IMPORTANT POINT
Where in a sudden fight accused and deceased started grappling and accused took out a scissors and assaulted deceased on his abdomen and chest, offence would fall u/s 304 part II and not u/s 302 IPC.

Headnote:(i) Criminal Trial - Interestedness of witness - Relationship is not a factor to affect credibility of a witness - Court has to adopt careful approach.
       Held : Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.(Para 11)
       (ii) Indian Penal Code, 1860 - Section 300 Fourth Exception - Appellant was convicted u/s 302 IPC by trial Court and as upheld by High Court in appeal - PW4, wife of accused, on account of his harassment had come to her parents house - On the date of incident accused came to house of PW1, father of PW4, to take PW4 back and quarrelled with PW1 and his wife - Deceased, brother-in-law of PW1, resented conduct of accused and turned him out of house - Accused started grappling with him and took out a pair of scissors assaulted deceased in abdomen and chest - Deceased died on the way to hospital - Factual scenario showed that during quarrel between deceased and accused, they were grappling when accused attacked deceased with pair of scissors - Applicable provision would be Section 304 part II and not Section 302 IPC - Custodial sentence of 7 years R.I. awarded.
       Held : 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. It is to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage.(Para 18)
       The factual scenario shows that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, accused attacked the deceased with a pair of scissors. It was not a very big sized weapon though it was certainly having a sharp edged point. In view of the factual position as noted above the applicable provision would be Section 304 part II IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence of seven years rigorous imprisonment would suffice.(Paras 21 & 22)

JUDGMENT

Dr. Arijit Pasayat, J. - Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Madhya Pradesh High Court at Jabalpur holding the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC). The appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- with default stipulation. It was directed that if the deposit is made, same shall be paid to the legal heirs of the deceased. Though the trial court had convicted the appellant in terms of Section 324 IPC and imposed sentence of five years rigorous imprisonment and a fine of Rs.1,000/- with default stipulations, the same was set aside by the High Court.

3. Accusations which led to the trial of the accused are as follows:

Farzana Bi (PW-4) was married to the appellant, but after about a year of their marriage, the appellant started drinking liquor and harassing her with the result her father Sheikh Qadir (PW-1) fetched her back and sent her to the house of his brother-in-law at Bhusaval. The appellant, therefore, tried to bring back Farzana Bi (PW-4), but Sheikh Qadir (PW-1) refused to send her and stated that if the accused quits drinking, he will send his wife. On the date of the incident i.e. 8.2.1999, the accused had visited the house of Sheikh Qadir (PW-1) and asked his wife Ruksana as to why they had refused to send his wife and quarrel with Sheikh Qadir (PW-1) and Ruksana.

4. On the same day at about 8.30 PM, while Sheikh Qadir (PW-1) and his brother-in-law Saleem (hereinafter referred to as the deceased) were in their house, the accused approached and started abusing and threatening them. The deceased resented the conduct of the accused and turned him out of the house. The accused objected to the intervention by the deceased and started grappling with him. While grappling with deceased Saleem, accused took out a pair of scissors, with which he assaulted the deceased in his abdomen and chest with the result the deceased fell down unconscious, and there was profuse bleeding from his wounds. The incident was also witnessed by Gopichand. Accused Salim after assaulting the deceased, tried to run away from the place of the incident, but was caught by Pyara Saheb (PW-2). Accused assaulted Pyara Saheb also, and extricated himself. Deceased was taken to the Hospital for treatment, but on way he succumbed to his injuries.

5. Report of the incident was lodged by Sheikh Qadir (PW-1). The inquest report was prepared and Pyara Saheb (PW-2) was sent for medical examination. After completion of the investigation, including seizure of the weapon of offence vide seizure-memo (Ex.P/9) and referring the seized articles to Forensic Science Laboratory, Sagar, the charge-sheet was filed and the accused was prosecuted.

6. Accused pleaded innocence and false implication. The trial court on consideration of the materials on record more particularly the version of the eye witnesses (PWs. 1, 2, 3 & 5) held the appellant guilty and convicted and sentenced him aforesaid.

7. Before the High Court it was the appellants stand that the evidence is primarily of interested witnesses and in any event offence under Section 302 IPC is not made out. It was also submitted that the occurrence admittedly took place in the course of sudden quarrel and therefore, Section 302 IPC has no application. The High Court did not accept the plea and dismiss the appeal.

8. Learned counsel for the appellant reiterated the stands taken by the High Court.

9. Learned counsel for the State on the other hand supported the judgment stating that PW 5, the neighbour of PW-1 is an independent witness and he had no reason to falsely implicate the accused.

10. The plea relating to interested witness is a regular feature in almost every criminal trial.

11. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect cred

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2006 Supreme(SC) 1234

IMPORTANT POINTWhere in a sudden fight accused and deceased started grappling and accused took out a scissors and assaulted deceased on his abdomen and chest, offence would fall u/s 304 part II and not u/s 302 IPC.

Cases Referred (10)

IMPORTANT POINT
Where in a sudden fight accused and deceased started grappling and accused took out a scissors and assaulted deceased on his abdomen and chest, offence would fall u/s 304 part II and not u/s 302 IPC.