2006 Supreme(SC) 742

2006(6) Supreme 339
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
G.P. Mathur and R.V. Raveendran, JJ.
Pulicherla Nagaraju @ Nagaraja Reddy — Appellant
versus
State of Andhra Pradesh — Respondent
Criminal Appeal No. 945 of 2004
Decided on 18-8-2006
Counsel for the Parties :
For the Appellant : A.T.M. Rangaramanujam, Sr. Advocate, Ms. Gouri Karuna Das, Ms. Anu Gupta, Rajesh Singh, K. Uma Shanker and Ms. Rani Jethmalani, Advocates.
For the Respondent : Mrs. D. Bharathi Reddy, Advocate.

IMPORTANT POINT
Evidence of a witness cannot be discarded merely on ground that he is either partisan or interested or closely related to deceased if it is otherwise found to be trustworthy and credible.

Headnote:Indian Penal Code, 1860 — Section 302 — Appellant A3 with father and mother A1 and A2 was tried for murder of deceased son of PW2 who was brother of A1 — Both parties were on enimical terms — On exhortation of A1, A1 and A2 caught hold of deceased and A3-apellant stabbed deceased near his throat with Barisa and victim collapsed — Incident was witnessed by PWs 3, 4, 5 and 6 besides father and brother of deceased — Trial Court acquitted all three accused holding that independent eye witnesses PWs 3, 4, 5 and 6 turned hostile and evidence of PWs 1 and 2 could not be relied as they were close relatives of deceased and their evidence was inconsistent with allegations in complaint lodged by PW1 — High Court set aside judgment of acquittal in appeal but convicted only appellant of murder while maintaining acquittal of other two accused — Appeal — High Court power in appeal from acquittal is no different from its power in an appeal from conviction as it could review and consider entire evidence — High Court rightly held that evidence of PWs 1 and 2 could not be rejected merely because they were interested witnesses — Nothing was elicited in their cross-examination to discredit their evidence — Their evidence found corroboration in complaint as well evidence of doctor — Absence of any other injury except dagger injury caused by A3 was consistent with allegation in complaint — Big size dagger weapon used by appellant, force with which, it was used and body part where injury was caused resulting in instantaneous collapse proved that intention of appellant was to cause death or to cause bodily injury which was sufficient in ordinary course of nature to cause death — Conviction was liable to be upheld.

       Held : It is now well settled that the power of the High Court in an appeal from acquittal is no different from its power in an appeal from conviction. It can review and consider the entire evidence and come to its own conclusions by either accepting the evidence rejected by the trial court or rejecting the evidence accepted by the trial court. However, if the High Court decided to depart from the conclusions reached by the trial court, it should pay due attention to the grounds on which acquittal was based and state the reasons as to why it finds the conclusions leading to the acquittal, unacceptable. It should also bear in mind that (i) the presumption of innocence in favour of the accused is fortified by the findings of the trial court; (ii) the accused is entitled to benefit of any doubt; and (iii) the trial court had the advantage of examining the demeanour of the witnesses. The crux of the matter, however, is whether the High Court is able to give clear reasons to dispel the doubt raised, and reject the reasons given by the trial court [See : Sher Singh vs. State of U.P. – AIR 1967 SC 1412; Dargahs vs. State of U.P. – AIR 1973 SC 2695; Ravinder Singh vs. State of Haryana – AIR 1975 SC 856; and Labh Singh vs. State of Punjab – AIR 1976 SC 83]. (Para 10)

       11. In this case, we find that the trial court had rejected the evidence of PW-1 and PW-2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. [vide Hari Obula Reddi v. State of Andhra Pradesh – 1981 (3) SCC 675, Ashok Kumar Pandey vs. State of Delhi – 2002 (4) SCC 76 and Bijoy Singh vs. State of Bihar – 2002 (9) SCC 147]. Nothing had been elicited in the cross-examination of PW-1 and PW-2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the Doctors (PW-11 and PW-12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PW-1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions. (Para 11)

       The third contention relates to the question whether the offence is a murder punishable under Section 302, or culpable homicide not amounting to murder, punishable under Section 304 Part II. The evidence shows that there was a long standing enmity between the families of the two brothers (A-1 and PW-2). There was a quarrel on 24.4.1999 in respect of PW-2 taking a tractor through the land of A-1. There was another quarrel when A-1 allegedly removed the fence and PW-1 and PW-1 questioned A-1 as to why he removed fencing, which led to an altercation between A-1 and A-3 on the one hand and PW-1 and PW-2 on the other about half an hour before the stabbing of the deceased, which resulted in injuries to PW-1 and PW-2. After the second incident, Purushotham Reddy followed by PW-1 and PW-2 was going towards A-1s house to protest against A-1 and the appellant causing injuries to PW-1 and PW-2. Neither Purushottam Reddy nor PW-1 and PW-2 were armed with any weapon. There was no indication that they intended to cause any physical harm to the accused, or that they intended to retaliate for the earlier incident. The nature and size of the weapon used by the appellant (barisa, which is a big size dagger), the force with which the weapon was used, the part of the body where the injury was caused – just below the neck, a vital part of the body, the nature of the injury – stab wound measuring 3 cm x 5 cm x 12 cm, resulting in instantaneous collapse leading to death, leave no room to doubt that the intention of the appellant was to cause the death or, at all events, cause bodily injury, which is sufficient in the ordinary course of nature to cause death. (Para 13)

       (ii) Indian Penal Code, 1860 — Sections 302 and 304 — Accused causing death by single knife blow — Nature of offence — Court should proceed to decide pivotal question of intention — Intention to cause death could be gathered generally from combination of a few and several circumstances.

       Held : We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under Section 304 and not Section 302. We will briefly refer to the cases relied on by the appellant. (Para 16)

       It would thus be seen that in all these cases, the accused landing a single blow was only one of the several circumstances which persuaded this Court to hold that the offence did not fall under Section 302 but fell under Section 304 Part I or Part II. The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where single blow inflicted by the accused, resulting in death have been found to be sufficient for conviction under Section 302. We may refer to a few of them, namely, Virsa Singh v. State of Punjab (AIR 1958 SC 465), Gudar Dusadh v. State of Bihar (AIR 1972 SC 952), Vasanta v. State of Maharashtra (1984 Supp. SCC 648), Jai Prakash v. State (Delhi Administration) [1991 (2) SCC 32] and State of Karnataka v. Vedanayagam [1995 (1) SCC 326].(Para 17)

       Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters – plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.(Para 18)