Holding

The Court held that the relatives' testimony is admissible and that Exception 4 does not apply because the accused took undue advantage, so the conviction must be under s.304 Part I IPC.

Summary

A dispute over panchayat elections led Arumugam (A‑1), Shanmugavel (A‑2) and Subbiah (A‑3) to attack their brother Vairamuthu with a spike, an aruval and a stick, causing his death. The trial court convicted A‑1 under s.302 IPC and the High Court upheld the conviction. On appeal, the accused argued that the testimony of PW‑1 and PW‑2, who were brothers of the deceased, should be discarded as partisan and that Exception 4 to s.300 IPC applied, reducing the offence to culpable homicide not amounting to murder. The Supreme Court held that a witness’s relationship to the victim does not per se affect credibility and that the facts showed the accused took undue advantage by using deadly weapons, disqualifying the application of Exception 4. Consequently, the conviction was altered to s.304 Part I IPC with a ten‑year imprisonment, and the appeal was partly allowed.

Issues considered

The admissibility and weight of testimony of witnesses who are close relatives of the deceased.
Whether the facts satisfy Exception 4 to Section 300 of the IPC, thereby reducing murder to culpable homicide not amounting to murder.
Whether the appropriate conviction should be under Section 302 IPC or Section 304 Part I IPC.

Legislation cited

Indian Evidence Act, 1872s. 3
Indian Penal Code, 1860s. 300, s. 302, s. 304, s. 323, s. 34

Subjects

murderculpable homicide not amounting to murderSection 300 Exception 4witness credibilityrelated witnessundue advantagepanchayat election disputeIndian Penal CodeEvidence Act

Judgment

[2008] 14 S.C.R. 309

-l ARUMUGAM
v.
STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU
A

(Criminal Appeal No. 967 of 2001)
OCTOBER 13, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
~--, J
SHARMA, JJ.]

Penal Code, 1860:
ss. 304 (Part /), 302 and s. 300,. exception 4 - Murder or c
Culpable Homicide not amounting to murder - Fight between
parties over panchayat elections - Next day accused armed
with deadly weapons attacked the deceased resulting in his
death - Incident witnessed by relatives of deceased - Con-
viction u/s. 302 by courts below - Justification of - Held: Evi- D
-\ dence of witnesses cannot be discarded on their being close
~
relative of deceased- Exception 4 to s. 300 not applicable as
occurrence did not take place in the course of sudden quarrel
- On facts of the case and the legal position, conviction al-
tered to s. 304 (Part I) with custodial sentence of 10 years - E
Evidence.
s. 300, Exception 4 - Applicability of - Explained.
s.300, Exceptions 1 and 4-Distinction between-Ex-
p~~e~ F
Evidence Act, 1872: s. 3 - Testimony of related witness
- Evidentiary value of - Held: Relationship is not a factor to
affect credibility of a witness.
Evidence: Normal discrepancies and material discrep- G
ancies - Distinction between - Stated.
Words and phrases: 'Fight', 'sudden fight' and 'undue ad-
vantage'-Meaning of- In the context of Exception 4 to s. 300,
/PC.
309 H
310 SUPREME COURT REPORTS [2008] 14 S.C.R.

A According to the prosecution case, the deceased, A1,
A3, PW 1 and PW 2 were brothers. The deceased, the ap:-
pellant-A 1, A3, A2;.son ofA3, PW 1. and 2 were living as a
joint family. Dispute arose between A1, A3 and the de-
ceased over the Panchayat elections. A3 alleged false
B charges against the deceased. The deceased refuted the
charges and fight took place between both of them. A3
also shouted that he would kill the deceased. On the fate-
ful day, A1 armed with spike, A2 with aruval and A3 with
stick came to the house of deceased and attacked him
c which resulted in his death on the spot. PW-1, who tried
to intervene, was also injured. Thereafter, the accused fled ·
away. PW1; PW2 as also PW3, the sister of the deceased,
witnessed the incident. Trial court convicted the appel-
lant (A-1) for offence punishable u/s. 302 IPC. A-2 was
convicted u/s. 302 r/w s. 34 IPC. A-3 was convicted u/s.
0
323 IPC~ A-3 did not file any appeal. High Court upheld
the order. Hence the appeal by A-1. A-2 did not file appeal
against order of High Court.
Appellant-accused contended that evidence of PW
E 1 and 2 should have been discarded as they were related
to the deceased; and that Exception 4 to Section 300 IPC ·. ·
is applicable as the occurrence took place in the course
of sudden quarrel, thus, s. 302 IPC was ruled out.
· Partly allowing the appeal, the Court
F
HELD: 1. Relationship is not a factor to affect cred- \.
ibility of a witness. It is more often than not that a relation
would not conceal actual culprit and make "2.-fGgations
against an innocent person. Foundation has to be laid if
G plea of false implication is made. In such cases, the court
has to adopt a careful approach and analyse evidence to
find out whether it is cogent and credible. The ground that
the witness being a close relative is. a partisan witness
and should not be relied upon, has no substance. [Paras
H 7 and 10] [315-C-D; 316-8]
.. -; ARUMUGAM v. STATE REP. BY INSPECTOR OF
POLICE, TAMIL NADU
311

Dalip Singh and Ors. v. The State of Punjab AIR 1953 A
SC 364; Guli Chand and Ors. v. State of Rajasthan 1974 (3)
SCC 698; Vadive/u Thevar v. State of Madras AIR 1957 SC
614; Masalti and Ors. v. State of UP AIR 1965 SC 202; State
of Punjab v. Jagir Singh AIR 1973 SC 2407; Lehna v. State of
Haryana 2002 (3) SCC 76; Gangadhar Behera and Ors. v. B
State of Orissa 2002 (8) SCC 381 - referred to.
4~-J
2.1 The Exception 4 to Section 300 IPC can be in-
-~
voked 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; c
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 satisfied. [Para 15] [318 ..D-E]
2.2 Where the offender takes undue advantage or has
D
._.>.,
acted in a cruel or unusual manner, the benefit of Excep-
..._____,
tion 4 cannot be given to him. If the weapon used or the
manner of attack by the assailant is out of all proportion,
that circumstance must be taken into consideration to
decide whether undue advantage has been taken. [Para
16] [319-8] E

Kikar Singh v. State of Rajasthan AIR 1993 SC 2426 -
referred to.

.. 3. When the factual background is considered in the
F
_, touchstone of the legal position set out, the inevitable
conclusion is that the appropriate conviction would be
under Section 304 (Part. I) IPC instead of Section 302 IPC.
Custodiar sentence of 1O years would meet the ends of
justice. [Para 17] [319-D]
G
State of Rajasthan v. Smt. Kalki and Anr. AIR 1981 SC
Jt ..,.\.. 1390; Krishna Mochi and Ors. v. State of Bihar etc. JT 2002
(4) SC 186; Kikar Singh v. State of Rajast~an AIR 1993 SC
2426 - referred to.
H
312 SUPREME COURT REPORTS [2008] 14 S.C.R.

A CASE LAW REFERENCE
AIR 1953 SC 364 Referred to. Para 8
1914 (3) sec 698 Referred to. Para 9
AIR 1957 SC 614 Referred to. Para 9
B AIR 1965 SC 202 Referred to. Para 11
AIR 1973 SC 2407 Referred to. Para 12
2002 (3) sec 76 Referred to. Para 12
-2002 (8) sec 381 Referred to. Para 12
c AIR 1981 SC 1390 Referred to. Para 12
JT 2002 (4) SC 186 Referred to. Para 12
AIR 1993 SC 2426 Referred to. Para 16
D CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 967 of 2001
From the final Judgment and Order dated 4.8.2000 of the
High Court of Judicature at Madras in Criminal Appeal No. 854
of 1989
E
V. Kanakaraj, S.Thananjayan for the Appellant.
V.G. Pragasam for the Respondent.
The Judgment of the Court was delivered by
F DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the learned Single Judge of the Madras High
Court upholding the conviction of the appellants for the offence
punishable under Section 302 of the Indian Penal Code, 1860
(in short 'IPC') so far accused A1 is concerned, and the co-
G accused for the offence punishable under Section 302 read with
Section 34 IPC. Learned District and Sessions Judge,
Tirunvelveli, has held the appellant and the co-accused guilty
and as aforenoted by judgment dated 20.10.1989 in Sessions
Case No.140of1987. Another person Subbiah-A3 was charged
H for commission of offence punishable under Section 323 IPC.
ARUMUGAM v. STATE REP. BY INSPECTOR OF 313
POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
_,\ -) A3 did not prefer appeal before the High Court and A2 has also A
not filed any appeal before this Court.
2. Background facts in a nutshell are as follows:
According to the prosecution appellant herein along with
Shanmugavel A2 and Subbiah-A3 the father of A2 caused the B
death of one Vairamuthu (hereinafter referred to as 'deceased')
).. ~-~
at 2.30 p.m. on 22.4.1986 at Villam village, Tenkasi Taluk. The
first accused Arumugam and the third accused Subbiah are
brothers. The deceased is none other than the brother of first
and third accused. The accused, the deceased as well as PWs c
1 and 2 - the brothers of A 1 and A3 and the deceased were
living as joint family in Palayampattu Street, Vallam village. Dur-
ing the panchayat election in 1986, in Ward No.II, three persons
contested i.e. A 1, the deceased Vairamuthu and one Murthi
(PW4). The first accused requested the deceased to withdraw
D
his nomination. The deceased refused to do so. The first ac-
-\
~
cused had withdrawn himself from contesting in the election.
-~
The deceased was elected as a member of the Ward No.II. At-
ter two weeks, there was an election for the President of the
Panchayat Board. On 21.4.1986 at 9 p.m. the third accused
Subbiah came to the house and questioned the deceased as E
to how he received money to exercise his right to vote in the
President election. The deceased refuted the said charge and
also beat A3 who also beat the deceased. PW 4 and others
separated_ the deceased and A3. While returning, A3 shouted
.,, that by any means, he will kill the deceased . F
- j
On the fateful day i.e. on 22.4.1986, the deceased was re-
turning from his mango grove at 2.30 p.m. At that time, A 1 armed
with spike (M01 ), A2 armed with aruval (M02) and A3 armed
with stick (M03), came to his house. A3 entered into the house
G
and dragged the deceased by holding the shirt and challenged
~
saying "yesterday, you beat me, now you beat me". There was
.>.
exchange of hot words. Immediately, A 1 stabbed the deceased
on his right neck with the spike, which pierced through the neck
of the deceased and came out on the left side as stated by PW1 .
H
314 SUPREME COURT REPORTS [2008] 14 S.C.R.

A The second accused cut the deceased on his leg with the aruval
as stated by PW1 ~ The second accused questioned the third
accused as to why the deceased was not yet killed ..So saying,
the second accused cut the deceased twice on his head. The
deceased swooned and fell down. When PW1 tried to intervene,
B the third accused beat him with the stick on his right index finger,
. -i.eftthigh and on the back. When.A3 attempted to beat PW1 again,
he avoided the same by bending and the blow fell on the head of
A 1 who fell down. Thereafter, A 1 tried to pull out the spike M01
from the neck .of the deceased and the spike broke into two pieces.
·c A2 and A3,. along with the weapons; ran away. The spike was
identified by PW1. The death was instantaneous. The occurrence
w~s witnessed by PW1 and PW2, who are the brothers and PW3
the sister of the deceased as well as accused 1 and 3.
Pichai Kannu (PW1) and Ramakrishnan (PW2) went to
D K1Jtralam Police Station and gave the complaint. PW13, the Sub
Inspector of Police, Kutralam Police Station recorded the state-
. ment of PW1 at 3.30 p.m., which is Ex.P1 as attested by PW2.
He also prepared the first information report on the basis of
which investigation was undertaken.
E 3. After completion of investigation charge sheet was filed.
Since the accused -persons pleaded innocence, trial was held.
Primarily relying on the evidence of PWs 1 and 2 the trial Court
found the accused guilty. As noted above, the accused persons
pleaded innocence. Two appeals were preferred before the
F High Court and the present appeal is related to Criminal ap-
peal no.854of1989 while other appeal was numbered as Crimi- \ -
nal appeal no.4 of 1992. Before the High Court stand was that
evidence of PWs 1 and 2 should have been discarded as they·
are related to the deceased. In any event, it was submitted that
G Exception 4 to Section 300 IPC applies as the occurrence took
place in the course of sudden quarrel and, therefore, Section
302 IPC is ruled out.
4. The High Court did not find any substance in the afore-
said plea and dismissed the appeal.
H
ARUMUGAM v. STATE REP. BY INSPECTOR OF 315
POLICE, TAMIL NADU [DR ARIJIT PASAYAT, J.]

-
------- -~
I
5. In support of the appeal, learne~-counsel for the appel-
lant reiterated the stand taken before the High Court. Learned
counsel for the respondent-State on the other hand supported
A

the judgments of the trial Court and the High Court.
6. The plea relating to interested witness is a regular fea-
tu re in almost every criminal .trial. B

,.. ..___, 7. We shall first deal with the contention regarding

-
interestedness of the witnesses for furthering prosecution ver-
sion. Re_lationship is not a factor to affect credibility of a wit-
ness. It is more often than not that a relation would not conceal c
actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In
such cases, the court has to adopt a careful approach and
analyse evidence to find out whether it is cogent and credible.
8. In Dalip Singh and Ors. v. The State of Punjab (AIR D
1953 SC 364) it has been laid down as under:-
....... ""'
- ....
_
·.~
I

"A witness is normally to be considered independent unless
he or she springs from sources which are likely to be
tainted and that usually means unless the witness has
• cause, such as enmity against the accused, to wish to E
implicate him falsely. Ordinarily a close relation would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there
is personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has F
"'-j
a grudge along with the guilty, but foundation must be laid
• for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalization. Each case· must be judged on its own facts. G
Our observations are only made to combat what is so
~

""' often put forward in cases before us as a general rule of
prudence. Ther~ is no such general rule. Each case must
be limited to and be governed by its own facts."
:i
H
316 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 9. The above decision has since been followed in Guli t .
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
was also relied upon.
10. We may also observe that the ground that the witness
B being a -close relative and consequently being a partisan wit-
ness, should not be relied upon, has no substance. This theory
was repelled by this Court as early as in Da/ip Singh's case ~--'
(supra) in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that
C relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the
High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an
D
observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded on the
reason that they are closely related to the deceased we
are unable to concur. This is a fallacy common to many
E criminal cases and one which another Bench of this Court
endeavoured to dispel in _; 'Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however,
that it unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel."
F
11. Again in Masalti and Ors. v. State of U.P (AIR 1965
SC 202) this Court observed: (p. 209-210 para 14):
"But it would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only on
G the ground that it is evidence of partisan or interested
witnesses ....... The mechanical rejection of such evidence
on the sole ground that it is partisan would invariably lead
to failure of justice. No hard and fast rule can be laid down
as to how much evidence should be appreciated. Judicial
H approach has to be cautious in dealing with such evidence;
ARUMUGAM v. STATE REP. BY INSPECTOR OF 317
POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]

1 but the plea that such evidence should be rejected because
it is partisan cannot be accepted as correct."
A

12. To the same effect is the decision in State of Punjab v.
Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana
(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State
of Orissa (2002 (8) SCC 381). As observed by this Court in B
State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390),
~-~
normal discrepancies in evidence are those which are due to
normal errors of observation, normal errors of memory due to
lapse of time, due to mental disposition such as shock and hor-
ror at the time of occurrence and those are always there how- c
ever honest and truthful a witness may be. Material discrepan-
cies are those which are not normal, and not expected of a nor-
mal person. Courts have to label the category to which a dis-
crepancy may be categorized. While normal discrepancies do
not corrode the credibility of a party's case, material discrep- D
... ancies do so. These aspects were highlighted recently in
-'-f Krishna Machi and Ors. v. State of Bihar etc. (JT 2002 (4) SC
186).
13. The substantive plea relates to the applicability of Ex-
ception 4 of Section 300 IPC. E

14. For bringing in its operation 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 F
-i
in a cruel or unusual manner.

15. 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 G
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's sober reason and
urges them to deeds which they would not otherwise do. There H
318 SUPREME COURT REPORTS [2008] 14 S.C.R

A is provocation in E;xception 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
B originated, yet the subsequent conduct of both parties puts them
in respect of guilt upon equal footing. A 'sudden fight' implies
mutual provocation and blows on each side. The homicide com-
mitted is then clearly not traceable to unilateral provocation, nor
in such cases could the whole blame be placed on one side.
c For if it were so, the Exception more appropriately applicable
would be Exception 1. There is no previous deliberation or de-
termination to fight. A fight 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
0
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's having taken undue advantage or acted in a cruel or
E unusual manner; and (d) the fight must have been with the per-
son 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 IPC. It takes two to make a fight. Heat of passion requires
F 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 orwithout
weapons. It is not possible to enunciate any general rule as to
G 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 applica-
tion of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further
H be shown that the offender has not taken undue advantage or
ARUMUGAM v. STATE REP. BY INSPECTOR OF 319
POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]

-..i, ) acted in cruel or unusual manner. The expression 'undue ad- A
vantage' as used in the provision means 'unfair advantage'.
16. Where the offender takes undue advantage or has
acted in a cruel or unusual manner, the benefit of Exception 4
cannot be given to him. If the weapon used or the manner of
attack by the assailant is out of all proportion, that circumstance B
must be taken into consideration to decide whether undue ad-
·~ ~ vantage has been taken. In Kikar Singh v. State of Rajasthan
(AIR 1993 SC 2426) it was held that if the accused used deadly
·. weapons against the unarmed man and struck a blow on the
head it must be held that using the blows with the knowledge C
that they were likely to cause death, he had taken undue advan-
tage.
17. When the factual background is considered in the
touchstone of the legal position set out above, the inevitable
conclusion is that the appropriate conviction would be under D·
Section 304 Part I IPC instead of Section 302 IPC. Custodial
sentence of 10 years would meet the ends of justice. Appellant
who is on bail pursuant to the order dated 21.1.2001 shall sur-
render to custody forthwith to serve remainder of sentence, if
any. E

18. The appeal is allowed to the aforesaid extent.
N.J. Appeal Partly allowed.