Dalbir Singh Vs. State of
Haryana [2008] INSC
936 (15 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 899 OF 2008 (Arising out of
SLP (Crl.) No. 3613 of 2007) Dalbir Singh ..Appellant Versus State of Haryana
..Respondent
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to
the judgment of the Division Bench of the Punjab and Haryana High Court
dismissing the appeal filed by the appellant who was convicted for offence
punishable under Section 302 of the Indian Penal Code, 1860 (in short the
`IPC'), and Section 148 of IPC. He was sentenced to undergo RI for life and one
year respectively for the two offences.
3. This is one of the cases of a
nature which are increasing by leaps and bounds i.e. commission of offence for
property.
In the instant case the key player
is the appellant Dalbir (hereinafter referred to as the `accused') who killed
his uncle Ram Pratap (hereinafter referred to as the `deceased') and the key
witness is Surja Ram (PW8), the grandfather of the accused.
4. Flittering out unnecessary
details the case of the prosecution is as follows:
On 17.5.1995 on receipt of a ruqa
from the doctor, CHC Rania, regarding admission of injured Ram Partap (since
deceased), Sub Inspector Ram Partap, visited the hospital 2 where the doctor
produced before him a ruqa regarding death of Ram Partap, Surja Ram,
complainant, father of the deceased, was found present there near the dead
body. He made a statement to the effect that he had two sons, namely Banwari
and Ram Partap. Banwari had two sons, namely, Dalbir the accused and Om
Parkash. Banwari had already died two years ago. Ram Partap used to reside with
him and they also owned landed property in village Mameran, where family of Ram
Partap used to reside and cultivate the land. His deceased son Ram Partap had
come to him three-four days earlier for thrashing the wheat and when they were
thrashing the wheat, at about 9.30 p.m. after stopping the operation of
thrasher, Ram Partap went to nearby canal for taking a bath.
After some time, a jeep came and
stopped near the bank of the canal and in the meanwhile, five-six persons came
down from the jeep and went near Ram Partap. Accused Dalbir Singh raised a
lalkara to Ram Partap deceased that he should be taught a lesson for
cultivating the land of his grand father.
Complainant recognized the voice
of Dalbir and rushed 3 towards them and saw that Dalbir had a tangli in his
hands, whereas other persons were armed with lathi, jallis and gandasis and were
causing injuries on his son Ram Partap. He raised an alarm as to why they were
attacking Ram Partap and on seeing him, all the assailants ran away with their
respective weapons in the said jeep and he did not know the names of the
remaining persons. He further disclosed that the relationship between them and
Dalbir was strained, as he wanted to take share of his land. His son became
unconscious due to the injuries suffered by him. He went to village for making
arrangement of a jeep of one Sukh Ram at about 12.00 during night he shifted
Ram Partap to CHC Rania for medical treatment, where doctor treated Ram Partap
and during treatment he succumbed to his injuries. Dalbir alongwith his
companions caused injuries to his son without any right. On the basis of this
statement, Ex. PD/1 and an endorsement made by Sub Inspector Amar Singh
thereon, a case was registered against the accused. The Investigating Officer
started the investigation, recorded statements of the 4 witnesses and
thereafter sent the dead body for autopsy.
Dr. Dharambir Singh conducted post
mortem examination on the dead body of Ram Partap the deceased and found ten
injuries on his person. He disclosed the cause of death to be due to shock and
hemorrhage as a result of injuries to vital organs, which were ante mortem in
nature and sufficient to cause death in the ordinary course of nature. Sub
Inspector Amar Singh went to the place of occurrence and lifted blood stained
earth from there and sealed the same in a parcel and took it into possession after
preparing recovery memo of the same. He also recorded the statements of Kamla,
the widow and Durga, the daughter of Ram Partap deceased on the same day. From
their statements, it was revealed that in the evening on the previous day at
about 7 P.M., they were going to the fields to serve meals to Ram Partap Surja
and others, who were thrashing the wheat in the fields. When they passed near
the house of Dalbir accused, they saw a jeep bearing No.HR-44A 0856 standing in
his courtyard and there Pala Jani, Sube Singh, Krishan, Kuldeep and Parkash,
all 5 accused, were talking to each other. They were known to these witnesses.
Two persons were sitting in the jeep and when these witnesses were returning
from their fields towards home and reached near the culvert of canal, the same
jeep came near them and stopped. From the side of the jeep, Dalbir asked them
about the whereabouts of Ram Partap, and they told him that he was in the
fields. Then Dalbir asked Madan to take the vehicle ahead. In the meantime, one
person got down the jeep for urinating and when the jeep started Sube Singh
called him by the name of Devi Lal to come immediately and then all of them
occupied their seats in the jeep and went.
They had seen all the persons in
the house of Dalbir in the evening and these witnesses came to know that during
night hours Dalbir and others had caused injuries to Ram Partap, who died later
on. After completion of necessary formalities, accused were sent up for trial.
6 Accused were charge sheeted for
offences punishable under Sections 302 and 148 read with Section 149 IPC to
which they did not plead guilty and claimed trial.
The Trial Court placed reliance on
the evidence led, more particularly, PW8 and directed conviction and imposed
sentences as aforenoted so far as appellant is concerned and directed acquittal
of co-accused. In appeal, before the High Court the main stand taken was that
PW8 had undergone eye operation about two years prior to the date of occurrence
and in dark night there was no scope for identification. The High Court did not
accept the stand and held that identification 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.
Back
Pages: 1 2 3
