Keshoram Gora Vs. State of Assam
 INSC 19 (1 February 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1978 AIR 1096 1978 SCR (2) 788 1978
SCC (2) 407
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.
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
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]
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  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 ]
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
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
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 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 hecame 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
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 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)  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
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 to. 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.