Full Judgment Text
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CASE NO.:
Appeal (crl.) 205 of 2007
PETITIONER:
Jakki @ Selvaraj and Anr
RESPONDENT:
State Rep. by the IP, Coimbatore
DATE OF JUDGMENT: 14/02/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 4768 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Appellants call in question legality of the judgment
rendered by a Division Bench of the Madras High Court
upholding the conviction of the appellants for the offence
punishable under Sections 148 and 302 of the Indian Penal
Code, 1860 (in short the ’IPC’), while setting aside conviction of
four co-accused persons who had been convicted by the trial
Court.
Prosecution version in a nutshell is as follows:
There was a difference between the six accused persons
who belong to Hindu People Party on one hand and Suresh
(hereinafter referred to as the ’deceased’) and witness
Ananthan (PW-1) who belong to Hindu Munnani Party. On
account of this difference on 14.8.2001 Ananthan (PW-1) and
some others had beaten up Senthil Kumar (A-3) and on
25.8.2001 said Ananthan (PW-1) and the deceased had
restrained accused persons 1 to 5 from participating in the
ritual competition of climbing a tree on Vinayargar Chaturti
Function. On 30.8.2001, around 4.45 p.m. with an intention
of killing Ananthan (PW-1) and the deceased, all the six
accused persons unlawfully assembled at a particular place
armed with dangerous weapons and assaulted the deceased.
Accused Nos.1 and 2 i.e. present appellants called out
Ananthan and chased him but he managed to escape. But
that did not deter the appellants who attacked the deceased at
around 5.00 p.m. in a garden and he lost his life because of
the assaults.
The investigation was taken up by the Police officers and
on completion of investigation charge sheet was placed. The
accused persons pleaded innocence and false implication and
claimed to be tried.
In support of the prosecution version several witnesses
were examined. The evidence of PWs 1, 2 and 13 was claimed
to be of vital importance as they were described as eye
witnesses. The trial Court found that PWs 1 and 2 resiled
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from the statements made by them during investigation.
Relying on the evidence of PW-13 the conviction was recorded.
A-1 to A-4 were convicted for offences punishable under
Sections 148 and 302 IPC and A-5 to A-6 were convicted for
offences punishable under Sections 147 and 302 IPC read
with Section 149 IPC. All the six accused persons who were
convicted preferred an appeal before the High Court which by
the impugned judgment directed acquittal of four of the
accused persons while confirming the conviction of A1 and A2.
It was held that though the evidence of PW-13 was held to be
not reliable so far as the same related to A-3 to A-6, the same
was sufficient to fashion guilt on the accused appellants. It
was held that his evidence was credible and cogent so far as
these two accused persons are concerned.
In support of the appeal, learned counsel for the
appellants submitted that when the evidence of PW-13 was
held to be unworthy of credence for the co-accused the same
should not have been utilized for holding the appellants guilty.
With reference to the evidence of PWs 1 and 2 who were stated
to be the eye witnesses and who resiled from their statements
during investigation, it was submitted that because of
admitted differences and disputes the appellants have been
falsely implicated.
Learned counsel for the respondent-State supported the
impugned judgment.
As noted above, stress was laid by the accused-
appellants on the non-acceptance of evidence tendered by PW-
13 to contend about desirability to throw out the entire
prosecution case. In essence the 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,
notwithstanding acquittal of number of other co-accused
persons, his conviction can be maintained. It is the duty of
Court to separate the grain from the chaff. Where the chaff
can be separated from the grain, it would 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 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 liars. The
maxim "falsus 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 that in such cases testimony may be
disregarded, and not that it must be discarded. 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). Merely
because some of 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 a Court to differentiate accused who had
been acquitted from those who were convicted. (See
Gurcharan 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 was to be rejected, because a
witness was evidently speaking an untruth in some aspect, it
is to be feared that administration of criminal justice would
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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 respects as well. The evidence has to be
sifted 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 terms of felicitous metaphor, separate the 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. (AIR
1975 SC 1962). As observed by this Court in State of
Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), 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. (JT 2002 (4) SC
186).
Applying the principles set out above, it is clear that even
when the testimony of a witness is discarded in part vis-‘-vis
some other co-accused persons, that cannot per se be the
reason to discard his evidence in toto. As rightly observed by
the trial Court and the High Court, the evidence of PW-13 has
not been shakened in any manner though he was cross
examined at length. Additionally, the trial Court and the High
Court have found that the evidence of the doctor (PW-4) clearly
shows existence of injuries in the manner described by PW-13
by weapons allegedly held by the appellants. In that view of
the matter, the judgment of the High Court does not suffer
from any infirmity. The appeal fails and is dismissed.