REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 586 OF 2007

Ganesh ...Appellant

Vs.

State of Karnataka and Ors.        ...Respondents

WITH

(Criminal Appeal No. 50/2006) (Criminal Appeal No. 587/2007) (Criminal Appeal No. 588/2007) (Criminal Appeal No. 589/2007)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These  appeals  are  interlinked  and  therefore  they  are

disposed of by this common judgment.  

2. The High Court by its judgment dated 24th August, 2005

disposed of three appeals.  Criminal Appeal 394 of 2001 was

filed  by the  State  of  Karnataka questioning  acquittal  of  the

accused persons for the offence punishable under Section 302

read with Section 149 of the Indian Penal Code, 1860 (in short

the ‘IPC’). The other appeals were filed by the accused persons

who  were  convicted  for  offences  punishable  under  Sections

143, 148, 504 read with Section 149, Section 324 read with

Section  149  IPC,  Section  326  read  with  Section  149  and

Section 307 read with Section 149 IPC. In all 25 persons faced

trial.  However,  the  trial  Court  found  only  6  of  the  accused

persons to be guilty and therefore  they filed appeals which

were  numbered  as  Criminal  Appeal  Nos.1344/2000  and

1359/2000. The other appeal was filed by the State as noted

above.   

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3. The High Court acquitted S.Holeyappa (A-1) but held the

other five to be guilty of offence punishable under Section 302

read  with  Section  149  IPC.  Accordingly  State’s  appeal  was

allowed.  The  appeals  filed  by  the  accused  persons  were

dismissed.   

4. It is to be noted that while accepting the State’s appeal,

the accused persons were convicted for the offence punishable

under Section 302 read with Section 149 IPC.  

5. Background facts in a nutshell are as follows:  

The accused, the deceased and the material prosecution

witnesses are all residents of Malladihalli  village in Holalkere

Taluk. Accused Nos. 1 and 4 are brothers. Accused No.2 is the

son of accused No.4, whereas accused Nos. 3 and 5 are the

sons  of  accused  No.1.  Accused  No.6  is  related  to  these

accused.  Similarly  on prosecution side,  Shivakumar  (PW-2),

Lokesh  (PW-3)  and  Murthappa  (PW-7)  are  the  sons  of  the

Kenchappa  (hereinafter  referred  to  as  ‘deceased’).  Relation

between the accused group and the deceased and his family

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members  was strained  over  erecting  an electric  pole  in the

land of the accused, the line of which would have passed and

benefited the deceased and his borewell in the land near by

which was objected by the accused. This ill  will and enmity

ultimately  resulted  in  the  assault  on  the  deceased  and his

sons on 2.10.1995.  On that day, there was a festival and a

procession  was  taken  of  the  deity  by  the  villagers.  The

deceased  and  his  children  had  also  joined  the  procession.

According to the prosecution when the procession came near

the post office by the side of which is also the house of the

accused,  the  accused  group  suddenly  pounced  upon  the

deceased  and  his  children  and  assaulted  them.  This  took

place around 6.30 P.M., or so in the evening. After the assault

Kenchappa (deceased), P.W.2 Shivakumar, Lokesh were taken

to the hospital. In spite of the treatment given to the injured

Kenchappa,  he  breathed  his  last  on  7.10.1995.  Thereafter,

PW-1 a nephew of the deceased approached the jurisdictional

police at Holalkere and gave his written information  as per

Ex.P.1, P.W.25   Mohammad Arif, S.H.O. of the Police Station

on receipt of the written information from P.W.1, registered a

case in Crime No.290/1995 for the offences under Sections

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143,  147,  148,  504,  324,  307  read  with  Section  149  IPC

against  18  named  and  other  un-named  accused  and

investigation was taken up. After the death of Kenchappa on

7.10.1995  the  offence  under  Section 302 read with Section

149 IPC was also added.  After completion of investigation, the

charge  sheet  was  filed.  The  trial  was  held  as  the  accused

persons abjured guilt. Thirty nine witnesses were examined to

further the prosecution version. The trial Court as noted above

placed reliance  on the evidence  of  large number of  persons

who  are  stated  to  be  eye  witnesses  and  held  the  accused

persons guilty of several offences but acquitted them of the

charge relatable to Section 302 read with Section 149 IPC.   

In appeal,  the primary stand of the State was that the

evidence on record left no manner of doubt that Section 302

read with Section 149 IPC was clearly applicable. The accused

appellants in their appeals contended that the evidence does

not inspire confidence and most of the related witnesses are

partisan  witnesses  and  the  High  Court   did  not  find  any

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substance  in the appeals  filed  by the  accused  persons and

accepted the appeal filed by the prosecution.  

6. In  support  of  the  appeals,  learned  counsel  for  the

appellants  submitted  that  the  eye  witnesses  PWs  2  and  3

should  not  have  been  accepted  as  they  were  to  be  related

witnesses. Admittedly, there was enmity between the parties

because of political rivalry.  There was delayed examination of

so-called witnesses.  It is  submitted that when the trial Court

acquitted 19 accused persons i.e. A-7 to A-25 and the High

Court directed acquittal of A-1, it would be unsafe to sustain

the  conviction  of  others.   The  investigating  officer  did  not

investigate  fairly and therefore  the trial  Court and the High

Court were not justified in upholding the conviction of the five

appellants.   It  is submitted the cause of death was due to

cardiac arrest and not on account of injuries sustained in the

alleged  incident.  Therefore,  Section  302  IPC  has  no

application.  

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7. Per contra, learned counsel for the State supported the

judgments of the trial Court and the High Court.  

8. In the instant case, the evidence of PWs 2, 3, 7 and 13 is

of considerable relevance. Out of 39 witnesses examined, PWs

1 to 7, 12, 14, 15, 16, 27 to 29, 31, 33 and 35  were projected

as  eye  witnesses  to  the  incident.  But  at  the  stage  of  trial,

except PWs 1 to 3, 7, 14 and 15, others did  not support the

prosecution.   The evidence on record shows that PWs 2 and 3

were  injured  witnesses.  Their  evidence  assumes  great

importance.  It  was  pointed  out  by  learned  counsel  for  the

appellants that no definite overt act has been attributed to any

of  the five respondents.  

9. In Masalti v. State of Uttar Pradesh (AIR 1965 SC 202)  it

has been observed as follows:

“where a crowd of assailants who are members of an unlawful  assembly proceeds  to commit an  offence  of  murder  in  pursuance  of  the common object of the unlawful assembly, it is often  not  possible  for  witnesses  to  describe accurately the part played by each one of the

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assailants. Besides, if a large crowd of persons armed  with  weapons  assaults  the  intended victims,  it  may  not  be  necessary  that  all  of them have to take part in the actual assault. Where  for  instance,  several  weapons  were carried by different members  of the unlawful assembly,  but it  appears that the guns were used and that was enough to kill 5 persons, it would  be  unreasonable  to  contend  that because  the  other  weapons  carried  by  the members  of  the  unlawful  assembly  were  not used, the story in regard to the said weapons itself  should  be  rejected.  Appreciation  of evidence in such a complex case is no doubt a difficult task; but criminal  courts have to do their best in dealing with such cases and it is their  duty  to  sift  the  evidence  carefully  and decide  which part  of  it  is  true  and which is not.

It  is true that under the Evidence Act,  1872 trustworthy evidence given by a single witness would  be  enough  to  convict  an  accused person,  whereas  evidence  given  by  half  a dozen  witnesses  which  is  not  trustworthy would not be enough to sustain the conviction. But where a criminal  Court  has to deal  with evidence  pertaining  to  the  commission  of  an offence involving a large number of offenders and a large number of victims, it is usual to adopt  the  test  that  the  conviction  could  be sustained  only  if  it  is  supported  by  two  or three or more witnesses who give a consistent account of the incident. In a   sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no  doubt,  the  quality  of  the  evidence  that matters and not the number of witnesses who

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give  evidence.  But  sometimes  it  is  useful  to adopt a mechanical test.”   

10. In the instant case, though large number of co-accused

have been acquitted that cannot be a ground to discard the

evidence of trustworthy witnesses.  

11. As a rule of universal application, it cannot be said that

when a portion of  the  prosecution evidence  is  discarded  as

unworthy of  credence,  there  cannot  be any conviction.  It  is

always open to the court to differentiate between an accused

who has been convicted and those who have been acquitted.

(See Gurcharan Singh v. State of Punjab (AIR 1956 SC 460) and

Sucha Singh v. State of Punjab (2003 (7) SCC 643).  The maxim

“falsus in uno, falsus in omnibus” is merely a rule of caution.

As has been indicated by this Court in  Sucha Singh case in

terms of felicitous metaphor, an attempt has to be made to

separate the grain from the chaff, truth from falsehood. When

the  prosecution  is  able  to  establish  its  case  by  acceptable

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evidence, though in part, the accused can be convicted even if

the co-accused have been acquitted on the ground that the

evidence led was not sufficient to fasten guilt  on them. But

where  the  position  is  such  that  the  evidence  is  totally

unreliable, and it will be impossible to separate the truth from

falsehood  to an extent  that  they are  inextricably  mixed up,

and in the process of separation an absolutely new case has to

be reconstructed by divorcing essential  details  presented by

the prosecution completely from the context and background

against which they are made, conviction cannot be made.  

12. Great emphasis was laid on the version of the doctor to

contend that the death was not due to any injury but it was

due  to  cardiac  arrest  and respiratory  failure  as  a  result  of

tetanus.   The  doctor’s  evidence  is  by  way  of  hypothetical

answer that the death would not occur because of the injuries

received by sharp edged weapon.  The evidence of Shiv Kumar

(PW-2),  Murthappa  (PW-7)  and  Lokesh  (PW-3)  clearly

established the role played by the accused persons and PW-3

was the injured witness.  Ganesh (A-3) assaulted PW-2 with

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axe on the neck part.  He stated that A-4 has assaulted PW-2

with sickle and thereafter he assaulted him.  The evidence of

PWs 1, 2, 3, 7 and 14 inspire confidence and, therefore, the

trial  Court  and  the  High  Court  had  rightly  convicted  the

appellants. So far as acquittal of A-1 is concerned, the High

Court  has  given  ample  reasoning  for  setting  aside  his

conviction  and  affirming  the  conviction  of  other  accused

persons.  

13. The  appeals  are  without  merit  and  deserve  dismissal

which we direct.  

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………..……………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 20, 2008   

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