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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 206-207 OF 2017

ARJUN AND ANR. ETC. ETC.      ..….Appellants

Versus

STATE OF CHHATTISGARH                                ……Respondent

J U D G M E N T

R. Banumathi, J.

These  appeals  arise  out  of  the  judgment  and  order  dated

30.08.2013 passed by the High Court of Chhattisgarh in Criminal Appeal

Nos.111 of 2008 and 100 of 2008 whereby the High Court affirmed the

conviction and sentence of life imprisonment imposed by the trial Court

on the appellants.

2. Briefly stated case of the prosecution is that on 19.11.2006 at about

9:45 a.m., deceased Ayodhya Prasad @ Rahasu had gone to his field

alongwith Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7)

and  Makunda  Raout  (PW-8)  to  cut  tree  with  the  help  of  the  above

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persons which was on his land in village Ghatmadwa.  At that time, the

appellants-accused came to the field and they stopped the deceased and

his labourers from cutting the tree. Deceased Ayodhya Prasad @ Rahasu

told the appellants that he was the owner of the tree, therefore, he was

cutting  the  tree  which  resulted  in  quarrel  between  the  parties.   The

appellants assaulted the deceased with katta,  gandasa and stone.  The

deceased fell  down and sustained injuries  on his  head and his  brain

matter came out.  He was taken to Bilaspur for treatment but he died on

the way to the hospital.

3. Shivprasad (PW-6), brother of the deceased lodged the complaint

in Police Outpost Gidhouri.   Based on the complaint, FIR (Ex.P-16) was

registered in  Police  Station  Bilaigarh.  PW-10,  the Investigating  Officer

reached the place of occurrence and took up the investigation.  After the

inquest, the body was sent for autopsy. The post-mortem was conducted

by  Dr.  Harnath  Verma  (PW-12)  who  gave  the  Post  Mortem  Report

(Ex.P-26).  Dr. Verma opined that the death of the deceased was due to

excessive haemorrhage and injury to the head.

4. PW-10, the Investigating Officer arrested the appellants from the

Gidhouri Bus Stand and recorded their statements under Section 27 of

the  Evidence  Act.   Disclosure  statement  of  the  appellants  led  to  the

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discovery  of  iron  katta (cutting  object),  gandasa  and  stone  weighing

12.5 kg which were seized from Lalaram @ Bhagat, Arjun and Padumlal

respectively.   Sando  baniyan and  full-pant  of  appellant  Lalaram  @

Bhagat were also seized. Seized articles were sent to Forensic Science

Laboratory,  Raipur  for  chemical  examination  vide Ex.P-23.  After

completion  of  the  investigation,  chargesheet  was  filed  against  the

appellants in the Court of Judicial Magistrate, First Class Balodabazar,

who, in turn, committed the case to the Court of Session, Raipur, from

where it was received on transfer by Second Additional Sessions Judge,

Balodabazar, District Raipur, who conducted the trial.   

5. In order to prove its case, prosecution examined as many as twelve

witnesses.   Bajrang  Manjhi  (PW-1),  Borri  Verma  (PW-2),  Gilli  Raout

(PW-7)  and  Makunda  Raout  (PW-8)  are  the  eye-witnesses,  PW-6

Shivprasad  is  the  complainant  and  brother  of  the  deceased  Rahasu.

Constable Gandlal (PW-4), Constable M.R. Sinha (PW-9) and Constable

Bhojram (PW-11) were involved in recording the statement and collection

of evidence, PW-10 Deen Bandhu Uaikey is the Investigating Officer and

PW-12 Dr. Harnath Verma is the doctor who conducted the post-mortem.

The  accused  were  questioned  under  Section  313  Cr.P.C  about  the

incriminating  evidence  and  circumstances,  the  accused  denied  all  of

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them.   The  accused  pleaded  that  the  deceased  Ayodhya  Prasad

attempted to take possession of the land of the accused by force and,

therefore,  they  acted  in  self-defence  of  their  body  and  property.  To

substantiate  their  defence  plea,  the  accused  have  examined  DW-1

Shrawan Kumar and DW-2 Dwarika Prasad.  

6. Having considered the evidence of the witnesses and the defence

plea  and  the  material  placed  before  it,   the  trial  court  held  that  the

appellants  acted  with  common  intention  to  commit  the  murder  of

deceased Ayodhya Prasad and found that the prosecution has proved

the  guilt  of  the  accused  beyond  reasonable  doubt  and  convicted  the

appellants under Section 302 IPC or 302/34 IPC and sentenced each of

them to undergo imprisonment for life and imposed fine of Rs.20,000/-

and in default of payment of fine to undergo rigorous imprisonment for

two years.  Aggrieved by the verdict of conviction, the accused-appellants

Arjun and Lalaram together filed an appeal and accused Padumlal filed a

separate appeal before the High Court.  The High Court after hearing the

counsel  for  the  parties  affirmed  the  conviction  of  the  appellants  and

sentence imposed by  the trial  court.  Aggrieved by the  conviction and

sentence imposed on them, the appellants are before us in these appeals

by way of special leave.

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7. Learned  counsel  for  the  appellants  submitted  that  the  name of

accused Arjun has never found mention in the evidence of witnesses and

the prosecution has failed to prove his presence at the place of incident.

It was further submitted that the eye witnesses have named only Padum

and  Lalaram  and  not  Arjun  and  thus,  his  conviction  under

Section  302/34  IPC  was  unsustainable  in  the  eyes  of  law.  It  was

contended that PW-6 Shivprasad is the real brother of the deceased and

it would be unsafe to base conviction on such an interested testimony. It

is also the case of the appellants that mere recovery of  gandasa from

accused Arjun cannot establish his guilt as it is normal that most of the

farmers have  gandasa in  their  possession and mere recovery without

establishing its use defeats the case of the prosecution.

8. Per contra, the learned counsel for the State submitted that even

though PW-6 Shivprasad is the brother of the deceased, his evidence is

supported by other evidence and also the recovery of weapons from the

appellants.  It  was  further  submitted  that  even  though  prosecution

witnesses Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout(PW-7)

and Makunda Raout (PW-8) were treated hostile, their evidence establish

the  presence  of  the  accused  and  their  overt  act  of  surrounding  the

deceased  and  to  that  extent,  corroborate  the  version  of  PW-6

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Shivprasad.   It  was  further  submitted  that  considering  the  nature  of

weapon used by the appellants and the manner of attack, the trial court

as  well  as  the  High  Court  rightly  convicted  the  appellants  under

Section 302 IPC and the impugned judgment warrants no interference.  

9. We  have  heard  learned  counsel  for  the  parties  at  length  and

perused the impugned judgment and the materials placed on record.

10. Shivprasad PW-6 is the real brother of the deceased. PW-6 has

deposed  in  his  evidence  that  on  19.11.2006  at  about  8:45  a.m.,  his

brother Ayodhya Prasad @ Rahasu had gone to the field for cutting of

trees alongwith four labourers who are eye witnesses i.e. PWs 1, 2, 7

and  8  and at  that  time A1-Lalaram,  A2-Padumlal  and  A3-Arjun  came

there with  katta and  gandasa  and surrounded the deceased quarrelled

with him and prevented him from cutting the tree.  The accused told the

deceased that they are the owners of the land and questioned him as to

why he was cutting the tree.  When the deceased replied that he was the

owner of the tree and he had the right to cut the tree, there was wordy

altercation  between  the  accused  and  the  deceased  and  the  accused

attacked him with the weapons they had, namely, katta,  gandasa and a

stone.   The deceased sustained injuries on his head, neck,  back and

abdomen  and  fell  down  on  the  field.  He  further  deposed  that  he

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witnessed the incident from near the shop and the distance between the

shop and the place of occurrence is 15 to 20 feet and due to fear, he did

not go near.   

11. Shivprasad (PW-6) is the brother of the deceased, his relationship

with  the  deceased does not  affect  the  credibility  of  the witness.  Only

because PW-6 is related to the deceased that may not by itself  be a

ground to discard his evidence. Where the prosecution case rests upon

the evidence of a related witness, it  is well-settled that the court shall

scrutinize the evidence with care as a rule of prudence and not as a rule

of law. The fact of the witness being related to the victim or deceased

does not by itself discredit the evidence.

12. In Mano Dutt and Anr. vs. State of Uttar Pradesh (2012) 4 SCC

79, in para (33), this Court held as under:-

“33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness  should  satisfy  the  legal  parameters  stated  by  this  Court  in  a catena  of  judgments.  Once  those  parameters  are  satisfied  and  the statement of the witness is trustworthy, cogent and corroborated by other evidence  produced  by  the  prosecution,  oral  or  documentary, then the court would not fall in error of law in relying upon the statement of such witness.  It  is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in Anil Phukan v. State of Assam (1993) 3 SCC 282.”

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We find no reason to discard the evidence of PW-6 for the sole reason

that he is related to the deceased and that he is an interested witness.   

13. To bring home the guilt of the accused, prosecution has examined

Bajrang  Manjhi  (PW-1),  Borri  Verma  (PW-2),  Gilli  Raout  (PW-7)  and

Makunda Raout (PW-8), the labourers who accompanied the deceased

for cutting the trees.  In his evidence, PW-1 Bajrang Manjhi stated that he

alongwith Borri Verma (PW-2), Gilli  Raout (PW-7) and Makunda Raout

(PW-8)  went  with  deceased  Ayodhya  for  cutting  the  trees  at  about

7:00-8:00 a.m. and the deceased showed them three trees to be cut.

PW-1 further stated that while they were cutting the tree, the appellants

Padum and Lalaram came there and questioned them about cutting of

tree and asked them to go away. PW-1 further stated that the appellants

Lalaram and Padum were  having iron  knife  and they  surrounded the

deceased.  PW-1 further stated that out of fear, he and other labourers

namely, Borri  Verma  (PW-2),  Gilli  Raout  (PW-7)  and  Makunda Raout

(PW-8)  ran away from the scene and after  about  20-25 minutes they

came to know that Ayodhya Prasad was murdered. To the same extent,

is the evidence of Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda

Raout (PW-8).  

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14. All  the  four  eye  witnesses  have  corroborated  that  the  accused

Padum and Lalaram were present. Further, according to PW-8 Makunda

Raout, accused Padum and Lalaram were present and immediately on

fleeing away from the spot, PW-8 Makunda Raout after some distance

turned back and saw that there were three accused persons standing

surrounding the deceased. The presence of two accused in the beginning

and later  on  joining  of  the  third  accused Arjun  is  what  falls  from the

evidence of PW-8. Evidence of PW-8, thus, corroborates the evidence of

PW-6 as to the presence of three accused.

15. Though the eye  witnesses  PWs 1,  2,  7  and 8  were  treated as

hostile  by  the  prosecution,  their  testimony  insofar  as  the  place  of

occurrence and presence of accused in the place of the incident and their

questioning as to the cutting of the trees and two accused surrounding

the deceased with weapons is not disputed.  The trial court as well as the

High Court rightly relied upon the evidence of PWs 1, 2, 7 and 8 to the

above said extent  of  corroborating the evidence of  PW-6 Shivprasad.

Merely because the witnesses have turned hostile in part their evidence

cannot be rejected in toto.  The evidence of such witnesses cannot be

treated as effaced altogether but the same can be accepted to the extent

that their version is found to be dependable and the court shall examine

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more cautiously to find out as to what extent he has supported the case

of the prosecution.   

16. In  Paramjeet  Singh  alias  Pamma  vs.  State  of  Uttarakhand

(2010) 10 SCC 439, it was held as under:-

“16. The fact that the witness was declared hostile at the instance of the Public  Prosecutor  and  he  was  allowed  to  cross-examine  the  witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani (2003) 7 SCC 291.)

17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 observed as under: (SCC p. 457, para 7)

“7.  … It  is  well  settled that  the evidence of  a prosecution witness  cannot  be  rejected  in  toto  merely  because  the prosecution  chose  to  treat  him  as  hostile  and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.”

18. In  Mahesh v.  State of Maharashtra (2008) 13 SCC 271, this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49)

“49. … If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will  give  rise  to  doubt  the  testimony  of  the  investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material  truth from  the  Court  with  the  sole  purpose  of  shielding  and protecting  the  appellant  for  reasons  best  known  to  the witness  and  therefore,  no  benefit  could  be  given  to  the appellant  for  unfavourable  conduct  of  this  witness  to  the prosecution.”

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19. In Rajendra v. State of U.P. (2009) 13 SCC 480, this Court observed that merely because a witness deviates from his statement made in the FIR,  his  evidence  cannot  be  held  to  be  totally  unreliable.  This  Court reiterated a similar  view in  Govindappa v.  State of Karnataka  (2010) 6 SCC 533 observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.”

The same view is reiterated in Mrinal Das and Ors. vs. State of Tripura

(2011) 9 SCC 479 in para (67) and also in Khachar Dipu alias Dilipbhai

Nakubhai vs. State of Gujarat (2013) 4 SCC 322 in para (17).

17. The contention of the accused is that the eye witnesses PWs 1, 2,

7 and 8 have not mentioned the name of appellant Arjun.  Appellant Arjun

could  have  not  been  convicted,  does  not  merit  acceptance.   In  his

evidence,  PW-8 Makunda Raout  stated that  when they started cutting

trees, accused Padum and Lala came there and surrounded Ayodhya

Prasad and started questioning.  After that PW-8 and other eye witnesses

ran away from the spot.  PW-8 further stated that after some distance, he

turned  back  and  saw  three  persons  surrounding  the  deceased.  The

evidence  of  PW-8  establishes  the  presence  of  two  accused  in  the

beginning and that Arjun joined two other accused and the presence of

appellant  Arjun  spoken  by  PW-6  is  corroborated  by  the  evidence  of

PW-8.  That  apart,  recovery  of  gandasa  from  appellant  Arjun  is  an

incriminating  circumstance/evidence  against  the  appellant  Arjun  and

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concurrent findings recorded by the courts below that appellant Arjun was

also  responsible  for  the  homicidal  death  of  Ayodhya  is  based  on

evidence.  

18. PW-12 opined that  the cause of  death was haemorrhagic shock

due to head injuries and the death was homicidal  in nature.   Medical

evidence corroborates the oral testimony of PWs 6 and 10.  Recovery of

weapons i.e. katta (cutting object), gandasa and stone from the accused

Lalaram,  Arjun  and  Padum  respectively  also  substantiates  the

prosecution version. The prosecution has established that the appellants

are responsible for the homicidal death of deceased Ayodhya Prasad.   

19. The point falling for consideration is whether the conviction of the

appellants under Section 302 IPC is sustainable.  As discussed earlier,

the evidence clearly  establishes that  while Ayodhya Prasad and other

witnesses were cutting the trees, there was exchange of  words which

resulted  in  altercation  and  during  the  said  altercation,  the  appellants

attacked the deceased.  Thus, the incident occurred due to a sudden

fight which, in our view, falls under exception (4) of Section 300 IPC.

20. To invoke this exception (4), the requirements that are to be fulfilled

have  been  laid  down  by  this  Court  in  Surinder  Kumar  vs.  Union

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Territory of Chandigarh   (1989) 2 SCC 217, it has been explained as

under:-  

“7. To  invoke  this  exception  four  requirements  must  be  satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel  manner. The cause of  the quarrel is not relevant nor is it relevant who offered the provocation or started  the  assault.  The  number  of  wounds  caused  during  the occurrence is  not  a decisive  factor  but  what  is  important  is  that  the occurrence  must  have  been  sudden  and  unpremeditated  and  the offender must have acted in a fit of anger. Of course, the offender must not  have  taken  any  undue  advantage  or  acted  in  a  cruel  manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly…………..”

21. Further  in the case of  Arumugam vs.  State,  Rrepresented by

Inspector of Police, Tamil Nadu, (2008) 15 SCC 590,  in support of the

proposition  of  law  that  under  what  circumstances  exception  (4)  to

Section 300 IPC can be invoked if death is caused, it has been explained

as under:-  

“9. ……. “18. The help of Exception 4 can be invoked if death is caused (a) without  premeditation;  (b)  in  a  sudden  fight;  (c)  without  the offender’s 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 Penal Code, 1860. 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

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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’.”  

22. The accused, as per the version of PW-6 and eye witness account

of  other  witnesses,  had weapons in  their  hands,  but  the sequence of

events  that  have  been  narrated  by  the  witnesses  only  show that  the

weapons were used during altercation in a sudden fight and there was no

pre-meditation.  Injuries  as  reflected  in  the  post-mortem  report  also

suggest that appellants have not taken “undue advantage” or acted in a

cruel manner.  Therefore, in the fact situation, exception (4) under Section

300 IPC is attracted.  The incident took place in a sudden fight as such

the appellants are entitled to the benefit under Section 300 exception (4)

IPC.

23. When and if there is intent and knowledge, then the same would be

a case of Section 304 Part I IPC and if it is only a case of knowledge and

not the intention to cause murder and bodily injury, then the same would

be a case of Section 304 Part II IPC.  Injuries/incised wound caused on

the  head  i.e.  right  parietal  region  and  right  temporal  region  and  also

occipital region, the injuries indicate that the appellants had intention and

knowledge to cause the injuries and thus it would be a case falling under

Section  304  Part  I  IPC.  The  conviction  of  the  appellants  under

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Section  302 read with  Section  34  IPC is  modified  under  Section  304

Part I IPC.  As per the Jail Custody Certificates on record, the appellants

have served 9 years 3 months and 13 days as on 2nd March, 2016, which

means as on date the appellants have served 9 years 11 months. Taking

into account the facts and circumstances in which the offence has been

committed, for the modified conviction under Section 304 Part I IPC, the

sentence is modified to that of the period already undergone.  

24. In the result, conviction of the appellants under Section 302 IPC

read with Section 34 IPC is modified as conviction under Section 304

Part I IPC and the sentence is reduced to the period already undergone

and these appeals  are  partly  allowed accordingly. The appellants  are

ordered to be released forthwith unless required in any other case.  

25. Fee of the learned Amicus is fixed as per Rules.

…….…………...………J. [DIPAK MISRA]

…………….……………J. [R. BANUMATHI]

New Delhi; February 14, 2017

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