REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.      382-384              OF 2008 (Arising out of S.L.P (Crl.) Nos.7580-7582 of 2007)  

Mani @ Udattu Man & Ors.         ….Appellants  

Versus

State rep. by Inspector of Police …. Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the judgment of the Division Bench

of the Madras High Court dismissing the appeal field by the appellants who

were  convicted  for  offences  punishable  under  Section  302  of  the  Indian

Penal Code, 1860 (in short the ‘IPC’). The 8th accused was acquitted of the

charges under Sections 148 and 302 IPC.  Of the seven accused persons

who were convicted  by the  VII  Additional  Sessions  Judge,  two  separate

appeals were filed.   

3. Prosecution version as unfolded during trial is as follows:

PW-1  who  is  Murugammal  the  mother  of  the  Prabha  (hereinafter

referred  to  as  the  ‘deceased’)  has  stated  that  her  second  son  Babu  had

already  been  murdered  by  the  accused  in  this  case  namely  Ali,  Cheyya

Babu, Udattumani, Muthukumar, Jayaraman, Karikadi Moideen and others

and that  on 8.3.2001 at 11.00 P.M in the night  all  the aforesaid accused

armed with knife came to her house and with the intention to murder her son

Prabha,  threatened  him  and  that  later  on  9.3.2001  at  5.30  a.m.  in  the

morning all the accused in this case armed with knives came to her house

and that on seeing them she sent away her son Prabha from the house and

that the accused had chased him and that she also followed them along with

her daughter-in-law. After crossing DH Road and Mutha Tamil Nagar, they

ran for some distance and that at that spot the accused Ali and Udattumani

attacked her son Prabha with knives and inflicted out injuries on his head,

and  the  accused  Cheyya,  Muthukumar,  Kovil  Babu,  Jayaraman  and

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Karikattai Moideen inflicted out injuries on the neck, shoulder, hands, legs

and several parts of the body indiscriminately, and the accused logu caught

Prabha by the legs. Thereafter of the accused together ran away from there

and  that  her  son  was  lying  in  the  pool  of  blood  and  succumbed  to  his

injuries and that later, she and her daughter-in-law went to Kodunkaiyoor

Police Station and lodged the complaint Ex.P-1. The knives exhibited in this

Court were used by the accused to murder her son and the said 7 knives

were marked as the M.O.1 series.

As per the chargesheet filed by the SHO of P-6 Kodunkaiyoor Police

Station,  Chennai,  against  the  accused,  the  deceased  Prabha  was  residing

within the limits of the Kodungayoor Police Station, and that the accused

were also residing in the same area. The accused had previous enmity due to

which they had murdered Babu, the brother of Prabha, and that the family

members of the deceased were being threatened by the accused and that they

also proposed to murder the deceased and due to this reason, all the accused

with the common intention of committing the murder of Prabha, formed an

unlawful  assembles and armed with dangerous weapons like knife sword

etc. on 9.3.2001 at 5.30 p.m stealthily entered the house of Prabha at 10

Netaji Lane, Nehru Nagar, Kodunkaiyoor, knowing that Prabha was present.

On  seeing  them,  Prabha  escaped  through  the  temple  side,  and  all  the

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accused  chased  Prabha,  and  entered  the  compound  of  Sekhar's  house

situated  near  the  tea  stall  situated  nearly,  and  indiscriminately  attacked

Prabha and caused injuries  with the knife on the head,  neck, face, chest,

shoulder, hands and legs of Prabha. Due to the said injuries, Prabha died at

the spot, and, therefore, it was stated that the accused are guilty for offences

under Sections 147, 148 read with Section 302 IPC. When the accused were

produced before the X Judicial Magistrate, all the copies of the documents

relating to the case were handed to them free of charge. The matter was then

committed to the Court of the Sessions Judge.

After  hearing  the  arguments  from  both  sides  and  considering  the

documents and evidence, the accused were charged under Section 148 read

with  Section  302  IPC and  on  being  questioned  the  accused  pleaded  not

guilty and demanded trial.

To establish the charge against the accused, the prosecution, examined

fifteen witnesses and exhibited P-1 to P-28 and marked M.O.1 to M.O.16.

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Placing  reliance  on  the  evidence  of  PW.1,  the  conviction  was

recorded  though  PWs.  2  to  8  resiled  from  their  statement  during

investigation.  Before the High Court the stand was that since almost all the

prosecution witnesses who were turned as eye-witnesses did not support the

prosecution version, the conviction should not have been recorded.

Discarding this plea, the High Court noticed that the evidence of PW1

was sufficient to hold all the persons guilty.  Accordingly, the appeals were

dismissed.   The  stand  taken  before  the  High  Court  was  reiterated.   The

present  appeal  is  by  A1,  A3,  A4  and  A7.   Learned  counsel  for  the

respondent supported the judgment of the trial Court and the High Court.

4. 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, or to

be not wholly credible. Falsity of 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 or witnesses cannot be branded as liar

(s). The maxim "falsus in uno falsus in omnibus" has not received general

acceptance 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

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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].  In  a  given  case,  it  is  always  open  to  a  Court  to

differentiate  accused  who  had  been  acquitted  from  those  who  were

convicted where there are a number of accused persons. (See  Gurucharan

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 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. 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 respect 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  Sohrab  s/o  Beli  Nayata  and  Anr.  v.  The  State  of

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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  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 [1975  (4)  SCC  511].  As  observed  by  this  Court  in  State  of

Rajasthan v. Smt Kalki and Anr. [1981 (2) SCC 752], 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

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Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh

v.  State of Punjab [2003 (7) SCC 643]. It  was further  illuminated in the

Zahira H. Sheikh v. State of Gujarat [2004 (4) SCC 158], Ram Udgar Singh

v.  State of Bihar [2004(10) SCC 443],  Gorle S. Naidu v.  State of Andhra

Pradesh [2003  (12)  SCC  449],  Gubbala  Venugopalswamy v.  State  of

Andhra Pradesh [2004 (10) SCC 120] and in  Syed Ibahim v.  State of A.P.

[2006 (10) SCC 601].

5. In the examination of PW1, it has been stated that on 8.3.2001, in the

night  the  accused  armed  with  knives  had  come  and  threatened  to  kill

Prahha and that is the night when Prabha came. She told him that he should

go and hide himself and on 09.03.2001 at 5.30 A.M. in the morning, the

accused  armed  with  knives  came  and  on  seeing  them  Prabha  ran  and

accused  followed  him  and  PW1  alongwith  her  daughter-in-law  PW2

followed and after running for some distance, A2 Ali and A1 Mani cut the

deceased on his head with the Kaif and A3 Cheyya, A4 Muthukumar and

A6,  Motilal  Babu,  A5,  Jayaraman,  A7  Muhammed  cut  Prabha  on  the

shoulder and other parts of the body and A8 was holding Prabha by his

legs,  and these facts appear to corroborate the contents  of the complaint

lodged by PW1 in the Police Station. The evidence of PW1 in the cross

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examination  that  on  08.03.2001  the  accused  had  come  and  threatened

Prabha and that when Prabha had come in the night she had warned him

and that  the  next  day when the accused came she  shouted  to  Prabha to

escape and that she had followed etc, when compared with the complaint,

corroborates  it  and  strengthens  the  prosecution  version.  On  examining

Ex.P-1 complaint it is evident that the evidence of PW1 that all the accused

are known to her and that all the accused were armed with the MO1 series

knives. Therefore, on the basis of the evidence of PW1 being trustworthy

and believable has been rightly acted upon.

6. With regard to the argument of the accused that, in the murder case

of Babu the brother  of deceased Prabha, the accused in the present  case

were also implicated and questioned, and due to that PW1, the mother of

Babu and Prabha implicated the accused falsely in the present case also and

that accused cannot be convicted on the basis of PW1’s evidence. Merely

because the accused were investigated in the case of Babu, the evidence of

PW1 cannot  be  disregarded.  In  this  context  reference  may be  made  to

Balakram & Ors Vs.  State of U.P. (AIR 1974 SC 2165) and  Ushamubalu

Sakdu Vs.  State of Maharashtra (AIR 1976 SC 557). It is seen from the

evidence  of  PW1  that  PW1's  other  son  Babu  had  been  killed  and  the

accused in the present case was implicated there also and were acquitted.

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PW1 has also stated that 5-6 months after the death of Babu, her son Prabha

was killed. On considering the evidence of PW1 that she knew the accused

from their childhood and that due to the enmity of the accused with her

children, they killed her sons and that on 8.3.2001 the accused armed with

knives  came  to  her  house  and  threatened  to  kill  Prabha  and  that  she

informed this  to  Prabha and that  the next  day,  the  accused came to  her

house, chased Prabha and killed her, it cannot be said that just because the

accused  were  set  free  in  the  case  of  Babu,  PW1  has  with  the  wrong

intention implicated the accused in the present case. In the first case relied

upon by the prosecution, it has been held that just because the eye witness

to  the  incident  is  related  to  the  deceased,  the  evidence  of  the  said  eye

witness cannot be disregarded. It is seen from the decision of the second

case that when the evidence of the interested witnesses in corroborated by

the medical evidence, then the entire evidence of the interested witnesses

ought not be rejected on that ground.  

7. We find no merit  in the appeals filed by the accused-appellant and

accordingly, the appeals are dismissed.  

             ………….....................................J.

(Dr. ARIJIT PASAYAT)            

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         ………….……….........................J.

        (Dr. MUKUNDAKAM SHARMA) New Delhi, February 25, 2009

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