BALU SUDAM KHALDE & ANR versus THE STATE OF MAHARASHTRA on 29 March 2023

BALU SUDAM KHALDE & ANR.

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 1910 of 2010)

MARCH 29, 2023

[SUDHANSHU DHULIA AND J.B. PARDIWALA, JJ.]

Penal Code, 1860:

ss. 302 r/w 34 – Prosecution case that verbal altercationbetween the parties resulting in a fight wherein first informantassaulted on the head and the deceased suffered severe assaultand succumbed to his injuries – Appellants convicted u/s 302 r/w34, and sentenced to life imprisonment, however, acquittal of A-2and A-4 – High Court upheld the order – Interference with – Held:Not called for – Oral evidence of all the three eyewitnesses isconsistent and no good reason for the court to disbelieve the ocularversion as narrated by the three eyewitnesses – Courts belowrecorded a concurrent finding that they are reliable witnesses –Suggestions put by the defence counsel in the cross-examination ofthe eyewitnesses establishes the presence of first informant at thescene of offence and the factum of assault could also be said tohave been admitted – PW 3 could be termed as a res gestae witness– ss. 6 and 7 of the 1872 Act, in so far as, the admissibility of astatement of the PW-3 is concerned, would be attracted – Havingregard to the nature of the injuries, they were caused by dangerousweapons which, were applied on the vital part of the body, it is acase of s. 302 – Case would not fall within the exception 4 to s. 300– Assuming that the incident had occurred in the heat of the momentand fight was also sudden, the fact that the appellants inflicted asmany as nine blows with a dangerous weapon on the deceased whowas unarmed and was helpless should not be overlooked – EvidenceAct, 1872 – s.6 and 7.

Exception 4 to Section 300 – Applicability of – Held: To bringa case within Exception 4 all the ingredients mentioned in it must befound.

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AEvidence:

Oral Evidence – Evidentiary value of – Held: Appreciationof ocular evidence is a hard task – There is no fixed or straight-jacket formula for appreciation of the ocular evidence – In assessingthe value of the evidence of the eyewitnesses, two principalBconsiderations are whether, in the circumstances of the case, it ispossible to believe their presence at the scene of occurrence or insuch situations as would make it possible for them to witness thefacts deposed to by them and secondly, whether there is anythinginherently improbable or unreliable in their evidence.

CCross-examination – Concession or admission of fact bydefence counsel – Nature – of – Held: Any concession or admissionof a fact by a defence counsel would definitely be binding on hisclient, except the concession on the point of law – Thus, thesuggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any mannerDwould definitely bind the accused – Accused cannot get away onthe plea that his counsel had no implied authority to make suggestionsin the nature of admissions against his client.

Doctrines/Principles: Principle of Res Gestae – Rule of –Held: Rule embodied in s. 6 is usually known as the rule of resEgestae – It means that a fact which, though not in issue, is soconnected with the fact in issue “as to form part of the sametransaction” becomes relevant by itself – Evidence Act, 1872 – ss.6and 7.

Dismissing the appeal, the CourtF

HELD: 1.1 The appreciation of ocular evidence is a hardtask. There is no fixed or straight-jacket formula for appreciationof the ocular evidence. [Para 25][865-E]

1.2 In assessing the value of the evidence of theeyewitnesses, two principal considerations are whether, in theGcircumstances of the case, it is possible to believe their presenceat the scene of occurrence or in such situations as would make itpossible for them to witness the facts deposed to by them andsecondly, whether there is anything inherently improbable orunreliable in their evidence. In respect of both theseH

Analysis

considerations, circumstances either elicited from thosewitnesses themselves or established by other evidence tendingto improbabilise their presence or to discredit the veracity oftheir statements, will have a bearing upon the value which a Courtwould attach to their evidence. Although in cases where the pleaof the accused is a mere denial, the evidence of the prosecutionwitnesses has to be examined on its own merits, where theaccused raise a definite plea or put forward a positive case whichis inconsistent with that of the prosecution, the nature of suchplea or case and the probabilities in respect of it will also have tobe taken into account while assessing the value of the prosecutionevidence. [Para 27][868-C-E]

1.3 The oral evidence of all the three eyewitnesses PW 1,2, 3 is consistent and there is no good reason for the Court todisbelieve the ocular version as narrated by the threeeyewitnesses. The trial court as well as the High Court lookedinto the oral evidence of all the three eyewitnesses closely andhave recorded a concurrent finding that they are reliablewitnesses. [Para 28][868-F-G]

1.4 In the exercise of the power under Article 136 of theConstitution of India, this Court, normally would not interferewith the concurrent findings of fact, except in very specialcircumstances or in the case of a gross error committed by thecourts below. Only where the High Court ignores or overlooks“crying circumstances” and “proven facts” or “violates andmisapplies well established principles of criminal jurisprudence”or refuses to give benefit of doubt to the accused persons, etc.,would this Court step in to correct the legally erroneousdecisions. Interferance is not only for the reason that this Courtmay arrive at a different conclusion, unless, there are compellingcircumstances to tinker with conclusions drawn and that theaccused were innocent/guilty. There are limitations in interferingwith the findings of conviction, concurrent in nature. [Para30][871-C-E]

1.5 The suggestion made by the defence counsel to a witnessin the cross-examination if found to be incriminating in nature inany manner would definitely bind the accused and the accusedcannot get away on the plea that his counsel had no implied ABC

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Aauthority to make suggestions in the nature of admissions againsthis client. Any concession or admission of a fact by a defencecounsel would definitely be binding on his client, except theconcession on the point of law. The submission that an answer bya witness to a suggestion made by the defence counsel in thecross-examination does not deserve any value or utility if itBincriminates the accused in any manner cannot be accepted. [Para38, 39][873-B-D]

1.6 It is a cardinal principle of criminal jurisprudence thatthe initial burden to establish the case against the accused beyondreasonable doubt rests on the prosecution. It is also an elementaryCprinciple of law that the prosecution has to prove its case on itsown legs and cannot derive advantage or benefit from theweakness of the defence. This Court is not suggesting for amoment that if prosecution is unable to prove its case on its ownlegs then the Court can still convict an accused on the strengthDof the evidence in the form of reply to the suggestions made bythe defence counsel to a witness. In the instant case, theconclusion is reached that the evidence of the three eyewitnessesinspires confidence and there is nothing in their evidence on thebasis of which it could be said that they are unreliable witnesses.Having reached to such a conclusion, to fortify the view theEsuggestions made by the defence counsel to the eyewitnessescan be looked into, the reply to those establishing the presenceof the accused persons as well as the eyewitnesses in the nighthours. To put it in other words, suggestions by itself are notsufficient to hold the accused guilty if they are incriminating in Fany manner or are in the form of admission in the absence of anyother reliable evidence on record. It is true that a suggestionhas no evidentiary value but this proposition of law would nothold good at all times and in a given case during the course ofcross-examination the defence counsel may put such a suggestionthe answer to which may directly go against the accused and thisGis exactly what happened in the instant case. [Para 40][873-E-H;874-A]

1.7 The principle of law that in a criminal case, a lawyer hasno implied authority to make admissions against his client duringthe progress of the trial would hold good only in cases whereH

dispensation of proof by the prosecution is not permissible inlaw. It is obligatory on the part of the prosecution to prove thepost mortem report by examining the doctor. The accused cannotadmit the contents of the post mortem report thereby absolvingthe prosecution from its duty to prove the contents of the samein accordance with law by examining the doctor. This is so becauseif the evidence per se is inadmissible in law then a defence counselhas no authority to make it admissible with his consent. Therefore,the suggestions made to the witness by the defence counsel andthe reply to such suggestions would definitely form part of theevidence and can be relied upon by the Court along with otherevidence on record to determine the guilt of the accused. [Para41, 42][874-B-D]

1.8 The main object of cross-examination is to find out thetruth on record and to help the Court in knowing the truth of thecase. It is a matter of common experience that many a times thedefence lawyers themselves get the discrepancies clarified arisingduring the cross-examination in one paragraph and gettingthemselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which thecounsel would keep in mind to defend the accused. [Para 43][874-E]

1.9 During the course of cross-examination with a view todiscredit the witness or to establish the defence onpreponderance of probabilities suggestions are hurled on thewitness but if such suggestions, the answer to those incriminatethe accused in any manner then the same would definitely bebinding and could be taken into consideration along with otherevidence on record in support of the same. However, it would alldepend upon the nature of the suggestions and with what idea inmind such suggestions are made to the witness. [Para 44, 45][875-F-G]

1.10 In the cross-examination of the PW-3 a suggestionwas put to him that he had inquired with PW-1 as to what hadhappened and PW-1 in turn narrated the incident to PW-3. Thissuggestion put by the defence counsel to the PW-3 was answeredin the affirmative. This part of the evidence of the PW-3 iscorroborated by the evidence of the PW-1. The reason for AB

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Areferring to the said a piece of evidence is that the PW 3 could betermed as a res gestae witness. This principle of res gestae isembodied in Section 6 of the Act 1872. What it means is that afact which, though not in issue, is so connected with the fact inissue “as to form part of the same transaction” becomes relevantby itself. To form particular statement as part of the sameBtransaction utterances must be simultaneous with the incidentor substantial contemporaneous that is made either during orimmediately before or after its occurrence. Sections 6 and 7 ofthe Act 1872 in the facts and circumstances of the case, in so faras, the admissibility of a statement of the PW-3 coming to knowCabout incident, immediately from the PW-1 that AB had beenseriously assaulted and that PW-1 had also suffered injuries andadmitted by the PW-1 in his evidence would be attracted with allits rigour. [Paras 46, 47, 49 and 50][876-E-G; 877-A; 878-D-F]

1.11 There is no dispute that the death of the deceasedDoccurred due to culpable homicide and not due to accident orsuicide. The sine qua non for the application of an Exception toSection 300 always is that it is a case of murder but the accusedclaims the benefit of the Exception to bring it out of that Sectionand to make it a case of culpable homicide not amounting tomurder. Therefore, it is assumed that this would be a case ofEmurder and it is for the accused to show the applicability of theException. [Para 57][890-E]

1.12 The extent of injuries suffered by the deceased isnoticed, as it appears from the deposition of the PW 7 who carriedout the post mortem. Having regard to the nature of the injuriesFcaused by dangerous weapons like sickle and sword which, wereapplied on the vital part of the body, there is no escape from theconclusion that it is a case of Section 302 IPC.[Para 60][891-B-C]

1.13 The submission that the case would fall within theGException 4 to Section 300 IPC and such benefit be extended tothe accused cannot be accepted. Assuming for the moment thatthe incident had occurred in the heat of the moment and fightwas also sudden, the fact that the appellants inflicted as many asnine blows with a dangerous weapon on the deceased who was H

unarmed and was helpless should not be overlooked. For casesto fall within clause (3) of Section 300 IPC, it is not necessarythat the offender intended to cause death, so long as the deathensues from the intentional bodily injury or injuries sufficient tocause death in the ordinary course of nature. Thus, no case ismade out by the appellants to interfere with the impugnedjudgment and order of the High Court. [Para 61, 62][891-C-F]

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. Stateof Haryana AIR 1995 SC 3717; Tahsildar Singh v. Stateof UP AIR 1959 SC 1012 : [1959] Suppl. SCR 875 –relied on.

Rakesh Kumar alias Babli v. State of Haryana (1987) 2SCC 34; Tarun Bora alias Alok Hazarika v. State ofAssam 2002 Cri. LJ 4076; Rajwant Singh v. State ofKerala AIR 1966 SC 1874 : [1966] Suppl. SCR 230;State of Andhra Pradesh v. Rayavarapu Punnayya andAnother (1976) 4 SCC 382 : [1977] 1 SCR 601; Sukharv. State of U.P. (1999) 9 SCC 507 : [1999] 3 Suppl.SCR 314; Govind s/o Soneram v. State of M.P. (DB)2005 Cri.LJ 1244; Parkash Chand v. State of HimachalPradesh (2004) 11 SCC 381 : [2004] 3 Suppl. SCR389 – referred to.

Case Law Reference

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1910 of 2010.

From the Judgment and Order dated 02.03.2009 of the High Courtof Judicature at Bombay in CRLA No. 637 of 2003.

K. L. Janjani, Pankaj Kumar Singh, Dr. Vinod Kumar Tewari,BKailash J. Kashyap, Advs. for the Appellants.

Abhikalp Pratap Singh, Siddharth Dharmadhikari, AadityaAniruddha Pande, Bharat Bagla, Sourav Singh, Ms. Shreya Saxena, Ms.Yamini Singh, Advs. for the Respondent.

CThe Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. This appeal by special leave is at the instance of two convictpersons and is directed against the judgment and order dated 02.03.2009passed by the High Court of Judicature at Bombay in Criminal AppealDNo. 637 of 2003 by which the High Court dismissed the criminal appealreferred to above, and thereby affirmed the order of conviction and theconsequence sentence dated 12.03.2003 passed by the learned AdditionalSessions Judge, Pune dated 12.03.2003 in Sessions Case No. 323 of2001, by convicting both the appellants herein for the offence underSection 302 read with Section 34 of the Indian Penal Code, 1860 (forEshort, ‘the IPC’) and sentencing them to suffer life imprisonment and afine of Rs. 1000/- each with the stipulation that in default of payment ofthe fine they would undergo rigorous imprisonment for further six months.

2. It may not be out of place to state at this stage that in all fourpersons were put to trial including the two appellants herein in the CourtFof the Additional Sessions Judge, Pune for the offence punishable underSections 302 and 323 read with Section 34 of the IPC. The appellantsherein are original accused Nos. 1 and 3 resply. The original accusedNo. 2 and 4 resply were acquitted by the Trial Court.

CASE OF THE PROSECUTIONG

3. The case of the prosecution as unfolded in the evidence of theprosecution witnesses and also detailed in the first information report isthat on the fateful day of the incident i.e., on 01.04.2001 at about 11.15p.m., the first informant PW 1, namely, Asgar Shaikh (Ex. 7) was chitchatting with his friend Abbas Baig (deceased). At that time, while theH

appellant No. 2 herein accompanied by few other individuals was passingby the side, he was accosted by the deceased Abbas. There was someverbal altercation between the two. After sometime the appellant No. 2herein accompanied by the appellant No. 1 herein and the other two co-accused who came to be acquitted by the Trial Court reached at thespot. A fight ensued in which, the first informant PW 1 Asgar Shaikhwas assaulted on his head by means of weapons like sickle and sword.This assault on the head of the first informant PW 1 is alleged to havebeen laid by the appellant No. 1 herein. The first informant suffered ableeding injury on his head. Thereafter, a severe assault was laid on thedeceased Abbas Baig by means of a sickle and sword. It is the case ofthe prosecution that the appellants herein had dangerous weapons intheir hands in the form of a sword and sickle. The deceased Abbas Baigsuffered serious injuries on his body and ultimately succumbed to suchinjuries.

4. A first information report was lodged on 2.04.2002 by the PW1 at around 2 a.m. i.e., just within three hours from the time of theincident. The deceased Abbas Baig having suffered serious bleedinginjuries was taken to the hospital in a rickshaw owned by the PW 3,namely, Nasir Khan. The deceased upon reaching the hospital wasdeclared dead.

5. The FIR Exh. 8 lodged by the PW 1 viz. Asgar Shaikh readsthus:- “I Ajgar Ibrahim Shaikh aged 22 years, Occupation Turner,residing at 54 BP/251 Lohia Nagar, slum area, Pune. I herebylodge my complaint as under:

I am residing at the aforementioned address with my mother,father and sister. I have been working as a turner past threeyears in the workshop owned by Abdul Wahab Shaikh situatedat Guruwar Peth, Pune in the name of New QualityInstruments. Yesterday, i.e., on 1.4.2001, I left my house at9.00 AM for reporting at the workshop. I worked out at theworkshop for whole day and came back at 7.00 PM. I hadmy dinner at 11.15 PM in the night and thereafter went outsideas I wanted to have paanmasala. When I reached somewherenear the shop by name Shri Sai Car Auto Consultant, I metmy friend Abbas Baig (deceased) also a resident of AB

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ALohianagar, slum area, Pune. I started cheating with my friendAbbas. At that point of time, Santosh Khalde and one anotherboy were passing through the place where, we were talking.My friend Abbas saw Santosh and told me that “Itni Raat KoMaa Chudane Ke Liye Kaha Ja Raha Hai? Tumhara plankya hai”. Santosh replied that he had no plan and wasBproceeding to answer nature’s call. At around 11.45 PM, fourpersons, namely, Balu Khalde, Ramesh Mohite, Raju Mohiteand Santosh Khalde assembled and started talking with us.At that time, Balu khale told him “Bajula Haat”. Abbas Baigtold Balu Khalde that “Usse kya baat kar raha hai?” talk toCme. At that time, I told them “Kaiko Lafda Kar Rahe Ho?”Balu Khalde took out a weapon like Koita which he hadhidden in his waist and hit me on my head. Ramesh Mohitecaught hold of Abbas Baig and Balu Khalde stabbed him witha small bladed sword. We started shouting. One FirozBabumian Shaikh residing in the neighbourhood came out ofDhis house and told Raju Mohite “What are you fighting about?”Santosh Khalde abused Firoz Babumian. When people startedassembling at the place of the occurrence, all the fourassailants ran away. Abbas Baig was seriously injured andhe fell down. He had suffered injuries on his left paw, wrist,Eright hand and right shoulder. He was bleeding profusely. Ipicked up Abbas in an injured condition and took him nearbychokadi. At that point of time, one Nasir a rickshaw driverknown to us also living in the same slum came over there. Irequested Nasir to keep a watch on Abbas Baig as he wouldreach and call the police. Accordingly, I alongwith FirozFShaikh went to Lohianagar Police Station and informed aboutthe incidence to the police. The police arrived and immediatelyshifted Abbas Baig to the nearby Sassoon Hospital. However,Abbas Baig was declared dead by the doctor at the hospital.”

6. The inquest panchnama of the dead body of the deceased wasGdrawn at the hospital itself. As a part of the investigation, the scene ofoffence panchnama was drawn. The clothes of the deceased stainedwith blood were collected and sent to the forensic science laboratory forchemical analysis. All the four accused were arrested by the police. Theclothes of all the accused were collected and sent to the FSL. The deadHbody of the deceased was sent for post mortem. While the appellants herein were in police custody, they are said to have made statements ontheir own free will and volition that they would show the place wherethey had concealed the weapons of offence i.e. the sickle and the sword.Ultimately, the discovery panchnamas were drawn in presence of thepanch witnesses. The statements of various other witnesses wererecorded by the police.

7. At the end of the investigation chargesheet was filed for theoffence punishable under Section 302 read with Section 34 of the IPC,in the Court of the learned Magistrate. The learned Magistrate committedthe case to the Court of Sessions as the offence was exclusively triableby the Court of Sessions.

8. The Trial Court framed the following charge vide Exh.8. Thetranslated version of the charges framed against the appellants are quotedbelow:

“1. That you accused Nos. 1 to 4, on 01.04.2001, at about11.45 P.M. or thereabout, at Plot No. 54/BP, Lohiyanagar,Pune, in front of shop named as Shri Sai Car Auto Consultant,either individually or in furtherance of your commonintention, did commit murder, by intentionally or knowinglycausing the death of Abbas Sanaulla Beg, and therebycommitted an offence punishable either under Section 302 ofthe Indian Penal Code simpliciter or Section 302 read with34 of the Indian Penal Code, and within my cognizance.

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2) That you accused Nos. 1 to 4, on the aforesaid day, date,time and place and during the course of the same transaction,either individually or in furtherance of your commonintention, voluntarily caused hurt to complainant AjgarIbrahim Shaikh, and thereby committed an offence punishableunder Section 323 of the Indian Penal Code simplicetor orSection 323 read with Section 34 of the Indian Penal Code,and within my cognizance. “

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3) That you accused Nos. 1 to 4, on the aforesaid day, date,time and place and during the course of the same transaction,either individually or in furtherance of your common A

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intention, voluntarily caused hurt to complainant AjgarIbrahim Shaikh, by means of sickle and sword, which if usedas a weapon of offence, would likely to cause death of saidcomplainant, and thereby committed an offence punishableunder Section 324 of the Indian Penal Code simplicetor orSection 324 read with Section 34 of the Indian Penal Code,and within my cognizance.

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4) That you accused Nos. 1 to 4, on the aforesaid day, date,time and place and during the course of the same transaction,Ceither individually or in furtherance of your commonintention, intentionally insulted and thereby gave protectionto the complainant Ajgar Ibrahim Shaikh, intending orknowing it to be likely that such provocation will cause thesaid complainant to commit breach of public peace, andthereby committed an offence punishable under Section 504Dof the Indian Penal Code simplicetor or Section 504 readwith Section 34 of the Indian Penal Code and within mycognizance.

AND I hereby direct that you be tried by me on the aforesaidcharges.”

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9. The prosecution adduced the following oral evidence in supportof its case:

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10. The following pieces of documentary evidence were adducedby the prosecution:

(i) Inquest Panchnama

(ii) Post mortem report

(iii) Spot Panchnama (scene of offence panchnama)

(iv) Arrest and Personal search

(v) Seizure of clothes of complainant

(vi) Seizure of clothes of deceased

11. After completion of the oral as well as the documentaryevidence of the prosecution, the statements of the appellants herein underSection 313 of the Code, of Criminal Procedure (for short, ‘the CrPC’)were recorded in which the appellants herein stated that the complaintwas a false one. They further stated in their written statement underSection 313 of the CrPC that they were workers of one Hindi EktaMandal. On 09.03.2001, tension mounted between the Hindus and theMuslims as some people from the minority community damaged the idolof Ganesh. A report with the police was lodged in that regard. In suchcircumstances, the witnesses deposed falsely against them.

12. At the conclusion of the trial, the learned Trial Judge convictedthe appellants herein for the offence punishable under Section 302 readwith Section 34 IPC and sentenced both as stated hereinbefore. Theoriginal accused Nos. 2 and 4 were ordered to be acquitted of all thecharges.

13. In such circumstances referred to above, the two appellantsare here before this Court with the present appeal.

SUBMISSIONS ON BEHALF FOF THE APPELLANTS

14. The learned counsel appearing for the appellants vehementlysubmitted that the High Court committed a serious error in dismissingthe appeal filed by the two appellants herein against the judgment andorder of conviction passed by the Trial Court. According to the learnedcounsel, the High Court failed to appreciate that no reliance could havebeen placed on the evidence of the so called eyewitnesses. Accordingto the learned counsel, the ocular version on record does not inspire anyconfidence and deserves to be discarded.

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A15. The learned counsel further submitted that the very presenceof the first informant PW 1 Asgar Shaikh is doubtful because althoughhe claims to have suffered an injury on his head during the assault yet nomedical treatment was taken by him and there is no medical certificateon record that he had suffered any injury on his head. In suchcircumstances, according to the learned counsel, the entire firstBinformation report, at the instance of the PW 1 is unreliable.

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16. The learned counsel further submitted that the discovery ofthe weapons under Section 27 of the Indian Evidence Act, 1872 (forshort, ‘the Act 1872’) could also not have been relied upon as the panchwitnesses failed to support the case of the prosecution or rather failed toCprove the contents of the panchnama.

17. In the last, the learned counsel appearing for the appellantsvehemently submitted that even if the entire case of the prosecution isbelieved to be true, the case at the most would be one of culpable homicidenot amounting to murder. According to the learned counsel, the caseDfalls within the purview of Exception 4 to Section 300 of the IPC.

18. In such circumstances referred to above, the learned counselprays that there being merit in his appeal, the same may be allowed andthe appellants be acquitted of all the charges. In the alternative, he prayedthat the conviction may be altered from one under Section 302 of theEIPC to Section 304 Part 1 of the IPC by giving benefit of Exception 4 tothe Section 300 of the IPC.

SUBMISSIONS ON BEHALF OF THE STATE

19. Mr. Abhikalp Pratap Singh, the learned counsel appearing forFthe State of Maharashtra, on the other hand has vehemently opposedthis appeal submitting that no error not to speak of any error of law canbe said to have been committed by the High Court in dismissing theappeal thereby affirming the order of conviction and the consequencesentence passed by the Trial Court.

20. He would submit that there is no good reason to doubt theGocular version of the eyewitnesses, which has come on record. He furthersubmitted that was no good reason for the eyewitnesses to falselyimplicate the appellants herein in the alleged crime.

21. The learned counsel submitted that no case is made out tobring the case within the ambit of Exception 4 to Section 300 of the IPC.H

He vehemently submitted that as many as nine injuries were inflicted onthe body of the deceased by dangerous weapons like sickle and sword.The appellants herein can be said to have taken undue advantage andacted in a cruel manner.

22. In the last, the learned counsel appearing for the State submittedthat the discovery of the weapons points towards the conduct of theaccused persons and such conduct is a relevant fact under Section 8 ofthe Act 1872 which taken together with the ocular version supports thecase of the prosecution in toto.

23. In such circumstances referred to above, the learned counselappearing for the State prayed that there being no merit in the presentappeal, the same may be dismissed.

ANALYSIS

24. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is whether the High Court committed anyerror in passing the impugned judgment and order.

APPRECIATION OF ORAL EVIDENCE

25. The appreciation of ocular evidence is a hard task. There isno fixed or straight-jacket formula for appreciation of the ocular evidence.The judicially evolved principles for appreciation of ocular evidence in acriminal case can be enumerated as under:

“I. While appreciating the evidence of a witness, the approachmust be whether the evidence of the witness read as a wholeappears to have a ring of truth. Once that impression is formed, itis undoubtedly necessary for the Court to scrutinize the evidencemore particularly keeping in view the deficiencies, drawbacks andinfirmities pointed out in the evidence as a whole and evaluatethem to find out whether it is against the general tenor of theevidence given by the witness and whether the earlier evaluationof the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had theopportunity to form the opinion about the general tenor of evidencegiven by the witness, the appellate court which had not this benefitwill have to attach due weight to the appreciation of evidence bythe trial court and unless there are reasons weighty and formidable A

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it would not be proper to reject the evidence on the ground ofminor variations or infirmities in the matter of trivial details.

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III. When eye-witness is examined at length it is quite possiblefor him to make some discrepancies. But courts should bear inmind that it is only when discrepancies in the evidence of a witnessare so incompatible with the credibility of his version that the courtis justified in jettisoning his evidence.

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IV. Minor discrepancies on trivial matters not touching the coreof the case, hyper technical approach by taking sentences tornout of context here or there from the evidence, attachingCimportance to some technical error committed by the investigatingofficer not going to the root of the matter would not ordinarilypermit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling inthe narration of an incident (either as between the evidence ofDtwo witnesses or as between two statements of the same witness)is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess aphotographic memory and to recall the details of an incident. It isnot as if a video tape is replayed on the mental screen.

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VII. Ordinarily it so happens that a witness is overtaken by events.The witness could not have anticipated the occurrence which sooften has an element of surprise. The mental faculties thereforecannot be expected to be attuned to absorb the details.

VIII. The powers of observation differ from person to person.What one may notice, another may not. An object or movementmight emboss its image on one person’s mind whereas it might gounnoticed on the part of another.

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IX. By and large people cannot accurately recall a conversationand reproduce the very words used by them or heard by them.They can only recall the main purport of the conversation. It isunrealistic to expect a witness to be a human tape recorder.

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X. In regard to exact time of an incident, or the time duration ofan occurrence, usually, people make their estimates by guess workon the spur of the moment at the time of interrogation. And onecannot expect people to make very precise or reliable estimates H

in such matters. Again, it depends on the time-sense of individualswhich varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accuratelythe sequence of events which take place in rapid succession or ina short time span. A witness is liable to get confused, or mixed upwhen interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed bythe court atmosphere and the piercing cross examination by counseland out of nervousness mix up facts, get confused regardingsequence of events, or fill up details from imagination on the spurof the moment. The sub-conscious mind of the witness sometimesso operates on account of the fear of looking foolish or beingdisbelieved though the witness is giving a truthful and honestaccount of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with theevidence need not necessarily be sufficient to amount tocontradiction. Unless the former statement has the potency todiscredit the later statement, even if the later statement is atvariance with the former to some extent it would not be helpful tocontradict that witness.”

[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of HaryanaAIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR1959 SC 1012)]

26. When the evidence of an injured eye-witness is to beappreciated, the under-noted legal principles enunciated by the Courtsare required to be kept in mind:

(a) The presence of an injured eye-witness at the time and placeof the occurrence cannot be doubted unless there are materialcontradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must bebelieved that an injured witness would not allow the real culpritsto escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary valueand unless compelling reasons exist, their statements are not tobe discarded lightly.

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A(d) The evidence of injured witness cannot be doubted on accountof some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments inthe evidence of an injured witness, then such contradiction,exaggeration or embellishment should be discarded from theBevidence of injured, but not the whole evidence.(f) The broad substratum of the prosecution version must be takeninto consideration and discrepancies which normally creep due toloss of memory with passage of time should be discarded.

27. In assessing the value of the evidence of the eyewitnesses,Ctwo principal considerations are whether, in the circumstances of thecase, it is possible to believe their presence at the scene of occurrenceor in such situations as would make it possible for them to witness thefacts deposed to by them and secondly, whether there is anythinginherently improbable or unreliable in their evidence. In respect of bothDthese considerations, circumstances either elicited from those witnessesthemselves or established by other evidence tending to improbabilisetheir presence or to discredit the veracity of their statements, will have abearing upon the value which a Court would attach to their evidence.Although in cases where the plea of the accused is a mere denial, theevidence of the prosecution witnesses has to be examined on its ownEmerits, where the accused raise a definite plea or put forward a positivecase which is inconsistent with that of the prosecution, the nature ofsuch plea or case and the probabilities in respect of it will also have to betaken into account while assessing the value of the prosecution evidence.

28. Keeping the aforesaid principles of law in mind, we lookedFinto the oral evidence of all the three important witnesses i.e., PW 1Asgar Shaikh (Exh. 7), PW 2 Firoz Babumiyan Shaikh (Exh. 9) and PW3 Nasir Khan (Exh. 10). The oral evidence of all the three eyewitnessesis consistent and there is no good reason for us to disbelieve the ocularversion as narrated by the three eyewitnesses. The Trial Court as wellGas the High Court looked into the oral evidence of all the threeeyewitnesses referred to above closely and have recorded a concurrentfinding that they are reliable witnesses.

29. The High Court in its impugned judgment observed in paras 9and 10 resply as under:

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“9. First, it is argued on behalf of the Appellants the learnedCounsel that the substantive evidence of P.W. Nos. 1 and 2,alleged eyewitnesses cannot be taken as trustworthy, in asmuch as they are interested and related witnesses to thedeceased Abbas Baig. Secondly, it is argued that there wasno immediate disclosure of the names of the accused personswhen the injured Abbas was brought to Lohiyanagar PoliceChowki and when said Abbas and both the injured P.W. Nos.1 and 2 were sent to Sasoon Hospital for medical treatmentno history of assault was given. Thirdly, it is argued that P.W.1, complainant had improved on his story by mentioning thatAbbas had sustained injuries on his head and it was not somentioned by him while giving his complaint. Fourthly, it isargued that the main vital injury was in the normal course ofevents, sufficient to cause the death of Abbas is injury No.9as per the Post Mortem report was attributed to only accusedNo.3 i.e. Appellant No.2 as it was made by use of a swordand as such it was not the injury inflicted by Appellant No.1accused. By canvassing such last argument, it emphasized onbehalf of the Appellant that the death of Abbas was causeddue to the injury at serial no. 9 in the Post Mortem report andas such the Appellant accused No.1 could not be heldresponsible for the death of Abbas, further argued.

10. While dealing with such arguments, on behalf of theAppellants as mentioned above, we have carefully gone throughthe substantive evidence of P.W.1 and 2 and also of theincidental witness, corroborating the major part of the eventsi.e. P.W.No.3 and it must be said that immediately after reachingLohianagar Police Chowki a complaint was lodged by P.W.1and by that time said Abbas was also brought to the PoliceChowki and was subsequently referred to Sasoon Hospitalfor treatment, however, declared, dead on admission. It is alsoin the substantive evidence of P.W.1 that he and P.W.2 attendedthe Sasoon Hospital along with police yadi for gettingtreatment, it is a factual position that there is no medicalcertificate brought on record by the prosecution regardinginjury sustained by P.W. Nos. 1 and 2 and as such factualposition prompted the Sessions Court to hold that there wasno charge established for the offence punishable under ABC

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ASection 324 read with Section 34 of Indian Penal Code forthe assault on the witness No. 1, the complainant. It is alsoobserved that the death of Abbas was due to multiple injuriesthough as opined by the Medical Officer, P.W. No.7, the maininjury which could have in the normal course caused deathof Abbas, is injury No.9 mentioned in the Post Mortem report.BIn other words, it must be said that all the injuries sustainedby Abbas were the cause of his resultant death and that a rolewas attributed to the accused Appellants using the respectiveweapons i.e. Article No.16 sickle and Article No. 17 a sword.”

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30. In the exercise of the power under Article 136 of theCConstitution of India, this Court, normally would not interfere with theconcurrent findings of fact, except in very special circumstances or inthe case of a gross error committed by the courts below. Only wherethe High Court ignores or overlooks “crying circumstances” and “provenfacts” or “violates and misapplies well established principles of criminalDjurisprudence” or refuses to give benefit of doubt to the accused persons,etc., would this Court step in to correct the legally erroneous decisions.We are also not to interfere only for the reason that we may arrive at adifferent conclusion, unless, of course, there are compelling circumstancesto tinker with conclusions drawn and that the accused were innocent/guilty. Undoubtedly, there are limitations in interfering with the findings Eof conviction, concurrent in nature.

31. In the course of hearing of this appeal, we also noticedsomething very important, going to the root of the matter.

32. We noticed that in the cross-examination of the original firstFinformant, PW 1 Asgar Shaikh (Exh.7), few suggestions were put tohim by the defence counsel. We quote the relevant part of the cross-examination of the first informant:

“The attack on us was sudden. The first blow was hit on myhead. I was assaulted severely on the head. Due to assault, IGsuffered a bleeding injury. It is not true that I felt giddy dueto assault. Yes I however suffered pain. At that time, I did notfeel that I should save my life. I did not feel that I should runaway or I should try to hide myself. I went towards the side ofLohiya Nagar Police Chowkey. I did feel that I was beingassaulted without any reason. Abbas was screaming while heHwas being assaulted. …”

33. We are of the view from the aforesaid that the suggestionsput by the defence counsel in the cross-examination of the eyewitnessesestablishes the presence of PW 1 Asgar Shaikh at the scene of offenceand the factum of assault could also be said to have been admitted. Thereply to the suggestions answers the submission canvassed by the learnedcounsel for the appellants that PW1 Asgar Shaikh should not be believedor relied upon as there is nothing on record to indicate that he was aninjured eyewitness. The defence could be said to have admitted thepresence of PW Asgar Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was brought to the notice of thedefence counsel, he submitted that a suggestion put by defence counselto a witness in his cross-examination has no evidentiary value and evenif the same is incriminating in any manner would not bind the accused asthe defence counsel has no implied authority to admit the guilt of thefacts incriminating the accused.

34. According to the learned counsel such suggestions could be apart of the defence strategy to impeach the credibility of the witness.The proof of guilt required of the prosecution does not depend on thesatisfaction made to a witness.

35. In Tarun Bora alias Alok Hazarika v. State of Assamreported in 2002 Cri. LJ 4076, a three Judge Bench of this Court wasdealing with an appeal against the order passed by the Designated Court,Guwahati, in TADA Sessions case wherein the appellant was convictedunder Section 365 of the IPC read with Section 3(1) and 3(5) of theTerrorists and Disruptive Activities (Prevention) Act, 1987.

36. In the aforesaid case, this Court, while considering the evidenceon record took note of a suggestion which was put to one of the witnessesand considering the reply given by the witness to the suggestion put bythe accused, arrived at the conclusion that the presence of the accusedwas admitted. We quote with profit the following observations made bythis Court in paragraphs 15, 16 and 17 resply as under:

“15. The witness further stated that during the assault, theassailant accused him of giving information to the army aboutthe United Liberation Front of Assam (ULFA). He furtherstated that on the third night he was carried away blind-foldedon a bicycle to a different place and when his eyes wereunfolded, he could see his younger brother-Kumud Kakati AB

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(P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The placewas Duliapather, which is about 6-7 kms. away from his villageSakrahi. The witness identified the appellant-Tarun Bora andstated that it is he who took him in an ambassador car fromthe residence of Nandeswar Bora on the date of the incident.

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16. In cross-examination the witness stated as under:“Accused-Tarun Bora did not blind my eyes nor he assaultedme.”

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17. This part of cross-examination is suggestive of the presenceof accused-Tarun Bora in the whole episode. This will clearlyCsuggest the presence of the accused-Tarun Bora as admitted.The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him.”

37. In Rakesh Kumar alias Babli v. State of Haryana reportedin (1987) 2 SCC 34, this Court was dealing with an appeal against theDjudgment of the High Court affirming the order of the Sessions Judgewhereby the appellant and three other persons were convicted underSection 302 read with Section 34 of the IPC. While re-appreciating theevidence on record, this Court noticed that in the cross-examination ofthe PW 4, Sube Singh, a suggestion was made with regard to the colourof the shirt worn by one of the accused persons at the time of the incident.EThis Court taking into consideration the nature of the suggestion put bythe defence and the reply arrived at the conclusion that the presence ofthe accused namely Dharam Vir was established on the spot at the timeof occurrence. We quote the following observations made by this Courtin paragraphs 8 and 9 resply as under:

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“8. PW 3, Bhagat Singh, stated in his examination-in-chiefthat he had identified the accused at the time of occurrence.But curiously enough, he was not cross-examined as to howand in what manner he could identify the accused, as pointedout by the learned Sessions Judge. No suggestion was alsoGgiven to him that the place was dark and that it was notpossible to identify the assailants of the deceased.

9. In his cross-examination, PW 4, Sube Singh, stated thatthe accused Dharam Vir, was wearing a shirt of white colour.It was suggested to him on behalf of the accused that DharamVir was wearing a shirt of cream colour. In answer to that H

suggestion, PW 4 said: “It is not correct that Dharam Viraccused was wearing a shirt of cream colour and not a whitecolour at that time.” The learned Sessions Judge has rightlyobserved that the above suggestion at least proves the presenceof accused Dharam Vir, on the spot at the time of occurrence.”

38. Thus, from the above it is evident that the suggestion made bythe defence counsel to a witness in the cross-examination if found to beincriminating in nature in any manner would definitely bind the accusedand the accused cannot get away on the plea that his counsel had noimplied authority to make suggestions in the nature of admissions againsthis client.

39. Any concession or admission of a fact by a defence counselwould definitely be binding on his client, except the concession on thepoint of law. As a legal proposition we cannot agree with the submissioncanvassed on behalf of the appellants that an answer by a witness to asuggestion made by the defence counsel in the cross-examination doesnot deserve any value or utility if it incriminates the accused in anymanner.

40. It is a cardinal principle of criminal jurisprudence that the initialburden to establish the case against the accused beyond reasonable doubtrests on the prosecution. It is also an elementary principle of law that theprosecution has to prove its case on its own legs and cannot deriveadvantage or benefit from the weakness of the defence. We are notsuggesting for a moment that if prosecution is unable to prove its caseon its own legs then the Court can still convict an accused on the strengthof the evidence in the form of reply to the suggestions made by thedefence counsel to a witness. Take for instance, in the present case wehave reached to the conclusion that the evidence of the threeeyewitnesses inspires confidence and there is nothing in their evidenceon the basis of which it could be said that they are unreliable witnesses.Having reached to such a conclusion, in our opinion, to fortify our viewwe can definitely look into the suggestions made by the defence counselto the eyewitnesses, the reply to those establishing the presence of theaccused persons as well as the eyewitnesses in the night hours. To put itin other words, suggestions by itself are not sufficient to hold the accusedguilty if they are incriminating in any manner or are in the form of admissionin the absence of any other reliable evidence on record. It is true that asuggestion has no evidentiary value but this proposition of law would not A

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Ahold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answerto which may directly go against the accused and this is exactly whathas happened in the present case.

41. The principle of law that in a criminal case, a lawyer has noBimplied authority to make admissions against his client during the progressof the trial would hold good only in cases where dispensation of proof bythe prosecution is not permissible in law. For example, it is obligatory onthe part of the prosecution to prove the post mortem report by examiningthe doctor. The accused cannot admit the contents of the post mortemreport thereby absolving the prosecution from its duty to prove theCcontents of the same in accordance with law by examining the doctor.This is so because if the evidence per se is inadmissible in law then adefence counsel has no authority to make it admissible with his consent.

42. Therefore, we are of the opinion that suggestions made to thewitness by the defence counsel and the reply to such suggestions wouldDdefinitely form part of the evidence and can be relied upon by the Courtalong with other evidence on record to determine the guilt of the accused.

43. The main object of cross-examination is to find out the truthon record and to help the Court in knowing the truth of the case. It is amatter of common experience that many a times the defence lawyersEthemselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in theother paragraph. The line of cross-examination is always on the basis ofthe defence which the counsel would keep in mind to defend the accused.At this stage, we may quote with profit the observations made by aFDivision Bench of the Madhya Pradesh High Court in the case of Govinds/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Benchobserved in paragraph 27 as under:

“27. The main object of cross-examination is to find out thetruth and detection of falsehood in human testimony. It isGdesigned either to destroy or weaken the force of evidence awitness has already given in person or elicit something infavour of the party which he has not stated or to discredithim by showing from his past history and present demeanourthat he is unworthy of credit. It should be remembered thatcross-examination is a duty, a lawyer owes to his clients and H

is not a matter of great personal glory and fame. It shouldalways be remembered that justice must not be defeated byimproper cross-examination. A lawyer owes a duty to himselfthat it is the most difficult art. However, he may fail in theresult but fairness is one of the great elements of advocacy.Talents and genius are not aimed at self-glorification but itshould be to establish truth, to detect falsehood, to upholdright and just and to expose wrongdoings of a dishonestwitness. It is the most efficacious test to discover the truth.Cross-examination exposes bias, detects falsehood and showsmental and moral condition of the witnesses and whether awitness is actuated by proper motive or whether he is actuatedby enmity towards his adversaries. Cross-examination iscommonly esteemed the severest test of an advocate’s skilland perhaps it demands beyond any other of his dutiesexercise of his ingenuity. There is a great difficulty inconducting cross-examination with creditable skill. It isundoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has powerto control the cross-examination in such cases.(See Wrottescey on cross-examination of witnesses). The Courtmust also ensure that cross-examination is not made a meansof harassment or causing humiliation to the victim of crime[See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”

44. During the course of cross-examination with a view to discreditthe witness or to establish the defence on preponderance of probabilitiessuggestions are hurled on the witness but if such suggestions, the answerto those incriminate the accused in any manner then the same woulddefinitely be binding and could be taken into consideration along withother evidence on record in support of the same.

45. However, it would all depend upon the nature of the suggestionsand with what idea in mind such suggestions are made to the witness.Take for instance in case of a charge of rape under Section 376 of theIndian Penal Code, the statement of the accused contained plain denialand a plea of false implication, a subsequent suggestion by the defencelawyer to the prosecutrix about consent on her part would not, by itself,amount to admission of guilt on behalf of the accused. In cases of rape,it is permissible for the accused to take more than one defence. In such ABC

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Atype of cases a suggestion thrown by the defence counsel to a prosecutionwitness would not amount to an admission on the part of the accused. Atthe same time, if the defence in the cross examination of the prosecutrix,with a view to support their alternative case of consent procure answersto the questions in the form of suggestions implicating the accused forthe offence of rape then such suggestions would definitely lend assuranceBto the prosecution case and the Court would be well justified in consideringthe same. We may give one more example of a case where the accusedwould plead right of a private defence. Such a defence is always availableto the accused but although if such a defence is not taken specificallyduring the course of trial yet if the evidence on record suggests that theCaccused had inflicted injuries on the deceased in exercise of his right ofprivate defence then the Court can definitely take into considerationsuch defence in determining the guilt of the accused. However, if aspecific question is put to a witness by way of a suggestion indicative ofexercise of right of private defence then the Court would well be justifiedin taking into consideration such suggestion and if the presence of theDaccused is established the same would definitely be admissible inevidence.

PRINCIPLE OF RES GESTAE

46. We have also taken notice of one another aspect of the matterEemerging from the evidence on record. PW 3 Nasir Rajjak Khan in hisoral testimony (Exh. 10) has deposed that at around 11.30 pm in thenight, he saw 10-15 boys quarrelling with each other in front of a shopby name “Sai Car Auto Consultant”. He has further deposed that at thattime PW 1 Asgar Shaikh came and conveyed to him that he had sufferedinjuries on his head and hands. Asgar Shaikh also informed Nasir that heFalong with Firoz (PW 2) was going to the police station. Asgar furtherinformed Nasir that Abbas Baig was seriously injured. PW 3 Nasir, onhearing the aforesaid from Asgar, reached the spot where Abbas Baig(deceased) was lying in an injured condition. It is pertinent to note that inthe cross-examination of the PW 3 Nasir a suggestion was put to himGthat he had inquired with PW 1 Asgar Shaikh as to what had happenedand Asgar Shaikh in turn narrated the incident to Nasir. This suggestionput by the defence counsel to the PW 3 Nasir was answered in theaffirmative. This part of the evidence of the PW 3 Nasir is corroboratedby the evidence of the PW 1 Asgar Shaikh.

47. The reason for referring to the aforesaid a piece of evidenceis that the PW 3 Nasir Rajjak Khan (Exh. 10) could be termed as a resgestae witness. This principle of res gestae is embodied in Section 6 ofthe Act 1872:

“6. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with afact in issue as to form part of the same transaction, arerelevant, whether they occurred at the same time and placeor at different times and place.”

48. In the case of Sukhar v. State of U.P. reported in (1999) 9SCC 507, this Court noticed the position of law with regard to Sections6 & 7 resply of the Act 1872 thus:—

“6. Section 6 of the Evidence Act is an exception to the generalrule whereunder the hearsay evidence becomes admissible.But for bringing such hearsay evidence within the provisionsof Section 6, what is required to be established is that it mustbe almost contemporaneous with the acts and there shouldnot be an interval which would allow fabrication. Thestatements sought to be admitted, therefore, as forming partof res gestae, must have been made contemporaneously withthe acts or immediately thereafter. The aforesaid rule as it isstated in Wigmore’s Evidence Act reads thus:—

“Under the present exception [to hearsay] an utterance is byhypothesis, offered as an assertion to evidence the factasserted (for example that a car-brake was set or not set),and the only condition is that it shall have been madespontaneously, i.e. as the natural effusion of a state ofexcitement. Now this state of excitement may well continue toexist after the exciting fact has ended. The declaration,therefore, may be admissible even though subsequent to theoccurrence, provided, it is near enough in time to allow theassumption that the exciting influence continued.”

7. Sarkar on Evidence (Fifteenth Edition) summaries the lawrelating to applicability of Section 6 of the Act 1872 thus:—

“1. The declarations (oral or written) must relate to the actwhich is in issue or relevant thereto; they are notadmissible merely because they accompany an act.

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AMoreover the declarations must relate to and explain thefact they accompany, and not independent facts previousor subsequent thereto unless such facts are part of atransaction which is continuous.

2. The declarations must be substantially contemporaneousBwith the fact and not merely the narrative of a past.

3. The declaration and the act may be by the same person,or they may be by different persons, e.g., the declarationsof the victim, assailant and bystanders. In conspiracy,riot, the declarations of all concerned in the commonCobject are admissible.

4. Though admissible to explain or corroborate, or tounderstand the significance of the act, declarations arenot evidence of the truth of the matters stated.””

49. The rule embodied in Section 6 is usually known as the rule ofDres gestae. What it means is that a fact which, though not in issue, is soconnected with the fact in issue “as to form part of the same transaction”becomes relevant by itself. To form particular statement as part of thesame transaction utterances must be simultaneous with the incident orsubstantial contemporaneous that is made either during or immediatelybefore or after its occurrence.E

50. Sections 6 and 7 resply of the Act 1872 in the facts andcircumstances of the case, in so far as, the admissibility of a statementof the PW 3 Nasir Rajjak Khan coming to know about incident,immediately from the PW 1 Asgar Shaikh that Abbas Baig had beenFseriously assaulted and that Asgar Shaikh had also suffered injuries andadmitted by the PW 1 Asgar Shaikh in his evidence would be attractedwith all its rigour.

EXCEPTION 4 TO SECTION 300 OF THE IPC

51. We shall now deal with the submission as regards theGapplicability of the fourth Exception to Section 300 of the IPC. However,before we proceed to deal with the submission, it would be appropriateto look into the oral evidence of PW 7, Dr. Shrikant Suresh Chandekar,Medical Officer who carried out the post mortem of the dead body ofthe deceased and also prepared the post mortem report.

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thus:

52. The examination-in-chief of PW 7 Dr. Shrikant, Exh. 18, reads A

“1. On 02.04.2001 I was on duty when a dead body of AbbasSanaulla Baig was brought to mortuary by Khadak policealongwith inquest panchnama. Accordingly, I carried outthe postmortem examination between 6.30 a.m. to 7.30Ba.m. on the same day.

2. On examination I noticed following external injuries: -

1) Incised injury-left hand 3 c.m. distal to wrist transverseoblique and out into total thickness, metacarpus showsCclean cut fractures;

2) Incised injury-left wrist medically transverse oblique 4x1c.m. underlying ulna shows clean cut fracture involvingits total thickness;

3) Linear abrasion-left wrist dorsum 2 c.m. transverse; D

4) Incised jury over fight forearm flex or aspect middle thirdtransvers; 3.5 c.m. gaping-tailing medically skin deep;

5) Incised injury over right hand dorsum-transverse obliquemid proximal region, 2.5 c.m. gaping skin deep; E

6) Linear abrasion right and infraclavicular region 4 c.m.oblique.”

7) Linear Abrasion-left mid scapular region vertical oblique-5c.m.

8) Abrasion right shoulder back, 0.5 x 4 c.m. oblique.

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9) Stab injury, vertical situated adjacent and below rightmid clavicle, measuring 7.5 c.m. x 0.8 to 2.5 c.m. Lowerand of injury with curved margin, upper and angle cleancut, margins clean cut. Injury opening in right thoraciccavity.

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Corresponding internal injuries:- Chest muscles and pleurashows corresponding injuries. Right 2[nd] rib partially cutcleanly along its long 3[rd] right rib upper margin shown cleancut. Stab injury involving right 2[nd] intercostal muscles 1 to1.5 x 3 c.m.

ARight upper lobe of lung shows incised injuries. Verticaloblique 1.2 c.m. and 3.5 c.m.

Right middle lobe through and through injury near anteriormargin, 1.5 c.m. below tissue-towards hilum, gaping.

Right pulmonary artery and superior vena cava cut partially-Blumina exposed.

Right pleural cavity was full of blood with clots.

In my opinion all above injuries were antemortem and rescent.

During internal examination of head and abdomen I foundCno any injury, but the organs were pale. The stomach containsfluid with paste without any abnormal smell.

I preserved blood for grouping as per police requisition.

In my opinion, Abbas died due to shock and due to stabinjuries.

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Accordingly I have issued P.M. notes. They are in myhandwriting and it bears my signature. Its contents are correct.It is marked at Exh. 19.

Injury No. 9 alongwith its corresponding internal injuriesEwas sufficient in the ordinary course to cause death. Thatinjury could be caused by sharp edged pointed weapons.Injury No. 9 can be caused by the sword Article No. 17 nowshown to me is the same. Injury Nos. 1 and 2 were incisedinjuries alongwith underlined fractured bones. Injury Nos. 1to 8 are possible by Article No. 16- sickle or Article No. 17Fsword, as both are having sharp edges.

Initially, I had issued the provisional death certificate. Thecertificate now shown to me is the same. It bears my signaturesits contes are correct. It is now marked at Exhibit 20.”

G53. In order to appreciate the question, it will be profitable to referto the definition of murder as provided in Section 300 of the Indian PenalCode which is quoted below:

“300. Murder.—Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which the death iscaused is done with the intention of causing death, or—

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Secondly.—If it is done with the intention of causing suchbodily injury as the offender knows to be likely to cause thedeath of the person to whom the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodilyinjury to any person and the bodily injury intended to beinflicted is sufficient in the ordinary course of nature to causedeath,—

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.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies inconsequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease thata blow is likely to cause his death, strikes him with the intentionof causing bodily injury. Z dies in consequence of the blow.A is guilty of murder, although the blow might not have beensufficient in the ordinary course of nature to cause the deathof a person in a sound state of health. But if A, not knowingthat Z is labouring under any disease, gives him such a blowas would not in the ordinary course of nature kill a person ina sound state of health, here A, although he may intend tocause bodily injury, is not guilty of murder, if he did not intendto cause death, or such bodily injury as in the ordinary courseof nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficientto cause the death of a man in the ordinary course of nature.Z dies in consequence. Here, A is guilty of murder, althoughhe may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowdof persons and kills one of them. A is guilty of murder, althoughhe may not have had a premeditated design to kill anyparticular individual.

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Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprivedof the power of self-control by grave and sudden provocation,causes the death of the person who gave the provocation orcauses the death of any other person by mistake or accident.

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The above exception is subject to the following provisos:—

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First.—That the provocation is not sought or voluntarilyprovoked by the offender as an excuse for killing or doingharm to any person.

Secondly.—That the provocation is not given by anything doneCin obedience to the law, or by a public servant in the lawfulexercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything donein the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave andsudden enough to prevent the offence from amounting tomurder is a question of fact.

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Illustrations

(a) A, under the influence of passion excited by a provocationgiven by Z, intentionally kills Y, Z’s child. This is murder, in asmuch as the provocation was not given by the child, and thedeath of the child was not caused by accident or misfortunein doing an act caused by the provocation.

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(b) Y gives grave and sudden provocation to A. A, on thisprovocation, fires a pistol at Y, neither intending nor knowinghimself to be likely to kill Z, who is near him, but out of sight.A kills Z. Here A has not committed murder, but merely culpable F

homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to suddenand violent passion by the arrest, and kills Z. This is murder,in as much as the provocation was given by a thing done by apublic servant in the exercise of his powers.

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(d) A appears as witness before Z, a Magistrate, Z says thathe does not believe a word of A’s deposition, and that A has H

perjured himself. A is moved to sudden passion by these words,and kills Z. This is murder.

(e) A attempts to pull Z’s nose. Z, in the exercise of the right ofprivate defence, lays hold of A to prevent him from doing so.A is moved to sudden and violent passion in consequence,and kills Z. This is murder, in as much as the provocation wasgiving by a thing done in the exercise of the right of privatedefence.

(f) Z strikes B. B is by this provocation excited to violent rage.A, a bystander, intending to take advantage of B’s rage, andto cause him to kill Z, puts a knife into B’s hand for thatpurpose. B kills Z with the knife. Here B may have committedonly culpable homicide, but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if the offender,in the exercise in good faith of the right of private defence ofperson or property, exceeds the power given to him by lawand causes the death of the person against whom he isexercising such right of defence without premeditation, andwithout any intention of doing more harm than is necessaryfor the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to causegrievous hurt to A. A draws out a pistol. Z persists in theassault. A believing in good faith that he can by no othermeans prevent himself from being horsewhipped, shoots Zdead. A has not committed murder, but only culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender,being a public servant or aiding a public servant acting forthe advancement of public justice, exceeds the powers givento him by law, and causes death by doing an act which he, ingood faith, believes to be lawful and necessary for the duedischarge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it iscommitted without premeditation in a sudden fight in the heatof passion upon a sudden quarrel and without the offender AB

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[2023] 6 S.C.R.

having taken undue advantage or acted in a cruel or unusualmanner.

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

Exception 5.—Culpable homicide is not murder when theBperson whose death is caused, being above the age ofeighteen years, suffers death or takes the risk of death withhis own consent.

Illustration

A, by instigation, voluntarily causes, Z, a person undereighteen years of age to commit suicide. Here, on account ofZ’s youth, he was incapable of giving consent to his own death;A has therefore abetted murder.”

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54. At this stage, it will also be profitable to refer to the followingDobservations of this Court in the case of State of Andhra Pradesh v.Rayavarapu Punnayya and Another reported in (1976) 4 SCC 382where this Court laid down the distinction between murder and theculpable homicide not amounting to murder in the following way:

“12. In the scheme of the Penal Code, “culpable homicide”is genus and “murder” its specie. All “murder” is “culpableEhomicide” but not vice-versa. Speaking generally, “culpablehomicide” sans ”special characteristics of murder”, is“culpable homicide not amounting to murder”. For thepurpose of fixing punishment, proportionate to the gravity ofthis generic offence, the Code practically recognises threeFdegrees of culpable homicide. The first is, what may be called,“culpable homicide of the first degree”. This is the greatestform of culpable homicide, which is defined in Section 300as “murder”. The second may be termed as “culpablehomicide of the second degree”. This is punishable under thefirst part of Section 304. Then, there is “culpable homicideGof the third degree”. This is the lowest type of culpablehomicide and the punishment provided for it is, also, the lowestamong the punishments provided for the three grades.Culpable homicide of this degree is punishable under thesecond part of Section 304.

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BALU SUDAM KHALDE & ANR. v. THE STATE OFMAHARASHTRA [J. B. PARDIWALA, J.]

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BALU SUDAM KHALDE & ANR. v. THE STATE OFMAHARASHTRA [J. B. PARDIWALA, J.]

13. The academic distinction between “murder” and “culpablehomicide not amounting to murder” has vexed the courts formore than a century. The confusion is caused, if courts losingsight of the true scope and meaning of the terms used by thelegislature in these sections, allow themselves to be drawninto minutiae abstractions. The safest way of approach to theinterpretation and application of these provisions seems tobe to keep in focus the keywords used in the various clausesof Sections 299 and 300. The following comparative tablewill be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2)and (3) of Section 300. The distinguishing feature of the mensrea requisite under clause (2) is the knowledge possessed bythe offender regarding the particular victim being in such apeculiar condition or state of health that the internal harmcaused to him is likely to be fatal, notwithstanding the factthat such harm would not in the ordinary way of nature be A

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sufficient to cause death of a person in normal health orcondition. It is noteworthy that the “intention to cause death”is not an essential requirement of clause (2). Only the intentionof causing the bodily injury coupled with the offender’sknowledge of the likelihood of such injury causing the deathof the particular victim, is sufficient to bring the killing withinthe ambit of this clause. This aspect of clause (2) is borne outby Illustration (b) appended to Section 300.

15. Clause (b) of Section 299 does not postulate any suchknowledge on the part of the offender. Instances of casesfalling under clause (2) of Section 300 can be where theassailant causes death by a fist blow intentionallygiven knowing that the victim is suffering from an enlargedliver, or enlarged spleen or diseased heart and such blow islikely to cause death of that particular person as a result ofthe rupture of the liver, or spleen or the failure of the heart,as the case may be. If the assailant had no such knowledgeabout the disease or special frailty of the victim, nor anintention to cause death or bodily injury sufficient in theordinary course of nature to cause death, the offence will notbe murder, even if the injury which caused the death, wasintentionally given.

16. In clause (3) of Section 300, instead of the words “likelyto cause death” occurring in the corresponding clause (b) ofSection 299, the words “sufficient in the ordinary course ofnature” have been used. Obviously, the distinction liesbetween a bodily injury likely to cause death and a bodilyinjury sufficient in the ordinary course of nature to causedeath. The distinction is fine but real, and, if overlooked,may result in miscarriage of justice. The difference betweenclause (b) of Section 299 and clause (3) of Section 300 isone of the degree of probability of death resulting from theintended bodily injury. To put it more broadly, it is the degreeof probability of death which determines whether a culpablehomicide is of the gravest, medium or the lowest degree. Theword “likely” in clause (b) of Section 299 conveys the senseof “probable” as distinguished from a mere possibility. Thewords “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “mostprobable” result of the injury, having regard to the ordinarycourse of nature.

17. For cases to fall within clause (3), it is not necessary thatthe offender intended to cause death, so long as the deathensues from the intentional bodily injury or injuries sufficientto cause death in the ordinary course of nature. Rajwant v.State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 :1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking forthis Court, explained the meaning and scope of clause (3),thus (at p. 1500):

“The prosecution must prove the following facts before it canbring a case under Section 300, ‘thirdly’. First, it mustestablish quite objectively, that a bodily injury is present;secondly the nature of the injury must be proved. These arepurely objective investigations. It must be proved that therewas an intention to inflict that particular injury, that is to say,that it was not accidental or unintentional or that some otherkind of injury was intended. Once these three elements areproved to be present, the enquiry proceeds further, andfourthly it must be proved that the injury of the type justdescribed made up of the three elements set out above wassufficient to cause death in the ordinary course of nature.This part of the enquiry is purely objective and inferentialand has nothing to do with the intention of the offender.”

19. Thus according to the rule laid down in Virsa Singhcase of even if the intention of accused was limited to theinfliction of a bodily injury sufficient to cause death in theordinary course of nature, and did not extend to the intentionof causing death, the offence would be “murder”. Illustration(c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300both require knowledge of the probability of the act causingdeath. It is not necessary for the purpose of this case to dilatemuch on the distinction between these corresponding clauses.

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It will be sufficient to say that clause (4) of Section 300 wouldbe applicable where the knowledge of the offender as to theprobability of death of a person or persons in general — asdistinguished from a particular person or persons — beingcaused from his imminently dangerous act, approximates to apractical certainty. Such knowledge on the part of theoffender must be of the highest degree of probability, the acthaving been committed by the offender without any excusefor incurring the risk of causing death or such injury asaforesaid.

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21. From the above conspectus, it emerges that whenever aCcourt is confronted with the question whether the offence is“murder” or “culpable homicide not amounting to murder”,on the facts of a case, it will be convenient for it to approachthe problem in three stages. The question to be considered atthe first stage would be, whether the accused has done anDact by doing which he has caused the death of another. Proofof such causal connection between the act of the accusedand the death, leads to the second stage for consideringwhether that act of the accused amounts to “culpablehomicide” as defined in Section 299. If the answer to thisquestion is prima facie found in the affirmative, the stage forEconsidering the operation of Section 300 of the Penal Code,is reached. This is the stage at which the court shoulddetermine whether the facts proved by the prosecution bringthe case within the ambit of any of the four clauses of thedefinition of “murder” contained in Section 300. If the answerFto this question is in the negative the offence would be“culpable homicide not amounting to murder”, punishableunder the first or the second part of Section 304, depending,respectively, on whether the second or the third clause ofSection 299 is applicable. If this question is found in thepositive, but the case comes within any of the exceptionsGenumerated in Section 300, the offence would still be “culpablehomicide not amounting to murder”, punishable under thefirst part of Section 304, of the Penal Code.”

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55. Applying the above principles to the case before us we findthat there is no dispute that the death of the deceased occurred due to H

culpable homicide and not due to accident or suicide. We, therefore,propose to consider whether the incident comes within any of theexceptions indicated in Section 300 of the Code.

56. In order to bring the case within fourth exception, the essentialrequirement as pointed out by this Court in the case of Parkash Chandv. State of Himachal Pradesh reported in (2004) 11 SCC 381 is asfollows:

“The fourth exception of Section 300 IPC covers acts donein a sudden fight. The said exception deals with a case ofprovocation not covered by the first exception, after whichits place would have been more appropriate. The exception isfounded upon the same principle, for in both there is absenceof premeditation. But, while in the case of Exception 1 thereis total deprivation of self-control, in case of Exception 4,there is only that heat of passion which clouds men’s soberreason and urges them to deeds which they would nototherwise do. There is provocation in Exception 4 as inException 1; but the injury done is not the direct consequenceof that provocation. In fact, Exception 4 deals with cases inwhich notwithstanding that a blow may have been struck, orsome provocation given in the origin of the dispute or inwhatever way the quarrel may have originated, yet thesubsequent conduct of both parties puts them in respect ofguilt upon equal footing. A “sudden fight” implies mutualprovocation and blows on each side. The homicide committedis then clearly not traceable to unilateral provocation, nor insuch cases could the whole blame be placed on one side. Forif it were so, the exception more appropriately applicable wouldbe Exception 1. There is no previous deliberation ordetermination to fight. A fight suddenly takes place, for whichboth parties are more or less to be blamed. It may be that oneof them starts it, but if the other had not aggravated it by hisown conduct it would not have taken the serious turn it did.There is then mutual provocation and aggravation, and it isdifficult to apportion the share of blame which attaches toeach fighter. The help of Exception 4 can be invoked if deathis caused: (a) without premeditation; (b) in a sudden fight;(c) without the offender having taken undue advantage or AB

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Aacted in a cruel or unusual manner; and (d) the fight musthave been with the person killed. To bring a case withinException 4, all the ingredients mentioned in it must be found.It is to be noted that the “fight” occurring in Exception 4 toSection 300 IPC is not defined in IPC. It takes two to make afight. Heat of passion requires that there must be no time forBthe passions to cool down and in this case, the parties hadworked themselves into a fury on account of the verbalaltercation in the beginning. A fight is a combat between twoand more persons whether with or without weapons. It is notpossible to enunciate any general rule as to what shall beCdeemed to be a sudden quarrel. It is a question of fact andwhether a quarrel is sudden or not must necessarily dependupon the proved facts of each case. For the application ofException 4, it is not sufficient to show that there was a suddenquarrel and there was no premeditation. It must further beshown that the offender has not taken undue advantage orDacted in a cruel or unusual manner. The expression “undueadvantage” as used in the provision means “unfair””advantage. o(Emphasis supplied)

57. Thus, the sine qua non for the application of an Exception toSection 300 always is that it is a case of murder but the accused claimsEthe benefit of the Exception to bring it out of that Section and to make ita case of culpable homicide not amounting to murder. We must, therefore,assume that this would be a case of murder and it is for the accused toshow the applicability of the Exception. Exception 4 reads as under:-

“Exception 4.—Culpable homicide is not murder if it isFcommitted without premeditation in a sudden fight in the heatof passion upon a sudden quarrel and without the offenderhaving taken undue advantage or acted in a cruel or unusualmanner.”

58. A perusal of the provision would reveal that four conditionsGmust be satisfied to bring the matter within Exception 4:

(i) it was a sudden fight;

(ii) there was no premeditation;

(iii) the act was done in the heat of passion; and; that (iv) theHassailant had not taken any undue advantage or acted in a cruelmanner.

59. On a plain reading of Exception 4, it appears that the help ofException 4 can be invoked if death is caused (a) without premeditation,(b) in a sudden fight, (c) without the offenders having taken undueadvantage or acted in a cruel or unusual manner; and (d) the fight musthave been with the person killed. To bring a case within Exception 4 allthe ingredients mentioned in it must be found.

60. We have already noticed the extent of injuries suffered by thedeceased, as it appears from the deposition of the PW 7 Dr. Shrikantwho carried out the post mortem. Having regard to the nature of theinjuries caused by dangerous weapons like sickle and sword which, wereapplied on the vital part of the body, there is no escape from the conclusionthat it is a case of Section 302 of the IPC.

61. It is very difficult for us to accept the submission of the learnedcounsel appearing for the appellant that the case would fall within theException 4 to Section 300 of the IPC and such benefit be extended tothe accused. Assuming for the moment that the incident had occurred inthe heat of the moment and fight was also sudden, we should not overlookthe fact that the appellants herein inflicted as many as nine blows with adangerous weapon on the deceased who was unarmed and was helpless.For cases to fall within clause (3) of Section 300 of the IPC, it is notnecessary that the offender intended to cause death, so long as the deathensues from the intentional bodily injury or injuries sufficient to causedeath in the ordinary course of nature. Rajwant Singh v. State of Keralareported in AIR 1966 SC 1874 is an apt illustration of this point.

62. In the overall view of the matter, we are convinced that nocase is made out by the appellants to interfere with the impugnedjudgment and order of the High Court.

63. In the result, this appeal fails and is hereby dismissed.

64. The records indicate that both the appellants herein wereordered to be released on bail pending the final hearing of the presentappeal. The appellant No.2 was ordered to be released on bail videorder dated 01.10.2010 and the appellant No. 1 herein was ordered tobe released on bail vide order dated 04.03.2013. The bail bonds furnishedby them to the satisfaction of the Additional Sessions Judge, Pune inSessions Case No. 323 of 2001 stand cancelled. Both the appellants areordered to surrender before the Trial Court within a period of two weeksfrom today.

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892SUPREME COURT REPORTS

A65. Once the appellants surrender before the Trial Court, they shall be sent to judicial custody to serve out the sentence as was imposed.

66. Pending applications if any shall stand disposed of.

Nidhi JainAppeal dismissed.B(Assisted by : Adityaraj Patodia and Rakhi, LCRAs)

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