KESHORAM GORA versus STATE OF ASSAM

Citation: [1978] 2 S.C.R. 788 · Decided: 01-02-1978 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Case Partly allowed

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Judgment (excerpt)

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788 
KESHORAM GORA 
v. 
STA TE OF ASSAM 
February l, 1978 
[S. MURTAZA fAZAL ALI AND P. N. SHINGHAL, JJ.J 
Indian Penal Code-Sec. 99-302-304 Part //--Causing n1urder in exercise 
of right of prii·ate defence-Exceeding right of prirate defence-Eriden..:e of 
hostile witness-Admission of accused-Exculpatory and inculpatory part if 
separable. 
The appe1lant alongwith his brother Someshwar was prosecuted under sec-
tion 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 laiid 
when the accused Keshoram and his brother Someshwar appeared on the scene 
armed with shels along \Vith their father and brother and attacked the de-
ceased. The deceased received a number of injuries as a result of which he 
fell down and died. 
F.I.R. was 1odged by P.W. 3 Ramakoo.ta Bora at aibout 
11 a.m. 
In the F.LR .. however only the name of P.W. l Upendra Chaondra 
Bora was mentioned as a witness. 
The defence of the accused was that the 
actual occurrence took place in the land belooging to the father of the accused 
Kanwal Chandra and '"''hen the deceased tried to assault the ploughme'rl of 
the accused the accused injured the deceased in exercise of their rig'ht of pri-
vate 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 accused. 
In an appeal the High Court accepted the evidence of the eye witne&<;es 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 hvo hostile \VitneSses 
as the spokesmen of the prosecution case. It is truei that merely 
becacse a 
witness is declared hostile his evidence cannot be rejected on that ground 
alone. However, once a prosecution witness is declared hostile the prosecu-
tion clearly exhibits its intention not to rely on the evidence of such a \Vitness. 
In these circumstances, the Sessions Judge was not at all justified in treating 
the version given by P.Ws. S and 7 as the version of the prosecution itself. 
[790 C-El 
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 an 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 clea.rly admitted that he did assault the deceased with 
a sharp cutting weapon as a result of which the' deceased Kalinath fell do\vn. 
The prosecution evidence therefore has to be judged in the light of the ad~ 
missions 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 c.-ie part in.to consideration which appears to be 
·\ 
true and reject the other part which is false. 
(791 DJ 
Nishi Kant Iha v, State of Biliar [1969] 2 SCR 1033; relied on. 
/ 
S. It would appear from the evidence of P.W. S, 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-
. 
KESHO RAM v. ASSAM (Fazal Ali, l.) 
78!) 
ted by the testimony of independent witness, namely PW 6. l"he Police did 
not fmd blood marks either in the land\ of the deceased or in the land of the 
accused. 
From the evidence of PW 6 it· appears 1'hat brother of the accused 
Someshwa.r was first assaulted by Ka1inath. 
The appellant, therefore. a5saLJlt-
ed 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 ~he assa.uJt 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 appe11ant exceeded the right or private defence. 
The Court. therefore, altered the conviction of ~he appellant fron1 one under 
'ect'on 302/34 to section 304 Part II. 
[791 F-H, 792 A. C. D & EJ 
CRIMINAL APPELLATE JUR!SDICTION : Criminal Appeal No. 466 
of 1976. 
Appeal from the Judgment and Order dated 13-8-1976 of 
the 
A'' -' 
B 
Assam High Court in Cr!. A. No. 3/19

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