Holding

The Court held that the appellant’s act amounted to culpable homicide not amounting to murder under Part‑I of s.304 IPC, with the benefit of Exception 4 of s.300 IPC, and therefore altered the conviction from murder.

Summary

The appellant R. Jayapal was convicted of murder (s.302 IPC) for stabbing the deceased Poondhaisezhiyan, who later died from a chest wound. He claimed he acted in private defence to protect his wife from the deceased, who allegedly intruded into their house with a group and attempted to assault her. The trial court rejected this defence, but the High Court upheld the murder conviction while acquitting the appellant’s brother and wife. On appeal, the Supreme Court examined whether the prosecution evidence could be relied upon after the acquittals of the co‑accused and whether the circumstances justified a reduction of the charge. Finding that the prosecution story was unreliable and that the incident likely occurred at the doorstep in a sudden fight without pre‑meditation, the Court applied Exception 4 of s.300 IPC. Consequently, the conviction was altered to culpable homicide not amounting to murder under Part‑I of s.304 IPC and the appellant was sentenced to ten years’ imprisonment.

Issues considered

The appropriate charge: murder under s.302 IPC versus culpable homicide not amounting to murder under s.304 IPC.
Whether the defence of private defence or Exception 4 of s.300 IPC applies to the appellant’s act.
Effect of the acquittal of co‑accused on the credibility of the prosecution case against the appellant.
Whether the prosecution evidence can be separated from the false or doubtful portions (falsus in uno) to sustain a conviction.

Legislation cited

Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304, s. 34, s. 341

Subjects

private defenceculpable homicide not amounting to murderexception 4 s.300 IPCalteration of convictionacquittal of co-accusedevidence evaluationfalsus in uno

Judgment

[2019] 10 S.C.R. 1 1

R. JAYAPAL A
v.
STATE OF TAMIL NADU & ANR.
(Criminal Appeal No. 56 of 2010)
AUGUST 09, 2019 B
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Penal Code, 1860 – s.302/34, Part-I of s.304 – Alteration of
conviction from s.302 IPC to Part-I of s.304 – Prosecution case C
that there was long-drawn rivalry between the wife of appellant
(accused no.3) and the victim-deceased – It was alleged that
appellant (accused no.1) and his wife (accused no.3) had an
altercation with the victim – Same day, in the evening, it was alleged
that when victim was crossing the lane in front of the house of the
D
appellant, the appellant came down with a spike, the accused no.2
with sickle and unarmed accused no.3 and attacked the victim –
Appellant stabbed the victim on chest with the spike – Victim died –
FIR was registered – Before the Trial Court, the appellant took the
defence that the deceased had barged into his house with 5-6
persons and assaulted and molested his wife – Appellant contended E
that in order to protect his wife, he had exercised the right to private
defence and stabbed the deceased – Trial Court rejected the defence
version and held appellant (accused no.1) and accused no.2 guilty
for offences u/s. 302 IPC and u/s.302/34 IPC respectively and
acquitted wife of the appellant (accused no.3) – High Court
F
maintained the conviction and sentence of the appellant but found
the accused no.2 not guilty and acquitted him – On appeal, held:
The prosecution was not able to remove all the obvious doubts as to
the place and manner of occurrence, particularly as to who was
the aggressor and how it started – Prosecution was not able to
clear as to how deceased was at the doorstep of the house of G
appellant and how the blood stains were also found at the doorstep
of the house of appellant – Besides, the defence version that the
deceased assaulted and molested appellant’s wife is also
unacceptable for want of cogent and convincing evidence –
H
1
2 SUPREME COURT REPORTS [2019] 10 S.C.R.

A However, the preponderance remains that the occurrence, in all
likelihood, took place at the doorstep of the house of appellant –
Thus, alternative case of appellant that the incident took place
without any pre-meditation, in a sudden fight in the heat of passion
upon sudden quarrel, when the deceased attempted entry into his
house; and the appellant did neither take any undue advantage
B
nor acted in a cruel or unusual manner is accepted – Benefit of
Exception 4 of s.300 IPC extended to the appellant – Therefore,
conviction of the appellant altered to one under Part-I of s.304
IPC.
Partly allowing the appeal, the Court
C
HELD: 1. Both the accused no.2 and accused no.3 were
acquitted. In view of this Court, when accused No. 2 and accused
No. 3 are removed out of scene, the entire complexion of the
prosecution story is altered on material aspects and such an
alteration cannot be ignored as being wholly immaterial or
D irrelevant. In other words, if the prosecution case is taken as
false (or at least doubtful) as regards accused No. 2 and accused
No. 3, this part of falsehood (or doubtfulness) is difficult to be
segregated for the purpose of believing the prosecution case qua
the appellant alone. The exercise of sifting the grain from the
E chaff in this matter would shake, rather annihilate, the
fundamentals of the prosecution case; and an entirely new
prosecution story shall have to be assumed that when the
deceased was walking down the lane, the appellant alone jumped
on him; gave him a blow; threw the weapon towards his own house
and ran away. In view of this Court, on the facts and in the
F circumstances of this case, it would be unsafe to assume such or
akin scene of occurrence in replacement of the story propounded
by the prosecution. As noticed from the decisions referred, when
this Court found that separating the truth from falsehood was not
feasible because of the two being inseparably mixed up, the
G prosecution case was discarded in toto. However, such a course
cannot be adopted in this case and it cannot be held that the
appellant was not involved in the occurrence or did not kill the
deceased, essentially for the reason that the appellant himself
took the defence that he assaulted the deceased in exercise of

H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 3

his right of private defence when the deceased allegedly intruded A
inside his house and attempted to assault and molest his wife. It
is also noticed from the evidence on record that one injury was
caused on the person of the deceased, being a vertical stab injury
of 5 cm length and 2.5 cm width in front and outside the left collar
bone that had pierced the upper portion of lung through the third
B
rib. The medical officer PW-11 has opined that the injury in the
lung was enough to cause death and could have been caused by
the spike in question. [Paras 14 and 14.1] [18-G-H; 19-A-F]
2. In view of the above, even after disbelieving the case of
prosecution as regards the happenings, but taking into account
the admitted case of the appellant that he did inflict injury on the C
person of the deceased, the matter is required to be examined
further on the question as to whether the appellant is entitled to
be acquitted for having justifiably acted in exercise of the right of
private defence in order to save his wife from the alleged assault
and molestation. [Para 15] [19-G-H] D
3. Hence, even when this Court finds that the prosecution
case cannot be believed as projected, the defence version about
the assault on and molestation of accused No. 3, the wife of the
appellant, equally appears to be that of overstatement/
exaggeration towards the other extreme. In other words, the part E
of the appellant’s suggestion that the deceased entered his house
with 5-6 persons and assaulted and molested his wife is difficult
to be accepted; neither there is any convincing evidence in that
regard nor the circumstances of the case support this version.
However, from the evidence on record, this much is apparent
that blood stains were also found at the door-step of the house of F
the appellant; and the weapon of offence was found at the raised
platform of the house of the appellant. The facts and circumstances
of this case give rise to a reasonable doubt that the incident in
question, in all likelihood, took place right at the door of the
house of the appellant. Admittedly, the parties were on hostile G
terms and they had had an argument at about 5 p.m. the same day
outside the house of the deceased. Therefore, the possibility of
quarrel taking place upon the deceased reaching the door-step
of the appellant is not ruled out. [Para 17] [20-F-H; 21-A-B]

H
4 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 4. The upshot of the discussion foregoing is that the
projected story of the prosecution cannot be accepted, particularly
for the reason that the accused No. 2 and accused No. 3 have
been acquitted and their acquittal has attained finality. Then, the
prosecution has not been able to remove all the obvious doubts
as to the place and manner of occurrence, particularly as to who
B
was the aggressor and how it started. On the other hand, the
defence version that the deceased barged into the house of the
appellant with 5-6 persons and assaulted and molested his wife is
also unacceptable for want of cogent and convincing evidence.
However, the preponderance remains that the occurrence, in all
C likelihood, took place just at the door-step of the house of the
appellant. In the given circumstances, the likelihood of the
deceased, who was on inimical terms with the wife of the appellant,
having given the reasons for provocation by way of aggression or
attempted intrusion into the house of the appellant is not ruled
out. [Para 18] [21-E-G]
D
5. In view of the foregoing and in the overall circumstances
of this case, this Court inclined to accept the alternative case of
the appellant that the incident in question took place without any
premeditation, in a sudden fight in the heat of passion upon a
sudden quarrel, when the deceased attempted entry into his
E house; and the appellant did neither take any undue advantage
nor acted in a cruel or unusual manner. A fortiori, this Court is
inclined to extend the benefit of Exception 4 of Section 300 IPC
to the appellant. However, the act of the appellant leading to the
death having been with the intention of causing such bodily injury
F as is likely to cause death, the appellant deserves to be convicted
for the offence under Part-I of Section 304 IPC. [Para 20]
[21-F-G]
Yanob Sheikh alias Gagu v. State of West Bengal (2013)
6 SCC 428 : [2012] 13 SCR 1150 ; Dalbir Singh v.
G State of Haryana (2008) 11 SCC 425 : [2008]
8 SCR 1026 ; Krishna Mochi v. State of Bihar (2002)
6 SCC 81 : [2002] 3 SCR 1 ; Jumman and Ors. v. The
State of Punjab AIR 1957 SC 469 – relied on.

H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 5

Munshi Ram & Ors. v. Delhi Administration (1968) 2 A
SCR 455 ; James Martin v. State of Kerala (2004) 2
SCC 203 : [2003] 6 Suppl. SCR 910 ; Darshan Singh
v. State of Punjab and Anr. (2010) 2 SCC 333 : [2010]
1 SCR 642 ; Sukumaran v. State 2019 SCC Online SC
339 ; Budhi Singh v. State of Himachal Pradesh (2012)
B
13 SCC 663 : [2012] 11 SCR 848 ; Surain Singh v.
State of Punjab (2017) 5 SCC 796 ; Pulicherla
Nagaraju alias Nagaraja Reddy v. State of A.P. (2006)
11 SCC 444 : [2006] 4 Suppl. SCR 633 ; Gudar Dusadh
v. State of Bihar (1972) 3 SCC 118 – referred to.
Case Law Reference C

(1968) 2 SCR 455 referred to Para 7
[2003] 6 Suppl. SCR 910 referred to Para 7
[2010] 1 SCR 642 referred to Para 7
D
[2012] 11 SCR 848 referred to Para 7
(2017) 5 SCC 796 referred to Para 7
[2006] 4 Suppl. SCR 633 referred to Para 8
(1972) 3 SCC 118 referred to Para 8
E
[2012] 13 SCR 1150 relied on Para13
[2008] 8 SCR 1026 relied on Para 13
[2002] 3 SCR 1 relied on Para 13
AIR 1957 SC 469 relied on Para 19 F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 56 of 2010.
From the Judgment and Order dated 21.02.2008 of the High Court
of Judicature at Madras, Madurai Bench in Criminal Appeal No. 1003
of 2000. G
Ms. Aparna Bhat, Ms. Shivani Singh, Advs. for the Appellant.
M. Yogesh Kanna, Adv. for the Respondents.

H
6 SUPREME COURT REPORTS [2019] 10 S.C.R.

A The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. In this appeal, the accused-appellant has called in question the
judgment and order dated 21.02.2008 in Criminal Appeal No. 1003 of
2000 whereby, the High Court of Judicature at Madras has affirmed his
B conviction for the offence under Section 302 of the Indian Penal Code
(‘IPC’), even while acquitting the accused No. 2 for the offence under
Section 302/34 IPC in modification of the judgment and order dated
27.06.2000 as passed by the Principal Sessions Judge, Thanjavur in
Sessions Case No. 168 of 1999.
C 1.1. In the Sessions Case aforesaid, the accused-appellant was
charged for the offence under Section 302 IPC whereas the appellant’s
brother (accused No. 2) was charged for the offence under Section
302/34 IPC and the appellant’s wife (accused No. 3) was charged for
the offences under Sections 302/34 and 341 IPC. The Trial Court
D convicted the appellant for the offence under Section 302 IPC and
awarded him the punishment of life imprisonment together with fine of
Rs. 1,000/- with default stipulations; and also convicted the appellant’s
brother (accused No. 2) for the offence under Section 302/34 IPC and
awarded him the same punishment of life imprisonment with fine of Rs.
1,000/- with default stipulations. However, the Trial Court found the
E appellant’s wife (accused No. 3) not guilty of the offences under Sections
302/34 and 341 IPC and she was, accordingly, acquitted. In appeal, the
High Court maintained the conviction and sentence of the appellant but
found the accused No. 2 not guilty and he was, accordingly, acquitted.
2. The basic question calling for determination in this appeal is as
F to whether, in the given set of facts and circumstances, the High Court
was justified in maintaining the conviction of the appellant for the offence
under Section 302 IPC?
3. The background aspects of the case, so far relevant for the
question at hand, could be noticed, in brief, as follows:
G
3.1. The prosecution case had been that the deceased
Poondhaisezhiyan and wife of the appellant, Smt. Jayaseeli (who was
accused No. 3 in this case) carried a long-drawn rivalry because of the
elections of Town Panchayat where the deceased was instrumental in
getting another candidate elected as President and thereafter, himself
H got elected as Vice-president by defeating the accused No. 3. According
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 7
[DINESH MAHESHWARI, J.]

to the prosecution, the accused No. 3 made a complaint against the A
deceased that was enquired into and was found to be false; and this
failure of complaint had enraged the accused persons. It was alleged
that on 23.08.1997 at about 5.00 p.m., the appellant R. Jayapal (accused
No. 1) along with his wife (accused No. 3) had had an altercation with
the deceased in front of his house when the appellant vowed to finish off
B
the deceased within 24 hours. It was further alleged that the same day
at about 7.15 p.m., when the deceased left his house in order to visit
Thanjavur and was crossing the lane in front of the house of the appellant,
the appellant came down with a spike, the accused No. 2 came with a
sickle, and the accused No. 3 came unarmed; the accused No. 2 (brother
of the appellant) attacked the deceased with sickle but his blow was C
blocked by the deceased; the deceased attempted to run away but was
ambushed by the accused No. 3 and she exhorted not to spare the
deceased; and then, the appellant stabbed the deceased on chest with
the spike. This incident was allegedly witnessed by PW-1 Pandian, brother
of the deceased who carried the deceased to hospital and on whose
D
statement, FIR was registered as per the report made by PW-12 Head
Constable Jaganathan. The relevant parts of FIR could be usefully
extracted as follows:-
“…….Today on 23.08.97, at 5 p.m. my brother was in his
house. When I returned from bazaar, there were shouting.
When I went near I saw my brother Poondaichelian, Jayaseeli E
and Jayapal were arguing. Then my brother Poondaichelian
told Jayaseeli that was sending false complaint against him
and she was talking ill of him and told her to behave properly.
For that Jayaseeli asked what respect he deserved. Jayapal
told him to finish him off within 24 hours. I pacified my brother F
and send him to his house. Jayaseeli and Jayapal went towards
east. Then my brother listened the 7 ¼ news in radio and
started to Thanjavur. At that time in the post near my house,
light was glowing. There was good illumination. I was sitting
on the raised platform of my house. When my brother was
going towards east in the road in front of the road near the G
house of Jayapal, Jayapal came with a spike, Savier came
with a sickle and Jayaseeli came with no weapon. Savier ran
to my brother and cut my brother with sickle. My brother
blocked that and pushed him down. So, the cut did not land
on my brother. My brother tried to run toward West. Jayaseeli H
8 SUPREME COURT REPORTS [2019] 10 S.C.R.

A blocked the way of my brother and shouted not to spare him.
Jayapal stabbed the spike in his hand on the left chest of my
brother. My brother fell down. I ran shouting. Arumainathan
who is in front of my house and those who came by the way,
Chinnaiyan s/o Rengamani, Ravichandran, s/o Gurusamy also
shouted. Jayapal, Jayaseeli and Savier also ran. I chased
B
them to catch them. They ran to each direction. I chased
Jayapal towards east and caught him in a short distance.
Fearing that he may punch me with the spike, I snatched the
spike. He tussled and threw away the spike and ran away.
The spike is lying there. When returned and saw my brother,
C he was struggling for life. I got a van urgently and got him in
the Thanjavur Medical College hospital there doctor examined
him told that my brother had died and sent the corpse to
mortuary. He also told me that he would inform that police. I
was shocked since my brother died and I sat there weeping.
Now I am telling you what happened. I request you to take
D
action on Jayapal, Savier and Jayaseeli who killed my
brother.”
4. In Trial, the prosecution, inter alia, relied on the testimony of
alleged eye witnesses PW-1 to PW-4, who made the statements more
or less in conformity with the narrations in the FIR that the deceased left
E his house to visit Thanjavur; that the appellant and other accused persons
were standing outside their house; that upon the deceased reaching their
house, the accused No. 3 ambushed him, the accused No. 2
unsuccessfully attacked him with a sickle, and the appellant attacked
him with a spike and inflicted the injury on the left side of chest; and that
F the appellant and accused No.2 ran away after throwing their spike and
sickle. The victim succumbed to the injuries at the Thanjavur Medical
College Hospital.
4.1. On the other hand, it was suggested on behalf of the accused
persons that the deceased along with 5 or 6 people came to the house of
G appellant and broke open the door; that the deceased, armed with aruval,
pushed the accused No. 3 (wife of the appellant) when she tried to lock
the door; and that the deceased pulled the saree of the wife of the appellant
and went on to tear her jacket. It was further alleged that since the
deceased did not leave despite requests, the appellant, in order to protect
his wife and while exercising the right of private defence, stabbed the
H deceased on chest with the pair of scissors of a sewing machine and,
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 9
[DINESH MAHESHWARI, J.]

when the deceased fell down, the other persons left the scene. The A
accused persons also examined two witnesses in support of their version
of the incident.
5. On appreciation of evidence, the Trial Court, by its judgment
and order dated 27.06.2000, rejected the defence version and found it
proved beyond reasonable doubt that the appellant did cause injury on B
the vital part of body of the deceased. The Trial Court proceeded to hold
that the acts of the accused-appellant and accused No.2 had been of
murder and they were guilty for offences punishable under Section 302
IPC and under Section 302/34 IPC respectively. The Trial Court held
proved the facts that the deceased warded off the blow attempted by
the accused No. 2 but when the deceased tried to escape, the appellant C
stabbed him with the spike. However, the accused No. 3, wife of the
appellant was acquitted with the Trial Court disbelieving the prosecution
story regarding her participation in the crime, particularly for her having
two children in the age of 2 years and 4 months respectively, and none
of the witnesses having alleged that she was armed with any weapon. D
The Trial Court, inter alia, observed as under :-
“53…The evidence of P.W. 1 to 4 is that when the assault of
A2 was warded off and he pushed him down the accused ran
away. It is not the case of the prosecution that A3 also assaulted
him before or after Poonthaisezhiyan fell down. When the E
evidence of P.W. 1 to 4 is that when A2 assaulted
Poonthaisezhiyan he warded off and when he tried to ran
away A1 stabbed him, and so it cannot be believed and
accepted that A3 way laid him. Moreover, it is not disputed
that on the date of occurrence, and at that time of occurrence,
the 3rd accused was with two children aged about 2 years F
and 4 months. In such circumstances, it is difficult to accept
the case of the prosecution that A3 joined with A1 and A2
helped them and way laid the deceased to commit murder.
Thus the evidence on the side of the prosecution is not
sufficient for the court to come to the conclusion that the G
charge framed U/s 341, 302 r/w 34 IPC has been proved.
Against A3. But the evidence on the side of the prosecution is
cogent, believable and sufficient to prove the charge, u/s 302
against 1st accused and the charge 302, r/w 34 IPC levelled
against A2.”
H
10 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 6. In appeal by the present appellant and the accused No. 2, the
High Court of Madras, in its impugned judgment and order dated
21.02.2008, found no reason to consider interference in the findings
recorded by the Trial Court as regards conviction of the appellant under
Section 302 IPC, but acquitted accused No.2 on the grounds that no
injury corresponding to the weapon allegedly used by him was found on
B
the body of the deceased; and that the witnesses in their testimonies had
made improvements at the time of the examination before the Court,
casting a doubt on the case against accused No.2. The findings of
High Court in relation to accused No. 2 could be usefully extracted as
under: -
C “10. As far as A-2 was concerned, he had aruval and wielded
the same, according to the witnesses examined by the
prosecution. But, no corresponding injury as found. The
prosecution witnesses came forward to state that A-2 had
aruval and wielded it also. According to the prosecution,
D originally to start with, A-2 had aruval; but no injury was
caused which was simply warded off. But, the witnesses have
made a development at the time of the examination before the
Court, and thus, it casts a doubt whether A-2 could have been
in the place of occurrence with an aruval either, or he
attacked the deceased, since no corresponding injury is
E found. The evidence of these witnesses in respect of A-2, casts
a doubt, and hence, it could not be taken as a proof, since it
is shrouded with doubts. Under the circumstances, that part
of the prosecution case in respect of A-2, cannot be believed.
*** *** ***
F
13. As regards A-2, this Court is able to see that the evidence
is shrouded with reasonable doubts, and hence, A-2 is entitled
for acquittal. Accordingly, the conviction and sentence
imposed on A-2 by the trial Court are set aside, and he is
acquitted of the charge. The fine amount if any paid by him,
G will be refunded to him. The bail bound executed by him shall
stand terminated.”
7. For the High Court having affirmed his conviction and sentence
for the offence under Section 302 IPC, the appellant (accused No. 1)
has preferred this appeal. Assailing the judgment and order so passed by
H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 11
[DINESH MAHESHWARI, J.]

the High Court, learned counsel for the appellant has strenuously argued A
that the present one is a clear case of exercise in good faith the right of
private defence since the appellant was only trying to protect his wife
from being assaulted and molested by the deceased who had illegally
entered into their house and, in natural circumstances, the appellant
attacked the deceased with the object that was accessible to him. The
B
learned counsel would submit that even if the accused does not plead
self-defence, it is open to consider such a plea if the same arises from
the material on record; and the burden could be discharged by the accused
by showing preponderance of probabilities in favour of that plea on the
basis of material available on record. The learned counsel has referred
to several decisions, including those in Munshi Ram & Ors. v. Delhi C
Administration: (1968) 2 SCR 455; James Martin v. State of Kerala:
(2004) 2 SCC 203; Darshan Singh v. State of Punjab and Anr.:
(2010) 2 SCC 333; and Sukumaran v. State: 2019 SCC Online SC
339. According to the learned counsel, on the facts and in the
circumstances available on record, the case of right of private defence
D
deserves to be accepted. The learned counsel has also argued that in
any event, the present one had been a case of sudden fight and grave
and sudden provocation for the reason that the deceased entered the
house of the appellant and attempted to cause harm to the family of the
appellant. Therefore, according to the learned counsel, the action of the
appellant does not lead to the offence of murder and it would, at the E
most, be a case of culpable homicide where the appellant had no intention
of causing death or causing such bodily injury as is likely to cause death.
In support of these contentions, the learned counsel has referred to and
relied upon the decisions in Budhi Singh v. State of Himachal Pradesh:
(2012) 13 SCC 663 and Surain Singh v. State of Punjab: (2017) 5
F
SCC 796.
8. Per contra, learned counsel for the respondent would argue
that the appellant had the intention of causing death of the deceased
because of enmity; and prior to the incident in question, the accused had
categorically expressed his intention to kill the deceased. Learned counsel
would submit that the witnesses have established the fact that the place G
of occurrence was the road opposite to the house of the appellant and in
the given circumstances, the case had neither been of the exercise of
the right of private defence nor of provocation and sudden fight; and the
act of the appellant squarely falls under the principal part of Section 300
IPC because of the nature of fatal injury inflicted upon the deceased on H
12 SUPREME COURT REPORTS [2019] 10 S.C.R.

A the vital part of his body with a dangerous weapon. Hence, according to
the learned counsel, the appellant is not entitled to the benefit of any of
the Exceptions of Section 300 IPC. Learned counsel has referred to and
relied upon the decisions in Pulicherla Nagaraju alias Nagaraja Reddy
v. State of A.P.: (2006) 11 SCC 444 and Gudar Dusadh v. State of
Bihar: (1972) 3 SCC 118.
B
9. Having given anxious consideration to the rival submissions
and having examined the record with reference to the law applicable,
we are clearly of the view that in the given set of facts and circumstances,
the appellant deserves to be convicted for the offence under Part-I of
Section 304 IPC, for the offence of culpable homicide not amounting to
C murder.
10. The principal part of Section 299 IPC specifying the offence
of culpable homicide reads as under: -
“299. Culpable homicide. -Whoever causes death by
D doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
10.1. The principal part of Section 300 IPC specifies the offence
E of murder as follows: -
“300. Murder. - Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death,
or-
F Secondly.- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death
of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
G sufficient in the ordinary course of nature to cause death, or-
Fourthly.- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
H causing death or such injury as aforesaid.”
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 13
[DINESH MAHESHWARI, J.]

10.2. The aforesaid description of the offence of murder in Section A
300 IPC is subject to five exceptions. Exceptions 1, 2 and 4 thereof,
being relevant for the present purpose, could also be taken note of as
under: -
“Exception 1. When culpable homicide is not murder.-
Culpable homicide is not murder if the offender, whilst deprived of B
the power of self-control by grave and sudden provocation, causes
the death of the person who gave the provocation or causes the
death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily C
provoked by the offender as an excuse for killing or doing harm to
any person.
Secondly.-That the provocation is not given by anything done
in obedience to the law, or by a public servant in the lawful exercise
of the powers of such public servant. D
Thirdly.-That the provocation is not given by anything done in
the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
E
question of fact.”
Exception 2.-Culpable homicide is not murder if the offender,
in the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
F
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.”
*** *** ***
Exception 4.-Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon G
a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers
the provocation or commits the first assault.
*** *** *** “ H
14 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 10.3 While Section 302 IPC provides the punishment for murder,
Section 304 thereof provides the punishment for culpable homicide not
amounting to murder. For its relevance, we may also extract Section
304 IPC as under:-
“304. Punishment for culpable homicide not amounting to
B murder.- Whoever commits culpable homicide not amounting
to murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
C cause death,
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
D such bodily injury as is likely to cause death.”
11. We may now briefly refer to the decisions cited by the learned
counsel for the parties.
11.1. The principles in the case of Gudar Dusadh (supra), as
E regards the operation of clause “Thirdly” of Section 300 IPC are not of
any dispute but the same would apply with reference to the facts and
circumstances of each case. On the facts of the case of Pulicherla
Nagaraju (supra), this Court noticed that there was previous enmity
between the parties and half an hour before the incident, father and
brother of the deceased had been attacked by the appellant and his
F father and there was no indication of any cause for an apprehension
that the deceased might attack the appellant. In the given fact situation,
this Court found that the act of the appellant causing an injury on a vital
part of the body by stabbing with great force had been of the offence of
murder.
G 11.2. The principles in Munshi Ram and other cited decisions on
behalf of the appellant, that the plea of self defence could be considered
if arising from the material on record and the burden could be discharged
by the accused by showing preponderance of probabilities in favour of
that plea, are also neither of doubt nor of dispute. The question, however,
would remain as to whether the appellant has been able to show a
H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 15
[DINESH MAHESHWARI, J.]

reasonable apprehension so as to put the right of self defence into A
operation. In Budhi Singh and Surain Singh (supra), the accused persons
were convicted for offences under Section 304 Part-I and Section 304
Part-II respectively in view of the facts of the given case. In the ultimate
analysis, each case is required to be examined on its own facts to find
the nature of offence.
B
12. Reverting to the case at hand, as noticed, one of the
fundamental features of this case had been that the appellant, his brother
and his wife were arrayed as accused Nos. 1, 2 and 3 respectively with
the imputations that these three persons had acted in furtherance of
common intention where they intercepted the deceased when he was
crossing the lane in front of the house of the appellant; where brother of C
the appellant (i.e., accused No. 2) attacked the deceased with sickle but
his blow was blocked by the deceased; where the accused No. 3
ambushed the deceased; and where the appellant stabbed the deceased
with the spike. The prosecution suggested that the occurrence took place
on the opposite side of the road in front of the house of the appellant but, D
on the other hand, it was suggested on behalf of the accused that the
deceased barged into the house of the appellant and tried to assault and
molest the wife of the appellant (i.e., accused No. 3); and that the
deceased was attacked by the appellant in exercise of right of private
defence. We shall discuss the other aspects of the matter, including those
relating to the place of occurrence, a little later. Significant it is to notice E
at this juncture that in relation to the case so set up by prosecution, the
Trial Court, even while accepting the evidence of PW-1 to PW-4 in
respect of the appellant and accused No. 2, did not accept the same in
respect of accused No. 3 and held that the charge levelled against her
was not proved. Moreover, the acquittal of accused No. 3 by the Trial F
Court was never challenged. The appellant and the accused No. 2 laid
challenge to their conviction and sentence in appeal before the High
Court. The High Court, though accepted the prosecution case in respect
of the appellant and affirmed his conviction and sentence but, at the
same time, disbelieved the prosecution case in relation to the accused
No. 2 and proceeded to acquit him. The aforesaid findings of the High G
Court and acquittal of accused No. 2 have also not been challenged by
the prosecution. In the net result of the respective decisions of the Trial
Court and the High Court, the prosecution case as regards accused No.
2 and accused No. 3, respectively the brother and the wife of the appellant,
is found unbelievable and stands rejected. As noticed, the assertions by H
16 SUPREME COURT REPORTS [2019] 10 S.C.R.

A the prosecution witnesses had been that the three accused persons acted
in concert while attacking the deceased and that each of the accused
person played his or her specific role in the occurrence. Now, when the
prosecution case is disbelieved in relation to the accused Nos. 2 and 3,
the questions perforce arise as to whether the implicating parts of the
prosecution evidence qua the appellant could be segregated from the
B
other part/s and as to whether it would be safe to accept the prosecution
case against the appellant alone?
13. The question relating to the propriety of conviction of one
accused even while the co-accused persons are acquitted has received
attention of this Court in several decisions. With reference to the principles
C enunciated in the past decisions, this Court observed in the case of Yanob
Sheikh alias Gagu v. State of West Bengal: (2013) 6 SCC 428 that
acquittal of co-accused per se is not sufficient to result in acquittal of
the other accused; and the Court ought to examine the entire prosecution
evidence in its correct perspective before it could conclude on the effect
D of acquittal of one accused on the other in the facts and circumstance of
the given case. In the case of Dalbir Singh v. State of Haryana: (2008)
11 SCC 425, this Court extracted the principles propounded in the case
of Krishna Mochi v. State of Bihar: (2002) 6 SCC 81 and observed
as under: -
E “13. Coming to the applicability of the principle of falsus in
uno, falsus in omnibus, even if major portion of evidence is
found to be deficient, residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of large number of other
co-accused persons, his conviction can be maintained.
However, where large number of other persons are accused,
F the court has to carefully screen the evidence:
‘51. … It is the duty of the court to separate the grain
from the chaff. Where the chaff can be separated from
grain, it would be open to the court to convict an accused
notwithstanding the fact that evidence has been found to
G be deficient to prove guilt of other accused persons. Falsity
of particular material witness or material particular would
not ruin it from the beginning to end. The maxim falsus in
uno, falsus in omnibus has no application in India and the
witnesses cannot be branded as liars. The maxim falsus in
H uno, falsus in omnibus (false in one thing, false in everything)
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 17
[DINESH MAHESHWARI, J.]

has not received general acceptance in different A
jurisdiction nor has this maxim come to occupy the status
of a rule of law. It is merely a rule of caution. All that it
amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
B
which a court may apply in a given set of circumstances,
but it is not what may be called ‘a mandatory rule of
evidence’. (See Nisar Ali v. State of U.P. [AIR 1957 SC
366]). Merely because some of the accused persons have
been acquitted, though evidence against all of them, so
far as direct testimony went, was the same does not lead as C
a necessary corollary that those who have been convicted
must also be acquitted. It is always open to a court to
differentiate the accused who had been acquitted from those
who were convicted. (See Gurcharan Singh v. State of
Punjab [AIR 1956 SC 460]). The doctrine is a dangerous
D
one, specially in India, for if a whole body of the testimony
were to be rejected, because the witness was evidently
speaking an untruth in some aspect, it is to be feared that
administration of criminal justice would come to a dead
stop. Witnesses just cannot help in giving embroidery to a
story, however, true in the main. Therefore, it has to be E
appraised in each case as to what extent the evidence is
worthy of acceptance, and merely because in some respects
the court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be
F
disregarded in all respects as well. The evidence has to be
sifted with care. The aforesaid dictum is not a sound rule
for the reason that one hardly comes across a witness whose
evidence does not contain a grain of untruth or at any
rate exaggeration, embroideries or embellishment. (See
Sohrab v. State of M.P.[(1972) 3 SCC 751] and Ugar Ahir G
v. State of Bihar [AIR 1965 SC 277]). An attempt has to be
made to in terms of felicitous metaphor, separate grain from
the chaff, truth from falsehood. Where it is not feasible to
separate the truth from falsehood, because grain and chaff
are inextricably mixed up, and in the process of separation
H
18 SUPREME COURT REPORTS [2019] 10 S.C.R.

A an absolutely new case has to be reconstructed by
divorcing essential details presented by the prosecution
completely from the context and the background against
which they are made, the only available course to be made
is discard the evidence in toto. (See Zwinglee Ariel v. State
of M.P. [AIR 1954 SC 15] and Balaka Singh v. State of
B
Punjab[(1975) 4 SCC 511]). As observed by this Court in
State of Rajasthan v. Kalki [(1981) 2 SCC 752] normal
discrepancies in evidence are those which are due to normal
errors of observations, normal errors of memory due to
lapse of time, due to mental disposition such as shock and
C horror at the time of occurrence and these are always there
however honest and truthful a witness may be. Material
discrepancies are those which are not normal and not
expected of a normal person. Courts have to label the
category to which a discrepancy may be categorised. While
normal discrepancies do not corrode the credibility of a
D
party’s case, material discrepancies do so.”
13.1. Hence, where this Court found that separation of truth from
falsehood was not feasible because of the two being inextricably mixed
up, the prosecution evidence was discarded in toto1. However, on the
facts of other cases2, this Court found that acquittal of co-accused did
E not enure to the benefit of the convicted accused.
14. It could be usefully reiterated that in the present case, the
prosecution witnesses narrated the happenings in the manner that the
deceased was waylaid by the three accused persons on the road and
while the two male accused persons (appellant and the accused No. 2)
F assaulted the deceased with respective weapons, the accused No. 3
prevented the deceased from running away. The chronology or sequence
of the actions of the accused persons had occurred slightly different in
the different testimonies but those inconsistencies, as such, may not be
of material bearing if the witnesses are otherwise found reliable and
G trustworthy. However, the significant part of the matter is that such
accounts by the witnesses stand disbelieved in relation to the accused
No. 2 and the accused No. 3, both of whom stand acquitted. In our view,
1
Like the cases of Zwinglee Ariel and Balaka Singh, as indicated in the extracted portion
in paragraph 13 hereinabove.
2
H Like those in Yanob Seikh and Dalbir Singh (supra).
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 19
[DINESH MAHESHWARI, J.]

when accused No. 2 and accused No. 3 are removed out of scene, the A
entire complexion of the prosecution story is altered on material aspects
and such an alteration cannot be ignored as being wholly immaterial or
irrelevant.
14.1. In other words, if the prosecution case is taken as false (or
at least doubtful) as regards accused No. 2 and accused No. 3, this part B
of falsehood (or doubtfulness) is difficult to be segregated for the purpose
of believing the prosecution case qua the appellant alone. The exercise
of sifting the grain from the chaff in this matter would shake, rather
annihilate, the fundamentals of the prosecution case; and an entirely
new prosecution story shall have to be assumed that when the deceased
was walking down the lane, the appellant alone jumped on him; gave C
him a blow; threw the weapon towards his own house and ran away. In
our view, on the facts and in the circumstances of this case, it would be
unsafe to assume such or akin scene of occurrence in replacement of
the story propounded by the prosecution. As noticed from the decisions
above-referred, when this Court found that separating the truth from D
falsehood was not feasible because of the two being inseparably mixed
up, the prosecution case was discarded in toto. However, such a course
cannot be adopted in this case and it cannot be held that the appellant
was not involved in the occurrence or did not kill the deceased, essentially
for the reason that the appellant himself took the defence that he assaulted
the deceased in exercise of his right of private defence when the deceased E
allegedly intruded inside his house and attempted to assault and molest
his wife. It is also noticed from the evidence on record that one injury
was caused on the person of the deceased, being a vertical stab injury of
5 cm length and 2.5 cm width in front and outside the left collar bone
that had pierced the upper portion of lung through the third rib. The F
medical officer PW-11 has opined that the injury in the lung was enough
to cause death and could have been caused by the spike in question.
15. In view of the above, even after disbelieving the case of
prosecution as regards the happenings, but taking into account the
admitted case of the appellant that he did inflict injury on the person of G
the deceased, the matter is required to be examined further on the
question as to whether the appellant is entitled to be acquitted for having
justifiably acted in exercise of the right of private defence in order to
save his wife from the alleged assault and molestation.

H
20 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 16. As regards the question as to whether the appellant has been
able to establish the case of right of private defence, we may examine
his assertion that the occurrence took place inside his house. A substantial
deal of arguments had been that admittedly, there were blood stains
outside the house of the appellant, on the road and across the road; and
the Investigating Officer PW-14 did not carry out the investigation inside
B
the house of the appellant nor investigated the private defence angle and
the original mazhar was not produced.
16.1. The contention as regards original mazhar has only been
noted to be rejected. The Trial Court has pointed out, and rightly so, that
carbon copy of the same was produced and there was no such discrepancy
C that could be considered fatal to the prosecution. Having examined the
testimony of the Investigating Officer PW-14, we find on the material
aspects that he recovered the blood stained weapon of offence (sickle)
from the raised platform of the house of appellant; and he went inside
the house of appellant too but did not find the things scattered as alleged.
D He also denied that there were cut marks on the door frame, window
glass or on the door of the house. He further denied the suggestion that
there was blood on the vegetables inside the house of the appellant. He
further stated that the deceased fell down in front of the house of the
appellant but a little far away; and the deceased was laid in the place
where Rangoli was drawn in the house of one Barnabas. It is also noticed
E that as per the site plan prepared by the Investigating Officer, the width
of tar road was about 10 feet in front of the house of the appellant and
his house was just opposite to the house of Barnabas.
17. Hence, even when we find that the prosecution case cannot
be believed as projected, the defence version about the assault on and
F molestation of accused No. 3, the wife of the appellant, equally appears
to be that of overstatement/exaggeration towards the other extreme. In
other words, the part of the appellant’s suggestion that the deceased
entered his house with 5-6 persons and assaulted and molested his wife
is difficult to be accepted; neither there is any convincing evidence in
G that regard nor the circumstances of the case support this version.
However, from the evidence on record, this much is apparent that blood
stains were also found at the door-step of the house of the appellant;
and the weapon of offence was found at the raised platform of the
house of the appellant. The facts and circumstances of this case give

H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 21
[DINESH MAHESHWARI, J.]

rise to a reasonable doubt that the incident in question, in all likelihood, A
took place right at the door of the house of the appellant. Admittedly, the
parties were on hostile terms and they had had an argument at about 5
p.m. the same day outside the house of the deceased. Therefore, the
possibility of quarrel taking place upon the deceased reaching the door-
step of the appellant is not ruled out.
B
17.1. In the given set of fact and circumstances, burden was heavy
on the prosecution to clear the doubts as to how and why the deceased
was at the door-step of the house of the appellant; and how the blood
stains were also found at the door-step of the house of the appellant.
The prosecution has not been able to remove all the obvious doubts as
regards the sequence of events relating to the incident in question and as C
regards the actual place of occurrence.
17.2. In the given set of fact, circumstances and doubts,
preponderance leans towards the probability that the occurrence took
place just at the door-step of the house of the appellant; and the likelihood
of the deceased, who was on inimical terms with the wife of the appellant, D
having given reasons for provocation, by way of aggression or attempted
intrusion into the house of the appellant, is not ruled out altogether.
18. The upshot of the discussion foregoing is that the projected
story of the prosecution cannot be accepted, particularly for the reason
that the accused No. 2 and accused No. 3 have been acquitted and their E
acquittal has attained finality. Then, the prosecution has not been able to
remove all the obvious doubts as to the place and manner of occurrence,
particularly as to who was the aggressor and how it started. On the
other hand, the defence version that the deceased barged into the house
of the appellant with 5-6 persons and assaulted and molested his wife is F
also unacceptable for want of cogent and convincing evidence. However,
the preponderance remains that the occurrence, in all likelihood, took
place just at the door-step of the house of the appellant. In the given
circumstances, the likelihood of the deceased, who was on inimical terms
with the wife of the appellant, having given the reasons for provocation
by way of aggression or attempted intrusion into the house of the appellant G
is not ruled out.
19. Having indicated the obvious but unexplained doubts in the
prosecution version and having also indicated the preponderance of

H
22 SUPREME COURT REPORTS [2019] 10 S.C.R.

A probabilities, we may usefully refer to the decision in the case of Jumman
and Ors. v. The State of Punjab: AIR 1957 SC 469 wherein this
Court has indicated the course to be followed in the case where there is
ambiguity in deciding the role and involvement of the parties. This Court
has said,-
B “22. In such a case where a mutual conflict develops and
there is no reliable and acceptable evidence as to how it
started and as to who was the aggressor, would it be correct
to assume private defence for both sides? We are of the view
that such a situation does not permit of the plea of private
defence on either side and would be a case of sudden fight
C and conflict and has to be dealt with under Section 300 IPC.,
Exception 4.
23. The matter has to be viewed in this way. It is clear that
there was no premeditation and therefore when the contending
factions met accidentally and attacked each other, the conflict
D resulted in a sudden fight, in the heat of passions, upon a
sudden quarrel and without the accused having taken undue
advantage or acted in a cruel or unusual manner. On the
finding that both the parties had arms, there was no undue
advantage taken by either. Hence Exception 4 to Section 300,
E IPC., applies with the result that the offence is under Section
304 (Part I), of the Indian Penal Code.”
20. In view of the foregoing and in the overall circumstances of
this case, we are inclined to accept the alternative case of the appellant
that the incident in question took place without any premeditation, in a
F sudden fight in the heat of passion upon a sudden quarrel, when the
deceased attempted entry into his house; and the appellant did neither
take any undue advantage nor acted in a cruel or unusual manner. A
fortiori, we are inclined to extend the benefit of Exception 4 of Section
300 IPC to the appellant. However, the act of the appellant leading to
the death having been with the intention of causing such bodily injury as
G is likely to cause death, the appellant deserves to be convicted for the
offence under Part-I of Section 304 IPC.
21. Accordingly and in view of the above, this appeal is partly
allowed to the extent and in the manner that conviction of the appellant

H
R. JAYAPAL v. STATE OF TAMIL NADU & ANR. 23
[DINESH MAHESHWARI, J.]

under Section 302 IPC is altered to the one under Part-I of Section 304 A
IPC and the appellant is sentenced to undergo imprisonment for a period
of ten years. The other part of sentence as regards fine and default
stipulation is maintained.

Ankit Gyan Appeal partly allowed. B

C

D

E

F

G

H