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                                         REPORTABLE                IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 899 OF 2008          (Arising out of SLP (Crl.) No. 3613 of 2007)

Dalbir Singh                                   ..Appellant

                          Versus

State of Haryana                               ..Respondent

                     JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   Leave granted.

2.   Challenge in this appeal is to the judgment of the

Division Bench of the Punjab and Haryana High Court

dismissing the appeal filed by the appellant who was

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convicted for offence punishable under Section 302 of the

Indian Penal Code, 1860 (in short the ‘IPC’), and Section 148

of IPC. He was sentenced to undergo RI for life and one year

respectively for the two offences.

3.   This is one of the cases of a nature which are increasing

by leaps and bounds i.e. commission of offence for property.

In the instant case the key player is the appellant Dalbir

(hereinafter referred to as the ‘accused’) who killed his uncle

Ram Pratap (hereinafter referred to as the ‘deceased’) and the

key witness is Surja Ram (PW8), the grandfather of the

accused.

4.   Flittering out unnecessary details the case of the

prosecution is as follows:

    On 17.5.1995 on receipt of a ruqa from the doctor, CHC

Rania, regarding admission of injured Ram Partap (since

deceased), Sub Inspector Ram Partap, visited the hospital

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where the doctor produced before him a ruqa regarding death

of Ram Partap, Surja Ram, complainant, father of the

deceased, was found present there near the dead body. He

made a statement to the effect that he had two sons, namely

Banwari and Ram Partap. Banwari had two sons, namely,

Dalbir the accused and Om Parkash. Banwari had already

died two years ago. Ram Partap used to reside with him and

they also owned landed property in village Mameran, where

family of Ram Partap used to reside and cultivate the land. His

deceased son Ram Partap had come to him three-four days

earlier for thrashing the wheat and when they were thrashing

the wheat, at about 9.30 p.m. after stopping the operation of

thrasher, Ram Partap went to nearby canal for taking a bath.

After some time, a jeep came and stopped near the bank of the

canal and in the meanwhile, five-six persons came down from

the jeep and went near Ram Partap.      Accused Dalbir Singh

raised a lalkara to Ram Partap deceased that he should be

taught a lesson for cultivating the land of his grand father.

Complainant recognized the voice of Dalbir and rushed

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towards them and saw that Dalbir had a tangli in his hands,

whereas other persons were armed with lathi, jallis and

gandasis and were causing injuries on his son Ram Partap. He

raised an alarm as to why they were attacking Ram Partap

and on seeing him, all the assailants ran away with their

respective weapons in the said jeep and he did not know the

names of the remaining persons. He further disclosed that the

relationship between them and Dalbir was strained, as he

wanted to take share of his land. His son became unconscious

due to the injuries suffered by him. He went to village for

making arrangement of a jeep of one Sukh Ram at about

12.00 during night he shifted Ram Partap to CHC Rania for

medical treatment, where doctor treated Ram Partap and

during treatment he succumbed to his injuries. Dalbir

alongwith his companions caused injuries to his son without

any right. On the basis of this statement, Ex. PD/1 and an

endorsement made by Sub Inspector Amar Singh thereon, a

case was registered against the accused. The Investigating

Officer started the investigation, recorded statements of the

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witnesses and thereafter sent the dead body for autopsy.

    Dr.   Dharambir     Singh    conducted    post    mortem

examination on the dead body of Ram Partap the deceased

and found ten injuries on his person. He disclosed the cause

of death to be due to shock and hemorrhage as a result of

injuries to vital organs, which were ante mortem in nature and

sufficient to cause death in the ordinary course of nature. Sub

Inspector Amar Singh went to the place of occurrence and

lifted blood stained earth from there and sealed the same in a

parcel and took it into possession after preparing recovery

memo of the same. He also recorded the statements of Kamla,

the widow and Durga, the daughter of Ram Partap deceased

on the same day. From their statements, it was revealed that

in the evening on the previous day at about 7 P.M., they were

going to the fields to serve meals to Ram Partap Surja and

others, who were thrashing the wheat in the fields. When they

passed near the house of Dalbir accused, they saw a jeep

bearing No.HR-44A 0856 standing in his courtyard and there

Pala Jani, Sube Singh, Krishan, Kuldeep and Parkash, all                                                             5

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accused, were talking to each other. They were known to these

witnesses. Two persons were sitting in the jeep and when

these witnesses were returning from their fields towards home

and reached near the culvert of canal, the same jeep came

near them and stopped. From the side of the jeep, Dalbir

asked them about the whereabouts of Ram Partap, and they

told him that he was in the fields. Then Dalbir asked Madan to

take the vehicle ahead. In the meantime, one person got down

the jeep for urinating and when the jeep started Sube Singh

called him by the name of Devi Lal to come immediately and

then all of them occupied their seats in the jeep and went.

They had seen all the persons in the house of Dalbir in the

evening and these witnesses came to know that during night

hours Dalbir and others had caused injuries to Ram Partap,

who died later on. After completion of necessary formalities,

accused were sent up for trial.

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     Accused were charge sheeted for offences punishable

under Sections 302 and 148 read with Section 149 IPC to

which they did not plead guilty and claimed trial.

     The Trial Court placed reliance on the evidence led, more

particularly, PW8 and directed conviction and imposed

sentences as aforenoted so far as appellant is concerned and

directed acquittal of co-accused. In appeal, before the High

Court the main stand taken was that PW8 had undergone eye

operation about two years prior to the date of occurrence and

in dark night there was no scope for identification. The High

Court did not accept the stand and held that identification

was   possible,   particularly,   when   the   accused   was   the

grandson of the witness. The appeal was dismissed by the

impugned judgment.

5.    In support of the appeal learned counsel for the

appellant submitted that all other accused persons have been

acquitted except the appellant. The Trial Court and the High                                                                7

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Court should not have accepted the statement of Surja Ram

(PW8) that he identified the accused from his voice in a dark

night which was probable. Learned counsel for the State on

the other hand supported the judgment.

6.   The first point relates to the acquittal of the co-accused

and its effect on prosecution version. Learned Additional

Sessions Judge and the High Court have noted the fact that

the only person named was PW8 who was the grand son of the

present appellant. He did not identify the co-accused person

i.e. the other assailants. In the instant proceedings PW8 had

mentioned about 5-6 persons, but only identified by appellant

as one of the assailants. PW8 disclosed before the Court that

the deceased went for taking a bath in the canal and after 10-

15 minutes a jeep came on the bank of the canal. He did not

see the other occupants of the jeep and only identified the

appellant who raised the lalkara to teach lesson to the

deceased for cultivating the land of his grandfather. The

accused persons came with the respected weapons and                                                             8

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started inflicting injuries on the person of the deceased. PW8

had categorically stated that he did not recognize other

assailants, and though he knew other assailants, he did not

know their names and, therefore, had not given their names.

He had categorically also stated that from the voice of accused

who raised the lalkara he recognized the assailant as his

grandson. The stand of the appellant that in dark night

recognition would not have been possible from voice is clearly

untenable. In a dark night ocular identification may be

difficult in some cases but if a person is acquainted and

closely related to another, from the manner of speech, gait and

voice identification is possible.

7.   In Anwar Hussain v. The State of U.P. and Anr. (AIR

1981 SC 2073) it was observed that even if there is insufficient

light, a witness can identify a person, with whom he is fairly

acquainted or is in intimate terms, from his voice, gaits,

features etc. Therefore, there is nothing to discard the

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evidence of PW8 so far as his claim to have recognized the

appellant is concerned.

8.   It is emphatically urged that the evidence is partisan,

lacks cogency and credibility. Acquittal of other accused

persons is the foundation for such plea.

9.   Coming to applicability of the principle of falsus in uno

falsus in omnibus, even if major portion of evidence is found

to be deficient, residue is sufficient to prove guilt of an

accused, notwithstanding acquittal of large number of other

co-accused persons, his conviction can be maintained.

However, where large number of other persons are accused,

the Court has to carefully screen the evidence. It is the duty

of Court to separate grain from chaff. Where chaff can be

separated from 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                                                              10

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particular would not ruin it from the beginning to end. The

maxim "falsus in uno falsus in omnibus" has no application

in Indian and the witnesses cannot be branded as liar.

10.   The maxim "falsus in uno falsus in omnibus" (false in

one thing, false in everything) has not received general

acceptance in different jurisdiction in India, 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 Nisar Alli 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                                                               11

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to differentiate the accused who had been acquitted from

those who were convicted.       (See Gurucharan Singh and

another 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 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.

The 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 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 Sahrab s/s Belli Nayata and another v.                                                             12

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The State of Madhya Pradesh: (1972) 3 SCC 751, and Umar

Ahir and others v. The State of Bihar: AIR 1965 SC 277). An

attempt has to be made to 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 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

discard the evidence in toto.   (See Zwieolae Ariel v. State of

Madhya Pradesh: AIR 1954 SC 15; and Balaka Singh and

others v. The State of Punjab: AIR 1975 SC 1962).            As

observed by this Court in State of Rajasthan v. Smt. Kalki and

another: AIR 1981 SC 1390, normal discrepancies in evidence

are those which are due to normal errors of observations,

normal errors of memory due to lapse of time, due to mental

disposition such as shock and horror at the time of

occurrence and these are always there however honest and                                                              13

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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 cateogrised. While normal discrepancies do not corrode the

credibility of a party’s case, material discrepancies do so.

11.   The appeal is without merit, deserves dismissal which we

direct.

                                            ............................... J.                                       (Dr. ARIJIT PASAYAT)

                                     ...............................J.                                       (P. SATHASIVAM)

New Delhi, May 15, 2008

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              IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO.             OF 2008          (Arising out of SLP (Crl.) No. 3613 of 2007)

Dalbir Singh                                   ..Appellant

                          Versus

State of Haryana                               ..Respondent

Dear Brother,

    Draft judgment in the abovementioned matter is sent herewith for your kind and sympathetic consideration.

    With regards,

                                          Yours sincerely,

                                        (Dr. Arijit Pasayat) Hon’ble Mr. Justice P. Sathasivam

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