JUDGMENT
Imtiyaz Murtaza , J.
1. The present appeal has been filed against the judgment and order dated 22.3.1982 passed by Sessions Judge, Banda in Session Trial No. 326 of 1981 convicting the appellants the appellants Dirpali and Gariba under Section 302 I.P.C. and sentenced to under go imprisonment for life.
2. The brief facts of the case, mentioned in the F.I.R. lodged by Babuwa are tat about one year ago his cousin Sunder was murdered. He along with Chunkauna and Mudwa were made accused. The case is pending in the court. It is stated that on 4.9.1981 he, his brother Kishan Pal, sister-in-law Ram Dulari and father Mudwa were working in the field and after completing the work they were returning home via Ghosar minor. His father was ahead of them. At about 6.00 P.M. his father reached near the field of Mahabir, Dirpali armed with Barchhi came and exhorted to kill him. His father ran and entered in the field of Mahabir and all the three appellants committed his murder. They raised an alarm. They were also threatened. Thereafter the accused persons ran away towards the eastern side. The dead body was lying in the field of Mahabir. He lodged the report on 4.9.1981 at 8.30 P.M. His uncle Jhuriya and Chukidar were present near the dead body. The distance of the police station is only 8 km
3. After registration of the case S.I. Khem Karan started investigation. He recorded the statement of the complainant at the police station. Thereafter he reached at the place of occurrence at 10.00 P.M. He could not prepare the inquest report due to paucity of light. He recorded the statement of Ram Dulari and Kishan Pal. He prepared inquest memo on 5.9.1981 (Ext. Ka-11). He prepared the memo of photo lash (Ext. Ka-12), Chalan lash (Ext. Ka-13), letters (Ext. Ka-14 to Ka-16). He dispatched the dead body for the post mortem through constable Ram Kumar and Pyare Lal. He prepared the recovery memo of the cloths of the deceased (Ext. 1, 2 and 3). He also take blood stained earth and plain earth and prepared its recovery memo (Ext. Ka-10). He also prepared site plan (Ext. Ka-19). After conclusion of the investigation he submitted charge sheet (Ext. Ka-20). The post mortem of the deceased was conducted by Dr. D.S. Rana (Ext. Ka-2). He noted the following ante mortem injuries:
1. Lacerated wound on the left side of skull 1.5 cm x 1 cm x bone deep situated 4 cm above left ear.
2. Lacerated wound on the left side of skull 5 cm x 1 cm x bone deep situated 7 cm above and behind left ear.
3. Lacerated wound on the left side of skull 1.5 cm x 1 cm x bone deep situated 2 cm behind injury No. 2.
4. Lacerated wound on the back of skull on the occipital region of skull 2 cm x 1 cm x bone deep 1 cm below the external occipital protuberance.
5. Lacerated wound on the left side of skull 2 cm x 1 cm x bone deep just adjacent to the middle to the back of left ear pinna. On exposing from injury 1 to 5 subcutanis haematoma with congestion menisgise seen with multiple fracture of left parietal and occipital bone with clotted blood at the ends of fractured bone seen. Brain softened and congested.
6. Contusion on the left side of face 8 cm x 6 cm just adjacent to the left ear. On exposing subeutainis haematoma with fracture of left side of mandible seen.
7. Multiple contusions on the mid of the chest front on the body of the sternum 12 cm x 7 cm situated 4 cm supra sternal notch.
8. Multiple contusions on the right side front of chest in an area 11 cm x 10 cm, 4 cm above and lateral to right nipple.
9. Punctured wound on the left side of chest 3.5 cm x 1 cm x chest cavity deep. Both margins are clean cut. Directed inwards, upwards and towards mid line, situated 4.5 cm below and lateral to the right nipple. On exposing left side thorasi cavity perforated and left side strium of heart and left lung is perforated and clean cut. Thorasic cavity contain about 550 ml. Free and clotted blood.
10. Punctured wound on the left side flank of abdomen 2 cm x 1 cm x abdominal cavity deep. Margins clean cut. Directed inwards upwards and towards midline. On exposing left side abdominal wall perforated, clean cut.
11. Punctured wound on the left side back of abdomen 2 cm x 1 cm x abdominal cavity deep Margins clean cut. Directed inwards and towards front of abdomen situated 6 cm below and towards back of the abdomen to injury No. 10.
12. Four punctured wounds 4 flanged of various size situated on the back of the abdomen maximum by 1 cm x 1 cm x abdominal cavity deep, maximum by 1 cm x 1 cm x abdominal cavity deep, margins lacerated and minimum by 0.75 cm x 0.75 cm x abdominal cavity deep margins lacerated in an area 16 cm x 10 cm situated 19 cm above the tip of coccex directed inwards and towards and towards the front of abdomen.
4. In the internal examination he noted fracture of left temporal parietal and occipital bone of skull. Stomach contained about 100 ml pasty matter. Large and small intestine loaded. In the opinion of the Dr. D.S. Rana cause of death due to shock and hemorrhage as a result of ante mortem injuries.
5. After the conclusion of the investigation the charge sheet was submitted and the case was committed to the court of Session. The prosecution had relied upon 6 witnesses. P.W.1 Babuwa and P.W.2 Ram Dulari are the eye witnesses. P.W.3. Dr. D.S. Rana had conducted the post mortem examination. P.W. 4 Ali Hasan had prepared the chick F.I.R. P.W. 5 constable Ram Kumar had escorted the dead body for the post mortem and P.W. 6 Khem Karan is the Investigating Officer of this Case.
6. The case of the defence is of denial and they had not produced any witness in their defence.
7. The Sessions Judge relying upon the prosecution evidence convicted the appellants as aforesaid and given benefit of doubt to co-accused Triuwa.
8. We have heard learned counsel for the appellants and learned A.G.A. for the State.
9. Counsel for he appellants has challenged the findings of the Sessions Judge on the ground that at the time of occurrence the presence of the eye witnesses are highly doubtful. They are highly inimical and chance witnesses. There is conflict between the oral evidence and in the medical evidence. In order to appreciate the submissions of counsel for the appellants we have to scrutinize the evidence of the witnesses in the light of the submissions made by the counsel for the appellate. The findings of the Sessions Judge are based upon the testimonies of P.W. 1 Babuwa and P.W. 2 Ram Dulari.
10. P.W. 1 Babuwa is the informant and he stated that about 5 months prior to the occurrence at about 6.00 P.M. deceased Mudwa, his sister-in-law Ram Dulari, his brother Kishan Pal were returning after cutting the grass and when they reached near the field of Mahabir the accused namely Tiruwa, Gariba and Dirpali came there. Gariba was armed with Barachhi, Tiruwa armed with Pharsa and Dirpali armed with lathi. They exhorted to kill his father who ran in the field of Mahabir. The accused surrounded him and assaulted. Tiruwa was using Pharsa from the blunt side. After killing the deceased accused persons ran away. He prepared the report in his village and lodged at the police station (Ext. Ka-1). His statement was recorded by the Investigating Officer at the police station and returned along with the Investigating Officer at the place of occurrence at 10.00 P.M. In the cross-examination he stated that he is facing prosecution in the case of murder of Sunder along with Chunkauna. After his release on bail Dirpali had moved an application for cancellation of his bail. He did not know that any case is pending with regard to 7 bighas land against Chandrika and Ram Das. He further stated that the field of Mahabir is one mile away from his house. On the date of occurrence they were cutting grass of his field which is at a distance of 3 furlong from the field of Mahabir. He stated that he did not mention in the F.I.R. that Tiruwa had used Pharsa from the blunt side. He did not mention it the Investigating Officer because he had not been asked. He further stated that when Mudwa fell on the ground Dirpali had given 5-6 blows of lathi. Tiruwa had given 3-4 blows on the blunt side of Pharsa. Gariba had given 4-5 stab injuries of Barachhi.
11. P.W. 2 Ram Dulari had supported the version of F.I.R. She stated that Dirpali armed with Lathi, Tiruwa armed with Pharsa and Gariba armed with Barachhi had surrounded Mudwa in the field of Mahabir and assaulted him with their respective weapons. Tiruwa had assaulted from the blunt side of Pharsa. She further stated when she tried to save Mudwa she was also threatened. In the cross-examination she stated that on the date of occurrence all of them were working in the field. She did not tell the investigating Officer that Tiruwa had used Pharsa from the blunt side. The Investigating Officer had recorded her statement in the mid night.
12. We have gone through the evidence of eye witnesses carefully and find it to be credible. Both the witnesses have explained their presence at the scene of occurrence. The role assigned to the appellants is also corroborated by the medical evidence.
13. The counsel for the appellants challenged the findings of the trial court on the ground that the occurrence took place in darkness and no one had witnessed the occurrence. The F.I.R. is ante timed. He further submitted that presence of witnesses at the place of occurrence is doubtful. They are highly inimical and chance witnesses. There is conflict between direct evidence and medical evidence. Lastly, learned counsel submitted that the trial court acquitted on co-accused Tiruwa and committed illegality in convicting the appellants on the basis of same evidence on which co-accused has been acquitted.
14. According to the prosecuting, report was registered at 8.30 P.M. and occurrence had taken place at 6.00 P.M. The distance of police station is 8 kms. In the statement of the Investigating Officer it has come that when he reached at the place of occurrence the light was not available and after deputing two constables near the dead body he proceeded to the village and recorded the statement of Smt. Ram Dulari and Kishan Pal. He also recorded the statement of complainant at the police station. The statement of P.W. 4 Ali Hasan, Head Moharrir, indicates that he prepared the chick F.I.R. Ext. Ka-5 and registered the case in the G.D. Ext. Ka-6. The special report was forwarded in the next morning at 6.05 A.M., through constable Ram Asrey. He further stated started that S.O. Khem Karan started investigation of the case. He signed the chick F.I.R. and recorded the statement of complainant Babuwa. The chick F.I.R. was forwarded on 5.9.1981 to the Magistrate. The counsel for the appellants submits that the F.I.R. bears the endorsement of Circle Officer dated 9.9.1981. On this ground alone counsel for the appellants submits that the F.I.R. is ante timed. Merely delay in dispatch of F.I.R. is not sufficient to discredit the prosecution case. The statement of P.W. 4 Ali Hasan clearly indicates that the report was already registered at 8.30 P.M. in the police station. There is sufficient explanation for not conducting the inquest report on the same night. The Investigating Officer stated that due to paucity of light he could not conduct the inquest proceedings.
15. The next submission of counsel for the appellant is that presence of witnesses is doubtful. His contention is that the appellants had equal enmity with P.W.1 Babuwa but he was not assaulted. It is true that there is enmity with P.W.1 Babuwa also. It is clear from he evidence of P.W.1 Babuwa that deceased Mudwa was head of them and accused came in front of his father. Mudwa was immediately available to the assailants. It is further stated that P.W.1 Babuwa has raised alarm and he was threatened by the accused. P.W.1 Babuwa was at a distance from Mudwa. In these circumstances he had not received any injury in the occurrence. The manner of description of the occurrence fully inspires confidence. He further submitted that in the F.I.R. it is not mentioned that deceased and witnesses were cutting the grass in the field. This submission has no force. A perusal of the F.I.R. indicates that the complainant had mentioned the essential feature of the case. The F.I.R. is not encyclopedia to contain each and every minute detail. He further submitted that there is conflict in oral evidence and medical evidence, therefore, eye witnesses account should be disbelieved. Counsel for the appellants submitted that in the F.I.R. accused Tiruwa was armed with Pharsa, Dirpali was armed with Lathi and Gariba was armed with Barachhi and all of them wielded their weapons and committed the murder of the deceased. P.W.3 Dr. D.S. Rana who conducted the post mortem examination had not found incised wounds on the body of the deceased. In the opinion of Doctor the injuries were caused by blunt weapons and sharp edged weapons such as Lathi and Barachhi. The prosecution witnesses namely P.W. 1 Babuwa, and P.W. 2 Ram Dulari stated in court that Tiruwa wielded Pharsa with the blunt side. This statement apparently to explain the absence of the incised wounds. The witnesses had not disclosed this to the Investigating Officer that Tiruwa had assaulted from the blunt side of the weapon. A perusal of the testimonies of the eye witnesses of the case that so far the use of Pharsa is concerned there was no Pharsa injury on the body of the deceased and the witnesses for the first time explained the absence of incised wound by stating that Tiruwa has used blunt side of Pharsa. The Sessions Judge considering the reasonable doubt about the participation of Tiruwa given him benefit of doubt. So far the role and participation of the appellants Dirpali and Gariba is concerned their testimonies is consistent. Their role of assaulting the deceased with Lathi and Barachhi finds support from the post mortem examination report. Counsel for the appellants further submits that the Sessions Judge acquitted Tiruwa on the same evidence and once witnesses are disbelieved in respect of one co-accused the other appellants cannot be convicted on the basis of same evidence. The contention of counsel for the appellants is that due to non acceptance of evidence tendered by the two witnesses the entire prosecution case should be thrown out. This contention of counsel for the appellants had no force and untenable. If a portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of an accused his conviction can be maintained. The principle of falsus in uno falsus in omnibus is not applicable in India. It is the duty of the court to separate the grain from the chaff. Falsity of a witness would not ruin it from the beginning to the end. The Apex Court in a decision reported in 2003 supreme Court (Cri) 1697 Sucha Singh and Anr. v. State of Punjab has held as under:-
“The maxim “Falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a 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 in such cases testimony may be disregarded, and not that it must be disregarded. And not that it must be disregarded. The doctrine merely involves the question 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 Crl. L.J. 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. L.J. 827). The doctrine is a dangerous one, especially 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 Crl. 819 and Ugar Ahir v. State of Bihar, AIR 1965 SC 2771; 1965 Crl. L.J. 256). An attempt has to be made to as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood.”
16. In view of the above, the acquittal of Tiruwa on the ground that there was no typical incised injury on the person of the deceased noted by the Doctor and the statement of witnesses with regard to the role of Tiruwa there is no illegality in the order of Sessions Judge in giving him benefit of doubt. The acquittal on this ground of Tiruwa does not entitled the appellants to acquittal.
17. The counsel for the appellants further submitted that Injury No. 12 mentioned in the post mortem report is not explained by the witnesses. This injury cannot be caused by Lathi, Pharsa and Barchhi. Injury No. 12 is four punctured wound four flanged of various size situated on the back of abdomen maximum by 1 cm x 1 cm x Abd. Cavity deep margin lacerated and minimum by 0.75 cm x 0.75 cm x Abd. Cavity deep margins lacerated in an area of 16 cm x 10 cm situated 19 cm above the tip of the corex directed inwards and towards front of abdomen.
18. In the opinion of P.W. 3 Dr. D.S. Rana all the punctured wound can be caused by Barachhi. No suggestion was given to the Doctor that Injury No. 12 can not be caused by a Barachhi. The only suggestion given was that Injury No. 12 is different from Injuries No. 9, 10 and 11. The place of occurrence is a field. In the inquest report Investigating Officer had found dead body smeared with soil and water. There was long grass in the field. According to the eye witnesses account he ran and entered into the field of Mahabir when he was done to death. The dimension of punctured wound is very small. They are only 1 cm x 1 cm in dimension. These injuries can be caused due to struggle with some hard object on the ground also. The role of the appellants in assaulting the deceased is consistent with the post mortem report. This submission has no force and is accordingly rejected.
19. For the reasons stated, the appeal is dismissed.
20. The appellants are on bail. They are directed to surrender to serve out the sentence. The C.J.M., Banda is also directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by the trial court and confirmed by us.
