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PETITIONER: KESHORAM GORA

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT01/02/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

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]

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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

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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

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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

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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