Case: Ramesh Harijan Vs. State of U.P

Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718 ; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 ) 20. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly, that of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8). However, it is the duty of the court to unravel the truth under all circumstances. 21. IN BALKA SINGH & ORS. V. STATE OF PUNJAB, AIR 1975 SC 1962 , THIS COURT CONSIDERED A SIMILAR ISSUE, PLACING RELIANCE UPON ITS EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954 SC 15 AND HELD AS UNDER: “The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.” 22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678 , this Court held as under: “It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account.” 23. A similar view has been re-iterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696 , wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy. 24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617 , this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. 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 witness cannot be branded as a liar. In case this maxim is applied in all the cases 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 credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. 25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622 , this Court held : “…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” (See also: Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621 ; Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633 ; Sucha Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC 83 ). 26. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal. 28.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the aforesaid fact-situation, we have to weigh as to whether the High Court is justified in reversing the judgment and order of acquittal recorded by the trialhave been taken through the entire evidence on record and after re-appreciating the same we can unhesitatingly record that:(i) Undoubtedly, the trial court has not made any reference to the depositions of Batasi Devi (PW.2) and also of Kunwar Dhruv Narain Singh (PW.1) in respect to the fact that the thatched house of roof of Smt. Phulpatta Devi, maternal grandmother of Renu, deceased had fallen and she as well as Renu used to sleep in the house of Ramesh, appellant which was in very close vicinity of Smt.house. Ganga Ram (DW.1) has stated that on the day of occurrence, Smt. Phulpatta Devi and Renu did not sleep in the house of Ramesh, however, as he was living permanently in the city and did not say that he was present on that day in the village, his evidence cannot be taken into consideration so far as this issue is concerned. The defence did not cross-examine Kunwar Dhruv Narain Singh (PW.1) and Batasi Devi (PW.2) on this issue. Thus, the trial court committed an error recording such finding of fact.(ii) It has come on record that Smt. Phulpatta Devi was an old, infirm and totally blind woman and it was for this reason that Renu, deceased was left for her assistance. The trial court ought not to have drawn adverse inference for not examining Smt. Phulpatta Devi by the prosecution. Thus, the adverse inference drawn by the trial court on this count is unwarranted and uncalled for.(iii) The trial court has held that Kunwar Dhruv Narain Singh (PW.1) had been inimical to Ramesh and his family for the reason thatfather had been working in the agricultural field at the said witness and after joining the servicefather had rendered financial help to other poor persons of the village and thus those poor persons were not available for work to the said witness. In this regard, the defence has examined Ganga Ram (DW.1) who had deposed that thefather had been looking after the agricultural work of that witness, however, joined the service in court 14 years prior to the date of incident and Gangafamily was also looking after the agricultural work of the said witness but 8 years prior to the date of incident. He had also left the village and opened a beetle shop in the city after getting financial aid fromfather. Such an evidence is required to be examined in the light of attending circumstances and particularly taking into consideration the proximity of time. Time is the greatest heeler. In case thefather had left working in the field of the witness 14 years prior to the date of incident and Ganga(DW.1) family has left 8 years prior to the said date, the time gap itself falsifies the testimony for the reason that the time gap is a factor of paramount importance in this regard. More so, it is not the defence case that any other family or labour was available in the village to look after the agricultural work of the said witness.(iv) The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been dis-believed by the trial court in view of the fact that Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) did not support the prosecution case like other witnesses who did not support the last seen theory. The trial court failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) had admitted their signature/thumb impression on the recovery.The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the Serologist who found the blood and semen on them vide report dated 21.3.1996 (Ext. Ka 21) is not disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ).Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.