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CASE NO.: Appeal (crl.)  992 of 2002

PETITIONER: Ram Udgar Singh                                                  

RESPONDENT: State of Bihar                                                   

DATE OF JUDGMENT: 03/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Politics, which was once considered the choice of noble and decent  persons is increasingly becoming a haven for law breakers. The ’Nelsons’  eye’ turned by those wielding power to criminalisation of politics by  their solemn and determined patronage and blessings by vying with each  other has been encouraging and facilitating rapid spread and growth with  rich rewards and dividends to criminals. The alarming rate of social  respectability such elite gangsterism gaining day by day in the midst of  people who chose and had given unto themselves the right to elect their  rulers, mostly guided by misdirected allegiance to party politics and  self oriented profit making endeavours seem to provide the required  nectar for its manifold and myriad ways of ventilation with impugnity.  Though it is an irony, yet  accepted truth is that the ’Home rule’ we  could achieve by ’non-violence’ has become the root cause for generating  ’homicidal’ culture of political governance effectively shielded by  unprincipled  mass sympathies and highly profit-oriented selfish designs  of unscrupulous ’people’ who have many faceted images to present  themselves at times to the extent of their deification. For some it  brings seal for respectability and for some others, it is intended to be  used as a shield for protection against law enforcing agencies and that  is how reports of various Commissions and  Committees have become sheer  cry in wilderness.   About three decades back one Ram Anugrah Singh alias Annu Singh  (hereinafter referred to as ’deceased’) was a victim of political  rivalry.  He paid price for allegedly being a loyal member of one  political party which was not to the liking of some including the  present appellant.  Debacle of Parliamentary by-election of 1969 is said  to have provided the impetus to do away with the life of the deceased on  7.4.1969. The appellant along with 10 others including the members of  the Parliament and legislative assembly were alleged to be responsible  for his death.  Eleven persons in total faced trial for offences  punishable under various provisions of Indian Penal Code, 1860 (for  short the ’IPC’).  Appellant was charged for commission of offence  punishable under Section 302 IPC and Sections 25A and 27 of the Arms  Act, 1959 (for short the ’Arms Act’).  Eight others were charged for  commission of offence punishable under Section 302 read with Section 34  IPC.  Two others breathed their last during trial.

Prosecution case as unfolded during trial is essentially as  follows:

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       Ram Bilash Singh (PW5), deceased and one Ramanand Jha (PW-2) had  gone to withdraw money from a bank at Barauni.  The deceased also  carried some amount to be paid to a wood seller.  After withdrawal of  money from the bank all the three persons proceeded on bicycle and  reached near the post office of their village Bihat.  At that time three  of the accused persons namely, Surya Narain Singh, Rameshwar Singh and  Deoki Nandan Singh coming from a place of some political meeting saw  them.  They were followed by many other persons including the accused  persons. Four accused persons including the appellant caught hold of the  deceased.  While accused Ram Ratan Singh and Umesh Singh caught hold of  the informant (PW5), accused Ram Shankar Singh and Sahdeo Singh caught  hold of Ramanand Jha (PW-2). Accused Surya Narain Singh, Rameshwar Singh  and Deoki Nandan Singh who were leaders of a political party directed  others to kill the deceased, as it was a good opportunity to kill him.   At the behest of these three persons as aforesaid four persons caught  the deceased and took him towards North in the field. Accused-appellant  Ram Udgar Singh fired a gun shot on the chest of the deceased.  Other  accused Suro Singh (since dead) also shot at the deceased. Receiving the  gunshot injuries the deceased fell down.  Thereafter the accused persons  ran away after taking the cash carried by the deceased.  The occurrence  was witnessed by Kapildeo Singh, and others arrived there on hearing the  sound of firing.  The deceased was taken to the hospital in injured  condition, but he breathed his last there. First information report was  lodged and investigation was undertaken.  On completion of  investigation, charge sheet was placed as aforesaid.  As the Criminal  Procedure Code of 1898 (for short the ’Old Code’) was in operation,  proceedings were initiated under the existing law. While the case was  still pending for inquiry under Chapter XVIII of the Old Code, the new  Code came into force, and the case was committed to the Court of  Sessions in 1977.  Charges were framed. PWs.1 to 4 were examined. As  some witnesses were not examined earlier petition was filed and it was  taken note of and some other persons were examined.   

       On consideration of the evidence on record, the Trial Court held  the accused-appellant guilty while giving the benefit of doubt to  others. In appeal filed by the accused-appellant before the High Court  the plea of innocence and false implication due to political rivalry  which was pressed into service before the Trial court was reiterated and  the evidence was stated to be not worthy of credence.  It was submitted  that the so-called PWs 1 and 3 were chance witnesses and their  credibility was open to doubt.  The High Court held that the prosecution  has established its accusations so far as the accused-appellant is  concerned and did not find any merit in the appeal.

       In support of the appeal, Mr. S.B. Upadhyay, learned counsel  submitted that when 8 out of the 9 persons who faced trial have been  acquitted on the same set of evidence it was not proper to convict the  accused-appellant by applying different yardstick. The mala fides are  patent when one considers the findings that many persons were roped in  though they were innocent. It was pointed that the time of death as  given by prosecution witnesses is improbabilised  by the doctor’s  evidence.  The witnesses were relatives of the deceased and, were  therefore, partisan.  In essence it was submitted that the Trial Court  and the High Court were not justified in convicting the accused.

       In response, Mr. H.L. Aggarwal, learned senior counsel supported  the judgment and submitted that both the Trial Court and the High Court  have analysed the evidence in great detail and no infirmity can be  noticed therein to warrant interference.   

       Relationship is not a factor to affect credibility of a witness.   It is more often than not that a relation or a friend would not conceal  actual culprit and make allegations against an innocent person.  Foundation has to be laid if plea of false implication is made.  In such

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cases, the court has to adopt a careful approach and analyse evidence to  find out whether it is cogent and credible (See Gangadhar Behera and  Ors. v. State of Orissa (2002 (8) SCC 381). The trial Court and High  Court have kept the legal principles in view and made detailed and  elaborate analysis of the evidence.  

       Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC 202)  this Court observed: (p, 209-210 para 14):

"But it would, we think, be unreasonable to contend  that evidence given by witnesses should be discarded  only on the ground that it is evidence of partisan or  interested witnesses.......The mechanical rejection  of such evidence on the sole ground that it is  partisan would invariably lead to failure of justice.   No hard and fast rule can be laid down as to how much  evidence should be appreciated.  Judicial approach  has to be cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

       To the same effect is the decision in State of Punjab v. Jagir  Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC  76). Stress was laid by the accused-appellant on the non-acceptance of  evidence tendered by some witnesses to contend about desirability to  throw out entire prosecution case. In essence 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 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 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 liar. 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 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 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 to differentiate accused who had been  acquitted from those who were convicted. (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 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

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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 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 recently in Krishna Mochi and Ors. v.  State of Bihar etc. (JT 2002 (4) SC 186).  Accusations have been clearly  established against accused-appellant in the case at hand. The Courts  below have categorically indicated the distinguishing features in  evidence so far as acquitted and convicted accused are concerned.  

       Evidence of PWs 1, 2, 3 and 5 clearly establish the definite role  played by the accused-appellant.  So far as plea relating to time of  death on the basis of medical evidence is concerned, emphasis is laid on  the fact that rigor mortis could not have set in the dead body within  two hours. High Court has referred to several treatises on medical  jurisprudence to conclude that the time which is usually three to four  hours may vary according to climatic conditions. We find no infirmity in  the conclusion.  The courts were justified in holding that appellant was  the assailant, and accordingly convicted him. No exception could be  taken to the well merited reasoning squarely found supported by  overwhelming relevant, convincing and concrete evidence placed on record  by the prosecution in this case, and no error could be made out or  substantiated in them, to call for our interference.        

       There is no merit in this appeal, which is accordingly dismissed.