Vs. State of Madhya
Pradesh  Insc
66 (4 February 2004)
Raju & Arijit Pasayat Arijit Pasayat,J.
(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.
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.
prosecution story in brief is as follows:
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 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.
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.
Trial Court found that the prosecution has not really come out with actual
scenario. According to prosecution the occurrence took place at 3 different
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.
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.
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.
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.
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 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.
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.
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.
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
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 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.
being the position, we set aside the conviction as recorded by the Trial Court
and affirmed by the High Court.
appeal is allowed. The bail bonds of the appellant be cancelled.