Mani @ Udattu Man
& Ors. Va. State Rep. by Inspector of Police [2009] INSC 413 (25 February
2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 382-384 OF 2008
(Arising out of S.L.P (Crl.) Nos.7580-7582 of 2007) Mani @ Udattu Man &
Ors. ....Appellants Versus State rep. by Inspector of Police ....
Respondent
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 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 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.
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 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
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], 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 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 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.
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)
...............................................J.
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