REPORTABLE

IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 56 OF 2010  

R. JAYAPAL ..…. APPELLANT(S)

                              VS.

STATE OF TAMIL NADU & ANR.            …..RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

1. In this appeal, the accused-appellant has called in question the judgment

and order dated 21.02.2008 in Criminal Appeal No. 1003 of 2000 whereby, the

High Court  of Judicature at Madras has affirmed his conviction for the offence

under Section 302 of  the Indian Penal  Code (‘IPC’),  even while acquitting the

accused No. 2 for the offence under Section 302/34 IPC in modification of the

judgment and order dated 27.06.2000 as passed by the Principal Sessions Judge,

Thanjavur in Sessions Case No. 168 of 1999.     

1.1. In the Sessions Case aforesaid, the accused-appellant was charged for the

offence under Section 302 IPC whereas the appellant’s brother (accused No. 2)

was charged for the offence under Section 302/34 IPC and the appellant’s wife

(accused No. 3) was charged for the offences under Sections 302/34 and 341

IPC. The Trial Court convicted the appellant for the offence under Section 302 IPC

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and awarded him the punishment of life imprisonment together with fine of Rs.

1,000/-  with  default  stipulations;  and  also  convicted  the  appellant’s  brother

(accused No. 2) for the offence under Section 302/34 IPC and awarded him the

same  punishment  of  life  imprisonment  with  fine  of  Rs.  1,000/-  with  default

stipulations. However, the Trial Court found the appellant’s wife (accused No. 3)

not  guilty  of  the  offences  under  Sections  302/34  and  341  IPC and  she  was,

accordingly, acquitted. In appeal, the High Court maintained the conviction and

sentence of the appellant but found the accused No. 2 not guilty and he was,

accordingly, acquitted.  

2. The basic question calling for determination in this appeal is as to whether,

in  the  given  set  of  facts  and  circumstances,  the  High  Court  was  justified  in

maintaining the conviction of the appellant for the offence under Section 302 IPC?

3. The background aspects of  the case, so far relevant for the question at

hand, could be noticed, in brief, as follows:  

3.1. The prosecution case had been that the deceased Poondhaisezhiyan and

wife of the appellant, Smt. Jayaseeli (who was accused No. 3 in this case) carried

a  long-drawn  rivalry  because  of  the  elections  of  Town  Panchayat  where  the

deceased was instrumental in getting another candidate elected as President and

thereafter, himself got elected as Vice-president by defeating the accused No. 3.

According to the prosecution, the accused No. 3 made a complaint against the

deceased that was enquired into and was found to be false; and this failure of

complaint had enraged the accused persons. It was alleged that on 23.08.1997 at

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about 5.00 p.m.,  the appellant R. Jayapal (accused No. 1) along with his wife

(accused No. 3) had had an altercation with the deceased in front of his house

when the appellant vowed to finish off the deceased within 24 hours. It was further

alleged that the same day at about 7.15 p.m., when the deceased left his house in

order to visit Thanjavur and was crossing the lane in front of the house of the

appellant, the appellant came down with a spike, the accused No. 2 came with a

sickle, and the accused No. 3 came unarmed; the accused No. 2 (brother of the

appellant)  attacked the deceased with sickle but  his blow was blocked by the

deceased;  the  deceased  attempted  to  run  away  but  was  ambushed  by  the

accused  No.  3  and  she  exhorted  not  to  spare  the  deceased;  and  then,  the

appellant  stabbed  the  deceased  on  chest  with  the  spike.  This  incident  was

allegedly witnessed by PW-1 Pandian, brother of the deceased who carried the

deceased to hospital  and on whose statement,  FIR was registered as per the

report made by PW-12 Head Constable Jaganathan. The relevant parts of FIR

could be usefully extracted as follows:-

“…….Today on 23.08.97, at 5 p.m. my brother was in his house. When I returned from bazaar, there were shouting. When I went near I  saw my brother Poondaichelian,  Jayaseeli  and Jayapal were  arguing.  Then my brother  Poondaichelian  told  Jayaseeli that  was  sending  false  complaint  against  him  and  she  was talking  ill  of  him  and  told  her  to  behave  properly.  For  that Jayaseeli asked what respect he deserved. Jayapal told him to finish him off within 24 hours. I pacified my brother and send him to his house. Jayaseeli and Jayapal went towards east. Then my brother listened the 7 ¼ news in radio and started to Thanjavur. At that time in the post near my house, light was glowing. There was good illumination. I was sitting on the raised platform of my house. When my brother was going towards east in the road in front of the road near the house of Jayapal, Jayapal came with a spike,  Savier  came with a sickle  and Jayaseeli  came with  no

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weapon. Savier ran to my brother and cut my brother with sickle. My brother blocked that and pushed him down. So, the cut did not  land on my brother.  My brother  tried to run toward West. Jayaseeli  blocked  the  way  of  my  brother  and  shouted  not  to spare him.  Jayapal  stabbed the  spike in  his  hand on  the left chest  of  my  brother.  My  brother  fell  down.  I  ran  shouting. Arumainathan who is in front of my house and those who came by  the  way,  Chinnaiyan  s/o  Rengamani,  Ravichandran,  s/o Gurusamy also shouted. Jayapal, Jayaseeli and Savier also ran. I  chased  them  to  catch  them.  They  ran  to  each  direction.  I chased Jayapal towards east and caught him in a short distance. Fearing that he may punch me with the spike, I  snatched the spike. He tussled and threw away the spike and ran away. The spike is lying there. When returned and saw my brother, he was struggling  for  life.  I  got  a  van  urgently  and  got  him  in  the Thanjavur Medical College hospital  there doctor examined him told that my brother had died and sent the corpse to mortuary. He also told me that he would inform that police. I was shocked since my brother died and I sat there weeping. Now I am telling you what  happened.  I  request  you to take action on Jayapal, Savier and Jayaseeli who killed my brother.”

4.    In Trial, the prosecution, inter alia, relied on the testimony of alleged eye

witnesses PW-1 to PW-4, who made the statements more or less in conformity

with the narrations in the FIR that the deceased left his house to visit Thanjavur;

that the appellant and other accused persons were standing outside their house;

that upon the deceased reaching their house, the accused No. 3 ambushed him,

the accused No. 2 unsuccessfully attacked him with a sickle, and the appellant

attacked him with a spike and inflicted the injury on the left side of chest; and that

the appellant and accused No.2 ran away after throwing their spike and sickle.

The victim succumbed to the injuries at the Thanjavur Medical College Hospital.  

4.1. On the other hand, it was suggested on behalf of the accused persons that

the deceased along with 5 or 6 people came to the house of appellant and broke

open the door; that the deceased, armed with aruval, pushed the accused No. 3

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(wife of the appellant) when she tried to lock the door; and that the deceased

pulled the saree of the wife of the appellant and went on to tear her jacket. It was

further  alleged  that  since  the  deceased  did  not  leave  despite  requests,  the

appellant,  in  order to  protect  his  wife and while  exercising the right  of  private

defence, stabbed the deceased on chest with the pair  of scissors of a sewing

machine and, when the deceased fell down, the other persons left the scene. The

accused persons also examined two witnesses in support of their version of the

incident.

5. On appreciation of  evidence,  the Trial  Court,  by  its  judgment  and order

dated  27.06.2000,  rejected  the  defence  version  and  found  it  proved  beyond

reasonable doubt that the appellant did cause injury on the vital part of body of the

deceased.  The  Trial  Court  proceeded  to  hold  that  the  acts  of  the  accused-

appellant and accused No.2 had been of murder and they were guilty for offences

punishable under Section 302 IPC and under Section 302/34 IPC respectively.

The Trial  Court  held  proved the  facts  that  the  deceased warded off  the  blow

attempted by the accused No.  2  but  when the deceased tried to  escape,  the

appellant stabbed him with the spike. However, the accused No. 3, wife of the

appellant  was  acquitted with  the  Trial  Court  disbelieving the  prosecution story

regarding her participation in the crime, particularly for her having two children in

the age of 2 years and 4 months respectively, and none of the witnesses having

alleged that she was armed with any weapon. The Trial Court, inter alia, observed

as under :-

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“53…The evidence of P.W. 1 to 4 is that when the assault of A2 was warded off and he pushed him down the accused ran away. It is not the case of the prosecution that A3 also assaulted him before or after Poonthaisezhiyan fell down. When the evidence of P.W. 1 to 4 is that when A2 assaulted Poonthaisezhiyan he warded off and when he tried to ran away A1 stabbed him, and so it  cannot  be  believed and accepted  that  A3 way  laid  him. Moreover, it is not disputed that on the date of occurrence, and at that time of occurrence, the 3rd accused was with two children aged about 2 years and 4 months. In such circumstances, it is difficult to accept the case of the prosecution that A3 joined with A1 and A2 helped them and way laid the deceased to commit murder. Thus the evidence on the side of the prosecution is not sufficient for the court to come to the conclusion that the charge framed U/s 341, 302 r/w 34 IPC has been proved. Against A3. But  the  evidence  on  the  side  of  the  prosecution  is  cogent, believable and sufficient to prove the charge, u/s 302 against 1st accused and the charge 302, r/w 34 IPC levelled against A2.”

6.  In appeal by the present appellant and the accused No. 2, the High Court

of  Madras,  in  its  impugned  judgment  and  order  dated  21.02.2008,  found  no

reason to consider interference in the findings recorded by the Trial  Court  as

regards conviction of the appellant under Section 302 IPC, but acquitted accused

No.2 on the grounds that no injury corresponding to the weapon allegedly used

by him was found on the body of the deceased; and that the witnesses in their

testimonies had made improvements at the time of the examination before the

Court, casting a doubt on the case against accused No.2. The findings of High

Court in relation to accused No. 2 could be usefully extracted as under: -

“10. As far as A-2 was concerned, he had aruval and wielded the  same,  according  to  the  witnesses  examined  by  the prosecution.  But,  no  corresponding  injury  as  found.  The prosecution witnesses came forward to state that A-2 had aruval and wielded it  also.  According to the prosecution,  originally  to start with, A-2 had aruval; but no injury was caused which was simply warded off. But, the witnesses have made a development

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at the time of the examination before the Court, and thus, it casts a doubt whether A-2 could have been in the place of occurrence with  an  aruval  either,  or  he  attacked  the  deceased,  since  no corresponding injury is found. The evidence of these witnesses in respect of A-2, casts a doubt, and hence, it could not be taken as  a  proof,  since  it  is  shrouded  with  doubts.  Under  the circumstances, that part of the prosecution case in respect of A- 2, cannot be believed.

*** *** ***

13. As regards A-2, this Court is able to see that the evidence is shrouded with reasonable doubts, and hence, A-2 is entitled for acquittal. Accordingly, the conviction and sentence imposed on A-2 by the trial Court are set aside, and he is acquitted of the charge. The fine amount if any paid by him, will be refunded to him. The bail bound executed by him shall stand terminated.”

7.  For the High Court  having affirmed his conviction and sentence for the

offence under Section 302 IPC, the appellant (accused No. 1) has preferred this

appeal. Assailing the judgment and order so passed by the High Court, learned

counsel for the appellant has strenuously argued that the present one is a clear

case of exercise in good faith the right of private defence since the appellant was

only trying to protect his wife from being assaulted and molested by the deceased

who  had  illegally  entered  into  their  house  and,  in  natural  circumstances,  the

appellant attacked the deceased with the object that was accessible to him. The

learned  counsel  would  submit  that  even  if  the  accused  does  not  plead  self-

defence, it is open to consider such a plea if the same arises from the material on

record;  and  the  burden  could  be  discharged  by  the  accused  by  showing

preponderance of  probabilities  in  favour  of  that  plea  on  the  basis  of  material

available  on  record.  The  learned  counsel  has  referred  to  several  decisions,

including those in  Munshi Ram & Ors. v. Delhi Administration: (1968) 2 SCR

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455; James Martin v. State of Kerala:  (2004) 2 SCC 203;  Darshan Singh v.

State of Punjab and Anr.:  (2010) 2 SCC 333;  and Sukumaran v. State: 2019

SCC Online SC 339.  According to the learned counsel, on the facts and in the

circumstances available on record, the case of right of private defence deserves

to  be  accepted.  The  learned  counsel  has  also  argued  that  in  any  event,  the

present one had been a case of sudden fight and grave and sudden provocation

for  the  reason  that  the  deceased  entered  the  house  of  the  appellant  and

attempted to cause harm to the family of the appellant. Therefore, according to the

learned counsel, the action of the appellant does not lead to the offence of murder

and it would, at the most, be a case of culpable homicide where the appellant had

no intention of causing death or causing such bodily injury as is likely to cause

death.   In support of these contentions, the learned counsel has referred to and

relied upon the decisions in Budhi Singh v. State of Himachal Pradesh: (2012)

13 SCC 663 and Surain Singh v. State of Punjab: (2017) 5 SCC 796.  

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

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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-

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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.”

*** *** ***

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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

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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

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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

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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

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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

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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

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).

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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, 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

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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.  

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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

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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.

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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

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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.  

...............................................J.             (ABHAY MANOHAR SAPRE)

      ...............................................J.  (DINESH MAHESHWARI)     1

New Delhi Dated:   9th August, 2019

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