Chowdegowda Alias Dorji (Dead) by Lrs. and Others Vs. C. Nagaraju and Others - Court Judgment

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- maxims falsus in uno falsus in omnibus: [s.b.sinha & dr.mukundakam sharma,jj] held, it has no application in india.indian evidence act, 1872 section 3: [s.b.sinha & dr.mukundakam sharma,jj] doctrine falsus in uno falsus in omnibus held, it has no application in india.indian penal code, 1890 sections 300 & 34: murder - common intention - appellants along with three others allegedly assaulted deceased - high court affirmed judgment of conviction of appellant while giving benefit of doubt to three other accused - benefit of doubt given only because testimonies of witnesses in regard to place of assault on person of deceased were not corroborated by medical evidence held, high court failed to notice that all the five accused persons were charged of having common object of causing murder - only because three accused were given benefit of doubt and section 34 was not mentioned in judgment that would not mean that no case of common intention is made out against appellants when no prejudice is caused thereby. conviction of appellants under section 302/34 is proper. 1. leave granted.2. we have heard learned counsel on both sides.3. since this is a long drawn litigation for over 37 years we think it appropriate to give quick end to the litigation instead of remanding the matter to the high court for further remanding it to the appellate court. it is not in dispute that machine chowdegowda, the father of the appellant had three brothers. the suit came to be filed for partition of 10 acres of wet land, 5.30 acres of dry land, 30 gunthas of house site into four equal parts and l/8th share towards the appellant-plaintiff. at three stages, the suit came to be dismissed and ultimately in the second appeal no. 204/94, by judgment and decree dated march 17, 1995 the high court of karnataka confirmed the dismissal of the suit. thus this appeal by special leave.4. there is evidence in this case exs. p-1, p-4 and p-36 which would indicate that machine chowdegowda had described the appellant to be the son born to his first wife, siddamma. it is seen that there is a controversy as regards the factum of the customary marriage by name kuduvali marriage which seems to have taken place in early 1920. under those circumstances, at the distance of 40 years it would be difficult to prove with certainly of evidence of the factum of the marriage etc. but the meat of the fact is that siddamma and machine chowdegowda lived together as wife and husband and the appellant came to be born from the wed-lock. under those circumstances, the presumption of valid marriage and as to appellant having been born legitimately out of the that marriage through machine chowdegowda could be drawn. this is the legal position settled by this court in badri prasad v. deputy director of consolidation : [1979]1scr1 ; sumitra devi v. bhikan choudhary : 1985crilj528 and s.p. s. balasubramanyan v. suruttayan : air1994sc133 . the appellant must, therefore, be presumed to be a legitimate son of machine chowdegowda. accordingly the appellant is granted one acre of the wet land and the rest of the land will be given to the respondents according to the respective shares. a preliminary decree be drawn and an application to pass final decree be made and dealt with by the trial court.5. the appeal is accordingly allowed. no costs.