Dalbir Singh vs State Of Haryana

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 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 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

9 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 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 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 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 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

14 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

15