^^^ ^- HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma & Hon'ble ShriR.N. Chandrakar. JJ. Criminal Appeal No. 938 of 2005 Appellant Vs. Respondent. Nokhram, S/o. Bhanuram Rathre, aged about 46 years,r/o. Hasod, Police Chowki Hasod, Reserve Center, Jaijaipur, District Janjgir- Champa (CG). State of Chhattisgarh, through Police Chowki Hasod, Police Station Jaijaipur, District Janjgir- Champa (Chhattisgarh). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. H.S. Patel, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Deliveredon25-11-2010) Per T.P. Sharma. J. 1. Challenge in this appeal is to the judgment dated 30-11-2005 passed by Additional SessionsJudge, Sakti in Sessions Trial No. 25 of 2005, whereby and whereunder after holding the appellant guilty for commission of culpable homicidal death of Bhanuram, learned Additional Sessions Judge, convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment and to pay fineof Rs.500/, in default of payment of fine to undergo further R.l. for three months. Conviction of the appellant is impugned on the ground that without any iota of evidence the court below has convicted and sentenced the appellantand thereby committed illegality. The case of theprosecution, in brief, is that on 19-9-2004 at about 1.00 pm., when the father ofthe appellant/accused namely Bhanuram was sitting near the betal shop of Padumanat Bus Stand, Hasaud, the appellant came with an axe and assaulted his father over his body i.e., head, neck and hand as a result of which his father fell down. The incident was seen by PW/1 Niranjan and PW/15 Balram Satnami and Niranjan, Paduman, and Raghu took the injured to Police Station Hasaud. Niranjan (PW/1) lodged FJR in Police Out-post Hasaud at zero and finally FIR was lodged in Police Station Jaijaipur, vide Ex. P/1. The injured was sent to medical examination to Govt Hospital, Jaijaipur in injured and unconscious condition where Dr. (Smt) Shashi Prabha (PW/14) examined him vide Ex.P/22 and found three injuries (i) lacerated wound in the size 6 cm x 1 ^ cm at right temporal region (ii) incised wound in the size of 1 ^ cm x ^ cm x 0.5 cm on the back side of neck and (iii) lacerateed wound in the size of 2 cm x 2 cm at right forearm. Thereafter he was referred to Chhattisgarh Institute of Medical Science, Bilaspur where he died on 25-9-2004 and morgue intimation was sent to City Kotwali, Bilaspur vide Ex.P/17 and morgue was recorded vide Ex.P/16. After summoning the witnesses vide Ex.P/5, ^::;:^^?.;,^^,;:^^^^^ ^•""•"^. 1 inquest over the person of the deceased in presence of witnesses was prepared vide Ex. P/6. Thereafter, the dead body of the deceased was sent for autopsy to CIMS, Bilaspur vide Ex.P/25 where Dr. Pritam Sahani (PW/19) conductedpostmortem vide Ex.P/28 and found the injuries as mentioned in para 6 of the impugned judgment. During course of investigation, injured panchnama regarding the statement of the deceased was prepared vide Ex.P.2. Revenue Inspector prepared spot map vide Ex.P/4. Weapon of offence axe was seized from the accused vide Ex.P/9. Blood stained towel, Banian and Lungi were sized vide Ex.P/12after autopsy. The seized articles were sent to chemical examination vide Ex.P/18 and a report thereof is Ex.P/32. After completing the investigation, charge sheet was filed against the appellant in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Court of Additional Sessions Judge, Sakti. Learned Additional Sessions Judge, received the case on transfer, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. Prosecution in order to establish the charge against the appellant examined 23 witnesses in all. Thereafter the statement of the accused wasrecorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. The accused has taken specific defence that he was not present on the spot at the time of incident 8. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one ofthe judgment. 9. Mr. H.S. Patel, learned counsel appearing for the appellant vehemently argues that conviction ofthe appellant is based on the evidence of PW/1 Niranjan and PW/15 Balram Satnami whose evidence is not reliable and inspires no confidence. The relationship of the aforesaid two witnesses with the appellant was strained and they have falsely implicated the present appellant in crime in question. The present appellant was not present on the spot at the time of offence. In order to prove his defence - plea of alibi, he has examined DW/1 - Bhuwanlal Sahu who has deposed that hot talks took place between Niranjan (PW/1) and Paduman (PW/2) to which deceased Bhanuram tried to resolve. Therefore, he went to the house of the appellant for getting newspaper and therafter within five minutes he heard the sound of commotion and came to the place of incident where Bhanuram was lying in injured by condition and was taken to hospital by Paduman, Pramod and his mother. Learned counsel further submits that in absence of any corroboration from independent witnesses, evidence of Niranjan PW (PW/1) and Balram Satnami (PW/15)isnotreliabte. 10. On the other hand, Mr. Sandeep Yadav, Deputy Govt. Advocate appearing on behalf of the State supported the impugned judgment and vehemently argued that Niranjan PW/1 and Balram Satnami (PW/15) are eye-witnesses to the incident and their / / .:^:..^ 'w ^•^ ??"TV~'.V V''' Oc^ evidence is sufficient forconvicting the appellant although they are relatives of the deceased and the appellant is also son of Bhanu Ram, therefore, on the ground of relationship their evidence cannot be discarded and there was no reason to doubt their evidence. The court below after considering all the aspects of the case has rightly convicted and sentenced the accused/appellant. 11. We have heard learned counsel for the parties and perused the record ofthe trial court as also the impugned judgment. 12. The trial Court has convicted the appellant on the basis of the evidence of PW/1 Niranjanand PW/15 Balram Satnami. 13. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced by the parties. 14. In the present case the accused/appellant has taken defence of alibi that he was not present on the spot at the time of offence. Hehas examined DW/1 Bhuwanlal Sahu, who has deposed that at about 12.30 on 19-9-2004 Niranjan (PW/1) and Paduman (PW/2) Were quarrelling witheach other and Bhanuram was trying to resolve the problem, thereafter he went to the house of the appellant for getting newspaper and after five minutes when he heard the sound of commotion, he came to the place of incident where Bhanuram was lying on the floor in injured condition and at that time Niranjan (PW/1) was not present on the spot. He heard in village that Niranjan (PW/1) and Paduman (PW/2) committed murderof Bhanuram. In his detailedcross examination and in examination-in-chief, he has not stated anything about the presence of the appellant in his own house when this witness went to the house of the appellant. Inter-alia, he has admitted in para 4 of his cross examination that at the time of incident, he (this witness) was not present on the spot. His evidence is not prima facie sufficient for drawing inference that the appellant was present in his house or was present anywhere else other than the place of incident at the time of incident, therefore, the evidence ofDW/1 Bhuwanlal Sahu, is of no use for the appellant. 15. Homicidal death of Bhanuram is not in dispute and the same is established by theevidence of Niranjan (PW/1), Balram Satnami (PW/15) and the evidence of Dr. Pritam Sahani (PW/19) who conducted postmortem ofthe deceased Bhanuram vide Ex.P/28. 16. As per evidence of Niranjan (PW/1) who lodged first information report in Police Station vide Ex.P/1, when his father Bhanuram was sitting near the betal shop of Paduman (PW/2), his younger brother, appellant came there with an axe and assaulted his father over his head, neck andhand as a result of which his father fell down. Thereafter, he took his father to Government hospital Jaijaipur, Govt. Hospital, Champa and finally to CIMS, Bilaspur where his father died. In his cross examination he has specifically stated in paras 10 and 12 that he has seen the incident and denied the suggestion that he was not present on the spot. 17. The incident took place near the market place and PW/15 Balram Satnami has deposed that he saw the appellant running from the ^- ^^%^Pji®^^;^il^?^^^^?IS^W%i;N^I<i^^ ^ place ofoccurrence by holding axe after causing injuries to Bhanuram. In his cross examination in para 3 he has admitted that Bhanuram was his maternal grand-father. In his cross examination in para 4 he has specifically deposed that he has seen the incident and the appellant caused injuries to Bhanuram. Although other witness PW/2 Paduman has deposed that nepew of Dr. Loyan told him that the appellant wasquarelling with his father Bhanuram and when he came to the spot he saw the appellant running from the spot after causing injuries to him and his father was lying on the floor in injured condition, thus the defence has not been able to elicit anything in his cross examination to discard his testimony. 18. Other witnesses PW/3 - Mohanlal Satnami, PW/4- Bharatlal Kashyap, and PW/5 Harishankar Shrivas have deposed that theyheard from Niranjan(PW/1) thattheappellantassaultedhis father Bhanuram by axe. PW/1 Niranjan has stated in para 12 of his cross examination that he snatched the axe from the accused/appellant and produced the same before Police, but the Police has not seized any axe from PW/1 Niranjan. Inter-alia Police seized the axe from the accused/appellant vjde Ex.P/9. Thus, considering his entire evidence corroborated by other witnesses, his testimony cannot be discarded only on the ground that the axe was not seized from him but it wasseized from the accused/appellant. 19. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. Statement ofany witness cannot be discarded and rejected ^ outrightly 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. 20. While dealing with the question of reliabilityof the evidence of the person who has exaggerated and patently given false statement up to some extent, the Apex Court in the matter of Laxman and others v. State of Maharashtra1 has held thatwitnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "Onthe Witness Stand" (p.51), "Law and the Modern Mind" (see: 1949ed. P.106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon afterwards, 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". 1AIR 1974 SC 308 '^ Hence, the Professor 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 sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus". 21. In the matter of Sucha Singh and another v. State of Punjab2 the Apex Court has held that the maxim 'fa/sus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is thatin 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'. Para 18 of the said judgment reads thus "18. To the same effect is the decision in State of Punjab v. JagirSingh (AIR 1973SC 2407) and Lehna v. State of Haryana {2002 (3) SCC 76}. Stress was laid by the accused-appellants on the non- acceptance ofevidence 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 falsus in omnibus" (false in 2AIR2003SC3617 10 ^- one thing, false in everything). This plea isclearly 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 the court to separate grain from chaff. Where chaff can be separated from grain, itwould 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 material witness or material particular wpuld 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 be branded as liar. 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 NisarAli v. Sfate of U.P fA/R 1957 SC 366)}. Merely because some of the accused persons have been acquitted, though evidence against all ofthem, so far as directtestimony went, was the same does not lead as a necessary corollary that those 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. {See Gurcharan Singh and another\i. State ofPunjab (AIR 1956 SC 460)}. The doctrine is a dangerous one specially in India for if a whole body of the 11 ^ ^..'; 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 insome 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 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 another v. State of Madhya Pradesh {1972 (3) SCC 751} and Ugar Ahir and others v. State ofBihar (AIR 1965SC 277)]. An attempt has to be made to, as noted above, in termsof 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 others v. State of Punjab (AIR 1975 SC 1962)}. As observed by this Court in State of Rajasthan v. Smt. Kalki & another (AIR 1981 SC 12 22. 1390), normal discrepancies in evidence are those which are due to normalerrors 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 notnormal, 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 recently in Krishna Mochi and others v. State ofBihar etc. {2002 (4) JT (SC) 186}. Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned." The evidence of PW/1 Niranjan that he snatched the axe from the appellant may be a false statement separately but his remaning part of the evidence is duly corroborated by the evidence of PW/2 Paduman and PW/15 Balram Satnami. On the basis ofthe aforesaid evidence of the witnesses, the Court below held that the appellant with a common intention committed culpable homicidal death of Bhanuram. Considering the fact that the appellant caused repeated injuries by axe blows over the body of Bhanuram i.e., head, neck and hand, conviction ofthe appellantis based on legal, clinching andcredible evidence which issustainable under law. 13 23. On close scrutiny of the entire evidence,We do not find any illegality or perversity committed by learned trial Court in convicting and sentencing the appellant. 24. Consequently, the appealbeing devoid of merit is liable to be dismissed and is accordingly dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge