GALI VENKAT AIAH v.

STATE OF ANDHRA PRADESH

NOVEMBER 12, 2007

B [DR. ARIJIT PASAYA. T AND P. SATHASIVAM, JJ.j ,

Penal Code, 1860:

ss. 304 (Part I) and 300 Exception 4-Murde~, in the course of C sudden quarrel-Seen by wife and sons of deceased-Conviction uls

302 !PC by courts below-On appeal, held: In view of the fact that the assault was in course of sudde.n quarrel, conviction altered to one

under s. 304 (Part I). , -

s. 300 Exception 4-Applicability of-When-Discussed.

s. JOO-Exception 1 and 4-Distinction between.

Evidence-Related witness-Evidentiary value of-Held: Relationship is not a factor to effect credibility of a witness-However, E in such cases court has to adopt a careful approach and analyse evidence to find out credibility thereof-Criminal Trial.

Words and Phrases- 'Sudden fight' and 'undue advantage'- Meaning of-In the context of s. 300 !PC.

F Appellant-accused was prosecuted for having killed his brother.

Prosecution case was that the accused was having strained relations with the deceased. He assaulted the deceased with a knife, which resulted in his death. The incident was seen by wife of the deceased (PW 1) and his sons (PW s 2 and 3). Trial Court convicted the accused G u/s 302 ralying on the evidence of the eye-witnesses (PWs 1 to 3).

High Court confirmed the conviction.

In appeal to this Court, appellant contended that the eyewitnesses being related, could'not have been relied upon; and that

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GALI VENKA TAIAH v. STATE 1031

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the assault was made in the course of sudden quarrel.

Partly allowing the appeal, the Court

HELD: 1. 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. B -# Foundation has to be laid if plea of false implication is made. In such (· cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. [Para 7] [1034-D, E]

Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; c Guli Chand and Ors. v. State ofRajasthan, [1974] 3 SCC 698; Vadivelu Thevar v. State of ~Madras, AIR (1957) SC 614; Masalti and Ors. v.

State of UP., AIR (1965) SC 202; State of Punjab v. Jagir Singh, AIR

(1973) SC 2407; Lehna v. State of Haryana, [2002] 3 SCC 76; Gangadhar Behera and Ors. v. State of Orissa, [2002] 8 SCC 381; D >-· Babula! Bhagwan Khandare and Anr. v. State of Maharashtra, [2005]

10 SCC 404 and Salim Saheb v. State of MP., [2007] 1 SCC 699, relied on.

2.1. In the factual background of the case, the appropriate conviction would be in terms of Section 304 Part I IPC. It appears E from the evidence of the witnesses that the relationship between the appellant and the deceased was strained and much before th~ assault was made, there was exchange of hot words between the accused and the deceased and they were quarrelling with each other.

[Paras 18 and 14] [1037-G; 1036-C] F r ' ,:" 2.2. 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 of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. [Para 15] (1036-D, E] G

'\'"" ' \ 2.3. 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 H

A killed. [Para 16] [1037-B, C]

2.4. In the present 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 B 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 C 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". [Para 16] [1037-D, E, F]

Sandhya Jadhav v. State of Maharashtra, [2006] 4 SCC 653, D ref erred to.

2.5. Fourth Exception to Section 300 IPC deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both, there is absence of premeditation.

E But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons 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 F provocation. [Para 16) [1036-E, F, GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1533 of 2007.

From the final Judgment and Order dated 31.10.2005 of the High G Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 1105 of2003.

Sidharth Luthra, Sameer Parekh, Lalit Chauhan, Ranjeet Rohtagi and Diksha Rai (for Parekh and Co.,) for the Appellant.

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GALI VENKA T AIAH v. STATE [PASAYA T, J.] 1033

D. Bharathi Reddy for the Respondent.

The Judgment of the 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 appellant for offence punishable under Section 302 of the Indian Penal Code, 1'860 (in short the 'IPC') and sentence of imprisonment for life and fine of Rs.1,000/- with default stipulation in terms of the judgment of leamed 14th Additional Sessions Judge, Nellore.

3. Background facts in a nutshell are as follows:

One Gali Krishnaiah (hereinafter referred to as the 'deceased') Gali Seethaiah and the appellant are brothers and the relation between them was strained. Prior to the incident, the appellant threatened the decea5ed that he would kill him. While so, on 13.09.1999, at about 8.30 a.m. the appellant with an intent to kill the deceased, armed with a knife, went to him, pulled him and stabbed on his left side of the chest and caused vital stab injury, besides causing another cut injury over middle of the left forearm. The knife pierced into the chest of the deceased and struck.

When the sons of the deceased raised hue and cry, the appellant left the spot leaving the knife there itself On the way to the hospital, the deceased succumbed to the injuries sustained by him. Based on the complaint presented by the wife of the deceased (PWl ), a case in Crime No. 161 of 1999 on the file of the II Town (L & 0) P.S., Nellore was registered and the same was investigated into. After completion of investigation, charge sheet was filed. Accused denied the charges and claimed false implication. During trial, twelve witnesses were examined to further prosecution version. Placing reliance on the evidence of eye witnesses PWs

1 to 3, conviction as noted above, was recorded and sentence imposed.

4. Challenging correctness of the judgment rendered by the trial court an appeal was preferred before the High Court. The primary stand was that the witneses PWs 1to3 were the wife and the sons of the deceased and were, therefore, interested witnesses. Further the other witnesses who were independent did not support the prosecution version. In any event

A it was submitted that an offence under Section 302 IPC is not made out.

5. The prosecution supported the judgment of the trial court. The High Court noticed that the evidence of PWs. 1 to 3 is clear, cogent and credible and therefore the conviction cannot be faulted. It was also noticed B that the evidence of PW6 was to the effect that he found the appellant and the deceased struggling with each other and therefore it was of the .tview that the conviction as recorded by the trial court did not suffer from _, any infumity.

6. In support of the appeal learned counsel for the appellant C submitted that the evidence of PWs. I to 3 should not have been relied upon as they were related to the deceased. Further the evidence of PWs. 4 and 6 who did not support the prosecution version in its entirety should not have been acted upon. In any event, it was contented that the assault was made in course of sudden quarrel.

7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In E such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

8. In Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364 it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmit'J, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any

GALIVENKATAIAHv. STATE[PASAYAT, J.j 1035

sweeping generalization. Each case must be judged on its owµ A facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and b~ governed by its own facts."

9. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, [1974] 3 SCC 698 in which Vadivelu Thevar v. State of Madras, AIR (1957) SC 614 was also relied upon.

10. We may also observe that the ground that the witness being

1a close relative and consequently being a partisan witness, should not be C 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 expressd over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: D

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.

If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is gr0tmded on the E reason that they are closely related to the deceased we are unable to concur. This s a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan', AIR (1952) SC 54 at p.59.

We find, however, that it unfortunately still persists, if not in the F judgments of the Courts, at any rate in the arguments of counsel."

11. 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 evidepce G given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ....... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast mle can be laid down as to how much evidence should be appreciated. H

-( -< A Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

12. To the same effect is the decision in State of Punjab v. Jagir

B 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.

13. The above position was highlighted in Babula! Bhagwan Khandare and Anr. V. State of Maharashtra, [2005] 10 sec 404 and c in Salim Saheb v. State of MP., [2007] 1 SCC 699.

14. It appears from the evidence of the witnesses that" the relationship between the appellant and the deceased was strained and much before the assault was made, there was exchange of hot words between_ the

D accused and the deceased and they were quarreling with each other.

15. 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 of passion upon a sudden quarrel without the off ender having taken undue advantage and not having acted in a cruel E or unusual manner.

16. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been

F more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of

i:, 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 reasons and urges them to deeds which they would not otherwise do. There is

G 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 H

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GALIVENKA TAIAH v_ STATE [P ASAY AT, J.] 103 7

mutual provocation and blows on each side. The homicide committed is A 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 B 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 ( 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 D 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 E be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in F the provision means "unfair advantage".

17. The above position is highlighted in Sandhya Jadhav v. State ofMaharashtra, [2006] 4 SCC 653.

18. Considering the factual background we are of the view that the -.°"' appropriate conviction would be in terms of Section 304 Part I IPC, custodial sentence often years would meet the ends of justice. The appeal is allowed to the aforesaid extent.

K.K.T ..

Appeal partly Allowed. H