JUDGMENT
A. Pasayat, J.
1. Petitioner Sk. Badar alias Badiruddin (hereinafter also referred to as the ‘accusad’) calls in question legality of appellale judgment passed by the learned Second Addl. Sessions, Judge, Puri finding him guilty of an offence punishable Under Sections 326 of the Indian Penal Code, 1860 (in short IPC), convicting him there- under and sentencing him to undergo rigorous imprisonment for three years, and to a fine of Rs. 2000/-, in default to undergo fuitner rigorous imprisonment for six months. The accused was convicted for an ofience punishable uder Section 307, IPC and sentenced to undergo rigorous imprisonment for five years by the Asst. Sessions Judge, Khurda. The petitioner stood trial along with twenty six others for having committed various offences and causing injuries on police . personnel while they were discharging duties as public servants.
2. Factual matrix as presented by the prosecution is as follows :
On 15-1-1992 at about 8-30 p. m. the Officer-in – charge of Tangi Police Station along with several other police personnel went to village Dikhitpada by a private truck to execute pending N. R. Ws. against some of the villagers of that village. Keeping the truck on ‘, road, they proceeded on foot towerds the village through the backside of a cashew plantation. At the outskirt of the village, they caught.,,. hold of two persons namely Erphan and Gulu against whom N. B, Ws. were pending. They shouted for help. AH on a sudden serveral persons including the petitioner being armed with various weapons surrounded police personnel even though they gave their identity and started saying that they shall not be allowed to go. , They attacked indiscriminately on the members of police party. The petitioner’ thrust a hetpoon to the face of the Officer-in-charge, and others assaulted other persons accompanying him. The victim started running towards the truck, and the mob chased them. The truck driver focussed the head light on the mob. The occupants of the truck came to their rescue. The injured persons ware taken by the truck to Tangi Police Station. Information was lodged at the Police Station. A case was registered, the injured persons were sent for medical examination. The Officer-in- charge Mr. N. N. P. Singh PW 12) sustained bleeding injuries on his left eye, and was treated at the SCB Medical College Hospital. On completion of investigation, charge-sheet was submitted.
3. In support of the prosecution case, eighteen witnesses were examined mostly consisting of those who had sustained injuries. Plea of accused persons was one of denial. According to them the injured persons had been to the village on the date and time of occurrence in civil an dresses, and misbehaved with some ladies who had gone to answer call of nature. On their shouting chor chor, out of fear the police personneI ran away. While running they fell on the road full of ditches, shrubs and tree stumps and sustained injuries.
4. Learned Asst Sessions Judge, Khurda acquitted all the accused persons, except the petitioner, who was found guilty of an offence punishable Under Section 307, IPC and convicted and sentenced as aforesaid, in appeal, learned appellate Judge held that though petitioner had thrust a harpoon to the left eye of PW 12, yet there is no evidence that injury inflicted was sufficient to cause death of the victim. The Doctor (PW 11) had not whispered a word if the injury inflicted was sufficient enough to cause the death of PW 12. There was no evidence at any point of time during hospitalisation the life of the victim was at stake. Therefore, he was found not guilty Under Section 307, IPC but was held guilty of an offence punishable Under Sections 326, IPC.
5. Learned counsel for petitioner in support of revision application submitted that prosecution version having been disbelieved in material particulars and large number of co-accused persons having been acquitted, conviction should not have been maintained. In other words, he pressed into service principle of falsus in uno falsus in omnibus. The sentence is also submitted to be harsh. It is submitted further that the occurrence took place more than a decade back, and it would not be proper to send the petitioner to custody. Learned counsel for State on the other hand, supported the judgment of learned appellate Judge.
6. I find that learned trial Judge has acquitted co-accused persons as evidence so far as they are concerned was found to be not sufficient. So far as the petitioner is concerned, evidence of PW 12. the victim was critically analysed and it was concluded that the same clearly established the guilt of the accused. The victim, PW 12 has stated that at the time the patitioner gave a Bhali blow just above his left eye-brow resulting in an injury over his left eye cutting the eye ball, other accused persons assaulted him with lathis to both his hands. In a semi-conscious state he sat down. He was under treatment of Dr. D. N. Acharya, Professor of Eye Department of SCB Medical College Hospital and he lost sight of his left eye. PW 3 has stated that the accused pierced a tenta to the left eye of PW 12. This witness has stated that he found PW 12 had sustained bleeding injury on his left eye. He described the tenta as the weapon of assault, whose end portion is like betel leaf and pointed. PW 9 has stated that the accused pierced a tenta to the ieft eye of PW 12. PW 12 has described the tenta as a weapon whose front portion is like that of betel leaf having sharn edge and pointed and attached to a handle. There was not even a suggestion that PW 12 had not sustained eye injury. Neither suggestion was to the effect that he sustained injury by fall. PW 11 has categori cally stated that the injury sustained by PW 1. can never be caused by fall over a tree stump, broken glass or sharp edge of stone. He has categorically stated that the injury was caused by sharp cutting weapon which may be pointed and that injury must have been caused by the edge of that weapon. PW 12 has categorically stated that this petitioner had inflicted the injury. Other witnesses have also corroborated the statement. Analysis as made by learned trial Judge and endorsed by the learned appellate Judge does not suffer from any infirmity to warrant interference. As rightly observed by the learned appellate Judge, there is no reason as to why the victim would falsely implicate the accused, and shield real accused particularly when he has permanently lost vision of an eye due to assault.
7. 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, not with- standing acquittal of large number of other co-accused persons, his conviction can be maintained. However where large number of other accused 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 particular would not ruin it from the beginning to end. The maxim “falsum in uno falsus in omnibus’ has no application in India and the witnesses cannot be branded as liar.
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 marely a rule of caution. All that it amounts to, is that in such cases testimony may bo 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 it always open to a Court to diffentiate accused who had been acquitted from those who were convicted. (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. The witnesses just cannot help in giving embroidory 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 acceptence, 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 scross a witness whose evidence does not contain a grain of untruth or at any rate exagg3ration, embroideries or embellish- ment. (See Sahrab s/s Belli Nayata and Anr. v. The State of Madhya Pradesh (1972)3 SCC 761 and Umar Ahir and Ors. v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made” to, in terms of felicitous mstapher, separate grain from the chaff, truth from falsehood. Where it is not feassible 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 Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Ors. v. The State of Punjab, AIR 1975 SC 1962). As observed by the apex Court in State of Rajasthan v. Smt. Kalki and Anr., AIR 1931 SC 1990, 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 categorised. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.
It is also submitted by the learned counsel for the petitioner that the prosecution has to establish its case beyond a shadow of doubt and the accused is always entitled to a benefit of doubt. The maxim that it is better that ten guilty persons be acquitted, rather than one innocent person be convicted is nowhere laid down in the Evidence Act, but is a rule of prudence founded on public policy, as serious consequences of an erroneous condemnation are much more serious both to the accused and society than the consequences of an erroneous acquittal. The maxim has, however, often been misunderstood and misapplied. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts of lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. (See Gurbachan Singh v. Satpal Singh and Ors., AIR 1990 SC 209). Therefore, in each case it has to be seen whether the course of justice is not deflected by fanciful possibilities. Absolute certainty is impossible in any human adventure, including the administration of criminal justice, Proof beyond reasonable doubt means just what it says. It does not admit of fanciful possibilities, but it does admit of a high degree of cogency consistent with an equally high degree of probability. The requirement of proof beyond reasonable doubt undoubtedly stems out of the compelling presumption of innocence inherent in our adversary system of crininal justice. Proof beyond reasonable doubt means proof of an offence with certainty of the criminal law, to the effect that the offence has been committed and that no other person but the accused can be said to have committed the offence on the available evidence. Where the evidence conclusively establishes these two facts, the casa is said to be proved beyond reasonable doubt. [See (1987) Law Reports of the Commonwealth, 179 (Criminal Law Reports)].
These aspects were highlighted by me in Naba Kishore Rout v. The State, (1990)3 OCR 659.
8. In view of the analysis made above, conviction cannot be faulted. Coming to the plea that sentence is heavy, and it needs modification, with an alternative prayer that benefits of provisions of Probation of Offenders Act (in short* ‘Probation Act’) should be extended to the petitioner, I find that offence is of very serious nature. While stress is on reformation it cannot be lost sight of that sentence is intended as a deterrent to others. While deciding question whether a person should be given benefits of Probation Act, nature of offence, its propensity and potential influence on the citizens at large has also to be taken note of. I do not find any substance in the plea that benefits of Probation Act is to be extended to the petitioner. However, considering the fast that the occurrence took place twelve years back, I feel interest of justice would be best served if custodial sentence is reduced to one year rigorous imprisonment, while fine amount is raised to Rs. 4000/. with a default sentence of one year. If fine amount is’ . paid by the accused, Rs. 2000/- out of of it be paid to PW 12. The Criminal Revision is disposed of accordingly.