Summary
Two accused were convicted under Section 302 read with Section 34 IPC for killing a man with a sickle and sword in Pune in 2001 after a late-night altercation; the Bombay High Court affirmed. They argued that the informant's presence was doubtful for want of a medical certificate and that at most Exception 4 to Section 300 applied. Dismissing the appeal, the Supreme Court held that the three eyewitnesses were reliable, that suggestions put by defence counsel in cross-examination whose answers incriminate the accused form part of the evidence and bind the accused, though they cannot substitute for the prosecution's burden, that the informant's immediate account to a rickshaw driver was admissible as res gestae, and that nine injuries inflicted with dangerous weapons on an unarmed, helpless victim excluded Exception 4.
Issues
- Whether answers given by prosecution witnesses to suggestions put by defence counsel in cross-examination can be relied upon against the accused.
- Whether the statement made by the injured informant to a bystander immediately after the assault is admissible as res gestae under Section 6 of the Evidence Act, 1872.
- Whether the killing fell within Exception 4 to Section 300 IPC as culpable homicide committed in a sudden fight without undue advantage or cruelty.
Provisions considered
- Section 300, clause thirdly and Exception 4; Section 302 read with Section 34, Indian Penal Code, 1860Nine injuries with a sickle and sword, including a stab through the chest sufficient in the ordinary course of nature to cause death, inflicted on an unarmed and helpless victim, amount to murder; even assuming a sudden fight, the accused took undue advantage and acted cruelly, so Exception 4 does not apply. (¶¶ 56, 57, 58, 59, 60, 61)
- Section 6, Indian Evidence Act, 1872The informant's statement to the rickshaw driver immediately after the assault, that he was injured and the deceased seriously hurt, was substantially contemporaneous with the incident and admissible as forming part of the same transaction. (¶¶ 46, 47, 48, 49, 50)
- Article 136, Constitution of IndiaThe Court does not interfere with concurrent findings of fact except where crying circumstances or proven facts are overlooked or well-established principles of criminal jurisprudence misapplied; no such ground existed. (¶¶ 30, 62)
Held
- Ocular evidence is to be assessed on whether it has a ring of truth as a whole, with due weight to the trial court's appreciation and without rejecting testimony for minor discrepancies; an injured eyewitness's presence cannot be doubted without material contradictions and his evidence carries greater weight. The three eyewitnesses here were consistent and reliable, as concurrently found. (¶¶ 25, 26, 27, 28)
- Suggestions put by defence counsel in cross-examination, where the answers incriminate the accused, form part of the evidence and bind the accused, who cannot plead that counsel lacked authority to make admissions; any admission of fact by defence counsel, other than a concession of law, binds the client. The suggestion that the informant was struck first on the head established his presence and the assault. Such answers cannot, however, relieve the prosecution of proving its case on its own legs, and counsel cannot by consent make inadmissible evidence admissible, as where the contents of a post-mortem report must be proved through the doctor. (¶¶ 33, 38, 39, 40, 41, 42, 44, 45)
- Exception 4 requires that death be caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, without undue advantage or cruel or unusual conduct, and the fight must be with the person killed; all ingredients must coexist. Infliction of nine blows with a sickle and sword, including a stab into the thoracic cavity, on an unarmed and helpless deceased amounts to undue advantage and cruelty, and under Virsa Singh the offence is murder under clause thirdly even without intention to cause death. (¶¶ 56, 57, 58, 59, 60, 61)
Result
Appeal dismissed; conviction under Section 302 read with Section 34 IPC and life sentence affirmed; bail bonds cancelled and both appellants directed to surrender before the trial court within two weeks to serve the sentence; pending applications disposed of.