Mani @ Udattu Man & Ors vs State Rep.By Inspector Of Police

Mani @ Udattu Man & Ors. ....Appellants

Versus

State rep. by Inspector of Police .... Respondent

JUDGMENT

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

2 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

3 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.

4 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

5 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

6 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

7 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

8 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.

9 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)

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

11