Mani @ Udattu Man & Ors. v. State Rep. by Inspector of Police

Judgment

[2009) 2 S.C.R. 1210 MANI @ UDATTU MAN & ORS. v STATE REP. BY INSPECTOR OF POLICE Criminal Appeal Nos. 382-384 of 2009 FEBRUARY 25, 2009 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860 - s. 302 - Murder - Accused forming unlawful assembly - and armed with. dangerous weapons inflicted fatat injuries to deceased - Previous enmity between parties - Accused also threatened family members of deceased - Incident witnessed by mother of deceased - Conviction u/s. 302 by courts below on basis of evidence of mother even though other prosecution witnesses resiled from their statement - Justification of - Held: Justified - Evidence of mother was trustworthy, and rightly acted upon - It cannot be said that the mother falsely implicated the accused. Maxims - Falsus in uno falsus in omnibus - Meaning of - Applicability in India - Stated. Criminal law - Duty of court - To separate grain from chaff - Administration of justice. Evidence - Normal discrepancies and material discrepancies - Distinction between. Prosecution case was that accused persons were implicated in the murder case of B-son of PW1 and were acquitted. Thereafter, acc'used persons armed with knives came to the house of PW1 and threatened to kill P, other son of PW".'

1Next day accused came to the house of PW- . 1, chased ,,P. and killed him. PW-1 and PW-2-daughter-inlaw, followed the accused'. They witnessed the incident. The courts below convicted all the accused except 8th accused u/s. 302 IPC. Hence the present appeals. MANI @ UDATTU MAN & ORS. V. STATE REP. BY INSPECTOR OF POLICE Dismissing the appeals, the Court HELD: 1.1 In the instant case, in the examination of PW1, it has been stated that, in the morning the accused armed with knives had come and threatened to kill P and that is the night when P came. She told him that he shouid go and hide himself.

On the next day, in the morning, the accused armed with knives came and on seeing them P ran and accused followed him and PW1 alongwith her daughter-in-law PW2 followed and after running for some distance, A2 and A1 cut the deceased on his head with the knife and A3, A4, AG, A5, A7 cut P on the shoulder and other parts of the body and AB was holding P 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 when compared with the complaint, corroborates it and strengthens the prosecution version. On examining 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 M01 series knives. Therefore, on the basis of the evidence of PW1 being trustworthy and believable has been rightly acted upon. [Para 5] [1217-H; 1218-A-E] 1.

2Merely because the accused were investigated in the case of 8, the evidence of PW1 cannot be disregarded. It is seen from the evidence of PW1 that PW1 's other son B had been killed and the accused in the instant case was implicated there also and were acquitted. PW1 also stated that S-6 months after the death 8 of 8 her son P 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, G they killed her sons and that on 8.3.2001 the accused armed with knives came to her house and threatened to kill P and that she informed this to P and that the next day, the accused came to her house, chased P and killed her, it cannot be said that just because the accused were H set free in the case of B, PW1 with the ~wrong intention implicated the .accused in the instant case.

Just because the eye witness to the incident is related to the deceased, the evidence of the said eye witness c-annot be disregarded. When the evidence of the interested 'Witnesses is corroborated by the medical evidence, then the entire evidence of the interested witnesses ought not be rejected on that ground. [Para 6] [1218-G-H; 1219-A-D] Nisar Alli v. The State of Uttar Pradesh AIR 1957 SC 366; Gurucharan Singh and Anr. v. State of Punjab AIR 1956 SC 460; Sohrab s/o Beli Nayata and Anr. V. The State of Madhya Pradesh 1972 (3) SCC 751; Ugar Ahir and Ors. v. The State of Bihar AIR 1965 SC 277; Zwinglee Ariel v. State of Madhya Pradesh AIR 1954 SC 15; Ba/aka Singh and Ors. v. The State of Punjab 1975 (4) SCC 511; State of Rajasthan v. Smt Kalki and Anr. 1981 (2) SCC 752; Krishna Machi and Ors. v. State of Biharetc. 2002 (6) SCC 81; Sucha Singh v. State of Punjab 2003 (7) SCC 643; 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 Venugopa/swamy v. State of Andhra Pradesh 2004 (10) SCC 120; Syed lbahim v. State of A.P 2006 (10) SCC 601; Balakram and Ors vs. State of UP AIR 1974 SC 2165; Ushamubalu Sakdu vs. State of Maharashtra AIR 1976 SC 557 - relied on. Case Law Reference · Af R 1957 SC 366 Relied on. Para 4 AIR 1956 SC 460 Relied on. Para 4 1s12 (3) sec 751 Relied on. Para 4 AIR 1965 SC 277 Relied on. Para 4 AIR 1954 SC 15 Relied on. Para 4 1s1s (4) sec s11 Relied on. Para 4 MANI'@ UDATTU MAN & ORS. V. STATE REP. BY 1213 INSPECTOR OF POLICE 1981 (2) sec 752 .Relied on. Para 4 2002 (6) sec 81 Relied on. Para 4 2003. (7) sec 643 Relied on. Para 4 2004 (4) sec 158 Relied on. Para 4 2004(10) sec 443 Relied on. Para 4 2003 (12) sec 449 Relied on. Para 4 2004 (10) sec 120. Relied on. Para 4 2006 (10)·SCC 601 Relied on. Para 4 AIR 1974 SC 2165 Relied on. Para 6 AIR 1976 SC 557 Relied on. Para 6 CRIMINALAPPELLATE JURISDlCTION :

Criminal Appeal D Nos. 382-384 of 2009 From the Judgement and Order dated 27.07.2006 of the Hon'ble High Court of Judicature at Madras in Criminal Appeal Nos. 279, 438 & 446 of 2004. I Prasanthi Prasad, for the Appellants. S. Thananjayan, for the Respondent. The Judgement of the Court was delivered by DR. ARIJIT P_ASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of the Division B.ench of the Madras High Court dismissing the appeal field by the appellants who were convicted for offences G 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 I who were convicted by the VII Additional Sessions Judg~, two separate appeals were filed .

3Prosecution version as unfolded during trial is as follows : f?W-1 who is Murugammal the mother of the Prabha (hereinafter referred to as the 'deceased') in this case 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 t,hat 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 Pr.abha from the house and that the I 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 and r~st of the accused together ran away from these 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 Ex.P-1 complaint and the knives exhibited in this Court were used by the accused to murder her son and the said 7 knives were the M.0.1 series. I As per -the chargesheet filed by the SHO of P-6 Kodunkaiyoor Police Station, Chennai, against the accused, the accused.

Prabha was residing within the limits 9f the Kodungayoor Plice Station, and that the accused were c;tlso resic!ing in th~ same area. The accused had previous enmity due lo which they had murdered Babu, the brother of Prabha, and 'that the family members of the accused were being threatened and due to this reason, all 'the accused with the common intention of committing the murder of Prabha, formed MANI@ UDATTU MAN & ORS. V. STATE REP. BY 1215 an unlawful assembles and armed with dangerous weapons like A 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 B 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 he accused are gui.lty for offences under Sections c 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 320 I PC and on being questioned the accused pleaded not guilty and demanded trial. To establish the charge against the accused, the i prosecution, examined fifteen witnesses and exhibited P-1 to P-28 and marked M.0.1 to M.0.16. Placing reliance on the ev_idence of PW.1, the conviction · F 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 prose.cution 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 [2009] 2 s.c.R: A 1, A3, A4 and A 7. Learned counsel for the respondent supported the judgment of the trial C:ourt and the High Court.

4It 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 note 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 can.not be branded as liar(s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxini 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 n:iandatory 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 whol~ 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, how.ever, 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 followas a matter of law that it must be disregarded in all respect as well. The eyidence has to be shifted with care.

The aforesaid dictum is not a sound rule forlhe reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or . jt MANI @ UDATTU MAN & ORS. V STATE REP. BY at any rate exaggeration, embroideries or embellishment. (See A Sohrab s/o Beli Nayata and Anr. v. The State of Madh~a 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 B 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, c 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 Ba/aka 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) sec 752], normal 0 discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse Qf 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 E 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~{,. r'W~se aspects were highlighted in Krishna Machi and Ors. 1.V~t3~e 0br Bihar etc. [2002 (6) sec 81) and in Sµcha Singh J'·'sfiJYe-ot F 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], Gor/e S. Naidu y.

State of Andhra Pradesh [2003 (12) SCC 449], Gubbala Venugopalswamy v. State of Andhra Pradesh [2004 (10) SCC G 120] and in Syed lbahim v. State of A.P [2006 (10) SCC 601].

5In the examination of PW1, it has been stated that on 8.3.2001, in the morning the accused armed with knives had come and threatened to kill Prahha and that is· the night when H· Prabha came. She told him that he should go and hide himself and late on 09.03.2001 at 5.30A.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 A 1 Mani cut the deceased on his head with the Kaif and A3 Cheyya, A4 Muthukumar and A6, Motilal Babu, AS, 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 0 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 M01 series knives.

Therefore, on the basis of the evidence of PW1 being trustworthy and believable has been rightly acted upon . . , , 6" }Nith regard to the argument of the accused that, in the m_~JCiAf.'-8ase of Babu the brother of deceased Pra.bha, the ac¢M~s~~Pf/n the present case were also implicated and questfoned, 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 bedisregarded. In this context reference may be made to Balakram & Ors Vs. State of UP. (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: PW1: has also stated that 5-6 months after MANI @ UDATTU MAN & ORS. V. STATE REP.

BY 1219 the death of Babu, her son Prabha was killed. On considering A 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 B 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 c 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 D witnesses ought not be rejected on that ground.

7We find no merit in the appeals filed by the accusedappellant and accordingly, the appeals are dismissed. N.J. Appeals dismissed .