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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.