Sections 366, 368/34 , Section 376(2)(g) , Section 307/34, Section 302/34 of the Indian Penal Code- Child Witness -Trial court convicted all accused under all counts - High court as regards appellant No.2 –Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan s/o Gobriya Bhil is partly allowed. their conviction u/s 376(2)(g) only is set aside.- objections - all the accused were not named in the FIR by Mohan (PW 1) and prosecutrix (PW 3) did not know the accused and learnt about their names only from their conversation. PW 6 was child witness and his testimony could not be accepted. - Apex court held that Though in the FIR only Gul Singh was named, in the statement of Sunder Lal (PW 6) to the police all other accused were immediately named . It is well settled that evidence of child witness cannot be rejected unless the same is tutored or unless the same is unreliable. In the present case not only the evidence of the child witness is reliable and not tutored, it is corroborated by other testimony. The complainant and prosecutrix have no axe to grind against the accused persons. The accused had the motive to kidnap Parubai and they trespassed into her house armed with various weapons and caused death of one family member and caused injuries to other family members and abducted the prosecutrix who was recovered after 4-5 days. All the accused have thus been rightly convicted and sentenced and as such dismissed the appeals = CRIMINAL APPEAL NO.667 of 2011 GUL SINGH @ GULIYA & ORS. ..... APPELLANTS VERSUS STATE OF M.P. & ANR. ..... RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41927

Sections 366, 368/34 , Section 376(2)(g) , Section 307/34, Section 302/34 of the Indian Penal Code- Child Witness -Trial court convicted all accused under all counts - High court  as  regards  appellant  No.2  –Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan  s/o Gobriya Bhil is partly allowed. their conviction u/s 376(2)(g) only is set aside.- objections - all  the  accused were not named in the FIR by Mohan (PW 1) and prosecutrix  (PW  3)  did  not know the accused and learnt about their names only from their  conversation.  PW 6 was child witness and his testimony could not be accepted. - Apex court held that Though in the FIR only Gul  Singh  was named, in the statement of Sunder  Lal  (PW  6)  to  the  police  all  other accused were immediately named . It is well settled that evidence of child witness cannot be rejected  unless the same is tutored or unless the same is unreliable. In the present case not only the evidence of the child witness  is  reliable and not tutored, it is corroborated by  other  testimony.   The  complainant and prosecutrix have no axe to  grind  against  the  accused  persons.   The accused had the motive to kidnap Parubai and they trespassed into her  house armed with various weapons and caused death of one family member and  caused injuries to other family  members  and  abducted  the  prosecutrix  who  was recovered after 4-5 days.  All the accused have thus been rightly  convicted and sentenced and as such dismissed the appeals =

 “The appellants have preferred this appeal against the judgment  dated
07/10/1999 of the Vth Additional Sessions Judge, Indore, passed  in  Session
Trial  No.331/1998  by  which  the  appellants  have  been  convicted  under
Sections 366, 368 read with Section 34 of the Indian Penal Code to  rigorous
imprisonment for ten yeas and fine of Rs.1,000/-, in default of  payment  of
fine to rigorous imprisonment of six months, under Section 376(2)(g) of  the
IPC to rigorous imprisonment for ten years and fine of Rs.1000/- in  default
of payment of fine to further rigorous imprisonment  for  six  months  under
Section 302/34 to imprisonment for life and fine of Rs.1,000/-,  in  default
of payment of fine to further rigorous imprisonment  for  six  months;  and,
under Section 307/34 to rigorous imprisonment for five  years  and  fine  of
Rs.500/-, in default of payment of fine to rigorous imprisonment  for  three
months.   All  the  substantive  sentences  have  been   directed   to   run
concurrently.

The operative portion of the High Court judgment is as follows:

      ……The Appeal of Gul Singh @ Guliya is  dismissed  and  his  conviction
and  the  sentence  passed  against  him  are  maintained  except  that  his
conviction u/s 376 (2)(g) is altered  to  Sec.  376(1)  and  the  punishment
awarded thereunder is maintained; the appeal as  regards  appellant  No.2  –
Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan  s/o
Gobriya Bhil is partly allowed.  While their  conviction  u/s  366,  368/34,
302/34 and 307/34 and the sentence awarded thereunder are maintained,  their
conviction u/s 376(2)(g) is set aside.”=
Though in the FIR only Gul  Singh  was
named, in the statement of Sunder  Lal  (PW  6)  to  the  police  all  other
accused were immediately named.=
Learned counsel for the appellants  submitted  that  all  the  accused
were not named in the FIR by Mohan (PW 1) and prosecutrix  (PW  3)  did  not
know the accused and learnt about their names only from their  conversation.
 PW 6 was child witness and his testimony could not be accepted.=
We have carefully perused the record and find no reason  to  interfere
with  the  findings  recorded  by  the  courts  below  with  regard  to  the
conviction of the appellants for the murder  of  Mishribai  and  also  other
offences and also for the offence of rape committed by Gul Singh.   We  find
the evidence of Mohan (PW 1),  Sunder  Lal  (PW  6),  Setulbai  (PW  5)  and
prosecutrix (PW 3) to be credible.  The evidence of Sunder Lal  (PW  6)  who
is said  to  be  15-16  years  of  age,  also  inspires  confidence  and  is
corroborated by other evidence on record, particularly the evidence  of  the
prosecutrix.
It is well settled that evidence of child witness cannot be rejected  unless
the same is tutored or unless the same is unreliable. =
There is no rule or practice that in every  case  the  evidence  of
such a witness be corroborated before a conviction can be allowed  to  stand
but, however as a rule of prudence the court always finds  it  desirable  to
have the corroboration to such evidence from other  dependable  evidence  on
record.=
In the present case not only the evidence of the child witness  is  reliable
and not tutored, it is corroborated by  other  testimony.   The  complainant
and prosecutrix have no axe to  grind  against  the  accused  persons.   The
accused had the motive to kidnap Parubai and they trespassed into her  house
armed with various weapons and caused death of one family member and  caused
injuries to other family  members  and  abducted  the  prosecutrix  who  was
recovered after 4-5 days.  All the accused have thus been rightly  convicted
and sentenced.
13.   Accordingly, we do not find any ground to interfere.   The  appeal  is
dismissed.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41927

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.667 of 2011


GUL SINGH   @ GULIYA & ORS.            ..... APPELLANTS

                                   VERSUS

STATE OF M.P. & ANR.                                     ..... RESPONDENTS

                               J U D G M E N T



ADARSH KUMAR GOEL, J.

1.    This appeal has been preferred against the conviction and sentence  of
the appellants under Section 302/34 of the Indian Penal Code (IPC)  for  the
murder of Mishribai for which they  stand  sentenced  to  life  imprisonment
apart from conviction and sentence of appellant  Gul  Singh  @  Gulia  under
Section 376  IPC   and  conviction  of  appellants  for  other  offences  as
appearing from the operative part of the order of the trial  Court  and  the
High Court which is clear from the impugned Judgment of the  High  Court  as
follows :
      “The appellants have preferred this appeal against the judgment  dated
07/10/1999 of the Vth Additional Sessions Judge, Indore, passed  in  Session
Trial  No.331/1998  by  which  the  appellants  have  been  convicted  under
Sections 366, 368 read with Section 34 of the Indian Penal Code to  rigorous
imprisonment for ten yeas and fine of Rs.1,000/-, in default of  payment  of
fine to rigorous imprisonment of six months, under Section 376(2)(g) of  the
IPC to rigorous imprisonment for ten years and fine of Rs.1000/- in  default
of payment of fine to further rigorous imprisonment  for  six  months  under
Section 302/34 to imprisonment for life and fine of Rs.1,000/-,  in  default
of payment of fine to further rigorous imprisonment  for  six  months;  and,
under Section 307/34 to rigorous imprisonment for five  years  and  fine  of
Rs.500/-, in default of payment of fine to rigorous imprisonment  for  three
months.   All  the  substantive  sentences  have  been   directed   to   run
concurrently.

The operative portion of the High Court judgment is as follows:

      ……The Appeal of Gul Singh @ Guliya is  dismissed  and  his  conviction
and  the  sentence  passed  against  him  are  maintained  except  that  his
conviction u/s 376 (2)(g) is altered  to  Sec.  376(1)  and  the  punishment
awarded thereunder is maintained; the appeal as  regards  appellant  No.2  –
Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan  s/o
Gobriya Bhil is partly allowed.  While their  conviction  u/s  366,  368/34,
302/34 and 307/34 and the sentence awarded thereunder are maintained,  their
conviction u/s 376(2)(g) is set aside.”

2.    Case of the prosecution is that on the  night  intervening        24th
/25th of May, 1998, while Girdhari had gone to the farm of his employer  for
driving the Tractor and other family members were asleep in  his  house,  at
02.00 mid-night, the accused persons with a view to kidnap Parubai  (PW  3),
arrived, armed with  weapons  like  Dharia,  Falia  and  Lathi  and  started
assaulting Setulbai, Mishribai, Mohan and Sunderlal.  As  a  result  of  the
deadly assault, Mishribai succumbed to the injuries on the  spot,  Sunderlal
(PW 6) sustained a fracture in his hand, Mohan (PW 1)  sustained  injury  on
his head and both shoulders and Setulbai (PW 5) also sustained  two  incised
wounds and two lacerated wounds,.  Thereafter the  accused  persons  dragged
away Parubai (PW 3).  Later, she was subjected to rape.
3.    Accordingly, First Information Report (FIR) was lodged by  Mohan   (PW
1) and the accused were apprehended.  Though in the FIR only Gul  Singh  was
named, in the statement of Sunder  Lal  (PW  6)  to  the  police  all  other
accused were immediately named. After investigation, the  accused  was  sent
up for trial.
4.    A post mortem was conducted on the body of  Mishribai  and  the  death
was found to be homicidal with following injuries :
“(1 )Incised wound on the forehead to nose on right side 2” x ½”   x  muscle
deep;
(2)   Incised wound on the face over the upper lip 1” x   ½”  x  cutting  of
the lip;
(3)   Incised wound on the chin 2” x ½” x bone deep;
(4)   Penetrating wound on the right side of neck  1”  x  ½”  x  1”  cutting
carotid artery.”

5.    Injured Mohan (PW 1) was found to be having following injuries :
“(1) Incised wound extending from neck to right shoulder to the left 15 x  1
cm x ?
 (2) Incised wound over right ear extending to the skull 8 cm x 1 cm x ?
(3)    Incised wound 2 cm  x  ½ cm x ? anterior to the left ear;
(4)    Incised wound 2 cm x 1 cm x ? on occipital region;
(5)    Incised wound 3 cm x 1 cm x ? over the occipital region;
(6)    Incised wound  4 cm x 1 cm x ? over the occipital region.”

6.    Parubai (PW 3) had following injuries :
“(1) Swelling on right temporal, chin margins tender; size 1” x 1”
 (2)   Abrasion with swelling anterior left side of knee 1” x 1”;

On internal examination there was an older tear of hymen 10,  6,  1  O’clock
margins tender in the region and vaginal  slide  was  prepared  for  further
investigation.”

7.     Fracture  was  also  found  on  the  hand  of  Sunder  Lal  (PW   6).
Prosecutrix was recovered by the police after  4-5  days  of  the  incident.
She was also medically examined by Dr. Alka Verma
(PW 18) who found an injury on the right  side  of  her  head  which  was  a
contusion 1” x 1”.   She  was  complaining  of  pain.   There  was  also  an
abrasion on the left side of the knee measuring 1” x 1”  and  swelling.   In
her internal examination, she found that her hymen was torn at 1, 6  and  10
O’clock position and the vulva had signs  of  injuries,  but  there  was  no
tenderness.  She, therefore, opined that  though  there  was  evidence  that
sexual intercourse had taken place with the prosecutrix,  it  could  not  be
stated with any exactitude whether she was subjected to recent  intercourse.

8.    Considering the evidence of injured  witnesses,  Sunder  Lal  (PW  6),
Mohan (PW 1),  Setulbai (PW 5) and Parubai (PW 3)  and  other  corroborating
evidence, the courts below have convicted and sentenced the appellants.
9.    We have heard learned counsel for the parties.
10.   Learned counsel for the appellants  submitted  that  all  the  accused
were not named in the FIR by Mohan (PW 1) and prosecutrix  (PW  3)  did  not
know the accused and learnt about their names only from their  conversation.
 PW 6 was child witness and his testimony could not be accepted.
11.   Learned counsel for the State supported the  conviction  and  sentence
of all the appellants.
12.   We have carefully perused the record and find no reason  to  interfere
with  the  findings  recorded  by  the  courts  below  with  regard  to  the
conviction of the appellants for the murder  of  Mishribai  and  also  other
offences and also for the offence of rape committed by Gul Singh.   We  find
the evidence of Mohan (PW 1),  Sunder  Lal  (PW  6),  Setulbai  (PW  5)  and
prosecutrix (PW 3) to be credible.  The evidence of Sunder Lal  (PW  6)  who
is said  to  be  15-16  years  of  age,  also  inspires  confidence  and  is
corroborated by other evidence on record, particularly the evidence  of  the
prosecutrix.
It is well settled that evidence of child witness cannot be rejected  unless
the same is tutored or unless the same is unreliable. In  Prakash  and  Anr.
vs. State of Madhya Pradesh[1], it was observed :

“11………..We do not think that a boy of about 14 years of age  cannot  give  a
proper account of the murder of  his  brother  if  he  has  an  occasion  to
witness the same and simply because the witness was a boy  of  14  years  it
will not be proper to assume that he is likely to be tutored.”

Again, in Dattu Ramrao Sakhare and Ors. vs. State of Maharashtra[2], it  was
observed :

“5. …….A child witness if  found  competent  to  depose  to  the  facts  and
reliable one such evidence could be the basis of 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  questions  and  able  to  give  rational  answers
thereof. The evidence of a  child  witness  and  credibility  thereof  would
depend 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
tutored. There is no rule or practice that in every  case  the  evidence  of
such a witness be corroborated before a conviction can be allowed  to  stand
but, however as a rule of prudence the court always finds  it  desirable  to
have the corroboration to such evidence from other  dependable  evidence  on
record. In the light of  this  well-settled  principle  we  may  proceed  to
consider the evidence of Sarubai (PW 2).”

In the present case not only the evidence of the child witness  is  reliable
and not tutored, it is corroborated by  other  testimony.   The  complainant
and prosecutrix have no axe to  grind  against  the  accused  persons.   The
accused had the motive to kidnap Parubai and they trespassed into her  house
armed with various weapons and caused death of one family member and  caused
injuries to other family  members  and  abducted  the  prosecutrix  who  was
recovered after 4-5 days.  All the accused have thus been rightly  convicted
and sentenced.
13.   Accordingly, we do not find any ground to interfere.   The  appeal  is
dismissed.

                                                              …………………………….J.
                                                         [ V. GOPALA GOWDA ]

                                                            ………………………………..J.
NEW DELHI                            [ ADARSH KUMAR GOEL ]
September  16 , 2014
ITEM NO.1D-For Judgment   COURT NO.14               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  667/2011

GUL SINGH @ GULIYA & ORS.                          Appellant(s)

                                VERSUS

STATE OF M.P. & ANR.                               Respondent(s)


Date : 16/09/2014 This appeal was called on for JUDGMENT today.


For Appellant(s)
                     Mr. V. Ramasubramanian,Adv.
                     Mr. A. Lakshminarayanan, Adv.

For Respondent(s)
                     Mr. C. D. Singh,Adv.
                     Ms. Sakshi Kakkar, Adv.

            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            The appeal is dismissed in terms of the signed order.


    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable judgment is placed on the file)
-----------------------
[1]    (1992) 4 SCC 225
[2]    (1997) 5 SCC 341

Sec.450 and 376 IPC - Trial court convicted - High court confirmed the same - another accused was acquitted as the Victim not supported the case of prosecution - Apex court held that absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused. Accordingly, we allow this appeal, set aside the conviction of the appellant and acquit him of the charge.=CRIMINAL APPEAL NO.2358 of 2010 MUNNA ... APPELLANT VERSUS STATE OF M.P. ... RESPONDENT = 2014- Sept. Month - http://judis.nic.in/supremecourt/filename=41926

Sec.450 and 376 IPC - Trial court convicted - High court confirmed the same - another accused was acquitted as the Victim not supported the case of prosecution - Apex court held that absence of injuries or absence of raising alarm  or  delay in FIR may not by itself be enough to disbelieve the version of  prosecutrix in view of the statutory presumption under Section 114A of the Evidence  Act but if such statement has inherent infirmities,  creating  doubt  about  its veracity, the same  may  not  be  acted  upon.   We  are  conscious  of  the sensitivity with which heinous offence under Section  376,  IPC  has  to  be treated but in the present case the circumstances taken as  a  whole  create doubt about the correctness of the prosecution version.  We  are,  thus,  of the opinion that a case is made out for  giving  benefit  of  doubt  to  the accused. Accordingly, we allow this appeal, set aside  the  conviction  of  the appellant and acquit him of the charge.=

against the conviction and sentence  of
the appellant for offences under Sections 450 and 376 of  the  Indian  Penal
Code (IPC) for which the appellant  stands  sentenced  to  undergo  rigorous
imprisonment for seven years under both heads but the sentences are  to  run
concurrently, apart from being sentenced to pay fine.=

 as per FIR is that on 19th April, 1993,   when
the prosecutrix (PW  1)  was  sleeping  in  her  house  at  1.00  A.M.,  the
appellant along with co-accused  Sahab Singh @ Mutta entered  the  house  of
the prosecutrix and both of them committed rape on the prosecutrix and  then
fled away.  
They were carrying knife which was shown to the  prosecutrix  to
threaten her if she raised alarm.  
The prosecutrix narrated the incident  to
her husband and lodged First Information Report at  the  Police  Station  on
the next day.  After investigation both the accused were sent up for  trial.

The prosecutrix did not support the version against co-accused Sahab  Singh
@ Mutta.  Accordingly, he was acquitted by the  trial  Court. 
 Relying  upon
her version supported by her husband      Balkishan (PW  2)
and Kotwar of the village Manaklal (PW 3), the  trial  Court  convicted  and
sentenced the appellant which has been confirmed by the High Court. =
 The
discrepancies pointed out are as follows :
(i)   Though initially, two persons were named and it was alleged that  both
threatened  the  prosecutrix  with  a  knife,   version  at  the  trial  was
different and only the appellant has been named.
(ii)  The prosecutrix gave affidavit  dated  23th  April,  1993  three  days
after the lodging of the FIR, disowning  the  version  and  exonerating  the
appellant.  The said affidavit was duly acted upon by the  trial  Court,  as
the prosecutrix  appeared  in  Court  and  supported  the  contents  of  the
affidavit, for granting the accused anticipatory bail vide Order dated  29th
April, 1993.  The order of anticipatory bail reads as under:
“Affidavit of the complainant perused.  According  to  which  Village  Patel
Shiv Kumar had put pressure upon the complainant  and  got  a  false  report
registered.   Additional  Public  Prosecutor  has  not  objected  the   bail
application.

Bail of accused Mutta is already granted on this ground hence  this  accused
is also being granted benefit of bail and it is  ordered  that  if  in  this
case applicant is arrested then he  should  be  released  on  bail  bond  of
Rs.5,000/- and surety.”

(iii) PW 3 has admitted that husband of the prosecutrix had enmity with  the
appellant.  The medical report inter alia read as follows :
“………..No signs of injury anywhere……….  One cream color  petticoat  on  which
there no stains of looking like Semenal stains present……..”

(iv)  The statement of the prosecutrix has also contradictions,  as  at  one
place she states that she had seen the accused only  when  he  was  escaping
and not before, while at the other place she  gave  a  different  statement.
Similarly her husband PW  2  has  contradicted  the  prosecutrix  about  the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when  he  opened  the
door while according to prosecutrix the accused had ran away before  arrival
of her husband.
5.    We find that the above discrepancies are supported by the record.=

 Thus, while absence of injuries or absence of raising alarm  or  delay
in FIR may not by itself be enough to disbelieve the version of  prosecutrix
in view of the statutory presumption under Section 114A of the Evidence  Act
but if such statement has inherent infirmities,  creating  doubt  about  its
veracity, the same  may  not  be  acted  upon.  
We  are  conscious  of  the
sensitivity with which heinous offence under Section  376,  IPC  has  to  be
treated but in the present case the circumstances taken as  a  whole  create
doubt about the correctness of the prosecution version.
We  are,  thus,  of
the opinion that a case is made out for  giving  benefit  of  doubt  to  the
accused.

8.    Accordingly, we allow this appeal, set aside  the  conviction  of  the
appellant and acquit him of the charge.

 2014- Sept. Month - http://judis.nic.in/supremecourt/filename=41926

                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2358 of 2010


MUNNA                                           ... APPELLANT

                                   VERSUS

STATE OF M.P.                                            ... RESPONDENT

                               J U D G M E N T



ADARSH KUMAR GOEL, J.

1.    This appeal has been preferred against the conviction and sentence  of
the appellant for offences under Sections 450 and 376 of  the  Indian  Penal
Code (IPC) for which the appellant  stands  sentenced  to  undergo  rigorous
imprisonment for seven years under both heads but the sentences are  to  run
concurrently, apart from being sentenced to pay fine.
2.    Case of the prosecution as per FIR is that on 19th April, 1993,   when
the prosecutrix (PW  1)  was  sleeping  in  her  house  at  1.00  A.M.,  the
appellant along with co-accused  Sahab Singh @ Mutta entered  the  house  of
the prosecutrix and both of them committed rape on the prosecutrix and  then
fled away.  They were carrying knife which was shown to the  prosecutrix  to
threaten her if she raised alarm.  The prosecutrix narrated the incident  to
her husband and lodged First Information Report at  the  Police  Station  on
the next day.  After investigation both the accused were sent up for  trial.
 The prosecutrix did not support the version against co-accused Sahab  Singh
@ Mutta.  Accordingly, he was acquitted by the  trial  Court.  Relying  upon
her version supported by her husband                       Balkishan (PW  2)
and Kotwar of the village Manaklal (PW 3), the  trial  Court  convicted  and
sentenced the appellant which has been confirmed by the High Court.
3.    We have heard learned counsel for the parties.
4.    Learned counsel for the appellant has  pointed  out  that   there  are
major discrepancies in the version of the  prosecution  which  create  doubt
about the veracity of the  prosecution  case  against  the  appellant.   The
discrepancies pointed out are as follows :
(i)   Though initially, two persons were named and it was alleged that  both
threatened  the  prosecutrix  with  a  knife,   version  at  the  trial  was
different and only the appellant has been named.
(ii)  The prosecutrix gave affidavit  dated  23th  April,  1993  three  days
after the lodging of the FIR, disowning  the  version  and  exonerating  the
appellant.  The said affidavit was duly acted upon by the  trial  Court,  as
the prosecutrix  appeared  in  Court  and  supported  the  contents  of  the
affidavit, for granting the accused anticipatory bail vide Order dated  29th
April, 1993.  The order of anticipatory bail reads as under:
“Affidavit of the complainant perused.  According  to  which  Village  Patel
Shiv Kumar had put pressure upon the complainant  and  got  a  false  report
registered.   Additional  Public  Prosecutor  has  not  objected  the   bail
application.

Bail of accused Mutta is already granted on this ground hence  this  accused
is also being granted benefit of bail and it is  ordered  that  if  in  this
case applicant is arrested then he  should  be  released  on  bail  bond  of
Rs.5,000/- and surety.”

(iii) PW 3 has admitted that husband of the prosecutrix had enmity with  the
appellant.  The medical report inter alia read as follows :
“………..No signs of injury anywhere……….  One cream color  petticoat  on  which
there no stains of looking like Semenal stains present……..”

(iv)  The statement of the prosecutrix has also contradictions,  as  at  one
place she states that she had seen the accused only  when  he  was  escaping
and not before, while at the other place she  gave  a  different  statement.
Similarly her husband PW  2  has  contradicted  the  prosecutrix  about  the
presence of the accused when PW 2 arrived. According to
PW 2, accused was still at the house and ran away only when  he  opened  the
door while according to prosecutrix the accused had ran away before  arrival
of her husband.
5.    We find that the above discrepancies are supported by the record.
6.    We are conscious that testimony of the prosecutrix is  almost  at  par
with an injured witness and can be acted upon without corroboration as  held
in various decisions of this Court.  Reference may be made to  some  of  the
leading judgments.
In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat.[1], this  Court  held
as under :
“9.   In the Indian setting, refusal to act on the testimony of a victim  of
sexual assault in the absence of corroboration as a rule, is  adding  insult
to injury. Why should the evidence of the girl or the  woman  who  complains
of rape or sexual molestation be viewed with the aid  of  spectacles  fitted
with lenses tinged with doubt, disbelief  or  suspicion?  To  do  so  is  to
justify the charge of male chauvinism in a male dominated society.  We  must
analyze the argument in support of the need for  corroboration  and  subject
it to relentless and remorseless cross-examination. And we must do  so  with
a logical, and not an opinionated, eye in the light  of  probabilities  with
our feet firmly planted on the soil of India and with our eyes  focussed  on
the Indian horizon. We must not be swept off the feet by the  approach  made
in the western world which has its own social milieu, its own social  mores,
its own permissive values, and its own code of life.  Corroboration  may  be
considered essential to establish a sexual offence in the  backdrop  of  the
social ecology of the western world. It is wholly unnecessary to import  the
said concept on a turnkey basis and to transplant  it  on  the  Indian  soil
regardless  of  the  altogether  different  atmosphere,  attitudes,   mores,
responses of the Indian society, and its profile. The identities of the  two
worlds  are  different.  The  solution  of  problems  cannot  therefore   be
identical.

10.  Without the fear of making too wide a statement, or of overstating  the
case, it can be said that rarely will a girl or a woman in India make  false
allegations of sexual assault …….. The statement is generally  true  in  the
context of the urban as also rural society. It is also by and large true  in
the context of the sophisticated, not so sophisticated, and  unsophisticated
society. Only very rarely can one conceivably come across  an  exception  or
two and that too possibly from amongst the urban elites. Because (1) A  girl
or a woman in the tradition-bound non-permissive society of India  would  be
extremely reluctant even to admit that  any  incident  which  is  likely  to
reflect on her chastity had ever occurred. (2) She  would  be  conscious  of
the danger of being ostracized by the society or being looked  down  by  the
society including  by  her  own  family  members,  relatives,  friends,  and
neighbours. (3) She would have to brave the whole world. (4) She would  face
the risk of losing the  love  and  respect  of  her  own  husband  and  near
relatives, and of her matrimonial home and happiness  being  shattered.  (5)
If she is unmarried, she would apprehend  that  it  would  be  difficult  to
secure an alliance with a [pic]suitable  match  from  a  respectable  or  an
acceptable family. (6) It would  almost  inevitably  and  almost  invariably
result in mental torture and suffering to herself. (7)  The  fear  of  being
taunted by others will always  haunt  her.  (8)  She  would  feel  extremely
embarassed in relating  the  incident  to  others  being  overpowered  by  a
feeling of shame on account of the upbringing in a  tradition-bound  society
where by and large sex is taboo. (9) The natural  inclination  would  be  to
avoid giving publicity to the incident  lest  the  family  name  and  family
honour is brought into controversy. (10) The parents of  an  unmarried  girl
as also the husband and members of the husband’s family of a married  woman,
would also more often than not, want to avoid publicity on  account  of  the
fear of social stigma on the family name and family honour.  (11)  The  fear
of the victim herself being considered to be  promiscuous  or  in  some  way
responsible  for  the  incident  regardless  of  her  innocence.  (12)   The
reluctance to face interrogation by the investigating agency,  to  face  the
court, to face the cross-examination by counsel for  the  culprit,  and  the
risk of being disbelieved, acts as a deterrent.”

In State of Maharashtra vs. Chandraprakash Kewalchand  Jain[2], this Court
held as under :
“15. It is necessary at the outset to state what the approach of  the  court
should be  while  evaluating  the  prosecution  evidence,  particularly  the
evidence of the prosecutrix, in sex  offences.  Is  it  essential  that  the
evidence of the prosecutrix should be corroborated in  material  particulars
before the court bases a conviction on her testimony  ?  Does  the  rule  of
prudence demand that in all cases save the rarest of rare the  court  should
look for corroboration before acting on the evidence of  the  prosecutrix  ?
Let us see if the Evidence Act provides the clue.  Under  the  said  statute
‘Evidence’ means and includes all statements  which  the  court  permits  or
requires to be made before it by witnesses, in relation to  the  matters  of
fact under inquiry. Under Section 59  all  facts,  except  the  contents  of
documents, may be proved by oral evidence. Section 118  then  tells  us  who
may give oral evidence. According to that section all persons are  competent
to  testify  unless  the  court  considers  that  they  are  prevented  from
understanding the questions put to them, or from giving rational answers  to
those questions, by tender years, extreme old age, disease, whether of  body
or mind, or any other cause of the  same  kind.  Even  in  the  case  of  an
accomplice Section 133  provides  that  he  shall  be  a  competent  witness
against an accused person; and a conviction is not  illegal  merely  because
it proceeds upon the uncorroborated testimony  of  an  accomplice.  However,
illustration (b) to Section 114, which lays down a rule  of  practice,  says
that the court ‘may’ presume that an accomplice is [pic]unworthy of  credit,
unless he is corroborated in material particulars. Thus under  Section  133,
which lays down a rule of law, an accomplice is a competent  witness  and  a
conviction based solely  on  his  uncorroborated  evidence  is  not  illegal
although in view of Section 114,  illustration  (b),  courts  do  not  as  a
matter  of  practice  do  so  and  look  for   corroboration   in   material
particulars.  This  is  the  conjoint  effect  of  Sections  133  and   114,
illustration (b).

16. A prosecutrix of a sex offence cannot be put on par with an  accomplice.
She is in fact a victim of the crime. The Evidence  Act  nowhere  says  that
her evidence cannot be  accepted  unless  it  is  corroborated  in  material
particulars. She is undoubtedly a competent witness under  Section  118  and
her evidence must receive the same weight as is attached to  an  injured  in
cases of physical violence. The same degree of care and caution must  attach
in the evaluation of her evidence as in the case of an  injured  complainant
or witness and no more. What is necessary is that the court  must  be  alive
to and conscious of the fact that it is  dealing  with  the  evidence  of  a
person who is interested in the outcome of the charge levelled  by  her.  If
the court keeps this in mind and feels satisfied that  it  can  act  on  the
evidence  of  the  prosecutrix,  there  is  no  rule  of  law  or   practice
incorporated in the Evidence Act similar to illustration (b) to Section  114
which requires it to look for corroboration. If for some  reason  the  court
is hesitant to place implicit reliance on the testimony of  the  prosecutrix
it may look for evidence which may lend assurance to her testimony short  of
corroboration required in the case of an accomplice. The nature of  evidence
required to  lend  assurance  to  the  testimony  of  the  prosecutrix  must
necessarily depend on the facts and circumstances of each  case.  But  if  a
prosecutrix is an adult and of full understanding the court is  entitled  to
base a conviction on her evidence unless the same is shown to be infirm  and
not trustworthy. If the totality  of  the  circumstances  appearing  on  the
record of the case disclose that the prosecutrix  does  not  have  a  strong
motive to falsely involve the person charged, the  court  should  ordinarily
have no hesitation in accepting her evidence. We have, therefore,  no  doubt
in our minds that ordinarily the evidence of  a  prosecutrix  who  does  not
lack understanding must be accepted. The degree of proof required  must  not
be higher than is expected of an injured witness. For the above  reasons  we
think that exception has rightly been taken to  the  approach  of  the  High
Court as is reflected in the following passage:
“It is only in the rarest  of  rare  cases  if  the  court  finds  that  the
testimony of the prosecutrix is so trustworthy, truthful and  reliable  that
other corroboration may not be necessary.”
With respect, the law is not correctly stated. If we may say so, it is  just
the reverse. Ordinarily the evidence of a prosecutrix must  carry  the  same
weight as is attached to an injured person who  is  a  victim  of  violence,
unless there are special circumstances which call for  greater  caution,  in
[pic]which case it would be safe  to  act  on  her  testimony  if  there  is
independent evidence lending assurance to her accusation.

17. We think it proper, having regard to the increase in the number  of  sex
violation cases in the recent past, particularly cases  of  molestation  and
rape in custody, to remove the notion, if it persists,  that  the  testimony
of  a  woman  who  is  a  victim  of  sexual  violence  must  ordinarily  be
corroborated in material particulars except in the rarest of rare cases.  To
insist on corroboration except in the rarest of rare cases is  to  equate  a
woman who is a victim of the lust of another with an accomplice to  a  crime
and thereby insult womanhood. It would be adding insult to injury to tell  a
woman that her story of woe will not be believed unless it  is  corroborated
in material particulars as in the case of an accomplice to a crime. Ours  is
a conservative society where it concerns sexual behaviour.  Ours  is  not  a
permissive society as in some of the western  and  European  countries.  Our
standard of decency and morality in public life is not the same as in  those
countries. It is, however, unfortunate that respect  for  womanhood  in  our
country is on the decline and cases of molestation  and  rape  are  steadily
growing. An Indian woman is now required to suffer indignities in  different
forms, from lewd remarks to eve-teasing, from molestation to  rape.  Decency
and morality in public life can be promoted and protected only  if  we  deal
strictly with those who violate the societal norms. The  standard  of  proof
to be expected by the court in such cases must take into  account  the  fact
that such crimes are generally committed on the sly and very  rarely  direct
evidence of a person other than the prosecutrix is  available.  Courts  must
also realise that ordinarily a woman, more so a young girl, will  not  stake
her reputation by levelling a false charge concerning her chastity.”

Similar observations were made in State of Punjab vs. Gurmit Singh[3], as
under :
      “……………The courts must, while evaluating evidence, remain alive to  the
fact that in a case of rape, no self-respecting woman would come forward  in
a court just to make a humiliating statement against her honour such  as  is
involved in the commission  of  rape  on  her.  In  cases  involving  sexual
molestation, supposed considerations which have no material  effect  on  the
veracity of the prosecution case or even discrepancies in the  statement  of
the prosecutrix should not, unless the discrepancies are such which  are  of
fatal nature, be allowed to throw  out  an  otherwise  reliable  prosecution
case. [pic]The inherent bashfulness of  the  females  and  the  tendency  to
conceal outrage of sexual aggression are factors  which  the  courts  should
not overlook. The testimony of the victim in such cases is vital and  unless
there are compelling reasons which necessitate looking for corroboration  of
her statement, the courts should find no difficulty to act on the  testimony
of a victim of  sexual  assault  alone  to  convict  an  accused  where  her
testimony  inspires  confidence  and  is  found  to  be  reliable.   Seeking
corroboration of her statement before relying upon the same, as a  rule,  in
such cases amounts to adding insult to injury. Why should the evidence of  a
girl or a woman who complains of rape or sexual molestation, be viewed  with
doubt, disbelief or suspicion? The court while appreciating the evidence  of
a prosecutrix may look for some assurance of her statement  to  satisfy  its
judicial conscience, since she  is  a  witness  who  is  interested  in  the
outcome of the charge levelled by her, but there is no  requirement  of  law
to insist upon corroboration of her  statement  to  base  conviction  of  an
accused. The evidence of a victim of sexual assault stands almost on  a  par
with the evidence of an injured witness  and  to  an  extent  is  even  more
reliable.  Just  as  a  witness  who  has  sustained  some  injury  in   the
occurrence, which is not found to be self-inflicted, is considered to  be  a
good witness in the sense that  he  is  least  likely  to  shield  the  real
culprit, the evidence of a victim of a sexual offence is entitled  to  great
weight, absence of corroboration notwithstanding. Corroborative evidence  is
not an imperative component of judicial credence  in  every  case  of  rape.
Corroboration as a condition for judicial reliance on the testimony  of  the
prosecutrix is not a requirement of law but a  guidance  of  prudence  under
given circumstances. It must not be  overlooked  that  a  woman  or  a  girl
subjected to sexual assault is not an accomplice  to  the  crime  but  is  a
victim of another person’s lust and it is improper and undesirable  to  test
her evidence with a certain amount of suspicion,  treating  her  as  if  she
were an accomplice. Inferences have to be drawn from a given  set  of  facts
and circumstances with realistic diversity  and  not  dead  uniformity  lest
that type of rigidity in the shape of rule of law is  introduced  through  a
new form of testimonial tyranny making justice  a  casualty.  Courts  cannot
cling to a fossil formula and insist upon corroboration even if, taken as  a
whole, the case spoken of by the victim of sex crime  strikes  the  judicial
mind as probable.”

7.    Thus, while absence of injuries or absence of raising alarm  or  delay
in FIR may not by itself be enough to disbelieve the version of  prosecutrix
in view of the statutory presumption under Section 114A of the Evidence  Act
but if such statement has inherent infirmities,  creating  doubt  about  its
veracity, the same  may  not  be  acted  upon.   We  are  conscious  of  the
sensitivity with which heinous offence under Section  376,  IPC  has  to  be
treated but in the present case the circumstances taken as  a  whole  create
doubt about the correctness of the prosecution version.  We  are,  thus,  of
the opinion that a case is made out for  giving  benefit  of  doubt  to  the
accused.






8.    Accordingly, we allow this appeal, set aside  the  conviction  of  the
appellant and acquit him of the charge.

                                                              …………………………….J.
                                                         [ V. GOPALA GOWDA ]

                                                            ………………………………..J.
NEW DELHI                          [ ADARSH KUMAR GOEL ]
            September  16, 2014
ITEM NO.1C-For Judgment   COURT NO.14           SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  2358/2010

MUNNA                                          Appellant(s)

                                VERSUS

STATE OF M.P.                                 Respondent(s)


Date : 16/09/2014 This appeal was called on for JUDGMENT today.


For Appellant(s)  Mr. C.D. Singh, Adv.
                             Ms. Sakshi Kakkar, Adv.

                     Ms. Pragati Neekhra, Adv.

For Respondent(s)
                     Mr. Mishra Saurabh,Adv.
                     Ms. Vanshaja Shukla, Adv.
                             Mr. Ankit Kr.Lal, Adv.

            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            The appeal is allowed in terms of the signed order.


    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

-----------------------
[1]    (1983) 3 SCC 217
[2]    (1990) 1 SCC 550
[3]    (1996) 2  SCC 384

Sec. 302 , 304 Part I & Sec.300 - Exception 4 - murder - heat of passion - High court reduced the sentence from life to 7 years - Apex court held that Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and the accused Dusasan brought a lathi and assaulted her father”. This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion.” The above observations fully support the view that the present case falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High Court and restore that of the trial Court = CRIMINAL APPEAL NO. 2051 of 2014 [Arising out of Special Leave Petition (Crl.) No.1235 of 2012] STATE OF M.P. .…APPELLANT VERSUS SHIVSHANKAR ..... RESPONDENT= 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41925

    Sec. 302 , 304 Part I & Sec.300 - Exception 4 - murder - heat of passion - High court reduced the sentence from life to 7 years - Apex court held that Then, can it be said that the crime has been  committed  in  a  heat  of passion? If time is taken to cool down, then the crime  cannot  be  said  to have been committed in a heat of passion. It is the  specific  case  of  the prosecution, which in fact, has also been accepted by the  High  Court  that “when her father Tikeswar abused them, the accused Khageswar  being  annoyed brought a budia from his house, which is nearby,  and  dealt  blows  to  her father and the accused Dusasan brought a lathi and  assaulted  her  father”. This clearly shows that both the convicts had sufficient time to  cool  down and therefore, it cannot be said that the crime was committed in a  heat  of passion.” The above observations fully support the view that the  present  case  falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High  Court and restore that of the trial Court =

Jabalpur  Bench  at
Gwalior in Criminal Appeal No.292 of 2005 altering  the  conviction  of  the
respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I  of
the  IPC  reducing  the  sentence  from  life   imprisonment   to   rigorous
imprisonment for seven years while upholding the sentence to pay a  fine  of
Rs.10,000/-,   in  default   to   undergo   two   years   further   rigorous
imprisonment.=

 “300. Murder.—*  *     *

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’s having taken undue advantage or acted  in
a cruel or unusual manner.
[pic]Explanation.—It is immaterial in such  cases  which  party  offers  the
provocation or commits the first assault.”
From a plain reading of the aforesaid Exception it is evident that it  shall
be attracted only if the death is caused (i) without premeditation, (ii)  in
a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If  all
these ingredients are satisfied, the Exception  will  come  into  play  only
when the court comes to the conclusion  that  the  offender  had  not  taken
undue advantage or acted in a cruel  or  unusual  manner.  Above  all,  this
section would be attracted when the fight had taken place  with  the  person
killed.

9. The aforesaid view finds support from a judgment of this Court  in  Pappu
v. State of M.P.2 in which it has been held as  follows:  (SCC  pp.  394-95,
para 13)
“13. … The help of Exception 4  can  be  invoked  if  death  is  caused  (a)
without premeditation; (b) in a sudden fight;  (c)  without  the  offender’s
having taken undue advantage or acted in a cruel or 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 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  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.”

11. Then, can it be said that the crime has been  committed  in  a  heat  of
passion? If time is taken to cool down, then the crime  cannot  be  said  to
have been committed in a heat of passion. It is the  specific  case  of  the
prosecution, which in fact, has also been accepted by the  High  Court  that
“when her father Tikeswar abused them, the accused Khageswar  being  annoyed
brought a budia from his house, which is nearby,  and  dealt  blows  to  her
father and the accused Dusasan brought a lathi and  assaulted  her  father”.
This clearly shows that both the convicts had sufficient time to  cool  down
and therefore, it cannot be said that the crime was committed in a  heat  of
passion.”

The above observations fully support the view that the  present  case  falls
under Section 302, IPC.
Accordingly, we allow this appeal, set aside the judgment of the High  Court
and restore that of the trial Court, i.e., 5th  Additional  Sessions  Judge,
Bhind, Madhya Pradesh in Sessions Trial  No.285  of  1999.   The  respondent
stands convicted under Section  302,  IPC  and  sentenced  to  undergo  Life
Imprisonment and to pay fine imposed by the  Courts  below,  in  default  to
undergo further imprisonment as directed by the Courts below.
 
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41925

                                                       NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2051 of 2014
       [Arising out of Special Leave Petition (Crl.) No.1235 of 2012]


STATE OF M.P.                                  .…APPELLANT

VERSUS

SHIVSHANKAR                                   ..... RESPONDENT

                               J U D G M E N T



ADARSH KUMAR GOEL, J.
1.    Leave granted.
2.    This appeal has been  preferred  against  the  Judgment          dated
10th July, 2008 of the High Court  of  Madhya  Pradesh,  Jabalpur  Bench  at
Gwalior in Criminal Appeal No.292 of 2005 altering  the  conviction  of  the
respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I  of
the  IPC  reducing  the  sentence  from  life   imprisonment   to   rigorous
imprisonment for seven years while upholding the sentence to pay a  fine  of
Rs.10,000/-,   in  default   to   undergo   two   years   further   rigorous
imprisonment.
3.    The case  of  the  prosecution  is  that  on  2nd  March,  1999  after
celebration of Holi festival, sugar cakes (Batase)  were  being  distributed
in front of the house of the  complainant  by  Ramlachhin  Gurjar  (PW  10).
Complainant Remsewak (PW 4) and his brothers Ramnaresh (PW 6), Vinod (PW  7)
and deceased Satish were standing near  the  temple.   An  altercation  took
place on account of Mukesh taking some sugar cakes  without  the  permission
of PW 10.   The respondent slapped PW 4  and  his  brothers.   This  led  to
further altercation between the accused  and  the  complainant  party.   The
accused went inside his house, brought the licensed gun of his  brother  and
fired a shot hitting the deceased on the stomach.  Apart from  the  accused,
acquitted co-accused Shrichand and Shyamsunder had  Kattas  and  Mukesh  and
Badshah were having      12 bore single barrel  guns.   The  acquitted   co-
accused also fired in the air.  The  deceased  succumbed  to  his  injuries.
Thereafter, Ramsewak lodged First Information Report.  After  investigation,
the accused were sent up  for  trial.   The  prosecution  case  against  the
respondent was proved by three eye witnesses Ramsewak (PW 4), Ramnaresh  (PW
6) and Vinod (PW 7) who were brothers of  the  deceased,  apart  from  other
corroborating evidence.  The respondent was  convicted  under  Section  302,
IPC while others were acquitted.
4.    The respondent preferred an appeal before the High Court, but in  view
of clear evidence of firing  of  gun  shot  by  him  causing  death  of  the
deceased, only  challenge  was  to  the  nature  of  the  offence.   It  was
submitted that quarrel took place suddenly and the accused had no  intention
to cause the death of the deceased.  Firing in the air  by  the  co  accused
showed that the intention was not to cause the  death.   The  accused  fired
only one shot and in the circumstances no offence  under  Section  302,  IPC
was made out.
5.    The above plea prevailed with the High Court.  It was held as  follows
:
“10.   Considering the entire scenario of the case, it  is  clear  that  the
incident occurred  suddenly  and  without  premeditation  and  therefore  it
cannot be gathered that the intention of the appellant was to  intentionally
cause the death of  the  deceased  and  therefore,  the  conviction  of  the
appellant under Section 302 of I.P.C. is not sustainable  in  law.   But  at
the same time, it is equally important to note that  the  appellant  brought
the licensed gun from his house  and  then  he  fired  which  hit  over  the
abdomen of the deceased resulting into his  death.   Thus,  we  are  of  the
considered view that looking to the facts and circumstances, this is a  case
of culpable homicide not amounting  to  murder  which  is  punishable  under
Section 304 (part-I) of I.P.C.”

6.    We have heard learned counsel for the parties.
7.    Learned counsel for the State submitted that the  view  taken  by  the
High Court is patently erroneous in law as the offence  under  Section  302,
IPC was clearly made out.  It was not a case  of  ‘fight’  as  the  deceased
side did not cause any assault nor had any weapon.  There was time  for  the
accused to cool down.  His conduct in going to his house  and  bringing  the
gun and thereafter  firing  from  the  said  gun  clearly  established  that
neither the firing was accidental, nor unintentional  nor  in  the  heat  of
sudden fight.  Thus the offence was clearly a murder falling  under  Section
302, IPC and not falling in  any  of  the  exceptions.   Reliance  has  been
placed on judgment of  this  Court  in  State  of  Orissa  Vs.  Khaga  Alias
Khageswar Naik & Ors. [1]         8.   Learned counsel  for  the  respondent
supported the view taken by the High Court.
9.    After due consideration of the rival submissions, we are of  the  view
that the High Court has clearly erred in  holding  that  the  offence  falls
under Section 304 Part-I, IPC.
10.   It is clear from the case of the prosecution mentioned above that  the
accused first slapped the complainant which was followed  by  verbal  abuses
and thereafter the accused  brought  the  licensed  gun  and  fired  at  the
deceased, who died.    It was, thus, a voluntary and intentional act of  the
accused which caused the death.  Intention is  a  matter  of  inference  and
when death is as a result of intentional firing, intention  to  cause  death
is patent unless the case falls under any of the exceptions.  We are  unable
to hold that the case falls  under  Exception  4  of  Section  300,  IPC  as
submitted by learned counsel for the respondent.  Exception 4  is  attracted
only when there is a fight or quarrel which requires mutual provocation  and
blows by both sides in which the offender does  not  take  undue  advantage.
In the present case, there is no giving  of  any  blow  by  the  complainant
side.  The complainant side did not have any weapon.  The  accused  went  to
his house and brought a gun.   There is neither  sudden  fight  nor  a  case
where the accused has not taken undue advantage.
In State of A.P. v. Rayavarapu Punnayya [2] , it was held :
“12. In the scheme of the Penal  Code,  “culpable  homicide”  is  genus  and
“murder” its specie. All “murder”  is  “culpable  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 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 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.
13. The academic distinction between “murder”  and  “culpable  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 minutae abstractions.  The  safest  way  of  approach  to  the
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.”

 In Bhagwan Munjaji Pawade v. State of Maharashtra [3] , this Court held  as
under :

“6.  ….  It is true that some of[pic]the conditions  for  the  applicability
of Exception 4 to Section 300 exist here,  but  not  all.  The  quarrel  had
broken out suddenly, but there was no sudden fight between the deceased  and
the appellant. ‘Fight’ postulates a bilateral  transaction  in  which  blows
are exchanged. The deceased was unarmed. He did not cause any injury to  the
appellant or his companions. Furthermore no less than three  fatal  injuries
were inflicted by the appellant with an axe, which is  a  formidable  weapon
on the unarmed victim. Appellant, is therefore, not entitled to the  benefit
of Exception 4, either.”

                                                    In In Sridhar Bhuyan  v.
State of Orissa [4] , this Court held as under :

“7. For bringing in operation of Exception 4 to Section 300 IPC, it  has  to
be established that the  act  was  committed  without  premeditation,  in  a
sudden [pic]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.

8. 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 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 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 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  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.  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 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 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  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
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  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  a  cruel  or
unusual manner. The expression “undue advantage” as used  in  the  provision
means “unfair advantage”.

      Similar observations were made in    State of Orissa  v.  Khaga  alias
Khageswar Naik and Ors.  (supra),  which reads as under :

“8. The rival submission necessitates examination of Exception 4 to  Section
300 IPC, same reads as follows:

“300. Murder.—*  *     *

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’s having taken undue advantage or acted  in
a cruel or unusual manner.
[pic]Explanation.—It is immaterial in such  cases  which  party  offers  the
provocation or commits the first assault.”
From a plain reading of the aforesaid Exception it is evident that it  shall
be attracted only if the death is caused (i) without premeditation, (ii)  in
a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If  all
these ingredients are satisfied, the Exception  will  come  into  play  only
when the court comes to the conclusion  that  the  offender  had  not  taken
undue advantage or acted in a cruel  or  unusual  manner.  Above  all,  this
section would be attracted when the fight had taken place  with  the  person
killed.

9. The aforesaid view finds support from a judgment of this Court  in  Pappu
v. State of M.P.2 in which it has been held as  follows:  (SCC  pp.  394-95,
para 13)
“13. … The help of Exception 4  can  be  invoked  if  death  is  caused  (a)
without premeditation; (b) in a sudden fight;  (c)  without  the  offender’s
having taken undue advantage or acted in a cruel or 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 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  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.”

11. Then, can it be said that the crime has been  committed  in  a  heat  of
passion? If time is taken to cool down, then the crime  cannot  be  said  to
have been committed in a heat of passion. It is the  specific  case  of  the
prosecution, which in fact, has also been accepted by the  High  Court  that
“when her father Tikeswar abused them, the accused Khageswar  being  annoyed
brought a budia from his house, which is nearby,  and  dealt  blows  to  her
father and the accused Dusasan brought a lathi and  assaulted  her  father”.
This clearly shows that both the convicts had sufficient time to  cool  down
and therefore, it cannot be said that the crime was committed in a  heat  of
passion.”

The above observations fully support the view that the  present  case  falls
under Section 302, IPC.
Accordingly, we allow this appeal, set aside the judgment of the High  Court
and restore that of the trial Court, i.e., 5th  Additional  Sessions  Judge,
Bhind, Madhya Pradesh in Sessions Trial  No.285  of  1999.   The  respondent
stands convicted under Section  302,  IPC  and  sentenced  to  undergo  Life
Imprisonment and to pay fine imposed by the  Courts  below,  in  default  to
undergo further imprisonment as directed by the Courts below.

                                                            ..…………………………….J.
                                                         [ V. GOPALA GOWDA ]


                                                          ….………………………………..J.
NEW DELHI                             [ ADARSH KUMAR GOEL ]
            September 16, 2014
ITEM NO.1B-For Judgment     COURT NO.14               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl.A. …..../2014 arising from petition(s) for Special Leave to Appeal
(Crl.)  No(s).  1235/2012

 STATE OF M.P.                                      Petitioner(s)

                                VERSUS

SHIVSHANKAR                                        Respondent(s)


Date : 16/09/2014 This petition was called on for Judgment today.


For Petitioner(s)
                     Mr. C. D. Singh,Adv.


For Respondent(s)       Mr. Vipin Kumar, Adv.
                     Mr. Deepak Goel,Adv.


            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            Delay condoned.
            Leave granted.
            The appeal is allowed in terms of the signed order.


    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]     (2013) 14 SCC 649
[2]     (1976) 4 SCC 382
[3]     (1978) 3 SCC 330
[4]     (2004) 11 SCC 395

Criminal complaint under sec.406 and sec.6 of the Dowry Prohibition Act - against the Grand father( Their relationship with the husband of the complainant was remote as grand father of the appellant No.1 was brother of grand father of the husband of the complainant. ) - petition to quash the complaint against them - High court rejected - Apex court held that In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them.The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role. and as such set aside the order of High court and quashed the proceedings against the petitioners only = CRIMINAL APPEAL NO. 2055 of 2014 [Arising out of Special Leave Petition (Crl.) No.4656 of 2011] KAILASH CHANDRA AGRAWAL & ANR. ..... APPELLANTS VERSUS STATE OF U.P. & ORS. ..... RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41924

 Criminal complaint under sec.406 and sec.6 of the Dowry Prohibition Act - against the Grand father( Their relationship  with  the husband of the complainant was remote as grand father of the appellant  No.1 was brother of grand father of the husband  of  the  complainant. ) - petition to quash the complaint against them - High court rejected - Apex court held that  In the  FIR,
the appellants have not been named and in the criminal complaint  they  have been named without attributing any specific role to them.The Court has, thus, to be  careful  in  summoning  distant  relatives without there being specific material.  Only the husband, his parents or  at best close family members may be expected to demand dowry or to  harass  the wife but not  distant  relations,  unless  there  is  tangible  material  to support allegations made against such distant  relations.   Mere  naming  of distant relations is not enough to summon them in absence  of  any  specific role and material to support such role. and as such set aside the order of High court and quashed the proceedings against the petitioners only =

 declining
to quash the proceedings against the appellants under  Section  406  of  the
Indian Penal Code and Section 6 of the Dowry Prohibition Act, 1961.=

    We have gone through the FIR and the criminal complaint.
In the  FIR,
the appellants have not been named and in the criminal complaint  they  have
been named without attributing any specific role to them.
The  relationship
of the appellants with the husband of the complainant is distant.
In  Kans Raj vs. State of Punjab & Ors.[1], it was observed:-
“5………A tendency has, however, developed for roping in all relations  of  the
in-laws of the deceased wives in the matters of dowry deaths which,  if  not
discouraged, is likely to affect the case of the  prosecution  even  against
the real culprits. In their over enthusiasm and anxiety to  seek  conviction
for maximum people, the parents of  the  deceased  have  been  found  to  be
making efforts for involving other relations  which  ultimately  weaken  the
case of the prosecution even against the real accused  as  appears  to  have
happened in the instant case.”

      The Court has, thus, to be  careful  in  summoning  distant  relatives
without there being specific material.
Only the husband, his parents or  at
best close family members may be expected to demand dowry or to  harass  the
wife but not  distant  relations,  unless  there  is  tangible  material  to
support allegations made against such distant  relations.   Mere  naming  of
distant relations is not enough to summon them in absence  of  any  specific
role and material to support such role.


10.   The parameters for quashing proceedings in a  criminal  complaint  are
well known.
If there are triable issues, the Court is not  expected  to  go
into the veracity of the rival versions but where on the  face  of  it,  the
criminal proceedings are abuse of  Court’s  process,  quashing  jurisdiction
can be exercised.  
Reference may be made to  K.  Ramakrsihna  and  Ors.  vs.
State of Bihar and Anr.[2], Pepsi Foods Ltd. and Anr. vs.  Special  Judicial
Magistrate and Ors.[3], State of Haryana and Ors. vs.  Ch.  Bhajan  Lal  and
Ors.[4] and Asmathunnisa  vs.  State  of  A.P.  represented  by  the  Public
Prosecutor, High Court of A.P., Hyderabad and Anr.[5].

11.   Applying the above tests, the proceedings  in  the  present  case  are
clearly the abuse of the Court’s process.

12.   Accordingly, we allow this appeal and quash  the  proceedings  against
the appellants, without  expressing  any  opinion  about  the  case  of  the
complainant against the other accused.


   2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41924

                                                          NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2055 of 2014
       [Arising out of Special Leave Petition (Crl.) No.4656 of 2011]


KAILASH CHANDRA AGRAWAL & ANR.             ..... APPELLANTS

VERSUS

STATE OF U.P. & ORS.                                ..... RESPONDENTS


                               J U D G M E N T



ADARSH KUMAR GOEL, J.

1.    Leave granted.

2.      This   appeal    has    been    preferred    against    the    Order
dated 2nd May, 2011 of the High Court of Judicature of  Allahabad  declining
to quash the proceedings against the appellants under  Section  406  of  the
Indian Penal Code and Section 6 of the Dowry Prohibition Act, 1961.

3.      The   case   of   the   complainant   in    the    FIR    registered
on 4th May, 2010 in the Bhelupur Police Station  at  Varanasi  is  that  her
marriage was solemnised on 30th April, 2005.  Her brothers who lived  abroad
gave lot of dowry and cash in the marriage but her family could  not  fulfil
more demands raised by the elder brother of her husband’s  father,  who  was
the head of the joint family on account  of  which  family  members  of  her
husband were not satisfied and tortured her.  On  account  of  torture,  she
came to her parents house with her child on  1st  March,  2009  she  gave  a
complaint          on 27th April, 2010 leading to registration  of  the  FIR
                        on 4th May, 2010.  She also filed complaint  in  the
Court of Additional  Chief  Judicial  Magistrate,  Varanasi.   In  the  said
complaint, the appellants were summoned  vide  Order  dated  30th  November,
2010.

4.    Aggrieved by the said summons, the appellants  moved  the  High  Court
under Section 482 OF THE Code of Criminal  Procedure    (Cr.P.C.)  with  the
plea that the summoning was not justified as neither they were named in  the
FIR  got  registered  by  the  complainant  nor  any  individual  role   was
attributed to them in the criminal complaint.  Their relationship  with  the
husband of the complainant was remote as grand father of the appellant  No.1
was brother of grand father of the husband  of  the  complainant.   In  such
remote relationship, the appellants will have no  interest  in  raising  any
demand for dowry or  causing  any  harassment  to  the  complainant.   Their
implication was thus, clear abuse of the process of the Court.
5.    The High Court dismissed the petition with the  observation  that  the
statement of the complainant under Sections 200 and 202,  Cr.P.C.  disclosed
the commission of offence and thus there was no illegality in the  order  of
summoning.

6.    We have heard learned counsel for the parties.

7.    Learned counsel for the appellants submitted that marriage took  place
in the year 2005 and a child was born on 15th January, 2009.  Complaint  was
filed in the year 2010 after filing of divorce petition by  the  husband  of
the complainant on 24th April, 2010.  In the  FIR,  initially  filed,  there
was no allegation against the appellants but in  the  subsequent  complaint,
the appellants were also named as accused without  any  specific  allegation
against them. Thus, requiring the appellants to  face  criminal  proceedings
was nothing but abuse of the Court’s process.

8.    On 27th June, 2011, while issuing notice  this  Court  stayed  further
proceedings in the criminal complaint.

9.    We have gone through the FIR and the criminal complaint.  In the  FIR,
the appellants have not been named and in the criminal complaint  they  have
been named without attributing any specific role to them.  The  relationship
of the appellants with the husband of the complainant is distant.   In  Kans
Raj vs. State of Punjab & Ors.[1], it was observed:-
“5………A tendency has, however, developed for roping in all relations  of  the
in-laws of the deceased wives in the matters of dowry deaths which,  if  not
discouraged, is likely to affect the case of the  prosecution  even  against
the real culprits. In their over enthusiasm and anxiety to  seek  conviction
for maximum people, the parents of  the  deceased  have  been  found  to  be
making efforts for involving other relations  which  ultimately  weaken  the
case of the prosecution even against the real accused  as  appears  to  have
happened in the instant case.”

      The Court has, thus, to be  careful  in  summoning  distant  relatives
without there being specific material.  Only the husband, his parents or  at
best close family members may be expected to demand dowry or to  harass  the
wife but not  distant  relations,  unless  there  is  tangible  material  to
support allegations made against such distant  relations.   Mere  naming  of
distant relations is not enough to summon them in absence  of  any  specific
role and material to support such role.


10.   The parameters for quashing proceedings in a  criminal  complaint  are
well known.  If there are triable issues, the Court is not  expected  to  go
into the veracity of the rival versions but where on the  face  of  it,  the
criminal proceedings are abuse of  Court’s  process,  quashing  jurisdiction
can be exercised.  Reference may be made to  K.  Ramakrsihna  and  Ors.  vs.
State of Bihar and Anr.[2], Pepsi Foods Ltd. and Anr. vs.  Special  Judicial
Magistrate and Ors.[3], State of Haryana and Ors. vs.  Ch.  Bhajan  Lal  and
Ors.[4] and Asmathunnisa  vs.  State  of  A.P.  represented  by  the  Public
Prosecutor, High Court of A.P., Hyderabad and Anr.[5].

11.   Applying the above tests, the proceedings  in  the  present  case  are
clearly the abuse of the Court’s process.

12.   Accordingly, we allow this appeal and quash  the  proceedings  against
the appellants, without  expressing  any  opinion  about  the  case  of  the
complainant against the other accused.

                                                         .……..…………………………….J.
                                                         [ V. GOPALA GOWDA ]

                                                         .….………………………………..J.
NEW DELHI                          [ ADARSH KUMAR GOEL ]
            September 16, 2014
ITEM NO.1A-For Judgment       COURT NO.14               SECTION II

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl.A.No......../2014 arising from Petition(s) for Special Leave to Appeal
(Crl.)  No(s).  4656/2011

 KAILASH CHANDRA AGRAWAL & ANR                      Petitioner(s)

                                VERSUS

STATE OF U.P.& ORS.                                Respondent(s)


Date : 16/09/2014 This petition was called on for Judgment today.


For Petitioner(s)
                     Mr. Shekhar Kumar,Adv.

For Respondent(s)
                     Ms. Shomila Bakshi,Adv.
                     Mrs. Mona K. Rajvanshi,Adv.
                     Mr. M. R. Shamshad,Adv.

            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            Leave granted.
            The appeal is allowed in terms of the signed order.


    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable judgment is placed on the file)


-----------------------
[1]    (2000) 5 SCC 207
[2]    (2000) 8 SCC 547
[3]    (1998) 5 SCC 749
[4]    (1992) Suppl 1 SCC 335
[5]    (2011) 11 SCC 259