Penal Code, 1860 – s.302/34, Part-I of s.304 – Alteration of conviction from s.302 IPC to Part-I of s.304 – Prosecution case that there was long-drawn rivalry between the wife of appellant (accused no.3) and the victim-deceased – It was alleged that appellant (accused no.1) and his wife (accused no.3) had an altercation with the victim – Same day, in the evening, it was alleged that when victim was crossing the lane in front of the house of the appellant, the appellant came down with a spike, the accused no.2 with sickle and unarmed accused no.3 and attacked the victim – Appellant stabbed the victim on chest with the spike – Victim died – FIR was registered – Before the Trial Court, the appellant took the defence that the deceased had barged into his house with 5-6 persons and assaulted and molested his wife – Appellant contended that in order to protect his wife, he had exercised the right to private defence and stabbed the deceased – Trial Court rejected the defence version and held appellant (accused no.1) and accused no.2 guilty for offences u/s. 302 IPC and u/s.302/34 IPC respectively and acquitted wife of the appellant (accused no.3) – High Court maintained the conviction and sentence of the appellant but found the accused no.2 not guilty and acquitted him – On appeal, held: The prosecution was not able to remove all the obvious doubts as to the place and manner of occurrence, particularly as to who was the aggressor and how it started – Prosecution was not able to clear as to how deceased was at the doorstep of the house of appellant and how the blood stains were also found at the doorstep of the house of appellant – Besides, the defence version that the deceased assaulted and molested appellant’s wife is also unacceptable for want of cogent and convincing evidence – However, the preponderance remains that the occurrence, in all likelihood, took place at the doorstep of the house of appellant – Thus, alternative case of appellant that the incident took place without any pre-meditation, in a sudden fight in the heat of passion upon sudden quarrel, when the deceased attempted entry into his house; and the appellant did neither take any undue advantage nor acted in a cruel or unusual manner is accepted – Benefit of Exception 4 of s.300 IPC extended to the appellant – Therefore, conviction of the appellant altered to one under Part-I of s.304 IPC.
Partly allowing the appeal, the Court
HELD: 1. Both the accused no.2 and accused no.3 were acquitted. In view of this Court, when accused No. 2 and accused No. 3 are removed out of scene, the entire complexion of the prosecution story is altered on material aspects and such an alteration cannot be ignored as being wholly immaterial or irrelevant. In other words, if the prosecution case is taken as false (or at least doubtful) as regards accused No. 2 and accused No. 3, this part of falsehood (or doubtfulness) is difficult to be segregated for the purpose of believing the prosecution case qua the appellant alone. The exercise of sifting the grain from the chaff in this matter would shake, rather annihilate, the fundamentals of the prosecution case; and an entirely new prosecution story shall have to be assumed that when the deceased was walking down the lane, the appellant alone jumped on him; gave him a blow; threw the weapon towards his own house and ran away. In view of this Court, on the facts and in the circumstances of this case, it would be unsafe to assume such or akin scene of occurrence in replacement of the story propounded by the prosecution. As noticed from the decisions referred, when this Court found that separating the truth from falsehood was not feasible because of the two being inseparably mixed up, the prosecution case was discarded in toto. However, such a course cannot be adopted in this case and it cannot be held that the appellant was not involved in the occurrence or did not kill the deceased, essentially for the reason that the appellant himself took the defence that he assaulted the deceased in exercise of his right of private defence when the deceased allegedly intruded inside his house and attempted to assault and molest his wife. It is also noticed from the evidence on record that one injury was caused on the person of the deceased, being a vertical stab injury of 5 cm length and 2.5 cm width in front and outside the left collar bone that had pierced the upper portion of lung through the third rib. The medical officer PW-11 has opined that the injury in the lung was enough to cause death and could have been caused by the spike in question. [Paras 14 and 14.1] [18-G-H; 19-A-F]
2. In view of the above, even after disbelieving the case of prosecution as regards the happenings, but taking into account the admitted case of the appellant that he did inflict injury on the person of the deceased, the matter is required to be examined further on the question as to whether the appellant is entitled to be acquitted for having justifiably acted in exercise of the right of private defence in order to save his wife from the alleged assault and molestation. [Para 15] [19-G-H]
3. Hence, even when this Court finds that the prosecution case cannot be believed as projected, the defence version about the assault on and molestation of accused No. 3, the wife of the appellant, equally appears to be that of overstatement/exaggeration towards the other extreme. In other words, the part of the appellant’s suggestion that the deceased entered his house with 5-6 persons and assaulted and molested his wife is difficult to be accepted; neither there is any convincing evidence in that regard nor the circumstances of the case support this version. However, from the evidence on record, this much is apparent that blood stains were also found at the door-step of the house of the appellant; and the weapon of offence was found at the raised platform of the house of the appellant. The facts and circumstances of this case give rise to a reasonable doubt that the incident in question, in all likelihood, took place right at the door of the house of the appellant. Admittedly, the parties were on hostile terms and they had had an argument at about 5 p.m. the same day outside the house of the deceased. Therefore, the possibility of quarrel taking place upon the deceased reaching the door-step of the appellant is not ruled out. [Para 17] [20-F-H; 21-A-B]
4. The upshot of the discussion foregoing is that the projected story of the prosecution cannot be accepted, particularly for the reason that the accused No. 2 and accused No. 3 have been acquitted and their acquittal has attained finality. Then, the prosecution has not been able to remove all the obvious doubts as to the place and manner of occurrence, particularly as to who was the aggressor and how it started. On the other hand, the defence version that the deceased barged into the house of the appellant with 5-6 persons and assaulted and molested his wife is also unacceptable for want of cogent and convincing evidence. However, the preponderance remains that the occurrence, in all likelihood, took place just at the door-step of the house of the appellant. In the given circumstances, the likelihood of the deceased, who was on inimical terms with the wife of the appellant, having given the reasons for provocation by way of aggression or attempted intrusion into the house of the appellant is not ruled out. [Para 18] [21-E-G]
5. In view of the foregoing and in the overall circumstances of this case, this Court inclined to accept the alternative case of the appellant that the incident in question took place without any premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, when the deceased attempted entry into his house; and the appellant did neither take any undue advantage nor acted in a cruel or unusual manner. A fortiori, this Court is inclined to extend the benefit of Exception 4 of Section 300 IPC to the appellant. However, the act of the appellant leading to the death having been with the intention of causing such bodily injury as is likely to cause death, the appellant deserves to be convicted for the offence under Part-I of Section 304 IPC. [Para 20] [21-F-G]
Yanob Sheikh alias Gagu v. State of West Bengal (2013)
6 SCC 428 : [2012] 13 SCR 1150 ; Dalbir Singh v. State of Haryana (2008) 11 SCC 425 : [2008]
8 SCR 1026 ; Krishna Mochi v. State of Bihar (2002)
6 SCC 81 : [2002] 3 SCR 1 ; Jumman and Ors. v. The State of Punjab AIR 1957 SC 469 – relied on.
Munshi Ram & Ors. v. Delhi Administration (1968) 2 SCR 455 ; James Martin v. State of Kerala (2004) 2 SCC 203 : [2003] 6 Suppl. SCR 910 ; Darshan Singh v. State of Punjab and Anr. (2010) 2 SCC 333 : [2010]
1 SCR 642 ; Sukumaran v. State 2019 SCC Online SC
339 ; Budhi Singh v. State of Himachal Pradesh (2012)
13 SCC 663 : [2012] 11 SCR 848 ; Surain Singh v. State of Punjab (2017) 5 SCC 796 ; Pulicherla
Nagaraju alias Nagaraja Reddy v. State of A.P. (2006)
11 SCC 444 : [2006] 4 Suppl. SCR 633 ; Gudar Dusadh v. State of Bihar (1972) 3 SCC 118 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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