The Sessions Judge treated the evidence of two
hostile witnesses as the spokesmen of the prosecution case.
It is true that merely because a witness is declared hostile
his evidence cannot be rejected on that ground alone.
However, once a prosecution witness is declared hostile the
prosecution clearly exhibits its intention not to rely on
the evidence of such a witness. In these circumstances, the
Sessions Judge was not at all justified in treating the
version given by P.Ws. 5 and 7 as the version of the
prosecution itself.
2. The principle of 'Falsus unus falsus omnibus' does not
apply to criminal trials and it is the duty of the Court to
disengage truth from falsehood, to sift the grain from the
chaff instead of taking at easy course of rejecting the
prosecution case in its entirety merely on the basis of a
few infirmities.
PETITIONER:
KESHORAM GORA
Vs.
RESPONDENT:
STATE OF ASSAM
DATE OF JUDGMENT01/02/1978
CITATION:
1978 AIR 1096 1978 SCR (2) 788
1978 SCC (2) 407
ACT:
Indian Penal Code--Sec. 99--302--304 Part II--Causing murder
in exercise of right of private defence--Exceeding right of
private defence--Evidence of hostile witness--Admission of
accused--Exculpatory and inculpatory part if separable.
HEADNOTE:
The appellant alongwith his brother Someshwar was prosecuted
under section 302 read with section 34 of the I.P.C. for
causing death of one Kalinath. According to the prosecution
Kalinath was uprooting pulses from his land when the accused
Keshoram and his brother Someshwar appeared on the scene
armed with shels along with their father and brother and
attacked the deceased. The deceased received a number- of
injuries :is a result of which he fell down and died.
F.I.R. was lodged by P.W. 3 Ramakanta Bora at about 11 a.m.
In the F.I.R.. however only the name of P.W. 1 Upendra
Chandra Bora was mentioned as a witness. The defence of the
accused was that the actual occurrence took place in the
land belonging to the father of the accused Kanwal Chandra
and when the deceased tried to assault the ploughmen of the
accused the accused injured the deceased in exercise of
their right of private defence. The Sessions Judge was of
the view that as the prosecution itself presented two
contradictory versions it failed to prove the manner in
which the occurrence took place and accordingly acquitted
the accused.
In an appeal the High Court accepted the evidence of the eye
witnesses and over-ruled finding of the Sessions Judge that
the prosecution had itself given two contradictory versions
of the occurrence.
Partly allowing the appeal,
HELD : 1. The Sessions Judge treated the evidence of two
hostile witnesses as the spokesmen of the prosecution case.
It is true that merely because a witness is declared hostile
his evidence cannot be rejected on that ground alone.
However, once a prosecution witness is declared hostile the
prosecution clearly exhibits its intention not to rely on
the evidence of such a witness. In these circumstances, the
Sessions Judge was not at all justified in treating the
version given by P.Ws. 5 and 7 as the version of the
prosecution itself. [790 C-E]
2. The principle of 'Falsus unus falsus omnibus' does not
apply to criminal trials and it is the duty of the Court to
disengage truth from falsehood, to sift the grain from the
chaff instead of taking at easy course of rejecting the
prosecution case in its entirety merely on the basis of a
few infirmities. [790 F-G]
3. The accused has clearly admitted that he did assault the
deceased with a sharp cutting weapon as a result of which
the deceased Kalinath fell down. The prosecution evidence
therefore has to be judged in the light of the admissions
made by the accused. [791 B & C]
4. It is well settled that where a confession or admission
is separable there can be no objection to taking one part
into consideration which appears to be true and reject the
other part which is false. [191 D]
Nishi Kant Jha v. State of Bihar [1969] 2 SCR 1033; relied
on.
5. It would appear from the evidence of P.W. 5, that the
land in which the assault took place belonged to father of
the accused. Although this 'Witness was declared hostile
this part of the statement made by him is amply corrobora-
789
ted by the testimony of independent witness, namely PW 6.
The Police did not find blood marks either in the land of
the deceased or in the land of the accused. From the
evidence of PW 6 it appears that brother of the accused
Someshwar was first assaulted by Kalinath. The appellant,
therefore, assaulted Kalinath in the land of his father
after Someshwar was assaulted by the deceased. The evidence
of the other eye witness who has given the one sided version
of the assault by the accused on the deceased cannot be
accepted in toto. However, neither the appellant nor
Someshwar received any injuries. There can be no doubt that
the appellant exceeded the right of private defence. The
Court, therefore, altered the conviction of the appellant
from tie under section 302/34 to section 304 Part It. [791
F-H, 792 A, C. D & E ]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 466 of
1976.
Appeal from the Judgment and Order dated 13-8-1976 of the
Assam High Court in Crl. A. No. 3/1971.
P. H. Parekh and Kailash Vasdev for the Appellant.
S. K. Nandy for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal is directed against the judgmnet
of the Assam High Court dated 13-8-1976 by which the High
Court allowed the appeal and after reversing the judgment of
the Sessions Judge acquitting the appellants, convicted the
accused Keshoram Bora and Someshwar Bora under section
302/34 and sentenced them to imprisonment for life. 'The
appellant Keshoram Bora has preferred this appeal under the
Supreme Court (Enlargement of Criminal Appellate Jurisdic-
tion) Act, 1973 as also under section 379 of the Code of
Criminal Procedure, 1973.
A detailed narrative of the prosecution case is contained in
the judgment of the High Court and it is not necessary for
us of repeat the same all over again.
According to the prosecution, Kalinath Bora was uprooting
pulses from his land on 19th December, 1967 at about 9 a.m.
when the accused Keshoram Bora and Someshwar Bora appeared
on the scene armed with 'Shels' along with their father and
brother and attacked the deceased. The deceased received a
number of injuries as a result of which he fell down.
F.I.R. was Iodized by P.W. 3 Roma Kanta Bora at Police
Station Dhing at about II a.m. on the same day. In the F.
I.R.,however, only thename of P.W. I Upendra Chandra Bora
was mentioned as a witness. The police arrived on the
scene of the occurrence and after the usual investigation
submitted a charge-sheet against the accused as a result of
which they were committed to the court of Sessions, but
ultimately acquitted as indicated above.
The defence of the accused was that the actual occurrence
took place in the land belonging to the father of the
accused Kamal Chandra when the deceased tried to assault the
ploughmen of the accused and in order to protect them the
appellant Keshoram Bora assaulted the deceased with a
pointed weapon resulting fatal injuries to him. The
12--119 SCI/78
790
accused thus pleaded that the complainant had come armed and
trespassed in the field of the accused and wanted to assault
his men as a result of which the appellant assaulted the
deceased in self defence.
The learned Sessions Judge was of the view that as the
prosecution itself presented two contradictory versions,
hence the prosecution failed to prove the manner in which
the occurrence took place and accordingly acquitted the
accused.
The central evidence against the accused consisted of P. Ws.
1, 2, 4, 5, 6, 7 and 9. This evidence was sought to be
corroborated by an oral dying declaration said to have been
made by the deceased to P.W. 4 in the presence of P. Ws. 1
and 2 as also by an extra judicial confession made by the
accused to Roma Kant Bora, P.W. 3. Both the High Court and
the Sessions Judge disbelieved the evidence furnished by the
dying declaration and the extra judicial confession. The
High Court, however, accepted the evidence of the eye-
witnesses and overruled the finding of the Sessions Judge
that the prosecution had itself given two contradictory
versions of the occurrence. We have beard counsel for the
parties and have gone through the judgment of the High Court
and of the Sessions Court and we find ourselves in complete
agreement with the reasons given by the High Court in
accepting the prosecution case. The Sessions Judge appears
to have treated the evidence of two witnesses, namely, P. W.
5 and 7 as the spokesmen of the prosecution case when in
fact these witnesses had been declared hostile by the
prosecutor and the court granted permission to the prose-
cution to cross-examine these witnesses. While it is true
,hat merely because a witness is declared hostile his
evidence cannot be rejected on that ground alona it is
equally well settled that when once a prosecution witness is
declared hostile the prosecution clearly exhibits its
intention not to rely on the evidence of such a witness. In
these circumstances, therefore, the Sessions Judge was not
at all justified in treating the version given by P.W. 5 and
7 as the version of the prosecution itself. The High Court,
therefore, rightly set aside the findings of the learned
trial Judge on this point.
Learned counsel for the appellant submitted that a material
part of the prosecution case having been rejected the High
Court was wrong in convicting the appellant on the residue,
particularly when lie had been acquitted by the trial Court.
It is now well settled that the principle Falsus unus falsus
omnibus does not apply to criminal trials and it is the duty
of the court to disengage the truth from falsehood. to sift
the grain from the chaff instead of taking an easy course of
rejecting the prosecution case in its entirety merely on the
basis of a few infirmities. In the instant case, the High
Court has clearly found that the evidence of P.W. 1, 2, 4,
6, and 8 proves beyond reasonable doubt that the occurrence
had taken place according to the manner alleged by the
prosecution. Even the appellant in his statement under
section 342 Cr. P.C. stated as follows
"Rahim and Mohammad were, ploughing in our
land. They told me that while they were
ploughing, Kalinath with a dao prevented them
and so, they stopped ploughing. At that time
Kalinath was not there. I asked both of them
to
791
plough again. They began to plough. Kalinath
alias Kalinath again came there with a dao.
He uttered sic "'Who are you" and chased me
raising a dao to assault me. Looking hither
and thither I could find nobody. As soon as
he ,came near me by raising dao, I having
found no means, started assaulting him with
the holanga taken for bringing paddy. After
a
little while he fell down. My elder brother,
Someshwar also arrived there."
It will appear from the categorical admission made by the
accused that he did assault the deceased with a. sharp
cutting weapon which he ,,calls "holanga" as a result of
which the deceased Kalinath fell down. The justification
pleaded by the accused is that he did so in order to
,protect his ploughmen from being attacked with a dao. A
perusal of the statement of the accused clearly reveals that
he does not dispute having fatally assaulted the deceased,
but has pleaded self defence. The prosecution evidence,
therefore, has to be judged in the light of the admission
made, by the accused. It was 'submitted by counsel for the
appellant that it was not open to the court to take the
inculpatory part into consideration and reject the
exculpatory part. It is submitted that an admission can be
taken either as a whole or not at all. It is well settled
that where a confession or an admission is 'separable there
can be no objection to taking one part into consideration
which appears to be true and reject the other part which is
false. In the case of Nishi Kant Jha v. State of Bihar(1)
this Court observed as follows:
"In circumstances like these there being
enough evidence to reject the exculpatory part
of the statement of the appellant in Ex. 6 the
High Court had acted rightly in accepting the
inculpatory part and piecing the same with the
other evidence to come to the conclusion that
the appellant was the person responsible for
the crime."
In the instant case, the circumstances are almost identical
with. the facts of the case of this Court cited above. Here
also, even the prosecution evidence proves that the deceased
was assaulted with a "holanga" as a result of which he died.
The only bone of contention between the prosecution and the
defence case is as to the situs or the place where the
assault took place. According to the prosecution, the
occurrence took place in the land of the deceased. It
would, however, appear from the evidence of P.W. 5 that the
land in which the assault took place belonged to Kamal
Singh. Although this witness was declared hostile, this
part of the statement made by the witness is amply
corroborated by the testimony of an independent witness,
namely, P.W. 6 Anarta Kumar Bora who also says that the land
belonged both to Kalinath and Kamal Singh. The police does
not appear to have found blood marks either in the land of
the deceased or in the land of the accused which would have
been a conclusive factor to determine where the occurrence
took place.
(1) [1969] 2 S.C.R. 1033.
792
Furthermore, from the evidence of P.W. 6 it appears that the
accused Someshwar first assaulted the deceased with a lathi
and thereafter Someshwar and the appellant surrounded him
and the appellant pierced him with a 'shel'. In thsi
connection P.W. 6 has deposed as follows :
"I saw 'shels' in the hands of Keshoram and
Someshwar. Between them, there was Kalinath,
Someshwar was first assaulted on the hands. I
cannot say with what it was assaulted.
Kalinath had a lathi in his hands measuring
about 2 cubits. As soon as Someshwar was
assaulted, Someshwar fell down on the ground.
Keshoram pierced Kalinath with a shel."
There was some controversy regarding the translation of the
sentence "Someshwar first assaulted on the hands". We have,
therefore, consulted the original and on a proper reading of
the original it seems to us that what the witness stated was
that Someshwar was first assaulted on the hands by the
deceased Kalinath, with a lathi and as soon as Someshwar was
assaulted he fell down and then the appellant Keshoram
pierced Kalinath with a shel.' Taking this statement of P.W.
6 with the admission of the appellant it is absolutely clear
that the appellant undoubtedly assaulted the deceased in the
land of his' father after Someshwar was assaulted by the
deceased.
The evidence of the other eye-witnesses who seem to have
given one sided version of the assault by the accused on the
deceased cannot be accepted in toto. It seems to us that
the deceased must have entered the land of the accused and
either tried to assault or may have assaulted Someshwar with
a lathi which provoked the appellant to assault the deceased
purporting to act in self defence. As however neither the
appellant nor Someshwar received any injuries, there can be
no doubt that the appellant exceeded the right of private
defence. Thus, on the acceptable evidence in the case, the
accused can only be convicted of an offence under' section
304 Part 11 of the Penal Code for having exceeded the right
of private defence.
For the reasons given above, we would, therefore. allow this
appeal to this extent that the conviction of the appellant
is altered from one under section 302/34 to that under
section 304(2)/34 and the sentence is reduced from life
imprisonment to 5 years rigorous imprisonment. As Someshwar
is reported to have died, it is not disputed that the appeal
has abated in. so far as he is concerned.
P.H.P. Appeal allowed in part.
793
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