Jayaseelan vs State Of Tamil Nadu

Jayaseelan .....Appellant

Versus

State of Tamil Nadu ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madras High Court allowing the appeal filed by the State. Challenge in the

appeal was to the correctness of the judgment of learned Sessions Judge,

Madurai directing acquittal of the present appellant. He was charged for

commission of offence punishable under Section 302 read with Section 34

of the Indian Penal Code, 1860 (in short the `IPC'). In fact two persons

were tried in the said Sessions Case. Present appellant is the son of A2. By

the trial court's judgment, A2 was also acquitted. Though State had questioned the acquittal of both the accused persons, leave was granted by

the High Court only in respect of the present appellant i.e. A1.

2. Background facts in a nutshell are as follows:

PW.1 is residing at Paloothu. The deceased Murugan (hereinafter

referred to as the `deceased') is his sister's son. PW2 is the younger brother

of the deceased. The deceased was also residing in the same place. PW1

knows the accused. Al is the son of A2 and they are also residents of the

same place. The occurrence had taken place on 15.1.1990 around 5.00 p.m.

It was a festival day (the day following the festival of Pongal, which falls on

14.1.1990). On that day, PW 1 went towards the house of one Chellappa

Thevar and he was standing there for some time. The house of Chellappa

Thevar is in the middle street of the said village. The deceased was coming

from north to south in that road bringing two bulls. As already stated, on the

day in question, the festival related to washing the bulls; decorating them;

painting the horns and then after garlanding the same, they would be taken

around the town in a joyous manner. A2 was coming behind the deceased

with a stick in his hand. He was just swinging the stick around his body. Al

was proceeding from south to north in the same road and he was armed with

2 a knife. With that knife, he stabbed on the left side of the chest of the

deceased and ran towards south. The victim tumbled on his feet in the street.

On seeing this, P.Ws.l and 2 ran towards him and gave their hand of

support. One other person by name Chinnasamy also witnessed the

occurrence and he gave a hot chase to Al. The injured, who by then had lost

his consciousness, was put on a cart and taken to the private hospital of one

Anbalagan by PWs. 1 and 2. But the Doctor was not available there and

Murugan breathed his last outside the hospital itself while he was in the

cart. Immediately, PWs. l and 2 reached the police station, taking the dead

body in that cart. PW.6 was the Sub Inspector of Police in the Police Station

during the relevant time, before whom, PW 1 gave the complaint. Ex.Pl is

that complaint attested by PW.2 and one Chinnasamy, who accompanied

them. There was an earlier incident regarding the construction of a house

between A2 and the father of the deceased. During the occurrence in the

present case, the shirt and dhoti of PW.1 became blood stained and the shirt

of PW2 also became blood stained. The personal wearing apparels of PWs.

1 and 2 were produced at the police station. MOs.l and 2 are the shirt and

dhoti of PW1 and after getting change dress from his house, he surrounded

them at the police station. M03 is the weapon of offence in the hands of A1,

which he used in inflicting the fatal injury on the deceased. He was

3 examined during inquest by the investigating Officer. P.W.2 had also given

evidence in total corroboration to the oral evidence of PW1 on all material

aspects as referred to above. He stated that, MOs.4 and 5 are his shirt and

lungi, which he handed over at the Police Station, after getting change dress

from his house. He was examined during inquest. PW.3 witnessed the

preparation of Ex.P.2/ observation mahazar as well as the recovery of MOs.

under Ex at 7.30 a.m on 16.1.1990.

The medical officer was of the opinion that the deceased appeared to

have died on account of the stab wound over the vital organ, namely heart.

The trial court did not accept the prosecution version and directed acquittal

primarily on the following grounds:

(1) There is an inordinate delay in lodging the complaint with the police:

(2) There are materials to show that the complaint was prepared after deliberations and discussions;

(3) There is delay in sending the material records to the court;

(4) A1 had an injury and that had not been explained by the prosecution, which affects their case in toto.

4 The said acquittal was primarily on the ground that there was delay in

lodging the FIR, and that the injury on the accused was not explained. The

High Court found that in view of the evidence of PWs 1 & 2 the trial court

was not justified in directing acquittal. It was noted that the occurrence had

taken place around 5 PM and immediate concern was to render medical

assistance. The complaint was lodged around 7.30 PM. Further injuries on

A1 were of superficial nature and therefore, the trial court was not justified

in directing acquittal. It was further noted that if there was any delay in the

investigation that was not sufficient to discard credible oral evidence of

PWs. 1 & 2.

Accordingly, the acquittal was set aside and the life sentence was

imposed after recording that the accused was guilty of offence punishable

under Section 302 IPC.

3. Learned counsel for the appellant submitted that there was

unexplained delay in lodging the FIR. The injuries on the appellant were

not explained and in view of the fact that the co-accused A2 was acquitted

on the same set of evidence, the High Court ought not to have allowed the

5 appeal. The evidence of the eye witnesses cannot be said to be totally

without possibility of false implication.

4. As noted above, there was no delay in lodging the FIR as has been

rightly noted by the High Court in view of the factual scenario highlighted.

Additionally, the injuries on the accused were of very minor nature and

superficial.

5. 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 the 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

6 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

7 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 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

8 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], Gubbala Venugopalswamy

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

State of A.P. (2006(10)SCC 601).

6. Above being the position, the absolutely confusing judgment of the

trial court has been rightly interfered with by the High Court. We found no

substance in this appeal, which is accordingly dismissed.

........................................J.

(Dr. ARIJIT PASAYAT)

.........................................J.

(ASOK KUMAR GANGULY)

9 New Delhi,

February 11, 2009

10