Holding

The convictions of the five accused under Section 302 read with Section 149 IPC are upheld, while the acquittal of A‑1 is affirmed.

Summary

Twenty-five persons were charged with offences including murder under Section 302 read with Section 149 of the IPC, arising from an assault on the deceased Kenchappa and his sons. The trial court convicted six accused of all charges except the murder provision, relying on eye‑witness testimony, while acquitting the rest. The High Court upheld the murder convictions of five accused and acquitted one (A‑1). On appeal, the Supreme Court held that the acquittal of a large number of co‑accused does not invalidate the evidence of trustworthy witnesses and that convictions can stand if the prosecution’s case is established, even partially. The Court rejected the doctor’s hypothetical causation argument and found the testimony of PWs 1, 2, 3, 7 and 14 reliable, thereby upholding the convictions of the five accused and the acquittal of A‑1. All appeals were dismissed.

Issues considered

Whether the acquittal of a large number of co‑accused precludes conviction of the remaining accused on the basis of the same evidence.
Whether the doctor's hypothetical testimony on cause of death negates the prosecution's case for murder under Section 302 read with Section 149.
Whether the eye‑witness testimony is sufficient to sustain conviction under Section 302 read with Section 149.
Application of the maxim 'falsus in uno, falsus in omnibus' in criminal trials involving multiple accused.

Legislation cited

Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 149, s. 302, s. 307, s. 324, s. 504

Subjects

murdercommon objectunlawful assemblySection 302 IPCSection 149 IPCevidentiary standardsfalsus in unofalsus in omnibuscausationeye‑witness testimonyacquittal of co‑accused

Judgment

[2008] 12 S.C.R. 362

.--t· ,.
A GANESH
v.
STATE OF KARNATAKA AND ORS.
(Criminal Appeal No.586 of 2007)
AUGUST 20, 2008
8
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Penal Code, 1860:
C ss.143, 147, 148, 504, 324, 307 rlw s.149 ands. 302-rl
w s. 149 - Prosecution under - Of twenty five accused -
Enmity between parties - Incident seen by eye-witnesses -
Trial court convicting 6 accused under all the provisions
except uls 302 rlw s. 149 - Rest of the accused acquitted -
D High Court acquitting one of the convicted accused and
holding that rest of the five accused were also liable to be
punished u/s 302 rlw s.149 - On appeal, held: Order of High
Court is justified - Evidence of eye-witnesses is trustworthy
- Acquittal of large number of accused cannot be a ground
E to discard the evidence of trustworthy witnesses - When a
port.ion of prosecution evidence is discarded, it is open to
court to differentiate between acquitted and convicted
accused - Rule of 'falsus in uno, falsus in omnibus' is merely
a rule of caution.
F Twenty five persons including the appellants-
accused were prosecuted for offences u/ss.143, 147,
148, 504, 324, 307 r/w s.149 and u/s. 302 r/w s.149 IPC.
According to prosecution, strained relations between the
accused and the complainant party resulted in assault
G on the deceased and his sons. The deceased
succumbed to the injuries after 5 days of the assault.
Trial Court relying on the evidence of eye-witnesses
convicted 6 accused persons for all the offences they
were charged, except uls 302 r/w s.149 IPC.
H 362
GANESH v. STATE OF KARNATAKA & ORS. 363

:"' 1-
State filed appeal before High Court questioning A
acquittal of the accused u/s 302 r/w s.149 IPC. The
convicted accused also filed appeals questioning their
conviction. High Court held that five out of the six
accused were liable to be punished u/s 302 r/w s.149
IPC. However, one of the appealing accused was B
~ acquitted. Hence the present appeals.
1
Dismissing the appeals, the Court
HELD: 1. Though large number of co-accused have
been acquitted, that cannot be a ground to discard the c
evidence of trustworthy witnesses. 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
D
who has been convicted and those who have been
. acquitted. The maxim 'falsus in uno, fa/sus in omnibus' is
merely a rule of caution. An attempt has to be made to
~ separate the 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 E
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 the truth from falsehood to an F
--1· extent that they are inextricably mixed up, and in the
process of separation an absolutely 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 G
-.).:' cannot be made. [Paras 10, 11] [368,F-H; 369,A-D]
Masalti v. State of Uttar Pradesh AIR 1965 SC 202;
Gurcharan Singh v. State of Punjab AIR 1956 SC 460 and
Sucha Singh v. State of Punjab 2003 (7) SCC 643 - relied on.
H
364 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 2. The doctor's evidence to the effect that the death
was not due to any injury but it was due to cardiac
arrest and respiratory failure as a result of tetanus, is by
way of hypothetical answer. The evidence of PW-2, PW-
7 and PW-3 clearly established the role played by the
B accused persons and PW-3 was the injured witness.
The evidence of PWs 1, 2, 3, 7 and 14 inspire confidence
and, therefore, the trial Court and the High Court had
rightly convicted the appellants. So far as acquittal of A-
1 is concerned, the High Court has given ample reasoning
c for setting aside his conviction and affirming the
conviction of other accused persons. [Para 12] [369, D-G]
Case Law Reference
AIR 1965 SC 202 Relied on Para 9
D AIR 1956 SC 460 Relied on Para 11
2003 (7) sec 643 Relied on Para 11 1·
; ~
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 586 of 2007
E From the final Judgment and Order dated 24.8.2005 of
the High Court of Karnataka at Bangalore in Criminal Appeal
Nos. 394 of 2001 & 1344 of 2000
K.V. Viswanathan, Shekhar G. Devasa, Rohit Pandey,
Dinesh Kumar Garg, Chinmoy Khaladkar and S.K. Nandy, for
f the Appellant.
+
Anil Kr. Mishra, A. Rohen Singh, Sanjay R. Hegde, Amit
Kr. Chawla, Chinmoy Khaladkar, S.K. Nandy, Rakesh K.
Sharma and P.V. Yogeswaran for the Respondents.
G The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. These appeals are interlinked
and therefore they are disposed of by this common judgment.
2. The High Court by its judgment dated 24th August,
H 2005 disposed of three appeals. Criminal Appeal 394 of 2001
GANESH v. STATE OF KARNATAKA & ORS. 365
[DR ARIJIT PASAYAT, J.]
~ '-f was filed by the State of Karnataka questioning acquittal of the A
accused persons for the offence punishable under Section 302
read with Section 149 of the Indian Penal Code, 1-860 (in short
the 'IPC'). The other appeals were filed by the accused persons
who were convicted for offences punishable under Sections
143, 148, 504 read with Section 149, Section 324 read with B
Section 149 IPC, Section 326 . read with Section 149 and
+\ '

Section 307 read with Section 149 IPC. In all 25 persons faced
trial. However, the trial Court found only 6 of the accused persons
to be guilty and therefore they filed appeals which were
"'•
-j'
numbered as Criminal Appeal Nos.1344/2000 and 1359/2000. c
The other appeal was filed by the State as noted above.
3. The High Court acquitted S.Holeyappa (A-1) but held
the other five to be guilty of offence punishable under Section
302 read with Section 149 IPC. Accordingly State's appeal
was allowed. The appeals filed by the accused persons were D
- dismissed.
... 4. It is to be noted that while accepting the State's appeal,
--( the accused persons were convicted for the offence punishable
under Section 302 read with Section 149 IPC.
E

.. 5. Background facts in a nutshell are as follows:
The accused, the deceased and the material prosecution
witnesses are all residents of Malladihalli village in Holalkere
Taluk. Accused Nos. 1 and 4 are brothers. Accused No.2 is
the son of accused No.4, whereas accused Nos. 3 and 5 are F
1- the sons of accused No.1. Accused No.6 is related to these
accused. Similarly on prosecution side, Shivakumar (PW-2),
Lokesh (PW-3) and Murthappa (PW-7) are the sons of the
Kenchappa (hereinafter referred to as 'deceased'). Relation
-between the accused group and the deceased and his family G
members was strained over erecting an electric pole in the
-...\\
land of the accused, the line of which would have passed and
benefited the deceased and his borewell in the land near by
which was objected by the accused. This ill will and enmity
ultimately resulted in the assault on the deceased and his H
366 SUPREME COURT REPORTS [2008] 12 S.C.R.
..
·~

A sons on 2.10.1995. On that day, there was a festival and a
-+- .-:-
procession was taken of the deity by the villagers. The
deceased and his children had also joined the procession.
According to the prosecution when the procession came near
the post office by the side of which is also the house of the
B accused, the accused group suddenly pounced upon the
deceased and his children and assaulted them. This took
place around 6.30 P.M., or so in the evening. After the assault
+
I·

Kenchappa (deceased), P.W.2 Shivakumar, Lokesh were taken
to the hospital. In spite of the treatment given to the injured
•
•'
c Kenchappa, he breathed his last on 7.10.1995. Thereafter, PW-
1 a nephew of the deceased approached the jurisdictional police ,_
at Holalkere and gave his written information as per Ex.P.1, . "'
t

P.W.25 Mohammad Arif, S.H.O. of the Police Station on receipt
of the written information from P.W.1, registered a case in Crime
No.290/1995 for the offences under Sections 143, 147, 148,
D
504, 324, 307 read with Section 149 !PC against 18 named
and other un-named accused and investigation was taken up.
.t
After the death of Kenchappa on 7 .10 .1995 the offence under
Section 302 read with Section 149 IPC was also added. After ')--
completion of investigation, the charge sheet was filed. The
E trial was held as the accused persons abjured guilt. Thirty nine
witnesses were examined to further the prosecution version. >
The trial Court as noted above placed reliance on the evidence
of large number of persons who are stated to be eye witnesses
and held the accused persons guilty of several offences but
F acquitted them of the charge relatable to Section 302 read with
Section 149 IPC. +
In appeal, the primary stand of the State was that the
evidence on·record left no manner of doubt that Section 302
read with Section 149 IPC was clearly applicable. The accused
G
appellants in their appeals contended that the evidence does
~;
not inspire confidence and most of the related witnesses are
partisan witnesses and the High Court did not find any
substance in the appeals filed by the accused persons and .,f',

accepted the appeal filed by the prosecution.
H
GANESH v. STATE OF KARNATAKA & ORS. 367
[DR. ARIJIT PASAYAT, J.]
- --f-
6. In support of the appeals, learned counsel for the A
appellants submitted that the eye witnesses PWs 2 and 3
should not have been accepted as they were to be related
witnesses. Admittedly, there was enmity between the parties
because of political rivalry. There was delayed examination of
so-called witnesses. It is submitted that when the trial Court B
-t acquitted 19 accused persons i.e. A-7 to A-25 and the High
4
Court directed acquittal of A-1, it would be unsafe to sustain the
conviction of others. The investigating officer did not investigate
fairly and therefore the trial Court and the High Court were not
justified in upholding the conviction of the five appellants. It is c
submitted the cause of death was due to cardiac arrest and not
on account of injuries sustained in the alleged incident.
Therefore, Section 302 IPC has no application.
7. Per contra, learned counsel for the State supported
the judgments of the trial Court and the High Court. D
,. 8. In the instant case, the evidence of PWs 2, 3, 7 and
13 is of considerable relevance. Out of 39 witnesses
-f examined, PWs 1 to 7, 12, 14, 15, 16, 27 to 29, 31, 33 and ·
35 were projected as eye witnesses to the incident. But at the
4
stage of trial, except PWs 1 to 3, 7, 14 and 15, others did not E
support the prosecution. The evidence on record shows that
PWs 2 and 3 were injured witnesses. Their evidence assumes
great importance. It was pointed out by learned coimsel for
the appellants that no definite overt act has been attributed to
any of the five respondents. F
+ 9. In Masalti v. State of Uttar Pradesh (AIR 1965 SC
202) it has been observed as follows:
"where a crowd of assailants who are members of an
unlawful assembly proceeds to commit an offence of G
~ murder in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe
accurately the part played by each one of the assailants.
Besides, if a large crowd of persons armed with weapons
assaults the intended victims, it may not be necessary H
368 SUPREME COURT REPORTS [2008] 12 S.C.R.

A that all of them have to take part in the actual assault. +- ~
;

Where for instance, several weapons were carried by
different members of the unlawful assembly, but it appears
that the guns were used and that was enough to kill 5
persons, it would be unreasonable to contend that because
B the other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the said
weapons itself should be rejected. Appreciation of evidence +
~·

in such a complex case is no doubt a difficult task; but
criminal courts have to do their best in dealing with such
cases and it is their duty to sift the evidence carefully and
c decide which part of it is true and which is not.
It is true that under the Evidence Act, 1872 trustworthy
evidence given by a single witness would be enough to
convict an accused person, whereas evidence given by
D half a dozen witnesses which is not trustworthy would not
be enough to sustain the conviction. But where a criminal
Court has to deal with evidence pertaining to the
...
commission of an offence involving a large number of
offenders and a large number of victims, it is usual to ).--
adopt the test that the conviction could be sustained only
E if it is supported by two or three or more witnesses who ~
give a consistent account of the incident. In a sense, the
test may be described as mechanical; but it cannot be
treated as irrational or unreasonable. It is, no doubt, the
quality of the evidence that matters and not the number of
F witnesses who give evidence. But sometimes it is useful
to adopt a mechanical test." +-
10. In the instant case, though large number of co-
accused have been acquitted that cannot be a ground to
discard the evidence of trustworthy witnesses.
G
11. 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.
H
GANESH v. STATE OF KARNATAKA & ORS. 369
[DR. ARIJIT PASAYAT, J.]
- i-
(See Gurcharan Singh v. State of Punjab (AIR 1956 SC 460) A
and Sucha Singh v. State of Punjab (2003 (7) SCC 643). The
maxim "falsus in uno, falsus in omnibus" is merely a rule of
caution. As has been indicated by this Court in Sucha Singh
case in terms of felicitous metaphor, an attempt has to be
made to separate the grain from the chaff, truth from falsehood. 8
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 the truth from falsehood to C
an extent that they are inextricably mixed up, and in the process
of separation an absolutely 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. D
12. Great emphasis was laid on the version of the doctor
to contend that the death was not due to any injury but it was
due to cardiac arrest and respiratory failure as a result of
tetanus. The doctor's evidence is by way of hypothetical answer
that the death would not occur because of the injuries received E
by sharp edged weapon. The evidence of Shiv Kumar (PW-
2), Murthappa (PW-7) and Lokesh (PW-3) clearly established
the role played by the accused persons and PW-3 was the
injured witness. Ganesh (A-3) assaulted PW-2 with axe on
the neck part. He stated that A-4 has assaulted PW-2 with F
sickle and thereafter he assaulted him. The evidence of PWs
1, 2, 3, 7 and 14 inspire confidence and, therefore, the trial
Court and the High Court had rightly convicted the appellants.
So far as acquittal of A-1 is concerned, the High Court has
given ample reasoning for setting aside his conviction and G
affirming the conviction of other accused persons.
13. The appeals are without merit and deserve dismissal
which we direct.
K.K.T. Appeals dismissed.
H