{"id":197606,"date":"2007-11-20T00:00:00","date_gmt":"2007-11-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-sailu-vs-state-of-a-p-on-20-november-2007"},"modified":"2016-08-22T23:50:55","modified_gmt":"2016-08-22T18:20:55","slug":"d-sailu-vs-state-of-a-p-on-20-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-sailu-vs-state-of-a-p-on-20-november-2007","title":{"rendered":"D. Sailu vs State Of A.P on 20 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D. Sailu vs State Of A.P on 20 November, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, Aftab Alam<\/div>\n
           CASE NO.:\nAppeal (crl.)  1592 of 2007\n\nPETITIONER:\nD. Sailu\n\nRESPONDENT:\nState of A.P.\n\nDATE OF JUDGMENT: 20\/11\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & AFTAB ALAM\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (Crl.) No.3627 of 2006)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.    Challenge in this appeal is to the order passed by a
\nDivision Bench of the Andhra Pradesh High Court upholding
\nthe conviction of the appellant (hereinafter referred to as
\nAccused No.1) for offence punishable under Section 302 of
\nthe Indian Penal Code, 1860 (in short the IPC) and sentence
\nof imprisonment for life and fine of Rs.200\/- with default
\nstipulation.\n<\/p>\n
3.\tBackground facts as projected by the prosecution are as
\nfollows:\n<\/p>\n
\tAccused persons D. Sailu, Ramaiah, D. Pentamma and
\nYadaiah are described as A-1, A-2, A-3 and A-4.  Samuel
\n(hereinafter referred to as the deceased) was the husband of
\nShantamma (P.W.1).  A-1 is the son of the elder brother of the
\ndeceased, A-2 is the father of A-1, A-3 is the wife of A-2 and A-
\n4 is the younger brother of A-1. The deceased and the accused
\nwere not on good terms as they quarrelled with each other
\nover bore water for the fields. Fifteen days prior to the date of
\nincident, the accused and the deceased quarrelled with each
\nother. On the date of incident i.e. 24.11.1999 at about 8.00
\nP.M., A-1 asked the deceased as to why he (deceased) scolded
\nthe mother of A-1. The deceased told him that he did not scold
\nhis mother. Then P.W.1, the wife of the deceased, caught hold
\nof the hands of A-1. A-4, the younger brother of A-1, came and
\nattempted to beat the deceased. P.W.1 pushed the younger
\nbrother of A-1. A-2 beat P.W.1 with hands and A-1 stabbed the
\ndeceased at the instigation of A-2 with a knife on the left side
\nof the stomach. As a result, the deceased fell down. A-3 also
\ncame there along with A-2 and beat P.W.1. Thereafter, the
\ndeceased was taken to the Sangareddy Hospital in an auto.\n<\/p>\n
4.\tThe Village Administrative Officer gave Ex.P8 report to
\nP.W.14, who registered the case in Cr.No. 82 of 1999 under
\nSection 302 read with 34 IPC against Al to A4. P.W.15 took up
\ninvestigation, visited the scene of offence and conducted scene
\nof offence panchanama in the presence of P.W.10 and another
\nand seized controlled earth from the scene. Thereafter, he
\nproceeded to Government Hospital and held inquest on the
\ndead body of the deceased in the presence of P.W.12 and
\nothers. He seized blood stained clothes from the body of the
\ndeceased. On inquest it was found that the deceased died as a
\nresult of the injuries sustained by him. P.W.8 is the Doctor,
\nwho conducted the autopsy, opined that the deceased died
\ndue to shock and hemorrhage due to injury to vital organ. On
\n13.11.1999, A-1 to A-4 were arrested by the Sub-Inspector of
\nPolice, Kondapur and produced before P.W.15. P.W.15
\ninterrogated A-1 and A-1 gave confessional statement in Ex.P6
\nand in pursuance of the confessional statement, a knife was
\nrecovered under Ex.P7. As A-1 also sustained injuries, he was
\nreferred to hospital and examined by the Doctor and Ex.P.10,
\nwound certificate was issued. After receipt of the Forensic
\nSciences Laboratory Report, he filed the charge sheet against
\nA-1 and A-3 for the offence under Section 302 read with 34
\nIPC. As A-4 was juvenile, he was produced before the Judicial
\nFirst Class Magistrate, Nizamabad, which is a juvenile Court.
\nA-2 was absconding.\n<\/p>\n
5.\tThe learned Additional Judicial First Class Magistrate,
\nModak at Sangareddy, after considering the material on
\nrecord, came to the conclusion that the offence alleged against
\nthe accused is exclusively triable by the Court of Session and
\ntherefore, he committed the case to the Court of Session. The
\nlearned Sessions Judge took the case on file in S.C. No. 129 of
\n2001 and after hearing the prosecution and the defence and
\nafter considering the material on record, charge for
\ncommission of offence punishable under Section 302 read
\nwith 34 IPC was framed against A-1 and A-3. As A-1 and A-3
\ndenied the charge levelled against them, the prosecution
\nexamined P.Ws. 1 to 15 and marked Exs. P1 to P12 besides
\nmarking of M0.1 to prove its case.  PWs. 1 to 4 were stated to
\nbe eye witnesses to the occurrence.\n<\/p>\n
6.\tThe stand of the appellant before the trial court was that
\nthe evidence of PWs 1 to 4 cannot be believed particularly
\nwhen they are related to deceased and the presence of A2 and
\n3 at the time of incident is very much doubtful as they belong
\nto some other village.   It was also contended that the medical
\nevidence corroded credibility of ocular testimony of PWs 1 to 4
\nas the injuries noticed were lacerated injuries which could not
\nbeen caused by a knife. PWs. 1 to 4 falsely implicated to
\naccused.  The trial court found the evidence of PWs 1 to 4 to
\nbe credible and cogent and therefore convicted the accused
\nappellant.  It did not accept the plea of the accused that
\noffence under Section 302 IPC is not made out.\n<\/p>\n
7.\tThe learned Sessions Judge accepting the evidence of
\nP.Ws. 1 to 4, to be cogent and credible came to the conclusion
\nthat A-1 caused injuries to the deceased and therefore he was
\nconvicted and sentenced as stated above. Benefit of doubt was
\ngiven to A-3 and accordingly he was acquitted.\n<\/p>\n
8.\tThe judgment of the trial court was challenged before the
\nHigh Court and the pleas canvassed before the trial court were
\nreiterated.  The High Court as noted above did not find any
\nsubstance in the appeal and upheld the conviction and
\nsentence imposed.\n<\/p>\n
9.\tIt was submitted by learned counsel for the appellant in
\nsupport of the present appeal, that PWs. 1 to 4 were related to
\nthe deceased and therefore their version is tainted.  The
\nmedical evidence rendered the ocular version improbable.\n<\/p>\n
10.\tLearned counsel for the respondent-State supported the
\njudgments of lower court and High Court.\n<\/p>\n
11.\tWe shall first deal with the contention regarding
\ninterestedness of the witnesses for furthering prosecution
\nversion.  Relationship is not a factor to affect credibility of a
\nwitness.  It is more often than not that a relation would not
\nconceal actual culprit and make allegations against an
\ninnocent person.  Foundation has to be laid if plea of false
\nimplication is made.  In such cases, the court has to adopt a
\ncareful approach and analyse evidence to find out whether it is
\ncogent and credible.\n<\/p>\n
12.\tIn Dalip Singh and Ors.  v. The State of Punjab (AIR<\/a> 1953
\nSC 364) it has been laid down as under:-\n<\/p>\n
A witness is normally to be considered
\nindependent unless he or she springs from
\nsources which are likely to be tainted and that
\nusually means unless the witness has cause,
\nsuch as enmity against the accused, to wish to
\nimplicate him falsely.  Ordinarily a close
\nrelation would be the last to screen the real
\nculprit and falsely implicate an innocent
\nperson.  It is true, when feelings run high and
\nthere is personal cause for enmity, that there
\nis a tendency to drag in an innocent person
\nagainst whom a witness has a grudge along
\nwith the guilty, but foundation must be laid
\nfor such a criticism and the mere fact of
\nrelationship far from being a foundation is
\noften a sure guarantee of truth.  However, we
\nare not attempting any sweeping
\ngeneralization.  Each case must be judged on
\nits own facts.  Our observations are only made
\nto combat what is so often put forward in
\ncases before us as a general rule of prudence.
\nThere is no such general rule. Each case must
\nbe limited to and be governed by its own
\nfacts.<\/p>\n
13.\tThe above decision has since been followed in Guli
\nChand and Ors. v. State of Rajasthan<\/a> (1974 (3) SCC 698) in
\nwhich Vadivelu Thevar v. State of Madras (AIR<\/a> 1957 SC 614)
\nwas also relied upon.\n<\/p>\n
14.\tWe may also observe that the ground that the witness
\nbeing a close relative and consequently being a partisan
\nwitness, should not be relied upon, has no substance.  This
\ntheory was repelled by this Court as early as in Dalip Singhs
\ncase (supra) in which surprise was expressed over the
\nimpression which prevailed in the minds of the Members of the
\nBar that relatives were not independent witnesses. Speaking
\nthrough Vivian Bose, J. it was observed:\n<\/p>\n
We are unable to agree with the learned
\nJudges of the High Court that the testimony of
\nthe two eyewitnesses requires corroboration.
\nIf the foundation for such an observation is
\nbased on the fact that the witnesses are
\nwomen and that the fate of seven men hangs
\non their testimony, we know of no such rule.
\nIf it is grounded on the reason that they are
\nclosely related to the deceased we are unable
\nto concur.  This is a fallacy common to many
\ncriminal cases and one which another Bench
\nof this Court endeavoured to dispel in
\nRameshwar v. State of Rajasthan<\/a> (AIR 1952
\nSC 54 at p.59).  We find, however, that it
\nunfortunately still persists, if not in the
\njudgments of the Courts, at any rate in the
\narguments of counsel.<\/p>\n
15.\tAgain in Masalti and Ors.   v.  State of U.P.  (AIR<\/a> 1965 SC\n<\/p>\n
202) this Court observed: (p. 209-210 para 14):\n<\/p>\n
But it would, we think, be unreasonable to
\ncontend that evidence given by witnesses
\nshould be discarded only on the ground that it
\nis evidence of partisan or interested
\nwitnesses…….The mechanical rejection of
\nsuch evidence on the sole ground that it is
\npartisan would invariably lead to failure of
\njustice.  No hard and fast rule can be laid
\ndown as to how much evidence should be
\nappreciated.  Judicial approach has to be
\ncautious in dealing with such evidence; but
\nthe plea that such evidence should be rejected
\nbecause it is partisan cannot be accepted as
\ncorrect.<\/p>\n
16.\tTo the same effect is the decision in State of Punjab v.
\nJagir Singh (AIR<\/a> 1973 SC 2407), Lehna v. State of Haryana<\/a>
\n(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of
\nOrissa<\/a> (2002 (8) SCC 381).\n<\/p>\n
17.\tThe above position was highlighted in  Babulal Bhagwan
\nKhandare and Anr. V. State of Maharashtra<\/a> [2005(10) SCC
\n404] and in Salim Saheb v. State of M.P.  (2007(1) SCC 699).\n<\/p>\n
18.\tThe further plea related to primacy of medical evidence.
\nThe ocular testimonies has been analysed in great detail and
\nhas been rightly held to be cogent.\n<\/p>\n
19.\tComing to the plea that the medical evidence is at
\nvariance with ocular evidence, it has to be noted that it would
\nbe erroneous to accord undue primacy to the hypothetical
\nanswers of medical witnesses to exclude the eyewitnesses
\naccount which had to be tested independently and not treated
\nas the variable keeping the medical evidence as the
\nconstant.\n<\/p>\n
20. \tIt is trite that where the eyewitnesses account is found
\ncredible and trustworthy, medical opinion pointing to
\nalternative possibilities is not accepted as conclusive.
\nWitnesses, as Bentham said, are the eyes and ears of justice.
\nHence the importance and primacy of the quality of the trial
\nprocess. Eyewitnesses account would require a careful
\nindependent assessment and evaluation for its credibility
\nwhich should not be adversely prejudged making any other
\nevidence, including medical evidence, as the sole touchstone
\nfor the test of such credibility. The evidence must be tested for
\nits inherent consistency and the inherent probability of the
\nstory; consistency with the account of other witnesses held to
\nbe creditworthy; consistency with the undisputed facts, the
\ncredit of the witnesses; their performance in the witness box;
\ntheir power of observation etc. Then the probative value of
\nsuch evidence becomes eligible to be put into the scales for a
\ncumulative evaluation.\n<\/p>\n
21.\tThe above position was reiterated in Krishan and Another
\nv. State represented by Inspector of Police  [(2003)7 SCC 56].\n<\/p>\n
22.\tEven otherwise, factually also the medical evidence is not
\ncontrary to ocular evidence as claimed. On the contrary the
\ndoctor (PW 8) has clearly stated as to under what
\ncircumstances lacerated injury can be caused by a knife.\n<\/p>\n
23.\tLearned counsel for the appellant submitted that the
\noccurrence took place in course of sudden quarrel and,
\ntherefore, the trial court and the High Court were not justified
\nin holding the accused-appellant guilty of offence punishable
\nunder Section 302 IPC.\n<\/p>\n
24.\tIn essence the stand of learned counsel for the appellant
\nis that Exception IV to Section 304 IPC would apply to the
\nfacts of the case.\n<\/p>\n
25.\tFor bringing in operation of Exception 4 to Section 300
\nIPC, it has to be established that the act was committed
\nwithout premeditation, in a sudden fight in the heat of passion
\nupon a sudden quarrel without the offender having taken
\nundue advantage and not having acted in a cruel or unusual
\nmanner.\n<\/p>\n
26.   The Fourth Exception to Section 300 IPC covers acts
\ndone in a sudden fight. The said Exception deals with a case of
\nprosecution not covered by the First Exception, after which its
\nplace would have been more appropriate. The Exception is
\nfounded upon the same principle, for in both there is absence
\nof premeditation. But, while in the case of Exception 1 there is
\ntotal deprivation of self-control, in case of Exception 4, there is
\nonly that heat of passion which clouds mens sober reason and
\nurges them to deeds which they would not otherwise do. There
\nis provocation in Exception 4 as in Exception 1; but the injury
\ndone is not the direct consequence of that provocation. In fact
\nException 4 deals with cases in which notwithstanding that a
\nblow may have been struck, or some provocation given in the
\norigin of the dispute or in whatever way the quarrel may have
\noriginated, yet the subsequent conduct of both parties puts
\nthem in respect of guilt upon equal footing. A sudden fight
\nimplies mutual provocation and blows on each side. The
\nhomicide committed is then clearly not traceable to unilateral
\nprovocation, nor in such cases could the whole blame be
\nplaced on one side. For if it were so, the Exception more
\nappropriately applicable would be Exception 1. There is no
\nprevious deliberation or determination to fight. A fight
\nsuddenly takes place, for which both parties are more or less
\nto be blamed. It may be that one of them starts it, but if the
\nother had not aggravated it by his own conduct it would not
\nhave taken the serious turn it did. There is then mutual
\nprovocation and aggravation, and it is difficult to apportion the
\nshare of blame which attaches to each fighter. The help of
\nException 4 can be invoked if death is caused (a) without
\npremeditation; (b) in a sudden fight; (c) without the offender
\nhaving taken undue advantage or acted in a cruel or unusual
\nmanner; and (d) the fight must have been with the person
\nkilled. To bring a case within Exception 4 all the ingredients
\nmentioned in it must be found. It is to be noted that the fight
\noccurring in Exception 4 to Section 300 IPC is not defined in
\nIPC. It takes two to make a fight. Heat of passion requires that
\nthere must be no time for the passions to cool down and in
\nthis case, the parties have worked themselves into a fury on
\naccount of the verbal altercation in the beginning. A fight is a
\ncombat between two or mo re persons whether with or without
\nweapons. It is not possible to enunciate any general rule as to
\nwhat shall be deemed to be a sudden quarrel. It is a question
\nof fact and whether a quarrel is sudden or not must
\nnecessarily depend upon the proved facts of each case. For the
\napplication of Exception 4, it is not sufficient to show that
\nthere was a sudden quarrel and that there was no
\npremeditation. It must further be shown that the offender has
\nnot taken undue advantage or acted in cruel or unusual
\nmanner. The expression undue advantage as used in the
\nprovision means unfair advantage.\n<\/p>\n
27.\tThe above position is highlighted in Sandhya Jadhav v.
\nState of Maharashtra<\/a> (2006) 4 SCC 653).\n<\/p>\n
28.\tConsidering the background facts, appropriate conviction
\nwould be under Section 304 Part I IPC and not Section 302
\nIPC.  The conviction is accordingly altered.  Custodial sentence
\nof ten years would suffice.\n<\/p>\n
29.\tAppeal is allowed to the aforesaid extent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D. Sailu vs State Of A.P on 20 November, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, Aftab Alam CASE NO.: Appeal (crl.) 1592 of 2007 PETITIONER: D. Sailu RESPONDENT: State of A.P. DATE OF JUDGMENT: 20\/11\/2007 BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-197606","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD. 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