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CASE NO.: Appeal (crl.)  1177 of 1997

PETITIONER: Narain                                                           

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 04/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

Appellant-Narain (hereinafter referred to as ’the  accused’) questions legality of judgment rendered by a  Division Bench of the Madhya Pradesh High Court, which held  his conviction for offence punishable under Section 304 Part  I of the Indian Penal Code, 1860 (in short ’the IPC’) to be  in order.  Consequentially, sentence of eight years rigorous  imprisonment and fine proposed were affirmed.

Eight persons faced trial including the appellant for  alleged commission of offences punishable under Sections  148, 302/149, 307/149, 324/149. 323/149 and 450 IPC.  The  Trial Court held that the accusations were not established.  Against rest of the seven while it was established only in  respect of appellant relating to the offence for which  he  has been found guilty. The accused-appellant was made to  undergo imprisonment for 8 years and to pay a fine of  Rs.5000/- with default stipulation.  The order of conviction  was questioned by the appellant before the High Court.  The  State also questioned the legality of the acquittal as  directed for rest of the accused.  A revision application  was filed by the father of the Makhan (hereinafter referred  to as ’the deceased’) with similar prayers as that of the  State.   

The prosecution story in brief is as follows:

On 24.2.1986 at about 6.30 a.m. at village Murachh, the  informant Halke, alias Laxman (PW-14) had gone to call his  labourers who were under a Pipal tree.  The accused persons  armed with Farsa, ballam, etc. came there and surrounded  him.  Accused-appellant Narain Singh incited the others to  assault him and exhorted that he should not be permitted to  escape and should be done to death. Thereafter Narain Singh  assaulted Laxman (PW-14) with a Farsa on his head. Tijji Bai  (PW-6) came on the spot to save Halke, but she was also  assaulted. Thereafter, the accused persons chased the  deceased Makhan and assaulted him with Farsa, axe and sticks  near the house of Sukka Baniya (DW-2).  Parvati Bai (PW-10),  Siya Bai (PW-13), Kanchhi Bai and Lalla Bai and Khilan Singh  (PW-4) came to the spot in order to save Halke, but they

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were also assaulted. Siya Bai (PW-13) and others took  deceased Makhan inside the house of Sukka (DW-2) in order to  save him, but the accused persons entered the house and  assaulted Makhan there also. The report of the incident was  lodged on the same day at 11.00 a.m. by Laxman Singh (PW- 14), which was recorded as Dehati Nalsi (First information  report). On the basis of said report, investigation was  undertaken and the accused persons were arrested.

The accused persons pleaded innocence and also took  definite stand that on account of enmity and rivalry  prosecution witnesses who claimed to be the eyewitnesses and  to have sustained injuries assaulted the accused persons and  in any event they have acted in exercise of right of private  defence. They also stated that true genesis of the  occurrence has been suppressed and the occurrence did not  take place at the places indicated by the prosecution.   

The Trial Court found that the prosecution has not  really come out with actual scenario. According to  prosecution the occurrence took place at 3 different places.  But the evidence was to the contrary.  The occurrence took  place at a place different from where it was claimed by the  prosecution.  It also found unexplained discrepancies in the  evidence of all the prosecution witnesses and, therefore,  held that seven out of the eight accused persons were not  guilty.  So far as the appellant is concerned, it was held  that though the evidence on record indicates that assaults  were made by the deceased and some of the prosecution  witnesses, on whom, yet the deceased had exceeded his right  of private defence, even though the same may have been  available to him at some point of time.  The High Court  confirmed the conclusions and affirmed the conviction and  sentence.  It dismissed, by a common judgment appeal of the  State and revision filed by father of the deceased.  

In support of the appeal, learned counsel for the  appellant submitted that substratum of prosecution version  has been corroded.  The Trial Court and the High Court were  not justified in convicting the appellant, on the self same  evidence which was found to be totally unreliable for seven  co-accused persons.                                                  

In response, learned counsel for the State submitted  that though part of the evidence has been discarded, the  residue was sufficient to convict the accused.  It was  pointed out that the places of occurrence as claimed by the  prosecution were really not at a great distance from the  place where the occurrence took place according to the Trial  Court and the High Court. When the accused-appellant himself  took the plea of right of private defence, the courts below  were justified in convicting him.   

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 Guru Charan Singh and Another v. State of  Punjab (AIR 1956 SC 460) and Sucha Singh and Another v.  State of Punjab (2003 (5) Supreme 445).  The maxim "Falsus  in uno falsus in omnibus" is merely a rule of caution.     As has been indicated by this Court in Sucha Singh’s case  (supra), in terms of felicitous metaphor, an attempt has to  be made to separate grain from the chaff, truth from

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falsehood. When the prosecution is able to establish its  case by acceptable 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 truth from falsehood to an extent  that they are inextricably mixed up, and in the process of  separation an absolute 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.  

In the case at hand it is noticed that the Trial Court  analysed the factual position in great detail.  According to  the prosecution the incident took place at three different  places’ i.e. first under the Pipal tree where the informant  (PW-14) Laxman Singh @ Halka had gone to call his labourers,  then on the road in front of the house of Sukka  Baniya (DW- 2), and thereafter inside the house of (DW-2) where the  deceased was taken in order to save him from the assaults.  Apart from the alleged first information report, the  statement purported to be a dying declaration of PW-14 was  recorded by the Nayab Tehsildar and Executive Magistrate  (DW-1). In this statement (Exb. P/18) he had stated that  while he was sitting along with family members incident took  place. But in the first information report, he had stated  that he had gone to call the labourers whereupon accused  persons came there and assaulted him and others.  The Trial  Court found that the informant was not a reliable witness,  because he even denied to have given the dying declaration,  when it was established by the statement of DW-1 that the  statement was recorded by him. Injured witnesses Tijji Bai  (PW-6), Parvati Bai(PW-10), Siya Bai (PW-13), and Khilan  Singh (PW-4) who claimed to be eyewitnesses had given  varying versions and their evidence was found unacceptable  about the actual occurrence. Their statements in Court were  at great variance from what they had stated during  investigation. It was also noticed by the Trial Court that  from the evidence of the informant (PW-14) it was clear that  he had seen actual assault on the deceased.  The evidence of  so-called eyewitnesses as to where the assaults were made on  the body of the deceased was found also to be discrepant and  not consistent. One of the prosecution witnesses who claimed  to be an eyewitness i.e. (PW-13) admitted in cross- examination that deceased had first assaulted the appellant  with lathi on his head.  The Trial Court found this to be of  significant, but said that though it was probable that the  appellant had acted in retaliation, the plea of right of  private defence was not acceptable. These findings were  confirmed by the High Court.  

In view of the findings, the inevitable conclusion is  that prosecution has not established its accusations against  any of the accused persons including the appellant. It is  significant to note that the Trial Court itself observed  that the deceased and others assaulted the appellant and he  may have acted in retaliation.  

The genesis of the incident, the place of incident and  the manner in which the incident took place was found not to  have been established by cogent and credible prosecution  evidence. Therefore, on the peculiar facts of the case and  the nature of evidence tendered by the prosecution there is  no scope for taking a different view so far as the appellant

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is concerned and treat the case against him alone to have  been substantiated beyond reasonable doubt. The conclusion  arrived at in respect of other accused persons were equally  applicable so far as the appellant is concerned.

That being the position, we set aside the conviction as  recorded by the Trial Court and affirmed by the High Court.   The appeal is allowed.  The bail bonds of the appellant be  cancelled.