SHEESH RAM AND ORS.versusTHE STATE OF RAJASTHAN

                    [2014] 2 S.C.R. 155


                 SHEESH RAM AND ORS.                               A
                             v.
               THE STATE OF RAJASTHAN
             (Criminal Appeal No. 191 of 2004)
                     JANUARY 29, 2014
                                                                   B
[SUDHANSU JYOTI MUKHOPADHAYA AND RANJANA
            PRAKASH DESAI, JJ.]

     Penal Code, 1860: s. 302 rlw s. 34 - Murder - Brutal
murder and serious injury to one - Conviction by courts below      c
- On appeal, held: The injured witness narrated the incident
and defence could not point out any dent in his evidence -
The prosecution witnesses corroborated the evidence of
injured witnesses - There was strong motive to commit murder
as there was previous enmity between the complainant party         D
and the accused persons - Evidence of eye witnesses was not
discrepant on the material aspect of the prosecution case and
therefore reliance rightly placed on them by courts below - No
interference called for with the conviction.

     Witness: Related/Interested witness - Evidentiary value       E
of - Held: Evidence of interested witness is not always a
suspect - It has to be scrutinized with caution and can be
accepted if it is found reliable.

     Evidence: Exaggeration in - Held: If the exaggeration         F
does not change the prosecution story or convert it into an
a/together new story, allowance can be made for it - If evidence
of a witness is to be disbelieved merely because he has made
some improvement in his evidence, there would hardly be any
witness on whom reliance can be placed by the courts.              G
     Maxim: 'falsus in uno fa/sus in omnibus' - Held: Has no
application in India - It is merely a rule of caution.

                              155
                                                                   H
     156      SUPREME COURT REPORTS              [2014] 2 S.C.R.


A         The prosecution case was that appellant and
     complainant party were on inimical terms due to land
     disputes and an earlier murder case. On fateful day,
     complainant was standing with his sons on road side. At
     that time the offenders were going on a tractor. Seeing
13   the complainant party, they stopped the tractor and got
     down and attacked them. The complainant and one of his
     son ran towards the village. The accused gravely
     assaulted the elder son of the complainant and killed him.
     They then ran after the other son of the complainant PW-
C    5 and inflicted injuries on him and considering him dead
     all the accused left the place. The trial court found all the ·
     accused guilty and convicted them under Sections 148,
     302 r/w Section 149 and Section 307 r/w section 149 IPC.
     On appeal, the High Court acquitted four accused of all
     the offences. The High Court further acquitted appellant-
D    SR of offence Sections 148, 302, 307 IPC and instead
     convicted him under Section 302 r/w Section 34 IPC and
     Section 307 r/w section 149 IPC; acquitted appellant-RM
     of the charges under Sections 148, 307 and 302 r/w
     Section 149, IPC and instead, convicted him under·
E    Section 302 r/w Section 34 and Section 307 r/w Section
     34 of the IPC; and acquitted Appellant-R of charges under
     Sections 148, 302 and 307 r/w Section 149 of the IPC and
     instead, convicted him under Section 302 r/w Section 34
     and Section 307 r/w Section 34 of the IPC. The instant
F    appeal was filed against the order of the High Court.

           Dismissing the appeal, the Court
          HELD: 1. The deceased was most brutally murdered.
     According to the doctor PW-12, the cause of death was
     haemorrhage and shock due to head injury leading to
     injury to brain and injury to carotid artery in neck. PW-5
     was also brutally attacked. He received four incised
     wounds. He suffered a fracture of left parietal bone. Being
     an injured witness, he was the most important witness
      SHEESH RAM AND ORS. v. THE STATE OF               157
                  RAJASTHAN
  in the case. He described the incident in question. The      A
  defence could not find any dent in his evidence. In fact,
  in the cross-examination, he gave more details about the
  incident in question, which were consistent with what he
  had stated in the examination-in-chief. He stated that
  Accused-B was armed with an axe, appellant-R with an         B
  axe, appellant-SR with a sword, appellant-RM with a
  dhariya and others were having lathis. They encircled PW-
  5, his father and brothers. His father and brother ran
  towards the village. Accused-R caught hold of his
  deceased-brother and dealt an axe blow on his head. The      c
  deceased fell down. Appellant-SR dealt an axe blow on
- the deceased when he had fallen down. Accused-RM
  dealt a blow with a dhariya on the right hand of the
  deceased. According to PW-5, thereafter, appellant-SR
  caught hold of him and appellant-RM hit on his left temple   0
  with a dhariya. Appellant-SR dealt an axe blow behind his
  ear. Accused-H dealt a lathi blow on his face. Thereafter,
  he became unconscious. PW-2, PW-3 and PW-4 had
  corroborated this witness. Even assuming that these
  witnesses were related to each other and, therefore,
 -interested witnesses, it is well settled that the evidence   E
  of interested witnesses is not always suspect. It has to
  be scrutinized with caution and can be accepted if it is
  found reliable. [Paras 6, 7] [163-C-H; 164-A-D]

      2. The presence of PW-5 at the scene of offence          F
 cannot be disputed since he was an injured witness. His
 evidence strengthened the prosecution case. The
 evidence of PWs-3, 4 and 5 also inspired confidence. So
 far as the acquitted accused were concerned, the
 evidence of these witnesses qua them was found to be          G
 exaggerated. But, on account of that, their entire
 evidence cannot be discarded. All these witnesses stated
 that the acquitted accused had lathis and they dealt lathi
 blows on PW-5. This part of their evidence was
 disbelieved. It is true that these witnesses have improved    H
   158      SUPREME COURT REPORTS             [2014] 2 S.C.R.


A the prosecution story to some extent. But, that
  improvement or that exaggerated version can be safely
  separated from the main case of the prosecution. So far
  as the main prosecution case was concerned, all the
  witnesses were consistent. This is not a case where truth
B and falsehood are inextricably mixed up. Witnesses tend
  to exaggerate the prosecution story. If the exaggeration
  does not change the prosecution story or convert it into
  an altogether new story, allowance can be made for it. If
  evidence of a witness is to be disbelieved merely
C because he has made some improvement in his
  evidence, there would hardly be any witness on whom
  reliance can be placed by the courts. It is trite that the
  maxim 'falsus in uno falsus in omnibus' has no
  application in India. It is merely a rule of caution. It does
o not have the status of rule of law. In *Balaka Singh case,
  this Court has said that where it is not feasible to separate
  truth from falsehood, because the grain and the chaff are
  inextricably mixed up, and in the process of separation,
  an absolutely new case has to be reconstructed by
E divorcing essential details presented by the prosecution
  completely from the context and background against
  which they are made, the Court cannot make an attempt
  to separate truth from falsehood. But, this is not a case
  where the grain and chaff are inextricably mixed up. The
  evidence of eye-witnesses was not discrepant on the
F material aspect of the prosecution case. Reliance can,
  therefore, be placed on them. [para 7] [164-D-H; 165-A-C]
        3. The appellants examined the defence witnesses.
  Testimony of defence witnesses was not believed by the
G trial court as well as the High Court. There is no reason
  to take a contrary view. The complainant and some of the
  witnesses were facing trial for murder of the brother of
  the appellants. There was, therefore, strong motive to kill
  the deceased. The evidence of eye-witnesses, particularly
H the evidence of PW-5, the injured eye-w!tness, was
    SHEESH RAM AND ORS. v. THE STATE OF                     159
                RAJASTHAN
trustworthy. Therefore, the argument that on account of            A
previous enmity, the appellants have been falsely
implicated in this case is rejected. The impugned
judgment is not interfered with taking an overall view of
the matter and examined in light of *Balaka Singh and
**Rizan. [para 8] [166-8-E]                                        B

    *Ba/aka Singh v. State of Punjab (1975) 4 SCC 511:
1975 (0) Suppl. SCR 129; **Rizan & Anr. v. State of
Chhattisgarh (2003) 2 SCC 661: 2003 (1) SCR 457 - relied
on.
                                                                   c
                      Case Law Reference:
   1975 (0) Suppl. SCR 129       relied on        Paras 7, 8
  2003 (1) SCR 457               relied on       Paras 5, 7, 8
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal              D
No. 191 of 2004.

     From the Judgment and Order dated 29.05.2003 of the
High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
in D.B. Criminal Appeal No. 322 of 1998.                           E

      P.C. Agarwala, Ambuj Agarwal, Chander Shekhar Ashri
for the Appellants.

    S.S. Shamshery, AAG. Milind Kumar for the Respondent.
                                                                   F
    The Judgment of the Court was delivered by

     (SMT.) RANJANA PRAKASH DESAI, J. 1. The
appellants are original Accused Nos.1, 2 and 4 respectively in
S.T. No.12of1993. The appellants were convicted, inter alia,
under Section 302 of the IPC for the murder of one Bairam and      G
sentenced to life imprisonment. They have challenged judgment
and order dated 29/5/2003 passed in Criminal Appeal No.322
of 1998 by the Rajasthan High Court, confirming their conviction
and sentence.
                                                                   H
    160     SUPREME COURT REPORTS                [2014] 2 S.C.R. ·


A       2. One Heera son of Surajmal lodged a complaint (Ex. P-
  7) at Jagal Tan, Village Lapawali on 04/02/1991 at around 3.50
  p.m., stating that on 04/02/1991 at 8.00 a.m., he and his son
  Rameshwar accompanied his other sons Bairam and Bhagwan
  Singh who were going to Hindaun School to see them off. They
B were standing on the road near the turn between Lapawali and
  Ohara. While they were waiting for the bus, Rajdhar of village
  Lapawali, along with others, arrived there in a tractor. Accused-
  1 Sheesh Ram, Accused-2 Radhey, Accused-3 Battu, Accused-
  4 Rameshwar (in S.T. No.12of1993), Accused-Ram Kunwar,
C Accused-Hansey and Accused-Har Sahai (in S.T. No.350 of
  1992) stopped the tractor. Accused-3 Battu exhorted "do not
  let this opportunity slip off'. All the persons jumped from the
  tractor. Complainant Heera and his son Rameshwar saved their
  life by fleeing towards the village. His elder son Bairam fled
  towards the south from the road. The accused followed them.
D Accused-2 Radhey caught hold of Bairam and assaulted him
  with a Kulhari. Bairam fell down. Later on, Accused-3 Battu dealt
  an axe blow on his throat. Others too continued assaulting
  Bairam. Bairam was badly injured. He succumbed to the
  injuries. Accused-1 Sheesh Ram followed Bhagwan Singh,
E caught hold of him and inflicted injuries on him. Other accused
  also inflicted injuries on him. Under the impression that
  Bhagwan Singh had died, all the accused left the place.
  Bhagwan Singh was admitted in the hospital at Karauli. On the
  basis of this report, a case under Sections 147, 148, 324, 326,
F 302, 307 read with Section 149 and Section 341 of the IPC
  was registered. Accused Ram Kunwar was arrested on 23/6/
   1991. On completion of investigation, charge-sheet was laid
  against Ram Kunwar. Another charge-sheet was laid against
  accused Hanse, Har Sahai and Rajdhar. The case was
G committed to the Sessions Court and numbered as S.T.
   No.356 of 1992. Against the appellants, charge-sheet was laid
  on 3/2/1993. After committal of the said case to the Sessions
   Court, it was numbered as S.T. No. 12of1993. Both the cases
  were tried together as they arose out of the same FIR.
H
    SHEESH RAM AND ORS. v. THE STATE OF                      161
   RAJASTHAN [RANJANA PRAKASH DESAI, J.]
      3. In support of its case, the prosecution examined 20         A
witnesses out of which, four are eye-witnesses. The eye-
witnesses are PW-2 Khushiram, PW-3 Rameshwar, PW-4
Yadram and PW-5 Bhagwan Singh, who is an injured witness.
The accused pleaded not guilty to the charge and examined
seven witnesses in their defence. The trial court convicted all      B
the accused under Sections 148, 302 read with Section 149
and Section 307 read with Section 149 of the IPC. On appeal,
the High Court acquitted Hansey, Har Sahai, Rajdhar and Ram
Kunwar. The High Court acquitted Accused Battu of the
charges under Sections 148 and 307 of the IPC. His conviction        c
and sentence under Section 302 of the IPC was confirmed. He
has not appealed against the order convicting and sentencing
him. Appellant-Sheesh Ram was acquitted of the charges
under Sections 148, 302 and 307 of the IPC. Instead, he was
convicted under Section 302 read with Section 34 of the IPC          D
and Section 307 read with Section 34 of the IPC. He was
sentenced to suffer imprisonment for life and a fine of Rs.1,000/
-, in default, to further suffer six months rigorous imprisonment
and to suffer rigorous imprisonment for five years and fine of
Rs.2,000/-, in default, to further suffer simple imprisonment for    E
three months, respectively. Appellant-Rameshwar was
acquitted of the charges under Sections 148, 307 and 302 read
with Section 149 of the IPC. Instead, he was convicted under
Section 302 read with Section 34 and Section 307 read with
Section 34 of the IPC. He was sentenced to suffer
 imprisonment for life and a fine of Rs.1,000/-, in default, to      F
suffer further six months rigorous imprisonment and to suffer
 rigorous imprisonment for five years and a fine of Rs.2,000/-,
in default, to further suffer simple imprisonment for three moths,
respectively. Appellant-Radhey was acquitted of charges under
Sections 148, 302 and 307 read with Section 149 of the IPC.          G
Instead, he was convicted under Section 302 read with Section
34 and Section 307 read with Section 34 of the IPC. He was
sentenced to suffer imprisonment for life and a fine of Rs.1,000/
-, in default, to suffer six months rigorous imprisonment and to
                                                                     H
    162       SUPREME COURT REPORTS                [2014] 2 S.C.R.


A   suffer rigorous imprisonment for five years and a fine of
    Rs.2,000/-, in default, to further suffer simple imprisonment for
    three months, respectively. This judgment is challenged in the
    instant appeal.

B         4. Mr. P.C. Agarwala, learned senior counsel appearing
    for the appellants submitted that out of the eight accused, the
    High Court acquitted four accused. The High Court has, in fact,
    observed that the four acquitted accused have been falsely
    implicated. Counsel submitted that it is, therefore, risky to rely
    on the evidence of the prosecution witnesses to convict the
C   appellants. These witnesses exaggerated the prosecution story
    and involved the acquitted accused. It is possible that even so
    far as the appellants are concerned, they have not come out
    with the truth. This is a case where truth and falsehood are
    inextricably mixed and truth cannot be separated from
D   falsehood. The doctrine of 'falsus in uno falsus in omnibus', is
    clearly attracted to this case. Counsel pointed out that the eye-
    witnesses appear to be tutored. They are related to each other
    and, hence, are interested witnesses. Their evidence will have
    to be read cautiously. Moreover, complainant Heera has not
E   been examined. Admittedly, there is enmity between the two
    sides. There is a land dispute between complainant Heera and
    accused Rajdhar. Ram Kunwar's son Kamal was murdered
    and, in that connection, complainant Heera and others, are
    facing trial. During the pendency of this trial, complainant
F   Heera's son Bairam was murdered. False involvement on
    account of long standing enmity cannot be ruled out. The
    conviction of the appellants, therefore, deserves to be set
    aside.

G        5. Mr. S.S. Shamshery, learned Addi. Advocate General
    appearing for the State, on the other hand, submitted that the
    evidence of four eye-witnesses is consistent. PW-2 Khushiram
    and PW-4 Yadram are independent witnesses. There is no
    reason to cast any doubt on their testimony. Counsel submitted
    that in a catena of judgments, this Court has held that the
H
    SHEESH RAM AND ORS. v. THE STATE OF                      163
   RAJASTHAN [RANJANA PRAKASH DESAI, J.]
doctrine 'falsus in uno falsus in omnibus' is not applicable in     A
India. Even if some portion of the evidence of a witness is found
to be deficient, the remaining portion can be relied upon, if it
is sufficient to establish prosecution case. In this connection,
he relied on Rizan & Anr. v. State of Chhattisgarh 1• Counsel
submitted that there is enough credible evidence on record          B
which bears out the prosecution case. The appeal, be
therefore, dismissed.

     6. Deceased Bairam was most brutally murdered.
According to PW-12 Dr. Meena, the cause of death was
haemorrhage and shock due to head injury leading to injury to       C
brain and injury to carotid artery in neck. PW-5 Bhagwan Singh
wa~ also brutally attacked. He received four incised wounds.
He suffered a fracture of left parietal bone. Being an injured
witness, he is the most important witness in this case. He has
described the incident in question. The defence has not made        D
any dent in his evidence by cross-examining him. In fact, in the
cross-examination, he has given more details about the incident
in question, which are consistent with what he has stated in the
examination-in-chief. He has stated that he, deceased Bairam,
his father Heera and his other brother Rameshwar were               E
standing near the road near the boundaries of village Dehra
and Lapawali. At that time, a tractor driven by Rajdhar came
from village Lapawali side. Rajdhar halted the tractor near
them. The appellants, who were sitting in the tractor, got down.
Accused Battu was armed with an axe. Appellant Radhey was           F
also armed with an axe. Appellant Sheesh Ram was armed with
a sword. Appellant Rameshwar was armed with a dhariya and
others were having lathis. They encircled PW-5 Bhagwan Singh,
his father and brothers. His father and brother Rameshwar ran
towards the village. Bairam also ran towards the village. He ran    G
towards Katara village. Accused Radhey caught hold of the
collar of Bairam and dealt an axe blow on Balram's head.
Bairam fell down. Appellant Sheesh Ram dealt an axe blow on
Bairam when he had fallen down. Accused Rameshwar dealt
a blow with a dhariya on the right hand of Bairam. According        H
    164      SUPREME COURT REPORTS                [2014] 2 S.C.R.


A to PW-5 Bhagwan Singh, thereafter, appellant Sheesh Ram
  caught hold of him (Bhagwan Singh). Appellant Rameshwar hit
  on his left temple with a dhariya. He fell down. Appellant Sheesh
  Ram dealt an axe blow behind his ear when he had fallen down.
  Accused· Hanse dealt a lathi blow on his face. Thereafter, he
B became unconscious.

         7. PW-2 Khushiram, PW-3 Rameshwar and PW-4 Yadram
    have corroborated this witness. It is submitted that all these
    witnesses are related and therefore their evidence cannot be
    drelied upon. Assuming they are related to each other and,
C   hence, interested witnesses, it is well settled that the evidence
    of interested witnesses is not always suspect. It has to be
    scrutinized with caution and can be accepted if it is found
    reliable. Presence of PW-5 Bhagwan Singh at the scene of
    offence can hardly be disputed since he is an injured witness.
D   His evidence has strengthened the prosecution case. Evidence
    of PWs-3, 4 and 5 also inspires confidence. So far as the
    acquitted accused are concerned, the evidence of these
    witnesses qua them is found to be exaggerated. But, on account
    of that, their entire evidence cannot be discarded. All these
E   witnesses stated that the acquitted accused had lathis and they
    dealt lathi blows on PW-5 Bhagwan Singh. This part of their
    evidence is disbelieved. It is true that these witnesses have
    improved the prosecution story to some extent. But, that
    improvement or that exaggerated version can be safely
F   separated from the main case of the prosecution. So far as the
    main prosecution case is concerned, all the witnesses are
    consistent. This is not a case where truth and falsehood are
    inextricably mixed up. Witnesses tend to exaggerate the
    prosecution story. If the exaggeration does not change the
G   prosecution story or convert it into an altogether new story,
    allowance can be made for it. If evidence of a witness is to be
    disbelieved merely because he has made some improvement
    in his evidence, there would hardly be any witness on whom
    reliance can be placed by the courts. It is trite that the maxim
H   'falsus in uno falsus in omnibus' has no application in India. It
     SHEESH RAM AND ORS. v. THE STATE OF                      165
    RAJASTHAN [RANJANA PRAKASH DESAI, J.]
is merely a rule of caution. It does not have the status of rule of   A
law. In Ba/aka Singh v. State of Punjab 2, this Court has said
that where it is not feasible to separate truth from falsehood,
because the grain and the chaff are inextricably mixed up, and
in the process of separation, an absolutely new case has to be
reconstructed by divorcing essenti~I details presented by the         B
prosecution completely from the context and background
against which they are made, the Court cannot make an attempt
to separate truth from falsehood. But, as we have already
noted, this is not a case where the grain and chaff are
inextricably mixed up. The evidence of eye-witnesses is not           c
discrepant on the material aspect of the prosecution case.
Reliance can, therefore, be placed on them. In this connection,
reliance placed by the counsel for the State on Rizan is apt.
The same principle is reiterated by this Court in Rizan. We may
quote the relevant paragraph from Rizan.                              D
     "Even if a major portion of evidence is found to be
     deficient, in case residue is sufficient to prove guilt of an
     accused, notwithstanding acquittal of a number of other
     co-accused persons his conviction can be maintained.
     It is the duty of the court to separate the grain from the       E
     chaff. Where the chaff can be separated from the grain,
     it would be open to the court to convict an accused
     notwithstanding the fact that evidence has been found to
     be deficient to prove guilt of other accused persons.
     Falsity of a particular material witness or material             F
     particular would not ruin it from the beginning to end. The
     maxim falsus in uno falsus in omnibus has no
     application in India and the witnesses cannot be branded
     as liars. The maxim falsus in uno falsus in omnibus has
     not received general acceptance nor has this maxim               G
     come to occupy the status of a rule of law. It is merely a
     rule of caution. All that it amounts to, is that in such cases
     testimony may be disregarded, and not that it must be
     disregarded. The doctrine merely involves the question
     of weight of evidence which a court may apply in a given         H
    166       SUPREME COURT REPORTS               [2014] 2 S.C.R.


A         set of circumstances, but it is not what may be called "a
          mandatory rule of evidence". (See Nisar Ali v. State of
          UP AIR 1957 SC 366.)"

        8. The appellants examined defence witnesses. Testimony
8 of defence witnesses is not believed by the trial court as well
  as the High Court. We find no reason to take a contrary view.
  It is pertinent to note that Kamal, the brother of the appellants
  was murdered and for that murder, complainant Heera and
  some of the witnesses are facing trial. There is, therefore,
C strong motive to kill Bairam, son of Heera. It is not possible,
  however, to come to a conclusion that because of this enmity,
  the appellants have been falsely implicated. We have already
  discussed the evidence on record. The evidence of eye-
  witnesses, particularly the evidence of PW-5 Bhagwan Singh,
  the injured eye-witness, is trustworthy. Therefore, the argument
D that on account of previous enmity, the appellants have been
  involved in this case is rejected. Taking an overall view of the
  matter and examined in light of Ba/aka Singh and Rizan, we
  are of the opini9n that no interference is necessary with the
  impugned judgment. The appeal is dismissed.
E
   D.G.                                        Appeal dismissed.