# KESHORAM GORA v. STA TE OF ASSAM

- **Citation:** [1978] 2 S.C.R. 788
- **Court:** Supreme Court of India
- **Decided:** 1976-08-13
- **Bench:** S. MURTAZA fAZAL ALI, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/keshoram-gora-v-sta-te-of-assam-7426
- **Pages:** 5

## Headnote

Indian Penal Code-Sec. 99-302-304 Part //--Causing n1urder in exercise
of right of prii·ate defence-Exceeding right of prirate defence-Eriden..:e of
hostile witness-Admission of accused-Exculpatory and inculpatory part if
separable.
The appe1lant alongwith his brother Someshwar was prosecuted under section 302 read with section 34 of the I.P.C. for causing death of one Kalinath.
According to the prosecution Kalinath was uprooting
pulses from his laiid
when the accused Keshoram and his brother Someshwar appeared on the scene
armed with shels along \Vith their father and brother and attacked the deceased. The deceased received a number of injuries as a result of which he
fell down and died.
F.I.R. was 1odged by P.W. 3 Ramakoo.ta Bora at aibout
11 a.m.
In the F.LR .. however only the name of P.W. l Upendra Chaondra
Bora was mentioned as a witness.
The defence of the accused was that the
actual occurrence took place in the land belooging to the father of the accused
Kanwal Chandra and '"''hen the deceased tried to assault the ploughme'rl of
the accused the accused injured the deceased in exercise of their rig'ht of private defence. The Sessions Judge was of the view that as the prosecution itself
presented two contradictory versions it failed to prove the manner in which
the occurrence took place. and accordingly acquitted the accused.
In an appeal the High Court accepted the evidence of the eye witne&<;es and
over-ruled finding of the Sessions Judge that the prosecution had itself given two
contradictory versions of the occurrence.
Partly allowing the appeal,
HELD : 1. The Sessions Judge treated the evidence of hvo hostile \VitneSses
as the spokesmen of the prosecution case. It is truei that merely
becacse a
witness is declared hostile his evidence cannot be rejected on that ground
alone. However, once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a \Vitness.
In these circumstances, the Sessions Judge was not at all justified in treating
the version given by P.Ws. S and 7 as the version of the prosecution itself.
[790 C-El
2. The principle of 'Falsus unus falsus omnibus' does not apply to criminal
trials and it is the duty of the Court to disengage truth from falsehood, to sift
the grain from the chaff instead of taking an easy course of rejecting the
prosecution case in its entirety merely on the basis of a few infirmities.
[790 F-G]
3. The accused has clea.rly admitted that he did assault the deceased with
a sharp cutting weapon as a result of which the' deceased Kalinath fell do\vn.
The prosecution evidence therefore has to be judged in the light of the ad~
missions made by the accused. [791 B & C]
4. It is well settled that where a confession or admission is separable there
can be no objection to taking c.-ie part in.to consideration which appears to be
·\
true and reject the other part which is false.
(791 DJ
Nishi Kant Iha v, State of Biliar [1969] 2 SCR 1033; relied on.
/
S. It would appear from the evidence of P.W. S, that the land in which the
assault took place belonged to father of the accused.
Although this witness
was declared hostile this part of the statement made by him is amply corrobora-
.
KESHO RAM v. ASSAM (Fazal Ali, l.)
78!)
ted by the testimony of independent witness, namely PW 6. l"he Police did
not fmd blood marks either in the land\ of the deceased or in the land of the
accused.
From the evidence of PW 6 it· appears 1'hat brother of the accused
Someshwa.r was first assaulted by Ka1inath.
The appellant, therefore. a5saLJlted Kalinath in the land of his father after Someshwar was assaulted by the
deceased.
The evidence of the other eye witness who has given the one
sided version of ~he assa.uJt by the accused on the deceased cannot 'be accepted
in toto.
However, neither the appellant nor Someshwar received any injuries.
There can be no doubt that the appe11ant exceeded the right or private defence.
The Court. therefore, altered

## Text

A
B
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788
KESHORAM GORA
v.
STA TE OF ASSAM
February l, 1978
[S. MURTAZA fAZAL ALI AND P. N. SHINGHAL, JJ.J
Indian Penal Code-Sec. 99-302-304 Part //--Causing n1urder in exercise
of right of prii·ate defence-Exceeding right of prirate defence-Eriden..:e of
hostile witness-Admission of accused-Exculpatory and inculpatory part if
separable.
The appe1lant alongwith his brother Someshwar was prosecuted under section 302 read with section 34 of the I.P.C. for causing death of one Kalinath.
According to the prosecution Kalinath was uprooting
pulses from his laiid
when the accused Keshoram and his brother Someshwar appeared on the scene
armed with shels along \Vith their father and brother and attacked the deceased. The deceased received a number of injuries as a result of which he
fell down and died.
F.I.R. was 1odged by P.W. 3 Ramakoo.ta Bora at aibout
11 a.m.
In the F.LR .. however only the name of P.W. l Upendra Chaondra
Bora was mentioned as a witness.
The defence of the accused was that the
actual occurrence took place in the land belooging to the father of the accused
Kanwal Chandra and '"''hen the deceased tried to assault the ploughme'rl of
the accused the accused injured the deceased in exercise of their rig'ht of private defence. The Sessions Judge was of the view that as the prosecution itself
presented two contradictory versions it failed to prove the manner in which
the occurrence took place. and accordingly acquitted the accused.
In an appeal the High Court accepted the evidence of the eye witne&<;es and
over-ruled finding of the Sessions Judge that the prosecution had itself given two
contradictory versions of the occurrence.
Partly allowing the appeal,
HELD : 1. The Sessions Judge treated the evidence of hvo hostile \VitneSses
as the spokesmen of the prosecution case. It is truei that merely
becacse a
witness is declared hostile his evidence cannot be rejected on that ground
alone. However, once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a \Vitness.
In these circumstances, the Sessions Judge was not at all justified in treating
the version given by P.Ws. S and 7 as the version of the prosecution itself.
[790 C-El
2. The principle of 'Falsus unus falsus omnibus' does not apply to criminal
trials and it is the duty of the Court to disengage truth from falsehood, to sift
the grain from the chaff instead of taking an easy course of rejecting the
prosecution case in its entirety merely on the basis of a few infirmities.
[790 F-G]
3. The accused has clea.rly admitted that he did assault the deceased with
a sharp cutting weapon as a result of which the' deceased Kalinath fell do\vn.
The prosecution evidence therefore has to be judged in the light of the ad~
missions made by the accused. [791 B & C]
4. It is well settled that where a confession or admission is separable there
can be no objection to taking c.-ie part in.to consideration which appears to be
·\
true and reject the other part which is false.
(791 DJ
Nishi Kant Iha v, State of Biliar [1969] 2 SCR 1033; relied on.
/
S. It would appear from the evidence of P.W. S, that the land in which the
assault took place belonged to father of the accused.
Although this witness
was declared hostile this part of the statement made by him is amply corrobora-
.
KESHO RAM v. ASSAM (Fazal Ali, l.)
78!)
ted by the testimony of independent witness, namely PW 6. l"he Police did
not fmd blood marks either in the land\ of the deceased or in the land of the
accused.
From the evidence of PW 6 it· appears 1'hat brother of the accused
Someshwa.r was first assaulted by Ka1inath.
The appellant, therefore. a5saLJlted Kalinath in the land of his father after Someshwar was assaulted by the
deceased.
The evidence of the other eye witness who has given the one
sided version of ~he assa.uJt by the accused on the deceased cannot 'be accepted
in toto.
However, neither the appellant nor Someshwar received any injuries.
There can be no doubt that the appe11ant exceeded the right or private defence.
The Court. therefore, altered the conviction of ~he appellant fron1 one under
'ect'on 302/34 to section 304 Part II.
[791 F-H, 792 A. C. D & EJ
CRIMINAL APPELLATE JUR!SDICTION : Criminal Appeal No. 466
of 1976.
Appeal from the Judgment and Order dated 13-8-1976 of
the
A'' -'
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Assam High Court in Cr!. A. No. 3/1971.
c
P. H. Parekh and Kai/ash Vasdev for the Appellant.
S. K. Nandy for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.
This appeal is directed against the judgmnet of the
Assam High Court dated 13-8-1976 by which the High Court allowed
the appeal and after reversing the judgment of the Sessions Judge acquitting the appellants, convicted the accused Keshoram Bora
and
Someshwar Bora under section 302/34 and sentenced them to imprisonment for life. The appellant Kesh0ram Bora has preferred this appeal
under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1973 as also under section 379 of the Code of Criminal Procedure, 1973.
· A detailed narrative of the prosecution case is contained in
the
judgment of the High Court and it is not necessary for us ot repeat the
same all over again.
According to the prosecution, Kalinath Bora was uprootino pulses
from his land on 19th December, 1967 at about 9 a.m. when th~ accused Keshoram Bora and Someshwar Bora appeared on the scene armed
with 'Shels' along with
their father and brother and attacked
the
deceased.
The deceased received a number of injuries as a result of
which he fell down. F.I.R. was lodged by P.W. 3 Roma Kanta Bora at
Police Station Dhing at about 11 a.m. on the same day. In the F.l.R.,
however, only the name of P.W. 1 Upcndra Chandra Bora was mentioned as a witness.
The police arrived on the scene of the occurrence
and after the usual investigation submitted a charge-sheet against the
accused as a result of which they were committed to the court of Sessions, but ultimately acquitted as indicated above .
The defence of the accused was that the actual occurrence took
place in the land belonging to the father of the accused Kamal Chandra
when the deceased tried to assault the ploughmen of the accused and in
order to 1_lrotect t~em the. appellant Keshoram Bora assaulted the deceased with a pomted weapon resulting fatal injuries to him.
The
12-119 SC!/78
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790
SUPREME COURT REPORTS
[1978] 2 S.C.R.
A accused thus pleaded that the complainant had come· armed and trespassed in the field of the accused and wanted to assault his men as a
result of which the appellant assaulted the deceased in self defence.
The learned Sessions Judge was of the view that as the prosecution
itself presented two contradictory versions, hence the prosecution failed
to prove the manner in which the occurrence took place and accordingly
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acquitted the accused.
c
The central evidence against the accused comistccl of P. Ws. l, 2,
4, 5, 6, 7 and 9.
This evidence was sought to be corroborated by an
oral dying declaration said to have, been made by the deceased to P.W.
4 in the presence of P. Ws. I and 2 as also by an extra judicial confession made by the accused to Roma Kant Bora, P.W. 3. Both the High
Court and the Sessions Judge disbelieved the evidence furnished
by
the dying declaration and the extra judicial confession.
The
High
Court, however, accepted the evidence of the eye-witnesses and overruled the finding of the Sessions Judge that the prosecution had itself
given two contradictory versions of the occurrence.
We have heard
counsel for the parties and have gone through the judgment of the High
Court and of the Sessions Court and we find ourselves in ~ompletc
D
agreement with the rea·sons given by the High Court in accepting the
prosecution case.
The Sessions Judge appears to have treated
the
evidence of two witnesses, namely, P. W. 5 and 7 as the spokesmen
of the prosecution case when in fact these witnesses had been declared
hostile by the prosecutor and the court granted permission to the prosecution to cross-examine these witnesses. While it is true that merely
because a witness is declared hostile his evidence cannot be rejected on
E
that ground alona it is equally well settled that when once a prosecution witness is declared hostile the prosecution clearly exhibits
its
intention not to rely on the evidence of such a witness.
In these
circum'stances, therefore, the Sessions Judge was not at all justified in
treating the version ~iven by P.W. 5 and 7 as the version of the prosecution itself.
The High Court, therefore, rightly set aside the findings
of the learned trial Judge on this point.
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Learned counsel for the appellant submitted that a material part of
the prosecution case having been rejected the High Court was wrong
in convicting the appellant on the residue, particularly when he
had been acquitted by tll'e trial Court.
It is now well settled that the
principle Falsus unus falsus omnibus does not apply to criminal trials
and it is the duty of the court to disengage the truth from falsehood.
to sift the grain from the chaff instead of taking an easy course of
rejecting the prosecution case in its entirety merely on the basis of a
few infirmities.
In the instant case. the High Court has clearly found
that the evidence of P.W. 1. 2, 4. 6, and 8 proves beyond reasonable
doubt that the occurrence had taken place according to the manner
alleged by the prosecution.
Even the appellant in his statement under
section 342 Cr. P.C. stated as follows :-
"Rahim and Mohammad were ploughing in our
land.
They told me that while they were ploughing, Kalinath v:ith
a dao prevented them and so, they stopped ploughing.
At
that time Kalinath was not there.
I asked both of them to
>-
KESHO RAM v. ASSAM (Fazal Ali, !.")
791
plough again.
They began to plough.
Kalinath alias Kalinath again came there with a dao.
He uttered sic. "who
are you" and chased me raising a dao to assault me.
Looking hither and thither I could find nobody.
As soon as he
came near me by raising dao, I having found no
means,
started asrnulting him with the holanga taken for
bringing
paddy.
After a little while he
fell down.
My elder brother, Someshwar also arrived there."
It will appear from the categorical admission made by the accused
that he did assault the deceased with a sharp cutting weapon which he
<:alls "holanga" as a result of which the deceased Kalinath fell down.
The justification pleaded by the accused is that he did so in order
!~
protect his ploughmen from being attacked with a dao.
A perusal of
the statement of the accused clearly reveals that he does not dispute
having fatally assaulted the deceased, but has pleaded self defence. The
prosecution evidence, therefore, has to be judged in the light of the
admission made by the accused.
It was submitted by counsel
for
the appellant that it was not open to the court to take the inculpatory
part into consideration and reject the exculpatory part.
It is submitted that an admission can be taken either as a whole or not at all.
It
is well settled that where a confession or an admission is "separable
there can be no objection to taking one part into consideration which
appears to he true and reject the other part which is false.
In the
case of Nishi Kant Iha v. State of Bihar(') this Court observed as
follows
"In circumstances like these there being enough evidence
to reject the exculpatory part of the statement of the appellant
in Ex. 6 the High Court had acted rightly in accepting the
inculpatory part and piecing the, same with the other evidence
to come to the conclusion that the appellant was· the person
responsible for the crime."
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In the instant case, the circumstances are aln1ost identical. \vitl~
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the facts of the case of this Court cited above.
Here also, even the
prosecution evidence proves that the deceased was assaulted w;l11 1
"holanga" as a result of which he died.
The only bone of contention
between the prosecution and the defence case is as to the situs or the
place where the as·sault took place.
According to the prosecution, the
occurrence took place in the land of the deceased.
It would. however.
appear from the evidence of P.W. 5 that the land in which the assault
G
took place belonged to Kamal Singh.
Although this witness
was
declared ho'stile, this part of the statement made by the witness
is
amply corroborated by the testimony of an independent witness, namely,
P.W. 6 Ananta Kumar Bora who also says that the laod belonged both
to Kalinath and Kamal SiMh.
The police does not appear to have
found blood marks either in the land of the deceased or in the land of
the accused which would have been a conclusive factor lo determine
II
where the occurrence took place.
(1)
[1969] 2 S.C.R. 1033.
--
792
SUPREME COURT REPORTS
{1978] 2 s.c.R.
A .
Furthermore, from the evidence of P.W. 6 it appears that the
accused Someshwar first assaulted the deceased with a lathi and thereafter Someshwar and the appellal!t surrounded him and the appellant
pierced him with a 'she!'. In thsi connection P. W. 6 has deposed as
follows :
"I saw 'shels' in the hands of Keshoram and Someshwar.
B
Between them, there was Kalinath, Someshwar was first assaulted on the hands. I cannot say with what it was assaulted.
Kalinath had a lathi in his hands measuring about 2 cubits.
As soon as Someshwar was assaulted, Someshwar fell down
on the ground. Keshoram pierced Kalinath with a she!."
There was some controversy regarding the
translation
of
the
C sentence "Someshwar first assaulted on the hands".
We have, therefore, consulted the original and on a proper reading of the original it
seems to us that what the witness stated was that Someshwar was first
assaulted on the hands by the deceased Kalinath, with a lathi and as
soon as Someshwar was assaulted he fell down and then the appellant
Keshoram pierced Kalinath with a she!. Taking this statement of
P.W. 6 with the admission of the appellant it is absolutely clear that
D the appellant undouptedly assaulted the deceased in the land of his
father after Someshwar was assaulted by the d·et:eased.
The evidence of the other eye-witnesses who seem to have given
one sided version of the assault by the accused on the deceased cannot
be accepted in toto.
It seems to us that the deceased must have
entered the land of the accused and either tried to assault or may have
E assaulted Someshwar with a lathi which provoked the appellant to
assault the deceased purporting to act in self defence.
As however
neither the appellant nor Someshwar received any injuries, there can
be no doubt that the appellant exceeded the right of private defence.
Thus, on the acceptable evidence in the case, the accused can only
be convicted of an offence unde~ section 304 Part II of the Penal Code
for having exceeded the right of private defence.
F
For the reasons given above, we would,
therefore,
allow
this
appeal to this extent that the conviction of the appellant is altered from
one under section 302/34 to that under section 304(2) /34 and the
sentence is reduced from life imprisonment to 5 years rigor.JUS nnprisonment.
As Someshwar is reported to have
died,
it
is
not
disputed that the appeal has abated in so far as he is concerned.
P.H.P.
Appeal allowed in part.
\
\