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TMI Blog2023 (3) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC') and sentencing them to suffer life imprisonment and a fine of Rs. 1000/- each with the stipulation that in default of payment of the 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 four persons were put to trial including the two Appellants herein in the Court of the Additional Sessions Judge, Pune for the offence punishable Under Sections 302 and 323 read with Section 34 of the Indian Penal Code. The Appellants herein are original Accused Nos. 1 and 3. The original Accused No. 2 and 4 were acquitted by the Trial Court. CASE OF THE PROSECUTION 3. The case of the prosecution as unfolded in the evidence of the prosecution witnesses and also detailed in the first information report is that on the fateful day of the incident i.e., on 01.04.2001 at about 11.15 p.m., the first informant PW 1, namely, Asgar Shaikh (Ex. 7) was chit chatting with his friend Abbas Baig (deceased). At that time, while the Appellant No. 2 herein accompanied by few other individuals was passing by the side, he was accosted by the deceased Abbas. There was some verbal altercation between the two. After sometime th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.45 PM, four persons, namely, Balu Khalde, Ramesh Mohite, Raju Mohite and Santosh Khalde assembled and started talking with us. At that time, Balu khale told him "Bajula Haat". Abbas Baig told Balu Khalde that "Usse kya baat kar raha hai?" talk to me. At that time, I told them "Kaiko Lafda Kar Rahe Ho?" Balu Khalde took out a weapon like Koita which he had hidden in his waist and hit me on my head. Ramesh Mohite caught hold of Abbas Baig and Balu Khalde stabbed him with a small bladed sword. We started shouting. One Firoz Babumian Shaikh residing in the neighbourhood came out of his house and told Raju Mohite "What are you fighting about?" Santosh Khalde abused Firoz Babumian. When people started assembling at the place of the occurrence, all the four assailants ran away. Abbas Baig was seriously injured and he fell down. He had suffered injuries on his left paw, wrist, right hand and right shoulder. He was bleeding profusely. I picked up Abbas in an injured condition and took him nearby chokadi. At that point of time, one Nasir a rickshaw driver known to us also living in the same slum came over there. I requested Nasir to keep a watch on Abbas Baig as he would reach and call t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed an offence punishable Under Section 323 of the Indian Penal Code simplicitor or Section 323 read with Section 34 of the Indian Penal Code, and within my cognizance. AND 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 intention, voluntarily caused hurt to complainant Ajgar Ibrahim Shaikh, by means of sickle and sword, which if used as a weapon of offence, would likely to cause death of said complainant, and thereby committed an offence punishable Under Section 324 of the Indian Penal Code simplicitor or Section 324 read with Section 34 of the Indian Penal Code, and within my cognizance. AND 4) 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 intention, intentionally insulted and thereby gave protection to the complainant Ajgar Ibrahim Shaikh, intending or knowing it to be likely that such provocation will cause the said complainant to commit breach of public peace, and thereby committed an offence punishable Under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court failed to appreciate that no reliance could have been placed on the evidence of the so called eyewitnesses. According to the learned Counsel, the ocular version on record does not inspire any confidence and deserves to be discarded. 15. The learned Counsel further submitted that the very presence of the first informant PW 1 Asgar Shaikh is doubtful because although he claims to have suffered an injury on his head during the assault yet no medical treatment was taken by him and there is no medical certificate on record that he had suffered any injury on his head. In such circumstances, according to the learned Counsel, the entire first information report, at the instance of the PW 1 is unreliable. 16. The learned Counsel further submitted that the discovery of the weapons Under Section 27 of the Indian Evidence Act, 1872 (for short, 'the Act 1872') could also not have been relied upon as the panch witnesses failed to support the case of the prosecution or rather failed to prove the contents of the panchnama. 17. In the last, the learned Counsel appearing for the Appellants vehemently submitted that even if the entire case of the prosecution is believed to be true, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order. APPRECIATION OF ORAL EVIDENCE 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983 Cri LJ 1096 : AIR 1983 SC 753), Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid principles of law in mind, we looked into the oral evidence of all the three important witnesses i.e., PW 1 Asgar Shaikh (Exh. 7), PW 2 Firoz Babumiyan Shaikh (Exh. 9) and PW 3 Nasir Khan (Exh. 10). The oral evidence of all the three eyewitnesses is consistent and there is no good reason for us to disbelieve the ocular version as narrated by the three eyewitnesses. The Trial Court as well as the High Court looked into the oral evidence of all the three eyewitnesses referred to above closely and have recorded a concurrent finding that they are reliable witnesses. 29. The High Court in its impugned judgment observed in paras 9 and 10 as under: 9. First, it is argued on behalf of the Appellants the learned Counsel that the substantive evidence of P.W. Nos. 1 and 2, alleged eyewitnesses cannot be taken as trustworthy, in as much as they are interested and related witnesses to the deceased Abbas Baig. Secondly, it is argued that there was no immediate disclosure of the names of the Accused persons when the injured Abbas was brought to Lohiyanagar Police Chowki and when said Abbas and both the injured P.W. Nos. 1 and 2 were sent to Sasoon Hospital for medical treatment no hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17 a sword. 30. In the exercise of the power Under Article 136 of the Constitution of India, this Court, normally would not interfere with the concurrent findings of fact, except in very special circumstances or in the case of a gross error committed by the courts below. Only where the High Court ignores or overlooks "crying circumstances" and "proven facts" or "violates and misapplies 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 erroneous decisions. We are also not to interfere only for the reason that we may arrive at a different conclusion, unless, of course, there are compelling circumstances to tinker with conclusions drawn and that the Accused were innocent/guilty. Undoubtedly, there are limitations in interfering with the findings of conviction, concurrent in nature. 31. In the course of hearing of this appeal, we also noticed something very important, going to the root of the matter. 32. We noticed that in the cross-examination of the original first informant, PW 1 Asgar Shaikh (Exh.7), few suggestions were put to him by the defence counsel. We qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and considering the reply given by the witness to the suggestion put by the Accused, arrived at the conclusion that the presence of the Accused was admitted. We quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 as under: 15. The witness further stated that during the assault, the assailant Accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is about 6-7 kms. away from his village Sakrahi. The witness identified the Appellant-Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident. 16. In cross-examination the witness stated as under: "Accused-Tarun Bora did not blind my eyes nor he assaulted me." 17. This part of cross-examination is suggestive of the presence of Accused-Tarun Bora in the whole episode. This will clearly suggest the presence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the Appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the Accused in any manner. 40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an Accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind S/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under: 27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross-examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in considering the same. We may give one more example of a case where the Accused would plead right of a private defence. Such a defence is always available to the Accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the Accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the Accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the Accused is established the same would definitely be admissible in evidence. PRINCIPLE OF RES GESTAE 46. We have also taken notice of one another aspect of the matter emerging from the evidence on record. PW 3 Nasir Rajjak Khan in his oral testimony (Exh. 10) has deposed that at around 11.30 pm in the night, he saw 10-15 boys quarrelling with each other in front of a shop by name "Sai Car Auto Consultant". He has further deposed that at that time PW 1 As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued. 7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating to applicability of Section 6 of the Act 1872 thus: 1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous. 2. The declarations must be substantially contemporaneous with 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 declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible. 4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9) Stab injury, vertical situated adjacent and below right mid clavicle, measuring 7.5 c.m. x 0.8 to 2.5 c.m. Lower and of injury with curved margin, upper and angle clean cut, margins clean cut. Injury opening in right thoracic cavity. Corresponding internal injuries:- Chest muscles and pleura shows corresponding injuries. Right 2nd rib partially cut cleanly along its long 3rd right rib upper margin shown clean cut. Stab injury involving right 2nd intercostal muscles 1 to 1.5 x 3 c.m. Right upper lobe of lung shows incised injuries. Vertical oblique 1.2 c.m. and 3.5 c.m. Right middle lobe through and through injury near anterior margin, 1.5 c.m. below tissue-towards hilum, gaping. Right pulmonary artery and superior vena cava cut partially-lumina exposed. Right pleural cavity was full of blood with clots. In my opinion all above injuries were antemortem and recent. During internal examination of head and abdomen I found no any injury, but the organs were pale. The stomach contains fluid with paste without any abnormal smell. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death. (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death. (d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-- First.--That the provocation is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. 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 for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge 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 is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death caused is done - INTENTION (a) with the intention of casing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (i) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death, (3) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such to cause death bodily injury as is likely and without any excuse for incurring the risk of causing death or such injury as is me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 17. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to 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 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of Clause (3), thus (at p. 1500): The prosecution must prove the following facts before it can bring a case Under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code. 55. Applying the above principles to the case before us we find that there is no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide. We, therefore, propose to consider whether the incident c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general Rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". (Emphasis supplied) 57. Thus, the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the Accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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