Supreme Court of India
BALU SUDAM KHALDE & ANRversusTHE STATE OF MAHARASHTRA
- Citation
- 2023 INSC 314
- Decided
- 29 March 2023
- Disposal
- Dismissed
- Bench
- SUDHANSHU DHULIA
Holding
The Court held that the eyewitness evidence was reliable, the defence counsel's suggestions amounted to admissions binding on the accused, the res gestae evidence was admissible, and the facts did not meet the criteria of Exception 4, so the conviction under Section 302 IPC stands.
Summary
The appellants were convicted under Section 302 read with Section 34 of the IPC for the murder of Abbas Baig, based primarily on the oral testimony of three eyewitnesses. They challenged the conviction, arguing that the eyewitness evidence was unreliable, that the defence counsel's suggestions during cross‑examination could not bind them, and that the incident fell within Exception 4 to Section 300, reducing the offence to culpable homicide not amounting to murder. The Supreme Court examined the principles for appreciating ocular evidence, held that the consistent testimonies of the three witnesses were trustworthy, and that suggestions made by defence counsel that elicited incriminating answers amounted to admissions binding on the accused. The Court also affirmed that the statement of PW‑3 was admissible as a res gestae under Sections 6 and 7 of the Evidence Act. Applying the criteria of Exception 4, the Court found that the accused inflicted multiple blows with dangerous weapons on an unarmed, helpless victim, thereby not satisfying the exception. Consequently, the conviction under Section 302 IPC was upheld and the appeal dismissed.
Issues considered
- The reliability and admissibility of the oral eyewitness evidence.
- Whether suggestions made by defence counsel during cross‑examination constitute admissions that bind the accused.
- The applicability of the res gestae exception (Sections 6 and 7, Evidence Act) to PW‑3's testimony.
- Whether the facts satisfy Exception 4 to Section 300 IPC, thereby reducing murder to culpable homicide not amounting to murder.
- Whether the High Court erred in upholding the conviction and sentence.
Legislation cited
- Constitution of Indias. 136
- Indian Evidence Act, 1872s. 27, s. 6, s. 7
- Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304, s. 323, s. 324, s. 34, s. 504
Subjects
ocular evidenceres gestaeSection 302 IPCSection 34 IPCException 4 Section 300cross‑examinationdefence counsel admissionEvidence Act 1872murderculpable homicideappealArticle 136
Judgment
[2023] 6 S.C.R. 851 851
BALU SUDAM KHALDE & ANR. A
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 1910 of 2010)
MARCH 29, 2023 B
[SUDHANSHU DHULIA AND J.B. PARDIWALA, JJ.]
Penal Code, 1860:
ss. 302 r/w 34 – Prosecution case that verbal altercation
between the parties resulting in a fight wherein first informant C
assaulted on the head and the deceased suffered severe assault
and succumbed to his injuries – Appellants convicted u/s 302 r/w
34, and sentenced to life imprisonment, however, acquittal of A-2
and A-4 – High Court upheld the order – Interference with – Held:
Not called for – Oral evidence of all the three eyewitnesses is
D
consistent and no good reason for the court to disbelieve the ocular
version as narrated by the three eyewitnesses – Courts below
recorded a concurrent finding that they are reliable witnesses –
Suggestions put by the defence counsel in the cross-examination of
the eyewitnesses establishes the presence of first informant at the
scene of offence and the factum of assault could also be said to E
have been admitted – PW 3 could be termed as a res gestae witness
– ss. 6 and 7 of the 1872 Act, in so far as, the admissibility of a
statement of the PW-3 is concerned, would be attracted – Having
regard to the nature of the injuries, they were caused by dangerous
weapons which, were applied on the vital part of the body, it is a
F
case of s. 302 – Case would not fall within the exception 4 to s. 300
– Assuming that the incident had occurred in the heat of the moment
and fight was also sudden, the fact that the appellants inflicted as
many as nine blows with a dangerous weapon on the deceased who
was unarmed and was helpless should not be overlooked – Evidence
Act, 1872 – s.6 and 7. G
Exception 4 to Section 300 – Applicability of – Held: To bring
a case within Exception 4 all the ingredients mentioned in it must be
found.
H
851
852 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Evidence:
Oral Evidence – Evidentiary value of – Held: Appreciation
of ocular evidence is a hard task – There is no fixed or straight-
jacket formula for appreciation of the ocular evidence – In assessing
the value of the evidence of the eyewitnesses, two principal
B considerations are whether, in the circumstances of the case, it is
possible to believe their presence at the scene of occurrence or in
such situations as would make it possible for them to witness the
facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence.
C Cross-examination – Concession or admission of fact by
defence counsel – Nature – of – Held: Any concession or admission
of a fact by a defence counsel would definitely be binding on his
client, except the concession on the point of law – Thus, the
suggestion made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any manner
D would definitely bind the accused – Accused cannot get away on
the plea that his counsel had no implied authority to make suggestions
in the nature of admissions against his client.
Doctrines/Principles: Principle of Res Gestae – Rule of –
Held: Rule embodied in s. 6 is usually known as the rule of res
E gestae – It means that a fact which, though not in issue, is so
connected with the fact in issue “as to form part of the same
transaction” becomes relevant by itself – Evidence Act, 1872 – ss.6
and 7.
Dismissing the appeal, the Court
F
HELD: 1.1 The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. [Para 25][865-E]
1.2 In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
G
circumstances of the case, it is possible to believe their presence
at the scene of occurrence or in such situations as would make it
possible for them to witness the facts deposed to by them and
secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these
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BALU SUDAM KHALDE & ANR. v. THE STATE OF 853
MAHARASHTRA
considerations, circumstances either elicited from those A
witnesses themselves or established by other evidence tending
to improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which a Court
would attach to their evidence. Although in cases where the plea
of the accused is a mere denial, the evidence of the prosecution
B
witnesses has to be examined on its own merits, where the
accused raise a definite plea or put forward a positive case which
is inconsistent with that of the prosecution, the nature of such
plea or case and the probabilities in respect of it will also have to
be taken into account while assessing the value of the prosecution
evidence. [Para 27][868-C-E] C
1.3 The oral evidence of all the three eyewitnesses PW 1,
2, 3 is consistent and there is no good reason for the Court to
disbelieve the ocular version as narrated by the three
eyewitnesses. The trial court as well as the High Court looked
into the oral evidence of all the three eyewitnesses closely and D
have recorded a concurrent finding that they are reliable
witnesses. [Para 28][868-F-G]
1.4 In the exercise of the power under Article 136 of the
Constitution of India, this Court, normally would not interfere
with the concurrent findings of fact, except in very special E
circumstances or in the case of a gross error committed by the
courts below. Only where the High Court ignores or overlooks
“crying circumstances” and “proven facts” or “violates and
misapplies well established principles of criminal jurisprudence”
or refuses to give benefit of doubt to the accused persons, etc.,
would this Court step in to correct the legally erroneous F
decisions. Interferance is not only for the reason that this Court
may arrive at a different conclusion, unless, there are compelling
circumstances to tinker with conclusions drawn and that the
accused were innocent/guilty. There are limitations in interfering
with the findings of conviction, concurrent in nature. [Para G
30][871-C-E]
1.5 The suggestion made by the defence counsel to a witness
in the cross-examination if found to be incriminating in nature in
any manner would definitely bind the accused and the accused
cannot get away on the plea that his counsel had no implied H
854 SUPREME COURT REPORTS [2023] 6 S.C.R.
A authority to make suggestions in the nature of admissions against
his client. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except the
concession on the point of law. The submission that an answer by
a witness to a suggestion made by the defence counsel in the
cross-examination does not deserve any value or utility if it
B
incriminates the accused in any manner cannot be accepted. [Para
38, 39][873-B-D]
1.6 It is a cardinal principle of criminal jurisprudence that
the initial burden to establish the case against the accused beyond
reasonable doubt rests on the prosecution. It is also an elementary
C principle of law that the prosecution has to prove its case on its
own legs and cannot derive advantage or benefit from the
weakness of the defence. This Court is not suggesting for a
moment that if prosecution is unable to prove its case on its own
legs then the Court can still convict an accused on the strength
D of the evidence in the form of reply to the suggestions made by
the defence counsel to a witness. In the instant case, the
conclusion is reached that the evidence of the three eyewitnesses
inspires confidence and there is nothing in their evidence on the
basis of which it could be said that they are unreliable witnesses.
Having reached to such a conclusion, to fortify the view the
E suggestions made by the defence counsel to the eyewitnesses
can be looked into, the reply to those establishing the presence
of the accused persons as well as the eyewitnesses in the night
hours. To put it in other words, suggestions by itself are not
sufficient to hold the accused guilty if they are incriminating in
F any manner or are in the form of admission in the absence of any
other reliable evidence on record. It is true that a suggestion
has no evidentiary value but this proposition of law would not
hold good at all times and in a given case during the course of
cross-examination the defence counsel may put such a suggestion
the answer to which may directly go against the accused and this
G is exactly what happened in the instant case. [Para 40][873-E-H;
874-A]
1.7 The principle of law that in a criminal case, a lawyer has
no implied authority to make admissions against his client during
the progress of the trial would hold good only in cases where
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 855
MAHARASHTRA
dispensation of proof by the prosecution is not permissible in A
law. It is obligatory on the part of the prosecution to prove the
post mortem report by examining the doctor. The accused cannot
admit the contents of the post mortem report thereby absolving
the prosecution from its duty to prove the contents of the same
in accordance with law by examining the doctor. This is so because
B
if the evidence per se is inadmissible in law then a defence counsel
has no authority to make it admissible with his consent. Therefore,
the suggestions made to the witness by the defence counsel and
the reply to such suggestions would definitely form part of the
evidence and can be relied upon by the Court along with other
evidence on record to determine the guilt of the accused. [Para C
41, 42][874-B-D]
1.8 The main object of cross-examination is to find out the
truth on record and to help the Court in knowing the truth of the
case. It is a matter of common experience that many a times the
defence lawyers themselves get the discrepancies clarified arising D
during the cross-examination in one paragraph and getting
themselves contradicted in the other paragraph. The line of cross-
examination is always on the basis of the defence which the
counsel would keep in mind to defend the accused. [Para 43][874-
E]
E
1.9 During the course of cross-examination with a view to
discredit the witness or to establish the defence on
preponderance of probabilities suggestions are hurled on the
witness but if such suggestions, the answer to those incriminate
the accused in any manner then the same would definitely be
binding and could be taken into consideration along with other F
evidence on record in support of the same. However, it would all
depend upon the nature of the suggestions and with what idea in
mind such suggestions are made to the witness. [Para 44, 45][875-
F-G]
1.10 In the cross-examination of the PW-3 a suggestion G
was put to him that he had inquired with PW-1 as to what had
happened and PW-1 in turn narrated the incident to PW-3. This
suggestion put by the defence counsel to the PW-3 was answered
in the affirmative. This part of the evidence of the PW-3 is
corroborated by the evidence of the PW-1. The reason for H
856 SUPREME COURT REPORTS [2023] 6 S.C.R.
A referring to the said a piece of evidence is that the PW 3 could be
termed as a res gestae witness. This principle of res gestae is
embodied in Section 6 of the Act 1872. What it means is that a
fact which, though not in issue, is so connected with the fact in
issue “as to form part of the same transaction” becomes relevant
by itself. To form particular statement as part of the same
B
transaction utterances must be simultaneous with the incident
or substantial contemporaneous that is made either during or
immediately before or after its occurrence. Sections 6 and 7 of
the Act 1872 in the facts and circumstances of the case, in so far
as, the admissibility of a statement of the PW-3 coming to know
C about incident, immediately from the PW-1 that AB had been
seriously assaulted and that PW-1 had also suffered injuries and
admitted by the PW-1 in his evidence would be attracted with all
its rigour. [Paras 46, 47, 49 and 50][876-E-G; 877-A; 878-D-F]
1.11 There is no dispute that the death of the deceased
D occurred due to culpable homicide and not due to accident or
suicide. The sine qua non for the application of an Exception to
Section 300 always is that it is a case of murder but the accused
claims the benefit of the Exception to bring it out of that Section
and to make it a case of culpable homicide not amounting to
murder. Therefore, it is assumed that this would be a case of
E murder and it is for the accused to show the applicability of the
Exception. [Para 57][890-E]
1.12 The extent of injuries suffered by the deceased is
noticed, as it appears from the deposition of the PW 7 who carried
out the post mortem. Having regard to the nature of the injuries
F caused by dangerous weapons like sickle and sword which, were
applied on the vital part of the body, there is no escape from the
conclusion that it is a case of Section 302 IPC.[Para 60][891-B-
C]
1.13 The submission that the case would fall within the
G Exception 4 to Section 300 IPC and such benefit be extended to
the accused cannot be accepted. Assuming for the moment that
the incident had occurred in the heat of the moment and fight
was also sudden, the fact that the appellants inflicted as many as
nine blows with a dangerous weapon on the deceased who was
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 857
MAHARASHTRA
unarmed and was helpless should not be overlooked. For cases A
to fall within clause (3) of Section 300 IPC, it is not necessary
that the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient to
cause death in the ordinary course of nature. Thus, no case is
made out by the appellants to interfere with the impugned
B
judgment and order of the High Court. [Para 61, 62][891-C-F]
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR
1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. State
of Haryana AIR 1995 SC 3717; Tahsildar Singh v. State
of UP AIR 1959 SC 1012 : [1959] Suppl. SCR 875 –
relied on. C
Rakesh Kumar alias Babli v. State of Haryana (1987) 2
SCC 34; Tarun Bora alias Alok Hazarika v. State of
Assam 2002 Cri. LJ 4076; Rajwant Singh v. State of
Kerala AIR 1966 SC 1874 : [1966] Suppl. SCR 230;
State of Andhra Pradesh v. Rayavarapu Punnayya and D
Another (1976) 4 SCC 382 : [1977] 1 SCR 601; Sukhar
v. State of U.P. (1999) 9 SCC 507 : [1999] 3 Suppl.
SCR 314; Govind s/o Soneram v. State of M.P. (DB)
2005 Cri.LJ 1244; Parkash Chand v. State of Himachal
Pradesh (2004) 11 SCC 381 : [2004] 3 Suppl. SCR E
389 – referred to.
Case Law Reference
[1983] 3 SCR 280 relied on Para 25
AIR 1995 SC 3717 relied on Para 25 F
[1959] Suppl. SCR 875 relied on Para 25
(1987) 2 SCC 34 referred to Para 37
[1999] 3 Suppl. SCR 314 referred to Para 48
[1977] 1 SCR 601 referred to Para 54 G
[2004] 3 Suppl. SCR 389 referred to Para 56
[1966] Suppl. SCR 230 referred to Para 61
H
858 SUPREME COURT REPORTS [2023] 6 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1910 of 2010.
From the Judgment and Order dated 02.03.2009 of the High Court
of Judicature at Bombay in CRLA No. 637 of 2003.
K. L. Janjani, Pankaj Kumar Singh, Dr. Vinod Kumar Tewari,
B Kailash J. Kashyap, Advs. for the Appellants.
Abhikalp Pratap Singh, Siddharth Dharmadhikari, Aaditya
Aniruddha Pande, Bharat Bagla, Sourav Singh, Ms. Shreya Saxena, Ms.
Yamini Singh, Advs. for the Respondent.
C The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This appeal by special leave is at the instance of two convict
persons and is directed against the judgment and order dated 02.03.2009
passed by the High Court of Judicature at Bombay in Criminal Appeal
D No. 637 of 2003 by which the High Court dismissed the criminal appeal
referred to above, and thereby affirmed the order of conviction and the
consequence sentence dated 12.03.2003 passed by the learned Additional
Sessions Judge, Pune dated 12.03.2003 in Sessions Case No. 323 of
2001, by convicting both the appellants herein for the offence under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (for
E
short, ‘the IPC’) and sentencing them to suffer life imprisonment and a
fine of Rs. 1000/- each with the stipulation that in default of payment of
the fine they would undergo rigorous imprisonment for further six months.
2. It may not be out of place to state at this stage that in all four
persons were put to trial including the two appellants herein in the Court
F
of the Additional Sessions Judge, Pune for the offence punishable under
Sections 302 and 323 read with Section 34 of the IPC. The appellants
herein are original accused Nos. 1 and 3 resply. The original accused
No. 2 and 4 resply were acquitted by the Trial Court.
CASE OF THE PROSECUTION
G
3. The case of the prosecution as unfolded in the evidence of the
prosecution witnesses and also detailed in the first information report is
that on the fateful day of the incident i.e., on 01.04.2001 at about 11.15
p.m., the first informant PW 1, namely, Asgar Shaikh (Ex. 7) was chit
chatting with his friend Abbas Baig (deceased). At that time, while the
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 859
MAHARASHTRA [J. B. PARDIWALA, J.]
appellant No. 2 herein accompanied by few other individuals was passing A
by the side, he was accosted by the deceased Abbas. There was some
verbal altercation between the two. After sometime the appellant No. 2
herein accompanied by the appellant No. 1 herein and the other two co-
accused who came to be acquitted by the Trial Court reached at the
spot. A fight ensued in which, the first informant PW 1 Asgar Shaikh
B
was assaulted on his head by means of weapons like sickle and sword.
This assault on the head of the first informant PW 1 is alleged to have
been laid by the appellant No. 1 herein. The first informant suffered a
bleeding injury on his head. Thereafter, a severe assault was laid on the
deceased Abbas Baig by means of a sickle and sword. It is the case of
the prosecution that the appellants herein had dangerous weapons in C
their hands in the form of a sword and sickle. The deceased Abbas Baig
suffered serious injuries on his body and ultimately succumbed to such
injuries.
4. A first information report was lodged on 2.04.2002 by the PW
1 at around 2 a.m. i.e., just within three hours from the time of the D
incident. The deceased Abbas Baig having suffered serious bleeding
injuries was taken to the hospital in a rickshaw owned by the PW 3,
namely, Nasir Khan. The deceased upon reaching the hospital was
declared dead.
5. The FIR Exh. 8 lodged by the PW 1 viz. Asgar Shaikh reads E
thus:-
“I Ajgar Ibrahim Shaikh aged 22 years, Occupation Turner,
residing at 54 BP/251 Lohia Nagar, slum area, Pune. I hereby
lodge my complaint as under:
I am residing at the aforementioned address with my mother, F
father and sister. I have been working as a turner past three
years in the workshop owned by Abdul Wahab Shaikh situated
at Guruwar Peth, Pune in the name of New Quality
Instruments. Yesterday, i.e., on 1.4.2001, I left my house at
9.00 AM for reporting at the workshop. I worked out at the G
workshop for whole day and came back at 7.00 PM. I had
my dinner at 11.15 PM in the night and thereafter went outside
as I wanted to have paanmasala. When I reached somewhere
near the shop by name Shri Sai Car Auto Consultant, I met
my friend Abbas Baig (deceased) also a resident of
H
860 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Lohianagar, slum area, Pune. I started cheating with my friend
Abbas. At that point of time, Santosh Khalde and one another
boy were passing through the place where, we were talking.
My friend Abbas saw Santosh and told me that “Itni Raat Ko
Maa Chudane Ke Liye Kaha Ja Raha Hai? Tumhara plan
kya hai”. Santosh replied that he had no plan and was
B
proceeding to answer nature’s call. At around 11.45 PM, four
persons, namely, Balu Khalde, Ramesh Mohite, Raju Mohite
and Santosh Khalde assembled and started talking with us.
At that time, Balu khale told him “Bajula Haat”. Abbas Baig
told Balu Khalde that “Usse kya baat kar raha hai?” talk to
C me. At that time, I told them “Kaiko Lafda Kar Rahe Ho?”
Balu Khalde took out a weapon like Koita which he had
hidden in his waist and hit me on my head. Ramesh Mohite
caught hold of Abbas Baig and Balu Khalde stabbed him with
a small bladed sword. We started shouting. One Firoz
Babumian Shaikh residing in the neighbourhood came out of
D
his house and told Raju Mohite “What are you fighting about?”
Santosh Khalde abused Firoz Babumian. When people started
assembling at the place of the occurrence, all the four
assailants ran away. Abbas Baig was seriously injured and
he fell down. He had suffered injuries on his left paw, wrist,
E right hand and right shoulder. He was bleeding profusely. I
picked up Abbas in an injured condition and took him nearby
chokadi. At that point of time, one Nasir a rickshaw driver
known to us also living in the same slum came over there. I
requested Nasir to keep a watch on Abbas Baig as he would
reach and call the police. Accordingly, I alongwith Firoz
F
Shaikh went to Lohianagar Police Station and informed about
the incidence to the police. The police arrived and immediately
shifted Abbas Baig to the nearby Sassoon Hospital. However,
Abbas Baig was declared dead by the doctor at the hospital.”
6. The inquest panchnama of the dead body of the deceased was
G drawn at the hospital itself. As a part of the investigation, the scene of
offence panchnama was drawn. The clothes of the deceased stained
with blood were collected and sent to the forensic science laboratory for
chemical analysis. All the four accused were arrested by the police. The
clothes of all the accused were collected and sent to the FSL. The dead
H body of the deceased was sent for post mortem. While the appellants
BALU SUDAM KHALDE & ANR. v. THE STATE OF 861
MAHARASHTRA [J. B. PARDIWALA, J.]
herein were in police custody, they are said to have made statements on A
their own free will and volition that they would show the place where
they had concealed the weapons of offence i.e. the sickle and the sword.
Ultimately, the discovery panchnamas were drawn in presence of the
panch witnesses. The statements of various other witnesses were
recorded by the police.
B
7. At the end of the investigation chargesheet was filed for the
offence punishable under Section 302 read with Section 34 of the IPC,
in the Court of the learned Magistrate. The learned Magistrate committed
the case to the Court of Sessions as the offence was exclusively triable
by the Court of Sessions.
C
8. The Trial Court framed the following charge vide Exh.8. The
translated version of the charges framed against the appellants are quoted
below:
“1. That you accused Nos. 1 to 4, on 01.04.2001, at about
11.45 P.M. or thereabout, at Plot No. 54/BP, Lohiyanagar, D
Pune, in front of shop named as Shri Sai Car Auto Consultant,
either individually or in furtherance of your common
intention, did commit murder, by intentionally or knowingly
causing the death of Abbas Sanaulla Beg, and thereby
committed an offence punishable either under Section 302 of
the Indian Penal Code simpliciter or Section 302 read with E
34 of the Indian Penal Code, and within my cognizance.
AND
2) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction, F
either individually or in furtherance of your common
intention, voluntarily caused hurt to complainant Ajgar
Ibrahim Shaikh, and thereby committed an offence punishable
under Section 323 of the Indian Penal Code simplicetor or
Section 323 read with Section 34 of the Indian Penal Code,
and within my cognizance. “ G
AND
3) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction,
either individually or in furtherance of your common
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862 SUPREME COURT REPORTS [2023] 6 S.C.R.
A intention, voluntarily caused hurt to complainant Ajgar
Ibrahim Shaikh, by means of sickle and sword, which if used
as a weapon of offence, would likely to cause death of said
complainant, and thereby committed an offence punishable
under Section 324 of the Indian Penal Code simplicetor or
Section 324 read with Section 34 of the Indian Penal Code,
B
and within my cognizance.
AND
4) That you accused Nos. 1 to 4, on the aforesaid day, date,
time and place and during the course of the same transaction,
C either individually or in furtherance of your common
intention, intentionally insulted and thereby gave protection
to the complainant Ajgar Ibrahim Shaikh, intending or
knowing it to be likely that such provocation will cause the
said complainant to commit breach of public peace, and
thereby committed an offence punishable under Section 504
D of the Indian Penal Code simplicetor or Section 504 read
with Section 34 of the Indian Penal Code and within my
cognizance.
AND I hereby direct that you be tried by me on the aforesaid
charges.”
E
9. The prosecution adduced the following oral evidence in support
of its case:
(1) PW 1 Asgar Shaikh - Ex. 7
(2) PW 2 Firoj Shaikh- Ex. 9
F
(3) PW 3 Nasir Khan - Ex. 10
(4) PW 4 Aslam Khan- Ex. 11
(5) PW 5 Mahesh Kumar Jain- Ex. 14
(6) PW 6 Suhas Kalase- Ex. 15
G
(7) PW 7 Dr. Shrikant Chandekar- Ex. 18
(8) PW 8 Mubarak Baig- Ex. 21
(9) PW 9 Mahendr Arokade- Ex. 22
(10) PW 10 Baba Shaikh- Ex. 38
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BALU SUDAM KHALDE & ANR. v. THE STATE OF 863
MAHARASHTRA [J. B. PARDIWALA, J.]
10. The following pieces of documentary evidence were adduced A
by the prosecution:
(i) Inquest Panchnama
(ii) Post mortem report
(iii) Spot Panchnama (scene of offence panchnama) B
(iv) Arrest and Personal search
(v) Seizure of clothes of complainant
(vi) Seizure of clothes of deceased
11. After completion of the oral as well as the documentary C
evidence of the prosecution, the statements of the appellants herein under
Section 313 of the Code, of Criminal Procedure (for short, ‘the CrPC’)
were recorded in which the appellants herein stated that the complaint
was a false one. They further stated in their written statement under
Section 313 of the CrPC that they were workers of one Hindi Ekta
D
Mandal. On 09.03.2001, tension mounted between the Hindus and the
Muslims as some people from the minority community damaged the idol
of Ganesh. A report with the police was lodged in that regard. In such
circumstances, the witnesses deposed falsely against them.
12. At the conclusion of the trial, the learned Trial Judge convicted
the appellants herein for the offence punishable under Section 302 read E
with Section 34 IPC and sentenced both as stated hereinbefore. The
original accused Nos. 2 and 4 were ordered to be acquitted of all the
charges.
13. In such circumstances referred to above, the two appellants
are here before this Court with the present appeal. F
SUBMISSIONS ON BEHALF FOF THE APPELLANTS
14. The learned counsel appearing for the appellants vehemently
submitted that the High Court committed a serious error in dismissing
the appeal filed by the two appellants herein against the judgment and G
order of conviction passed by the Trial Court. According to the learned
counsel, the High Court failed to appreciate that no reliance could have
been placed on the evidence of the so called eyewitnesses. According
to the learned counsel, the ocular version on record does not inspire any
confidence and deserves to be discarded.
H
864 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 15. The learned counsel further submitted that the very presence
of the first informant PW 1 Asgar Shaikh is doubtful because although
he claims to have suffered an injury on his head during the assault yet no
medical treatment was taken by him and there is no medical certificate
on record that he had suffered any injury on his head. In such
circumstances, according to the learned counsel, the entire first
B
information report, at the instance of the PW 1 is unreliable.
16. The learned counsel further submitted that the discovery of
the weapons under Section 27 of the Indian Evidence Act, 1872 (for
short, ‘the Act 1872’) could also not have been relied upon as the panch
witnesses failed to support the case of the prosecution or rather failed to
C prove the contents of the panchnama.
17. In the last, the learned counsel appearing for the appellants
vehemently submitted that even if the entire case of the prosecution is
believed to be true, the case at the most would be one of culpable homicide
not amounting to murder. According to the learned counsel, the case
D falls within the purview of Exception 4 to Section 300 of the IPC.
18. In such circumstances referred to above, the learned counsel
prays that there being merit in his appeal, the same may be allowed and
the appellants be acquitted of all the charges. In the alternative, he prayed
that the conviction may be altered from one under Section 302 of the
E IPC to Section 304 Part 1 of the IPC by giving benefit of Exception 4 to
the Section 300 of the IPC.
SUBMISSIONS ON BEHALF OF THE STATE
19. Mr. Abhikalp Pratap Singh, the learned counsel appearing for
F the State of Maharashtra, on the other hand has vehemently opposed
this appeal submitting that no error not to speak of any error of law can
be said to have been committed by the High Court in dismissing the
appeal thereby affirming the order of conviction and the consequence
sentence passed by the Trial Court.
20. He would submit that there is no good reason to doubt the
G
ocular version of the eyewitnesses, which has come on record. He further
submitted that was no good reason for the eyewitnesses to falsely
implicate the appellants herein in the alleged crime.
21. The learned counsel submitted that no case is made out to
bring the case within the ambit of Exception 4 to Section 300 of the IPC.
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 865
MAHARASHTRA [J. B. PARDIWALA, J.]
He vehemently submitted that as many as nine injuries were inflicted on A
the body of the deceased by dangerous weapons like sickle and sword.
The appellants herein can be said to have taken undue advantage and
acted in a cruel manner.
22. In the last, the learned counsel appearing for the State submitted
that the discovery of the weapons points towards the conduct of the B
accused persons and such conduct is a relevant fact under Section 8 of
the Act 1872 which taken together with the ocular version supports the
case of the prosecution in toto.
23.In such circumstances referred to above, the learned counsel
appearing for the State prayed that there being no merit in the present C
appeal, the same may be dismissed.
ANALYSIS
24. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any D
error in passing the impugned judgment and order.
APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task. There is
no fixed or straight-jacket formula for appreciation of the ocular evidence.
E
The judicially evolved principles for appreciation of ocular evidence in a
criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed, it
F
is undoubtedly necessary for the Court to scrutinize the evidence
more particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of the
evidence given by the witness and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of belief. G
II. If the Court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of evidence
given by the witness, the appellate court which had not this benefit
will have to attach due weight to the appreciation of evidence by
the trial court and unless there are reasons weighty and formidable H
866 SUPREME COURT REPORTS [2023] 6 S.C.R.
A it would not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible
for him to make some discrepancies. But courts should bear in
mind that it is only when discrepancies in the evidence of a witness
B are so incompatible with the credibility of his version that the court
is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core
of the case, hyper technical approach by taking sentences torn
out of context here or there from the evidence, attaching
C importance to some technical error committed by the investigating
officer not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in
the narration of an incident (either as between the evidence of
D two witnesses or as between two statements of the same witness)
is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
E VII. Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person.
F What one may notice, another may not. An object or movement
might emboss its image on one person’s mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them.
G They can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of
an occurrence, usually, people make their estimates by guess work
on the spur of the moment at the time of interrogation. And one
H cannot expect people to make very precise or reliable estimates
BALU SUDAM KHALDE & ANR. v. THE STATE OF 867
MAHARASHTRA [J. B. PARDIWALA, J.]
in such matters. Again, it depends on the time-sense of individuals A
which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately
the sequence of events which take place in rapid succession or in
a short time span. A witness is liable to get confused, or mixed up
when interrogated later on. B
XII. A witness, though wholly truthful, is liable to be overawed by
the court atmosphere and the piercing cross examination by counsel
and out of nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination on the spur
of the moment. The sub-conscious mind of the witness sometimes C
so operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and honest
account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount to D
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be helpful to
contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 E
Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana
AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR
1959 SC 1012)]
26. When the evidence of an injured eye-witness is to be
appreciated, the under-noted legal principles enunciated by the Courts F
are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place
of the occurrence cannot be doubted unless there are material
contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be G
believed that an injured witness would not allow the real culprits
to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value
and unless compelling reasons exist, their statements are not to
be discarded lightly. H
868 SUPREME COURT REPORTS [2023] 6 S.C.R.
A (d) The evidence of injured witness cannot be doubted on account
of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in
the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
B evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken
into consideration and discrepancies which normally creep due to
loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses,
C two principal considerations are whether, in the circumstances of the
case, it is possible to believe their presence at the scene of occurrence
or in such situations as would make it possible for them to witness the
facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence. In respect of both
D these considerations, circumstances either elicited from those witnesses
themselves or established by other evidence tending to improbabilise
their presence or to discredit the veracity of their statements, will have a
bearing upon the value which a Court would attach to their evidence.
Although in cases where the plea of the accused is a mere denial, the
evidence of the prosecution witnesses has to be examined on its own
E merits, where the accused raise a definite plea or put forward a positive
case which is inconsistent with that of the prosecution, the nature of
such plea or case and the probabilities in respect of it will also have to be
taken into account while assessing the value of the prosecution evidence.
28. Keeping the aforesaid principles of law in mind, we looked
F into the oral evidence of all the three important witnesses i.e., PW 1
Asgar Shaikh (Exh. 7), PW 2 Firoz Babumiyan Shaikh (Exh. 9) and PW
3 Nasir Khan (Exh. 10). The oral evidence of all the three eyewitnesses
is consistent and there is no good reason for us to disbelieve the ocular
version as narrated by the three eyewitnesses. The Trial Court as well
G as the High Court looked into the oral evidence of all the three
eyewitnesses referred to above closely and have recorded a concurrent
finding that they are reliable witnesses.
29. The High Court in its impugned judgment observed in paras 9
and 10 resply as under:
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 869
MAHARASHTRA [J. B. PARDIWALA, J.]
“9. First, it is argued on behalf of the Appellants the learned A
Counsel that the substantive evidence of P.W. Nos. 1 and 2,
alleged eyewitnesses cannot be taken as trustworthy, in as
much as they are interested and related witnesses to the
deceased Abbas Baig. Secondly, it is argued that there was
no immediate disclosure of the names of the accused persons
B
when the injured Abbas was brought to Lohiyanagar Police
Chowki and when said Abbas and both the injured P.W. Nos.
1 and 2 were sent to Sasoon Hospital for medical treatment
no history of assault was given. Thirdly, it is argued that P.W.
1, complainant had improved on his story by mentioning that
Abbas had sustained injuries on his head and it was not so C
mentioned by him while giving his complaint. Fourthly, it is
argued that the main vital injury was in the normal course of
events, sufficient to cause the death of Abbas is injury No.9
as per the Post Mortem report was attributed to only accused
No.3 i.e. Appellant No.2 as it was made by use of a sword
D
and as such it was not the injury inflicted by Appellant No.1
accused. By canvassing such last argument, it emphasized on
behalf of the Appellant that the death of Abbas was caused
due to the injury at serial no. 9 in the Post Mortem report and
as such the Appellant accused No.1 could not be held
responsible for the death of Abbas, further argued. E
10. While dealing with such arguments, on behalf of the
Appellants as mentioned above, we have carefully gone through
the substantive evidence of P.W.1 and 2 and also of the
incidental witness, corroborating the major part of the events
i.e. P.W.No.3 and it must be said that immediately after reaching F
Lohianagar Police Chowki a complaint was lodged by P.W.1
and by that time said Abbas was also brought to the Police
Chowki and was subsequently referred to Sasoon Hospital
for treatment, however, declared, dead on admission. It is also
in the substantive evidence of P.W.1 that he and P.W.2 attended
the Sasoon Hospital along with police yadi for getting G
treatment, it is a factual position that there is no medical
certificate brought on record by the prosecution regarding
injury sustained by P.W. Nos. 1 and 2 and as such factual
position prompted the Sessions Court to hold that there was
no charge established for the offence punishable under H
870 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Section 324 read with Section 34 of Indian Penal Code for
the assault on the witness No. 1, the complainant. It is also
observed that the death of Abbas was due to multiple injuries
though as opined by the Medical Officer, P.W. No.7, the main
injury which could have in the normal course caused death
of Abbas, is injury No.9 mentioned in the Post Mortem report.
B
In other words, it must be said that all the injuries sustained
by Abbas were the cause of his resultant death and that a role
was attributed to the accused Appellants using the respective
weapons i.e. Article No.16 sickle and Article No. 17 a sword.”
30. In the exercise of the power under Article 136 of the
C Constitution of India, this Court, normally would not interfere with the
concurrent findings of fact, except in very special circumstances or in
the case of a gross error committed by the courts below. Only where
the High Court ignores or overlooks “crying circumstances” and “proven
facts” or “violates and misapplies well established principles of criminal
D jurisprudence” or refuses to give benefit of doubt to the accused persons,
etc., would this Court step in to correct the legally erroneous decisions.
We are also not to interfere only for the reason that we may arrive at a
different conclusion, unless, of course, there are compelling circumstances
to tinker with conclusions drawn and that the accused were innocent/
guilty. Undoubtedly, there are limitations in interfering with the findings
E of conviction, concurrent in nature.
31. In the course of hearing of this appeal, we also noticed
something very important, going to the root of the matter.
32. We noticed that in the cross-examination of the original first
F informant, PW 1 Asgar Shaikh (Exh.7), few suggestions were put to
him by the defence counsel. We quote the relevant part of the cross-
examination of the first informant:
“The attack on us was sudden. The first blow was hit on my
head. I was assaulted severely on the head. Due to assault, I
G suffered a bleeding injury. It is not true that I felt giddy due
to assault. Yes I however suffered pain. At that time, I did not
feel that I should save my life. I did not feel that I should run
away or I should try to hide myself. I went towards the side of
Lohiya Nagar Police Chowkey. I did feel that I was being
assaulted without any reason. Abbas was screaming while he
H was being assaulted. …”
BALU SUDAM KHALDE & ANR. v. THE STATE OF 871
MAHARASHTRA [J. B. PARDIWALA, J.]
33. We are of the view from the aforesaid that the suggestions A
put by the defence counsel in the cross-examination of the eyewitnesses
establishes the presence of PW 1 Asgar Shaikh at the scene of offence
and the factum of assault could also be said to have been admitted. The
reply to the suggestions answers the submission canvassed by the learned
counsel for the appellants that PW1 Asgar Shaikh should not be believed
B
or relied upon as there is nothing on record to indicate that he was an
injured eyewitness. The defence could be said to have admitted the
presence of PW Asgar Shaikh. When the aforesaid part of the cross-
examination of PW1 Asgar Shaikh was brought to the notice of the
defence counsel, he submitted that a suggestion put by defence counsel
to a witness in his cross-examination has no evidentiary value and even C
if the same is incriminating in any manner would not bind the accused as
the defence counsel has no implied authority to admit the guilt of the
facts incriminating the accused.
34. According to the learned counsel such suggestions could be a
part of the defence strategy to impeach the credibility of the witness. D
The proof of guilt required of the prosecution does not depend on the
satisfaction made to a witness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam
reported in 2002 Cri. LJ 4076, a three Judge Bench of this Court was
dealing with an appeal against the order passed by the Designated Court, E
Guwahati, in TADA Sessions case wherein the appellant was convicted
under Section 365 of the IPC read with Section 3(1) and 3(5) of the
Terrorists and Disruptive Activities (Prevention) Act, 1987.
36. In the aforesaid case, this Court, while considering the evidence
on record took note of a suggestion which was put to one of the witnesses F
and considering the reply given by the witness to the suggestion put by
the accused, arrived at the conclusion that the presence of the accused
was admitted. We quote with profit the following observations made by
this Court in paragraphs 15, 16 and 17 resply as under:
“15. The witness further stated that during the assault, the G
assailant accused him of giving information to the army about
the United Liberation Front of Assam (ULFA). He further
stated that on the third night he was carried away blind-folded
on a bicycle to a different place and when his eyes were
unfolded, he could see his younger brother-Kumud Kakati
H
872 SUPREME COURT REPORTS [2023] 6 S.C.R.
A (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place
was Duliapather, which is about 6-7 kms. away from his village
Sakrahi. The witness identified the appellant-Tarun Bora and
stated that it is he who took him in an ambassador car from
the residence of Nandeswar Bora on the date of the incident.
B 16. In cross-examination the witness stated as under:
“Accused-Tarun Bora did not blind my eyes nor he assaulted
me.”
17. This part of cross-examination is suggestive of the presence
of accused-Tarun Bora in the whole episode. This will clearly
C suggest the presence of the accused-Tarun Bora as admitted.
The only denial is the accused did not participate in blind-
folding the eyes of the witness nor assaulted him.”
37. In Rakesh Kumar alias Babli v. State of Haryana reported
in (1987) 2 SCC 34, this Court was dealing with an appeal against the
D judgment of the High Court affirming the order of the Sessions Judge
whereby the appellant and three other persons were convicted under
Section 302 read with Section 34 of the IPC. While re-appreciating the
evidence on record, this Court noticed that in the cross-examination of
the PW 4, Sube Singh, a suggestion was made with regard to the colour
of the shirt worn by one of the accused persons at the time of the incident.
E This Court taking into consideration the nature of the suggestion put by
the defence and the reply arrived at the conclusion that the presence of
the accused namely Dharam Vir was established on the spot at the time
of occurrence. We quote the following observations made by this Court
in paragraphs 8 and 9 resply as under:
F “8. PW 3, Bhagat Singh, stated in his examination-in-chief
that he had identified the accused at the time of occurrence.
But curiously enough, he was not cross-examined as to how
and in what manner he could identify the accused, as pointed
out by the learned Sessions Judge. No suggestion was also
G given to him that the place was dark and that it was not
possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated that
the accused Dharam Vir, was wearing a shirt of white colour.
It was suggested to him on behalf of the accused that Dharam
Vir was wearing a shirt of cream colour. In answer to that
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 873
MAHARASHTRA [J. B. PARDIWALA, J.]
suggestion, PW 4 said: “It is not correct that Dharam Vir A
accused was wearing a shirt of cream colour and not a white
colour at that time.” The learned Sessions Judge has rightly
observed that the above suggestion at least proves the presence
of accused Dharam Vir, on the spot at the time of occurrence.”
38. Thus, from the above it is evident that the suggestion made by B
the defence counsel to a witness in the cross-examination if found to be
incriminating in nature in any manner would definitely bind the accused
and the accused cannot get away on the plea that his counsel had no
implied authority to make suggestions in the nature of admissions against
his client.
C
39. Any concession or admission of a fact by a defence counsel
would definitely be binding on his client, except the concession on the
point of law. As a legal proposition we cannot agree with the submission
canvassed on behalf of the appellants that an answer by a witness to a
suggestion made by the defence counsel in the cross-examination does
not deserve any value or utility if it incriminates the accused in any D
manner.
40. It is a cardinal principle of criminal jurisprudence that the initial
burden to establish the case against the accused beyond reasonable doubt
rests on the prosecution. It is also an elementary principle of law that the
prosecution has to prove its case on its own legs and cannot derive E
advantage or benefit from the weakness of the defence. We are not
suggesting for a moment that if prosecution is unable to prove its case
on its own legs then the Court can still convict an accused on the strength
of the evidence in the form of reply to the suggestions made by the
defence counsel to a witness. Take for instance, in the present case we F
have reached to the conclusion that the evidence of the three
eyewitnesses inspires confidence and there is nothing in their evidence
on the basis of which it could be said that they are unreliable witnesses.
Having reached to such a conclusion, in our opinion, to fortify our view
we can definitely look into the suggestions made by the defence counsel
to the eyewitnesses, the reply to those establishing the presence of the G
accused persons as well as the eyewitnesses in the night hours. To put it
in other words, suggestions by itself are not sufficient to hold the accused
guilty if they are incriminating in any manner or are in the form of admission
in the absence of any other reliable evidence on record. It is true that a
suggestion has no evidentiary value but this proposition of law would not H
874 SUPREME COURT REPORTS [2023] 6 S.C.R.
A hold good at all times and in a given case during the course of cross-
examination the defence counsel may put such a suggestion the answer
to which may directly go against the accused and this is exactly what
has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no
B implied authority to make admissions against his client during the progress
of the trial would hold good only in cases where dispensation of proof by
the prosecution is not permissible in law. For example, it is obligatory on
the part of the prosecution to prove the post mortem report by examining
the doctor. The accused cannot admit the contents of the post mortem
report thereby absolving the prosecution from its duty to prove the
C contents of the same in accordance with law by examining the doctor.
This is so because if the evidence per se is inadmissible in law then a
defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the
witness by the defence counsel and the reply to such suggestions would
D definitely form part of the evidence and can be relied upon by the Court
along with other evidence on record to determine the guilt of the accused.
43. The main object of cross-examination is to find out the truth
on record and to help the Court in knowing the truth of the case. It is a
matter of common experience that many a times the defence lawyers
E themselves get the discrepancies clarified arising during the cross-
examination in one paragraph and getting themselves contradicted in the
other paragraph. The line of cross-examination is always on the basis of
the defence which the counsel would keep in mind to defend the accused.
At this stage, we may quote with profit the observations made by a
F Division Bench of the Madhya Pradesh High Court in the case of Govind
s/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench
observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the
truth and detection of falsehood in human testimony. It is
G designed either to destroy or weaken the force of evidence a
witness has already given in person or elicit something in
favour of the party which he has not stated or to discredit
him by showing from his past history and present demeanour
that he is unworthy of credit. It should be remembered that
cross-examination is a duty, a lawyer owes to his clients and
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 875
MAHARASHTRA [J. B. PARDIWALA, J.]
is not a matter of great personal glory and fame. It should A
always be remembered that justice must not be defeated by
improper cross-examination. A lawyer owes a duty to himself
that it is the most difficult art. However, he may fail in the
result but fairness is one of the great elements of advocacy.
Talents and genius are not aimed at self-glorification but it
B
should be to establish truth, to detect falsehood, to uphold
right and just and to expose wrongdoings of a dishonest
witness. It is the most efficacious test to discover the truth.
Cross-examination exposes bias, detects falsehood and shows
mental and moral condition of the witnesses and whether a
witness is actuated by proper motive or whether he is actuated C
by enmity towards his adversaries. Cross-examination is
commonly esteemed the severest test of an advocate’s skill
and perhaps it demands beyond any other of his duties
exercise of his ingenuity. There is a great difficulty in
conducting cross-examination with creditable skill. It is
D
undoubtedly a great intellectual effort. Sometimes cross-
examination assumes unnecessary length, the Court has power
to control the cross-examination in such cases.
(See Wrottescey on cross-examination of witnesses). The Court
must also ensure that cross-examination is not made a means
of harassment or causing humiliation to the victim of crime E
[See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
44. During the course of cross-examination with a view to discredit
the witness or to establish the defence on preponderance of probabilities
suggestions are hurled on the witness but if such suggestions, the answer
to those incriminate the accused in any manner then the same would F
definitely be binding and could be taken into consideration along with
other evidence on record in support of the same.
45. However, it would all depend upon the nature of the suggestions
and with what idea in mind such suggestions are made to the witness.
Take for instance in case of a charge of rape under Section 376 of the G
Indian Penal Code, the statement of the accused contained plain denial
and a plea of false implication, a subsequent suggestion by the defence
lawyer to the prosecutrix about consent on her part would not, by itself,
amount to admission of guilt on behalf of the accused. In cases of rape,
it is permissible for the accused to take more than one defence. In such
H
876 SUPREME COURT REPORTS [2023] 6 S.C.R.
A type of cases a suggestion thrown by the defence counsel to a prosecution
witness would not amount to an admission on the part of the accused. At
the same time, if the defence in the cross examination of the prosecutrix,
with a view to support their alternative case of consent procure answers
to the questions in the form of suggestions implicating the accused for
the offence of rape then such suggestions would definitely lend assurance
B
to the prosecution case and the Court would be well justified in considering
the same. We may give one more example of a case where the accused
would plead right of a private defence. Such a defence is always available
to the accused but although if such a defence is not taken specifically
during the course of trial yet if the evidence on record suggests that the
C accused had inflicted injuries on the deceased in exercise of his right of
private defence then the Court can definitely take into consideration
such defence in determining the guilt of the accused. However, if a
specific question is put to a witness by way of a suggestion indicative of
exercise of right of private defence then the Court would well be justified
in taking into consideration such suggestion and if the presence of the
D
accused is established the same would definitely be admissible in
evidence.
PRINCIPLE OF RES GESTAE
46. We have also taken notice of one another aspect of the matter
E emerging from the evidence on record. PW 3 Nasir Rajjak Khan in his
oral testimony (Exh. 10) has deposed that at around 11.30 pm in the
night, he saw 10-15 boys quarrelling with each other in front of a shop
by name “Sai Car Auto Consultant”. He has further deposed that at that
time PW 1 Asgar Shaikh came and conveyed to him that he had suffered
injuries on his head and hands. Asgar Shaikh also informed Nasir that he
F along with Firoz (PW 2) was going to the police station. Asgar further
informed Nasir that Abbas Baig was seriously injured. PW 3 Nasir, on
hearing the aforesaid from Asgar, reached the spot where Abbas Baig
(deceased) was lying in an injured condition. It is pertinent to note that in
the cross-examination of the PW 3 Nasir a suggestion was put to him
G that he had inquired with PW 1 Asgar Shaikh as to what had happened
and Asgar Shaikh in turn narrated the incident to Nasir. This suggestion
put by the defence counsel to the PW 3 Nasir was answered in the
affirmative. This part of the evidence of the PW 3 Nasir is corroborated
by the evidence of the PW 1 Asgar Shaikh.
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 877
MAHARASHTRA [J. B. PARDIWALA, J.]
47. The reason for referring to the aforesaid a piece of evidence A
is that the PW 3 Nasir Rajjak Khan (Exh. 10) could be termed as a res
gestae witness. This principle of res gestae is embodied in Section 6 of
the Act 1872:
“6. Relevancy of facts forming part of same transaction.—
Facts which, though not in issue, are so connected with a B
fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place
or at different times and place.”
48. In the case of Sukhar v. State of U.P. reported in (1999) 9
SCC 507, this Court noticed the position of law with regard to Sections C
6 & 7 resply of the Act 1872 thus:—
“6. Section 6 of the Evidence Act is an exception to the general
rule whereunder the hearsay evidence becomes admissible.
But for bringing such hearsay evidence within the provisions
of Section 6, what is required to be established is that it must D
be almost contemporaneous with the acts and there should
not be an interval which would allow fabrication. The
statements sought to be admitted, therefore, as forming part
of res gestae, must have been made contemporaneously with
the acts or immediately thereafter. The aforesaid rule as it is
stated in Wigmore’s Evidence Act reads thus:— E
“Under the present exception [to hearsay] an utterance is by
hypothesis, offered as an assertion to evidence the fact
asserted (for example that a car-brake was set or not set),
and the only condition is that it shall have been made
spontaneously, i.e. as the natural effusion of a state of F
excitement. Now this state of excitement may well continue to
exist after the exciting fact has ended. The declaration,
therefore, may be admissible even though subsequent to the
occurrence, provided, it is near enough in time to allow the
assumption that the exciting influence continued.” G
7. Sarkar on Evidence (Fifteenth Edition) summaries the law
relating to applicability of Section 6 of the Act 1872 thus:—
“1. The declarations (oral or written) must relate to the act
which is in issue or relevant thereto; they are not
admissible merely because they accompany an act. H
878 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Moreover the declarations must relate to and explain the
fact they accompany, and not independent facts previous
or subsequent thereto unless such facts are part of a
transaction which is continuous.
2. The declarations must be substantially contemporaneous
B with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person,
or they may be by different persons, e.g., the declarations
of the victim, assailant and bystanders. In conspiracy,
riot, the declarations of all concerned in the common
C object are admissible.
4. Though admissible to explain or corroborate, or to
understand the significance of the act, declarations are
not evidence of the truth of the matters stated.””
49. The rule embodied in Section 6 is usually known as the rule of
D res gestae. What it means is that a fact which, though not in issue, is so
connected with the fact in issue “as to form part of the same transaction”
becomes relevant by itself. To form particular statement as part of the
same transaction utterances must be simultaneous with the incident or
substantial contemporaneous that is made either during or immediately
E before or after its occurrence.
50. Sections 6 and 7 resply of the Act 1872 in the facts and
circumstances of the case, in so far as, the admissibility of a statement
of the PW 3 Nasir Rajjak Khan coming to know about incident,
immediately from the PW 1 Asgar Shaikh that Abbas Baig had been
F seriously assaulted and that Asgar Shaikh had also suffered injuries and
admitted by the PW 1 Asgar Shaikh in his evidence would be attracted
with all its rigour.
EXCEPTION 4 TO SECTION 300 OF THE IPC
51. We shall now deal with the submission as regards the
G applicability of the fourth Exception to Section 300 of the IPC. However,
before we proceed to deal with the submission, it would be appropriate
to look into the oral evidence of PW 7, Dr. Shrikant Suresh Chandekar,
Medical Officer who carried out the post mortem of the dead body of
the deceased and also prepared the post mortem report.
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BALU SUDAM KHALDE & ANR. v. THE STATE OF 879
MAHARASHTRA [J. B. PARDIWALA, J.]
52. The examination-in-chief of PW 7 Dr. Shrikant, Exh. 18, reads A
thus:
“1. On 02.04.2001 I was on duty when a dead body of Abbas
Sanaulla Baig was brought to mortuary by Khadak police
alongwith inquest panchnama. Accordingly, I carried out
the postmortem examination between 6.30 a.m. to 7.30 B
a.m. on the same day.
2. On examination I noticed following external injuries: -
1) Incised injury-left hand 3 c.m. distal to wrist transverse
oblique and out into total thickness, metacarpus shows
clean cut fractures; C
2) Incised injury-left wrist medically transverse oblique 4x1
c.m. underlying ulna shows clean cut fracture involving
its total thickness;
3) Linear abrasion-left wrist dorsum 2 c.m. transverse; D
4) Incised jury over fight forearm flex or aspect middle third
transvers; 3.5 c.m. gaping-tailing medically skin deep;
5) Incised injury over right hand dorsum-transverse oblique
mid proximal region, 2.5 c.m. gaping skin deep;
6) Linear abrasion right and infraclavicular region 4 c.m. E
oblique.”
7) Linear Abrasion-left mid scapular region vertical oblique-
5c.m.
8) Abrasion right shoulder back, 0.5 x 4 c.m. oblique. F
9) Stab injury, vertical situated adjacent and below right
mid clavicle, measuring 7.5 c.m. x 0.8 to 2.5 c.m. Lower
and of injury with curved margin, upper and angle clean
cut, margins clean cut. Injury opening in right thoracic
cavity. G
Corresponding internal injuries:- Chest muscles and pleura
shows corresponding injuries. Right 2 nd rib partially cut
cleanly along its long 3rd right rib upper margin shown clean
cut. Stab injury involving right 2 nd intercostal muscles 1 to
1.5 x 3 c.m.
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880 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Right upper lobe of lung shows incised injuries. Vertical
oblique 1.2 c.m. and 3.5 c.m.
Right middle lobe through and through injury near anterior
margin, 1.5 c.m. below tissue-towards hilum, gaping.
Right pulmonary artery and superior vena cava cut partially-
B lumina exposed.
Right pleural cavity was full of blood with clots.
In my opinion all above injuries were antemortem and rescent.
During internal examination of head and abdomen I found
C no any injury, but the organs were pale. The stomach contains
fluid with paste without any abnormal smell.
I preserved blood for grouping as per police requisition.
In my opinion, Abbas died due to shock and due to stab
injuries.
D
Accordingly I have issued P.M. notes. They are in my
handwriting and it bears my signature. Its contents are correct.
It is marked at Exh. 19.
Injury No. 9 alongwith its corresponding internal injuries
E was sufficient in the ordinary course to cause death. That
injury could be caused by sharp edged pointed weapons.
Injury No. 9 can be caused by the sword Article No. 17 now
shown to me is the same. Injury Nos. 1 and 2 were incised
injuries alongwith underlined fractured bones. Injury Nos. 1
to 8 are possible by Article No. 16- sickle or Article No. 17
F sword, as both are having sharp edges.
Initially, I had issued the provisional death certificate. The
certificate now shown to me is the same. It bears my signatures
its contes are correct. It is now marked at Exhibit 20.”
G 53. In order to appreciate the question, it will be profitable to refer
to the definition of murder as provided in Section 300 of the Indian Penal
Code which is quoted below:
“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—
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Secondly.—If it is done with the intention of causing such A
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause B
death,—
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 C
causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in
consequence. A commits murder.
D
(b) A, knowing that Z is labouring under such a disease that
a blow is likely to cause his death, strikes him with the intention
of causing bodily injury. Z dies in consequence of the blow.
A is guilty of murder, although the blow might not have been
sufficient in the ordinary course of nature to cause the death
of a person in a sound state of health. But if A, not knowing E
that Z is labouring under any disease, gives him such a blow
as would not in the ordinary course of nature kill a person in
a sound state of health, here A, although he may intend to
cause bodily injury, is not guilty of murder, if he did not intend
to cause death, or such bodily injury as in the ordinary course F
of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient
to cause the death of a man in the ordinary course of nature.
Z dies in consequence. Here, A is guilty of murder, although
he may not have intended to cause Z’s death.
G
(d) A without any excuse fires a loaded cannon into a crowd
of persons and kills one of them. A is guilty of murder, although
he may not have had a premeditated design to kill any
particular individual.
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882 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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.
B 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
C 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.
D Explanation.—Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation
E given by Z, intentionally kills Y, Z’s child. This is murder, in as
much as the provocation was not given by the child, and the
death of the child was not caused by accident or misfortune
in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this
F provocation, fires a pistol at Y, neither intending nor knowing
himself to be likely to kill Z, who is near him, but out of sight.
A kills Z. Here A has not committed murder, but merely culpable
homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden
G and violent passion by the arrest, and kills Z. This is murder,
in as much as the provocation was given by a thing done by a
public servant in the exercise of his powers.
(d) A appears as witness before Z, a Magistrate, Z says that
he does not believe a word of A’s deposition, and that A has
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 883
MAHARASHTRA [J. B. PARDIWALA, J.]
perjured himself. A is moved to sudden passion by these words, A
and kills Z. This is murder.
(e) A attempts to pull Z’s nose. Z, in the exercise of the right of
private defence, lays hold of A to prevent him from doing so.
A is moved to sudden and violent passion in consequence,
and kills Z. This is murder, in as much as the provocation was B
giving by a thing done in the exercise of the right of private
defence.
(f) Z strikes B. B is by this provocation excited to violent rage.
A, a bystander, intending to take advantage of B’s rage, and
to cause him to kill Z, puts a knife into B’s hand for that C
purpose. B kills Z with the knife. Here B may have committed
only culpable homicide, but A is guilty of murder.
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 D
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.
Illustration E
Z attempts to horsewhip A, not in such a manner as to cause
grievous hurt to A. A draws out a pistol. Z persists in the
assault. A believing in good faith that he can by no other
means prevent himself from being horsewhipped, shoots Z
dead. A has not committed murder, but only culpable homicide. F
Exception 3.—Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for
the advancement of public justice, exceeds the powers given
to him by law, and causes death by doing an act which he, in
good faith, believes to be lawful and necessary for the due
G
discharge of his duty as such public servant and without ill-
will towards the person whose death is caused.
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
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884 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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.
Exception 5.—Culpable homicide is not murder when the
B person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death with
his own consent.
Illustration
C A, by instigation, voluntarily causes, Z, a person under
eighteen years of age to commit suicide. Here, on account of
Z’s youth, he was incapable of giving consent to his own death;
A has therefore abetted murder.”
54. At this stage, it will also be profitable to refer to the following
D observations of this Court in the case of State of Andhra Pradesh v.
Rayavarapu Punnayya and Another reported in (1976) 4 SCC 382
where this Court laid down the distinction between murder and the
culpable homicide not amounting to murder in the following way:
“12. In the scheme of the Penal Code, “culpable homicide”
is genus and “murder” its specie. All “murder” is “culpable
E
homicide” but not vice-versa. Speaking generally, “culpable
homicide” sans ”special characteristics of murder”, is
“culpable homicide not amounting to murder”. For the
purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises three
F degrees of culpable homicide. The first is, what may be called,
“culpable homicide of the first degree”. This is the greatest
form of culpable homicide, which is defined in Section 300
as “murder”. The second may be termed as “culpable
homicide of the second degree”. This is punishable under the
first part of Section 304. Then, there is “culpable homicide
G
of the third degree”. This is the lowest type of culpable
homicide and the punishment provided for it is, also, the lowest
among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the
second part of Section 304.
H
BALU SUDAM KHALDE & ANR. v. THE STATE OF 885
MAHARASHTRA [J. B. PARDIWALA, J.]
13. The academic distinction between “murder” and “culpable A
homicide not amounting to murder” has vexed the courts for
more than a century. The confusion is caused, if courts losing
sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn
into minutiae abstractions. The safest way of approach to the
B
interpretation and application of these provisions seems to
be to keep in focus the keywords used in the various clauses
of Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction between
the two offences.
C
D
E
F
14. Clause (b) of Section 299 corresponds with clauses (2)
and (3) of Section 300. The distinguishing feature of the mens G
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact
that such harm would not in the ordinary way of nature be
H
886 SUPREME COURT REPORTS [2023] 6 S.C.R.
A sufficient to cause death of a person in normal health or
condition. It is noteworthy that the “intention to cause death”
is not an essential requirement of clause (2). Only the intention
of causing the bodily injury coupled with the offender ’s
knowledge of the likelihood of such injury causing the death
of the particular victim, is sufficient to bring the killing within
B
the ambit of this clause. This aspect of clause (2) is borne out
by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
C assailant causes death by a fist blow intentionally
given knowing that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of
the rupture of the liver, or spleen or the failure of the heart,
D as the case may be. If the assailant had no such knowledge
about the disease or special frailty of the victim, nor an
intention to cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the offence will not
be murder, even if the injury which caused the death, was
intentionally given.
E
16. In clause (3) of Section 300, instead of the words “likely
to cause death” occurring in the corresponding clause (b) of
Section 299, the words “sufficient in the ordinary course of
nature” have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily
F injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real, and, if overlooked,
may result in miscarriage of justice. The difference between
clause (b) of Section 299 and clause (3) of Section 300 is
one of the degree of probability of death resulting from the
G intended bodily injury. To put it more broadly, it is the degree
of probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The
word “likely” in clause (b) of Section 299 conveys the sense
of “probable” as distinguished from a mere possibility. The
words “bodily injury … sufficient in the ordinary course of
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BALU SUDAM KHALDE & ANR. v. THE STATE OF 887
MAHARASHTRA [J. B. PARDIWALA, J.]
nature to cause death” mean that death will be the “most A
probable” result of the injury, having regard to the ordinary
course of nature.
17. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient B
to cause death in the ordinary course of nature. Rajwant v.
State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 :
1966 Cri LJ 1509.] is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958
SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for C
this Court, explained the meaning and scope of clause (3),
thus (at p. 1500):
“The prosecution must prove the following facts before it can
bring a case under Section 300, ‘thirdly’. First, it must
establish quite objectively, that a bodily injury is present; D
secondly the nature of the injury must be proved. These are
purely objective investigations. It must be proved that there
was an intention to inflict that particular injury, that is to say,
that it was not accidental or unintentional or that some other
kind of injury was intended. Once these three elements are
proved to be present, the enquiry proceeds further, and E
fourthly it must be proved that the injury of the type just
described made up of the three elements set out above was
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.” F
19. Thus according to the rule laid down in Virsa Singh
case of even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention
of causing death, the offence would be “murder”. Illustration G
(c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300
both require knowledge of the probability of the act causing
death. It is not necessary for the purpose of this case to dilate
much on the distinction between these corresponding clauses.
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888 SUPREME COURT REPORTS [2023] 6 S.C.R.
A It will be sufficient to say that clause (4) of Section 300 would
be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general — as
distinguished from a particular person or persons — being
caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the
B
offender must be of the highest degree of probability, the act
having been committed by the offender without any excuse
for incurring the risk of causing death or such injury as
aforesaid.
21. From the above conspectus, it emerges that whenever a
C court is confronted with the question whether the offence is
“murder” or “culpable homicide not amounting to murder”,
on the facts of a case, it will be convenient for it to approach
the problem in three stages. The question to be considered at
the first stage would be, whether the accused has done an
D act by doing which he has caused the death of another. Proof
of such causal connection between the act of the accused
and the death, leads to the second stage for considering
whether that act of the accused amounts to “culpable
homicide” as defined in Section 299. If the answer to this
question is prima facie found in the affirmative, the stage for
E considering the operation of Section 300 of the Penal Code,
is reached. This is the stage at which the court should
determine whether the facts proved by the prosecution bring
the case within the ambit of any of the four clauses of the
definition of “murder” contained in Section 300. If the answer
F to this question is in the negative the offence would be
“culpable homicide not amounting to murder”, punishable
under the first or the second part of Section 304, depending,
respectively, on whether the second or the third clause of
Section 299 is applicable. If this question is found in the
positive, but the case comes within any of the exceptions
G enumerated in Section 300, the offence would still be “culpable
homicide not amounting to murder”, punishable under the
first part of Section 304, of the Penal Code.”
55. Applying the above principles to the case before us we find
that there is no dispute that the death of the deceased occurred due to
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BALU SUDAM KHALDE & ANR. v. THE STATE OF 889
MAHARASHTRA [J. B. PARDIWALA, J.]
culpable homicide and not due to accident or suicide. We, therefore, A
propose to consider whether the incident comes within any of the
exceptions indicated in Section 300 of the Code.
56. In order to bring the case within fourth exception, the essential
requirement as pointed out by this Court in the case of Parkash Chand
v. State of Himachal Pradesh reported in (2004) 11 SCC 381 is as B
follows:
“The fourth exception of Section 300 IPC covers acts done
in a sudden fight. The said exception deals with a case of
provocation not covered by the first exception, after which
its place would have been more appropriate. The exception is C
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 is provocation in Exception 4 as in D
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 E
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 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 F
be Exception 1. There is no previous deliberation or
determination 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. G
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 having taken undue advantage or
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890 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 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 IPC. It takes two to make a
fight. Heat of passion requires that there must be no time for
B
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
C 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
D
acted in a cruel or unusual manner. The expression “undue
advantage” as used in the provision means “unfair
advantage”.” o(Emphasis supplied)
57. Thus, the sine qua non for the application of an Exception to
Section 300 always is that it is a case of murder but the accused claims
E the benefit of the Exception to bring it out of that Section and to make it
a case of culpable homicide not amounting to murder. We must, therefore,
assume that this would be a case of murder and it is for the accused to
show the applicability of the Exception. Exception 4 reads as under:-
“Exception 4.—Culpable homicide is not murder if it is
F 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.”
58. A perusal of the provision would reveal that four conditions
G must be satisfied to bring the matter within Exception 4:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that (iv) the
H assailant had not taken any undue advantage or acted in a cruel
manner.
BALU SUDAM KHALDE & ANR. v. THE STATE OF 891
MAHARASHTRA [J. B. PARDIWALA, J.]
59. On a plain reading of Exception 4, it appears that the help of A
Exception 4 can be invoked if death is caused (a) without premeditation,
(b) in a sudden fight, (c) without the offenders 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.
B
60. We have already noticed the extent of injuries suffered by the
deceased, as it appears from the deposition of the PW 7 Dr. Shrikant
who carried out the post mortem. Having regard to the nature of the
injuries caused by dangerous weapons like sickle and sword which, were
applied on the vital part of the body, there is no escape from the conclusion
that it is a case of Section 302 of the IPC. C
61. It is very difficult for us to accept the submission of the learned
counsel appearing for the appellant that the case would fall within the
Exception 4 to Section 300 of the IPC and such benefit be extended to
the accused. Assuming for the moment that the incident had occurred in
the heat of the moment and fight was also sudden, we should not overlook D
the fact that the appellants herein inflicted as many as nine blows with a
dangerous weapon on the deceased who was unarmed and was helpless.
For cases to fall within clause (3) of Section 300 of the IPC, it is not
necessary that the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient to cause E
death in the ordinary course of nature. Rajwant Singh v. State of Kerala
reported in AIR 1966 SC 1874 is an apt illustration of this point.
62. In the overall view of the matter, we are convinced that no
case is made out by the appellants to interfere with the impugned
judgment and order of the High Court. F
63. In the result, this appeal fails and is hereby dismissed.
64. The records indicate that both the appellants herein were
ordered to be released on bail pending the final hearing of the present
appeal. The appellant No.2 was ordered to be released on bail vide
order dated 01.10.2010 and the appellant No. 1 herein was ordered to G
be released on bail vide order dated 04.03.2013. The bail bonds furnished
by them to the satisfaction of the Additional Sessions Judge, Pune in
Sessions Case No. 323 of 2001 stand cancelled. Both the appellants are
ordered to surrender before the Trial Court within a period of two weeks
from today.
H
892 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 65. Once the appellants surrender before the Trial Court, they
shall be sent to judicial custody to serve out the sentence as was imposed.
66. Pending applications if any shall stand disposed of.
Nidhi Jain Appeal dismissed.
B (Assisted by : Adityaraj Patodia and Rakhi, LCRAs)
C
D
E
F
G
H
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