STATE OF HARYANAversusCHANDVIR AND ORS.

                         STATE OF HARYANA                                        A
                                     v.
                         CHANDVIR AND ORS.

                              APRIL 17, 1996

           [K. RAMASWAMY AND S.P. BHARUCHA, JJ.]                                 B

      Penal Code, 1860:

       Section 302 r/w. 32-Murder--Accused acquitted by High Court giving
benefit of doubt-On appeal held, it will be highly unsafe to accept the
evidence of tlze witnesses to base the conviction of Al and A2 for tlze murder   c
of tlze deceased.

      Legal Maxims :

      Falsus in Uno, falsus in omnibus--:-Applicability of
                                                                                 D
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.107 of 1994.

     From the Judgment and Order dated 3.9.86 of the Punjab & Haryana
High Court in Cr!. A. No. 424-DB of 1985.
                                                                                 E
      D.B. Vohra, K.C. Bajaj and Ms. Indu Malhotra for the Appellant.

      Prem Malhotra and G. Prakash for the Respondents.

      The following Order of the Court was delivered :
                                                                                 F
       This appeal by special leave arises from the judgment of the Division
Bench of the Punjab & Haryana High Court made in Criminal Appeal No.
424 of 1985 on September 3, 1986. The case of the prosecution is that on
September 21, 1984 at about 4.30 p.m. Smt. Chandra, a witness of the
prosecution, had a quarrel with one Smt. Sunita who had drawn water
stealthily from the well dug by the prosecution party. Pursuant to that,         G
when Rajpal-deceased was proceeding by the side of the house of the
accused at 5.45 p.m., there ensued a quarrel between Subhash and Rajpal,
now deceased, end others. In the quarrel the intervener had separated
them. While deceased was proceeding towards his house at 6 p.m., it is the
case of the prosecution that all the accused, who were standing near the         H
                                     499
    500                  SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   house of Medu, one of tk accused, had attacked the deceased and when
    other parties had come to intervene, they were also beaten up. The
    deceased almost died instantaneously; after he was taken to the hospital
    he was declared dead. Thereafter a report was lodged at about 11.30 p.m.
    by Medu, PW-9. Investigation was made. The accused were arrested and
    were charged for various offences, including the offences under Section
B
    148, 302/149, 324, 325, etc. The trial Court acquitted five accused and
    convicted Al to AS for various offences, including the offences under
    Section 302 read with Section 149. On appeal, the High Court set aside the
    convictions and acquitted them of all the charges. Thus this appeal by
    special leave.
c
          The learned counsel for the appellants has contended that the medi-
    cal evidence established that the deceased died due to shock and haemor-
    rhage on account of the injuries to the lung and heart, which, in the
    ordinary course of nature, causes death. Therefore, there is no dispute as
D   regards the homicide of the deceased Rajpal. He contended that PWs. 9,
    12 and 13 are the injured witnesses. There is also an independent witness.
    All have spoken of the participation of the accused in the commission of
    the crime. The prosecution, therefore, has established the case beyond
    reasonable doubt. The High Court, therefore, was not right in gi,ing benefit
    of doubt to the respondents.
E
        Having gone through the evidence and the reasoning given by the
  High Court, we do not think that the case warrants interference. It is seen
  that the prosecution has deliberately separated two incidents which oc-
  curred at 5.45 p.m. and 6 p.m. on that date. A reading of the evidence
F clearly goes to show that after the first incident of quarrel between the
  ladies had taken place, when the deceased-Rajpal was passing through the
  road and had come near the house of the accused, there appears to have
  arisen a quarrel between the accused party and the prosecution party. Both
  the incidents had taken place during the course of the same transaction.
  The question then is : whether it is possible to believe the evidence of the
G injured witnesses implicitly to base the conviction of the respondents '/ It
  would appear from the evidence adduced that there is no common object
  or intention to kill the deceased. It would appear that it is a case of free
  fight between the accused party and the prosecution party on account of
  the quarrels between the two families. There is evidence that some of the
H accused suffered injuries in the same transaction and the prosecution has
                           STATEv. CHANDVIR                                501

not explained injuries on them. In those circumstances, the liability of each A
of the accused has to be considered independently. In that attempt, we
have scanned the evidence of injured witness carefully vis-a-vis the reason-
ing given by the High Court. It would appear that all the witnesses have
improved upon their version stated in the statement recorded under Sec-
tion 161, Cr.P.C. In fact, the Sessions Court itself has noted that some of
the witnesses have spoken falsely in their evidence with regard to some of B
the accused. Under those circumstances, would it be possible to place
implicit reliance. ·on the evidence of these injured witnesses, though their
presence stands confirmed? We have given our anxious consideration to
the facts in this case. We find that it is absolutely difficult to place implicit
reliance on their evidence. It ·is true that fa/sus in uno, falszts in omnibus   c
has no application in criminal trial. Court has to endeavour to separate the
grain from the chaff and accept that part of the evidence which is found
to be truthful and consistent. Having made that attempt, we find that on
the facts of this case, it is very difficult to separate the grain from the chaff.
It is seen that the participation of five of the accused is totally disbelieved D
by the Sessions Court as well as the High Court. As regard the participation
of the eight accused in the commission of the crime, it is seen that witnesses
fabricated and improved their version from stage to stage. Therefore, it
would be very difficult to place implicit reliance on each of their evidence
or cumulatively to convict accused 1 and 2. The two accused are alleged
to have attacked the deceased. Each of the injuries is not independently E
sufficient to cause death. Moreover, in a case of free fight, Section 149
cannot be applied. It is difficult to accept the prosecution case to hold Al .
and A2 alone had attacked the deceased in the melee. It might be that
some other had attacked the deceased. PW. 9, father of the deceased is
found to have given false evidence. On the facts and circumstances, neither
                                                                                   F
Section 32 nor Section 149 can be applied to any of the accused.

      It is seen that Al and A2, namely, Chandvir and Rohtash are alleged
to have attacked the deceased. In the narration of the facts, it was accused
party which pitched upon to kiU the deceased and they were armed with
deadly weapons. If that be so, one would expect that aU of them would G
have attacked the deceased in the first incident and if any other prosecu-
tion party attempted to intervene, they would have been beaten up, but that
is not the evidence at the trial. It is seen from the evidence that Al and
A2 attacked t'1e deceased only in midway while the attack on other parties
was going on. Under these circumstances, if we disbelieve the version of H
    502                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   the prosecution, as spoken in respect of A3 to A13, it would be equally
    difficult an unsafe to accept that part of the evidence that Al and A2 alone
    attacked the deceased and convict them for the individual offences. As
    found earlier, on tbe state of evidence, the possibility of some other
    accused having attacked the deceased and of falsely implicating Al and
    PW-2, cannot, with reasonable certainty be excluded. Moreover, PW-9,
B   Medu was found to have given false evidence and cumulative effect of the
    injuries is the cause of the death. Considered from this perspective, we find
    that it will be highly unsafe to accept the evidence of the witnesses to base
    conviction of Al and A2 for the offences of murder of the deceased- Rajpal
    punishable under Section 302 read with Section 32. The order of acquittal
c   recorded by the High Court is not warranted to be interfered with, though
    for different reasons.

           The appeal is accordingly dismissed.

    G.N.                                                     Appeal dismissed.