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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: CHANDVIR & ORS

DATE OF JUDGMENT:       17/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J)

CITATION:  JT 1996 (5)   205        1996 SCALE  (4)161

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  Division Bench  of the  Punjab &  Haryana High Court made in Criminal Appeal No.424 of 1985 or September 3, 1986. The case of the prosecution is that on September 21, 1984 at at  about   4.30  p.m.   Smt.  Chandro,  a  witness  of  the prosecution, had  a quarrel  with one  Smt. Sunita  who  had drawn  water stealthily from the well dug by the prosecution party. Pursuant to that, when Rajpal-deceased was proceeding by the  side of the house of the accused at 5.45 p.m., there ensued a  quarrel between  Subhash and Rajpal, now deceased, and other. In the quarrel the intervener had separated them. While  deceased was  proceeding towards his house at 6 p.m., it  is the  case  of  the  prosecution  that  all  the accused, who  were standing  near the  house of Medu, one of the accused,  had  attacked  the  deceased  and  when  other parties had come to intervene, they were also beaten up. The deceased almost  died instantaneously; after he was taken to the hospital  he was  declared dead. Thereafter a report was lodged at  about 11.30 p.m. by Medu, PW-9. Investigation was made. The accused were arrested and were charged for various offences,  including   the  offences   under  Sections  148, 302/149, 324,  325, etc.  The  trial  Court  acquitted  five accused  and  convicted  A1  to  A8  for  various  offences, including the  offences under  Section 302 read with Section 149. On appeal, the High Court set aside the convictions and acquitted them  of all  the charges.  Thus  this  appeal  by special leave.      The learned  counsel for  the appellants  has contended that the medical evidence established that the deceased died due to  shock and  haemorrhage on account of the injuries to the lung and heart, which, in the ordinary course of pature, causes death.  Therefore, there is no dispute as regards the homicide of the deceased Rajpal. He contended that PWs.9, 12 and  13   are  the  injured  witnesses.  There  is  also  an independent witness. All have spoken of the participation of

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the accused  in the commission of the crime. The prosecution therefore has  established the  case beyond reasonable doubt The High  Court therefore  was right  in giving  benefit  of doubt to the respondents.      Having gone  through the  evidence  and  the  reasoning given by  the High  Court we  do not  think  that  the  case warrants interference.  It is  seen that the prosecution has deliberately separated  two incidents which occurred at 5.45 p.m and  6 p.m.  on that  date. A  reading of  the  evidence clearly goes  to show  that  after  the  first  incident  of quarrel  between  the  ladies  had  taken  place,  when  the deceased-Rajpal was  passing through  the road  and had come near the house of the accused there appears to have arisen a quarrel   between the  accused  party  and  the  prosecution party. Both  the incident  had taken place during the course of the   same  transaction. The question then is: whether it is possible to believe the evidence of the injured witnesses implicitly to  base the  conviction of  the respondents?  It would appear  from the  evidence adduced  that there  is  no common object or intention to kill deceased. It would appear that it  is a  case of  free fight between the accused party and the prosecution party on account of the quarrels between the two families. There is evidence that some of the accused suffered  injuries   in  the   same  transaction   and   the prosecution has  not explained  injuries on  them. In  those circumstance the  liability of each of the accused has to be considered independently,  In that  attempt, we have scanned the evidence  of injured  witness  carefully  vis-a-vis  the reasoning given  by the High Court, It would appear that all the witnesses have improved upon their version stated in the statement recorded  under Section  161, Cr.P.C. In fact, the Sessions Court  itself has  noted that some of the witnesses have spoken falsely in their evidence with regard to some of the accused. Under those circumstances, would it be possible to place  implicit reliance on the evidence of these injured witnesses, though  their presence stands confirmed?  We have given our  anxious consideration  to the facts it this case. We Find  that it  is absolutely difficult  to place implicit reliance on  their evidence.  It is true that falsus in uno, falsus in  imnibus has  no application  in  criminal  trial. Court has  to endeavour to separate the grain from the chaff and accept  that part  of the  evidence which is found to be truthful and  consistent. Having  made that attempt. we find that on  the facts  of this  case, it  is very  difficult to separate the  grain from  the chaff.  It is  seen  that  the participation of  five of the accused is totally disbelieved by the  Sessions Court  as well as the High Court. As regard the participation  of the eight accused in the commission of the crime, it is seen that witnesses fabricated and improved their version  from stage  to stage.  Therefore, it would be very difficult  to place  implicit reliance on each of their evidence or cumulatively to convict accused 1 and 2. The two accused are  alleged to  have attacked the deceased. Each of the injuries is not independently sufficient to cause death. Moreover, in  a case  of free  fight, Section  149 cannot be applied. It  is difficult  to accept the prosecution case to hold that  A1 and  A2 alone had attacked the deceased in the melee.  It  might  be  that  some  other  had  attacked  the deceased. PW.9,  father of  the deceased  is found  to  have given  false  evidence.  On  the  facts  and  circumstances, neither Section  32 nor Section 149 can be applied to any of the accused. It is seen that A1 and A2, namely, Chandvir and Rohtash are  alleged to  have attacked  the deceased. In the narration of  the facts,  it was accused party which pitched upon to  kill the  deceased and  they were armed with deadly

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weapons. If  that be  so, one  would expect that all of them would have  attacked the  deceased in the first incident and if any  other prosecution party attempted to intervene, they would have  been beaten  up, but that is not the evidence at the trial.  It is  seen from  the evidence  that A1  and  A2 attacked the  deceased only  in midway  while the  attack on other parties was going on. Under these circumstances, if we disbelieve the  version of  the prosecution,  as  spoken  in respect of  A3 to  A13, it  would be  equally difficult  and unsafe to  accept that  part of  the evidence that A1 and A2 alone  attacked  the  deceased  and  convict  them  for  the individual offences.  As found  earlier,  on  the  state  of evidence, the  possibility  of  some  other  accused  having attacked the  deceased and of falsely implicating A1 and PW- 2, cannot,  with reasonable certainty be excluded. Moreover, PW-9, Medu  was found  to  have  given  false  evidence  and cumulative effect of the injuries is the cause of the death. Considered from  this perspective,  we find  that it will be highly unsafe  to accept  the evidence  of the  witnesses to base conviction  of A1  and A2 for the offences of murder of the deceased-Rajpal  punishable under  Section 302 read with Section 32.  The order  of acquittal  recorded by  the  High Court is  not warranted  to be  interfered with,  though for different reasons.      The appeal is accordingly dismissed.