Holding

The conviction of the appellant under Section 304 Part I IPC is not justified and is set aside.

Summary

Eight persons, including Narain Singh, were tried for offences under various sections of the IPC for the death of Makhan and injuries to others. The prosecution's case relied on inconsistent statements from an informant, a disputed dying declaration, and eye‑witnesses who gave varying accounts of the incident's location and sequence. The trial court acquitted seven accused but convicted Narain Singh under Section 304 Part I, rejecting his claim of private defence; the High Court affirmed this conviction. On appeal, the Supreme Court held that the prosecution failed to establish the genesis, place, and manner of the incident with cogent and credible evidence, rendering the evidence totally unreliable. Consequently, the Court set aside the conviction, emphasizing that when evidence is intrinsically unreliable, the maxim "falsus in uno, falsus in omnibus" precludes a conviction. The appeal was allowed and the bail bonds of the appellant were cancelled.

Issues considered

Whether a conviction can be sustained on evidence that was found unreliable for co‑accused who were acquitted.
Whether the principle "falsus in uno, falsus in omnibus" bars conviction when the prosecution case is totally unreliable.
Whether the prosecution established the facts of the incident beyond reasonable doubt to support a conviction under Section 304 Part I IPC.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304(Part I), s. 307, s. 323, s. 324, s. 450

Subjects

convictionacquittalself-defenceevidence reliabilityfalsus in uno falsus in omnibusIPC Section 304appellate jurisdiction

Judgment

A NARAIN
v.
STA TE OF MAD HY A PRADESH

FEBRUARY 4, 2004

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Penal Code, I 860-Section 304 Part I-Prosecution of accused along
with seven other accused for causing death of one and injuries to others-
C Discrepancies in the versions of informant and that of the eye-witnesses-Plea
of self defence by accused-Assault by deceased on the accused established-
Conviction of one accused and acquittal of the seven other accused by trial
court-Finding of trial court affirmed by High Court-On appeal, held:
Conviction not justified as prosecution case not established-Conclusion
regarding other accused persons are equally applicable to the convicted
D accused

Criminal Trial:

"Falsus in uno falsus in omnibus "-Applicability of-Conviction relying
on evidence on which co-accused acquitted-Held: Conviction ofaccused can
E be based on such evidence even if co-accused acquitted on the same evidence
if prosecution case established by acceptable evidence-But where evidence
is totally unreliable and truth and falsehood therein are inextricably mixed up,
and in the process of its separation a new case is reconstructed, conviction
cannot be made.

F Eight persons, including appellant-accused faced trial for offences
punishable u/ss 148, 302/149, 307/149, 324/149, 323/149 and 450 IPC for
having caused death of one person and causing injuries to others.

According to prosecution case, occurrence took place at 3 places.
Ther.e was discrepancy in the statement of the informant and in the FIR
G version lodged by him. His dying declaration was recorded by Nayab
Tehsildar and Executive Magistrate, but he denied to have made the same.
The injured eye-witnesses had given varying versions of the occurrence.
Their evidence as regards the places of assault was also discrepant and
inconsistent. An eye-witness (PW-13) admitted in his cross-examination
H 82
NARAIN v. ST ATE OF MAD HY A PRADESH 83
that deceased had first assaulted the appellant-accused on his head with A
lathi. Accused persons had pleaded innocence and had taken a definite
stand that the injured eye-witnesses had assaulted them and they had acted
in exercise of right of private defence.

Trial Court acquitted seven accused. However appellant-accused was
convicted u/s 304 Part I IPC, rejecting the plea of self-defence and holding B
that it was probable that he would have acted in retaliation. The findings
of trial court were confirmed by High Court.

In appeal to this Court, appellant contended that it was not justified
to convict the appellant on the evidence, which was found to be unreliable C
for the acquitted accused.

Allowing the appeal, the Court

HELD: 1. The genesis of the incident, the place of incident and the
manner in which the incident took place was found .not to have been D
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 E
appellant, is concerned. Hence the conviction of the appellant is set aside.
187-F-Hl

2. As a 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 F
differentiate be.tween an accused who has been convicted and those who
/
have been acquitted. The maxim "Falsus in unofalsus in nmnibus" is merely
a rule of caution. 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 bl!en acquitted on the ground that the evidence led G
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 H
the context and background against which they are made, conviction
84 SUPREME COURT REPORTS 12004) 2 S.C.R.

A cannot be made. (86-C-F)
Guru Charan Singh and Anr. v. State of Punjab, AIR (1956) SC 460
and Sucha Singh and Anr. v. State of Punjab, (2003) 5 Supreme 445, relied
OIL

B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1177
of 1997.

From the Judgment and Order dated 9.5.97 of the Madhya Pradesh
High Court in Crl. A. No. 1120 of 1987.

C Nitin Bhardwaj and Prakash Shrivastava for the Appellant.

R.P. Gupta, Prakash Jha and Ms. Kamakshi S. Mehlwal for the
Respondent.

The Judgment of the Court was delivered by
D
ARIJIT PASA YAT, J. Appellant-Narain (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
E 'the IPC') to be in order. Consequentially, sent,ence of eight years rigorous
imprisom~1ent 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
p established. Against 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
G application was filed by the father of the Makhan (hereinafter referred to as
'the deceased') with similar prayers as that of the State. .
.~

The prosecution story in brief is as follows: ,._
. •t

On 24.2.1986 at about 6.30 a.m. at village Murachh, the informant
H Halke, alias Laxman (PW-14) had gone to call his labourers who were under
NARAIN v. STATE OF MADHYA PRADESH [PASAYAT, .I.] 85
a Pipal tree. The accused persons armed with Farsa, ballam, etc. came there A
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 B
Makhan and assaulted him with Farsa, axe and sticks near the house of Sukka
Baniya (DW-2). Parvati Bai (PW-I 0), 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 C
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 Nalis (First information report).
On the basis of said report, investigation was undertaken and the accused
persons were arrested.

The accused persons pleaded innocence and also took definite stand D
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 E
the prosecution.

The Trial Cou1t found that the prosecution has not really come out with
actual scenario. According to prosecution the occurrence took place at 3
different places. But the evidence was to the contrary. The occurrence took
place at a place different from where it was claimed by the prosecution. It F
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 G
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.

In support of the appeal, learned counsel for the appellant submitted
that substratum of prosecution version has been corroded. The Trial Court H
86 SUPREME COURT REPORTS [2004] 2 S.C.R.

A and the High Court were not justified iti convicting the appellant, on the self
same evidence which was found to be totally unreliable for seven co-accused
persons.

In response, learned counsel for the State submitted that though part of
the evidence has been discarded, the residue was sufficient to convict the
B 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.
c As a 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 Anr v. State of Punjab, AIR (1956) SC 460 and
D Sucha Singh and Anr \'.State of Punjab, (2003) 5 Supreme 445). The maxim
"Falsus if! 11110 jalsus in omnibus" is merely a rule of caution. As has 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-acc\jsed
E 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
F presented by the prosecution completely from the context and background
against which they are made, conviction cannot be made.

In the 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 Pi pal tree· where the informant
G (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. Apart from the alleged first information report, the statement
purported to be a dying declaration of PW-14 was recorded by the Nayab
H Tehsildar and Executive Magistrate (DW-1 ). In this statement (Exb. P/18) he
NARAIN v. STATEOFMADHYAPRADESH[PASAYAT,.1.] 87

had stated that while he was sitting along with family members incident took A
place. But in the first inform<Jtion 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 B
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 C
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 D
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.

In view of the findings, the inevitable conclusion is that prosecution
has not established its accusations against any of the accused persons including E
- 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
retaliation.

The 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 F
- 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 G
equally applicable so far as the appellant is concerned.

. } That being the position, we set aside the conviction as recorded by the
... Trial Court and affirmed by the High Court. The appeal is allowed. The bail
bonds of the appellant be cancelled.

K.K.T. Appeal allowed. H