sat 1 cri.appeal 1278-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1278 OF 2004 Vilas Shankar Bhilare ) Convict No.C/2589, ) Kolhapur Central Prison, ) Kalamba – 416 007 ) ...Appellant vs. 1. The State of Maharashtra , ) ) 2. Sau Amruta Anil Bhilare, ) wife of deceased person, ) ) 3. Sau Sulochana Nathuram Bhilare, ) mother of deceased person, ) ) 4. Shri Nathuram Pandurang Bhilare, ) father of deceased person ) ...Respondents Mr.Arfan Sait, Advocate appointed for the Appellant. Mrs.U.V. Kejriwal, APP for the State. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. DATED ; SEPTEMBER 16, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant feels aggrieved by the judgment and sat 2 cri.appeal 1278-2004 order dated 7th May, 2004 passed by the 2nd Ad-hoc Additional Sessions Judge, Raigad. The appellant has been convicted by the learned trial Judge for the offence punishable u/s. 302 of IPC and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.4000/-, in default, to undergo SI for four months. It was further directed that an amount of Rs.3000/- be given to the legal representative of the deceased Anil Bhilare from the fine amount recovered from the appellant. 2 The appellant was resident of Kalamboshi wadi, Taluka Pali, District Raigad. The appellant was earlier prosecuted for the offence punishable u/s. 302 of IPC for allegedly having committed murder of his wife suspecting that she had illicit relations with the deceased Anil Bhilare. In the present appeal, the appellant is accused of having committed murder of said Anil Bhilare (hereinafter referred to as 'the deceased'). It is also the case of prosecution that an attempt was made on the life of the deceased also by the appellant when he had allegedly committed murder of his wife. He was prosecuted sat 3 cri.appeal 1278-2004 for the said offence. However at the conclusion of trial he was acquitted of the charge of committing the murder of his wife. 3 It is a case of prosecution that the appellant wanted to eliminate the deceased because of his alleged illicit relations with his deceased wife. This according to prosecution was motive behind the crime. The appellant and deceased were staying in the same locality in the same village. The appellant was waiting for a proper opportunity to eliminate the deceased. 4 The incident had occurred on 22nd February, 2003. There is a common open place known as chambhar kund where villagers go for answering the call of nature. It is the case of prosecution that the deceased and appellant both had gone to the same place on the date of incident. It is alleged that the appellant was carrying sickle with him and he had committed murder of the deceased by means of the said sickle at chambhar kund, a place little away from the boundary of village Kalamboshi wadi. The deceased had suffered multiple injuries sat 4 cri.appeal 1278-2004 on his person which had resulted into shock which led to cardiac respiratory arrest. 5 It is the case of prosecution that after the alleged murder, the appellant had carried the sickle with him and he met Deputy Sarpanch Mr.Rajaram Bhilare of village Kalamboshi wadi and had confessed to the Deputy Sarpanch that he had committed murder of the deceased and asked the Deputy Sarpanch to take him to police station. 6 Before we proceed, it may be stated here that the deceased and the appellant had allegedly gone to chambhar kund at around 11 or 11.30 a.m. and the appellant had met the Deputy Sarpanch at about 12 noon near the water stream which was situated in between two small villages i.e. Kalamboshi and Kalamboshi wadi. As the appellant confessed to have committed murder of the deceased, the Deputy Sarpanch (PW 1) told the appellant to go to Maruti temple and wait for villagers to come there. The Deputy Sarpanch thereafter sat 5 cri.appeal 1278-2004 informed the villagers regarding the incident. The Deputy Sarpanch and the police patil i.e. PW 3 along with the villagers visited the place where the dead body of deceased was lying and thereafter, they had gone to the Maruti temple where the appellant was directed to go and wait for the villagers. The sickle held by the appellant was collected by the police patil. It is the case of prosecution that the appellant in presence of villagers had declared that whatever was done by him was proper and that he was ready to face the punishment for the same. 7 Apart from the alleged confession of crime by the appellant before the Deputy Sarpanch, the prosecution case is that the incident was witnessed by wife and sister of the deceased from the house of their neighbour. It is a case of prosecution that the screams of deceased were heard by his wife and sister. They, therefore, immediately went to the courtyard of their neighbour from where they could see the place known as chambhar kund. It is a case of prosecution that the sister of the sat 6 cri.appeal 1278-2004 deceased (PW 2) had seen the appellant assaulting the deceased by means of sickle. 8 The appellant was taken to police station by police patil and Deputy Sarpanch after the meeting at Maruti temple. A complaint was lodged at the police station by Deputy Sarpanch (PW 1). FIR was registered against the appellant and investigation continued. During the course of investigation, spot was visited by the police. Inquest panchnama was drawn. Dead body was sent for post mortem examination. After post mortem examination, Medical Officer had opined that the deceased had died due to cardiac respiratory arrest with hypovolemic shock due to multiple deep wounds on the body. The Medical Officer had also stated that that the injuries found on the person of deceased were sufficient to cause death in ordinary course of the nature. 9 The deceased was wearing only underwear (short) at the time of the incident. It was seized by the police. The sat 7 cri.appeal 1278-2004 sickle and the clothes of the appellant were also seized by the police. All the seized articles were sent to chemical analyzer. The chemical analyzer had reported that human blood was found on the short seized from the dead body. It was of group 'A'. The blood of the same group was found on the sickle. It means the sickle was used for causing injuries to the deceased. 10 After completion of investigation, chargesheet was submitted in the court of Metropolitan Magistrate. The case was committed to the court of Sessions as the offence punishable u/s.302 of IPC is exclusively triable by the court of Sessions. The learned trial court framed a charge u/s. 302 of IPC against the appellant. The appellant had pleaded not guilty and had claimed to be tried. 11 During the course of trial, the prosecution had examined in all eight witnesses including Deputy Sarpanch, Police Patil and sister of the deceased. The judgment of conviction is mainly arrived on the basis of testimony of PW 1 sat 8 cri.appeal 1278-2004 Deputy Sarpanch, PW 2 Miss Vanita Padwal, sister of the deceased and PW 3, the police patil. 12 PW 2 is the sister of the deceased. It is stated by PW 2 that Kalamboshi is her parental village. The deceased was staying at Kalamboshi wadi alongwith his wife and two children. The house of the appellant was adjoining to the house of the deceased. The witness has stated that the appellant had committed murder of his wife suspecting that she had extra marital relations with the deceased. On the date of the incident, PW 2 had visited her brother’s house at Kalamboshi wadi. She was served with tea and snacks by her brother and sister-in-law. It was around 11 a.m. when PW 2 and wife of the deceased were at home, the deceased had gone to chambhar kund to answer the nature's call. He was carrying water in a tin container. After sometime, the PW 2 and the wife of the deceased heard screams of the deceased emanating from the side of chambhar kund which is about 50 to 60 paces away from their house. PW 2 and wife of the deceased immediately sat 9 cri.appeal 1278-2004 went to the courtyard of Kashinath Bhilare from where they could see that the appellant was assaulting the deceased by means of a sickle. PW 2 and her sister-in-law rushed to the spot. The appellant after killing the deceased had proceeded to the village Kalamboshi. The deceased was lying in a pool of blood. He was dead. The deceased had sustained injuries on various parts of his body including head and neck. 13 PW 1 in his evidence has stated that he is Deputy Sarpanch of the group Grampanchayat. Village Kalamboshi wadi is one of the villages within the jurisdiction of said group Grampanchayat. The deceased and appellant both were known to this witness and they were from the same village. It is stated by this witness that the appellant was earlier charge sheeted for having committed murder of his wife. 14 On 22nd February, 2003, PW 1 had gone to village Kalamboshi for inspecting the work of Pilot scheme (Patha Darshi Yojna). After completing the work in Kalamboshi sat 10 cri.appeal 1278-2004 village, he was returning to Kalamboshi wadi at about 12 noon. The appellant met him near the water stream and stated that the appellant should be taken to the police station as he had committed murder of the deceased by assaulting him by means of sickle. The sickle in question was possessed by the appellant at that time. The sickle was found stained with blood. The appellant was told by PW 1 that he should go to Maruti temple and wait for the villagers. In the meantime, villagers were informed by PW 1. All responsible villagers of the village including PW 1 and 3 had gone to Maruti temple where the appellant was directed to wait for the villagers. The sickle was taken from his possession by PW 3 and matter was reported to the police. FIR of PW 1 was recorded by the police. This witness has identified his signature on the complaint (Exhibit 8). Article-5 produced in the court by the prosecution was identified by this witness to be the same sickle. PW 3 is the police patil who was informed by PW 1 regarding the incident. This witness had also visited Maruti temple along with other villagers. He had earlier visited the spot of the incident. He had sat 11 cri.appeal 1278-2004 seen that the deceased was lying on the spot of the incident in a pool of blood. He had sustained blows on various parts of his body. At the time of their meeting with the appellant at Maruti temple, sickle was collected from the appellant. It is stated by this witness that the appellant had declared in presence of villagers that whatever was done by him was proper and that he was ready to be hanged. This witness had also accompanied PW 1 to the police station. 15 PW 7 was on duty at Police Station, Pali on 22nd February, 2003. PW 1 and 3 had visited the police station at about 3.15 p.m. The appellant was brought to police station by the PW 1 and 3. It is stated by PW 7 that the clothes of the appellant were found stained with blood. This witness was also informed that the dead body of the deceased was lying at chambhar kund in Kalamboshi wadi village. An FIR of PW 1 Rajaram Bhilare was recorded by this witness. He has identified the complaint (Exhibit 8) filed by the PW 1. The sickle produced before this witness and the clothes of the appellant sat 12 cri.appeal 1278-2004 were seized by the police at the police station. Panchnama (Exhibit 16) was drawn in that regard. 16 PW 5 is one of the panch witnesses who was present at the time of seizure of clothes and the sickle. He has identified his signature on the panchnama (Exhibit 16). PW 8 was working as PSI at Pali police station. He has investigated part of this case. He had seen that the appellant was brought to police station by the villagers and complaint of PW 1 was recorded. He had thereafter proceeded to the spot to prepare the panchnama. According to this witness, the dead body was lying on the spot of chambhar kund. There was one Amul spray empty container near the dead body. He had collected sample soil on the spot and the soil stained with blood separately. Inquest panchanama (Exhibit 20) was drawn and the dead body was sent for post mortem examination. The PW 4 Medical Officer had examined the dead body and she had stated in her evidence that after examination of the dead body, she had come to the conclusion that the deceased had died due to cardiac sat 13 cri.appeal 1278-2004 respiratory arrest. The post mortem report (Exhibit 13) was produced by this witness. The contents of post mortem report had been admitted by the appellant during the course of trial. 17 From the cross-examination of the witnesses, it appears that the cause of death has not been disputed by the appellant. The case of the appellant before the trial court was that he had been falsely implicated by the PW 1 and 3 due to political rivalry. He declined to have given any extra judicial confession to PW 1. 18 Learned trial court however had believed the evidence of PW 1 with regard to extra judicial confession. He had also believed the evidence of PW 2 sister of the deceased. According to this witness, the PW 2 had seen the appellant assaulting the deceased, 19 During the course of hearing of the appeal, learned Counsel Mr.Arfan Sait for the appellant has submitted that sat 14 cri.appeal 1278-2004 evidence of PW 2 sister of the deceased cannot be believed. It was submitted by him that it was difficult for her to see from the courtyard of her neighbour that the deceased was being assaulted by the appellant. Mr.Arfan Sait has assailed the prosecution case on the ground that the evidence of PW 1 that he had directed the appellant to wait in Maruti temple is also not acceptable. It was submitted that by Mr.Arfan Sait that the appellant had not made any extra judicial confession to PW 1. Mr.Arfan Sait has further submitted that the prosecution has examined only PW 1 and 3 and not the other villagers who were present on the spot. 20 The learned Additional PP Mrs.Usha Kejriwal has submitted that there was nothing strange if the PW 1 directed the appellant to wait in Maruti temple. It was submitted by her that normally it happens in the villages that whenever any major incident or event occurs, the villagers gather at one place to decide further course of action. It was also submitted by the learned Additional PP that the extra judicial confession does not sat 15 cri.appeal 1278-2004 require any corroboration. In brief, it is stated that even if evidence of PW 2 is discarded, the evidence of PW 1 and 3 is sufficient enough to convict the appellant for having committed murder of the deceased. 21 Since the post mortem report is admitted and there is no dispute with regard to cause of death, it could be safe to conclude that the deceased had died due to multiple injuries and that they were sufficient to cause death in the ordinary course of the nature. 22 As far as evidence of PW 2 is concerned, we have carefully examined the same and we find it very difficult to accept that PW 2 and wife of the deceased could have seen the appellant assaulting the deceased at chambhar kund. However we have no doubt to record that she had heard screams of her brother. We also accept the evidence of PW 2 that she had seen the appellant holding the sickle and the deceased was lying in a pool of blood at chambhar kund. After very close scrutiny of sat 16 cri.appeal 1278-2004 evidence of this witness, we have come to the conclusion that part of her evidence needs to be rejected. May be because of her close relations with the deceased that this witness was motivated to give false evidence that she had seen the appellant causing injuries to the deceased. However that by itself could not be a reason to reject her rest of the evidence. The maxim ‘falsus in uno falsus in omnibus’ has no application in Indian Courts. The Hon’ble Supreme Court in the case reported at 2009 Criminal Law Journal 1758 in the matter of Jayaseelan vs. State of Tamil Nadu has said at para 5 as under :_ “5. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW1 to a large extent to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). 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, his conviction can be maintained. It is the duty of the 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, or to be not wholly credible. Falsity of material particular would not sat 17 cri.appeal 1278-2004 ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" 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. (See Nisar Ali v. The State of Uttar Pradesh [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460]. 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 respect as well. The evidence has to be shifted with care. The aforesaid dictum 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. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972 (3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in sat 18 cri.appeal 1278-2004 terms of felicitous metaphor, 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. (See Zwinglee Ariel v. State of Madhya Pradesh [AIR 1954 SC 15] and Balaka Singh and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. [1981 (2) SCC 75x2], 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. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh v. State of Punjab [2003 (7) SCC 643]. It was further illuminated in the Zahira H. Sheikh v. State of Gujarat [2004 (4) SCC 158], Ram Udgar Singh v. State of Bihar [2004(10) SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12) SCC 449], Gubbala Venugopalswamy v. State of Andhra Pradesh [2004 (10) SCC 120] and in Syed Ibrahim v. State of A.P. (2006(10)SCC 601). AIR 1972 SC 2020.” Keeping in view the observations made by the Hon’ble sat 19 cri.appeal 1278-2004 Supreme Court in the judgment of Jayaseelan (cited supra), we have come to the conclusion that a part of evidence of PW 2 can be accepted and the rest of the same can be rejected. We have already indicated that we accept her evidence that she had seen the deceased lying in a pool of blood and at the same time, she had also seen the appellant leaving the spot holding a sickle stained with the blood. 23 This being our view with regard to evidence of PW 2, the evidence of PW 1 and 3, particularly PW 1 assumes great importance. The prosecution case is that an extra judicial confession was made by the appellant before PW 1. 24 The learned Advocate Mr.Arfan Sait has submitted that the evidence of PW 1 may not be acceptable inasmuch as conduct of PW 1 appears to be strange inasmuch as he had directed the appellant to go to Maruti temple and wait for the villagers knowing well that the appellant had committed a murder. In this regard, we are in agreement with the sat 20 cri.appeal 1278-2004 submissions made on behalf of the State that in villages, such practices still prevail and whenever any major incident or event occurs, the villagers come together to take further decision. We therefore do not find anything abnormal in the conduct of PW 1. As far as law on extra judicial confession is concerned, it is well settled that extra judicial confession in all cases does not require corroboration. The value of extra judicial confession depends upon trustworthiness of the witness before whom the confession is made. In this regard, we may take support from the two judgments of the Hon’ble Supreme Court, 1) Podyami Sukada v. State of M. P. (2010 Criminal Law Journal 4273), and (2) Kusuma Ankama Rao v. State of A. P. (2008 Criminal Law Journal 3502). 25 In the judgment of Podyami Sukada (cited supra), the