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Keshoram Bora v. State Of Assam .
Factual and Procedural Background
On December 19, 1967, Kalinath Bora was uprooting pulses from his land when the accused, Keshoram Bora and Someswar Bora, allegedly arrived armed with “shels” and inflicted several injuries that proved fatal. An FIR was lodged the same morning by Roma Kanta Bora (PW 3). After investigation, the police filed a charge-sheet and the matter was committed to the Court of Session, which acquitted the accused. The State appealed; on August 13, 1976 the Assam High Court reversed the acquittal and convicted both accused under Sections 302/34 IPC, sentencing them to life imprisonment. Keshoram Bora appealed to the Supreme Court under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1973 and Section 379 of the Code of Criminal Procedure, 1973.
Legal Issues Presented
- Whether the High Court was justified in reversing the acquittal and convicting the appellant under Sections 302/34 IPC in light of alleged contradictions and hostile witnesses in the prosecution case.
- Whether the appellant’s act was protected by the right of private defence, or whether he exceeded that right.
- Whether a court may rely on the inculpatory portion of an accused’s admission while rejecting the exculpatory portion.
Arguments of the Parties
Appellant's Arguments
- The prosecution presented contradictory versions; significant portions of its evidence were rejected, making the remaining evidence unreliable for a conviction.
- Given the rejection of material parts of the prosecution case, the High Court erred in convicting on the residue.
- The appellant acted in self-defence to protect ploughmen who were allegedly attacked by the deceased.
- An admission by an accused must be accepted or rejected as a whole; the High Court incorrectly accepted only the inculpatory portion of the appellant’s statement.
Respondent/State's Arguments
The opinion does not contain a detailed account of the prosecution’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nishi Kant Jha v. State of Bihar, (1969) 1 SCC 347; (1969) 2 SCR 1033 | A court may accept the inculpatory part of an accused’s statement and reject the exculpatory part if the two are separable and the latter is found false. | The Supreme Court relied on this precedent to accept the appellant’s admission that he inflicted the fatal injury while rejecting his plea of complete self-defence. |
Court's Reasoning and Analysis
The Court agreed with the High Court that the Sessions Judge erred in treating testimony from witnesses declared hostile (PWs 5 and 7) as the prosecution’s own version. Declaring a witness hostile signals the prosecution’s intention not to rely on that testimony.
The Supreme Court examined:
- Eyewitness Credibility: PWs 1, 2, 4, 6 and 8 consistently testified that the appellant assaulted the deceased. Their evidence, coupled with the appellant’s admission, proved the assault beyond reasonable doubt.
- Accused’s Admission: In his Section 342 CrPC statement, the appellant admitted striking the deceased with a “holanga,” claiming he acted to defend ploughmen. Applying Nishi Kant Jha, the Court accepted the inculpatory portion and rejected the plea of complete justification.
- Site of Occurrence: Evidence about whether the assault occurred on the deceased’s land or the accused’s land was inconclusive. Blood was not found at either location. The Court held that uncertainty regarding the exact locus did not negate the appellant’s admission and eyewitness testimony.
- Right of Private Defence: The deceased may have entered the appellant’s land and attempted to assault Someswar with a lathi, but neither accused sustained injuries. The Court concluded that the appellant exceeded the lawful right of private defence.
Consequently, the mental element attributable to the appellant was knowledge that his acts were likely to cause death, bringing the case within Section 304 Part II IPC rather than murder under Section 302.
Holding and Implications
Holding: The appeal was allowed in part; the conviction was altered from Sections 302/34 to Section 304 Part II/34 IPC, and the sentence was reduced from life imprisonment to three years of rigorous imprisonment. The appeal abated as to the co-accused Someswar because he had died.
Implications: The decision reaffirms that: (a) hostile witness testimony does not bind the prosecution; (b) courts may dissect an accused’s admission, relying on the inculpatory portion while discarding the exculpatory part when the latter is demonstrably false; and (c) exceeding the right of private defence downgrades liability from murder to culpable homicide not amounting to murder. No new legal doctrine was announced, but existing principles on admissions and private defence were applied and clarified.
S. Murtaza Fazal Ali, J.— This appeal is directed against the judgment of the Assam High Court dated August 13, 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 Someswar Bora under Sections 302/34 and sentenced them to imprisonment for life. The appellant Keshoram 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.
2. A detailed narrative of the prosecution case is contained in the judgment of the High Court and it is not necessary for us to repeat the same all over again.
3. According to the prosecution, Kalinath Bora was uprooting pulses from his land on December 19,1967 at about 9 a.m when the accused Keshoram Bora and Someswar 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. FIR was lodged by (PW 3) Roma Kanta Bora at Police Station Dhing at about 11 a.m on the same day. In the FIR, however, only the name of (PW 1) Upendra 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 Session, but ultimately acquitted as indicated above.
4. 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 protect them the appellant Keshoram Bora assaulted the deceased with a pointed weapon resulting fatal injuries to him. The accused thus pleaded that the complainant had come armed and trespassed into the field of the accused and wanted to assault his men as a result of which the appellant assaulted the deceased in self-defence.
5. 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 acquitted the accused.
6. The central evidence against the accused consisted of PWs 1, 2, 4, 5, 6, 7 and 8. This evidence was sought to be corroborated by an oral dying declaration said to have been made by the deceased to PW 4 in the presence of PWs 1 and 2 as also by an extra judicial confession made by the accused to Roma Kant Bora, PW 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 eyewitnesses 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 complete agreement with the reasons given by the High Court in accepting the prosecution case. The Sessions Judge appears to have treated the evidence of two witnesses, namely, PWs 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 that ground alone, 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 circumstances, therefore, the Sessions Judge was not at all justified in treating the version given by PWs 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.
7. 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 the 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 PWs 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 CrPC stated as follows:
“Rahim and Mohammad were ploughing in our land. They told me that while they were ploughing, Kalinath with a dao prevented them and so, they stopped ploughing. At that time Kalinath was not there. I asked both of them to 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 assaulting him with the holanga taken for bringing paddy. After a little while he fell down. My elder brother, Someswar 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 calls “holanga” as a result of which the deceased Kalinath fell down. The justification pleaded by the accused is that he did so in order to 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 be true and reject the other part which is false. In the case of Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347, (1969) 2 SCR 1033 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.”
8. In the instant case, the circumstances are almost identical with the facts of the case of this Court cited above. Here also, even the prosecution evidence proves that the deceased was assaulted with a “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 assault took place. According to the prosecution, the occurrence took place in the land of the deceased. It would, however, appear from the evidence of PW 5 that the land in which the assault took place belonged to Kamal Singh. Although this witness was declared hostile, this part of the statement made by the witness is amply corroborated by the testimony of an independent witness, namely, (PW 6) Ananta Kumar Bora who also says that the land belonged both to Kalinath and Kamal Singh. 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 to determine where the occurrence took place.
9. Furthermore, from the evidence of PW 6 it appears that the accused Someswar first assaulted the deceased with a lathi and thereafter Someswar and the appellant surrounded him and the appellant pierced him with a “shel”. In this connection, PW 6 has deposed as follows:
“I saw ‘shels’ in the hands of Keshoram and Someswar. Between them, there was Kalinath. Someswar 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 Someswar was assaulted, Someswar fell down on the ground. Keshoram pierced Kalinath with a ‘shel’.”
10. There was some controversy regarding the translation of the sentence “Someswar was 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 Someswar was first assaulted on the hands by the deceased, Kalinath, with a lathi and as soon as Someswar was assaulted he fell down and then the appellant Keshoram pierced Kalinath with a shel. Taking this statement of PW 6 with the admission of the appellant it is absolutely clear that the appellant undoubtedly assaulted the deceased in the land of his father after Someswar was assaulted by the deceased.
11. The evidence of the other eyewitnesses who seem to have given onesided 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 assaulted Someswar with a lathi which provoked the appellant to assault the deceased purporting to act in self-defence. As however, neither the appellant nor Someswar 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 under Section 304 Part II of the Penal Code for having exceeded the right of private defence.
12. 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 Sections 302/34 to that under Section 304 Part II/34 and the sentence is reduced from life imprisonment to 3 years' rigorous imprisonment. As Someswar is reported to have died, it is not disputed that the appeal has abated insofar as he is concerned.
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