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Wednesday, January 29, 2014

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.
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[1]    (2003) 2 SCC 661
[2]    (1975) 4 SCC 511

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