Court : SC
Brief : Coming to the question whether on the basis of a solitary
evidence conviction can be maintained, a bare reference to
Section 134 of the Evidence Act, 1872 (in short \023the Evidence
Act\024) would suffice. The provision clearly states that no
particular number of witnesses is required to establish the
case. Conviction can be based on the testimony of a single
witness if he is wholly reliable. Corroboration may be
necessary when he is only partially reliable. If the evidence is
unblemished and beyond all possible criticism and the court is
satisfied that the witness was speaking the truth then on his
evidence alone conviction can be maintained.
Citation : --
CASE NO.:
Appeal (crl.) 12 of 2008
PETITIONER:
Ramesh Krishna Madhusudan Nayar
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 07/01/2008
BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.4630 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of Bombay
High Court, Aurangabad Bench, dismissing the appeal of the
appellant who faced trial for alleged commission of offence
punishable under Section 302 of the Indian Penal Code, 1860
(in short \021IPC\022) and was sentenced to imprisonment for life by
learned Additional Sessions Judge, Ahmednagar.
3. Background facts in a nutshell are as follows:
The complainant Sajay Vithal was serving as a Waiter in
Sanjog Hotel for 2-1/2 months prior to the incident. Pradip
Panjabi is the owner of the said hotel. Business in the hotel is
conducted from 5 p.m. to 11 p.m. After closure of the hotel,
complainant Sanjay alongwith 5 workers of the hotel used to
reside in a staff room. Hotel was closed on 3.11.1999 at 11.30
p.m. Pradip Panjabi and other staff members went out at
about 1 a.m. Thereafter on 4.11.1999 around 1.30 a.m. in the
night, altercations took place between Ramesh Nayar and
Anna Devraj (hereinafter referred to as the \021deceased\022) on the
point of switching off the lights. Both used to reside in the staff
room. At that time, complainant, Kundlik Chavhan and
Chhotu intervened. Thereafter complainant and Anna Devraj
slept in the staff room. At about 8.30 a.m. complainant heard
loud noise relating to a quarrel and got up. He saw the
accused and the deceased quarrelling and accused inflicting
two blows by a wooden log on the head of Anna Devraj.
Ramesh Nayar threatened the complainant that if he disclosed
anything to anybody, he will teach him a lesson. Hence
complainant went out of the room. He disclosed the incident
to the persons in the hotel working as gardeners in the
morning. At that time, Anna Devraj was not speaking
anything. He was lying unconscious and moaning. Thereafter
owner of the hotel was informed on phone. He came and the
deceased was shifted to Civil Hospital for treatment. His right
ear was bleeding. Thereafter, the complainant and hotel
owner went to Tophkhana Police Station and reported the
matter to police as per Exh.26. A.S.I. Puri registered the
offence as Crime No.227/99 under Sections 307, 506 of IPC
and handed over investigation to PW.7. P.S.I. Jyoti Madhav
Karandikar. After completion of investigation, charge sheet
was placed and accused-appellant faced trial as he denied the
occurrence and pleaded false implication. The trial Court
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placed reliance on the evidence of Sanjay Diwate (PW-5). It is
to be noted that certain other persons i.e. Dhirendera
Suryavanshi (PW-2), Ashok Palve (PW-3) and Datta Pingale
(PW-6) were claimed to be eye-witnesses, but they made
departure from the statements given during investigation. The
trial Court found the evidence of PW-5 to be credible and
cogent and recorded his conviction and imposed the sentence
of imprisonment for life.
4. The conviction and sentence were challenged before the
High Court, which as noted above, dismissed the appeal.
5. In support of the appeal, leaned counsel for the appellant
submitted that the conviction could not have been recorded
solely on the testimony of one alleged eye-witness PW-5.
Alternatively, it is submitted that Section 302 IPC has no
application to the facts of the case in view of the factual
scenario highlighted. According to him in course of a sudden
quarrel the incident happened. In other words, according to
him Exception 4 to Section 300 IPC applies.
6. Learned counsel for the respondent-State on the other
hand supported the judgment of conviction and sentence.
7. Coming to the question whether on the basis of a solitary
evidence conviction can be maintained, a bare reference to
Section 134 of the Evidence Act, 1872 (in short \023the Evidence
Act\024) would suffice. The provision clearly states that no
particular number of witnesses is required to establish the
case. Conviction can be based on the testimony of a single
witness if he is wholly reliable. Corroboration may be
necessary when he is only partially reliable. If the evidence is
unblemished and beyond all possible criticism and the court is
satisfied that the witness was speaking the truth then on his
evidence alone conviction can be maintained.
8. For bringing in operation of Exception 4 to Section 300
IPC, it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of passion
upon a sudden quarrel without the offender having taken
undue advantage and not having acted in a cruel or unusual
manner.
9. The Fourth Exception of Section 300, IPC covers acts
done in a sudden fight. The said exception deals with a case
of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is
founded upon the same principle, for in both there is absence
of premeditation. But, while in the case of Exception 1 there is
total deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men\022s sober reasons
and urges them to deeds which they would not otherwise do.
There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation.
In fact Exception 4 deals with cases in which notwithstanding
that a blow may have been struck, or some provocation given
in the origin of the dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon equal footing. A \021sudden
fight\022 implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be
placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight
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suddenly takes place, for which both parties are more or less
to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not
have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the
share of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without the offender\022s
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 \021fight\022
occurring in Exception 4 to Section 300, IPC is not defined in
the IPC. It takes two to make a fight. Heat of passion requires
that there must be no time for the passions to cool down and
in this case, the parties have worked themselves into a fury on
account of the verbal altercation in the 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 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 \021undue advantage\022 as used in the provision means
\021unfair advantage\022.
10. The aforesaid aspects have been highlighted in Sridhar
Bhuyan v. State of Orissa (JT 2004 (6) SC 299), Prakash
Chand v. State of H.P. (JT 2004 (6) SC 302), Sachchey Lal
Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534), Sandhya
Jadhav v. State of Maharashtra [2006(4) SCC 653] and
Lachman Singh v. State of Haryana [2006 (10) SCC 524].
11. Considering the factual background the inevitable
conclusion is that the appropriate conviction would be under
Section 304 Part I, IPC and not Section 302 IPC. Custodial
sentence of 10 years would meet the ends of justice.
12. The appeal is allowed to the aforesaid extent.
