RAMABORA @ RAMABORAIAH & ANRversusSTATE OF KARNATAKA

                        [2022] 4 S.C.R. 827                              827


           RAMABORA @ RAMABORAIAH & ANR.                                 A
                                 v.
                    STATE OF KARNATAKA
                 (Criminal Appeal No.1697 of 2011)
                                                                         B
                         AUGUST 10, 2022
 [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
      Penal Code,1860 – ss.143,144,148,147,448,302 and 149 –
22 accused formed unlawful assembly, armed with deadly weapon            C
and trespassed into the house of victim-deceased and committed
the murder of victim in furtherance of a common object – Sessions
Court acquitted all the accused – High Court set aside the acquittal
of appellants (A-1 and A-2) and held them guilty of the offence
punishable u/s 302 IPC and sentenced them to imprisonment for
life but the acquittal of all the other accused was confirmed by         D
High Court – Held: High Court has not given more stronger and
cogent reasons to set aside the acquittal – Further, the Judgment of
High Court is not in accordance with the law on the scope of s.378
of Cr.PC. – Judgment of the High Court insofar as relates to the
conviction of appellants set aside.                                      E
      Arvind Kumar @ Nemichand & Ors. v. State of
      Rajasthan 2021 SCC Online SC 1099; Ravi Sharma v.
      State (Government of NCT of Delhi) & Another 2022
      SCC Online SC 859 – referred to.
                                                                         F
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1697 of 2011.
      From the Judgment and Order dated 21.07.2008 of the High Court
of Karnataka at Bangalore in Criminal Appeal No. 1590 of 2001.
      Krishna Pal Singh, S. Quayyum, Ms. A. Aprajita, Harisha S. R.,     G
Advs. for the Appellants.
      V. N. Raghupathy, Parikshit P. Angadi, Advs. for the Respondent.


                                                                         H
                                827
828            SUPREME COURT REPORTS                          [2022] 4 S.C.R.


A           The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN, J.
            1. Aggrieved by the conviction for an offence under Section 302
      IPC and the sentence of imprisonment for life handed over to them by
B     the High Court of Karnataka, reversing the order of acquittal passed by
      the Sessions Court, accused Nos.1 and 2 have come up with the above
      appeal.
            2. We have heard the learned counsel for the appellants and the
      learned standing counsel for the State of Karnataka.
C             3. The appellants herein were prosecuted along with 20 other
      persons, before the II Additional District and Sessions Judge, Bangalore,
      for alleged offences under Sections 143, 144, 148, 147, 448 and 302 read
      with Section 149 IPC. By a judgment dated 8.8.2001, all the accused
      except those against whom the prosecution abated, were acquitted by
D     the Sessions Court.
              4. However on appeals filed by the State of Karnataka, a Division
      Bench of the High Court of Karnataka set aside the acquittal of the
      appellants herein (A-1 and A-2) and held them guilty of the offence
      punishable under Section 302 IPC and sentenced them to imprisonment
E     for life. But the acquittal of all the other accused was confirmed by the
      High Court.
            5. Aggrieved by the said judgment of reversal, accused Nos.1
      and 2 have come up with the above appeal.
             6. The case of the prosecution was that on 30.11.1997 at about 11
F     p.m., all the 22 accused formed themselves into an unlawful assembly
      and that armed with deadly weapons, they committed trespass by entering
      into the house of the deceased Siddaraju and committed the murder of
      the deceased in furtherance of a common object.
             7. The motive for the murder according to the prosecution, was
G     that when A-1 was passing through the house of the deceased, he heard
      the deceased hurling abuses in a foul and filthy language. Though the
      victim was purportedly abusing his own father, A-1 mistook as though
      he was being abused. Therefore, he picked up a quarrel with the deceased
      and thereafter went to the village, secured the other accused and went
      to the house of Siddaraju, broke open the door, pulled him out to the
H     street and hacked him to death.
    RAMABORA @ RAMABORAIAH & ANR. v. STATE OF                                  829
       KARNATAKA [V. RAMASUBRAMANIAN, J.]

      8. The case of the prosecution rested on the ocular testimony of         A
PW-1 and PW-4 who were the mother and maternal uncle of the
deceased. Though the father and sister of the deceased were also
examined as PW-2 and PW-3, they were not treated as eye-witnesses
on the ground that they had not seen the incidence.
      9. Four Panch witnesses examined as PWs 5, 6, 7 and 8 did not            B
support the case of the prosecution and were declared as hostile. PW-9,
the mahazar witness also turned hostile. PW-10 was the doctor who
conducted the post-mortem on the body of the deceased.
       10. At this stage, it is relevant to note that PW-1, mother of the
deceased, gave a complaint at 00.45 hrs on 1.12.1997, on the basis of          C
which Exhibit P-8 FIR was registered. Thereafter, one Nagamma, wife
of the deceased is said to have given another complaint which was marked
as Exhibit P-9. On the basis of the said complaint, a second FIR was
registered for more offences, including offences under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But
for reasons not known, this Nagamma was not examined as a witness,             D
though cited as a witness in the charge sheet.
        11. On the basis of the oral and documentary evidence, the Sessions
Court recorded certain findings with regard to the appellants herein
(A-1 & A-2) which are reproduced in the words of the Sessions Court
itself, as follows:-                                                           E

      “1. PW1 speaks about the presence of only six persons and they
      are A1, A2, A3, A11, A16 and A18. Whereas A14 speaks about
      the presence of only 7 persons viz.., A1, 2, 8, 11, 16 and 12. In this
      way PW1 speaks about the presence of 7 accused persons. The
      accused stated by these two witnesses are not exactly the same.          F
      Both the witnesses have spoken about only the presence of A1,
      A2, A11 and A16 and they had not spoken about the presence of
      others.
      2. The presence stated by PW1 and PW4 put together, are A1 to
      A3, A8, A11, A12, A16, A18 and A21. Hence, the presence of all           G
      other accused persons is not even stated by any of the witnesses
      and because of it there is no evidence against them.
      3. The very fact that PW1 is silent about the presence of A8, A12
      and A21 whose presence is stated by PW4, goes to show that
      they were not present. Similarly the silence of PW4 about the            H
830      SUPREME COURT REPORTS                         [2022] 4 S.C.R.


A     presence of A3 and A18 whose presence is spoken by PW1 goes
      to show that A3 and A18 could not have been present. Hence, it
      clearly goes to show that there is false implication.
      4. The very fact that the eye witnesses do not speak about the
      presence of most of the accused persons goes to show that they
B     have been falsely implicated. Hence, from the beginning the
      evidence of the prosecution is doubtful.
      5. When we examined the evidence relating to what weapons
      were used, it clearly goes to show that it is only an exaggeration
      and none of the witnesses are speaking the truth and even their
C     presence becomes doubtful.
      6. Accordingly to the complaint, accused-1 assaulted deceased
      by ‘bettukodali’ on his head. A12 Ashwatha assaulted the deceased
      by club all over the body. All other accused persons assaulted him
      with stones and bricks. Hence, according to the complaint only
D     one ‘bettukodali’ (axe), one club were used in addition to some
      stones and bricks. But in evidence MO-1 To MO-6 clubs and
      MO-7 to MO-9 chopper and sickle and axe are marked. Hence
      the number of weapons stated in the complaint is different while
      compared to the weapons produced and marked in evidence.

E     7. PW1 goes to the extent of saying that the accused had brought
      ‘machu’, sickle, axe, knife and clubs. In this way the weapons
      stated by PW1 are different when compared to the weapons stated
      in the complaint. PW1 is the complainant and because of it, she
      could not have stated such weapons which were not even stated
      in the complaint. This goes to show that the evidence of PW1 is
F     full of exaggeration and that is not acceptable.
      8. In the complaint the overt act done by accused-1 is that he
      assaulted with bettukodali on the head of the deceased. But PW1
      states that A-1 assaulted with axe on the ear of the deceased and
      it was cut off. PW4 has stated that accused-1 assaulted by sickle.
G     Hence, about the overt act done by accused-1, there is
      contradiction.
      9. When we see that overt act done by accused-2 Thimma, there
      is contradicting version. In the complaint it is only stated that
      accused-2 broke open the lock of that house where Siddaraju
H
    RAMABORA @ RAMABORAIAH & ANR. v. STATE OF                                  831
       KARNATAKA [V. RAMASUBRAMANIAN, J.]

      was kept and then it is the accused-1 who assaulted him on his           A
      head by axe and caused his death. But in evidence PW1 states
      that accused-2 had brought MO9 axe and assaulted him. He gave
      another version by stating that MO7 chopper was in the hand of
      accused-2 Thimma. PW4 states that accused-2 assaulted with
      axe. In this way about the overt act done by accused-2, there are
                                                                               B
      different version and because of it their evidence is not acceptable.
      10. PW1 states accused assaulted her also and she sustained
      bleeding injury on her head and she was assaulted with club by
      one Ashwatha and she took treatment of Government hospital
      Channapatna. In my opinion, this is only an exaggeration because,
      it is not stated in the complaint about assaulting her and there is no   C
      medical evidence to show that she was treated at Channapatana
      hospital.
      11. The fact that the eye witnesses PW1 and PW4, does not
      speak about the presence of many of the accused persons as
      discussed above corroborates the inference that some of the              D
      accused persons are falsely implicated. Hence, all is not well in
      the prosecution case and it raises substantial doubt and the accused
      will be entitled to benefit of doubt.”
       12. On the basis of the above findings, the Sessions Court acquitted
all the 22 accused except those against whom the charges abated.               E
Therefore, the State filed two appeals, one of which was against 17
accused and the other against 2 accused. The appeal in Criminal Appeal
No.1591 of 2001 was against the acquittal of A-7 and A-8 and the other
appeal, Criminal Appeal No.1590 of 2001 was against the acquittal of
A-1 to A-3, A-5, A-6, A-9 to A-16, A-18, A-19, A-21 and A-22.                  F
       13. The High Court dismissed the State’s appeal Criminal Appeal
No.1591 of 2001, thereby confirming the acquittal of A-7 and A-8. In
the other appeal, namely, Criminal Appeal No.1590 of 2001, the High
Court confirmed the acquittal of all the other accused except A-1 and
A-2. In other words, this appeal was partly allowed and A-1 and A-2            G
were convicted only for the offences under Section 302 IPC.
      14. As a matter of fact, the charges under Sections 143, 144, 148,
147 and 448 read with Section 149 were all gone even against A-1 and
A-2 who are the appellants herein. A-1 and A-2 have been convicted by
the High Court only for the offence under Section 302 IPC.
                                                                               H
832             SUPREME COURT REPORTS                            [2022] 4 S.C.R.


A             15. To come to the aforesaid conclusions, the High Court pointed
      out (i) the inconsistencies in the evidence of PW-1 and PW-4, insofar as
      the role played by all the accused other than A-1 and A-2; (ii) that the
      trial Court committed an error in acquitting all the 22 persons merely
      because PW-1 did not name all of them; (iii) that the principle “falsus in
      uno falsus in ominbus”, cannot be invoked in cases of this nature; and
B
      (iv) that there was consistency in the evidence of PW-1 and PW-4 with
      regard to the participation of A1 and A2 in the commission of the offence.
              16. The crucial portion of the findings of the High Court for holding
      the appellants guilty of the offence under Section 302 IPC reads as
      follows:-
C             “We find consistency in the evidence of PW-1 and PW-4 with
              regard to the participation of A1 and A2 in the commission of the
              offence. Both have deposed and have stated A1 and A2 broke
              open the door of the house, A1 dragged Siddaraju from the house,
              hacked him with a sickle on the face and thereafter A2 with axe
D             assaulted on the head of the deceased. The same also finds a
              place in the complaint. As such, this part of evidence of PW-1
              and PW-4 is reliable and Trial Court erroneously acquitted A1
              and A2 when there was sufficient material on record to hold them
              guilty.”
E             17. But the above findings of the High Court appear to be illogical.
      The primary charge of the prosecution was that all the 22 accused,
      formed themselves into an unlawful assembly with the common object
      of committing the murder of the deceased and that all of them being
      members of the unlawful assembly were armed with deadly weapons
      like clubs, bettu kudli, kodli etc. and that they committed the offence of
F     rioting, trespass and murder. All these charges have now been held not
      proved against all the accused including A-1 and A-2 and the only offence
      held proved against A-1 and A-2 is the one under Section 302 IPC. We
      do not know how, in the facts and circumstances of the case, the
      conviction of only 2 out of the 22 accused can be sustained and that too
      only for the offence under Section 302 when the allegation of unlawful
G
      assembly, common object, trespass, rioting etc. are held not proved
      against all of them. The State has not come up with any appeal against
      the acquittal of all the other accused.
              18. Moreover, there was also no explanation as to why there were
      two First Information Reports. According to PW-13, the Sub-Inspector
H
     RAMABORA @ RAMABORAIAH & ANR. v. STATE OF                                        833
        KARNATAKA [V. RAMASUBRAMANIAN, J.]

of Police, he received the oral complaint of PW-1 at 00.45 hrs. on                    A
01.12.1997 and he claims to have recorded the complaint, registered the
same as Crime No.182/1997 and sent the same to the Court. This FIR
was marked as Exhibit P-8.
       19. According to the same witness PW-13, the wife of the
deceased by name Nagamma gave a written complaint at the hospital.                    B
It was marked as Exhibit P-9. PW-13 claimed that thereafter he registered
a second FIR by including the offences under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. This FIR was
marked as Exhibit P-7. PW-13 further claimed that the further
investigation of the second FIR was entrusted to the CPI, as the same
related to serious offences.                                                          C
       20. The CPI was examined as PW-14. In his cross-examination
he did not make a whisper as to what happened to the second FIR. All
that he stated was that he took the statement of Nagamma (wife of the
deceased who gave the second complaint) only at the time of inquest
proceedings from 7:00 a.m. to 10 a.m.                                                 D
       21. As stated earlier, Nagamma was cited as one of the witnesses
in the Charge-Sheet, but she was not examined as a witness during trial.
The High Court has recorded that her whereabouts were not known
and that, therefore, she could not be examined. Such an explanation is
not found in the testimony of PW-14                                                   E
       22. It is true that the principle “falsus in uno falsus in omnibus”
may not have unadulterated application to criminal jurisprudence. The
Courts have always preferred to do what Hamsa, the mythological Swan,
is believed to do, namely, to separate milk and water from a mixture of
the two 1. In Arvind Kumar @ Nemichand & Ors. vs. State of
Rajasthan2, M.M. Sundresh J. speaking for the bench crystallized this                 F
principle as follows:
       “49. The principle that when a witness deposes falsehood, the
       evidence in its entirety has to be eschewed may not have strict
       application to the criminal jurisprudence in our country. The
       principle governing sifting the chaff from the grain has to be                 G
       applied. However, when the evidence is inseparable and such an
       attempt would either be impossible or would make the evidence
1
  The idiom “sifting the chaff from the grain” has become very old and worn out and
requires replacement
2
  2021 SCC Online SC 1099                                                             H
834               SUPREME COURT REPORTS                         [2022] 4 S.C.R.


A            unacceptable, the natural consequence would be one of avoidance.
             The said principle has not assumed the status of law but continues
             only as a rule of caution. One has to see the nature of discrepancy
             in a given case. When the discrepancies are very material shaking
             the very credibility of the witness leading to a conclusion in the
             mind of the court that is neither possible to separate it nor to rely
B
             upon, it is for the said court to either accept or reject.”
             23. Therefore, the High Court was right on first principles that the
      evidence of PW-1 and PW-4 cannot be rejected by invoking the theory
      of falsus in uno falsus in omnibus.
             24. But when there are glaring contradictions between the testimony
C     of even these two witnesses on the type of material object used and
      even on the role of A-2, the very foundation of the case of the prosecution
      stood shaken.
             25. As a matter of fact, the Trial Court took note of the absence
      of evidence relating to the injuries suffered by PW-1. Nothing was stated
D     by PW-1 in the FIR, about the injuries on her body, but she spoke about
      it in her evidence. Even the same was not corroborated by medical
      evidence. This is why the Trial Court disbelieved the evidence of PW-1
      and PW-4.
             26. To overturn such a verdict of acquittal, handed over by the
E     Sessions Court after disbelieving PW-1 and PW-4, the High Court should
      have come up with more stronger and cogent reasons than what has
      been recorded. The law on the scope of Section 378 of the Cr.P.C., is
      too well settled. Very recently this Court traced the law in Ravi Sharma
      vs. State (Government of NCT of Delhi) & Another3. The impugned
      judgment of the High Court is not in accordance with the law on the
F     point.
             27. In such circumstances, we are of the considered view that
      the conviction of the appellants herein by the High Court cannot be
      sustained. Therefore, the appeal is allowed and the impugned judgment
      of the High Court insofar as it relates to the conviction of appellants is
G     set aside. The appellants shall be released forthwith, unless they are
      suffering incarceration in connection with any other case. No costs.

      Ankit Gyan                                                    Appeal allowed.
      (Assisted by : Aarsh Choudhary, LCRA)

H     3
          2022 SCC Online SC 859