R. JAYAPAL versus STATE OF TAMIL NADU & ANR.

8. Per contra, learned counsel for the respondent would argue that the appellant had the intention of causing death of the deceased because of enmity; and prior to the incident in question, the accused had categorically expressed his intention to kill the deceased. Learned counsel would submit that the witnesses have established the fact that the place of occurrence was the road opposite to the house of the appellant and in the given circumstances, the case had neither been of the exercise of the right of private defence nor of provocation and sudden fight; and the act of the appellant squarely falls under the principal part of Section 300 IPC because of the nature of fatal injury inflicted upon the deceased on the vital part of his body with a dangerous weapon. Hence, according to the learned counsel, the appellant is not entitled to the benefit of any of the Exceptions of Section 300 IPC. Learned counsel has referred to and relied upon the decisions in Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P.: (2006) 11 SCC 444 and Gudar Dusadh v. State of Bihar: (1972) 3 SCC 118.

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

10. The principal part of Section 299 IPC specifying the offence of culpable homicide reads as under: – “299. Culpable homicide. -Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 10.1. The principal part of Section 300 IPC specifies the offence of murder as follows: – “300. Murder. – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.- If it is done 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- Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 10.2. The aforesaid description of the offence of murder in Section 300 IPC is subject to five exceptions. Exceptions 1, 2 and 4 thereof, being relevant for the present purpose, could also be taken note of as under: – “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 not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.” Exception 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law 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.” 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 is immaterial in such cases which party offers the provocation or commits the first assault. *** “ 10.3 While Section 302 IPC provides the punishment for murder, Section 304 thereof provides the punishment for culpable homicide not amounting to murder. For its relevance, we may also extract Section 304 IPC as under:- “304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

11. We may now briefly refer to the decisions cited by the learned counsel for the parties. 11.1. The principles in the case of Gudar Dusadh (supra), as regards the operation of clause “Thirdly” of Section 300 IPC are not of any dispute but the same would apply with reference to the facts and circumstances of each case. On the facts of the case of Pulicherla Nagaraju (supra), this Court noticed that there was previous enmity between the parties and half an hour before the incident, father and brother of the deceased had been attacked by the appellant and his father and there was no indication of any cause for an apprehension that the deceased might attack the appellant. In the given fact situation, this Court found that the act of the appellant causing an injury on a vital part of the body by stabbing with great force had been of the offence of murder. 11.2. The principles in Munshi Ram and other cited decisions on behalf of the appellant, that the plea of self defence could be considered if arising from the material on record and the burden could be discharged by the accused by showing preponderance of probabilities in favour of that plea, are also neither of doubt nor of dispute. The question, however, would remain as to whether the appellant has been able to show a reasonable apprehension so as to put the right of self defence into operation. In Budhi Singh and Surain Singh (supra), the accused persons were convicted for offences under Section 304 Part-I and Section 304 Part-II respectively in view of the facts of the given case. In the ultimate analysis, each case is required to be examined on its own facts to find the nature of offence.

12. Reverting to the case at hand, as noticed, one of the fundamental features of this case had been that the appellant, his brother and his wife were arrayed as accused Nos. 1, 2 and 3 respectively with the imputations that these three persons had acted in furtherance of common intention where they intercepted the deceased when he was crossing the lane in front of the house of the appellant; where brother of the appellant (i.e., accused No. 2) attacked the deceased with sickle but his blow was blocked by the deceased; where the accused No. 3 ambushed the deceased; and where the appellant stabbed the deceased with the spike. The prosecution suggested that the occurrence took place on the opposite side of the road in front of the house of the appellant but, on the other hand, it was suggested on behalf of the accused that the deceased barged into the house of the appellant and tried to assault and molest the wife of the appellant (i.e., accused No. 3); and that the deceased was attacked by the appellant in exercise of right of private defence.

We shall discuss the other aspects of the matter, including those relating to the place of occurrence, a little later. Significant it is to notice at this juncture that in relation to the case so set up by prosecution, the Trial Court, even while accepting the evidence of PW-1 to PW-4 in respect of the appellant and accused No. 2, did not accept the same in respect of accused No. 3 and held that the charge levelled against her was not proved. Moreover, the acquittal of accused No. 3 by the Trial Court was never challenged. The appellant and the accused No. 2 laid challenge to their conviction and sentence in appeal before the High Court. The High Court, though accepted the prosecution case in respect of the appellant and affirmed his conviction and sentence but, at the same time, disbelieved the prosecution case in relation to the accused No. 2 and proceeded to acquit him. The aforesaid findings of the High Court and acquittal of accused No. 2 have also not been challenged by the prosecution.

In the net result of the respective decisions of the Trial Court and the High Court, the prosecution case as regards accused No. 2 and accused No. 3, respectively the brother and the wife of the appellant, is found unbelievable and stands rejected. As noticed, the assertions by the prosecution witnesses had been that the three accused persons acted in concert while attacking the deceased and that each of the accused person played his or her specific role in the occurrence. Now, when the prosecution case is disbelieved in relation to the accused Nos. 2 and 3, the questions perforce arise as to whether the implicating parts of the prosecution evidence qua the appellant could be segregated from the other part/s and as to whether it would be safe to accept the prosecution case against the appellant alone?

13. The question relating to the propriety of conviction of one accused even while the co-accused persons are acquitted has received attention of this Court in several decisions. With reference to the principles enunciated in the past decisions, this Court observed in the case of Yanob Sheikh alias Gagu v. State of West Bengal: (2013) 6 SCC 428 that acquittal of co-accused per se is not sufficient to result in acquittal of the other accused; and the Court ought to examine the entire prosecution evidence in its correct perspective before it could conclude on the effect of acquittal of one accused on the other in the facts and circumstance of the given case. In the case of Dalbir Singh v. State of Haryana: (2008) 11 SCC 425, this Court extracted the principles propounded in the case of Krishna Mochi v. State of Bihar: (2002) 6 SCC 81 and observed as under: – “13. Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the court has to carefully screen the evidence: ‘51. … It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance in different jurisdiction nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366]). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460]). The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care.

The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P.[(1972) 3 SCC 751] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277]). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [AIR 1954 SC 15] and Balaka Singh v. State of Punjab[(1975) 4 SCC 511]).

As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752] normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.” 13.1. Hence, where this Court found that separation of truth from falsehood was not feasible because of the two being inextricably mixed up, the prosecution evidence was discarded in toto1. However, on the facts of other cases2, this Court found that acquittal of co-accused did not enure to the benefit of the convicted accused.

14. It could be usefully reiterated that in the present case, the prosecution witnesses narrated the happenings in the manner that the deceased was waylaid by the three accused persons on the road and while the two male accused persons (appellant and the accused No. 2) assaulted the deceased with respective weapons, the accused No. 3 prevented the deceased from running away. The chronology or sequence of the actions of the accused persons had occurred slightly different in the different testimonies but those inconsistencies, as such, may not be of material bearing if the witnesses are otherwise found reliable and trustworthy. However, the significant part of the matter is that such accounts by the witnesses stand disbelieved in relation to the accused No. 2 and the accused No. 3, both of whom stand acquitted. In our view, 1 Like the cases of Zwinglee Ariel and Balaka Singh, as indicated in the extracted portion in paragraph 13 hereinabove. 2 Like those in Yanob Seikh and Dalbir Singh (supra). when accused No. 2 and accused No. 3 are removed out of scene, 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. 14.1.

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 our view, 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 above-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.

15. 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.

16. As regards the question as to whether the appellant has been able to establish the case of right of private defence, we may examine his assertion that the occurrence took place inside his house. A substantial deal of arguments had been that admittedly, there were blood stains outside the house of the appellant, on the road and across the road; and the Investigating Officer PW-14 did not carry out the investigation inside the house of the appellant nor investigated the private defence angle and the original mazhar was not produced. 16.1. The contention as regards original mazhar has only been noted to be rejected. The Trial Court has pointed out, and rightly so, that carbon copy of the same was produced and there was no such discrepancy that could be considered fatal to the prosecution. Having examined the testimony of the Investigating Officer PW-14, we find on the material aspects that he recovered the blood stained weapon of offence (sickle) from the raised platform of the house of appellant; and he went inside the house of appellant too but did not find the things scattered as alleged. He also denied that there were cut marks on the door frame, window glass or on the door of the house. He further denied the suggestion that there was blood on the vegetables inside the house of the appellant. He further stated that the deceased fell down in front of the house of the appellant but a little far away; and the deceased was laid in the place where Rangoli was drawn in the house of one Barnabas. It is also noticed that as per the site plan prepared by the Investigating Officer, the width of tar road was about 10 feet in front of the house of the appellant and his house was just opposite to the house of Barnabas.

17. Hence, even when we find 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. 17.1. In the given set of fact and circumstances, burden was heavy on the prosecution to clear the doubts as to how and why the deceased was at the door-step of the house of the appellant; and how the blood stains were also found at the door-step of the house of the appellant. The prosecution has not been able to remove all the obvious doubts as regards the sequence of events relating to the incident in question and as regards the actual place of occurrence. 17.2. In the given set of fact, circumstances and doubts, preponderance leans towards the probability that the occurrence took place just at the door-step of the house of the appellant; and the likelihood of the deceased, who was on inimical terms with the wife of the appellant, having given reasons for provocation, by way of aggression or attempted intrusion into the house of the appellant, is not ruled out altogether.

18. 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.

19. Having indicated the obvious but unexplained doubts in the prosecution version and having also indicated the preponderance of probabilities, we may usefully refer to the decision in the case of Jumman and Ors. v. The State of Punjab: AIR 1957 SC 469 wherein this Court has indicated the course to be followed in the case where there is ambiguity in deciding the role and involvement of the parties. This Court has said,- “22. In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300 IPC., Exception 4. 23. The matter has to be viewed in this way. It is clear that there was no premeditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, IPC., applies with the result that the offence is under Section 304 (Part I), of the Indian Penal Code.”

20. In view of the foregoing and in the overall circumstances of this case, we are 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, we are 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.

21. Accordingly and in view of the above, this appeal is partly allowed to the extent and in the manner that conviction of the appellant under Section 302 IPC is altered to the one under Part-I of Section 304 IPC and the appellant is sentenced to undergo imprisonment for a period of ten years. The other part of sentence as regards fine and default stipulation is maintained. Ankit Gyan Appeal partly allowed.