LexGUBBALA VENUGOPALASWAMY AND ORS. versus STATE OF ANDHRA PRADESH
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r _. GUBBALA VENUGOPALASWAMY AND ORS. A v. STATE OF ANDHRA PRADESH APRIL 6, 2004 [DORAISWAMY RAJU AND ARIJIT PASA Y AT, JJ.] B . ..,. Penal Code, 1860-Sections 302, 326 and 324-Murder-Prosecution- Incident seen by eyewitnesses-Conviction of accused persons uls 302 relying on one of the eye witnesses although he was held not wholly reliable-High c Court convicted two accused uls. 326 and sentence to 10 years imprisonment and convicted one accused uls. 302 and another accused 11/s 324-0n appeal, co11Viction upheld-However, sentence of 10 years for offence uls. 326 reduced to 5 years. Criminal Trial: D Conviction can be based on partially unreliable evidence of prosecution-However, conviction cannot be based on evidence which is totally l' unreliable and the truth and falsehood therein is inextricably mixed up and in the process of separation of the same an absolute new case is made out. Maxims: E F alsus in 11110 falsus in omnibus "-Applicability of Appellants-accused along with 3 other accused formed unlawful assembly and killed a person pursuant to a conspiracy. There was political F rivalry as well as personal enmity between the accused and deceased party. The incident was seen by 3 eye witnesses. During trial two of the eye witnesses turned hostile. FIR couh! not be lodged in nearest Police Station because the Constable in that police Station told the witness that he was not competent to accept the same and the Inspector was not there and he suggested him to lodge ttie FIR in another Police Station. Trial Court G although held that evidence of one eye witnesses (PW-I) was not without ' ~ blemish, still relying on the sole eye witness convicted the 4 appellants- accused u/s 302 IPC and the other three accused were acquitted. On appeal High Court held Al and A4 guilty of offence punishable u/s 326 IPC and 909 H 910 SUPREME COURT REPORTS [2004 J .1 S. C.R. A sentenced them to imprisonment for 10 years, A2 was convicted u/s 302 IPC and A 3 was convicted u/s 324 IPC. In appeal to this Court appellants contended that appellants-accused should have been acquitted in view of the holding of the courts below that evidence of PW-I was not wholly reliable; that the reasons ascribed by B trial Court to discard the eye-witness account of PW-3 are equally applicable to PWI; and that FIR was not lodged at nearest Police Station. Disposing of the appeal, the Court HELD: I.I. It cannot be said that when a portion of the prosecution C 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. The maxim "Falsus in uno falsus in omnibus" is merely a rule of caution. In terms of felicitous metaphor, an attempt has to be made to separate grain D 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 e'·idence is totally unreliable, and it will be impossible to separate truth from falsehood to an extent that they are E 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 compleMy from the context and background against which they are made, conviction cannot be made. 1914-B-EI Narain v. State of MP., 120041 2 SCC 455, relied on. F 1.2. PW-1 's version has not been found credible on certain aspects. But that per se cannot be a ground to discard his evidence even if it is found to be otherwise credible. So far as the prosecution version is concerned, it has ascribed particular roles and acts to the accused persons, though PWs 2 and 3 have turned hostile in respect of part of their evidence. G It is fairly settled position in law that even if part of evidence is discarded, that cannot be a ground to discard the evidence, more particularly that part of the evidence which is cogent and credible. The evidence and subsequent acts have been attributed to A-4 in view of the evidence of PW- 1 which has remained unaffected, in spite of the incisive cross-examination. H The evidence on record is sufficient to establish the conviction. J914-F-GJ • t .. G. VENUGOPAL
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