1. For the deaths of Ashok Singh and Dadan Singh, the appellant along with seven others was tried and charged for the offences punishable under Sections 302, 207, 148 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. All the accused persons were convicted for the offences with which they were charged and sentenced to various punishments including the imprisonment for life for the commission of the major offence, vide judgment of the trial court. The appeal filed by the convicted accused persons was disposed of by the High Court vide judgment impugned in this appeal, acquitting seven out of the eight accused persons. Only the appellant was found to have committed the offence of murder of two persons for which he was sentenced to life imprisonment. The state has opted not to file any appeal against the order of acquittal, so far as other seven accused persons are concerned.
2. According to the prosecution the occurrence took place on 12.11.1984, at about 6.30 a.m. in village Auwan, district Sasram, State of Bihar. The matter was reported to the police station, Sheosagar by Madan Prasad Singh, PW8 on the same day at about 8.40 a.m. In the first information report lodged by Madan Prasad Singh - PW8, it was stated that he had sown potatoes in the land near his house. On 11.11.1984 the informant had irrigated half of the potato field and in the morning of 12.11.1984 at about 6.30 a.m. his brother Dadan Singh along with Ghurbigan Dusedh and Kashi Dusah had gone to irrigate the potato land. After some time the informant, his father and his brother Ashok also went there. They saw that Kedar Singh, one of the accused persons, in the trial court, having spade in his hands came from the side of temple and started abusing Dadan Singh. He also tried to stop the flow of water. The informant along with his relatives requested Kedar 6ingh to let irrigation continue. When this conversation was going on, the appellant and Rama Shankar Singh alias Billu reached the spot and declared that they would not leave anybody today. After that they went to their house and came back with two rifles and one gun. They gave one of the guns to Kedar Singh. Naresh Singh, another accused in the trial court had a lathi with him. Bijoy Shankar Singh, an accused in the trial court having country made rifle with him also arrived on the spot. When Ashok Singh tried to move slowly towards north and mukhia Dadan Singh sat down in the paddy field, Janardan Singh - appellant intimated other that Ashok is trying to escape. Without waiting for anybody, appellant himself fired from his rifle and consequently upon receiving the gun shot injury, Ashok Singh fell down.
3. After hearing the noise, many persons reached the spot. It was alleged that all the accused persons named in the first information report were firing and thus actually participated in the commission of the crime. When Dadan Singh tried to flee towards west, the appellant again fired at him from his rifle with the result Dadan Singh fell down after sustaining the injury. Bimla Devi, I the sister-in-law of the informant and wife of the deceased Dadan Singh also reached on the spot. She pleaded to the accused persons not to kill the members of the complainant party. Accused - Kedar Singh, asked the other accused to ascertain whether Dadan Singh had actually died or not, On this Ramta Lal, Udal Lal and Suresh Singh removed Bimla Devi and appellant along with others fired from rifles and their guns. After committing the crime the accused persons ran away leaving the injured on the spot. After the registration of the first information report and on completion of the investigation a charge-sheet was filed in the trial court. The trial court after conclusion of the trial, convicted and sentenced all the accused persons as noted earlier.
4. The prosecution had cited Narendra Kumar Singh - PW2, Mahendra Singh -PW3, Bimla Devi-PW4, Munna Singh -PW6, Yadubansh Singh - PW7 and Madan Prasad Singh - PW8 as eye witnesses of the occurrence. Not totally relying upon the testimony of the prosecution witnesses, the High Court found that as the aforesaid witnesses had not made truthful statements on some material points, falsely trying to implicate some innocent persons, they should not be believed to that extent. Disbelieving the testimony of the aforesaid eye witnesses regarding the involvement of the accused persons except the appellant, the High Court acquitted the seven persons. However, finding that the aforesaid witnesses had tried to mix truth with falsehood, the High Court had separated chaff from the grain and in this process also separated falsehood from the evidence. In view of the ocular testimony of all the eye witnesses the High Court concluded that the appellant alone had been proved to be responsible for the murder of Ashok Singh and Dadan Singh. He was proved to have fired with his rifle at the deceased who after getting the gun shots succumbed to the injuries. The medical evidence established that the deaths had been caused on account of the injuries received by the deceased persons from a firearm.
5. Learned counsel for the appellant has vehemently argued that it would not be safe to convict and sentence the appellant on the testimony of the aforesaid eye witnesses because the said witnesses have not been relied upon by the High Court in material particulars. We are afraid, we cannot agree with such a submission. The High Court has only found that the eye-witnesses have tried to implicate some of the people in the commission of the crime, who upon analysis of evidence were found to be not involved in the transaction.
6. In such cases, as noticed earlier, a duty is cast upon the court to sift the evidence and after a close scrutiny with proper care and caution to come to a judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence.
This Court in Deep Chand v. State of Haryana , pointed out that the maxim "falsus in uno falsus in omnibus' is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and substratum of the prosecution case remains intact, then the court should uphold the prosecution case to that extent. To the same effect is the judgment of this Court in Ranbir and Ors. v. State of Punjab . In the instant case, the High Court has very elaborately dealt with the evidence of the eye-witnesses and come to the conclusion that the appellant alone is responsible for the deaths of Ashok Singh and Dadan Singh. We do not find any ground to interfere with such a finding of fact arrived at by the High Court. It may not be out of place to mention that the trial court, on facts, had also held that the accused was responsible for the murder of Ashok Singh and Dadan Singh.
7. We examined the case with another angle also to find out as to whether the appellant is entitled to the benefit of the plea of self defence or not. There is no dispute that without formally taking a plea of self defence, the accused has a right to probabilise such defence on the basis of the prosecution evidence and if he succeeds in his effort, the court can give him such a benefit. However, in this case there is nothing on the record to probabilise as to whether the accused had fired at Ashok Singh and Dadan Singh presumably under any apprehension of death to his life or danger to property. There is no evidence on record which could be made the basis to hold that the appellant had probabilised the defence even without taking such a plea in his statement under Section 313 of the Code of Criminal Procedure. There is nothing on record to show that appellant had received any injury in the transaction or that he had inflicted the injuries to the deceased while apprehending danger to his life.
8. There is no merit in this appeal, which is accordingly dismissed. The bail bonds furnished by the accused are cancelled and he is directed to be taken into custody for undergoing rest of the sentence, if any.