Holding

Exception 4 to s.300 IPC does not apply, the ‘chance witness’ testimony is admissible, and the High Court’s acquittal of Bachchey is a permissible view, so the appeals are dismissed.

Summary

The case involved two brothers, Sachchey Lal Tiwari and Bachchey Lal Tiwari, who were charged with murder of two sons of Achhaiber Misra after a dispute over a field demarcation line. The trial court convicted both under s.302 IPC, sentencing Sachchey to death and Bachchey to life imprisonment. The Allahabad High Court altered Sachchey's sentence to life and acquitted Bachchey, prompting appeals before the Supreme Court. The Supreme Court examined the reliability of PW‑2, described as a 'chance witness', and held that such a label does not render the testimony inadmissible. It also clarified that Exception 4 to s.300 IPC requires proof that the offender did not take undue advantage or act cruelly, which was absent, so the exception did not apply. Finally, the Court reiterated that appellate interference with an acquittal is permissible only on compelling reasons and found the High Court’s view to be a possible one, dismissing both appeals.

Issues considered

Whether the testimony of PW‑2, labelled a 'chance witness', is admissible and reliable.
Whether the facts of the case fall within Exception 4 to Section 300 of the Indian Penal Code, thereby reducing the offence from murder to culpable homicide not amounting to murder.
Whether the appellate court can interfere with the High Court's acquittal of Bachchey Lal Tiwari and the standards governing such interference.

Legislation cited

Indian Penal Code, 1860s. 300, s. 302, s. 34

Subjects

murderexception 4Indian Penal Codechance witnessappellate reviewacquittalundue advantageculpable homicide

Judgment

- SACHCHEY LAL TIWARI
v.
A
STATE OF UTTAR PRADESH

OCTOBER 6, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B

Penal Code, 1860:
'.·
s.300, Exception 4-Applicability of-Held, for application ofException C
4, besides establishing that there was a sudden quarrel and there was no
premeditation, it must be shown that offender has not taken undue advantage
or acted in a cruel or unusual manner-On facts, the exception has no
application to the case.

Criminal Law: D
Appeal against acquittal-Held, principle to be followed in such cases
is to interfere only when there are compelling and substantial reasons for
doing so-On facts, the view taken by High Court in acquitting the accused
is a possible view.
E
E·;idence:

'Chance witness '-Evidence of-Held, merely by describing an
independent witness as 'chance witness', it cannot be implied that his evidence
is suspicious and his presence at the scene doubtful.
F
Words and Phrases: 'Undue advantage'-Meaning of-Explained

Appellant in Criminal Appeal No. 270 of 2001(A-1) and respondent
no.I in Criminal Appeal No. 271 of 2001(A-2), the two brothers were
prosecuted for murder of two sons of the complainant. The prosecution
case was that on the date of occurrence, the two accused alongwith their G
sister's son 'P' were dismantling the demarcating line between their
agricultural field and that of the complainant. When the latter alongwith
his two sons reached there and asked the accused not to disturb the
demarcation, 'P' took out a pistol and handed it over to A-1 and then 'P'
and A-4 exhorted to kill the complainant party. Thereupon A-1 shot dead H
107
108 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A the two sons of the complainant. Besides the complainant (PW.1) and other
villagers, the incident was witnessed by PW.2, an inrlependent witness. The
-
trial court convicted A-1 under s.302 IPC and sentenced him to death. A-
2 was convicted under s.302 read with s.34 IPC and was awarded
imprisonment for life. The High Court altered the sentence of A-1 to life
imprisonment and acquitted A.2. Aggrieved, A-1 filed appeal against his
B conviction; whereas the State filed appeals challenging commutation of
sentence of A.1 and acquittal of A-2. The Court dismissed State's appeal
against commutation of sentence of A-1.

It was contended for A-1 inter-alia that PW.2 was a chance witness .:
c and as such, his testimony should not have been believed; and that, in any
event, the prosecution case only indicated that the occurrence took place
in the course of a sudden quarrel and in view of Exception 4 to s.300, the
case was not covered under s.302 IPC.

As regards acquittal of A-2, the State contended that on the self-same
D evidence A-1 was found guilty and no plausible reason was indicated to
discard the same for acquitting A-2.

Dismissing the appeals, the Court

HELD: 1. In a murder trial by describing an independent witness
E as 'chance witness' it cannot be implied that his evidence is suspicious and
his presence at the scene doubtful. PW.2, who has been described by the
accused to be a 'chance witness', was an independent witness and there
was not even a suggestion to the witness that he had any animosity towards
any of the accused. Besides, the expression 'cflance witness' is quite
F unsuitable in our country. (112-B, C, D]

2. For bringing Exception 4 to Section 300 IPC in operation it has to
be established that death is caused (a) without premeditation, (b) in a sudden
fight in the heat of passion upon a sudden quarrel; (c) without the offender's
having taken undue advantage or acted in a cruel or unusual manner; and
G (d) the fight must have been with the person killed. It is not sufficient to
show that there was a sudden quarrel and there was no premeditation. It
must further be shown that the offender has not taken undue advantage or -,

acted in cruel or unusual manner. The expression undue advantage' as used
in the provision means 'unfair advantage'. On facts, Exception 4 to s.300
has no application to the instant case. (113-C, E, F}
H
S.L. TIWARI v. STATEOFU.P. [PASAYAT.J.) 109

Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 5 Supreme A
223, relied on.

3. As regards the appeal by State against acquittal of A.2, the
principle to be followed in such cases is to interfere only when there are
compelling and substantial reasons for doing so. The golden thread which
runs through the web of administration of justice in criminal cases is that B
if two views are possible on the evidence adduced in tht: .:ase, one pointing
to the guilt of the accused and the other to his innocence, ~he view which
is favourable to the accused should be adopted. In the instant case, the
High Court analysed the evidence of PWs 1 and 2 to conclude against the
prosecution case with regard to alleged exhortation by A-2. The view taken C
by the High Court is a possible view. [113-G, H; 114-A, E; 114-C)

Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme
567; Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, AIR (1973)
SC 2622; Ramesh Babula/ Doshi v. State of Gujarat, (1996) 4 Supreme 167;
Jaswant Singh v. State of Haryana, (2000) 3 Supreme 320; Raj Kishore Jha D
v. State ofBihar and Ors., (2003) 7 Supreme 152; State of Punjab v. Karnai/
Singh, (2003) 5 Supreme 508; State ofPunjab v. Pohla Singh and Anr., (2003)
'!Supreme 17 and Suchand Pal v. Phani Pal and Anr., JT (2003) (9) SC 17,
relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. E
270 of 2001.

From the Judgment and Order dated 27.9.2000 of the Allahabad High
Court in Crl.A.No. 621 of 1999.

WITH F
Cr!. A. No. 271/2001.

Shiva Pujan Singh, for the Appellant in Cr!. A.No. 270/2001 and
Respondent in Cr\. A.No. 271/2001.
G
R.K. Singh and Jitendra Kumar Bhatia for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. These two appeals are inteilinked having their
foundation on a judgment of the Allahabad High Court. Appellant Sachchey H
110 SUPREME COURT REPORTS (2004) SUPP. 5 S.C.R.

A Lal Tiwari (in criminal appeal no. 270 of 2001) and Bachchey Lal Tiwari
(respondent no.I in criminal appeal no.271 of2001 filed by the State ofUttar
Pradesh) faced trial for alleged commission of offences punishable under
Section 302 and Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the '!PC'). Both were found guilty and accordingly convicted
B while death sentence was imposed on the former, life sentence was imposed
on the latter. Reference was made to the High Court for confirmation of the
death sentence and appeals were filed by the accused persons. By the impugned
judgment High Court altered the sentence to life sentence for the former and
directed acquittal of the latter.

C Facts giving rise to the prosecution of the two accused are that the
complainant Achhaiber Misra (PW-I) and both the accused are residents of
Village Ledupur within the circle of police station Samath district Varanasi
in Uttar Pradesh. The agricultural fields of the two .sides also adjoin each
other near the old brick kiln towards east and south of the village. The
ground level of the field of complainant Achhaiber Misra is slightly higher
D than the level of the plots of the appellants. On 3.11.1995 at about 6.45 A.M.,
the accused persons Sachchey Lal Tiwari and Bachchey Lal Tiwari sons of
Mahajan Tiwari and Pintoo grand- son of Mahajan Tiwari were dismantling
the demarcating line (Mend) between the fields of the complainant Achhaiber
Misra and the accused. The complainant Achhaiber Misra witnessed it and he
E along with his sons Vijai Shanker Misra and Surender Nath Misra (hereinafter
referred to as 'deceased' by their respective names) reached near the field
and asked the accused not to dismantle the demarcating line of the field.
There was exchange of hot words between the two sides. Pintoo grandson of
Mahajan Tiwari took out a pistol and handed it over to the accused Sachchey
Lal Tiwari and then Pintoo and Bachchey Lal Tiwari exhorted by saying that
F the complainant side should be killed. On it Sachchey Lal Tiwari, accused
fired with the pistol at deceased Vijai Misra and deceased Surender, as a
result of which both sustained fire arm injuries and die_d instantaneously on
the spot. The occurrence was witnessed by Prem Nath Misra, Rama Kant
Misra (PW-2) and other village persons and thereafter the two accused and
G Pintoo ran away from the scene of occurrence, leaving behind the dead
bodies. Complainant Achhaibet Misra went to the police station Samath in
district Varanasi and lodged a written report (Ex. Ka- I) there at about 8.15
A.M. On it G.D. entry was made at the police station and a case against the
appellants was registered. The Investigating Officer, S.I. Sri Sita Ram
Chaudhary (PW-6) reached the scene of occurrence. He inspected the site
H and prepared the site plan Ex. Ka-6. Thereafter he recorded the statements of
S.L. TIWARI v. STATE OF U.P. [PASAYAT, J.] 111

the witnesses and took the sample and blood stained earth from the scene of A
occurrence and also prepared the Panchayatnamas of the dead bodies. The
dead bodies were sent to District Hospital, Varanasi where post mortem
examination was conducted on 4. I l. I 995 vide post mortem reports Ext. Ka-
I 7 and Ka- I 8. After completing necessary formalities of investigation, charge-
sheet was submitted against the appellants who pleaded not guilty to the B
charges and claimed to be tried. The defence of the accused was that they
have been falsely implicated in this case due to previous enmity and ill-will.

In support of its case the prosecution examined seven witnesses in all.
Achhaiber Misra (PW-I), Rama Kant Misra (PW-2) were claimed to be eye
witnesses. The defence also examined Yagya Narain Misra (OW-I) and Prem C
Nath Misra (DW-2). The learned lower court scrutinized the entire evidence
on record, believed the prosecution theory, convicted the accused and sentenced
them as above. The High Court by the impugned judgment upheld conviction
of Sachchey Lal Tiwari but was of the view that life sentence was the proper
sentence. It held the evidence to be inadequate so far as accused Bachchey
Lal is concerned, and accordingly directed acquittal. D
Though the State of Uttar Pradesh had challenged alteration of sentence
in respect of accused Sachchey Lal, the same was dismissed by this Court by
order dated I9.2.2001. The appeal is limited to acquittal of Bachchey Lal.

Mr. Shiva Pujan Singh, learned counsel for the accused submitted that E
evidence of PWs I and 2 is unreliable. In any event, PW-2 is a chance
witness whose evidence should not have been believed. Even if prosecution
case is accepted in toto, it only shows that the occurrence took place in
course of a sudden quarrel and, therefore, Section 302 IPC has no application.

In response learned counsel for the State submitted that the evidence of F
PWs l and 2 have described the incident in detail and same have been held
to be cogent and credible. No infirmity has been noticed and the appellant
has not been able to show any infirmity except describing PW-2 as a chance
witness. The case is clearly covered under Secticm 302 IPC and Exception 4
to Section 300 IPC has no application. The cruel manner in which two persons G
have been brutally killed makes the said Exception non-applicable. In support
,-
of the appeal filed, it was submitted that on the selfsame evidence Sachchey
Lal has been found guilty. No plausible reason has been indicated to discard
it for acquitting Bachchey Lal. In response, Mr. Shiva Pujan Singh submitted
that High Court has found evidence of PWs I and 2 to be unreliable. The
H
112 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A judgment being one of acquittal and the view being a possible view, the
appeal deserves to be dismissed.

Coming to the plea of the accused that PW-2 was 'chance witness' who
has not explained how he happened to be at the alleged place of occurrence
it has to be noted that the said witness was independent witness. There was
B not even a suggestion to the witness that he had any animosity towards any
of the accused. In a murder trial by describing an independent witness as
'chance witness' it cannot be implied thereby that his evidence is suspicious
and his presence at the scene doubtful. Murders are not committed with
previous notice to witnesses; soliciting their presence. If murder is committed
C in a dwelling house, the inmates of the house are natural witnesses. If murder
is committed in a street, only passersby will be witnesses. Their evidence
cannot be brushed aside or viewed with suspicion on the ground that they are
mere 'chance witnesses'. The expression 'chance witness' is borrowed from
countries where every man's home is considered his castle and everyone.
must have an explanation for his presence elsewhere or in another man's
D castle. It is quite unsuitable an expression in a country where people are less
formal and more casual, at any rate in the matter explaining their presence.
The courts below have scanned the evidence of PW-2 in great detail and
found it to be reliable. We find no reason to differ.

For bringing in operation of Exception 4 to Section 300 IPC it has to
E be established that the act was committed without premeditation, in a sudden
fight in the heat of passion upon a sudden quarrel without the offender
having taken undue advantage and not having acted in a cruel or unusual
manner.

F The Fourth Exception of Section 300, IPC covers acts done in a sudden
fight. The said exception deals with a case of prosecution not covered by the
first exception, after which its place would have been more appropriate. The
exception is founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion
G which clouds men's sober reasons and urges them to deeds which they would
not otherwise do. There is provocation in Exception 4 as in Exception 1; but
the injury done is not the direct consequence of that provocation. In fact
Exception 4 deals with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the dispute or in
H whatever way the quarrel may have originated, yet the subsequent conduct of
S.L. TIWARI v. STATEOFU.P. [PASAYAT,J.] 113
both parties puts them in respect of guilt upon equal footing. A 'sudden fi~ht' A
implies mutual provocation and blows on each side. The homicide committed
is then clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for which B
both parties are more or less to be blamed. It may be that one of them starts
it, but if the other had not aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual provocation and aggravation,
and it is difficult to apportion the share of blame which attaches to each
fighter. The help of Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without the offender's having taken C
undue advantage or acted in a cruel or unusual manner; and (d) the fight must
have been with the person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be n1Jied 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 D.
themselves into a fury on account of the verbal altercation in the beginning.
A fight is a combat between two or more persons whether with or without
weapons. It is not possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact and whether a quarrel
is sudden or not must necessarily depend upon the proved facts of each case. E
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 offe~der has not taken undue advantage or acted in cruel or unusual
manner. The expression 'undue advantage' as used in the provision means
'unfair advantage'. These aspects have been highlighted in Dhirajbhai
Gorakhbhai Nayak v. State of Gujrat (2003) 5 Supreme 223. When the F
factual scenario is considered in the legal principles indicated above, the
inevitable conclusion is that Exception 4 to Section 300 IPC has no application
to the facts of the case. The appeal filed by Sachchey Lal is without merit.
Now comes appeal filed by the State.

There is no embargo on the appellate Court reviewing the evidence
G
upon which an order of acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption of innocence of the
accused is further strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the H
114 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The para111ount consideration of
the Court is to ensure that miscarriage of justice is prevented. A miscarriage
of justice which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. In a case where admissible evidence is ignored,
B a duty is cast upon the appellate Court to re-a_;Jpreciate the evidence where
the accused has been acquitted, for the purpose of ascertaining as to whether
any of the accused really committed any offence or not. [See Bhagwan Singh
and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme 567. The principle
to be followed by appellate Court considering the appeal against the judgment
of acquittal is to interfere only when there are compelling and substantial
C reasons for doing so. If the impugned judgment is clearly unreasonable and
relevant and convincing materials have been unjustifiably eliminated in the
process, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of
Maharashtra, AIR (1973) SC 2622, Ramesh Babula! Doshi v. State of Gujarat,
(1996) 4 Supreme 167, Jaswant Singh v. State of Haryana, (2000) 3 Supreme
D 320, Raj Kishore Jha v. State of Bihar and Ors., (2003) 7 Supreme 152, State
of Punjab v. Karnail Singh, (2003) 5 Supreme 508, State of Punjab v. Pohla
Singh and Anr., (2003) 7 Supreme 17 and Suchand Pal v. Phani Pal and
Anr., JT (2003) 9 SC 17.

E The High Court analysed the evidence of PWs 1 and 2 to conclude that
it would not have been possible for PW-2 to hear the exhortation as he was
at a distance. It is not the evidence that the exhortation was in a loud voice.
Evidence of PW-1 was vague about the exhortation. The view taken by the
High Court is a possible view.

F In that view of the matter we dismiss the State's appeal.

In the ultimate, both the appeals are dismissed.

R.P. Appeals dismissed.