D. SAILU versus STATE OF A.P.

Citation: [2007] 12 S.C.R. 397 · Decided: 20-11-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

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D. SAILU 
A 
v. 
STATE OF A.P. 
NOVEMBER 20, 2007 
B 
[DR.ARIJITPASAYAT ANDAFTABALAM,JJ.) 
_, 
Penal Code, 1860: 
s.300 Exception 1and4, s.302 and s.304 Part I-Sudden fight c 
between accused and deceased-Accused stabbed deceased-Courts 
below held accused guilty under s. 302-Accused pleading applicability 
of Exception 4 of s. 300-Held: Exception 4 of s.300 is applicable as 
accused had not taken undue advantage or acted in cruel or unusual 
.. 
manner-Fight suddenly took place and there was no pre-meditation- D 
-i 
Appropriate conviction under s.304 Part-I and not under s.302-
Conviction altered accordingly. 
Evidence: 
Related witness-Testimony of-Evidentiary value of 
E 
Medical evidence-Primacy of, over ocular evidence-Propriety 
of-Held: It is not proper to accord undue primacy to medical opinion 
pointing to alternative possibility when statements of eyewitnesses are 
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found credible and trustworthy. 
F 
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Prosecution case was that A-1 was the nephew of deceased, A-2 
was brother of deceased, A-3 was wife of A-2 and A-4 was the brother 
of A-1. The deceased and accused persons were not in good terms and 
had been quarrelling with each other over bore water for the fields. 
G 
·-Y 
On the fateful day, A-1 asked the deceased as to why he scolded 
the mother of A-1. PW-1, wife of the deceased caught hold of the hands 
of A-1. A-4 came and attempted to beat the deceased. PW-1 pushed 
the younger brother of A-1. A-1 stabbed the deceased at the instigation 
397 
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398 
SUPREME COURT REPORTS 
[2007] 12 S.C.R. 
A of A-2 with a knife. Deceased died as a result of injuries sustained by 
him 
The charges were framed under s.302 IPC against A-1 and A-3. 
The Sessions Judge accepting the evidence of P. W s. 1 to 4, to be cogent 
B and credible, held that A-1 caused injuries to the deceased and therefore 
convicted for offence punishable under s.302 IPC. Benefit of doubt was 
given to A-3 and accordingly he was acquitted. The High Court upheld 
the conviction of A-1. 
In appeal to this Court, A-I-appellant contended that PWl to 4 
c were related to the deceased and therefore their version is tainted; that 
the medical evidence rendered the ocular version improbable; that the 
occurrence took place in course of sudden quarrel and, therefore, the 
trial court and the High Court were not justified in holding the accused-
appellant guilty ofoffence punishable unders.302 IPC and that Exception 
D IV to s.304 IPC would apply to the facts of the case. 
Partly allowing the appeal, the Court 
HELD: 1.1. Relationship is not a factor to affect credibility of a 
E witness. It is more often than not that a relation would not conceal actual 
culprit and make allegations against an innocent person. Foundation 
has to be laid if plea of false implication is made. In such cases, the court 
has to adopt a careful approach and analyse evidence to find out whether 
it is cogent and credible. The ground that the witness being a close 
F relative and consequently being a partisan witness, should not be relied 
upon, has no substance. [Paras 11and14) (404-A-B, GJ 
DalipSingh and Ors. v. The State of Punjab, AIR (1953) SC 364; 
Guli Chand and Ors. v. State of Rajasthan, (1974) 3 SCC 698; Vadivelu 
Thevarv.State of Madras, AIR(1957) SC 614; Masalti and Ors. v.State 
G of UP., AIR (1965) SC 202; State of Punjab v. Jagir Singh AIR (1973) 
SC 2407; Lehnav. State ofHaryana, (2002) 3 SCC 76; Gangadhar Behera 
and Ors. v. State of Orissa, (2002) 8 SCC 381; Babula! Bhagwan Khandare 
andAnr. v. State of Maharashtra, (2005) 10 SCC 404 and Salim Sahebv. 
State of MP., [2007) 1SCC699, relied on. 
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D. SAILU v. STATE 
399 
1.2. The ocular testimonies has been analysed in great detail and A 
has been rightly held to be cogent It would be erroneous to accord undue 
primacy to the hypothetical answers of medical witnesses to exclude 
the eyewitnesses' account which had to be tested independently and 
not treated as the "variable" keeping the medical evidence as the 
"constant". [Paras 18and19) (405-H; 406-A, BJ 
B 
1.3. It is trite that where the eyewitnesses' account is found 
credible and trustworthy, medical opinion pointing to alternative 
possibilities is not accepted as conclusive. Witnesses, as Bentham said, 
are the eyes and ears of justice. Eyewitnesses' account would require C 
a careful independent assessment and evaluation for its credibility which 
should not be adversely prejudged making any other eviden

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