.-^;'"i"":;,''::u:^> '^ff:l^ B »S[?'S«|i»!(S HIGH COURT OF CHHATTISGARH: BILASPUR \, DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ, Criminal appeal No.600/2005 APPELLANT : Munna @ Ramkumar S/o Manglu Ram, (in iail) aged about 42 years, R/o Ghainghpuri, Thana Lalpur, Dist. Bilaspur (C.G.) ,<VERSUS RESPONDENT : State of Chhattisgarh, Through Police Station Lalpur, Dist. Bilaspur (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE .1 Appearance: Ms. Sangeeta Mishra, counsel forthe appellant. Shri S.R.J.Jaiswal, P.L. forthe State. JUDGMENT (Passedon 18.01.2011) . .Chal.lenge in this appeal is;tothe,jucigmentc3fconvicf|ion ai?d order of sentence dated 13.07.2005 passed in S.T.No.264/2004 by the 2nd Additional Sessions Judge (F.T.C.), Myngeli, whereby and whereunder after hoiding the appellant guilty for commission of culpable homicide amounting to murder of Roman Prasad Sahu, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced to imprisonment for life with fine of Rs.1000/- and in default to payment of fine, the appellant has to further undergo three months rigorous imprisonment. \ 2. The conviction is impugned on the ground that without iota of evidence on record, the Court below convicted and .sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on fateful day of 29.05.2004 at about 7.00 a.m. at morning when deceased Roman Prasad Sahu was ^ h' ^ present in pond along with his son P.W.6 Basant @ Bablu, the appellant holding stick came th^re and has caused repeated assault upon the deceased Roman Prasad Sahu and caused fatal injuries. P.W.6 Basant @ Babloo cried for help and fjnally he took his father to hospital by arranging vehicle. During the course of treatment, Roman Prasad Sahu died. Merg intimate vide-Ex.P.19 was sent by Dr. R.K. Gupta and on the basis of Ex.P.19, merg vide Ex.P.20 and finally vide Ex.P.7 were recorded. On the basis of merg intimation, F.1.R. Ex.P.6 was recorded. Investigating officer left for so^ne of occurrence and after summoning the witnesses vide Ex.P.11A, dead body was sent to C.I.M.S. Hospital, Bilaspur vide Ex.P.15A. P.W.10 Dr. P. Sahni conducted autopsy vide Ex.P.15 and found the following injuries: 1) Lacerated wound on scalp of 7 cm. long over right parietal 2) 3) 4) 5) 6) 7) 8) region. I ! ' Lacerated wound over right parietal, 8" cm. long and 10 cm. above rightear. ; Lacerated wound of 7cm long near the occipital region. Lacerated wound of 6 cm. long near injury No.3. Stitched wound was found above right eye brow. Lacerated wound with 5 stitches over chin. Multiple bryises^iyer bpth sidespf chest and shoulders. Linear fracture of right parietal bone and vertex was found. Sub-dural haematoma was present. Mode of death was shock and death was homicidal in nature. Bloodstain&Ksloths of the deceased was seized vide Ex. P.8. Spot map was prepared vide Ex.P.10. Patwari prepared spot map vide Ex.P.18. During the course of investigation, accused was taken into custody. He made disclosure statement of Stick vide Ex.P.2, the same \. was recovered at the instance of the appellant vide Ex.P.1. Seized articles were sent for chemical examination vide Ex.P.24 and presence of blood on the cloths and stick was confirmed vide Ex.P.25 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Judicial @ Magistrate First Class, Mungeli, who in turn committed the case to the Sessions Judge, Bilaspur. The learned 2 Additional Sessions Judge received the case on transfer for trial. 5. In order to prove" the guilt of the appellant, the prosecution examined as many as 16 witnesses. The accused appellant was also examined under Section 313 of the Code in which he denied the circumstances appearing against them and claimed his innocence and false implication. , ^: 6. After affording opportynity of hearing to the parties, the learned AdditiQnal Sessions Judge convicted and sentenced the appellants as aforementioned. • : 7. Ms. Sangeeta Mishra, learned counsel for the appellarit as well as Mr. S.R.J.Jaiswal, P.L. for respondent/State are heard at length. Perused the impugned judgrnent andtrecord of Court below. | 8. Ms. Sangeeta Mishra, learned counsel for the appellant vehemently argued that conviction of the appellant under section 302 of the I.P.C. is solely based on the evidence of P.W.6 Basant Kumar who is relative of the deceased i.e. son and relative and interested witness is also a chance witness. He was notipresent.atthetime of incident fut he came afterwards and then he has seen the injured body of his father. His father did not give any dying declaration and was having enmity with other persons and other persons might have committed the murder of the deceased - Roman. On account of enmity, the present applicant has been falsely implicated in thecrime in question. She further argued that P.W.6 Basant Kumar is sole eye witness, who has not disclosed the name of assailant on the same day, therefore, his evidence does not inspire confidence and trustworthy. Qounsel for the appellant placed reliance in the matter of State of Orissa v. Mr. Bramananda Nanda, AIR 1976 SC 2488, in which the Supreme Court disbelieved the evidence 6f eye witness who had disclosed the name of assailant after one and half day. She also placed in the matter of Sta(e ofRajasthan v. Magni Ram, (2001) 9 SCC 589, in which the Apex Court held that in case of inconsistency between ocular and medical evidence, the appellant is entitled to acquittal. '^ -^ I V ff ..-f cS' HaMEBB i'l:»!l»uaal;SSI 9. On the other hand, Shri S.R.J.Jaiswal, learned counsel for the respondent / State opppsed the appeal and argued that the conviction of the appellant is based on the evidence of Basant @ Babloo and his evidence inspires confidence and trustworthy. The same is sufficient for conviction of the appellant. Although, Basant is a relative witness but on this ground his evidence cannot be discarded and virtually relative witnesses are the last person to spare the real culprit and implicate the innocence. d/- 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence minutely. In the present case, homicidal death ofthe deceased - Roman Prasad Sahu as a result offatal injuries found over the dead body of Roman Prasad Sahu has not been disputed on behalf of the appellant, even otherwise established by the evidence of Dr. P.Sahni P.W.10 and autopsy report Ex.P.15 Which reveals that the death was due to fatal injuries caused over the body of Roman Prasad Sahu and death was homicidal in nature. 11. As regards the complicity of the appellant in crime in question, the conviction of the appellant is substantially based on the evidence of P.w.6 Basant @ Babloo, son ofthe deceased, who has deposed in his evidence that at the time of incident at about 7.00 a.m.on 29.5.2004, his father was present near pond. He was also present near pond and at that time, the appellant - Munna @ Ramkumar holding stick came there and assaulted from back side of head of the deceased and as a resultsuch sudden assault, his father immediately fell down on the ground. The appellant was repeatedly assaulting the deceased with stick. Seeing this, he was weeping and cried for help. Thereafter,'the appellant left his father and went away. Then, he went to near his father, he was unconscious and the same time Paras Ram came and he narrated the incident to Paras Ram '*-. • i : ' and thereafter he went to village for brining motor cycle. On way, he met his mother, who was also informed by him about the incident. He brought the motor cycle from the house to pond and brought his father with the help of Paras Ram to his house and from house he went to Bhatli for bringing Marshall vehicle and then he took his father by Marshall to hospital and at C.I.M.S., his father died. In his detail cross-examination, c •5s.»i*:.Etf i ^S-s^S^S ';:??-;';t^s??s^; he has admitted that in paragraph 11 that before the incident he did not shout for help. In para 22, he has further admitted that his mother met him and away to the pond. In para 43 of his cross-examination, he has deposed that the appellant assaulted 100 times with stick on his father. The defence has cross-examined this witness in detail but has not been able to discredit his testimony relating to the fact that the appellant has not assaulted his father nor any other person was present near the place of incident. P.W.7 Godavari Bai, mother of P.W.6 Basant has supported the prosecution but was declared'j'hostile witness. She has admitted in his evidence para 2 and 6, that at the time of incident her son Basant was present near the place incident and he was weeping and shouting that the appellant was assaulting his father. She has also admitted in para 2 of her evidence that her son has narrated the incident to her. P.W.9 alleged witness Paras Ram has not supported the case of prosecution. As per his evidence, when he reached to the spot, at the time, Basant was present, thereafter Basant came. He has deposed that police has recorded his evidence but in paragraph 13 he has denied the fact that police has not 1 recorded any statement and the police was trying to threaten him that he has given such statement and after his deposition police has cancelled his statement, which was recorded as Ex.14. The evidence of this witness revealed that he was concealing the truth. In the present case, P.W.6 Basant isson of the deceased and as para 43 of his statement, the appellant has assaulted 100 times with stick but no such marks of 100 times attack with stick have been noticed by the doctor. Admittedly, Basant @ Babloo is a relative witness but on the ground his relationship with the deceased, his evidence cannot be discarded. While dealing with the evidentiary value of relatjye witness, the Apex Court, in the matter of Dalip Singh and others v. The State of Punjab, AIR 1953 SC 364, has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- "26. A witness is normally to be considered - independent-unless he'or-she-springs from sources' which are.likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an wswssSS^SS eaS :^"??.^^^e?^^^^ innocent person. It is true, when feelings run high and there js personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. E^ch case must be limited to and be governed by its 'own facts." While dealing with the same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar, 2008 AIR SCW 3739 has held thus, : "...... itwill be erroneous to lay down as a rule of universal application that non-examination lof a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-wbrthy, cannot be relied 'upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their; interest in the prosecution. The relationship per se does not affect the' credibility of a Witness. Merely' because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accus'ed or for some other oblique motive." i While dealing with the same question, the Apex Court in the matter of Hari v. State of Maharashtra, 2009 AIR SCW 2250 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when d^ceased was murdered by his cousin (relative). - 12. Definitely, one part of the statement of Basant P.W.6 is exaggerated, but on the ground of exaggeration, omissions and -,;. ::a;iE,>.!iaE^§ contradictions, the evidence of this witness cannot be discarded. The Courts are required to separate the grain of truth from chaff. While dealing with the question of reliability of 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 Maharashtra, 2009 AIR SOW 2250 has held that witnesses 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 "On the Witness Stand" (p.51), "Law and the Modem Mind" (see: 1949 ed. P.106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons, who were then asked to write down, soon afferwards, 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 ofwhich 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 Profesfior 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 ca.nnpt be safely or prudently accepted or acted upoh. 'lt is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "fe/sus in uno falsus in omnibus". \ In the matter of Sucha Singh and another v. State of Punjab, AIR 2003 SC 3617 the Apex Court has held that the maxim 'falsus in uno fa/sus in omnffius' has riof 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 that in such cases testimony may be dflsregarded, and not that it must be disregarded. The doctrine merely .'".f '•!>. '-•^^ ^ ...^ae'a involves the question of weight of evidence which a court may apply in a given set of circumstanws, 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. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana {2002 (3) SCC 76}. 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 falsus in oqinibus" (false in one thing, false in everything). Tl>is 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- accu.sed 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, it would be open to the court to convict an accused notwithstariding'the'fact that'evidence has beert found to be deficient to prove guilt of other accused persons. Falsity of particular material 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 be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance ndr has this maxim'come to occupy the status of'rule of law. It is merely a rule of caution. All that it amounfe 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 df evidence which a court may apply in a given set 6f circumstarices, but it is not what may be called 'a mandatory rule of evidence'. {See Nisar Ali v. State ofV.P(AIR"f957-S<S'366)}: 'Merely because some 6f 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 those who have been convicted must also be acquitted. It is always open to acourt to differentiate accused who had beeh acquitted from those who were convicted. {See Gurcharan-Smgh'^ahd anotherv: State ofPunjab (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 ofcriminal justice would come to a dead stop. Witnesses just cannot help in'giving embroidery to a story, however, truein the mairi, Therefore,' it'has t64)e'-appraised'ineachcaseas tp aiii K^tg3j|»Sa >A^SiiS8@WI ,.£\'0;.... .--.^ ;~:.... ,....; • : what extent the evidence is worthy of acceptance, and mer^ly 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 eviderice 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) SCC7$1} and UgarAhirand others v. State of Bihar (AIR 1965 SC 277)]. An attempt has to be made to, as noted above, in 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 df separation an absolutely new case has 'to be reconstructed by divorcing essential details presented by the'proseSutibn'cofhplefely from the cohtdxt 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 othersv. Stete of Punjab (AIR 1975 SC 1962)}. As observed by this Court in Stete of RajasthQn v. Smt. Kalki & anqther (AIR 1981 SC 1390), 'normal discrepancies in'evidence are thbse which are'due t6 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 tb laibel'lh'e •cat'eg'dry' td"WhietT a discrepancy may b'e 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 of Bihar ete. {2002 (4) JT (SC) 186}. Accusations have been clearly establish'ed against accused-appellants in the case at hand. The Courts below have categorically indicated "thg' distiWguish'ing"features in eviderice sfci far as acquitted and convicted accused are concerned." i 13. The Supreme Court in case of Stete of Rajasthan v. Maghi Ram, (2001) 9 SCC 589, heldthat there is inconsistency of ocular and imedical evidence and unnatural conductofthe witnesses, therefore, the a^pellant ;:«'.' i-/t^ tt" <j U l\l "t\.f ''v'^ ••'.^"' <:.< '...•:-•--•:-'.;^-.---'• -/.-.. . 1 10 ,-KSSsS l^^l^^^^ is held to be entitled for acquittal. In the present case, there is no inconsistency between^ ocular and medical evidence. Doctor P.Sahni P.W.10 has deposed in paragraph 18 of his evidence that injuries have been caused by assault from front side. But injuries noticed upon the head of the deceased were on parietal region near eye brow and chest, chin. Injuries found over the occipital region could well be caused from the back side. Definitely, in the present case, as held in S(a(e of Orissa v. Mr. Bramananda Nanda, AIR 1976 SC 2488, in which the Supreme Court disbelieved the eviderice of eve witness who had disclosed the ^7 name of assailant after one and half day, P.W.6 Basant has disclosed the name of assailant on second day when his statement wasrecorded. But as per his eviden.ee, in case of prosecution, after the incident, he narrated the incident to his mother and took his father to hospital where his father died during the course of treatment which shows that he was not having any opportunity to meet the police officers before recording his statement. The factum of injury caused by appellant finds place in inquest prepared on 29.05.2004. The same thing also finds place in Ex.P.15, the requisition for autopsy and statement of mother of Basant i.e. Ex.D.2. Thus, facts of the said cases are fully distinguishable to the grounds and facts of the present case. 14. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Section 302 of the appellant, which is based on credible, clinching and reliable evidence sustainable under law. While convicting the appellant, the Court below did not commit any error, illegality or infirmity. ' 15. On close scrutiny of the material available on record, we do not find any merit and substance in this appeal. 16. Consequently, the ap|3eal being devoid of merit is liable to be and is hereby dismissed. Sd/- T.P. Shar?na Sd/- R.L. Jhanwar Judge