R. JAYAPAL versus STATE OF TAMIL NADU & ANR. on 9 August 2019

R. JAYAPAL

v.

STATE OF TAMIL NADU & ANR.

(Criminal Appeal No. 56 of 2010)

AUGUST 09, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Penal Code, 1860 – s.302/34, Part-I of s.304 – Alteration ofconviction from s.302 IPC to Part-I of s.304 – Prosecution casethat there was long-drawn rivalry between the wife of appellant(accused no.3) and the victim-deceased – It was alleged thatappellant (accused no.1) and his wife (accused no.3) had analtercation with the victim – Same day, in the evening, it was allegedthat when victim was crossing the lane in front of the house of theappellant, the appellant came down with a spike, the accused no.2with sickle and unarmed accused no.3 and attacked the victim –Appellant stabbed the victim on chest with the spike – Victim died –FIR was registered – Before the Trial Court, the appellant took thedefence that the deceased had barged into his house with 5-6persons and assaulted and molested his wife – Appellant contendedthat in order to protect his wife, he had exercised the right to privatedefence and stabbed the deceased – Trial Court rejected the defenceversion and held appellant (accused no.1) and accused no.2 guiltyfor offences u/s. 302 IPC and u/s.302/34 IPC respectively andacquitted wife of the appellant (accused no.3) – High Courtmaintained the conviction and sentence of the appellant but foundthe accused no.2 not guilty and acquitted him – On appeal, held:The prosecution was not able to remove all the obvious doubts as tothe place and manner of occurrence, particularly as to who wasthe aggressor and how it started – Prosecution was not able toclear as to how deceased was at the doorstep of the house ofappellant and how the blood stains were also found at the doorstepof the house of appellant – Besides, the defence version that thedeceased assaulted and molested appellant’s wife is alsounacceptable for want of cogent and convincing evidence –

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AHowever, the preponderance remains that the occurrence, in alllikelihood, took place at the doorstep of the house of appellant –Thus, alternative case of appellant that the incident took placewithout any pre-meditation, in a sudden fight in the heat of passionupon sudden quarrel, when the deceased attempted entry into hishouse; and the appellant did neither take any undue advantageBnor acted in a cruel or unusual manner is accepted – Benefit ofException 4 of s.300 IPC extended to the appellant – Therefore,conviction of the appellant altered to one under Part-I of s.304IPC.

Partly allowing the appeal, the CourtC

Conclusion

Partly allowing the appeal, the CourtC

HELD: 1. Both the accused no.2 and accused no.3 wereacquitted. In view of this Court, when accused No. 2 and accusedNo. 3 are removed out of scene, the entire complexion of theprosecution story is altered on material aspects and such analteration cannot be ignored as being wholly immaterial orDirrelevant. In other words, if the prosecution case is taken asfalse (or at least doubtful) as regards accused No. 2 and accusedNo. 3, this part of falsehood (or doubtfulness) is difficult to besegregated for the purpose of believing the prosecution case quathe appellant alone. The exercise of sifting the grain from theEchaff in this matter would shake, rather annihilate, thefundamentals of the prosecution case; and an entirely newprosecution story shall have to be assumed that when thedeceased was walking down the lane, the appellant alone jumpedon him; gave him a blow; threw the weapon towards his own houseand ran away. In view of this Court, on the facts and in theFcircumstances of this case, it would be unsafe to assume such orakin scene of occurrence in replacement of the story propoundedby the prosecution. As noticed from the decisions referred, whenthis Court found that separating the truth from falsehood was notfeasible because of the two being inseparably mixed up, theGprosecution case was discarded in toto. However, such a coursecannot be adopted in this case and it cannot be held that theappellant was not involved in the occurrence or did not kill thedeceased, essentially for the reason that the appellant himselftook the defence that he assaulted the deceased in exercise of H

his right of private defence when the deceased allegedly intrudedinside his house and attempted to assault and molest his wife. Itis also noticed from the evidence on record that one injury wascaused on the person of the deceased, being a vertical stab injuryof 5 cm length and 2.5 cm width in front and outside the left collarbone that had pierced the upper portion of lung through the thirdrib. The medical officer PW-11 has opined that the injury in thelung was enough to cause death and could have been caused bythe spike in question. [Paras 14 and 14.1] [18-G-H; 19-A-F]

2. In view of the above, even after disbelieving the case ofprosecution as regards the happenings, but taking into accountthe admitted case of the appellant that he did inflict injury on theperson of the deceased, the matter is required to be examinedfurther on the question as to whether the appellant is entitled tobe acquitted for having justifiably acted in exercise of the right ofprivate defence in order to save his wife from the alleged assaultand molestation. [Para 15] [19-G-H]

3. Hence, even when this Court finds that the prosecutioncase cannot be believed as projected, the defence version aboutthe assault on and molestation of accused No. 3, the wife of theappellant, equally appears to be that of overstatement/exaggeration towards the other extreme. In other words, the partof the appellant’s suggestion that the deceased entered his housewith 5-6 persons and assaulted and molested his wife is difficultto be accepted; neither there is any convincing evidence in thatregard nor the circumstances of the case support this version.However, from the evidence on record, this much is apparentthat blood stains were also found at the door-step of the house ofthe appellant; and the weapon of offence was found at the raisedplatform of the house of the appellant. The facts and circumstancesof this case give rise to a reasonable doubt that the incident inquestion, in all likelihood, took place right at the door of thehouse of the appellant. Admittedly, the parties were on hostileterms and they had had an argument at about 5 p.m. the same dayoutside the house of the deceased. Therefore, the possibility ofquarrel taking place upon the deceased reaching the door-stepof the appellant is not ruled out. [Para 17] [20-F-H; 21-A-B]

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A4. The upshot of the discussion foregoing is that theprojected story of the prosecution cannot be accepted, particularlyfor the reason that the accused No. 2 and accused No. 3 havebeen acquitted and their acquittal has attained finality. Then, theprosecution has not been able to remove all the obvious doubtsas to the place and manner of occurrence, particularly as to whoBwas the aggressor and how it started. On the other hand, thedefence version that the deceased barged into the house of theappellant with 5-6 persons and assaulted and molested his wife isalso unacceptable for want of cogent and convincing evidence.However, the preponderance remains that the occurrence, in allClikelihood, took place just at the door-step of the house of theappellant. In the given circumstances, the likelihood of thedeceased, who was on inimical terms with the wife of the appellant,having given the reasons for provocation by way of aggression orattempted intrusion into the house of the appellant is not ruledout. [Para 18] [21-E-G]D

5. In view of the foregoing and in the overall circumstancesof this case, this Court inclined to accept the alternative case ofthe appellant that the incident in question took place without anypremeditation, in a sudden fight in the heat of passion upon asudden quarrel, when the deceased attempted entry into hisEhouse; and the appellant did neither take any undue advantagenor acted in a cruel or unusual manner. A fortiori, this Court isinclined to extend the benefit of Exception 4 of Section 300 IPCto the appellant. However, the act of the appellant leading to thedeath having been with the intention of causing such bodily injuryFas is likely to cause death, the appellant deserves to be convictedfor the offence under Part-I of Section 304 IPC. [Para 20]

[21-F-G]

Yanob Sheikh alias Gagu v. State of West Bengal (2013)6 SCC 428 : [2012] 13 SCR 1150 ; Dalbir Singh v.GState of Haryana (2008) 11 SCC 425 : [2008]8 SCR 1026 ; Krishna Mochi v. State of Bihar (2002)6 SCC 81 : [2002] 3 SCR 1 ; Jumman and Ors. v. TheState of Punjab AIR 1957 SC 469 – relied on.

R. JAYAPAL v. STATE OF TAMIL NADU & ANR.

Munshi Ram & Ors. v. Delhi Administration (1968) 2SCR 455 ; James Martin v. State of Kerala (2004) 2SCC 203 : [2003] 6 Suppl. SCR 910 ; Darshan Singhv. State of Punjab and Anr. (2010) 2 SCC 333 : [2010]1 SCR 642 ; Sukumaran v. State 2019 SCC Online SC339 ; Budhi Singh v. State of Himachal Pradesh (2012)13 SCC 663 : [2012] 11 SCR 848 ; Surain Singh v.State of Punjab (2017) 5 SCC 796 ; PulicherlaNagaraju alias Nagaraja Reddy v. State of A.P. (2006)11 SCC 444 : [2006] 4 Suppl. SCR 633 ; Gudar Dusadhv. State of Bihar (1972) 3 SCC 118 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 56 of 2010.

From the Judgment and Order dated 21.02.2008 of the High Courtof Judicature at Madras, Madurai Bench in Criminal Appeal No. 1003of 2000.

Ms. Aparna Bhat, Ms. Shivani Singh, Advs. for the Appellant.

M. Yogesh Kanna, Adv. for the Respondents.

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AThe Judgment of the Court was delivered byDINESH MAHESHWARI, J.

1. In this appeal, the accused-appellant has called in question thejudgment and order dated 21.02.2008 in Criminal Appeal No. 1003 of2000 whereby, the High Court of Judicature at Madras has affirmed hisBconviction for the offence under Section 302 of the Indian Penal Code(‘IPC’), even while acquitting the accused No. 2 for the offence underSection 302/34 IPC in modification of the judgment and order dated27.06.2000 as passed by the Principal Sessions Judge, Thanjavur inSessions Case No. 168 of 1999.

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1.1. In the Sessions Case aforesaid, the accused-appellant wascharged for the offence under Section 302 IPC whereas the appellant’sbrother (accused No. 2) was charged for the offence under Section302/34 IPC and the appellant’s wife (accused No. 3) was charged forthe offences under Sections 302/34 and 341 IPC. The Trial CourtDconvicted the appellant for the offence under Section 302 IPC andawarded him the punishment of life imprisonment together with fine ofRs. 1,000/- with default stipulations; and also convicted the appellant’sbrother (accused No. 2) for the offence under Section 302/34 IPC andawarded him the same punishment of life imprisonment with fine of Rs.1,000/- with default stipulations. However, the Trial Court found theEappellant’s wife (accused No. 3) not guilty of the offences under Sections302/34 and 341 IPC and she was, accordingly, acquitted. In appeal, theHigh Court maintained the conviction and sentence of the appellant butfound the accused No. 2 not guilty and he was, accordingly, acquitted.

2. The basic question calling for determination in this appeal is asFto whether, in the given set of facts and circumstances, the High Courtwas justified in maintaining the conviction of the appellant for the offenceunder Section 302 IPC?

3. The background aspects of the case, so far relevant for thequestion at hand, could be noticed, in brief, as follows:G

3.1. The prosecution case had been that the deceasedPoondhaisezhiyan and wife of the appellant, Smt. Jayaseeli (who wasaccused No. 3 in this case) carried a long-drawn rivalry because of theelections of Town Panchayat where the deceased was instrumental ingetting another candidate elected as President and thereafter, himselfHgot elected as Vice-president by defeating the accused No. 3. According to the prosecution, the accused No. 3 made a complaint against thedeceased that was enquired into and was found to be false; and thisfailure of complaint had enraged the accused persons. It was allegedthat on 23.08.1997 at about 5.00 p.m., the appellant R. Jayapal (accusedNo. 1) along with his wife (accused No. 3) had had an altercation withthe deceased in front of his house when the appellant vowed to finish offthe deceased within 24 hours. It was further alleged that the same dayat about 7.15 p.m., when the deceased left his house in order to visitThanjavur and was crossing the lane in front of the house of the appellant,the appellant came down with a spike, the accused No. 2 came with asickle, and the accused No. 3 came unarmed; the accused No. 2 (brotherof the appellant) attacked the deceased with sickle but his blow wasblocked by the deceased; the deceased attempted to run away but wasambushed by the accused No. 3 and she exhorted not to spare thedeceased; and then, the appellant stabbed the deceased on chest withthe spike. This incident was allegedly witnessed by PW-1 Pandian, brotherof the deceased who carried the deceased to hospital and on whosestatement, FIR was registered as per the report made by PW-12 HeadConstable Jaganathan. The relevant parts of FIR could be usefullyextracted as follows:-

“…….Today on 23.08.97, at 5 p.m. my brother was in hishouse. When I returned from bazaar, there were shouting.When I went near I saw my brother Poondaichelian, Jayaseeliand Jayapal were arguing. Then my brother Poondaicheliantold Jayaseeli that was sending false complaint against himand she was talking ill of him and told her to behave properly.For that Jayaseeli asked what respect he deserved. Jayapaltold him to finish him off within 24 hours. I pacified my brotherand send him to his house. Jayaseeli and Jayapal went towardseast. Then my brother listened the 7 ¼ news in radio andstarted to Thanjavur. At that time in the post near my house,light was glowing. There was good illumination. I was sittingon the raised platform of my house. When my brother wasgoing towards east in the road in front of the road near thehouse of Jayapal, Jayapal came with a spike, Savier camewith a sickle and Jayaseeli came with no weapon. Savier ranto my brother and cut my brother with sickle. My brotherblocked that and pushed him down. So, the cut did not landon my brother. My brother tried to run toward West. Jayaseeli AB

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Ablocked the way of my brother and shouted not to spare him.Jayapal stabbed the spike in his hand on the left chest of mybrother. My brother fell down. I ran shouting. Arumainathanwho is in front of my house and those who came by the way,Chinnaiyan s/o Rengamani, Ravichandran, s/o Gurusamy alsoshouted. Jayapal, Jayaseeli and Savier also ran. I chasedBthem to catch them. They ran to each direction. I chasedJayapal towards east and caught him in a short distance.Fearing that he may punch me with the spike, I snatched thespike. He tussled and threw away the spike and ran away.The spike is lying there. When returned and saw my brother,Che was struggling for life. I got a van urgently and got him inthe Thanjavur Medical College hospital there doctor examinedhim told that my brother had died and sent the corpse tomortuary. He also told me that he would inform that police. Iwas shocked since my brother died and I sat there weeping.Now I am telling you what happened. I request you to takeDaction on Jayapal, Savier and Jayaseeli who killed mybrother.”

4. In Trial, the prosecution, inter alia, relied on the testimony ofalleged eye witnesses PW-1 to PW-4, who made the statements moreor less in conformity with the narrations in the FIR that the deceased leftEhis house to visit Thanjavur; that the appellant and other accused personswere standing outside their house; that upon the deceased reaching theirhouse, the accused No. 3 ambushed him, the accused No. 2unsuccessfully attacked him with a sickle, and the appellant attackedhim with a spike and inflicted the injury on the left side of chest; and thatFthe appellant and accused No.2 ran away after throwing their spike andsickle. The victim succumbed to the injuries at the Thanjavur MedicalCollege Hospital.

4.1. On the other hand, it was suggested on behalf of the accusedpersons that the deceased along with 5 or 6 people came to the house ofGappellant and broke open the door; that the deceased, armed with aruval,pushed the accused No. 3 (wife of the appellant) when she tried to lockthe door; and that the deceased pulled the saree of the wife of the appellantand went on to tear her jacket. It was further alleged that since thedeceased did not leave despite requests, the appellant, in order to protecthis wife and while exercising the right of private defence, stabbed theHdeceased on chest with the pair of scissors of a sewing machine and, when the deceased fell down, the other persons left the scene. Theaccused persons also examined two witnesses in support of their versionof the incident.

5. On appreciation of evidence, the Trial Court, by its judgmentand order dated 27.06.2000, rejected the defence version and found itproved beyond reasonable doubt that the appellant did cause injury onthe vital part of body of the deceased. The Trial Court proceeded to holdthat the acts of the accused-appellant and accused No.2 had been ofmurder and they were guilty for offences punishable under Section 302IPC and under Section 302/34 IPC respectively. The Trial Court heldproved the facts that the deceased warded off the blow attempted bythe accused No. 2 but when the deceased tried to escape, the appellantstabbed him with the spike. However, the accused No. 3, wife of theappellant was acquitted with the Trial Court disbelieving the prosecutionstory regarding her participation in the crime, particularly for her havingtwo children in the age of 2 years and 4 months respectively, and noneof the witnesses having alleged that she was armed with any weapon.The Trial Court, inter alia, observed as under :- “53…The evidence of P.W. 1 to 4 is that when the assault ofA2 was warded off and he pushed him down the accused ranaway. It is not the case of the prosecution that A3 also assaultedhim before or after Poonthaisezhiyan fell down. When theevidence of P.W. 1 to 4 is that when A2 assaultedPoonthaisezhiyan he warded off and when he tried to ranaway A1 stabbed him, and so it cannot be believed andaccepted that A3 way laid him. Moreover, it is not disputedthat on the date of occurrence, and at that time of occurrence,the 3[rd] accused was with two children aged about 2 yearsand 4 months. In such circumstances, it is difficult to acceptthe case of the prosecution that A3 joined with A1 and A2helped them and way laid the deceased to commit murder.Thus the evidence on the side of the prosecution is notsufficient for the court to come to the conclusion that thecharge framed U/s 341, 302 r/w 34 IPC has been proved.Against A3. But the evidence on the side of the prosecution iscogent, believable and sufficient to prove the charge, u/s 302against 1[st] accused and the charge 302, r/w 34 IPC levelledagainst A2.”

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A6. In appeal by the present appellant and the accused No. 2, theHigh Court of Madras, in its impugned judgment and order dated21.02.2008, found no reason to consider interference in the findingsrecorded by the Trial Court as regards conviction of the appellant underSection 302 IPC, but acquitted accused No.2 on the grounds that noinjury corresponding to the weapon allegedly used by him was found onBthe body of the deceased; and that the witnesses in their testimonies hadmade improvements at the time of the examination before the Court,casting a doubt on the case against accused No.2. The findings ofHigh Court in relation to accused No. 2 could be usefully extracted asunder: - C

“10. As far as A-2 was concerned, he had aruval and wieldedthe same, according to the witnesses examined by theprosecution. But, no corresponding injury as found. Theprosecution witnesses came forward to state that A-2 hadaruval and wielded it also. According to the prosecution,originally to start with, A-2 had aruval; but no injury wascaused which was simply warded off. But, the witnesses havemade a development at the time of the examination before theCourt, and thus, it casts a doubt whether A-2 could have beenin the place of occurrence with an aruval either, or heattacked the deceased, since no corresponding injury isfound. The evidence of these witnesses in respect of A-2, castsa doubt, and hence, it could not be taken as a proof, since itis shrouded with doubts. Under the circumstances, that partof the prosecution case in respect of A-2, cannot be believed.

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13. As regards A-2, this Court is able to see that the evidenceis shrouded with reasonable doubts, and hence, A-2 is entitledfor acquittal. Accordingly, the conviction and sentenceimposed on A-2 by the trial Court are set aside, and he isacquitted of the charge. The fine amount if any paid by him,will be refunded to him. The bail bound executed by him shallstand terminated.”

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7. For the High Court having affirmed his conviction and sentencefor the offence under Section 302 IPC, the appellant (accused No. 1)has preferred this appeal. Assailing the judgment and order so passed by H

the High Court, learned counsel for the appellant has strenuously arguedthat the present one is a clear case of exercise in good faith the right ofprivate defence since the appellant was only trying to protect his wifefrom being assaulted and molested by the deceased who had illegallyentered into their house and, in natural circumstances, the appellantattacked the deceased with the object that was accessible to him. Thelearned counsel would submit that even if the accused does not pleadself-defence, it is open to consider such a plea if the same arises fromthe material on record; and the burden could be discharged by the accusedby showing preponderance of probabilities in favour of that plea on thebasis of material available on record. The learned counsel has referredto several decisions, including those in Munshi Ram & Ors. v. DelhiAdministration: (1968) 2 SCR 455; James Martin v. State of Kerala:(2004) 2 SCC 203; Darshan Singh v. State of Punjab and Anr.:(2010) 2 SCC 333; and Sukumaran v. State: 2019 SCC Online SC339. According to the learned counsel, on the facts and in thecircumstances available on record, the case of right of private defencedeserves to be accepted. The learned counsel has also argued that inany event, the present one had been a case of sudden fight and graveand sudden provocation for the reason that the deceased entered thehouse of the appellant and attempted to cause harm to the family of theappellant. Therefore, according to the learned counsel, the action of theappellant does not lead to the offence of murder and it would, at themost, be a case of culpable homicide where the appellant had no intentionof causing death or causing such bodily injury as is likely to cause death.In support of these contentions, the learned counsel has referred to andrelied upon the decisions in Budhi Singh v. State of Himachal Pradesh:(2012) 13 SCC 663 and Surain Singh v. State of Punjab: (2017) 5SCC 796.

8. Per contra, learned counsel for the respondent would arguethat the appellant had the intention of causing death of the deceasedbecause of enmity; and prior to the incident in question, the accused hadcategorically expressed his intention to kill the deceased. Learned counselwould submit that the witnesses have established the fact that the placeof occurrence was the road opposite to the house of the appellant and inthe given circumstances, the case had neither been of the exercise ofthe right of private defence nor of provocation and sudden fight; and theact of the appellant squarely falls under the principal part of Section 300IPC because of the nature of fatal injury inflicted upon the deceased on AB

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Athe vital part of his body with a dangerous weapon. Hence, according tothe learned counsel, the appellant is not entitled to the benefit of any ofthe Exceptions of Section 300 IPC. Learned counsel has referred to andrelied upon the decisions in Pulicherla Nagaraju alias Nagaraja Reddyv. State of A.P.: (2006) 11 SCC 444 and Gudar Dusadh v. State ofBihar: (1972) 3 SCC 118.B

9. Having given anxious consideration to the rival submissionsand having examined the record with reference to the law applicable,we are clearly of the view that in the given set of facts and circumstances,the appellant deserves to be convicted for the offence under Part-I ofSection 304 IPC, for the offence of culpable homicide not amounting toCmurder.

10. The principal part of Section 299 IPC specifying the offenceof culpable homicide reads as under: - “299. Culpable homicide. -Whoever causes death byDdoing an act with the intention of causing death, or with theintention of causing such bodily injury as is likely to causedeath, or with the knowledge that he is likely by such act tocause death, commits the offence of culpable homicide.

10.1. The principal part of Section 300 IPC specifies the offenceof murder as follows: -E

“300. Murder. - Except in the cases hereinafterexcepted, culpable homicide is murder, if the act by which thedeath is caused is done with the intention of causing death,or- F

Secondly.- If it is done with the intention of causing such bodilyinjury as the offender knows to be likely to cause the deathof the person to whom the harm is caused, or- Thirdly.- If it is done with the intention of causing bodily injuryto any person and the bodily injury intended to be inflicted isGsufficient in the ordinary course of nature to cause death, or- Fourthly.- If the person committing the act knows that it is soimminently dangerous that it must, in all probability, causedeath or such bodily injury as is likely to cause death, andcommits such act without any excuse for incurring the risk ofcausing death or such injury as aforesaid.”

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[DINESH MAHESHWARI, J.]

10.2. The aforesaid description of the offence of murder in Section300 IPC is subject to five exceptions. Exceptions 1, 2 and 4 thereof,being relevant for the present purpose, could also be taken note of asunder: - “Exception 1. When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived ofthe power of self-control by grave and sudden provocation, causesthe death of the person who gave the provocation or causes thedeath of any other person by mistake or accident.

The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarilyprovoked by the offender as an excuse for killing or doing harm toany person.

Secondly.-That the provocation is not given by anything donein obedience to the law, or by a public servant in the lawful exerciseof the powers of such public servant.

Thirdly.-That the provocation is not given by anything done inthe lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and suddenenough to prevent the offence from amounting to murder is aquestion of fact.”

Exception 2.-Culpable homicide is not murder if the offender,in the exercise in good faith of the right of private defence of personor property, exceeds the power given to him by law and causes thedeath of the person against whom he is exercising such right ofdefence without premeditation, and without any intention of doingmore harm than is necessary for the purpose of such defence.”

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Exception 4.-Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upona sudden quarrel and without the offender having taken undueadvantage or acted in a cruel or unusual manner.

Explanation.- It is immaterial in such cases which party offersthe provocation or commits the first assault.********* “

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A10.3 While Section 302 IPC provides the punishment for murder,Section 304 thereof provides the punishment for culpable homicide notamounting to murder. For its relevance, we may also extract Section304 IPC as under:-

“304. Punishment for culpable homicide not amounting toBmurder.- Whoever commits culpable homicide not amountingto murder shall be punished with imprisonment for life, orimprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine, if the actby which the death is caused is done with the intention ofcausing death, or of causing such bodily injury as is likely toCcause death, or with imprisonment of either description for a termwhich may extend to ten years, or with fine, or with both, ifthe act is done with the knowledge that it is likely to causedeath, but without any intention to cause death, or to causeDsuch bodily injury as is likely to cause death.”

11. We may now briefly refer to the decisions cited by the learnedcounsel for the parties.

11.1. The principles in the case of Gudar Dusadh (supra), asEregards the operation of clause “Thirdly” of Section 300 IPC are not ofany dispute but the same would apply with reference to the facts andcircumstances of each case. On the facts of the case of PulicherlaNagaraju (supra), this Court noticed that there was previous enmitybetween the parties and half an hour before the incident, father andbrother of the deceased had been attacked by the appellant and hisFfather and there was no indication of any cause for an apprehensionthat the deceased might attack the appellant. In the given fact situation,this Court found that the act of the appellant causing an injury on a vitalpart of the body by stabbing with great force had been of the offence ofmurder.G11.2. The principles in Munshi Ram and other cited decisions onbehalf of the appellant, that the plea of self defence could be consideredif arising from the material on record and the burden could be dischargedby the accused by showing preponderance of probabilities in favour ofthat plea, are also neither of doubt nor of dispute. The question, however,would remain as to whether the appellant has been able to show aH

reasonable apprehension so as to put the right of self defence intooperation. In Budhi Singh and Surain Singh (supra), the accused personswere convicted for offences under Section 304 Part-I and Section 304Part-II respectively in view of the facts of the given case. In the ultimateanalysis, each case is required to be examined on its own facts to findthe nature of offence.

12. Reverting to the case at hand, as noticed, one of thefundamental features of this case had been that the appellant, his brotherand his wife were arrayed as accused Nos. 1, 2 and 3 respectively withthe imputations that these three persons had acted in furtherance ofcommon intention where they intercepted the deceased when he wascrossing the lane in front of the house of the appellant; where brother ofthe appellant (i.e., accused No. 2) attacked the deceased with sickle buthis blow was blocked by the deceased; where the accused No. 3ambushed the deceased; and where the appellant stabbed the deceasedwith the spike. The prosecution suggested that the occurrence took placeon the opposite side of the road in front of the house of the appellant but,on the other hand, it was suggested on behalf of the accused that thedeceased barged into the house of the appellant and tried to assault andmolest the wife of the appellant (i.e., accused No. 3); and that thedeceased was attacked by the appellant in exercise of right of privatedefence. We shall discuss the other aspects of the matter, including thoserelating to the place of occurrence, a little later. Significant it is to noticeat this juncture that in relation to the case so set up by prosecution, theTrial Court, even while accepting the evidence of PW-1 to PW-4 inrespect of the appellant and accused No. 2, did not accept the same inrespect of accused No. 3 and held that the charge levelled against herwas not proved. Moreover, the acquittal of accused No. 3 by the TrialCourt was never challenged. The appellant and the accused No. 2 laidchallenge to their conviction and sentence in appeal before the HighCourt. The High Court, though accepted the prosecution case in respectof the appellant and affirmed his conviction and sentence but, at thesame time, disbelieved the prosecution case in relation to the accusedNo. 2 and proceeded to acquit him. The aforesaid findings of the HighCourt and acquittal of accused No. 2 have also not been challenged bythe prosecution. In the net result of the respective decisions of the TrialCourt and the High Court, the prosecution case as regards accused No.2 and accused No. 3, respectively the brother and the wife of the appellant,is found unbelievable and stands rejected. As noticed, the assertions by AB

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Athe prosecution witnesses had been that the three accused persons actedin concert while attacking the deceased and that each of the accusedperson played his or her specific role in the occurrence. Now, when theprosecution case is disbelieved in relation to the accused Nos. 2 and 3,the questions perforce arise as to whether the implicating parts of theprosecution evidence qua the appellant could be segregated from theBother part/s and as to whether it would be safe to accept the prosecutioncase against the appellant alone?

13. The question relating to the propriety of conviction of oneaccused even while the co-accused persons are acquitted has receivedattention of this Court in several decisions. With reference to the principlesCenunciated in the past decisions, this Court observed in the case of YanobSheikh alias Gagu v. State of West Bengal: (2013) 6 SCC 428 thatacquittal of co-accused per se is not sufficient to result in acquittal ofthe other accused; and the Court ought to examine the entire prosecutionevidence in its correct perspective before it could conclude on the effectDof acquittal of one accused on the other in the facts and circumstance ofthe given case. In the case of Dalbir Singh v. State of Haryana: (2008)11 SCC 425, this Court extracted the principles propounded in the caseof Krishna Mochi v. State of Bihar: (2002) 6 SCC 81 and observedas under: - E“13. Coming to the applicability of the principle of falsus inuno, falsus in omnibus, even if major portion of evidence isfound to be deficient, residue is sufficient to prove guilt of anaccused, notwithstanding acquittal of large number of otherco-accused persons, his conviction can be maintained.However, where large number of other persons are accused,Fthe court has to carefully screen the evidence:

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‘51. … It is the duty of the court to separate the grainfrom the chaff. Where the chaff can be separated fromgrain, it would be open to the court to convict an accusednotwithstanding the fact that evidence has been found toGbe deficient to prove guilt of other accused persons. Falsityof particular material witness or material particular wouldnot ruin it from the beginning to end. The maxim falsus inuno, falsus in omnibus has no application in India and thewitnesses cannot be branded as liars. The maxim falsus inuno, falsus in omnibus (false in one thing, false in everything)

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has not received general acceptance in differentjurisdiction nor has this maxim come to occupy the statusof a rule of law. It is merely a rule of caution. All that itamounts to, is that in such cases testimony may bedisregarded, and not that it must be disregarded. Thedoctrine merely involves the question of weight of evidencewhich a court may apply in a given set of circumstances,but it is not what may be called ‘a mandatory rule ofevidence’. (See Nisar Ali v. State of U.P. [AIR 1957 SC366]). Merely because some of the accused persons havebeen acquitted, though evidence against all of them, sofar as direct testimony went, was the same does not lead asa necessary corollary that those who have been convictedmust also be acquitted. It is always open to a court todifferentiate the accused who had been acquitted from thosewho were convicted. (See Gurcharan Singh v. State ofPunjab [AIR 1956 SC 460]). The doctrine is a dangerousone, specially in India, for if a whole body of the testimonywere to be rejected, because the witness was evidentlyspeaking an untruth in some aspect, it is to be feared thatadministration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to astory, however, true in the main. Therefore, it has to beappraised in each case as to what extent the evidence isworthy of acceptance, and merely because in some respectsthe court considers the same to be insufficient for placingreliance on the testimony of a witness, it does notnecessarily follow as a matter of law that it must bedisregarded in all respects as well. The evidence has to besifted with care. The aforesaid dictum is not a sound rulefor the reason that one hardly comes across a witness whoseevidence does not contain a grain of untruth or at anyrate exaggeration, embroideries or embellishment. (SeeSohrab v. State of M.P.[(1972) 3 SCC 751] and Ugar Ahirv. State of Bihar [AIR 1965 SC 277]). An attempt has to bemade to in terms of felicitous metaphor, separate grain fromthe chaff, truth from falsehood. Where it is not feasible toseparate the truth from falsehood, because grain and chaffare inextricably mixed up, and in the process of separation AB

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an absolutely new case has to be reconstructed bydivorcing essential details presented by the prosecutioncompletely from the context and the background againstwhich they are made, the only available course to be madeis discard the evidence in toto. (See Zwinglee Ariel v. Stateof M.P. [AIR 1954 SC 15] and Balaka Singh v. State ofPunjab[(1975) 4 SCC 511]). As observed by this Court inState of Rajasthan v. Kalki [(1981) 2 SCC 752] normaldiscrepancies in evidence are those which are due to normalerrors of observations, normal errors of memory due tolapse of time, due to mental disposition such as shock andhorror at the time of occurrence and these are always therehowever honest and truthful a witness may be. Materialdiscrepancies are those which are not normal and notexpected of a normal person. Courts have to label thecategory to which a discrepancy may be categorised. Whilenormal discrepancies do not corrode the credibility of aparty’s case, material discrepancies do so.”

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13.1. Hence, where this Court found that separation of truth fromfalsehood was not feasible because of the two being inextricably mixedup, the prosecution evidence was discarded in toto[1]. However, on thefacts of other cases[2], this Court found that acquittal of co-accused didEnot enure to the benefit of the convicted accused.

14. It could be usefully reiterated that in the present case, theprosecution witnesses narrated the happenings in the manner that thedeceased was waylaid by the three accused persons on the road andwhile the two male accused persons (appellant and the accused No. 2)Fassaulted the deceased with respective weapons, the accused No. 3prevented the deceased from running away. The chronology or sequenceof the actions of the accused persons had occurred slightly different inthe different testimonies but those inconsistencies, as such, may not beof material bearing if the witnesses are otherwise found reliable andGtrustworthy. However, the significant part of the matter is that suchaccounts by the witnesses stand disbelieved in relation to the accusedNo. 2 and the accused No. 3, both of whom stand acquitted. In our view, H

1 Like the cases of Zwinglee Ariel and Balaka Singh, as indicated in the extracted portionin paragraph 13 hereinabove.

2 Like those in Yanob Seikh and Dalbir Singh (supra).

when accused No. 2 and accused No. 3 are removed out of scene, theentire complexion of the prosecution story is altered on material aspectsand such an alteration cannot be ignored as being wholly immaterial orirrelevant.

14.1. In other words, if the prosecution case is taken as false (orat least doubtful) as regards accused No. 2 and accused No. 3, this partof falsehood (or doubtfulness) is difficult to be segregated for the purposeof believing the prosecution case qua the appellant alone. The exerciseof sifting the grain from the chaff in this matter would shake, ratherannihilate, the fundamentals of the prosecution case; and an entirelynew prosecution story shall have to be assumed that when the deceasedwas walking down the lane, the appellant alone jumped on him; gavehim a blow; threw the weapon towards his own house and ran away. Inour view, on the facts and in the circumstances of this case, it would beunsafe to assume such or akin scene of occurrence in replacement ofthe story propounded by the prosecution. As noticed from the decisionsabove-referred, when this Court found that separating the truth fromfalsehood was not feasible because of the two being inseparably mixedup, the prosecution case was discarded in toto. However, such a coursecannot be adopted in this case and it cannot be held that the appellantwas not involved in the occurrence or did not kill the deceased, essentiallyfor the reason that the appellant himself took the defence that he assaultedthe deceased in exercise of his right of private defence when the deceasedallegedly intruded inside his house and attempted to assault and molesthis wife. It is also noticed from the evidence on record that one injurywas caused on the person of the deceased, being a vertical stab injury of5 cm length and 2.5 cm width in front and outside the left collar bonethat had pierced the upper portion of lung through the third rib. Themedical officer PW-11 has opined that the injury in the lung was enoughto cause death and could have been caused by the spike in question.

15. In view of the above, even after disbelieving the case ofprosecution as regards the happenings, but taking into account theadmitted case of the appellant that he did inflict injury on the person ofthe deceased, the matter is required to be examined further on thequestion as to whether the appellant is entitled to be acquitted for havingjustifiably acted in exercise of the right of private defence in order tosave his wife from the alleged assault and molestation.

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A16. As regards the question as to whether the appellant has beenable to establish the case of right of private defence, we may examinehis assertion that the occurrence took place inside his house. A substantialdeal of arguments had been that admittedly, there were blood stainsoutside the house of the appellant, on the road and across the road; andthe Investigating Officer PW-14 did not carry out the investigation insideBthe house of the appellant nor investigated the private defence angle andthe original mazhar was not produced.

16.1. The contention as regards original mazhar has only beennoted to be rejected. The Trial Court has pointed out, and rightly so, thatcarbon copy of the same was produced and there was no such discrepancyCthat could be considered fatal to the prosecution. Having examined thetestimony of the Investigating Officer PW-14, we find on the materialaspects that he recovered the blood stained weapon of offence (sickle)from the raised platform of the house of appellant; and he went insidethe house of appellant too but did not find the things scattered as alleged.DHe also denied that there were cut marks on the door frame, windowglass or on the door of the house. He further denied the suggestion thatthere was blood on the vegetables inside the house of the appellant. Hefurther stated that the deceased fell down in front of the house of theappellant but a little far away; and the deceased was laid in the placewhere Rangoli was drawn in the house of one Barnabas. It is also noticedEthat as per the site plan prepared by the Investigating Officer, the widthof tar road was about 10 feet in front of the house of the appellant andhis house was just opposite to the house of Barnabas.

17. Hence, even when we find that the prosecution case cannotbe believed as projected, the defence version about the assault on andFmolestation of accused No. 3, the wife of the appellant, equally appearsto be that of overstatement/exaggeration towards the other extreme. Inother words, the part of the appellant’s suggestion that the deceasedentered his house with 5-6 persons and assaulted and molested his wifeis difficult to be accepted; neither there is any convincing evidence inGthat regard nor the circumstances of the case support this version.However, from the evidence on record, this much is apparent that bloodstains were also found at the door-step of the house of the appellant;and the weapon of offence was found at the raised platform of thehouse of the appellant. The facts and circumstances of this case give H

rise to a reasonable doubt that the incident in question, in all likelihood,took place right at the door of the house of the appellant. Admittedly, theparties were on hostile terms and they had had an argument at about 5p.m. the same day outside the house of the deceased. Therefore, thepossibility of quarrel taking place upon the deceased reaching the door-step of the appellant is not ruled out.

17.1. In the given set of fact and circumstances, burden was heavyon the prosecution to clear the doubts as to how and why the deceasedwas at the door-step of the house of the appellant; and how the bloodstains were also found at the door-step of the house of the appellant.The prosecution has not been able to remove all the obvious doubts asregards the sequence of events relating to the incident in question and asregards the actual place of occurrence.

17.2. In the given set of fact, circumstances and doubts,preponderance leans towards the probability that the occurrence tookplace just at the door-step of the house of the appellant; and the likelihoodof the deceased, who was on inimical terms with the wife of the appellant,having given reasons for provocation, by way of aggression or attemptedintrusion into the house of the appellant, is not ruled out altogether.

18. The upshot of the discussion foregoing is that the projectedstory of the prosecution cannot be accepted, particularly for the reasonthat the accused No. 2 and accused No. 3 have been acquitted and theiracquittal has attained finality. Then, the prosecution has not been able toremove all the obvious doubts as to the place and manner of occurrence,particularly as to who was the aggressor and how it started. On theother hand, the defence version that the deceased barged into the houseof the appellant with 5-6 persons and assaulted and molested his wife isalso unacceptable for want of cogent and convincing evidence. However,the preponderance remains that the occurrence, in all likelihood, tookplace just at the door-step of the house of the appellant. In the givencircumstances, the likelihood of the deceased, who was on inimical termswith the wife of the appellant, having given the reasons for provocationby way of aggression or attempted intrusion into the house of the appellantis not ruled out.

19. Having indicated the obvious but unexplained doubts in theprosecution version and having also indicated the preponderance of A

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Aprobabilities, we may usefully refer to the decision in the case of Jummanand Ors. v. The State of Punjab: AIR 1957 SC 469 wherein thisCourt has indicated the course to be followed in the case where there isambiguity in deciding the role and involvement of the parties. This Courthas said,- B“22. In such a case where a mutual conflict develops andthere is no reliable and acceptable evidence as to how itstarted and as to who was the aggressor, would it be correctto assume private defence for both sides? We are of the viewthat such a situation does not permit of the plea of privatedefence on either side and would be a case of sudden fightCand conflict and has to be dealt with under Section 300 IPC.,Exception 4.

23. The matter has to be viewed in this way. It is clear thatthere was no premeditation and therefore when the contendingfactions met accidentally and attacked each other, the conflictDresulted in a sudden fight, in the heat of passions, upon asudden quarrel and without the accused having taken undueadvantage or acted in a cruel or unusual manner. On thefinding that both the parties had arms, there was no undueadvantage taken by either. Hence Exception 4 to Section 300,EIPC., applies with the result that the offence is under Section304 (Part I), of the Indian Penal Code.”

20. In view of the foregoing and in the overall circumstances ofthis case, we are inclined to accept the alternative case of the appellantthat the incident in question took place without any premeditation, in aFsudden fight in the heat of passion upon a sudden quarrel, when thedeceased attempted entry into his house; and the appellant did neithertake any undue advantage nor acted in a cruel or unusual manner. Afortiori, we are inclined to extend the benefit of Exception 4 of Section300 IPC to the appellant. However, the act of the appellant leading tothe death having been with the intention of causing such bodily injury asGis likely to cause death, the appellant deserves to be convicted for theoffence under Part-I of Section 304 IPC.

21. Accordingly and in view of the above, this appeal is partlyallowed to the extent and in the manner that conviction of the appellant H

R. JAYAPAL v. STATE OF TAMIL NADU & ANR.[DINESH MAHESHWARI, J.]

under Section 302 IPC is altered to the one under Part-I of Section 304IPC and the appellant is sentenced to undergo imprisonment for a periodof ten years. The other part of sentence as regards fine and defaultstipulation is maintained.

Ankit Gyan

Appeal partly allowed.

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