the Indian Penal Code, and

within my cognizance.

AND

2) That you accused Nos. 1 to 4, on the aforesaid day, date, time and

place and during the course of the same transaction, either individually

or in furtherance of your common intention, voluntarily caused hurt to

complainant Ajgar Ibrahim Shaikh, and thereby committed an offence

punishable under Section 323 of the Indian Penal Code simplicetor or

Section 323 read with Section 34 of the Indian Penal Code, and within my

cognizance. ”

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AND

3) That you accused Nos. 1 to 4, on the aforesaid day, date, time and

place and during the course of the same transaction, either individually

or in furtherance of your common intention, voluntarily caused hurt to

complainant Ajgar Ibrahim Shaikh, by means of sickle and sword, which

if used as a weapon of offence, would likely to cause death of said

complainant, and thereby committed an offence punishable under Section

324 of the Indian Penal Code simplicetor or Section 324 read with Section

34 of the Indian Penal Code, and within my cognizance.

AND

4) That you accused Nos. 1 to 4, on the aforesaid day, date, time and

place and during the course of the same transaction, either individually

or in furtherance of your common intention, intentionally insulted and

thereby gave protection to the complainant Ajgar Ibrahim Shaikh,

intending or knowing it to be likely that such provocation will cause the

said complainant to commit breach of public peace, and thereby

committed an offence punishable under Section 504 of the Indian Penal

Code simplicetor or Section 504 read with Section 34 of the Indian Penal

Code and within my cognizance.

AND I hereby direct that you be tried by me on the aforesaid charges.”

9. The prosecution adduced the following oral evidence in support of its case:

(1) PW 1 Asgar Shaikh - Ex. 7

(2) PW 2 Firoj Shaikh- Ex. 9

(3) PW 3 Nasir Khan - Ex. 10

(4) PW 4 Aslam Khan- Ex. 11

(5) PW 5 Mahesh Kumar Jain- Ex. 14

(6) PW 6 Suhas Kalase- Ex. 15

(7) PW 7 Dr. Shrikant Chandekar- Ex. 18

(8) PW 8 Mubarak Baig- Ex. 21

(9) PW 9 Mahendr Arokade- Ex. 22

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(10) PW 10 Baba Shaikh- Ex. 38

10. The following pieces of documentary evidence were adduced by the

prosecution:

(i) Inquest Panchnama

(ii) Post mortem report

(iii) Spot Panchnama (scene of offence panchnama)

(iv) Arrest and Personal search

(v) Seizure of clothes of complainant

(vi) Seizure of clothes of deceased

11. After completion of the oral as well as the documentary evidence of the

prosecution, the statements of the appellants herein under Section 313 of the Code, of

Criminal Procedure (for short, ‘the CrPC’) were recorded in which the appellants

herein stated that the complaint was a false one. They further stated in their written

statement under Section 313 of the CrPC that they were workers of one Hindi Ekta

Mandal. On 09.03.2001, tension mounted between the Hindus and the Muslims as

some people from the minority community damaged the idol of Ganesh. A report with

the police was lodged in that regard. In such circumstances, the witnesses deposed

falsely against them.

12. At the conclusion of the trial, the learned Trial Judge convicted the appellants

herein for the offence punishable under Section 302 read with Section 34 IPC and

sentenced both as stated hereinbefore. The original accused Nos. 2 and 4 were ordered

to be acquitted of all the charges.

13. In such circumstances referred to above, the two appellants are here before this

Court with the present appeal.

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SUBMISSIONS ON BEHAL F FOF THE APPELLANTS

14. The learned counsel appearing for the appellants vehemently submitted that the

High Court committed a serious error in dismissing the appeal filed by the two

appellants herein against the judgment and order of conviction passed by the Trial

Court. According to the learned counsel, the High Court failed to appreciate that no

reliance could have been placed on the evidence of the so called eyewitnesses.

According to the learned counsel, the ocular version on record does not inspire any

confidence and deserves to be discarded.

15. The learned counsel further submitted that the very presence of the first

informant PW 1 Asgar Shaikh is doubtful because although he claims to have suffered

an injury on his head during the assault yet no medical treatment was taken by him

and there is no medical certificate on record that he had suffered any injury on his

head. In such circumstances, according to the learned counsel, the entire first

information report, at the instance of the PW 1 is unreliable.

16. The learned counsel further submitted that the discovery of the weapons under

Section 27 of the Indian Evidence Act, 1872 (for short, ‘the Act 1872’) could also not

have been relied upon as the panch witnesses failed to support the case of the

prosecution or rather failed to prove the contents of the panchnama.

17. In the last, the learned counsel appearing for the appellants vehemently

submitted that even if the entire case of the prosecution is believed to be true, the case

at the most would be one of culpable homicide not amounting to murder. According

to the learned counsel, the case falls within the purview of Exception 4 to Section 300

of the IPC.

18. In such circumstances referred to above, the learned counsel prays that there

being merit in his appeal, the same may be allowed and the appellants be acquitted of

all the charges. In the alternative, he prayed that the conviction may be altered from

one under Section 302 of the IPC to Section 304 Part 1 of the IPC by giving benefit of

Exception 4 to the Section 300 of the IPC.

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SUBMISSIONS ON BEHALF OF THE STATE

19. Mr. Abhikalp Pratap Singh, the learned counsel appearing for the State of

Maharashtra, on the other hand has vehemently opposed this appeal submitting that

no error not to speak of any error of law can be said to have been committed by the

High Court in dismissing the appeal thereby affirming the order of conviction and the

consequence sentence passed by the Trial Court.

20. He would submit that there is no good reason to doubt the ocular version of the

eyewitnesses, which has come on record. He further submitted that was no good

reason for the eyewitnesses to falsely implicate the appellants herein in the alleged

crime.

21. The learned counsel submitted that no case is made out to bring the case within

the ambit of Exception 4 to Section 300 of the IPC. He vehemently submitted that as

many as nine injuries were inflicted on the body of the deceased by dangerous

weapons like sickle and sword. The appellants herein can be said to have taken undue

advantage and acted in a cruel manner.

22. In the last, the learned counsel appearing for the State submitted that the

discovery of the weapons points towards the conduct of the accused persons and such

conduct is a relevant fact under Section 8 of the Act 1872 which taken together with

the ocular version supports the case of the prosecution in toto.

23. In such circumstances referred to above, the learned counsel appearing for the

State prayed that there being no merit in the present appeal, the same may be

dismissed.

ANALYSIS

24. Having heard the learned counsel appearing for the parties and having gone

through the materials on record, the only question that falls for our consideration is

whether the High Court committed any error in passing the impugned judgment and

order.

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APPRECIATION OF ORAL EVIDENCE

25. The appreciation of ocular evidence is a hard task. There is no fixed or

straight-jacket formula for appreciation of the ocular evidence. The judicially

evolved principles for appreciation of ocular evidence in a criminal case can be

enumerated as under:

“I. While appreciating the evidence of a witness, the approach must be

whether the evidence of the witness read as a whole appears to have a ring

of truth. Once that impression is formed, it is undoubtedly necessary for the

Court to scrutinize the evidence more particularly keeping in view the

deficiencies, drawbacks and infirmities pointed out in the evidence as a

whole and evaluate them to find out whether it is against the general tenor

of the evidence given by the witness and whether the earlier evaluation of

the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity

to form the opinion about the general tenor of evidence given by the

witness, the appellate court which had not this benefit will have to attach

due weight to the appreciation of evidence by the trial court and unless there

are reasons weighty and formidable it would not be proper to reject the

evidence on the ground of minor variations or infirmities in the matter of

trivial details.

III. When eye-witness is examined at length it is quite possible for him to

make some discrepancies. But courts should bear in mind that it is only

when discrepancies in the evidence of a witness are so incompatible with

the credibility of his version that the court is justified in jettisoning his

evidence.

IV. Minor discrepancies on trivial matters not touching the core of the case,

hyper technical approach by taking sentences torn out of context here or

there from the evidence, attaching importance to some technical error

committed by the investigating officer not going to the root of the matter

would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the

narration of an incident (either as between the evidence of two witnesses or

as between two statements of the same witness) is an unrealistic approach

for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape is

replayed on the mental screen.

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VII. Ordinarily it so happens that a witness is overtaken by events. The

witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties therefore cannot be expected to be

attuned to absorb the details.

VIII. The powers of observation differ from person to person. What one

may notice, another may not. An object or movement might emboss its

image on one person's mind whereas it might go unnoticed on the part of

another.

IX. By and large people cannot accurately recall a conversation and

reproduce the very words used by them or heard by them. They can only

recall the main purport of the conversation. It is unrealistic to expect a

witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an

occurrence, usually, people make their estimates by guess work on the spur

of the moment at the time of interrogation. And one cannot expect people

to make very precise or reliable estimates in such matters. Again, it depends

on the time-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the

sequence of events which take place in rapid succession or in a short time

span. A witness is liable to get confused, or mixed up when interrogated

later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court

atmosphere and the piercing cross examination by counsel and out of

nervousness mix up facts, get confused regarding sequence of events, or fill

up details from imagination on the spur of the moment. The sub-conscious

mind of the witness sometimes so operates on account of the fear of looking

foolish or being disbelieved though the witness is giving a truthful and

honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence

need not necessarily be sufficient to amount to contradiction. Unless the

former statement has the potency to discredit the later statement, even if the

later statement is at variance with the former to some extent it would not be

helpful to contradict that witness.”

[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ

1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC

3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]

26. When the evidence of an injured eye-witness is to be appreciated, the under-

noted legal principles enunciated by the Courts are required to be kept in mind:

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(a) The presence of an injured eye-witness at the time and place of the

occurrence cannot be doubted unless there are material contradictions in his

deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed

that an injured witness would not allow the real culprits to escape and

falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless

compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some

embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence

of an injured witness, then such contradiction, exaggeration or

embellishment should be discarded from the evidence of injured, but not

the whole evidence.

(f) The broad substratum of the prosecution version must be taken into

consideration and discrepancies which normally creep due to loss of

memory with passage of time should be discarded.

27. In assessing the value of the evidence of the eyewitnesses, two principal

considerations are whether, in the circumstances of the case, it is possible to believe

their presence at the scene of occurrence or in such situations as would make it

possible for them to witness the facts deposed to by them and secondly, whether there

is anything inherently improbable or unreliable in their evidence. In respect of both

these considerations, circumstances either elicited from those witnesses themselves or

established by other evidence tending to improbabilise their presence or to discredit

the veracity of their statements, will have a bearing upon the value which a Court

would attach to their evidence. Although in cases where the plea of the accused is a

mere denial, the evidence of the prosecution witnesses has to be examined on its own

merits, where the accused raise a definite plea or put forward a positive case which is

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inconsistent with that of the prosecution, the nature of such plea or case and the

probabilities in respect of it will also have to be taken into account while assessing the

value of the prosecution evidence.

28. Keeping the aforesaid principles of law in mind, we looked into the oral

evidence of all the three important witnesses i.e., PW 1 Asgar Shaikh (Exh. 7), PW 2

Firoz Babumiyan Shaikh (Exh. 9) and PW 3 Nasir Khan (Exh. 10). The oral evidence

of all the three eyewitnesses is consistent and there is no good reason for us to

disbelieve the ocular version as narrated by the three eyewitnesses. The Trial Court as

well as the High Court looked into the oral evidence of all the three eyewitnesses

referred to above closely and have recorded a concurrent finding that they are reliable

witnesses.

29. The High Court in its impugned judgment observed in paras 9 and 10 resply as

under:

“9. First, it is argued on behalf of the Appellants the learned Counsel

that the substantive evidence of P.W. Nos. 1 and 2, alleged eyewitnesses

cannot be taken as trustworthy, in as much as they are interested and

related witnesses to the deceased Abbas Baig. Secondly, it is argued that

there was no immediate disclosure of the names of the accused persons

when the injured Abbas was brought to Lohiyanagar Police Chowki and

when said Abbas and both the injured P.W. Nos. 1 and 2 were sent to

Sasoon Hospital for medical treatment no history of assault was given.

Thirdly, it is argued that P.W. 1, complainant had improved on his story

by mentioning that Abbas had sustained injuries on his head and it was

not so mentioned by him while giving his complaint. Fourthly, it is

argued that the main vital injury was in the normal course of events,

sufficient to cause the death of Abbas is injury No.9 as per the Post

Mortem report was attributed to only accused No.3 i.e. Appellant No.2

as it was made by use of a sword and as such it was not the injury inflicted

by Appellant No.1 accused. By canvassing such last argument, it

emphasized on behalf of the Appellant that the death of Abbas was

caused due to the injury at serial no. 9 in the Post Mortem report and as

such the Appellant accused No.1 could not be held responsible for the

death of Abbas, further argued.

10. While dealing with such arguments, on behalf of the Appellants as

mentioned above, we have carefully gone through the substantive

evidence of P.W.1 and 2 and also of the incidental witness, corroborating

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the major part of the events i.e. P.W.No.3 and it must be said that

immediately after reaching Lohianagar Police Chowki a complaint was

lodged by P.W.1 and by that time said Abbas was also brought to the

Police Chowki and was subsequently referred to Sasoon Hospital for

treatment, however, declared, dead on admission. It is also in the

substantive evidence of P.W.1 that he and P.W.2 attended the Sasoon

Hospital along with police yadi for getting treatment, it is a factual

position that there is no medical certificate brought on record by the

prosecution regarding injury sustained by P.W. Nos. 1 and 2 and as such

factual position prompted the Sessions Court to hold that there was no

charge established for the offence punishable under Section 324 read

with Section 34 of Indian Penal Code for the assault on the witness No.

1, the complainant. It is also observed that the death of Abbas was due

to multiple injuries though as opined by the Medical Officer, P.W. No.7,

the main injury which could have in the normal course caused death of

Abbas, is injury No.9 mentioned in the Post Mortem report. In other

words, it must be said that all the injuries sustained by Abbas were the

cause of his resultant death and that a role was attributed to the accused

Appellants using the respective weapons i.e. Article No.16 sickle and

Article No. 17 a sword.”

30. In the exercise of the power under Article 136 of the Constitution of India, this

Court, normally would not interfere with the concurrent findings of fact, except in

very special circumstances or in the case of a gross error committed by the courts

below. Only where the High Court ignores or overlooks “crying circumstances” and

“proven facts” or “violates and misapplies well established principles of criminal

jurisprudence” or refuses to give benefit of doubt to the accused persons, etc., would

this Court step in to correct the legally erroneous decisions. We are also not to interfere

only for the reason that we may arrive at a different conclusion, unless, of course, there

are compelling circumstances to tinker with conclusions drawn and that the accused

were innocent/guilty. Undoubtedly, there are limitations in interfering with the

findings of conviction, concurrent in nature.

31. In the course of hearing of this appeal, we also noticed something very

important, going to the root of the matter.

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32. We noticed that in the cross-examination of the original first informant, PW 1

Asgar Shaikh (Exh.7), few suggestions were put to him by the defence counsel. We

quote the relevant part of the cross-examination of the first informant:

“The attack on us was sudden. The first blow was hit on my head. I was

assaulted severely on the head. Due to assault, I suffered a bleeding injury. It

is not true that I felt giddy due to assault. Yes I however suffered pain. At that

time, I did not feel that I should save my life. I did not feel that I should run

away or I should try to hide myself. I went towards the side of Lohiya Nagar

Police Chowkey. I did feel that I was being assaulted without any reason. Abbas

was screaming while he was being assaulted. …”

33. We are of the view from the aforesaid that the suggestions put by the defence

counsel in the cross-examination of the eyewitnesses establishes the presence of PW

1 Asgar Shaikh at the scene of offence and the factum of assault could also be said to

have been admitted. The reply to the suggestions answers the submission canvassed

by the learned counsel for the appellants that PW1 Asgar Shaikh should not be

believed or relied upon as there is nothing on record to indicate that he was an injured

eyewitness. The defence could be said to have admitted the presence of PW Asgar

Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was

brought to the notice of the defence counsel, he submitted that a suggestion put by

defence counsel to a witness in his cross-examination has no evidentiary value and

even if the same is incriminating in any manner would not bind the accused as the

defence counsel has no implied authority to admit the guilt of the facts incriminating

the accused.

34. According to the learned counsel such suggestions could be a part of the

defence strategy to impeach the credibility of the witness. The proof of guilt required

of the prosecution does not depend on the satisfaction made to a witness.

35. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri. LJ

4076, a three Judge Bench of this Court was dealing with an appeal against the order

passed by the Designated Court, Guwahati, in TADA Sessions case wherein the

appellant was convicted under Section 365 of the IPC read with Section 3(1) and 3(5)

of the Terrorists and Disruptive Activities (Prevention) Act, 1987.

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36. In the aforesaid case, this Court, while considering the evidence on record took

note of a suggestion which was put to one of the witnesses and considering the reply

given by the witness to the suggestion put by the accused, arrived at the conclusion

that the presence of the accused was admitted. We quote with profit the following

observations made by this Court in paragraphs 15, 16 and 17 resply as under:

“15. The witness further stated that during the assault, the assailant

accused him of giving information to the army about the United Liberation

Front of Assam (ULFA). He further stated that on the third night he was

carried away blind-folded on a bicycle to a different place and when his

eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-

2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather,

which is about 6-7 kms. away from his village Sakrahi. The witness

identified the appellant-Tarun Bora and stated that it is he who took him in

an ambassador car from the residence of Nandeswar Bora on the date of

the incident.

16. In cross-examination the witness stated as under: "Accused-Tarun Bora

did not blind my eyes nor he assaulted me."

17. This part of cross-examination is suggestive of the presence of accused-

Tarun Bora in the whole episode. This will clearly suggest the presence of

the accused-Tarun Bora as admitted. The only denial is the accused did not

participate in blind-folding the eyes of the witness nor assaulted him.”

37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC

34, this Court was dealing with an appeal against the judgment of the High Court

affirming the order of the Sessions Judge whereby the appellant and three other

persons were convicted under Section 302 read with Section 34 of the IPC. While re-

appreciating the evidence on record, this Court noticed that in the cross-examination

of the PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt

worn by one of the accused persons at the time of the incident. This Court taking into

consideration the nature of the suggestion put by the defence and the reply arrived at

the conclusion that the presence of the accused namely Dharam Vir was established

on the spot at the time of occurrence. We quote the following observations made by

this Court in paragraphs 8 and 9 resply as under:

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“8. PW 3, Bhagat Singh, stated in his examination-in-chief that he had

identified the accused at the time of occurrence. But curiously enough, he

was not cross-examined as to how and in what manner he could identify

the accused, as pointed out by the learned Sessions Judge. No suggestion

was also given to him that the place was dark and that it was not possible

to identify the assailants of the deceased.

9. In his cross-examination, PW 4, Sube Singh, stated that the accused

Dharam Vir, was wearing a shirt of white colour. It was suggested to him

on behalf of the accused that Dharam Vir was wearing a shirt of cream

colour. In answer to that suggestion, PW 4 said: “It is not correct that

Dharam Vir accused was wearing a shirt of cream colour and not a white

colour at that time.” The learned Sessions Judge has rightly observed that

the above suggestion at least proves the presence of accused Dharam Vir,

on the spot at the time of occurrence.”

38. Thus, from the above it is evident that the suggestion made by the defence

counsel to a witness in the cross-examination if found to be incriminating in nature in

any manner would definitely bind the accused and the accused cannot get away on the

plea that his counsel had no implied authority to make suggestions in the nature of

admissions against his client.

39. Any concession or admission of a fact by a defence counsel would definitely

be binding on his client, except the concession on the point of law. As a legal

proposition we cannot agree with the submission canvassed on behalf of the appellants

that an answer by a witness to a suggestion made by the defence counsel in the cross-

examination does not deserve any value or utility if it incriminates the accused in any

manner.

40. It is a cardinal principle of criminal jurisprudence that the initial burden to

establish the case against the accused beyond reasonable doubt rests on the

prosecution. It is also an elementary principle of law that the prosecution has to prove

its case on its own legs and cannot derive advantage or benefit from the weakness of

the defence. We are not suggesting for a moment that if prosecution is unable to prove

its case on its own legs then the Court can still convict an accused on the strength of

the evidence in the form of reply to the suggestions made by the defence counsel to a

17

witness. Take for instance, in the present case we have reached to the conclusion that

the evidence of the three eyewitnesses inspires confidence and there is nothing in their

evidence on the basis of which it could be said that they are unreliable witnesses.

Having reached to such a conclusion, in our opinion, to fortify our view we can

definitely look into the suggestions made by the defence counsel to the eyewitnesses,

the reply to those establishing the presence of the accused persons as well as the

eyewitnesses in the night hours. To put it in other words, suggestions by itself are not

sufficient to hold the accused guilty if they are incriminating in any manner or are in

the form of admission in the absence of any other reliable evidence on record. It is true

that a suggestion has no evidentiary value but this proposition of law would not hold

good at all times and in a given case during the course of cross-examination the

defence counsel may put such a suggestion the answer to which may directly go

against the accused and this is exactly what has happened in the present case.

41. The principle of law that in a criminal case, a lawyer has no implied authority

to make admissions against his client during the progress of the trial would hold good

only in cases where dispensation of proof by the prosecution is not permissible in law.

For example, it is obligatory on the part of the prosecution to prove the post mortem

report by examining the doctor. The accused cannot admit the contents of the post

mortem report thereby absolving the prosecution from its duty to prove the contents

of the same in accordance with law by examining the doctor. This is so because if the

evidence per se is inadmissible in law then a defence counsel has no authority to make

it admissible with his consent.

42. Therefore, we are of the opinion that suggestions made to the witness by the

defence counsel and the reply to such suggestions would definitely form part of the

evidence and can be relied upon by the Court along with other evidence on record to

determine the guilt of the accused.

43. The main object of cross-examination is to find out the truth on record and to

help the Court in knowing the truth of the case. It is a matter of common experience

that many a times the defence lawyers themselves get the discrepancies clarified

18

arising during the cross-examination in one paragraph and getting themselves

contradicted in the other paragraph. The line of cross-examination is always on the

basis of the defence which the counsel would keep in mind to defend the accused. At

this stage, we may quote with profit the observations made by a Division Bench of the

Madhya Pradesh High Court in the case of Govind s/o Soneram v. State of M.P.

reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:

“27. The main object of cross-examination is to find out the truth and

detection of falsehood in human testimony. It is designed either to destroy

or weaken the force of evidence a witness has already given in person or

elicit something in favour of the party which he has not stated or to

discredit him by showing from his past history and present demeanour

that he is unworthy of credit. It should be remembered that cross-

examination is a duty, a lawyer owes to his clients and is not a matter of

great personal glory and fame. It should always be remembered that

justice must not be defeated by improper cross-examination. A lawyer

owes a duty to himself that it is the most difficult art. However, he may

fail in the result but fairness is one of the great elements of advocacy.

Talents and genius are not aimed at self-glorification but it should be to

establish truth, to detect falsehood, to uphold right and just and to expose

wrongdoings of a dishonest witness. It is the most efficacious test to

discover the truth. Cross-examination exposes bias, detects falsehood

and shows mental and moral condition of the witnesses and whether a

witness is actuated by proper motive or whether he is actuated by enmity

towards his adversaries. Cross-examination is commonly esteemed the

severest test of an advocate's skill and perhaps it demands beyond any

other of his duties exercise of his ingenuity. There is a great difficulty in

conducting cross-examination with creditable skill. It is undoubtedly a

great intellectual effort. Sometimes cross-examination assumes

unnecessary length, the Court has power to control the cross-

examination in such cases. (See Wrottescey on cross-examination of

witnesses). The Court must also ensure that cross-examination is not

made a means of harassment or causing humiliation to the victim of

crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”

44. During the course of cross-examination with a view to discredit the witness or

to establish the defence on preponderance of probabilities suggestions are hurled on

the witness but if such suggestions, the answer to those incriminate the accused in any

19

manner then the same would definitely be binding and could be taken into

consideration along with other evidence on record in support of the same.

45. However, it would all depend upon the nature of the suggestions and with what

idea in mind such suggestions are made to the witness. Take for instance in case of a

charge of rape under Section 376 of the Indian Penal Code, the statement of the

accused contained plain denial and a plea of false implication, a subsequent suggestion

by the defence lawyer to the prosecutrix about consent on her part would not, by itself,

amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible

for the accused to take more than one defence. In such type of cases a suggestion

thrown by the defence counsel to a prosecution witness would not amount to an

admission on the part of the accused. At the same time, if the defence in the cross

examination of the prosecutrix, with a view to support their alternative case of consent

procure answers to the questions in the form of suggestions implicating the accused

for the offence of rape then such suggestions would definitely lend assurance to the

prosecution case and the Court would be well justified in considering the same. We

may give one more example of a case where the accused would plead right of a private

defence. Such a defence is always available to the accused but although if such a

defence is not taken specifically during the course of trial yet if the evidence on record

suggests that the accused had inflicted injuries on the deceased in exercise of his right

of private defence then the Court can definitely take into consideration such defence

in determining the guilt of the accused. However, if a specific question is put to a

witness by way of a suggestion indicative of exercise of right of private defence then

the Court would well be justified in taking into consideration such suggestion and if

the presence of the accused is established the same would definitely be admissible in

evidence.

PRINCIPLE OF RES GESTAE

46. We have also taken notice of one another aspect of the matter emerging from

the evidence on record. PW 3 Nasir Rajjak Khan in his oral testimony (Exh. 10) has

20

deposed that at around 11.30 pm in the night, he saw 10-15 boys quarrelling with each

other in front of a shop by name “Sai Car Auto Consultant”. He has further deposed

that at that time PW 1 Asgar Shaikh came and conveyed to him that he had suffered

injuries on his head and hands. Asgar Shaikh also informed Nasir that he along with

Firoz (PW 2) was going to the police station. Asgar further informed Nasir that Abbas

Baig was seriously injured. PW 3 Nasir, on hearing the aforesaid from Asgar, reached

the spot where Abbas Baig (deceased) was lying in an injured condition. It is pertinent

to note that in the cross-examination of the PW 3 Nasir a suggestion was put to him

that he had inquired with PW 1 Asgar Shaikh as to what had happened and Asgar

Shaikh in turn narrated the incident to Nasir. This suggestion put by the defence

counsel to the PW 3 Nasir was answered in the affirmative. This part of the evidence

of the PW 3 Nasir is corroborated by the evidence of the PW 1 Asgar Shaikh.

47. The reason for referring to the aforesaid a piece of evidence is that the PW 3

Nasir Rajjak Khan (Exh. 10) could be termed as a res gestae witness. This principle

of res gestae is embodied in Section 6 of the Act 1872:

“6. Relevancy of facts forming part of same transaction.—Facts

which, though not in issue, are so connected with a fact in issue as to

form part of the same transaction, are relevant, whether they occurred

at the same time and place or at different times and place.”

48. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, this Court

noticed the position of law with regard to Sections 6 & 7 resply of the Act 1872 thus:—

“6. Section 6 of the Evidence Act is an exception to the general rule

whereunder the hearsay evidence becomes admissible. But for bringing

such hearsay evidence within the provisions of Section 6, what is

required to be established is that it must be almost contemporaneous with

the acts and there should not be an interval which would allow

fabrication. The statements sought to be admitted, therefore, as forming

part of res gestae, must have been made contemporaneously with the acts

or immediately thereafter. The aforesaid rule as it is stated in Wigmore's

Evidence Act reads thus:—

“Under the present exception [to hearsay] an utterance is by hypothesis,

offered as an assertion to evidence the fact asserted (for example that a

21

car-brake was set or not set), and the only condition is that it shall have

been made spontaneously, i.e. as the natural effusion of a state of

excitement. Now this state of excitement may well continue to exist after

the exciting fact has ended. The declaration, therefore, may be admissible

even though subsequent to the occurrence, provided, it is near enough in

time to allow the assumption that the exciting influence continued.”

7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating

to applicability of Section 6 of the Act 1872 thus:—

“1. The declarations (oral or written) must relate to the act which is in

issue or relevant thereto; they are not admissible merely because they

accompany an act. Moreover the declarations must relate to and

explain the fact they accompany, and not independent facts previous

or subsequent thereto unless such facts are part of a transaction which

is continuous.

2. The declarations must be substantially contemporaneous with the fact

and not merely the narrative of a past.

3. The declaration and the act may be by the same person, or they may be

by different persons, e.g., the declarations of the victim, assailant and

bystanders. In conspiracy, riot, the declarations of all concerned in the

common object are admissible.

4. Though admissible to explain or corroborate, or to understand the

significance of the act, declarations are not evidence of the truth of the

matters stated.””

49. The rule embodied in Section 6 is usually known as the rule of res gestae. What

it means is that a fact which, though not in issue, is so connected with the fact in issue

“as to form part of the same transaction” becomes relevant by itself. To form particular

statement as part of the same transaction utterances must be simultaneous with the

incident or substantial contemporaneous that is made either during or immediately

before or after its occurrence.

50. Sections 6 and 7 resply of the Act 1872 in the facts and circumstances of the

case, in so far as, the admissibility of a statement of the PW 3 Nasir Rajjak Khan

coming to know about incident, immediately from the PW 1 Asgar Shaikh that Abbas

Baig had been seriously assaulted and that Asgar Shaikh had also suffered injuries and

admitted by the PW 1 Asgar Shaikh in his evidence would be attracted with all its

rigour.

22

EXCEPTION 4 TO SECTION 300 OF THE IPC

51. We shall now deal with the submission as regards the applicability of the fourth

Exception to Section 300 of the IPC. However, before we proceed to deal with the

submission, it would be appropriate to look into the oral evidence of PW 7, Dr.

Shrikant Suresh Chandekar, Medical Officer who carried out the post mortem of the

dead body of the deceased and also prepared the post mortem report.

52. The examination-in-chief of PW 7 Dr. Shrikant, Exh. 18, reads thus:

“1. On 02.04.2001 I was on duty when a dead body of Abbas Sanaulla

Baig was brought to mortuary by Khadak police alongwith inquest

panchnama. Accordingly, I carried out the postmortem examination

between 6.30 a.m. to 7.30 a.m. on the same day.

2. On examination I noticed following external injuries: -

1) Incised injury-left hand 3 c.m. distal to wrist transverse oblique and

out into total thickness, metacarpus shows clean cut fractures;

2) Incised injury-left wrist medically transverse oblique 4x1 c.m.

underlying ulna shows clean cut fracture involving its total thickness;

3) Linear abrasion-left wrist dorsum 2 c.m. transverse;

4) Incised jury over fight forearm flex or aspect middle third transvers;

3.5 c.m. gaping-tailing medically skin deep;

5) Incised injury over right hand dorsum-transverse oblique mid

proximal region, 2.5 c.m. gaping skin deep;

6) Linear abrasion right and infraclavicular region 4 c.m. oblique.”

7) Linear Abrasion-left mid scapular region vertical oblique-5c.m.

8) Abrasion right shoulder back, 0.5 x 4 c.m. oblique.

9) Stab injury, vertical situated adjacent and below right mid clavicle,

measuring 7.5 c.m. x 0.8 to 2.5 c.m. Lower and of injury with curved

margin, upper and angle clean cut, margins clean cut. Injury opening

in right thoracic cavity.

Corresponding internal injuries:- Chest muscles and pleura shows

corresponding injuries. Right 2

nd

rib partially cut cleanly along its long 3

rd

right rib upper margin shown clean cut. Stab injury involving right 2

nd

intercostal muscles 1 to 1.5 x 3 c.m.

23

Right upper lobe of lung shows incised injuries. Vertical oblique 1.2 c.m.

and 3.5 c.m.

Right middle lobe through and through injury near anterior margin, 1.5

c.m. below tissue-towards hilum, gaping.

Right pulmonary artery and superior vena cava cut partially-lumina

exposed.

Right pleural cavity was full of blood with clots.

In my opinion all above injuries were antemortem and rescent.

During internal examination of head and abdomen I found no any injury,

but the organs were pale. The stomach contains fluid with paste without

any abnormal smell.

I preserved blood for grouping as per police requisition.

In my opinion, Abbas died due to shock and due to stab injuries.

Accordingly I have issued P.M. notes. They are in my handwriting and it

bears my signature. Its contents are correct. It is marked at Exh. 19.

Injury No. 9 alongwith its corresponding internal injuries was sufficient in

the ordinary course to cause death. That injury could be caused by sharp

edged pointed weapons. Injury No. 9 can be caused by the sword Article

No. 17 now shown to me is the same. Injury Nos. 1 and 2 were incised

injuries alongwith underlined fractured bones. Injury Nos. 1 to 8 are

possible by Article No. 16- sickle or Article No. 17 sword, as both are

having sharp edges.

Initially, I had issued the provisional death certificate. The certificate now

shown to me is the same. It bears my signatures its contes are correct. It is

now marked at Exhibit 20.”

53. In order to appreciate the question, it will be profitable to refer to the definition

of murder as provided in Section 300 of the Indian Penal Code which is quoted below:

“300. Murder.—Except in the cases hereinafter excepted, culpable

homicide is murder, if the act by which the death is caused is done with

the intention of causing death, or—

Secondly.—If it is done with the intention of causing such bodily injury as

the offender knows to be likely to cause the death of the person to whom

the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodily injury to any

person and the bodily injury intended to be inflicted is sufficient in the

ordinary course of nature to cause death,—

24

Fourthly.—If the person committing the act knows that it is so imminently

dangerous that it must, in all probability, cause death or such bodily injury

as is likely to cause death, and commits such act without any excuse for

incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A

commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is

likely to cause his death, strikes him with the intention of causing bodily

injury. Z dies in consequence of the blow. A is guilty of murder, although

the blow might not have been sufficient in the ordinary course of nature to

cause the death of a person in a sound state of health. But if A, not knowing

that Z is labouring under any disease, gives him such a blow as would not

in the ordinary course of nature kill a person in a sound state of health,

here A, although he may intend to cause bodily injury, is not guilty of

murder, if he did not intend to cause death, or such bodily injury as in the

ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause

the death of a man in the ordinary course of nature. Z dies in consequence.

Here, A is guilty of murder, although he may not have intended to cause

Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons

and kills one of them. A is guilty of murder, although he may not have had

a premeditated design to kill any particular individual.

Exception 1.—When culpable homicide is not murder.—Culpable

homicide is not murder if the offender, whilst deprived of the power of self-

control by grave and sudden provocation, causes the death of the person

who gave the provocation or causes the death of any other person by

mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the

offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in

obedience to the law, or by a public servant in the lawful exercise of the

powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful

exercise of the right of private defence.

25

Explanation.—Whether the provocation was grave and sudden enough to

prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z,

intentionally kills Y, Z's child. This is murder, in as much as the

provocation was not given by the child, and the death of the child was not

caused by accident or misfortune in doing an act caused by the

provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation,

fires a pistol at Y, neither intending nor knowing himself to be likely to kill

Z, who is near him, but out of sight. A kills Z. Here A has not committed

murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent

passion by the arrest, and kills Z. This is murder, in as much as the

provocation was given by a thing done by a public servant in the exercise

of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not

believe a word of A's deposition, and that A has perjured himself. A is

moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose. Z, in the exercise of the right of private

defence, lays hold of A to prevent him from doing so. A is moved to sudden

and violent passion in consequence, and kills Z. This is murder, in as much

as the provocation was giving by a thing done in the exercise of the right

of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a

bystander, intending to take advantage of B's rage, and to cause him to

kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife.

Here B may have committed only culpable homicide, but A is guilty of

murder.

Exception 2.—Culpable homicide is not murder if the offender, in the

exercise in good faith of the right of private defence of person or property,

exceeds the power given to him by law and causes the death of the person

against whom he is exercising such right of defence without

premeditation, and without any intention of doing more harm than is

necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt

to A. A draws out a pistol. Z persists in the assault. A believing in good

faith that he can by no other means prevent himself from being

26

horsewhipped, shoots Z dead. A has not committed murder, but only

culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender, being a

public servant or aiding a public servant acting for the advancement of

public justice, exceeds the powers given to him by law, and causes death

by doing an act which he, in good faith, believes to be lawful and

necessary for the due discharge of his duty as such public servant and

without ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed without

premeditation in a sudden fight in the heat of passion upon a sudden

quarrel and without the offender having taken undue advantage or acted

in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the

provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose

death is caused, being above the age of eighteen years, suffers death or

takes the risk of death with his own consent.

Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen years of

age to commit suicide. Here, on account of Z's youth, he was incapable of

giving consent to his own death; A has therefore abetted murder.”

54. At this stage, it will also be profitable to refer to the following observations of

this Court in the case of State of Andhra Pradesh v. Rayavarapu Punnayya and

Another reported in (1976) 4 SCC 382 where this Court laid down the distinction

between murder and the culpable homicide not amounting to murder in the following

way:

“12. In the scheme of the Penal Code, “culpable homicide” is genus and

“murder” its specie. All “murder” is “culpable homicide” but not vice-

versa. Speaking generally, “culpable homicide” sans “special

characteristics of murder”, is “culpable homicide not amounting to

murder”. For the purpose of fixing punishment, proportionate to the

gravity of this generic offence, the Code practically recognises three

degrees of culpable homicide. The first is, what may be called, “culpable

homicide of the first degree”. This is the greatest form of culpable

homicide, which is defined in Section 300 as “murder”. The second may

be termed as “culpable homicide of the second degree”. This is

punishable under the first part of Section 304. Then, there is “culpable

homicide of the third degree”. This is the lowest type of culpable homicide

27

and the punishment provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable homicide of this

degree is punishable under the second part of Section 304.

13. The academic distinction between “murder” and “culpable homicide

not amounting to murder” has vexed the courts for more than a century.

The confusion is caused, if courts losing sight of the true scope and

meaning of the terms used by the legislature in these sections, allow

themselves to be drawn into minutiae abstractions. The safest way of

approach to the interpretation and application of these provisions seems

to be to keep in focus the keywords used in the various clauses of Sections

299 and 300. The following comparative table will be helpful in

appreciating the points of distinction between the two offences.

Section 299 Section 300

A person commits culpable

homicide if the act by which the

death is caused is done-

Subject to certain

exceptions culpable

homicide is murder if the

act by which the death

caused is done -

INTENTION

(a) with the intention of casing

death; or

(i) with the intention of

causing death; or

(b) with the intention of causing

such bodily injury as is likely to

cause death; or

(2) with the intention of

causing such bodily

injury as the offender

knows to be likely to

cause the death of the

person to whom the harm

is caused; or

KNOWLEDGE

(c) with the knowledge that the act

is likely to cause death,

(3) with the knowledge that

the act is so imminently

dangerous that it must in

all probability cause death

or such to cause death

bodily injury as is likely

and without any excuse for

incurring the risk of

causing death or such

injury as is mentioned

above.

28

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of

Section 300. The distinguishing feature of the mens rea requisite under

clause (2) is the knowledge possessed by the offender regarding the

particular victim being in such a peculiar condition or state of health that

the internal harm caused to him is likely to be fatal, notwithstanding the

fact that such harm would not in the ordinary way of nature be sufficient

to cause death of a person in normal health or condition. It is noteworthy

that the “intention to cause death” is not an essential requirement of

clause (2). Only the intention of causing the bodily injury coupled with the

offender's knowledge of the likelihood of such injury causing the death of

the particular victim, is sufficient to bring the killing within the ambit of

this clause. This aspect of clause (2) is borne out by Illustration (b)

appended to Section 300.

15. Clause (b) of Section 299 does not postulate any such knowledge on

the part of the offender. Instances of cases falling under clause (2) of

Section 300 can be where the assailant causes death by a fist blow

intentionally given knowing that the victim is suffering from an enlarged

liver, or enlarged spleen or diseased heart and such blow is likely to cause

death of that particular person as a result of the rupture of the liver, or

spleen or the failure of the heart, as the case may be. If the assailant had

no such knowledge about the disease or special frailty of the victim, nor

an intention to cause death or bodily injury sufficient in the ordinary

course of nature to cause death, the offence will not be murder, even if the

injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words “likely to cause

death” occurring in the corresponding clause (b) of Section 299, the

words “sufficient in the ordinary course of nature” have been used.

Obviously, the distinction lies between a bodily injury likely to cause

death and a bodily injury sufficient in the ordinary course of nature to

cause death. The distinction is fine but real, and, if overlooked, may result

in miscarriage of justice. The difference between clause (b) of Section 299

and clause (3) of Section 300 is one of the degree of probability of death

resulting from the intended bodily injury. To put it more broadly, it is the

degree of probability of death which determines whether a culpable

homicide is of the gravest, medium or the lowest degree. The word

“likely” in clause (b) of Section 299 conveys the sense of “probable” as

distinguished from a mere possibility. The words “bodily injury …

sufficient in the ordinary course of nature to cause death” mean that death

will be the “most probable” result of the injury, having regard to the

ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender

intended to cause death, so long as the death ensues from the intentional

bodily injury or injuries sufficient to cause death in the ordinary course of

29

nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR

230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495

: 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the

meaning and scope of clause (3), thus (at p. 1500):

“The prosecution must prove the following facts before it can bring a

case under Section 300, ‘thirdly’. First, it must establish quite objectively,

that a bodily injury is present; secondly the nature of the injury must be

proved. These are purely objective investigations. It must be proved that

there was an intention to inflict that particular injury, that is to say, that

it was not accidental or unintentional or that some other kind of injury

was intended. Once these three elements are proved to be present, the

enquiry proceeds further, and fourthly it must be proved that the injury of

the type just described made up of the three elements set out above was

sufficient to cause death in the ordinary course of nature. This part of the

enquiry is purely objective and inferential and has nothing to do with the

intention of the offender.”

19. Thus according to the rule laid down in Virsa Singh case of even if the

intention of accused was limited to the infliction of a bodily injury

sufficient to cause death in the ordinary course of nature, and did not

extend to the intention of causing death, the offence would be “murder”.

Illustration (c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300 both require

knowledge of the probability of the act causing death. It is not necessary

for the purpose of this case to dilate much on the distinction between these

corresponding clauses. It will be sufficient to say that clause (4) of Section

300 would be applicable where the knowledge of the offender as to the

probability of death of a person or persons in general — as distinguished

from a particular person or persons — being caused from his imminently

dangerous act, approximates to a practical certainty. Such knowledge on

the part of the offender must be of the highest degree of probability, the

act having been committed by the offender without any excuse for

incurring the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever a court is

confronted with the question whether the offence is “murder” or

“culpable homicide not amounting to murder”, on the facts of a case, it

will be convenient for it to approach the problem in three stages. The

question to be considered at the first stage would be, whether the accused

has done an act by doing which he has caused the death of another. Proof

of such causal connection between the act of the accused and the death,

leads to the second stage for considering whether that act of the accused

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amounts to “culpable homicide” as defined in Section 299. If the answer

to this question is prima facie found in the affirmative, the stage for

considering the operation of Section 300 of the Penal Code, is reached.

This is the stage at which the court should determine whether the facts

proved by the prosecution bring the case within the ambit of any of the

four clauses of the definition of “murder” contained in Section 300. If the

answer to this question is in the negative the offence would be “culpable

homicide not amounting to murder”, punishable under the first or

the second part of Section 304, depending, respectively, on whether the

second or the third clause of Section 299 is applicable. If this question is

found in the positive, but the case comes within any of the exceptions

enumerated in Section 300, the offence would still be “culpable homicide

not amounting to murder”, punishable under the first part of Section 304,

of the Penal Code.”

55. Applying the above principles to the case before us we find that there is no

dispute that the death of the deceased occurred due to culpable homicide and not due

to accident or suicide. We, therefore, propose to consider whether the incident comes

within any of the exceptions indicated in Section 300 of the Code.

56. In order to bring the case within fourth exception, the essential requirement as

pointed out by this Court in the case of Parkash Chand v. State of Himachal Pradesh

reported in (2004) 11 SCC 381 is as follows:

“The fourth exception of Section 300 IPC covers acts done in a sudden

fight. The said exception deals with a case of provocation 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

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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 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 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 had 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 a cruel or

unusual manner. The expression “undue advantage” as used in the

provision means “unfair advantage”.” o(Emphasis

supplied)

57. Thus, the sine qua non for the application of an Exception to Section 300

always is that it is a case of murder but the accused claims the benefit of the

Exception to bring it out of that Section and to make it a case of culpable homicide

not amounting to murder. We must, therefore, assume that this would be a case of

murder and it is for the accused to show the applicability of the Exception.

Exception 4 reads as under:-

“Exception 4.—Culpable homicide is not murder if it is committed without

premeditation in a sudden fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue advantage or acted in a cruel

or unusual manner.”

58. A perusal of the provision would reveal that four conditions must be satisfied

to bring the matter within Exception 4:

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(i) it was a sudden fight;

(ii) there was no premeditation;

(iii) the act was done in the heat of passion; and; that (iv) the assailant had

not taken any undue advantage or acted in a cruel manner.

59. On a plain reading of Exception 4, it appears that the help of Exception 4 can

be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c)

without the offenders 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.

60. We have already noticed the extent of injuries suffered by the deceased, as it

appears from the deposition of the PW 7 Dr. Shrikant who carried out the post mortem.

Having regard to the nature of the injuries caused by dangerous weapons like sickle

and sword which, were applied on the vital part of the body, there is no escape from

the conclusion that it is a case of Section 302 of the IPC.

61. It is very difficult for us to accept the submission of the learned counsel

appearing for the appellant that the case would fall within the Exception 4 to Section

300 of the IPC and such benefit be extended to the accused. Assuming for the moment

that the incident had occurred in the heat of the moment and fight was also sudden,

we should not overlook the fact that the appellants herein inflicted as many as nine

blows with a dangerous weapon on the deceased who was unarmed and was helpless.

For cases to fall within clause (3) of Section 300 of the IPC, it is not necessary that the

offender intended to cause death, so long as the death ensues from the intentional

bodily injury or injuries sufficient to cause death in the ordinary course of nature.

Rajwant Singh v. State of Kerala reported in AIR 1966 SC 1874 is an apt illustration

of this point.

62. In the overall view of the matter, we are convinced that no case is made out by

the appellants to interfere with the impugned judgment and order of the High Court.

63. In the result, this appeal fails and is hereby dismissed.

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64. The records indicate that both the appellants herein were ordered to be released

on bail pending the final hearing of the present appeal. The appellant No.2 was ordered

to be released on bail vide order dated 01.10.2010 and the appellant No. 1 herein was

ordered to be released on bail vide order dated 04.03.2013. The bail bonds furnished

by them to the satisfaction of the Additional Sessions Judge, Pune in Sessions Case

No. 323 of 2001 stand cancelled. Both the appellants are ordered to surrender before

the Trial Court within a period of two weeks from today.

65. Once the appellants surrender before the Trial Court, they shall be sent to

judicial custody to serve out the sentence as was imposed.

66. Pending applications if any shall stand disposed of.

………………………………………..J.

(SUDHANSHU DHULIA)

………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

MARCH 29, 2023.