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CASE NO.: Appeal (crl.)  798 of 2006

PETITIONER: Syed Ibrahim

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 27/07/2006

BENCH: ARIJIT PASASYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 2787 of 2005)

ARIJIT PASAYAT, J.  

       Leave granted.

       Challenge in this Appeal is to the judgment rendered by a  Division Bench of the Andhra Pradesh High Court upholding  the conviction of the appellant for an offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).   The trial court had found the appellant guilty of murdering his  wife on 10.1.1994.  The accused was sentenced to undergo  imprisonment for life.  Accused challenged the conviction and  sentence by filing an appeal before the High Court which was  numbered as Criminal Appeal No. 511 of 1997.  Initially by  order dated 30.4.1998 a Division Bench of the High Court  allowed the Appeal.  The respondent-State filed an appeal  before this Court.  Since the order passed by the High Court  was practically unreasoned, without expressing any opinion  on merits, the judgment was set aside and the matter was  remitted to the High Court for fresh disposal. The High Court  by the impugned judgment dismissed the appeal confirming  the order of the conviction and sentence passed by learned  Session Judge, Guntur.

 The background facts, as projected by prosecution  during trial in a nutshell are as follows:

       Durbhakula Lakshmi (hereinafter referred to as the  "deceased") was living with the appellant (hereinafter referred  to as the "accused") since about 15 years and gave birth to two  children.  On 10.1.1994, at about 10.A.M. while the deceased,  her father-Durbhakula Venkateswarlu (PW1), her brother,  Durbhakula Ramu (PW2) and her sister, Durbhakula Kumari  (PW3) were talking in their house, the accused came there,  abused the deceased in filthy language and questioned the  deceased as to why she returned to her father’s house without  informing him and why she gave information to the Railway  police about his movements. By that time Gopisetty Nagamani  (PW6) had reached there.  He grew wild, caught hold of her  hair and stabbed with a knife causing multiple injuries.  When  PWs. 1 to 3 came to her rescue, the accused fled away from  the scene of offence pushing and threatening them with dire  consequences.Makkalla Ankulu and Mekala Krishnavenamma   (PW4) came out their house and noticed the incident.  Mothati  Setharavamma and Mekala Venkaiah, who were the

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immediate neighbours of PW-1 noticed the accused fleeing  away from the scene of offence.

       On the strength of Ex.P-1 report given by PW1, i.e. Crl.  No.1/94 for alleged commission of offence punishable under  Section 302 I.P.C. was registered by T. Murli Krishna, SI  (PW11) and K. Suba Rao (PW12) took up investigation, visited  the scene of offence, prepared Ex.P-20 rough sketch of the  scene, prepared Ex P-7 observation report and conducted  inquest over the dead body of the deceased under Ex.P-8- panchanama, in the presence of C.K. Reddy (PW7) and others.   During inquest, Exs. P-13 to P-16 photographs of the deceased  were taken. Exs. P-9 to P-12 are the corresponding negatives.  PW-12 also seized blood stained earth and control earth  (M.Os. 2 and 3) and also a pair of hawai chappals (M.O.-1)  from the scene of offence.  Dr. K.P. Rao (PW10), Medical Officer  conducted autopsy over the dead body and issued Ex.P-17- Post Mortem Certificate.  The accused who was found lodged  in Adoni Sub Jail in another case was produced before the  trial Court.  The trial court framed a charge against the  accused for commission of offence punishable under Section  302 I.P.C., to which the accused pleaded not guilty and  claimed to be tried.

       To prove its case, the prosecution in all, examined 12  witnesses, namely PWs. 1 to 12 and marked Exs. P-1 and P-27  and M.Os 1 to 6.  Exs.D-1 and D-2 are the contradictions  marked in Section 16 of the Code of Criminal Procedure, 1973  (in short the ’Code’) statement of PW-6.  After completion of  trial and after hearing both sides and on considering the  material available on record, the learned Sessions Judge found  the accused guilty for the offence under Section 302 I.P.C.,  and accordingly convicted and sentenced him to undergo  imprisonment for life.  The Trial Court found that evidence of  all other so-called eye witnesses did not help the prosecution  as they departed from the version given during investigation  and the case hinged on the evidence of PW1.  His evidence was  accepted.

       As noted above, an appeal was filed before the High  Court questioning correctness of the judgment of the trial  court.     

       The High Court noticed that except PW1, the father of the  deceased, no other witnesses supported the prosecution  version.  However, the High Court found that the evidence of  PW1 i.e. the father of the deceased, was sufficient enough to  fasten the guilt on the accused.  Accordingly the appeal was  dismissed.

       In support of the appeal, learned counsel for the  appellant submitted that the High Court itself noticed that the  evidence of PW1 was not fully credible as he was speaking half  truth and was giving an exaggerated version. Though the  evidence was found to be largely inconsistent, yet it was held  that the same was sufficient to hold the accused guilty.  It was  pointed out that the approach of the High Court is clearly  unsustainable.  The evidence of PW1 is full of contradictions  and after having held that he was not speaking the truth  and/or was exaggerating, the High Court should not have  placed reliance on his evidence to hold the appellant guilty. It  was further submitted that only on the version of a single  witness whose evidence was discarded to a large extent, the  trial court and the High Court should not have held the  accused-appellant guilty.

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       In response, learned counsel for the respondent-State  submitted that even if it is accepted, as was observed by the  High Court, that PW1 was not speaking the truth yet his  evidence was sufficient to establish that the accused was  guilty.

Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by PW1 to a large extent 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, 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, or to be note 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 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 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

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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 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] and  in Gubbala Venugopalswamy v. State of Andhra Pradesh [2004  (10) SCC 120].

       In the background of principles set out above it is to be  seen how far the evidence of PW1 is cogent and credible.   Merely because he was the solitary witness who claimed to  have seen the occurrence, that cannot be a ground to discard  his evidence, in the background of what has been stated in  Section 134 of the Evidence Act, 1872 (in short the ’ Evidence  Act’). No particular number of witnesses are required for the  proof of any fact, material evidence and not number of  witnesses has to be taken note of by the courts to ascertain  the truth of the allegations made.  Therefore, if the evidence of  PW 1 is accepted as cogent and credible, then the prosecution  is to succeed.  It is to be noted that PW1-father of the  appellant, claimed to have set law into motion.  The testimony  of PW1 was to the effect that after witnessing a part of the  occurrence he had run to the police station and had come  back within about five minutes.  The evidence on record  dis- proves veracity  of this part of his evidence.  The occurrence is  alleged to have taken place and at about 10 P.M. the FIR was  lodged at the police station at about 11.30 P.M.  PW1 and the  investigating officer accepted that it will take nearly one hour  for somebody on foot to reach the police station considering  the distance of the alleged place of occurrence and the police  station.  There is another interesting factor PW1 accepted in  the cross examination that the report (Ex.B1) was written in  the police station in the presence of sub inspector and a  constable. But in his examination-in-chief, he had stated that  he had got written the report by somebody at a hotel and the  person normally writes petitions. No particulars of this person  who allegedly scribed the report, not even his name, was  stated by PW1. His evidence is further to the effect that he  alone had come to the police station where the report was  lodged and that is how he admitted that the report was written  at the police station. This may not appear to be that important  a factor considering the illiteracy of PW1.  But there is another  significant factor which completely destroys the prosecution  version and the credibility of PW1 as a witness.  He has  indicated four different places to be the place of occurrence.   In his examination in chief he stated that the occurrence took  place in his house.  In the cross-examination he stated that  the incident took place at the house of his wife-the deceased’s  mother. This is a very important factor considering the  undisputed position and in fact the admission of PW1 that he  and his wife were separated nearly two decades ago, and that  he was not in visiting terms with his wife.  Then the question  would automatically arise as to how in spite of strained

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relationship he could have seen the occurrence as alleged in  the house of his wife.  That is not the end of the matter.  In his  cross examination he further stated that the incident  happened in the small lane in front of the house of his wife.  This is at clear variance with the statement that the  occurrence took place inside the house where allegedly he, the  deceased, his son-PW2 and daughters PWs. 3 and 6 were  present.  That is not the final say of the witness.  He accepted  that in the FIR (Ex. B1) he had stated the place of occurrence  to be the house of the deceased.  Though the FIR is not a  substantive evidence yet, the same can be used to test the  veracity of the witness. PW1 accepted that what was stated in  the FIR was correct.  When the place of occurrence itself has  not been established it would be not proper to accept the  prosecution version.

Above being the position the High Court was not right in  lightly brushing aside the apparent inconsistencies and  discrepancies by making a general observation that the PW1 is  an illiterate person.  Above being the position the impugned  judgment of the High Court is set aside.  The accused be set at  liberty forthwith unless he is required to be in custody in  connection with any other case.

       Appeal is allowed.