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Sections 148, 302 read with Section 149 and Section 307 read with Section 149 of the IPC. and read with sec.34 of I.P.C. – Appreciation of Evidence – simply because , four accused out of 8 were acquitted as they are falsely implicated – does not discredit the evidence on other accused too – It is trite that the maxim ‘falsus in uno falsus in omnibus’ has no application in India. It is merely a rule of caution. It does not have the status of rule of law. – When exaggerations are separable from main evidence and Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. – Apex court held nothing to interfere = SHEESH RAM AND ORS. …APPELLANTS Versus THE STATE OF RAJASTHAN …RESPONDENT = 2014 ( January Part ) judis.nic.in/supreme court/filename=41183

Sections 148, 302 read with Section 149 and Section 307 read with Section 149 of  the

IPC. and read with sec.34 of I.P.C. –   Appreciation of Evidence – simply because  , four accused out of 8 were acquitted as they are falsely implicated – does not discredit the evidence on other accused too – It  is  trite that the maxim ‘falsus in uno falsus  in  omnibus’  has  no  application  in India.  It is merely a rule of caution.  It does  not  have  the  status  of rule of law.  – When exaggerations are separable from main evidence and Where the chaff can be separated from the grain,  it  would be open to the court to convict an accused  notwithstanding  the  fact that evidence has been found to be deficient to prove guilt  of  other accused persons. – Apex court held nothing to interfere =

 

The trial court convicted all the accused  under  Sections

148, 302 read with Section 149 and Section 307 read with Section 149 of  the

IPC.  

On appeal, the High Court acquitted Hansey,  Har  Sahai,  Rajdhar  and

Ram Kunwar.  

The High Court acquitted Accused Battu  of  the  charges  under

Sections 148 and 307 of the IPC.  

His conviction and sentence under  Section

302 of the IPC was  confirmed.   

He  has  not  appealed  against  the  order

convicting and sentencing him. 

Appellant–Sheesh Ram  was  acquitted  of  the

charges under Sections 148, 302  and  307  of  the  IPC.   

Instead,  he  was

convicted under Section 302 read with Section 34 of the IPC and Section  307 read with Section 34 of the IPC.  He was sentenced  to  suffer  imprisonment

for life and a fine of Rs.1,000/-, in default, to further suffer six  months

rigorous imprisonment and to suffer rigorous  imprisonment  for  five  years

and fine of Rs.2,000/-, in default, to further  suffer  simple  imprisonment

for three months, respectively. 

Appellant–Rameshwar  was  acquitted  of  the

charges under Sections 148, 307 and 302 read with Section 149  of  the  IPC.

Instead, he was convicted  under  Section  302  read  with  Section  34  and

Section 307 read with Section 34 of the IPC.  He  was  sentenced  to  suffer

imprisonment for life and a  fine  of  Rs.1,000/-,  in  default,  to  suffer

further  six  months  rigorous   imprisonment   and   to   suffer   rigorous

imprisonment for five years  and  a  fine  of  Rs.2,000/-,  in  default,  to

further  suffer  simple  imprisonment   for   three   moths,   respectively.

Appellant-Radhey was acquitted of charges under Sections 148,  302  and  307

read with Section 149 of the IPC.  Instead, he was convicted  under  Section

302 read with Section 34 and Section 307 read with Section 34  of  the  IPC.

He was sentenced to suffer imprisonment for life and a fine  of  Rs.1,000/-,

in default, to  suffer  six  months  rigorous  imprisonment  and  to  suffer

rigorous imprisonment for five years and a fine of Rs.2,000/-,  in  default,

to further suffer simple imprisonment for three months, respectively.   This

judgment is challenged in the instant appeal. =

out  of  the  eight  accused,  the  High  Court

acquitted four accused.  The High Court has,  in  fact,  observed  that  the

four acquitted accused have  been  falsely  implicated. 

All  these  witnesses  stated  that   the

acquitted accused had lathis and they dealt  lathi  blows  on  PW-5  Bhagwan

Singh.  This part of their evidence is disbelieved.  It is true  that  these

witnesses have improved the prosecution story to  some  extent.   But,  that

improvement or that exaggerated version can be  safely  separated  from  the

main case of the prosecution. =

It  is  trite

that the maxim ‘falsus in uno falsus  in  omnibus’  has  no  application  in

India.  It is merely a rule of caution.  It does  not  have  the  status  of

rule of law.  

In Balaka Singh  v.  State of Punjab[2], this Court  has  said

that where it is not feasible to separate truth from falsehood, because  the

grain and the chaff 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,  the  Court  cannot  make  an

attempt to separate truth from falsehood. But, as  we  have  already  noted,

this is not a case where the grain and  chaff  are  inextricably  mixed  up.

The evidence of eye-witnesses is not discrepant on the  material  aspect  of

the prosecution case.   Reliance can, therefore,  be  placed  on  them.   In

this connection, reliance placed by the counsel for the State  on  Rizan  is

apt.  The same principle is reiterated by  this  Court  in  Rizan.   We  may

quote the relevant paragraph from Rizan.

 

      “Even if a major portion of evidence is found to be deficient, in case

      residue is sufficient to prove guilt of  an  accused,  notwithstanding

      acquittal of a number of other co-accused persons his  conviction  can

      be maintained. It is the duty of the court to separate the grain  from

      the chaff. Where the chaff can be separated from the grain,  it  would

      be open to the court to convict an accused  notwithstanding  the  fact

      that evidence has been found to be deficient to prove guilt  of  other

      accused persons. Falsity of a particular material witness or  material

      particular would not ruin it from the  beginning  to  end.  The  maxim

      falsus in uno falsus in omnibus has no application in  India  and  the

      witnesses cannot be branded as liars. The maxim falsus in  uno  falsus

      in omnibus has not received general acceptance nor has this maxim come

      to occupy the status of a rule of law. It is merely a rule of caution.

      All that it amounts to,  is  that  in  such  cases  testimony  may  be

      disregarded, and not that it must be disregarded. The doctrine  merely

      involves the question of weight of evidence which a court may apply in

      a given set of circumstances, but it is not  what  may  be  called  “a

      mandatory rule of evidence”. (See Nisar Ali v. State of U.P  AIR  1957

      SC 366.)”

 

8.    The appellants  examined  defence  witnesses.   Testimony  of  defence

witnesses is not believed by the trial court as well as the High Court.   We

find no reason to take a contrary  view.   It  is  pertinent  to  note  that

Kamal, the brother of the appellants  was  murdered  and  for  that  murder,

complainant Heera and some of the witnesses are  facing  trial.   There  is,

therefore, strong motive to kill Balram, son of Heera.  It is not  possible,

however,  to  come  to  a  conclusion  that  because  of  this  enmity,  the

appellants have been falsely implicated.   We  have  already  discussed  the

evidence  on  record.   The  evidence  of  eye-witnesses,  particularly  the

evidence of PW-5 Bhagwan Singh, the  injured  eye-witness,  is  trustworthy.

Therefore, the argument that on account of previous enmity,  the  appellants

have been involved in this case is rejected.   Taking  an  overall  view  of

the matter and examined in light of Balaka Singh and Rizan, we  are  of  the

opinion that no interference is necessary with the impugned  judgment.   The

appeal is dismissed.

 

 

2014 ( January Part )  judis.nic.in/supreme court/filename=41183     

 

SUDHANSU JYOTI MUKHOPADHAYA, RANJANA PRAKASH DESAI

 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 191 OF 2004

SHEESH RAM AND ORS. …APPELLANTS

Versus

THE STATE OF RAJASTHAN …RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants are original Accused Nos.1, 2 and 4 respectively in
S.T. No.12 of 1993. The appellants were convicted, inter alia, under
Section 302 of the IPC for the murder of one Balram and sentenced to life
imprisonment. They have challenged judgment and order dated 29/5/2003
passed in Criminal Appeal No.322 of 1998 by the Rajasthan High Court,
confirming their conviction and sentence.

2. One Heera son of Surajmal lodged a complaint (Ex. P-7) at Jagal
Tan, Village Lapawali on 04/02/1991 at around 3.50 p.m., stating that on
04/02/1991 at 8.00 a.m., he and his son Rameshwar accompanied his other
sons Balram and Bhagwan Singh who were going to Hindaun School to see them
off. They were standing on the road near the turn between Lapawali and
Dhara. While they were waiting for the bus, Rajdhar of village Lapawali,
along with others, arrived there in a tractor. Accused-1 Sheesh Ram,
Accused-2 Radhey, Accused-3 Battu, Accused-4 Rameshwar (in S.T. No.12 of
1993), Accused-Ram Kunwar, Accused-Hansey and Accused-Har Sahai (in S.T.
No.350 of 1992) stopped the tractor. Accused-3 Battu exhorted “do not let
this opportunity slip off”. All the persons jumped from the tractor.
Complainant Heera and his son Rameshwar saved their life by fleeing towards
the village. His elder son Balram fled towards the south from the road.
The accused followed them. Accused-2 Radhey caught hold of Balram and
assaulted him with a Kulhari. Balram fell down. Later on, Accused-3 Battu
dealt an axe blow on his throat. Others too continued assaulting Balram.
Balram was badly injured. He succumbed to the injuries. Accused-1 Sheesh
Ram followed Bhagwan Singh, caught hold of him and inflicted injuries on
him. Other accused also inflicted injuries on him. Under the impression
that Bhagwan Singh had died, all the accused left the place. Bhagwan Singh
was admitted in the hospital at Karauli. On the basis of this report, a
case under Sections 147, 148, 324, 326, 302, 307 read with Section 149 and
Section 341 of the IPC was registered. Accused Ram Kunwar was arrested on
23/6/1991. On completion of investigation, charge-sheet was laid against
Ram Kunwar. Another charge-sheet was laid against accused Hanse, Har Sahai
and Rajdhar. The case was committed to the Sessions Court and numbered as
S.T. No.356 of 1992. Against the appellants, charge-sheet was laid on
3/2/1993. After committal of the said case to the Sessions Court, it was
numbered as S.T. No. 12 of 1993. Both the cases were tried together as
they arose out of the same FIR.

3. In support of its case, the prosecution examined 20 witnesses out of
which, four are eye-witnesses. The eye-witnesses are PW-2 Khushiram, PW-3
Rameshwar, PW-4 Yadram and PW-5 Bhagwan Singh, who is an injured witness.
The accused pleaded not guilty to the charge and examined seven witnesses
in their defence. The trial court convicted all the accused under Sections
148, 302 read with Section 149 and Section 307 read with Section 149 of the
IPC. On appeal, the High Court acquitted Hansey, Har Sahai, Rajdhar and
Ram Kunwar. The High Court acquitted Accused Battu of the charges under
Sections 148 and 307 of the IPC. His conviction and sentence under Section
302 of the IPC was confirmed. He has not appealed against the order
convicting and sentencing him. Appellant–Sheesh Ram was acquitted of the
charges under Sections 148, 302 and 307 of the IPC. Instead, he was
convicted under Section 302 read with Section 34 of the IPC and Section 307
read with Section 34 of the IPC. He was sentenced to suffer imprisonment
for life and a fine of Rs.1,000/-, in default, to further suffer six months
rigorous imprisonment and to suffer rigorous imprisonment for five years
and fine of Rs.2,000/-, in default, to further suffer simple imprisonment
for three months, respectively. Appellant–Rameshwar was acquitted of the
charges under Sections 148, 307 and 302 read with Section 149 of the IPC.
Instead, he was convicted under Section 302 read with Section 34 and
Section 307 read with Section 34 of the IPC. He was sentenced to suffer
imprisonment for life and a fine of Rs.1,000/-, in default, to suffer
further six months rigorous imprisonment and to suffer rigorous
imprisonment for five years and a fine of Rs.2,000/-, in default, to
further suffer simple imprisonment for three moths, respectively.
Appellant-Radhey was acquitted of charges under Sections 148, 302 and 307
read with Section 149 of the IPC. Instead, he was convicted under Section
302 read with Section 34 and Section 307 read with Section 34 of the IPC.
He was sentenced to suffer imprisonment for life and a fine of Rs.1,000/-,
in default, to suffer six months rigorous imprisonment and to suffer
rigorous imprisonment for five years and a fine of Rs.2,000/-, in default,
to further suffer simple imprisonment for three months, respectively. This
judgment is challenged in the instant appeal.

4. Mr. P.C. Agarwala, learned senior counsel appearing for the
appellants submitted that out of the eight accused, the High Court
acquitted four accused. The High Court has, in fact, observed that the
four acquitted accused have been falsely implicated. Counsel submitted
that it is, therefore, risky to rely on the evidence of the prosecution
witnesses to convict the appellants. These witnesses exaggerated the
prosecution story and involved the acquitted accused. It is possible that
even so far as the appellants are concerned, they have not come out with
the truth. This is a case where truth and falsehood are inextricably mixed
and truth cannot be separated from falsehood. The doctrine of ‘falsus in
uno falsus in omnibus’, is clearly attracted to this case. Counsel pointed
out that the eye-witnesses appear to be tutored. They are related to each
other and, hence, are interested witnesses. Their evidence will have to be
read cautiously. Moreover, complainant Heera has not been examined.
Admittedly, there is enmity between the two sides. There is a land dispute
between complainant Heera and accused Rajdhar. Ram Kunwar’s son Kamal was
murdered and, in that connection, complainant Heera and others, are facing
trial. During the pendency of this trial, complainant Heera’s son Balram
was murdered. False involvement on account of long standing enmity cannot
be ruled out. The conviction of the appellants, therefore, deserves to be
set aside.

5. Mr. S.S. Shamshery, learned Addl. Advocate General appearing for the
State, on the other hand, submitted that the evidence of four eye-witnesses
is consistent. PW-2 Khushiram and PW-4 Yadram are independent witnesses.
There is no reason to cast any doubt on their testimony. Counsel submitted
that in a catena of judgments, this Court has held that the doctrine
‘falsus in uno falsus in omnibus’ is not applicable in India. Even if some
portion of the evidence of a witness is found to be deficient, the
remaining portion can be relied upon, if it is sufficient to establish
prosecution case. In this connection, he relied on Rizan & Anr. v. State
of Chhattisgarh[1]. Counsel submitted that there is enough credible
evidence on record which bears out the prosecution case. The appeal, be
therefore, dismissed.

6. Deceased Balram was most brutally murdered. According to PW-12 Dr.
Meena, the cause of death was haemorrhage and shock due to head injury
leading to injury to brain and injury to carotid artery in neck. PW-5
Bhagwan Singh was also brutally attacked. He received four incised wounds.
He suffered a fracture of left parietal bone. Being an injured witness,
he is the most important witness in this case. He has described the
incident in question. The defence has not made any dent in his evidence by
cross-examining him. In fact, in the cross-examination, he has given more
details about the incident in question, which are consistent with what he
has stated in the examination–in-chief. He has stated that he, deceased
Balram, his father Heera and his other brother Rameshwar were standing near
the road near the boundaries of village Dehra and Lapawali. At that time,
a tractor driven by Rajdhar came from village Lapawali side. Rajdhar
halted the tractor near them. The appellants, who were sitting in the
tractor, got down. Accused Battu was armed with an axe. Appellant Radhey
was also armed with an axe. Appellant Sheesh Ram was armed with a sword.
Appellant Rameshwar was armed with a dhariya and others were having lathis.
They encircled PW-5 Bhagwan Singh, his father and brothers. His father
and brother Rameshwar ran towards the village. Balram also ran towards the
village. He ran towards Katara village. Accused Radhey caught hold of the
collar of Balram and dealt an axe blow on Balram’s head. Balram fell down.
Appellant Sheesh Ram dealt an axe blow on Balram when he had fallen down.
Accused Rameshwar dealt a blow with a dhariya on the right hand of Balram.
According to PW-5 Bhagwan Singh, thereafter, appellant Sheesh Ram caught
hold of him (Bhagwan Singh). Appellant Rameshwar hit on his left temple
with a dhariya. He fell down. Appellant Sheesh Ram dealt an axe blow
behind his ear when he had fallen down. Accused Hanse dealt a lathi blow
on his face. Thereafter, he became unconscious.

7. PW-2 Khushiram, PW-3 Rameshwar and PW-4 Yadram have corroborated this
witness. It is submitted that all these witnesses are related and
therefore their evidence cannot be drelied upon. Assuming they are related
to each other and, hence, interested witnesses, it is well settled that the
evidence of interested witnesses is not always suspect. It has to be
scrutinized with caution and can be accepted if it is found reliable.
Presence of PW-5 Bhagwan Singh at the scene of offence can hardly be
disputed since he is an injured witness. His evidence has strengthened the
prosecution case. Evidence of PWs-3, 4 and 5 also inspires confidence. So
far as the acquitted accused are concerned, the evidence of these witnesses
qua them is found to be exaggerated. But, on account of that, their entire
evidence cannot be discarded. All these witnesses stated that the
acquitted accused had lathis and they dealt lathi blows on PW-5 Bhagwan
Singh. This part of their evidence is disbelieved. It is true that these
witnesses have improved the prosecution story to some extent. But, that
improvement or that exaggerated version can be safely separated from the
main case of the prosecution. So far as the main prosecution case is
concerned, all the witnesses are consistent. This is not a case where
truth and falsehood are inextricably mixed up. Witnesses tend to
exaggerate the prosecution story. If the exaggeration does not change the
prosecution story or convert it into an altogether new story, allowance can
be made for it. If evidence of a witness is to be disbelieved merely
because he has made some improvement in his evidence, there would hardly be
any witness on whom reliance can be placed by the courts. It is trite
that the maxim ‘falsus in uno falsus in omnibus’ has no application in
India. It is merely a rule of caution. It does not have the status of
rule of law. In Balaka Singh v. State of Punjab[2], this Court has said
that where it is not feasible to separate truth from falsehood, because the
grain and the chaff 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, the Court cannot make an
attempt to separate truth from falsehood. But, as we have already noted,
this is not a case where the grain and chaff are inextricably mixed up.
The evidence of eye-witnesses is not discrepant on the material aspect of
the prosecution case. Reliance can, therefore, be placed on them. In
this connection, reliance placed by the counsel for the State on Rizan is
apt. The same principle is reiterated by this Court in Rizan. We may
quote the relevant paragraph from Rizan.

“Even if a major portion of evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, notwithstanding
acquittal of a number of other co-accused persons his conviction can
be maintained. It is the duty of the court to separate the grain from
the chaff. Where the chaff can be separated from the grain, it would
be open to the court to convict an accused notwithstanding the fact
that evidence has been found to be deficient to prove guilt of other
accused persons. Falsity of a particular material witness or material
particular would not ruin it from the beginning to end. The maxim
falsus in uno falsus in omnibus has no application in India and the
witnesses cannot be branded as liars. The maxim falsus in uno falsus
in omnibus has not received general acceptance nor has this maxim come
to occupy the status of a rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded. The doctrine merely
involves the question of weight of evidence which a court may apply in
a given set of circumstances, but it is not what may be called “a
mandatory rule of evidence”. (See Nisar Ali v. State of U.P AIR 1957
SC 366.)”

8. The appellants examined defence witnesses. Testimony of defence
witnesses is not believed by the trial court as well as the High Court. We
find no reason to take a contrary view. It is pertinent to note that
Kamal, the brother of the appellants was murdered and for that murder,
complainant Heera and some of the witnesses are facing trial. There is,
therefore, strong motive to kill Balram, son of Heera. It is not possible,
however, to come to a conclusion that because of this enmity, the
appellants have been falsely implicated. We have already discussed the
evidence on record. The evidence of eye-witnesses, particularly the
evidence of PW-5 Bhagwan Singh, the injured eye-witness, is trustworthy.
Therefore, the argument that on account of previous enmity, the appellants
have been involved in this case is rejected. Taking an overall view of
the matter and examined in light of Balaka Singh and Rizan, we are of the
opinion that no interference is necessary with the impugned judgment. The
appeal is dismissed.

……………………………………….J.
(Sudhansu Jyoti Mukhopadhaya)

………………………………….J.
(Ranjana Prakash Desai)
New Delhi;
January 29, 2014.
———————–
[1] (2003) 2 SCC 661
[2] (1975) 4 SCC 511

———————–
12

 

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