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2007(8) Supreme 5
Supreme Court of india
(From Andhra Pradesh High Court)
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Gali Venkataiah — Petitioner
versus
State of Andhra Pradesh — Respondent
Criminal Appeal No. 1533 of 2007
(Arising out of SLP (Crl.) No. 5907 OF 2006)
Decided on : 12-11-2007
(AIR 1953 SC 364), (1974 (3) SCC 698), (AIR 1957 SC 614), (AIR 1965 SC 202), (AIR 1973 SC 2407), (2002 (3) SCC 76), (2002 (8) SCC 381), [2005(10) SCC 404] (2007(1) SCC 699), (2006) 4 SCC 653 relied upon.
Indian Penal Code, 1860 – Section 302 - Prosecution of appellant accused for causing death of deceased by stabbing him with a knife – Conviction by Trial Court u\s 302 IPC – Appeal – Dismissed – Appeal there against – Relying upon decision in case of Sandhya Jadhav v. State of Maharashtra held that Heat of passion requires that there must be no time for passions to cool down and parties have worked themselves into a fury on account of verbal altercation in beginning - It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel - It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon proved facts of each case - For 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 offender has not taken undue advantage or acted in cruel or unusual manner - The expression “undue advantage” as used in provision means “unfair advantage - It appeared from evidence of witnesses that relationship between appellant and deceased was strained and much before assault was made, there was exchange of hot words between accused and deceased and they were quarreling with each other - Considering factual ground, held that appropriate conviction would be in terms of Section 304 Part I IPC – Appeal allowed. (Paras 14 to 18)
(2006) 4 SCC 653 relied upon.
Indian Penal Code,1860 – Exception 4 to Section 300 – Applicability of - For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that act was committed without premeditation, in a sudden fight in heat of passion upon a sudden quarrel without offender having taken undue advantage and not having acted in a cruel or unusual manner. (Para 15)
Facts of the case :
Appellant accused was prosecuted in the instant case herein for causing death of deceased by stabbing him with a knife. Trial Court convicted appellant u\s 302 IPC. Appeal there against was dismissed by High Court.
Aggrieved by said order of conviction, appellant has preferred present appeal.
Findings of the Court :
The Court held that it appeared from evidence of witnesses that relationship between appellant and deceased was strained and much before assault was made, there was exchange of hot words between accused and deceased and they were quarreling with each other. Considering factual ground, held that appropriate conviction would be in terms of Section 304 Part I IPC. Appeal was allowed to aforesaid extent.
Result : Appeal allowed.
JUDGMENT
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, 1860 (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 learned 4th 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 deceased 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 (PW1), a case in Crime No. 161 of 1999 on the file of the II Town (L & O) 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 witnesses PWs 1 to 3 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 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 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 view that the conviction as recorded by the trial court did not suffer from any infirmity.
6.In support of the appeal learned counsel for the appellant submitted that the evidence of PWs. 1 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 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 Punjab1, (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 in
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