(Arising out of SLP (Crl.) No.1041 of 2007)
Arijit Pasayat, J.-
Challenge in this appeal is to the
order passed by a Division Bench of the Andhra Pradesh High Court
dismissing the appeal filed by the appellant questioning correctness of
his conviction for offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short IPC ) and sentence of imprisonment for life
and fine as imposed by learned IVth Additional Sessions Judge, (F.T.C.),
Background facts in a nutshell
are as follows:
The marriage between Dhanalakshmi (hereinafter referred to as deceased )
and the accused took place 14 years prior to the date of incident.
During the wedlock, they were blessed with three children, namely, Golla
Yelugu Adilakshmi (PW2), Golla Yelugu Anjaneyulu (PW3) and Gollal Yelugu
Venkatesu (LW7). At the time of marriage, the accused was doing
cultivation. After marriage the deceased and the accused lived happily
for some years. Due to addiction to vices, he started ill-treating his
wife, demanding her to get money from her parents. About six months
prior to the occurrence, the accused beat and caused fracture to the
hand of the deceased and sent her along with her children to her parents
house. He again took them back by promising to look after them well and
kept his family at Pamidi. Ten days prior to the occurrence, the accused
sold his autorickshaw and cleared his debts and asked his wife to get
money from her parents to purchase another autorickshaw. But the parents
of the deceased did not comply with the said demand. On 20.6.2002 at
about 2 A.M. while the deceased was in the house, there was exchange of
hot words and quarrel between the accused and deceased. This happened in
the presence of their children.
Suddenly accused hacked the deceased
on her back with a sickle and the deceased fell down and the accused
once again hacked on the neck and left ear of the deceased causing
severe bleeding injuries. Accused went to the house of LW3 and confessed
the offence before him. LW3 went and informed the same to the father of
the deceased, PW1. PW1 lodged a complaint before the police and on its
basis a case in Cr.No.35/2002 was registered for the offence punishable
under Section 302 IPC by PW11, who conducted inquest over the dead body
of the deceased in the presence of PWs. 5, 8 and LW16: examined some
witnesses and recorded their statements; seized the clothes and blood
stained mat covered under MOs. 1 to 4; prepared rough sketch under
Ex.P.7, forwarded the material objects to the Forensic Science
Laboratory, Hyderabad for analysis through the Judicial First Class
Magistrate, Gooty and arrested the accused on 25.6.2002, and at his
instance MOs 5-sickle and 6-bag were recovered. PW6, the Medical
Officer, who conducted autopsy over the dead body of the deceased opined
that the deceased would appear to have died due to hemorrhage and shock
due to cut laceration over the throat involving the major blood vessel.
After completion of the investigation, charge sheet was filed.
3. In order to establish the
accusations the prosecution examined 11 witnesses and marked several
exhibits and MOs. The accused did not adduce any oral or documentary
evidence. He however pleaded innocence.
4. After analyzing the evidence of
eyewitnesses PWs2 and 3, and finding that they are corroborated by the
evidence of PWs 1 and 7, the appellant was found guilty.
5. In appeal, the appellant took the
plea that PWs. 2 and 3 should not have been pleaded as they are of
tender age and were child witnesses. The High Court found that PWs. 2
and 3 were children of the deceased and the accused and there was no
reason as to why they would falsely implicate their father. The High
Court also discarded the plea that they were under the influence of PW1,
their maternal grandfather. As noted above, the appeal was dismissed.
6. In support of the appeal, learned
counsel for the appellant submitted that reliance should be placed on
the evidence of PWs 2&3 and in any event offence under Section 302 IPC
is not made out.
7. Indian Evidence Act, 1872 (in
short the Evidence Act ) does not prescribe any particular age as a
determinative factor to treat a witness to be a competent one. On the
contrary, Section 118 of the Evidence Act envisages that all persons
shall be competent to testify, unless the Court considers that they are
prevented from understanding the questions put to them or from giving
rational answers to these questions, because of tender years, extreme
old age, disease- whether of mind, or any other cause of the same kind.
A child of tender age can be allowed to testify if he has intellectual
capacity to understand questions and give rational answers thereto. This
position was concisely stated by Brewer J in Wheeler v. United States
(159 U.S. 523). The evidence of a child witness is not required to be
rejected per se; but the Court as a rule of prudence considers such
evidence with close scrutiny and only on being convinced about the
quality thereof and reliability can record conviction, based thereon.
(See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1).
8. In Dattu Ramrao Sakhare v.
State of Maharashtra (1997 (5) SCC 341) it was held as follows:
A child witness if found competent to depose to the facts and reliable
one such evidence could be the basis of conviction. In other words even
in the absence of oath the evidence of a child witness can be considered
under Section 118 of the Evidence Act provided that such witness is able
to understand the answers thereof. The evidence of a child witness and
credibility thereof would depend upon the circumstances of each case.
The only precaution which the Court should bear in mind while assessing
the evidence of a child witness is that the witness must be a reliable
one and his/her demeanour must be like any other competent witness and
there is no likelihood of being tutored .
9. The decision on the question
whether the child witness has sufficient intelligence primarily rests
with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and said Judge may resort to any examination which
will tend to disclose his capacity and intelligence as well as his
understanding of the obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher Court if from what is
preserved in the records, it is clear his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable to tutoring
and often live in a world of make beliefs. Though it is an established
principle that child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shaped and moulded, but it
is also an accepted norm that if after careful scrutiny of their
evidence the Court comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting the evidence
of a child witness.
10. It is submitted that Section 302
IPC has no application as the assault was made during the course of
sudden quarrel and Exception 4 of Section 300 IPC applies.
11. The residuary plea relates to
the applicability of Exception 4 of Section 300 IPC, as it is contended
that the incident took place in course of a sudden quarrel.
12. For bringing in its operation it
has to be established that the act was committed without premeditation,
in a sudden fight in the heat of passion upon a sudden quarrel without
the offender having taken undue advantage and not having acted in a
cruel or unusual manner.
13. The Fourth Exception of Section
300 IPC covers acts done in a sudden fight. The said exception deals
with a case of prosecution not covered by the first exception, after
which its place would have been more appropriate. The exception is
founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is only that
heat of passion which clouds men s sober reason and urges them to deeds
which they would not otherwise do. There is provocation in Exception 4
as in Exception 1; but the injury done is not the direct consequence of
that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct of both parties puts them in
respect of guilt upon equal footing. A sudden fight implies mutual
provocation and blows on each side. The homicide committed is then
clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it were so, the Exception
more appropriately applicable would be Exception 1.
There is no previous deliberation or
determination to fight. A fight suddenly takes place, for which both
parties are more or less to be blamed. It may be that one of them starts
it, but if the other had not aggravated it by his own conduct it would
not have taken the serious turn it did. There is then mutual provocation
and aggravation, and it is difficult to apportion the share of blame
which attaches to each fighter. The help of Exception 4 can be invoked
if death is caused (a) without premeditation, (b) in a sudden fight; (c)
without the offender having taken undue advantage or acted in a cruel or
unusual manner; and (d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the fight occurring in Exception 4
to Section 300 IPC is not defined in the IPC. 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 have worked
themselves into a fury on account of the verbal altercation in the
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 cruel
or unusual manner. The expression undue advantage as used in the
provision means unfair advantage .
14. Where the offender takes undue advantage or has acted in a cruel or
unusual manner, the benefit of Exception 4 cannot be given to him. If
the weapon used or the manner of attack by the assailant is out of all
proportion, that circumstance must be taken into consideration to decide
whether undue advantage has been taken. In Kikar Singh v. State of
Rajasthan (AIR 1993 SC 2426) it was held that if the accused used
deadly weapons against the unarmed man and struck a blow on the head it
must be held that giving the blows with the knowledge that they were
likely to cause death, he had taken undue advantage.
15. Considering the factual scenario
in the background of the position in law as highlighted above, the
inevitable conclusion is that the appropriate conviction would be under
Section 304 Part I IPC. Custodial sentence of 10 years would meet the
ends of justice. Appeal is allowed to that extent.
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