LexSACHCHEY LAL TIWARI versus STATE OF UTTAR PRADESH
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- ' .· SACHCHEY LAL TIWARI A v. 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 of Exception 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: 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·;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. Words and Phrases: 'Undue advantage'-Meaning of-Explained D E F 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 B imprisonment and acquitted A.2. Aggrieved, A-1 filed appeal against his 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 H has no application to the instant case. (113-C, E, F} 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 j
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