Supreme Court of India
GOLLA YELUGU GOVINDUversusSTATE OF ANDHRA PRADESH
- Citation
- 2008 INSC 406
- Decided
- 26 March 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The evidence of the child witnesses was competent and reliable, and the facts did not meet the criteria of Exception 4 to Section 300 IPC; therefore the conviction must be under Section 304 Part I IPC with a ten‑year sentence.
Summary
The appellant, Golla Yelugu Govindu, was convicted of murder for hacking his wife with a sickle during a heated quarrel, based largely on the testimony of his two minor children. He appealed, challenging the admissibility of the child witnesses and arguing that the incident fell under Exception 4 of Section 300 IPC, which would reduce the offence to culpable homicide not amounting to murder. The Supreme Court held that under Section 118 of the Evidence Act a child may testify if he possesses sufficient intelligence, and that the trial court had properly scrutinised and found the children’s evidence reliable. The Court further found that the use of a deadly weapon and the manner of the attack constituted undue advantage and cruelty, disqualifying the case from Exception 4. Consequently, the appropriate conviction was under Section 304 Part I IPC with a ten‑year imprisonment, and the appeal was partly allowed.
Issues considered
- The competency and admissibility of child witnesses under Section 118 of the Evidence Act.
- Whether the facts satisfy Exception 4 to Section 300 IPC (sudden fight without undue advantage or cruelty).
- Whether the offence should be convicted under Section 302 IPC (murder) or Section 304 Part I IPC (culpable homicide not amounting to murder).
- Whether reliance on the child witnesses by the lower courts was erroneous.
Legislation cited
- Indian Evidence Act, 1872s. 118
- Indian Penal Code, 1860s. 300 Exception 4, s. 302, s. 304(Part I)
Subjects
child witnesscompetencyEvidence ActIPCmurderculpable homicideException 4sudden fightundue advantagesentencingappellate review
Judgment
[2008] 5 S.C.R. 500
A GOLLA YELUGU GOVINDU
.-
v.
STATE OF ANDHRA PRADESH
(Criminal Appeal No.556 of 2008)
MARCH 26, 2008
B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
Penal Code, 1860:
s.304, Patt I - Pursuant to exchange of hot words and
c quarrel, accused hacked his wife on her back and neck with a
sickle which resulted in her death - Conviction by Coutts below
u/s. 302 /PC - Challenge to - Held: On facts, appropriate
conviction would be under s. 304 Patt I with custodial sentence
of 10 years - Accordingly conviction altered.
D
s.300, Exception 4 - Applicability of- Discussed. ,-
.
Evidence Act, 1872 - s. 118 - Testimony of child witness
- Evidentiary value of - Held: Child of tender age can be
allowed to testify if he has intellectual capacity to understand
E questions and give rational answers thereto - However, Coult
as a rule of prudence considers such evidence with close
scrutiny and only on being convinced about the quality thereof
and reliability can record conviction, based thereon.
Words and Phrases - "sudden fight" and "undue
F advantage" - Meaning of - In the context of Exception 4 to
s.300, /PC. !'-'
According to the prosecution, pursuant to an
exchange of hot words and quarrel, Appellant hacked his
G wife on her back and neck with a sickle which resulted in
her death. On analysis of the evidence of PWs 2 and 3,
the two minor children of Appellant, and finding that they
were corroborated by the evidences of PW1, the father-
in-law of Appellant, and PW7, the Trial Court convicted
H 500
GOLLA YELUGU GOVINDU v. STATE OF 501
ANDHRA PRADESH
-,.L-
Appellant under s.302 IPC and sentenced him to life A
imprisonment. The High Court negated the plea of
Appellant that PWs 2 and 3 were under the influence of
PW1 and holding that PWs 2 and 3 had no reason to
falsely _implicate their father, upheld the conviction.
-
_.
In appeal to· this Court, the conviction of Appellant B
was challenged on the ground that no reliance should
have been placed by the Courts below on the evidence
of the two child witnesses, PWs 2 and 3. It was residually
pleaded that offence under s.302 IPC was not made out
since the assault was made during course of sudden c
quarrel and Exception 4 of s.300 IPC applied.
Partly allowing the appeal, the Court
HELD: 1.1. The Indian Evidence Act, 1872 does not
prescribe any particular age as a determinative factor to D
-'r treat a witness to be a competent one. On the contrary,
" Section 118 of the Evidence Act envisages that all persons
shall be competent to testify, unless the Court considers
that they are prevented from understanding the questions
put to them or from giving rational answers to these E
questions, because of tender years, extreme old age,
disease- whether of mind, or any other cause of the same
kind. A child of tender age can be allowed to testify if he
has intellectual capacity to understand questions and give
rational answers thereto. [Para 7] [508-H; 509-A-C] F
1.2. The evidence of a child witness is not required
> to be rejected per se; but the Court as a rule of prudence
considers such evidence with close scrutiny and only on
being convinced about the quality thereof and reliability
can record conviction, based thereon. [Para 7] [507-C-D] G
1.3. The decision on the question whether the child
witness has sufficient intelligence primarily rests with the
)
trial Judge who notices his manner~, his apparent
""· possession or lack of intelligence, and said Judge may
H
502 SUPREME COURT REPORTS [2008] 5 S.C.R.
A resort to any examination which will tend to disclose his . ""'
capacity and intelligence as well as his understanding of
the obligation of an oath. The decision of the trial court
may, however, be disturbed by the higher Court if from
what is preserved in the records, it is clear his conclusion
B was erroneous. This precaution is necessary because
child witnesses are amenable to tutoring and often live in
a world of make beliefs. Though it is an established
principle that child witnesses are dangerous witnesses
- .....
as they are pliable and liable to be influenced easily,
c shaped and moulded, but it is also an accepted norm that
if after careful scrutiny of their evidence the Court comes
to the conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the evidence
of a child witness. [Para 9] (507-H; 508-A-C]
D Surya Narayana v. State of Karnataka (2001 (1) Supreme
1) and Dattu Ramrao Sakhare v. State of Maharashtra (1997 ;-
(5) sec 341) - relied on
Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) -
referred to
E
Wheeler v. United States (159 U.S. 523). - referred to
2.1. The Fourth Exception of Section 300 IPC covers
acts done in a sudden fight. For bringing in operation of
Exception 4 to Section 300 IPC it has to be established
F that the act was committed without premeditation, in a
sudden fight in the heat of passion upon a sudden quarrel .-
without the offender having taken undue advantage and "'
not having acted in a cruel or unusual manner. The said
exception deals with a case of prosecution not covered
G by the first exception, after which its place would have
been more appropriate. The exception is founded upon
the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there
is total deprivation of self-control, in case of Exception 4,
H there is only that heat of passion which clouds men's sober
GOLLA YELUGU GOVINDU v. STATE OF 503
ANDHRA PRADESH
_,....._;_ .. reason and urges them to deeds which they would not A
otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow
may have been struck, or some provocation given in the B
origin of the dispute or in whatever way the quarrel may
')
have originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal footing. A
'sudden fight' implies mutual provocation and blows on
each side. The homicide committed is then clearly not c
traceable to unilateral provocation, nor in such cases
could the whole blame be placed on one side. For if it were
so, the Exception more appropriately applicable would
be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for
D
which both parties are more or less to be blamed. It may
-,
.. be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken
the serious turn it did. There is then mutual provocation
and aggravation, and it is difficult to apportion the share
of blame which attaches to each fighter. The help of E
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 acted in a cruel
or unusual manner; and (d) the fight must have been with
the person killed. [Paras 12, 13] [508-E-H; 509-A-E] F
> 2.2. To bring a case within Exception 4, all the
ingredients mentioned in it must be found. The 'fight'
occurring in Exception 4 to Section 300 IPC is not defined
in the IPC. It takes two to make a fight. Heat of passion
G
requires that there must be no time for the passions to
cool down and in this case, the parties have worked
themselves into a fury on account of the verbal altercation
_,' in the beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not
H
504 SUPREME COURT REPORTS [2008] 5 S.C.R.
A possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact
and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that
B there was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted in cruel
or unusual manner. The expression 'undue advantage'
as used in the provision means 'unfair advantage'. [Para
C 13] [509-E-H]
2.3. Where the offender takes undue advantage or
has acted in a cruel or unusual manner, the benefit of
Exception 4 cannot be given to him. If the weapon used
or the manner of attack by the assailant is out of all
D proportion, that circumstance must be taken into
consideration to deCide whether undue advantage has
been taken. [Para 14] [510-A, B]
3. Considering the factual scenario in the
background of the position in law as highlighted, the
E inevitable conclusion is that the appropriate conviction
would be under Section 304 Part I IPC. Custodial sentence
of 10 years would meet the ends of justice. [Para 15] [510-D]
CRIMINAL ORIGINAL JURISDICTION : Criminal Appeal
F No. 556 of 2008.
From the final Judgment and Order dated 07.08.2006 of
the High Court of Judicature of Andhra Pradesh at Hyderabad
in Criminal Appeal No. 1313 of 2004.
G
Uma Datta for the Appellant.
D. Bharathi Reddy for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
H
GOLLA YELUGU GOVINDU v. STATE OF 505
ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]
2. Challenge in this· appeal is to the order passed by a A
Division Bench of the Andhra Pradesh High Court dismissing
the appeal filed by the appellant questioning correctness of his
conviction for offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short 'IPC') and sentence of imprisonment
for life and fine as imposed by learned IVth Additional Sessions B
'-,) Judge, (F.T.C.), Anantapur.
2. Background facts in a nutshell are as follows:
The marriage between Dhanalakshmi (hereinafter referred
, to as 'deceased') and the ace.used took place 14 years prior to c
the date of incident. During the wedlock, they were blessed with .
three children, namely, Golla Yelugu Adilakshmi (PW2), Golla
Yelugu Anjaneyulu (PW3) and Gollal Yelugu Venkatesu (LW7).
At the time of marriage, the accused was doing cultivation. After
marriage the deceased and the accused lived happily for some D
years. Due to addiction to vices, he started ill-treating his wife,
demanding her to get money from her parents.About six months
prior to the occurrence, the accused beat and caused fracture
to the hand of the deceased and sent her along with her children
to her parents' house. He again took them back by promising to
look after them well and kept his family at Pamidi. Ten days E
prior to the occurrence, the accused sold his autorickshaw and
cleared his debts and asked his wife to get money from her
parents to purchase another autorickshaw. But the parents of
the deceased did not comply with the said demand. On
20.6.2002 at about 2A.M. while the deceased was in the house, F
there was exchange of hot words and quarrel between the
accused and deceased. This happened in the presence of their
children. Suddenly accused hacked the deceased on her back
with a sickle and the deceased fell down and the accused once
again hacked on the neck and left ear of the deceased causing G
severe bleeding injuries. Accused went to the house of LW3
and confessed the offence before him. LW3 went and informed
the same to the father of the deceased, PW1. PW1 lodged a
complaint before the police and on its basis a case in Cr.No.35/
2002 was registered for the offence punishable under Section H
506 SUPREME COURT REPORTS [2008] 5 S.C.R.
. .,.
A 302 IPC by PW11, who conducted inquest over the dead body
of the deceased in the presence of PWs. 5, 8 and LW16:
examined some witnesses and recorded their statements;
seized the clothes and blood stained mat covered under MOs.
1 to 4; prepared rough sketch under Ex.P.7, forwarded the
B material objects to the Forensic Science Laboratory, Hyderabad
for analysis through the Judicial First Class Magistrate, Gooty ....
and arrested the accused on 25.6.2002, and at his instance
MOs 5-sickle and 6-bag were recovered. PW6, the Medical
Officer, who conducted autopsy over the dead body of the
deceased opined that the deceased would appear to have died
c due to hemorrhage and shock due to cut laceration over the
throat involving the major blood vessel. After completion of the
investigation, charge sheet was filed.
3. In order to establish the accusations the prosecution
D examined 11 witnesses and marked several exhibits and MOs.
The accused did not adduce any oral or documentary evidence. t°
.\
He however pleaded innocence.
4. After analyzing the evidence of eyewitnesses PWs2 and
3, and finding that they are corroborated by the evidence of PWs
E 1 and 7, the appellant was found guilty.
5. In appeal, the appellant took the plea that PWs. 2 and 3
should not have been pleaded as they are of tender age and
were child witnesses. The High Court found that PWs. 2 and 3
F were children of the deceased and the accused and there was
no reason as to why they would falsely implicate their father.
The High Court also discarded the plea that they were under .r
the influence of PW1, their maternal grandfather. As noted above,
the appeal was dismissed.
G 6. In support of the appeal, learned counsel for the appellant
submitted that reliance should not be placed on the evidence of
PWs 2&3 and in any event offence under Section 302 IPC is
not made out. \ .
7. Indian Evidence Act, 1872 (in short the 'Evidence Act')
H
GOLLA YELUGU GOVINDU v. STATE OF 507
ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]
~-+-
does not prescribe any particular age as a determinative factor A
to treat a witness to be a competent one. On the contrary, Section
118 of the Evidence Act envisages that all persons shall be
competent to testify, unless the Court considers that they are
prevented from understanding the questions put to them or from
giving rational answers to these questions, because of tender B
years, extreme old age, disease-whether of mind, or any other
-;
cause of the same kind. A child of tender age can be allowed to
testify if he has intellectual capacity to understand questions
and give rational answers thereto. This position was concisely
stated by Brewer J in Wheeler v. United States (159 U.S. 523). c
The evidence of a child witness is not required to be rejected
per se; but the Court as a rule of prudence considers· such
evidence with close scrutiny and only on being convinced about
the quality thereof and reliability can record conviction, based
thereon. (See Surya Narayana v. State of Karnataka (2001 (1)
D
-, Supreme 1).
..>-
8. In Dattu Ramrao Sakhare v. State of Maharashtra
(1997 (5) sec 341) it was held as follows:
"A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of E
conviction. In other words even in the absence of oath the
evidence of a child witness can be considered under
Section 118 of the Evidence Act provided that such witness
is able to understand the answers thereof. The evidence
of a child witness and credibility thereof would depend F
upon the circumstances of each case. The only precaution
)
which the Court should bear in mind while assessing the
evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any other
competent witness and there is no likelihood of being G
tutored".
9. The decision on the question whether the child witness
-J has sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
H
508 SUPREME COURT REPORTS [2008] 5 S.C.R.
·+ .
A intelligence, and said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher Court
if from what is preserved in the records, it is clear his conclusion
B was erroneous. This precaution is necessary because child
witnesses are amenable to tutoring and often live in a world of
make beliefs. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable
'
to be influenced easily, shaped and moulded, but it is also an
c accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth
in It. there is no obstacle in the way of accepting the evidence of
a child wjtness.
10. It is submitted that Section 302 IPC has no application
D as the assault was made during the course of sudden quarrel
and Exception 4 of Section 300 IPC applies.
..
11. The residuary plea relates to the applicability of
Exception 4 of Section 300 IPC, as it is contended that the
incident took place in course of a sudden quarrel.
E
12. For bringing in its operation it has to be established
that the act was committed without premeditation, in a sudden
fight in the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not having acted
F in a cruel or unusual manner.
13. The Fourth Exception of Section 300 IPC covers acts .l
done in a sudden fight. The said exception deals with a case of
prosecution not covered by the first exception, after which its
place would have been more appropriate. The exception is
G founded upon the same principle, for in both there is absence
of premeditation. But, while in the case of Exception 1 there is
total deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men's sober reason and ,,
urges them to deeds which they would not otherwise do. There
H is provocation in Exception 4 as in Exception 1; but the injury
GOLLA YELUGU GOVINDU v. STATE OF 509
ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]
,--+- done is not the direct consequence of that provocation. In fact A
Exception 4 deals with cases in which notwithstanding that a
blow may have been struck, or some provocation given in the
origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them
in respect of guilt upon equal footing. A 'sudden fight' implies B
mutual provocation and blows on each side. The homicide
'J committed is then clearly not traceable to unilateral provocation,
nor in such cases could the whole blame be placed on one side.
For if it were so, the Exception more appropriately applicable
would be· Exception 1. There is no previous deliberation or c
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. There is
then mutual provocation and aggravation, and it is difficult to
D
,. 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 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 E
mentioned in it must be found. It is to be noted that the 'fight'
occurring in Exception 4 to Section 300 IPC is not defined in
the IPC. It takes two to make a fight. Heat of passion requires
that there must be no time for the passions to cool down and in
this case, the parties have worked themselves into a fury on F
account of the verbal altercation in the beginning. A fight is a
).
combat between two and more persons whether with or without
weapons. It is not possible to enunciate any general rule as to
what shall be deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must necessarily G
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
f quarrel and there was no premeditation. It must further be shown
"')_
that the offender has not taken undue advantage or acted in
cruel or unusual manner. The expression 'undue advantage' as H
~
510 SUPREME COURT REPORTS [2008] 5 S.C.R.
A used in the provision means 'unfair advantage'.
14. Where the offender takes undue advantage or has
acted in a cruel or unusual manner, the benefit of Exception 4
cannot be given to him. If the weapon used or the manner of
attack by the assailant is out of all proportion, that circumstance
8 must be taken into consideration to decide whether undue
advantage has been taken. In Kikar Singh v. State of Rajasthan
(AIR 1993 SC 2426) it was held that if the accused used deadly
weapons against the unarmed man and struck a blow on the
head it must be held that giving the blows with the knowledge
C that they were likely to cause death, he had taken undue
advantage.
15. Considering the factual scenario in the background of
the position in law as highlighted above, the inevitable
conclusion is that the appropriate conviction would be under
0
Section 304 Part I IPC. Custodial sentence of 10 years would
meet the ends of justice. Appeal is allowed to that extent. ..
y'
B.B.B. Appeal partly allowed.
_,.
I
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