{"id":22152,"date":"2003-01-21T00:00:00","date_gmt":"2003-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rizan-another-vs-state-of-chhatisgarh-thru-chief-on-21-january-2003"},"modified":"2018-08-14T01:10:17","modified_gmt":"2018-08-13T19:40:17","slug":"rizan-another-vs-state-of-chhatisgarh-thru-chief-on-21-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rizan-another-vs-state-of-chhatisgarh-thru-chief-on-21-january-2003","title":{"rendered":"Rizan & Another vs State Of Chhatisgarh Thru Chief … on 21 January, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rizan & Another vs State Of Chhatisgarh Thru Chief … on 21 January, 2003<\/div>\n
Bench: Shivaraj V. Patil, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  82 of 2003\n\nPETITIONER:\nRIZAN & ANOTHER\n\nRESPONDENT:\nSTATE OF CHHATISGARH THRU CHIEF SECRETARY GOVT. OF CHHATISGARH RAIPUR\n\nDATE OF JUDGMENT: 21\/01\/2003\n\nBENCH:\nSHIVARAJ V. PATIL & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003(1) SCR 457<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
ARIJIT PASAYAT, J. Leave granted.\n<\/p>\n
Appellants call in question legality of impugned judgment rendered by the
\nMadhya Pradesh High Court at Jabalour, whereby it upheld the conviction and
\nsentence awarded by the Additional Sessions Judge, Jashpurnagar.\n<\/p>\n
Prosecution version which led to the trial of the appellants (hereinafter
\nreferred to as ‘the accused’ by their respective names) is as follows:\n<\/p>\n
On 29.11.86 information was lodged by Jhanguram (PW-2) that six persons had
\nassaulted him with intention to take his life, and had also caused injuries
\nto his wife Pandri Bai (P.W.4) and his daughter-in-law Tilobai (P.W.5). On
\nthe basis of such information, the case was registered and investigation
\nwas undertaken. On completion of investigation charge was framed for
\ncommission of offences punishable under Sections 147, 148, 307 read with
\nSection 34 and Section 323 of the Indian Penal Code, 1860 (in short MPC’).
\nIt was alleged that accused Khodhibai (since acquitted) and Pandri Bai
\n(P.W.4) are sisters. There was a bad blood between them over certain
\nproperties and civil litigation was going on. The six accused persons were
\ncutting the crops raised by Jhanguram (P. W.2) on the date of the
\noccurrence. When he asked them not to do so, the accused persons did not
\npay any heed. Suddenly accused-appellant Rizan snatched the axe which
\nJhanguram (P.W.2) was holding and assaulted him with the said weapon and
\ncaused several injuries on different parts of his body e.g. lips, hands and
\nfeet. More particularly, accused-appellant. Duda hit Jhanguram and Pandri
\nBai with a stick. Other accused persons also hit him with their hands and
\nfeet. Some persons standing nearby came to their rescue. The injured P.Ws.
\n2, 4 and 5 were examined by the Doctor (PW-1). During investigation the
\nweapon of assault i.e. axe was seized from the accused-appellant, Rizan and
\nsome other weapons from the other persons. Six witnesses were examined to
\nfurther the prosecution version. Accused persons pleaded innocence and
\nfalse implication. On consideration of the evidence on record, the Trial
\nCourt held that the prosecution has not been able to bring home the
\naccusations against accused-Paras, Vinod, Khodibai and Jaymala.\n<\/p>\n
Accused-appellant Rizan was found guilty for the offences punishable under
\nSection 326 IPC for inflicting injuries on Jhanguram (P.W.2) and under
\nSection 323 IPC for the injuries inflicted on Pandri Bai (P.W.4). Accused
\nDuda was found guilty for the offences punishable under Section 323 IPC for
\ninflicting injuries on aforesaid two witnesses. However, both the accused-
\nappellants Rizan and Duda were acquitted of the offences relatable to
\nSections 147 and 148 IPC. It was also held that the offence committed by
\nthe accused persons is not covered by Section 307 IPC. After hearing the
\naccused persons on the question of sentence, accused-appellant, Rizan was
\nsentenced to undergo RI for two years and two months respectively for the
\noffence punishable under Sections 326 and 323 IPC. Both the sentences were
\ndirected to run concurrently. Accused Duda was sentenced to undergo RI for
\ntwo months. In appeal, by the impugned judgment, the High Court dismissed
\nthe appeal maintaining the convictions and the sentences. In support of the
\nappeal, learned counsel for the accused-appellants submitted that this is a
\ncase where the conviction is not maintainable as the injuries were
\ninflicted by the accused-appellants while exercising their right of private
\ndefence. Further on the same set of evidence four persons have been
\nacquitted and, therefore, so far as the appellants are concerned,
\nconviction does not stand to reason. It is also submitted that the
\nwitnesses who claim to have seen the occurrence are witnesses who were in
\ninimical terms with the accused-appellants. Residually, it is submitted
\nthat the sentences as imposed are high, and considering the fact that the
\noccurrence took place five years back, the sentences should be reduced to
\nwhat has already been undergone which is stated to be about three months.
\nIt is pointed out that accused-appellant. Duda has already suffered the
\nsentence awarded. Learned Counsel for the prosecution on the other hand
\nsubmitted that the evidence clearly rules out application of the right of
\nprivate defence. Merely because the evidence of some of the witnesses has
\nnot been accepted to be fully reliable, in view of the clear and
\ncategorical findings recorded that the evidence is cogent and credible so
\nfar as the appellants are concerned, the conviction does not suffer from
\nany infirmity.\n<\/p>\n
We shall first deal with the contention regarding interestedness of the
\nwitnesses for furthering prosecution version. Relationship is not a factor
\nto affect credibility of a witness. It is more often than not that a
\nrelation would not conceal actual culprit and make allegations against an
\ninnocent person. Foundation has to be laid if plea of false implication is
\nmade. In such cases, the court has to adopt a careful approach and analyse
\nevidence to find out whether it is cogent and credible.\n<\/p>\n
In Dalip Singh and Ors. v. The State of Punjab, AIR<\/a> (1953) SC 364 it has
\nbeen laid down as under:-\n<\/p>\n
“A witness is normally to be considered independent unless he or she
\nsprings from sources which are likely to be tainted and that usually means
\nunless the witness has cause, such as enmity against the accused, to wish
\nto implicate him falsely. Ordinarily a close relation would be the last to
\nscreen the real culorit and falsely implicate an innocent person. It is
\ntrue, when feelings run high and there is personal cause for enmity, there
\nis a tendency to drag in an innocent person against whom a witness has a
\ngrudge along with the guilty, but foundation must be laid for such a
\ncriticism and the mere fact of relationship far from being a foundation is
\noften a sure guarantee of truth. However, we are not attempting any
\nsweeping generalization. Each case must be judged on its own facts. Our
\nobservations are only mads to combat what is so often put forward in cases
\nbefore us as a general rule of prudence. There is no such general rule.
\nEach case must be limited to and be governed by its own facts.\n<\/p>\n
The above decision has since been followed in Guli Chand and Ors. v. State
\nof Rajasthan,<\/a> [1974] 3 SCC 698 in which Vadivelu Thevar v. State of Madras,
\nAIR<\/a> (1957) SC 614 was also relied upon.\n<\/p>\n
We may also observe that the ground that the witness being a close relative
\nand consequently being a partisan witness, should not be relied upon has no
\nsubstance. This theory was repelled by this Court as early as in Dalip
\nSingh’s case supra in which surprise was expressed over the impression
\nwhich prevailed in the minds of the Members of the Bar that relatives were
\nnot independent witnesses. Speaking through Vivian Bose. J. it was
\nobserved:\n<\/p>\n
“We are unable to agree with the learned Judges of the High Court that the
\ntestimony of the two eyewitnesses requires corroboration. If the foundation
\nfor such an observation is based on the fact that the witnesses are women
\nand that the fate of even men hangs on their testimony, we know of such
\nrule. If it is grounded on the reason that they are closely related to the
\ndeceased we are unable to concur. This is a fallacy common to may criminal
\ncases and one which another Bench of this Court endeavoured to dispel in
\nRameshwar v. State of Rajasthan, AIR<\/a> (1957) SC 54 at p.59). We find,
\nhowever, that the unfortunately still persists, if not in the judgments of
\nthe Courts, at any rate in the arguments of counsel.”\n<\/p>\n
Again in Masalti and Ors. v. State of U.P.. AIR<\/a> (1965) SC 202 this Court
\nobserved; 202-210 para 14;\n<\/p>\n
“But it would, we think, be unreasonable to contend that evidence given by
\nwitnesses should be discarded only on the ground that it is evidence of
\npartisan or interested witnesses…….The mechanical rejection of such
\nevidence on the sole ground that it is partisan would invariably lead to
\nfailure of justice. No hard and fast rule can be laid down as to how much
\nevidence should be appreciated. Judicial approach has to be cautions in
\ndealing with such evidence: put the plea that such evidence should be
\nrejected because it is partisan cannot be accepted as correct.”\n<\/p>\n
To the same effect is the decision in State of Punjab v. Jagir Singh, AIR<\/a>
\n(1973) SC 2407 and Lebna v. State of Haryana, [2002] 3 SCC 76.\n<\/p>\n
Stress was laid by the accused-appellants on the non-acceptance of evidence
\ntendered by some witnesses to contend about desirability to throw out
\nentire prosecution case. In essence prayer is to apply the principle of
\n“falsus in uno falsus in omnibus” (false in one thing, false in
\neverything). This plea is clearly untenable. Even if major portion of
\nevidence is found to be deficient, in case residue is sufficient to prove
\nguilt of an accused, notwithstanding acquittal of number of other co-
\naccused persons, his conviction can be maintained. It is the duty of Court
\nto separate grain from chaff. Where chaff can be separated from grain, it
\nwould be open to the Court to convict an accused notwithstanding the fact
\nthat evidence has been found to be deficient to prove guilt of other
\naccused persons. Falsity of particular material witness or material would
\nnot ruin it from the beginning to end. The maxim “falsus in uno falsus in
\nominbus” has no application in India and the witnesses cannot be branded as
\nliar. The maxim “falsus in uno falsus in omnibus” has not received general
\nacceptance nor has this maxim come to occupy the status of rule of law. It
\nis merely a rule of caution. All that it amounts to, is that in such case
\ntestimony may be disregarded, and not that it must be disregarded. The
\ndoctrine merely involves the question of weight of evidence which a Court
\nmay apply in a given set of circumstances, but it is not what may be called
\n‘a mandatory rule of evidence’. See Nisar Alli v. The State of Uttar
\nPradesh, AIR (1957) SC 366. Merely because some of the accused persons have
\nbeen acquitted, though evidence against all of them, so far as direct
\ntestimony went, was the same does not lead as a necessary corollary that
\nthose who have been convicted must also be acquitted. It is always open to
\na Court to differentiate accused who had been acquitted from those who were
\nconvicted. See Gurucharan Singh and Am. v. State of Punjab, AIR (1956) SC\n<\/p>\n
460. The doctrine is a dangerous one specially in India for if a whole body
\nof the testimony were to be rejected, because witness was evidently
\nspeaking an untruth in some aspect, it is to be feared that administration
\nof criminal justice would come to a dead-stop. Witnesses just cannot help
\nin giving embroidery to a story, however, true in the main. Therefore, it
\nhas to be appraised in each case as to what extent the evidence is worthy
\nof acceptance, and merely because in some respects the Court considers the
\nsame to be insufficient for placing reliance on the testimony of a witness,
\nit does not necessarily follow as a matter of law that it must be
\ndisregarded in all respects as well. The evidence has to be shifted with
\ncare. The aforesaid dictum is not a sound rule for the reason that one
\nhardly comes across a witness whose evidence does not contain a grain of
\nuntruth or at any rate exaggeration, embroideries or embellishment. See
\nSohrab s\/o Belt Navata and Anr. v. The State of Madhya Pradesh, [1972] 3
\nSCC 751 and Ugar Ahir and Ors. v. The State of Bihar, AIR<\/a> (1965) SC 277. An
\nattempt has to be made to, as noted above, in terms of felicitous metaphor,
\nseparate grain from the chaff, truth from falsehood. Where it is not
\nfeasible to separate truth from falsehood, because grain and chaff are
\ninextricably mixed up, and in the process of separation an absolutely new
\ncase has to be reconstructed by divorcing essential details presented by
\nthe prosecution completely from the context and the background against
\nwhich they are made, the only available course to be made is to discard the
\nevidence in toto. See Zwingle Ariel v. State of Madhya Pradesh, AIR<\/a> (1954)
\nSC 15 and Balaka Singh and Ors. v. The State of Punjab AIR<\/a> (1962). As
\nobserved by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR<\/a>
\n(1981) SC 1390, normal discrepancies in evidence are those which are due to
\nnormal errors of observation, normal errors of memory due to lapse of time,
\ndue to mental disposition such as shock and horror at the time of
\noccurrence and those are always there however honest and truthful a witness
\nmay be Material discrepancies are those which are not normal, and not
\nexpected of a normal person. Courts have to label the category to which a
\ndiscrepancy may be categorized. While normal discrepancies do not corrode
\nthe credibility of a party’s case, material discrepancies do so. These
\naspects were highlighted recently in Krishna Mochi and Ors. v. State of
\nBihar,<\/a> etc. JT (2002) 4 SC 186 Gangadhar Behera and Ors. v. State of
\nOrissa,<\/a> (2002) 7 Supreme 276. Accusations have been clearly established
\nagainst accused-appellants in the case at hand. The Courts below have
\ncategorically indicated the distinguishing features in evidence so far as
\nacquitted and convicted accused are concerned.\n<\/p>\n
Then comes plea relating to alleged exercise of right of private defence.
\nSection 96 IPC provides that nothing is an offence which is done on the
\nexercise of the right of private defence. The Section does not define the
\nexpression ‘right of private defence.’ It merely indicates that nothing is
\nan offence which is done in the exercise of such right. Whether in a
\nparticular set of circumstance, a person acted in the exercise of the right
\nof private defence is a question of fact to be determined on the facts and
\ncircumstances of each case. No test in the abstract for determining such a
\nquestion can be laid down. In determining this question of fact, the Court
\nmust consider all the surrounding circumstances. It is not necessary for
\nthe accused to plead in so many words that he acted in self-defence. If the
\ncircumstances show that the right of private defines was legitimately
\nexercised it is open to the Court to consider such a plea. In a given case
\nthe Court can consider it even if the accused has not taken it, if the same
\nis available to be considered from the material on record. Under Section
\n105 of the Indian Evidence Act, 1872 the burden of proof is on the accused
\nwho sets up the plea of self-defence and, in the absence of proof, it is
\nnot possible for the Court to presume the truth of the plea of self-
\ndefence. The Court shall presume the absence of such circumstances. It is
\nfor the accused to place necessary material on record either by himself
\nadducing positive evidence or by eliciting necessary facts from the
\nwitnesses examined for the prosecution. An accused taking the plea of the
\nright of private defence is not required to call evidence: he can establish
\nhis plea by reference to circumstances transpiring from the prosecution
\nevidence itself. The question in such a case would be a question of
\nassessing the true effect of the prosecution evidence, and not a question
\nof the accused discharging any burden. Where the right of private defence
\nis pleaded, the defence must be a reasonable and probable version
\nsatisfying the Court that the harm caused by the accused was necessary for
\neither warning off the attack or for forestalling the further reasonable
\napprehension from the side of the accused. The burden of establishing the
\nplea of self-defence is on the accused and the burden stands discharged by
\nshowing preponderance of probabilities in favour of that plea on the basis
\nof the material on record. See Munshi Ram and Ors. v. Delhi Administration,
\nAIR<\/a> (1968) SC 702; State of Gujarat v. Bal Fatima, AIR<\/a> (1975) SC 1478;
\nState of U.P. v. Mohd. Musheer Khan, AIR<\/a> (1977) SC 2226 and Mohinder Pal
\nJolly v. State of Punjab, AIR<\/a> (1979) SC 577). Sections 100 to 10! define
\nthe extent of the right of private defence of body. If a person has a right
\nof private defence of body under Section 97, that right extends under
\nSection 100 to causing death if there is reasonable apprehension that death
\nof grievous hurt would be the consequence of the assault. The oft quoted
\nobservation of this Court in Salim Zia v. State of U.P., AIR<\/a> (1979) SC 391,
\nruns as follows:\n<\/p>\n
“It is true that the burden on an accused person to establish the plea of
\nself-defence is not as onerous as the one which lies on the prosecution and
\nthat, while the prosecution is required to prove its case beyond reasonable
\ndoubt, the accused need not establish the plea to the hilt and may
\ndischarge his onus by establishing a mere preponderance of probabilities
\neither by laying basis for that plea in the cross-examination of the
\nprosecution witnesses or by adducing defence evidence.”\n<\/p>\n
The accused need not prove the existence of the right of private defence
\nbeyond reasonable doubt. It is enough for him to show as in a civil case
\nthat the preponderance of probabilities is in favour of his plea.\n<\/p>\n
The number of injuries is not always a safe criterion for determining who
\nthe aggressor was, it cannot be stated as a universal rule that whenever
\nthe injuries are on the body of the accused person, a presumption must
\nnecessarily be raised that the accused persons had caused injuries in
\nexercise of the right of private defence. The defence has to further
\nestablish that the injuries so caused on the accused probabilises the
\nversion of the right of private defence. Non-explanation of the injuries
\nsustained by the accused at about the time of occurrence or in the course
\nof altercation is a very important circumstance. But mere non-explanation
\nof the injuries by the prosecution may not affect the prosecution case in
\nall cases. This principle applies to cases where the injuries sustained by
\nthe accused are minor and superficial or where the evidence is so clear and
\ncogent so independent and disinterested, so probable, consistent and
\ncredit-worthy, that if far outweighs the effect of the omission on the part
\nof the prosecution to explain the injuries. See Lakshmi Singh v. State of
\nBihar, AIR (1976) SC 2263. In this case, as the Courts below found there
\nwas not even a single injury on the accused persons, while PW2 sustained
\nlarge number of injuries and was hospitalized for more than a month. A plea
\nof right of private defence cannot be based on surmises and speculation.
\nWhile considering whether the right of private defence is available to an
\naccused, it is not relevant whether he may have a chance to inflict severe
\nand mortal injury on the aggressor. In order to find whether the right or
\nprivate defence is available to an accused, the entire incident must be
\nexamined with care and viewed in its proper setting. Section 97 deals with
\nthe subject matter of right of private defence. The plea of right comprises
\nthe body or property (i) of the person exercising the right; or (ii) of any
\nother person; and the right may be exercised in the case of any offence
\nagainst the body, and in the case of offences of theft, robbery, mischief
\nor criminal trespass, and attempts at such offences in relation to
\nproperty. Section 99 lays down limits of the right of private defence.
\nSections 96 and 98 give a right of private defence against certain offences
\nand acts. The right given under Sections 96 to 98 and 100 to 106 is
\ncontrolled by Section 99. To claim a right of private defence extending to
\nvoluntary causing of death, the accused must show that there were
\ncircumstances giving rise to reasonable grounds for apprehending that
\neither death or grievous hurt would be caused to him. The burden is on the
\naccused to show he had a right of private defence which extended to causing
\nof death. Sections 100 and 101. IPC define the limit and extent of right of
\nprivate defence. Sections 102 and 105. IPC deal with commencement and
\ncontinuance of the right of private defence of body and property
\nrespectively. The right commence, as soon as a reasonable apprehension of
\ndanger to the body arises from an attempt, or commit the offence, although
\nthe offence may not have been committed but not until that there is that
\nreasonable apprehension. The right lasts so long as the reasonable
\napprehension of the danger to the body continues. In Jai Dev v. State of
\nPunjab, AIR<\/a> (1963) SC 612, it was observed that as soon as the cause for
\nreasonable apprehension disappears and the threat has either been destroyed
\nor has been put to route, there can be no occasion to exercise the right of
\nprivate defence.\n<\/p>\n
In order to find whether right of private defence is available or not, the
\ninjuries received by the accused, the imminence of threat to his safety,
\nthe injuries caused by the accused and the circumstance whether the accused
\nhad time to have recourse to public authorities are all relevant factors to
\nbe considered. Thus, running to house, fetching a tabli and assaulting the
\ndeceased are by no means a matter of course. These acts bear stamp of a
\ndesign to kill and take the case out of the purview of private defence.
\nSimilar view was expressed by this Court in Biran Singh v. State of Bihar,
\nAIR<\/a> (1975) SC 87 and recently in Sekar @ Raja Bekharan v. State represented
\nby Inspector of Police Tamil Nadu, (2002) 7 Supreme 124.\n<\/p>\n
Sentences imposed do not in any way appear to be harsh. Merely because the
\noccurrence took place sometime back, same cannot be a factor to reduce the
\nsentences. The appeal is without merit and is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rizan & Another vs State Of Chhatisgarh Thru Chief … on 21 January, 2003 Bench: Shivaraj V. Patil, Arijit Pasayat CASE NO.: Appeal (crl.) 82 of 2003 PETITIONER: RIZAN & ANOTHER RESPONDENT: STATE OF CHHATISGARH THRU CHIEF SECRETARY GOVT. OF CHHATISGARH RAIPUR DATE OF JUDGMENT: 21\/01\/2003 BENCH: SHIVARAJ V. PATIL & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-22152","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRizan & Another vs State Of Chhatisgarh Thru Chief ... on 21 January, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rizan-another-vs-state-of-chhatisgarh-thru-chief-on-21-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rizan & Another vs State Of Chhatisgarh Thru Chief ... on 21 January, 2003 - 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