,t'SL HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Appellants (In Jail) (On bail) Respondent Criminal ApReal No.196 of 2007 1. Magan Dhobi S/o Sodhan Dhobi, aged about 50 years, Occupation Agriculture 2. Mohan Dhobi S/o Magan Dhobi, aged 'about 32 years, Occupation ^griculture 3. Chaipattiya @ Jankiram Dhobi S/o Magan Dhobi, aged about 25 years, Occupation - Agriculture 4. Smt. Kasturi Bai W/o Magan Dhobi, aged about35 years. All R/o village Junwani Khurd, Nawadih, P.S.-Bagbahra, District-Mahasamund Versus State of Chhattisgarh. Through:-P.S. Bagbahra, Distt.-Mahasamund (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Mr. Hemant Kesharwani, counsel for the appellants. Mr.J.A.Lohani, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on 26th November, 2011) The followina iudamentofthe Courtwas delivered bv T.P.Sharma, J.:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 15.01.2007 passed by the First Additional Sessions Judge, Mahasamund (C.G.), in Sessions Trial No.27/2006, whereby & whereunder learned First Additional Sessions Judge after holding the appellants guilty forcommission of culpable homidde amounting to ir, murder of Maniram Sahu (since deceased) and in sharing common intention convicted them under Section 302/34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.100/- each, in default of payment offine to further undergo R.l. for one month. 2. Conviction is impugned dh the ground that without there being any iota of evidence the trial Coud has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, deceased Mani Ram along with Taneshwari Bai (PW/2), wife of deceased, Roop Chand (PW/3), son of deceased were working in their field, appellants are family members and were working in their,field. Appellants' field is also adjoining to the i field of complainant party. On account of land dispute between parties, on 11.07.2006 at about 8.00 am, while deceased along with his family member were working in their field, appellant Mohan caused repeated injury by axe over neck, head and other pari:s of the body of Mani Ram. Other appellants Magan & Chaipattiya @ Jankiram assaulted him by stick and Kasturi Bai assaulted him by hands & fists and caused instantaneous death of deceased Mani Ram. Taneshwari Bai (PW/2), wife of deceased, lodged FIR vide Ex.P/14. Merg was recorded vide Ex.P/19. Roop Chand was also injured and he was sent for medical examination vide Ex.P/20. He was examined by doctor and found three injuries over his body. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P/2, inquest over the dead body of deceased was prepared vide Ex.P/3. Spot map was prepared by investigating officer vide Ex.P/1. Bloodstained soil and plain soil were seized from the spot vide Ex.P/10. Dead body was sent for autopsy to Govt. Hospital, Bagbahra, where Dr.L.L. Dhankar (PW/6) conducted autopsy vide Ex.P/16 and found following injuries:- (i) Incised wound of 2.5" x %" x %" over right parietal region. (ii) Incised wound over right side of neck of 3" x1" x 3". Underlying blood vessels were found cut. (iii) Incised woundof 1.5" x %" x %" over left shoulder. (iv) Incised wound of 1" x %" x %" over left hand. p»lilll'l:i' ^. m if (v) Incised wound of 3" x 1A" x 1" over left buttock. Injuries were ante-mortem in nature. Death was homicidal in nature. During the course of investigation, the appellants were taken into custody. Appellant Magan made disclosure statement of stick vide Ex.P/4, same was recovered at his instance vide Ex.P/5. Appellant Chaipattiya @ Jankiram made disclosure statement of stick vide Ex.P/6, same was recovered at his instance vide Ex.P/7. Appellant Mohan Dhobi made disdosure statement of axe vide Ex.P/8, same was recovered at his instance vide Ex.P/9. Bloodstained lungi and clothes were also.seized from appellant Magan vide Ex.P/11. Seized articles were sentfor chemical examination vide Ex.P/23. '•) 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Ctass, Mahasamund, who in turn, committed the case to the Court of Sessions, Mahasamund, from where the First Additional Sessions Judge, Mahasamund received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 9 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which fhey denied the circumsfances appearing against them and pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned First Additional Sessions Judge convicted & sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that as per the case of prosecution, incident took place at 4.00 am in field, there was no facility of light, therefore, it was not possible for the witnesses to witnessed the incident and conviction is based on conjecture and 1 surmise. Both the parties were having animosity on account of land .,r':E.: : ,f:';1- -i(. ^i" dispute. Fields of both the parties are adjoining. Even otherwise, presence of appellants at their field was not natural. There is no inconsistency between medical and ocular evidence. He further submits that as per medical evidence, incised wounds have been noticed by the doctor over- the body of deceased but except appellant Mohan Dhobi other appellants were not having sharp aged weapon for causing injury. He also submits that evidence of Taneshwari Bai (PW/2) and Roop Chand (PW/3), wife and son of deceased, do not inspires confidence and trustworthy. Evidence of aforesaid witnesses is sufficient for suspiciQn that appellants might have committed the offence; therefore, they deserve to be acquitted. 9. On the other hand, leartied Panel Lawyer for the State/respondent opposed the appeal and submits that evidence of Taneshwari Bai (PW/2) and Roop Chand (PW/3), wife and son of deceased, whose presence on the spot was not natural, sufficient for drawing inference that appellants have caused homicidal death of deceased with intent to cause his death. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11. In the present case, homicidal death as a result of fatal injuries found over the vital part mainly on head of deceased Mani Ram has not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of Dr.L.L. Dhankar (PW/6) and autopsy report Ex.P/16 that death of the deceased was homicidal in nature. 12. As regard the complicity of the appellants in the crime in question is concerned, conviction is substantially based on the evidence of Taneshwari Bai (PW/2). As per herevidence, she was present along with her husband deceased Mani Ram in the field and at the time of incident appellants were holding axe and sticks, they caused injuries to her husband. Appellant Mohan assaulted her husband by axe and appellant Chaipattiya @ Jankiram assaulted by stick. Defence has cross-examined this witness at length. In her detailed cross- examinationshe has supported the evidence given by her in her examination-in-chief. She has specifically admitted the dispute .e'sr '^•ii:' IS<" between parties. She has lodged FIR Ex.P/14 mentioning the name of four appellants. As perthe contents of FIR, appellant Mohan assaulted her husband by axe and appellant Chaipattiya @ Jankiram assaulted by stick. Evidence of Dr. L.L. Dhankar (PW/6) and autopsy report Ex.P/16 revels that five incised wounds have been noticed over the body of deceased. No injury, contusion and abrasion which would have been caused by hard and blunt object have been noticed by the doctor. It appears that all incised wounds have been caused by axe. As per the evidence of Taneshwari Bai (PW/2), appellant Mohan was holding sharp edged weapon axe. There is inconsistency relating to injuries caused by sh;arp edged weapon and ocular & medical evidence. As perher ei/idence, appellant Mohan caused injuries by axe to her husband over his neck and head, which appears to be dangerous to life. Further, as per her evidence, relations between parties are strained and there is animosity on account of land dispute, which may be cause of commission of offence and may be for false implication. 13. In case of animosity or natural evidence of interested witness, Court is required to scrutinize the evidence minutely and in case of exaggerations, omissions, contradictions and partial false evidence, the Court is required to scrutinize the evidence and must make an attempt to separate grain from the chaff, the truth from the falsehood. 14. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. Statement of any witness cannot be discarded and rejected out rightly on the ground that the witnesses patently falsely implicated to one or more accused or his statement is not reliable for some accused. Statement of a witness may be relied upon for some accused and may be rejected or discarded relating to some accused. 15. While dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Supreme Court in the matter of Laxman and others v. State of Bflaharashtra has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts oftheir AIR 1974 S.C 308 ^t: statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may obsen/e that Professor Munsterberg in a book called "On the Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949 ed. P.106) gives instances of experiments conducted byenacting sudden unexpected preplannedepisodes before persons who were then asked to write down, soon atterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode: actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic- comedy were completely eliminated from the memory of a number of witnesses".\. Hence, the Prof^ssor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sounc/ commonsense to refuse to apply mechanically, in assessing the worth of necessahly imperfect human testimony, the maxim: "falsus in uno falsus in omnibus". 16. In the present case, in the light of dictum of Supreme Court, we have scrutinized the evidence ofTaneshwari Bai (PW/2) and issufficient for drawing inference that appellant Mohan has caused fatal injuries, resulting into death of deceased and has caused homicidal death of deceased ManiRam, but her evidence is not sufficient for drawing inference that other accused persons have caused homicidal death of deceased even in sharing common intention. Injuries found over the neck & head and repeated assault clearly reveals that appellant Mohan has caused homicidal death of deceased with intent to cause his death. 17. Evidence adduced on behalf of prosecution is sufficient for convicting the appellant Mohan under Section 302 of the IPC but is not sufficient for conviction of other appellants under Section 302/34 of the IPC. 18. While convicting and sentencing the appellants Magan Dhobi, Chaipattiya @ Jankiram and Kasturi Bai, Court below has not ::'Tf»<WS^St-.. ,ltl'!':l. ,l!9-'' . ,,:!^«»!8 considered insufficiency of the evidence and thereby committed an illegality. 19. Conviction and sentence ofthe appellants Magan Dhobi, Chaipattiya @ Jankiram andKasturi Bai under Section 302/34 are not sustainable under the law. Consequently, appeal deserves to be and is, hereby allowed in part. Conviction and sentence of the appellants Magan Dhobi, Chaipattiya @ Jankiram and Kasturi Bai under Section 302/34 are hereby set aside. They be set at liberty forthwith, if not required in any other case. Appellant Kasturi Bai is on bail. Her bail bonds shall stand discharged. Conviction and sentence of the appellant Mohan Dhobi under Section 3.02/3'| of the IPC is hereby maintained. Sd/- T.P. Sharma judge Sd/- R.N. Chandrakar Judge .'iiay N.'.l '\1 1