IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1127 OF 2003 Between: L. Pandari Rao ..... Appellant/Accused No.4 AND The State of A.P., Rep. by Public Prosecutor. ..... Respondent/Complainant AND CRIMINAL APPEAL No.1168 OF 2003 Between: R. Vijay Paul ..... Appellant/Accused No.5 AND The State of A.P., Rep. by Public Prosecutor. ..... Respondent/Complainant The Court made the following: COMMON JUDGMENT: These Criminal Appeals, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), filed by Appellants/Accused Nos.4 & 5, are directed against the judgment, dated 12.09.2003, in S.C.No.128 of 2002, on the file of the learned Special Judge for the Trial of Offences Under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989- cum-VI Additional Metropolitan Sessions Judge, Secunderabad, whereunder and whereby, Accused Nos.4 & 5 were found guilty of the offence punishable under Section 323 I.P.C. and accordingly convicted and sentenced to pay a fine of Rs.1,000/- each, in default to suffer Simple Imprisonment for a period of two months each. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.W.1 in this case was a Lecturer in J.N.T.U. College of Fine Arts, Hyderabad. Accused No.1 was the principal of the said college, Accused No.2 was the Professor in the said college, Accused No.3 is the daughter of Accused No.2 and she was the student of the same college. Accused Nos.4 to 9 were Police Officers. On 02.03.1995, P.W.1 misbehaved with Accused No.3. Then Accused No.2 presented a complaint which was registered as Crime No.56 of 1995 on 07.03.1995 against P.W.1. Accused No.4 is alleged to have sent Accused Nos.5 & 6 on 07.03.1995 to fetch P.W.1 to the Police Station. Accordingly, P.W.1 was brought to the Police Station where the Police Constables, Accused Nos.4 to 9, beat P.W.1 with hands and sticks all over the body and abused him in filthy language referring to his caste and they confined him in the Police Station where some other offenders were confined. It is further alleged that this offence is alleged against Accused No.1 also. The complaint which was filed by P.W.1 was after 104 days. 3. Though the case was filed against Accused Nos.1 to 9, and several charges have been framed, but for the purpose of disposal of these Criminal Appeals, we are concerned with the Charge No.12, i.e., for the offence punishable under Section 324 I.P.C. against the present appellants. 4. When the charge under Section 324 I.P.C. was framed against Accused Nos.4 & 5, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 20 and got marked Exs.P1 to P19. 6. After closure of the prosecution evidence, Appellants/Accused Nos.4 & 5 were examined under Section 313 (1) (b) Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of Appellants/Accused Nos.4 & 5, D.Ws.1 to 6 were examined and Exs.D1 to D16 were marked. 7. The trial Court, accepting the evidence of P.W.1, found the Appellants/Accused Nos.4 & 5 guilty of the offence punishable under Section 323 I.P.C. as a minor offence to Section 324 I.P.C. and accordingly, they were convicted and sentenced as stated above. Challenging the same, the present Criminal Appeals are filed. 8. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the appellants for the offence punishable under Section 323 I.P.C. as a minor offence to Section 324 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 9. Learned Senior Counsel appearing for the appellants contended that the oral testimony of P.W.1 is quite contradictory to the statement given to the Medical Officer; that when P.W.1 was taken to the hospital, he stated that he received injuries at the hands of the police officials; that except the interested testimony of P.W.1, there is no other evidence; that the evidence of P.W.1 would go to show that Accused Nos.4 to 9 allegedly beat him; that the lower Court, having given a benefit of doubt to Accused Nos.6 to 9, should have extended the same benefit to the present appellants also; that the trial Court also gave an adverse finding as to how P.W.1 sustained injuries; that there was an abnormal delay of 104 days in lodging the complaint; that in the earliest opportunity, when P.W.1 was produced in connection with the case in Crime No.56 of 1995, he has not stated that he was assaulted or appellants voluntarily caused injuries to him; that therefore, it is not safe to place any reliance on the evidence of P.W.1 alone so as to find the appellants guilty, and hence, he prays to set aside the conviction and sentence recorded against the appellants. 10. On the other hand, learned counsel appearing for the learned Public Prosecutor contended that as P.W.1 was hospitalized, he could not give the complaint immediately; that from the beginning, the evidence of P.W.1 is very clear that it is the appellants who caused injuries to him; that as P.W.1 did not identify Accused Nos.6 to 9 as his assailants, they were rightly given a benefit of doubt; that mere delay by itself is not a ground to disbelieve the case of the prosecution; that the allegation that P.W.1 received the injuries at the hands of the police officials, appears to be false in view of the fact that he was admittedly arrested by the police in connection with Crime No.56 of 1995; that when P.W.1 was arrested, he sustained those injuries; that the trial Court, after elaborate consideration of evidence on record, rightly found the appellants guilty of the offence punishable under Section 323 I.P.C. as a minor offence to Section 324 I.P.C.; and there are no grounds to interfere with the same. 11. The case of the prosecution is that P.W.1 was arrested after 5.30 p.m. on 07.03.1995 in connection with the case in Crime No.56 of 1995 which was registered basing on the complaint given by Accused No.2. It is not in dispute that P.W.1 was produced before the learned IX Metropolitan Magistrate, Hyderabad, at 5.00 p.m. on 08.03.1995. P.W.1 was released on bail and he was admitted in N.I.M.S. at Punjagutta, Hyderabad, at about 9.00 p.m. on the same day and took treatment during the period from 08.03.1995 to 02.08.1995. Admittedly, there was a delay of 104 days in filing the complaint. As seen from the medical evidence, it is clear that P.W.1 sustained bruises on the back of chest and on buttocks. Admittedly, in the first instance, P.W.1 was discharged forcibly from N.I.M.S. hospital on 09.03.1995 and he joined as in-patient in N.I.M.S. hospital once again on 23.02.1995. The entire incident is alleged to have taken place in the lock-up of the Humayun Nagar Police Station. 12. It is not in dispute that P.W.1 was working as a lecturer in J.N.T.U. College of Fine Arts, Hyderabad. There cannot be any dispute that when the case rests upon the solitary testimony, it must be unimpeachable, true and trustworthy and must be put in the category of wholly reliable witness. 13. On this aspect, it is pertinent to refer to a decision reported in Vadivelu Thever v. State of Madras[1], wherein it is held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 14. The trial Court observed that the delay in lodging the First Information Report does not result in fatal case insofar as it relates to the assault on P.W.1. It is not in dispute that P.W.1 informed the doctor in N.I.M.S. Hospital at the time of his admission that he was beaten by known persons at his house in Jubilee Hills. But whatever may be the reason, P.W.1 has not given the correct version to the N.I.M.S. Hospital authorities when he was admitted in the hospital. It is also not in dispute that when P.W.1 was produced before the learned IX Metropolitan Magistrate, Hyderabad, at 5.00 p.m. on 08.03.1995, he did not complain to the concerned Magistrate about his alleged beating by the appellants. As a matter of fact, P.W.7 also stated that P.W.1 did not disclose about the alleged assault made on him by the police when questioned by the learned Magistrate. It is not the case of P.W.1 that he did not disclose about the police beating him in the lock-up of Humayun Nagar Police Station due to fear or threat given by the police. Further, Ex.P9-clinical summary discloses that he was assaulted by known persons on 07.03.1995. P.W.1 did not state that he was assaulted by the police. More over, P.W.1 asserted that he was beaten by known persons. There is no apparent reason for P.W.1 to suppress the alleged assault by the police either to the learned Magistrate or to the doctor when he was admitted in the hospital on two occasions. The trial Court gave a finding that P.Ws.1, 5 to 7 falsely deposed that Accused No.2 was abusing P.W.1 with reference to his caste. Similarly, the allegation of P.W.1 that the accused wrongfully confined him is nothing but falsehood. Similarly, the evidence of P.W.1 that Accused Nos.5 to 9 abused him in the name of his caste is false. Similarly, the evidence of P.W.1 that he suffered fractures is also false in view of the fact that there is no medical evidence. Similarly, the evidence of P.W.1 that Accused Nos.6 to 9 beat him is found to be false. In view of these false statements, the evidence of P.W.1 cannot be put in the category of wholly reliable. When the statement of P.W.1 consists of two parts, one part appears to be false and the other part appears to be correct, that part of the statement which appears to be true and correct can be accepted, because the latin maxim “Falsus in Uno Falsus in Omnibus” has no application. 15. In a decision reported in Krishnamochi v. State of Bihar[2], wherein it is held thus: “Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of falsus in uno in omnibus. This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular materials witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot e branded as liar. The maxim “falsus in uno falsus in omnibus” (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that whose who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictim is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. An attempt has to be made to, as noted above, in terms of felicitous metapher, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. 1981 CriLJ1012, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be.” 16. There is no dispute about the law laid down by the apex Court but when a statement of the witness contains both falsehood and true version, there is no difficulty in rejecting the falsehood and in accepting the remaining part of his statement, provided that part of evidence inspires confidence and corroborated on material particulars. In view of the fact that P.W.1 can be said to be neither wholly reliable nor wholly unreliable, his evidence needs corroboration. The other evidence insofar as the charge against the present appellants is that P.W.7 though stated that he was informed by P.W.1 that he was beaten by Accused Nos.4 & 5, that appears to be an improvement. Therefore, there is no difficulty in rejecting the evidence of P.W.7. He is not an eye witness to the incident. He was not allowed to see P.W.1. 17. P.W.8 has taken photographs of the body of P.W.1 and later, he was taken to N.I.M.S. hospital, Hyderabad. According to P.W.8, Exs.P2 to P6 are the photographs and negatives. Admittedly, these photographs have not been handed over to the police when he was examined. Similarly, P.W.9 was not an eye witness to the incident and when P.W.1 showed the injuries, he has taken photographs. Therefore, his evidence is not much relevant to the case of the prosecution. P.W.10 stated that he along with Rahman have taken photographs which were marked as Ex.P2 to P6. The photographs do not show the date on which they were taken and they have not taken any permission from the competent authority to take the photographs. 18. The other evidence remains on record is the evidence of P.W.11 who is the Gun Man to the Deputy Inspector General of Police. When he went to the Police Station, P.W.1 was lying on the floor with no clothes except underwear. When he enquired with P.W.1, he stated that Accused Nos.4 & 5 beat him severely. He admitted that he did not state before the police that he found injuries on P.W.1 when he went to the Police Station on the night of 07.03.1995. Therefore, the trial Court has not placed any reliance on this witness. 19. Except the oral testimony of P.W.1, there is no other evidence to show that the appellants beat him severely. No doubt there cannot be any evidence available when P.W.1 was subjected to alleged torture or beatings in the lock-up of Police Station, but his conduct must be very natural. His conduct appears to be unnatural because he did not complain that the appellants beat him for about more than three months. Though he sent Ex.D6-representation, dated 31.05.1995, to the Commissioner of Police, even that report has been lodged nearly two months after the alleged beatings. In view of the fact that he made false assertions against the other accused who were acquitted, he cannot be put in the category of wholly reliable witness. Corroboration to his evidence is lacking. Therefore, it is not safe to place any implicit reliance on the evidence of P.W.1 alone to convict the accused to show that they voluntarily caused simple injuries to P.W.1. 20. For the reasons stated herein above, the conviction and sentence passed by the learned Special Judge for the Trial of Offences Under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, vide judgment, dated 12.09.2003, in S.C.No.128 of 2002, against the appellant for the offences punishable under Section 323 I.P.C. as a minor offence to Section 324 I.P.C. are set aside. The Appellants/Accused Nos.4 & 5 are found not guilty of the offence punishable under Section 323 I.P.C. and accordingly acquitted them. The bail bonds of the Appellant/Accused Nos.4 & 5 shall stand cancelled. The fine amount, if any, paid by the Appellants/Accused Nos.4 & 5 shall be refunded to them. ______________ (K.C.BHANU, J) Dated: 22nd October, 2009. KL [1] 1957 SC 614 [2] 2002(6) SCC 81