Sri Mukunda Deka vs State Of Assam And Anr
2021 Latest Caselaw 2087 Gua

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GAHC010264332019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./433/2019

            SRI MUKUNDA DEKA
            S/O LATE RATNESWAR DEKA, R/O VILLAGE NIZ-NAMATI (TALUKDAR
            CHUPA), P.S. TIHU, DISTRICT NALBARI, PIN 781348, ASSAM



            VERSUS

            STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, GOVT. OF ASSAM

            2:SMTI. CHANDRAMA DEKA
            W/O HAMEN DEKA
             RESIDENT OF VILLAGE- NIZ-NAMATI (TALUKDAR CHUPA)
             P.S. TIHU
             DISTRICT NALBARI
             PIN 781348
            ASSA

Advocate for the Petitioner   : MR. J KALITA

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                      HONOURABLE MR. JUSTICE SUMAN SHYAM
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        JUDGMENT

Date : 07-09-2021

Heard Mr. J. Kalita, learned counsel appearing for the appellant. Also heard Ms. B. Bhuiyan, learned Additional Public Prosecutor for the State of Page No.# 2/18

Assam

2. This is an appeal u/s 374(2) of the Code of Criminal Procedure against the judgment and order dated 26.09.2019 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 110/2013, convicting the appellant u/s 302/324/323 of the IPC. For the offence u/s 302 of the IPC, the appellant was sentences to undergo R.I. for life and to pay fine of Rs. 10,000/- in default R.I., for six months, for the offence u/s 324 of the IPC, the appellant was sentenced to undergo R.I. for two years and to pay fine of Rs. 3,000/- in default S.I. for two months. Lastly, for the offence u/s 323 of the IPC, the appellant was sentences to pay a fine of Rs. 1,000/- and in default of payment of fine he was sentence to undergo simple imprisonment for one month. The sentences were directed to run concurrently.

3. The facts necessary of this appeal are-

On 11.09.2012 Smt Chandrama Deka (PW3) had lodged an FIR stating that on 10.09.2012, at about 3 pm, while her father-in-law Anil Deka ( the deceased) was having bath near the tube well within his property, the appellant had verbal dual with him. It is stated in the FIR that the argument took place on the issue of construction of a boundary fencing, which was done by the deceased. In the mean time, Hamen Deka (PW 6), the son of the deceased arrived there. Infact, he took side of his deceased father. Suddenly, the appellant whipped out a dao and dealt a blow on PW6 on the back side of the neck. After sustaining injuries PW 6 retreated and returned home. Thereafter, the appellant dealt two dao blows on the head of the deceased. The appellant also allegedly dealt a third blow on the neck of the deceased.

4. The two wives of the deceased namely, Smt Bano Deka (PW8), and Smt Usha Deka (PW7) also arrived at the place of occurrence at the relevant time. On seeing them, Smt Pulu Deka, the wife of the appellant, Utpal Deka and Pankaj Deka, the minor sons of the appellant also appeared at the place of occurrence. The informant Page No.# 3/18

has alleged that Pulu Deka, Utpal Deka and Pankaj Deka were holding spears and sticks and these three persons attacked Usha Deka (PW7) on her back and gave her piercing wounds. The informant has further alleged that Smt Pulu Deka assaulted PW8 with a stick. In an 108 ambulance, the injured was taken to Nalbari Civil Hospital, where doctors declared Anil Deka dead.

5. The dead body of Anil Deka was subjected to Post-Mortem examination. The relevant part of Post-Mortem examination report goes like this:

A male dead body of average height seen in the morgue. Eyes are closed, mouth is closed. Rigor mortis present. Body is cold on touch, hypothesis is present over the back. One lacerated injury about 10 cm x 2.5 cm x bone deep over left parietal region. Dry blood clot over the injury present which regist washing with flowing water.

Cranium and Spinal Canal: - Scalp, skull injury already described. Left parietal bone is fractured. Subdural haemorrhage is present over left cerebral hemisphere. Brain congested, Spinal cord not examined.

Opinion: - In my opinion death was due to coma as a result of head injury as described. Injury antemortem in nature and caused by blunt force impact.

6. Sri Hamen Deka ( PW6), the medical report of PW6 goes like this :

" On examination there was clean cut wound over nuchal region (Back side of neck). Size about 3 inch length, breath/depth 1 inch. Stitching done. Advice for X- Ray cervical vertebra and CT Scan brain. Patient was admitted in male surgery ward. On X-Ray report no fracture seen within normal limit". Nature of Injury is simple cut injury caused by sharp weapon. Age of injury is fresh".

7. For Usha Deka (PW7) the Doctor's reports goes like this:

" on examined clean cut wound over forehead 3 inch long half inch Page No.# 4/18

depth breath, deep injury over chest left side size 5 cm breadth and depth 2 cm, simple cut injury over back size 10 cm are found, stitching done admitted in female ward under surgical department. Investigation advised for PA view, chest x-Ray, CT, Scan brain. X-Ray report, PA view within normal limit. C.T. Scan brain report not submitted. Nature of Injury is simple cut injury caused by sharp weapon.

6. Smt Bano Deka (PW8) also subjected to medical examination and the Doctor's report of PW8 goes like this:

"The patient was admitted in emergency Regd. No. 50033. On examination abrasion over left wrist joint and left hand, size about 3 cm and tenderness over back side of chest is noticed. Conservative treatment was provided and patient was advised X-Ray PA view chest. X-Ray left wrist joint. X-Ray report not submitted during the time of reporting. Injury is simple. Age of injury is fresh. Injury is caused by blunt object".

8. It may be stated that Hamen Das (PW6) was not examined by any Doctor during investigation period. Finally, on conclusion of investigation, Police filed charge- sheet against the appellant and his wife Smt Pulo Deka. On the date of occurrence, their sons Pankaj Deka and Utpal Deka were juvenile. Therefore, they were referred to the Juvenile Justice Board.

9. The trial Court framed charges u/s 302/324/323 of the IPC read with section 34 of the said Code, against the appellant and his wife Pulu Deka. On being read over the charges, both the accused persons pleaded not guilty and claimed to stand the trial.

10. The Prosecution side examine twelve witnesses in order to prove the charges against the appellant and his wife. They did not adduce any defence evidence.

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Therefore, on the basis of the evidence on record the trial Court convicted the appellant u/s 302/324/323 of the IPC. The Court found Smt. Pulu Deka to be not guilty and she was acquitted. On being aggrieved by the aforesaid judgment, the instant appeal has been filed.

11. We have carefully gone through the prosecution evidence.

12. The first prosecution witness is Sri Pankaj Deka (PW1). He is the neighbour of the informant. His house is situated at a distance of 30 meters from the place of occurrence. At the time of occurrence, this witness was present in his house. PW1 has stated that the house of the deceased is situated adjacent to the house of the appellant. PW1 stated that at the time of occurrence, the appellant was having argument with the deceased. PW1 claimed that the heated exchange of words between the appellant and deceased took place in front of his eyes. PW1 saw the incident from his varandah. PW1 also deposes that at that time, the appellant was carrying a bag. PW1 further deposed that during heated exchange of words, the deceased was accusing the appellant that he had obstructed a path.

13. PW1 has stated that in the midst of the said argument, the appellant dealt a "dao" blow on the head of the deceased, for which, the deceased fell down. On seeing that incident, the PW1 rushed to the spot and called a 108 ambulance. According to PW1 the ambulance came and the attendant of the ambulance declared the deceased to be dead. PW1 has stated that inspite of the aforesaid declaration by the attendant of the ambulance, the deceased was taken to the Civil Hospital.

14. During the cross-examination, The PW1 has stated though he was witnessing the appellant and the deceased arguing with each other, he never came forward to interfere. PW1 further stated that when he reached the place of occurrence, the appellant had left the place. The PW1 has further stated that the varandah of his house is covered with an iron grill and through the holes of the grill, he saw the Page No.# 6/18

occurrence. PW1 has admitted that he did not state before police that he had witness the occurrence from his varandah.

15. The second prosecution witness is Jotin Deka (PW2). His residence is situated at a distance of about 300 meters from the house of the appellant. At the time of occurrence, PW2 was in his house. PW2 has stated that on the day of the occurrence, at about 6.30 pm, the police came to his house and took him to the house of the appellant. According to PW2, at that time only, he came to know that the appellant had killed the deceased.

16. In his cross-examination, PW2 has stated that the house of the appellant and the deceased are situated within the plot of a land comprising of 7 bighas.

17. The third prosecution witness is the informant, Chandrama Deka (PW3). She claims to be an eye witness. PW3 has stated that Smt Pulu Deka, the wife of the deceased, had an argument with her husband, Hamen Deka (PW6). PW3 has stated that Smt Pulu Deka was objecting to the erection of a wall. PW3 has further stated that while Smt Pulu Deka was arguing with PW6, the appellant was not present there at that time. The PW3 deposed that Smt Pulu Deka had called the appellant and he came there. According to PW3, the appellant had joined his wife Smt Pulu Deka and started arguing with PW6. The PW3 further deposed that when the appellant came to the place of occurrence, he was carrying a bag, which contained a "dao".

18. The PW3 has stated in her evidence that suddenly, the appellant took out a "dao" from his bag and dealt a blow to PW6 on the left side of his neck. The PW3 claimed that the incident took place infront of her eyes. The PW3 then stated that on seeing his son (PW6) sustaining injury, the deceased came forward and brought PW6 home and after leaving the PW6 in the house, the deceased went out from the house and confronted the appellant. According to PW3, this time, the appellant dealt a "dao" blow upon the deceased and the deceased collapsed on the ground. The PW3 has further stated that when the deceased fell down on the ground, the Page No.# 7/18

appellant again dealt multiple "dao" blows on the head of the deceased. The PW3 has stated that in the mean time, Smt Pulu Deka and her son, Utpal Deka arrived on the spot and they pierced private parts of the deceased with a spear. PW3 has disclosed that the deceased, after being hit by the appellant, Pulu Deka, Utpal Deka, managed to leave the place of occurrence and on reaching near the tube well, he died. PW3 has stated that at the time of occurrence, Smt Bano Deka (PW8), who is one of the wives of the deceased, was with the deceased and she was also attacked by Pankaj Deka, the other son of the appellant with an iron rod.

19. During the cross-examination, PW3 has stated that she did not remember who had written the FIR. She has stated that PW5, being Gaonbura of her village, helped her in writing the FIR. PW3 has also stated that the appellant came out of his house with a bag containing a "dao" and with that "dao", he had attacked her husband (PW6), on the left side of his neck.

20. The fourth prosecution witness is Taru Deka (PW4). She arrived at the place of occurrence and she noticed cut injury on the head of the deceased.

21. Her cross-examination consists of three sentences only. She has stated that houses of the appellant and the deceased are adjacent, though there is a gap in between. She further stated that when she had reached the place of occurrence, she never met the appellant there.

22. The fifth prosecution witness is Jogesh Chandra Talukdar (PW5). He is a village Gaonbura. On the day of occurrence, at about 2.30 pm, he had heard that a quarrel took place between the appellant and the deceased. At about 5pm, he went to the place of occurrence. PW5 has stated that on being instructed by police, he assisted the PW3 in lodging the FIR.

23. The appellant did not cross-examine this witness.

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24. The sixth prosecution witness is Hamen Deka (PW6), who is the husband of PW3 and the son of the deceased. He deposed in his evidence that on the day of occurrence, at about 3.30 pm, the appellant was going somewhere with two masons and on that point of time, his father i.e the deceased arrived home. PW6 has stated that on seeing the appellant, the deceased asked him to pay money. According to PW6, on a prior occasion, the son of the appellant had caused injury to the deceased and therefore, the appellant promised the deceased that he would pay monitory compensation for the act of his son. PW6 pointed out that this is the reason why his father reminded the deceased about his promise and asked him to pay the money. According to PW6, the deceased suddenly took out a "dao" from his bag and with the other hand pushed the deceased. PW6 has stated that when he saw that incident, he immediately went near the appellant and the deceased and at that point of time, the appellant, dealt a dao blow on the left side of his neck. According to PW6, Smt Pulu Deka, the wife of the appellant also came forward with a stick in her hand and Sri Utpal Deka, the son of the appellant came with a spear in his hand.

25. PW6 has further stated that the appellant had dealt a "dao" blow on the head of the deceased and Utpal Deka stabbed him in his private parts. PW6 has deposed that Utpal Deka, the son of the appellant had also stabbed his step mother (PW7) with a spear on her belly. PW6 lastly stated that Smt Pulu Deka and Sri Pankaj Deka, the other son of the appellant had assaulted his mother Bano Deka (PW8).

26. During cross-examination, PW6 has stated that at the time of the occurrence, the two masons, about whom he has referred to in his examination-in-chief, were not present at the place of occurrence. PW6 has stated that one of the two masons was known to him and his name is Karuna Kalita. PW6 disclosed that at the time of the actual occurrence, no other persons were present there. According to PW6, his wife (PW3) had arrived home from her uncle's house at Bhella just prior to the occurrence.

27. PW6 further deposed in his cross-examination that he did not tell PW3 anything Page No.# 9/18

about the occurrence before she had lodged the FIR. PW6 has claimed that after he had sustained the injury on his neck, he covered the same with "gamosa". According to PW6, when his father having the altercation with the appellant, his step mother (PW7) and his own mother (PW8) were present at the place of occurrence. He also stated that at that time, his wife (PW3) was standing in the courtyard of the house. PW6 further stated that when he noticed that the appellant had pushed his father/deceased, he went forward to save his father.

28. The seventh prosecution witness is Usha Deka (PW7). She is one of the wives of the deceased and the step mother of PW6. In her evidence she deposed that she had seen the appellant dealing "dao" blow on the back side of the neck of PW6. PW7 has further stated that at the time of the occurrence, the informant (PW3), PW8, the deceased, the appellant, Smt Pulu Deka and her two sons namely, Utpal Deka and Pankaj Deka were the only persons present at the place of occurrence. PW7 further stated that the appellant had dealt one dao blow on her head and one on her back. She has claimed that Utpal Deka also caused injury on her chest with a spear. According to PW7, she immediately lost consciousness and after two days of the occurrence, she regained her sense in the hospital.

29. In her cross-examination PW7 has stated that hence she lost consciousness, she does not know what happened to her husband/deceased.

30. The eight prosecution witness is Smt Bano Deka (PW8). She is the mother of PW6 and one of the wives of the deceased. She has stated in her evidence that at the time of the occurrence, she was busy in her kitchen and on hearing hue and cry outside, she came out and arrived at the place of occurrence. She noticed that the appellant, his wife Smt Pulu Deka and their two sons namely, Utpal Deka and Pankaj Deka were with PW6 and the deceased. PW8 has claimed that she had noticed that the appellant had dealt a dao blow on the neck of her son/PW6. PW8 has also claimed to have seen the appellant dealing "dao" blow on the head of the deceased. According to PW8, She had seen Utpal Deka piercing the private parts of Page No.# 10/18

the deceased with a spear. She further stated that Pankaj Deka, the other son of the appellant had hit on her back with an iron rod. PW8 deposed that Utpal Deka the other son of the appellant had inflicted injury on the chest of PW7 with a spear. She further stated that the appellant himself had dealt a dao blow on the back of the PW7.

31. In her cross-examination, the PW8 stated that she had seen the appellant dealing dao blow upon PW6. She however has stated that she saw the incident through betel nut tree fencing. PW8 has further deposed that at that point of time, she had noticed that her husband was already lying on the ground in an injured condition. PW8 has claimed that PW7 was also assaulted but she never said as to who assaulted PW7. PW8 has further deposed that she did not notice on which part of the body of her husband, the appellant inflicted the injury.

32. The ninth prosecution witness is the Dr. Tirtha Nath Sarma (PW9), who had conducted the post-mortem examination upon the dead body of the deceased. He spoke about his report.

33. In his cross-examination, PW9 has admitted that in his report he did not mention whether the death of the deceased was homicidal in nature. He also admitted that he did not mention the duration of death of the deceased.

34. The tenth prosecution witness is the Dr. Jayanta Tamuli (PW10), who had examined PW6, PW7 and PW8 on police requisition and proved his report.

35. During cross-examination, the PW10 has stated that abrasion can be caused due to scuffle. So far as the injury of PW6 is concerned, the PW10 has stated that such injury might be caused due to a fall on a sharp edged weapon if it is placed obliquely.

36. The eleventh prosecution witness is Mr. Ratna Kanta Sarma (PW11), who is a Page No.# 11/18

police officer. On 12.05.2013, while he was working as the officer-in-charge of Tihu P.S., he had received the case diary of this case from his predecessor, Sri, Tridip Kr. Dutta. PW11 has stated that after going through the case diary, he found that his predecessor had already completed the investigation and therefore, on the basis of the materials gathered by his predecessor, he filed charge-sheet.

37. The appellant did not cross-examine this witness.

38. The twelfth prosecution witness is the police investigating officer Mr. Tridip Kr. Dutta (PW12). He spoke about his investigation.

39. He proved that the PW1 did not state before him that he had witnessed the occurrence from his varandah. He corroborated the statement of PW3 by stating that u/s 161 Cr.P.C., the PW3 had stated before him that the appellant had dealt a "dao" blow on the neck of PW6. He, however, stated that PW3 never told before him that PW6 has sustained the cut injury on the left side of his neck. PW12 further confirmed that PW3 never stated before him that she had witnessed the incident while standing in the courtyard. PW12 further deposed that PW3 never stated before him that after PW6 had sustained injury on his neck, the deceased brought him home and thereafter, went out to confront the appellant. PW12 confirmed that the PW3 never stated before him that the appellant and his wife Pulu Deka and his son Utpal Deka had assaulted the deceased in his private parts by means of a spear. PW12 further confirmed that PW8 did not tell him that the appellant had caused injury to the private parts of her husband/deceased.

40. On meticulous examination of the prosecution evidence, we find that there is no denial that the deceased died due to ante-mortem head injury that was caused by a blunt force impact.

41. The question is whether the appellant had caused the death of the deceased. Here, PW1, PW3, PW6, PW-7 and PW8 have claimed to be eye witnesses. We find that there is nothing in the evidence of PW1 to hold that he has deposed false evidence.

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42. It appears that the PW3 has embellished her evidence. She claims to have seen that the appellant causing cut injury on the neck of her husband/PW6 but the PW6 has stated in his evidence that he did not tell anything to her about the occurrence, before she had filed the FIR. The occurrence took place on 19.09.2012. The PW3 has stated in her evidence that on that day, she had gone to Bhella, to visit her uncle. She has claimed that she returned home just prior to the occurrence. PW6 has also stated that his wife i.e PW3 returned home just prior to the occurrence. But in spite of that, PW3 was not shown the wound on the neck by PW6. Therefore, the evidence of PW3 seems to be doubtful on the point that she had arrived home just prior to the occurrence. This opinion is bolstered by the fact that though the incident took place at about 3 pm on 19.09.2012, but the FIR was lodged next day by PW3. We are of the opinion that the evidence of PW3 failed to inspire confidence.

43. So far as the evidences of PW6, PW7 and PW8 are concerned, their evidences are supported by the medical evidence of PW10. On the day of occurrence, he had examined the PW6 and found one clear cut wound on the back side of the neck and the PW10 opined that said injury was caused by a sharp weapon.

44. PW7 and PW8 are injured witnesses. Their evidences are also supported by the medical evidence of PW10.

45. These witnesses also embellished their evidences by unnecessary things. But, again the question is, whether embellishments, per se, would make their evidence unreliable. Another aspect of the matter that requires attention is that PW6, PW7 and PW8 are close relatives of the deceased. Is this also is a ground to hold them unreliable.

46. For this purpose, the paragraphs 11,13 and 15 of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, are quoted as under-

'11. In Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under: (AIR p. 366, para 26) Page No.# 13/18

26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case [AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25)

25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in

-- Rameshwar v. State of Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

15. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the 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 a major portion of the Page No.# 14/18

evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the 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 a particular material witness or 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 witnesses cannot be branded as liars. 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 Ali v. State of U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550] ) 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 to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri LJ 827] ). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a 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 respects as well. The evidence has to be sifted 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 v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in Page No.# 15/18

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 M.P. [AIR 1954 SC 15 : 1954 Cri LJ 230] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] .) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390] 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 recently in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri) 1220 : JT (2002) 4 SC 186] . Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned.

47. On the same subject, paragraphs 26 and 27 of Jodhan v. State of M.P., (2015) 11 SCC 52 , are relevant----

26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross-examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting treating the same as improbable or untrustworthy.

27. In this context, it is requisite to quote the observations made by the Court in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri) 886] : (SCC pp. 285-86, para 23)

23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged.

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Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."

48. Regarding the evidentiary value of an injured witness, in Shivalingappa Kallayanappa And ... vs State Of Karnataka (AIR 1995 SC 254) the Hon'ble Supreme Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

49. Again in Bhajan Singh Alias Harbhajan Singh and others v. State of Haryana, reported in (2011) 7 SCC 421, the Hon,ble Supreme Court has held ---

36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kailas & Ors. v. State of Maharashtra, (2011) 1 SCC 793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State of U.P. v. Naresh & Ors., (2011) 4 SCC324).

50. Long back in the year 1965 (AIR 1965 SC 277), the law was settled that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is not a Page No.# 17/18

sound rule of law nor it is a rule of practice. In a criminal trial, in our country, we hardly come across a witness who does not embellish his evidence. Therefore, the duty is cast upon the Court to separate the grains from the chaff.

51. In a criminal trial, the evidence of an injured witness deserves to be given due weightage because there is no reason as to why an injured witness would implicate another person, other than the person who caused the injury. This reasoning is also applicable to relative witness. Why would they implicate persons other than those who killed their close relative. In the instant case, the witnesses, who are related to the deceased had sustained injuries and this fact has been corroborated by medical evidence. It is true that these witnesses embellished their evidence with unnecessary facts. But embellishment in evidence does not make a witness totally unreliable. It is quite natural human tendency that nobody wants a person accused of causing hurt to their close relative, goes without any punishment for that. This is the reason why the witnesses embellish their evidence. Moreover, the evidences of PW6, PW7 and PW8 are clearly corroborated by the evidence of the PW1, who is an independent witness and his evidence inspired confidence. Therefore, we hold that the evidence of PW-6, 7 and 8 also inspired confidence.

52. We are of the opinion, that the prosecution evidence inspired confidence and the offence against the appellant is proved beyond all reasonable doubt. Thus we hereby hold that the learned trial Court has rightly appreciated the evidence and arrived at a correct finding.

52. Therefore, we find that the appeal is devoid of merit. We affirm the impugned judgment and accordingly the appeal stands dismissed.

Send back the LCR.

JUDGE Page No.# 18/18

Comparing Assistant