ROHTAS & ANR. versus THE STATE OF HARYANA on 5 November 2019

[2019] 16 S.C.R. 861

ROHTAS & ANR.

v.

THE STATE OF HARYANA

(Criminal Appeal No.764 of 2009)

NOVEMBER 05, 2019

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Constitution of India: Art.136 – Special leave petition – Re-appreciation of evidence by Supreme Court – Permissibility – Held:Supreme Court, while entertaining an appeal by way of specialleave under Art.136, ordinarily, will not attempt to re-appreciatethe evidence on record unless the decision of the Trial Court orthe High Court is shown to have committed a manifest error of lawor procedure or the conclusion reached by the courts below is, onthe face of it, perverse – Merely because another view on the sameevidence is possible, that cannot be the basis to interfere with thefinding of fact recorded by the Courts below much less concurrentfinding of facts.

Penal Code, 1860: s.302/34 – Six accused – Knife blows onthe stomach of the victim-deceased by the appellants causing fatalinjuries – Evidence of eye-witnesses (PW-1 and PW-2) – Convictionof appellants-accused no.1 and 2 and acquittal of others –Prosecution case was that on the fateful day, all the accusedpersons obstructed the deceased who was riding a motorcycle –Immediately, after he was stopped, both the appellants inflictedknife blows on the stomach of the deceased one after the other –Evidence of PW-1 and PW-2 was accepted by the Trial Court aswell as the High Court as truthful – No reason to deviate from thatconcurrent view taken by the Courts below – Deficiencies pointedout by the appellants in the investigation were insignificant andtrivial and whole evidence of PW-1 and PW-2 was corroboratedby the other evidence in the form of medical reports and recoveryof human blood stained soil from the spot where the deceased wasassaulted – Further, there was no delay in lodging FIR –Recoveryof weapon used by accused No.1 during the commission of theoffence also reinforced the role and involvement of the appellantsin the commission of the crime – The quality substantive evidence

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Aon record clearly established the guilt of the appellants – The factthat there was no evidence about the previous enmity and that noevidence was produced by the prosecution in that regard, cannotbe the basis to reverse the concurrent view taken by two courtsbelow, recording finding of guilt against the appellants – Orderof conviction of appellants is not interfered with.B

Criminal Law: Benefit of doubt – Wrong benefit given toacquitted accused cannot enure to the advantage of the convictedaccused against whom clear, truthful and unassailable evidencewas available.

CWitnesses: Reaction of witnesses – Held: There cannot beuniformity in the reaction of witnesses – There is possibility ofvariation and difference in the behaviour of witnesses or theirreactions from situation to situation and individual to individual –The Court must not decipher the evidence on unrealistic basis –The difference in the statements of the prosecution witnesses, inDthe instant case, about the conditions of the deceased when he wasadmitted in the hospital, therefore, would not take the matter anyfurther especially when the medical reports clearly indicated thathe was admitted in the hospital in semi-conscious state and wasdeclared dead by the doctor only thereafter.

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Dismissing the appeal, the Court

HELD: 1. It is well established position in law thatSupreme Court, while entertaining an appeal by way of specialleave under Article 136 of the Constitution of India, ordinarily,will not attempt to reappreciate the evidence on record unlessFthe decision of the Trial Court or the High Court is shown tohave committed a manifest error of law or procedure or theconclusion reached by the Courts below is, on the face of it,perverse. [Para 12] [872-E]

Conclusion

2. PW-1 was extensively cross-examined but the cross-Gexamination did not make any dent with regard to his statementin the examination-in-chief that Accused No.1 and Accused No.2gave knife blow each on the stomach of the victim-deceased andcaused the fatal injuries. Same was the position with regard tothe evidence of PW-2. Even he plainly mentioned about theHmanner in which the deceased was stopped by all the accused persons when he was riding his motorcycle and immediatelythereafter Accused No.1 and Accused No.2 inflicted knife blowson his stomach one after the other. The fact that similar role wasascribed to Accused No.4 and Accused No.6 but the High Courtacquitted them by giving benefit of doubt cannot be the basis toundermine the quality of evidence which already came on record.Neither the State nor the complainant assailed the findingrecorded by the High Court qua acquitted accused. That wouldnot mean that a wrong relief given to co-accused should also begiven to the appellants against whom clinching evidence was onrecord about the manner in which the offence was committedby them. [Paras 15-16] [876-F-G; 877-E-H]

3. The evidence of PW-1 and PW-2, the eye witnesses wasthat all the accused persons obstructed the deceased who wasriding a motorcycle. Immediately, after he was stopped, both theappellants inflicted knife blows on the stomach of the deceasedone after the other. This role of the appellants was distinct.Thereafter the deceased attempted to flee away from the spotwhen he was stopped by the other accused persons and two ofthem inflicted knife blows one after the other. The events,therefore, can be segregated. So far as the second event isconcerned, the Trial Court and the High Court gave benefit ofdoubt to the concerned accused. In that sense, the appellantsare not concerned with that part of the event. Neither the Statenor the complainant has assailed the acquittal of other accused.In any case, wrong benefit given to those accused cannot enureto the advantage of the appellants against whom clear, truthfuland unassailable evidence is forthcoming. For, neither thepresence of PW-1 and PW-2 can be doubted nor their evidencecan be discarded on the specious ground that they are relatedto the deceased and are therefore interested witnesses.Indubitably, just because the witnesses are related cannot be thebasis to discard their evidence, if it is otherwise natural andtruthful. There is no reason to deviate from that concurrent viewtaken by the Courts below. [Paras 18-20] [878-C-G; 879-A]

4. The so-called deficiencies pointed out by the appellantsin the investigation or the prosecution case, are insignificant andtrivial and cannot be the basis to reject the whole evidence of ABC

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APW-1 and PW-2 which is corroborated by the other evidence inthe form of medical reports and recovery of human blood stainedsoil from the spot near the hospital where the deceased wasassaulted by the accused. The fact that the blood group of thehuman blood stained soil cannot be ascertained, can be no basisto discard that piece of evidence. Even the recovery of weaponBused by Accused No.1 during the commission of the offencereinforces the role and involvement of the appellants in thecommission of the crime. The quality substantive evidence onrecord clearly establishes the guilt of the appellants. [Para 22][882-A-C]C

5. There cannot be uniformity in the reaction of witnesses.The Court must not decipher the evidence on unrealistic basis.There can be no hard and fast rule about the uniformity in humanreaction. The difference in the statements of the prosecutionwitnesses about the conditions of the deceased when he wasDadmitted in the hospital, therefore, does not take the matter anyfurther especially when the medical reports clearly indicate thathe was admitted in the hospital in semi-conscious state and wasdeclared dead by the doctor only thereafter. [Para 23] [882-D-E]

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E6. As regards, the delay in registration of FIR, that aspectwas also considered by the Trial Court and the finding recordedby the Trial Court rejecting that defence plea found favour withthe High Court. There has been no delay as is evident from thecontemporaneous record. The deceased was admitted in hospitalimmediately after the incident. He was declared dead at 11.00Fp.m. The City Police Station was informed by the doctor at 11.30p.m. Thereafter, PW-1 complained to ASI (PW-5) near hospitalbuilding and finally the FIR was registered at 0015 hrs. on thenight between 25[th] and 26[th] April, 1998. In view of that, the viewtaken by the Trial Court that there was no delay in registrationGof the FIR is upheld in the fact situation of the instant case.[Paras 24-26] [882-F; 883-C-D; 884-B-C]

7. The defence took self-contradictory stand. First, it wasasserted that the deceased sustained injuries in the first incidentwhich had occurred at 6.30 p.m. on the same evening. However,Hno evidence in support of that plea was forthcoming. Then, the alternative plea taken by the defence was that the deceased was,in fact, injured at some other place and was brought in a three-wheeler to the hospital. Even this plea of the accused was heldto be figment of imagination and without any evidence in supportthereof. On the other hand, the prosecution produced evidencein the form of human blood soiled mud from the spot near thehospital where the incident in question had occurred as statedby PW-1 and PW-2. Even the fact that the accused wereacquitted in the cross-cases filed with regard to the first incidentwhich took place at 6.30 p.m. on the same evening would nottake the matter any further for the appellants. That was anindependent incident whereas the finding of guilt recordedagainst the appellants was concerning the incident which hadtaken place at 8.30 p.m. near the Government Hospital as provedby the prosecution witnesses. [Paras 27-28] [884-C-G]

Duli Chand v. Delhi Administration (1975) 4 SCC649 ; Mst. Dalbir Kaur & Ors. v. State of Punjab(1976) 4 SCC 158 : [1977] 1 SCR 280 ; RamanbhaiNaranbhai Patel & Ors. v. State of Gujarat (1999) 9JT 319 : [1999] 5 Suppl. SCR 41 ; Chandra BihariGautam & Ors. v. State of Bihar JT (2002) 4 SC 62:[2002] 2 SCR 1164; Radha Mohan Singh @ Lal Saheb& Ors. v. State of U.P. JT (2006) 1 SC 428 : [2006] 1SCR 519 ; Rizan & Anr. v. State of Chhattisgarh(2003) 2 SCC 661 : [2003] 1 SCR 457 ; State of UttarPradesh v. Ram Kumar & Ors. (2017) 14 SCC 614 ;Brahm Swaroop & Anr. v. State of Uttar Pradesh (2011)6 SCC 288 : [2010] 15 SCR 1 Dilawar Singh & Ors.v. State of Haryana (2015) 1 SCC 737 : [2014] 7 SCR844 ; State of Andhra Pradesh v. M. Madhusudhan Rao(2008) 15 SCC 582 : [2008] 14 SCR 1170 ; KishanSingh (Dead) Through LRs v. Gurpal Singh & Ors.(2010) 8 SCC 775 : [2010] 10 SCR 16 – relied on.

State of U.P. v. Moti Ram & Ors. (1990) 4 SCC 389 :[1990] 2 SCR 939 ; Balaka Singh & Ors. v. The Stateof Punjab (1975) 4 SCC 511 : [1975] Suppl. SCR 129– distinguished.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 764 of 2009.

EFrom the Judgment and Order dated 13.03.2008 of the HighCourt of Punjab and Haryana at Chandigarh in Criminal Appeal No.241-DB of 1999.

Arvind Kumar, Mrs. Laxmi Arvind, Pradeep Kumar Mathur,Nawal Kishore, Deepankar, Chiranjeev Johri, Chandra Nand Jha, M.FK. Tiwari, Advs. for the Appellants.

Dr. Monika Gusain, Adv. for the Respondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

G1. This appeal takes exception to the judgment and order dated13th March, 2008 passed by the High Court of Punjab and Haryana atChandigarh in Criminal Appeal No.241-DB of 1999, whereby theconviction and sentence awarded to the appellants Rohtas (AccusedNo.1) and Surender Singh (Accused No.2) for offences punishable underSection 302/34 of the Indian Penal Code, 1860 (IPC) by the Trial CourtHcame to be confirmed.

2. Initially, six accused were tried for the offence registered asFIR No.298 on 26th April, 1998 at Police Station, City Palwal. BishanSingh (PW-1) reported the matter to the police station whose statementcame to be recorded on 25th April, 1998 at about 11.30 p.m., allegingthat at about 6.30 p.m. a quarrel had taken place between two groups.He was member of one of the groups whereas Roop Chand (AccusedNo.4) was member of another group that had assaulted his brother VedPrakash and nephew Anil Kumar. They had sustained injuries and weretaken to Government Hospital, Palwal by Bishan Singh (PW-1), RatiChand (father of Anil Kumar) and Baljit Singh (PW-2) for treatment.At about 8.30 p.m., when they were standing at the gate of GovernmentHospital Palwal, his brother Mohar Pal arrived there on a motorcycle.He was told to bring money from a commission agent at Anaj Mandi,Palwal. When Mohar Pal was leaving towards Anaj Mandi, at adistance of about ten paces from the gate of the hospital, all the sixaccused persons came from the front side and stopped his motorcycle.Soon thereafter, appellants Rohtas (Accused No.1) and Surender Singh(Accused No.2) both inflicted knife blows one after the other in thestomach of Mohar Pal. Immediately thereafter, Mohar Pal attemptedto run away by raising alarm “mar diya, mar diya”. Billu (AccusedNo.5) and Rajender (Accused No.3) caught hold of Mohar Pal andDev Kumar (Accused No.6) gave one knife blow in the abdomen ofMohar Pal. Similarly, Roop Chand (Accused No.4) gave knife blow inthe abdomen of Mohar Pal. He also gave a knife blow on the waist ofMohar Pal as a result of which Mohar Pal fell down. It is stated thatBishan Singh, Ravi, Ved Prakash, Anil and Baljit Singh (PW-2), whowere present at the scene, ran towards the spot and on seeing them,the accused persons ran away. Thereafter, Mohar Pal was immediatelyremoved to the hospital in injured condition where he succumbed tothe injuries and was declared dead. On the basis of this FIR, theinvestigation was taken over by ASI Gian Singh (PW-6).

3. After completion of investigation, charge-sheet was filedagainst six accused persons for offence punishable under Sections 148,302 and 149 IPC. The trial commenced before the Additional SessionsJudge (I), Faridabad being Sessions Case No.40 of 1998. Both sidesproduced witnesses. According to the accused persons, they were falselyimplicated. Further, it is their stand that Mohar Pal was injured in theprevious incident which had taken place at 6.30 p.m. on the sameevening. He was member of the aggressor party. During the fight which AB

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Atook place, he must have sustained injuries at the hands of oppositeparty. It was also the case of the accused that Mohar Pal had sufferedinjuries at some other place near Anaj Mandi and he was brought tothe hospital in a three-wheeler. In other words, the incident did nothappen near the hospital.

B4. On the basis of such alternative plea, the accused personsdenied their involvement in the commission of the offence. Aftercompletion of the trial and recording of statements of the concernedaccused persons under Section 313 of the Code of Criminal Procedure,the Trial Court finally convicted Rohtas (Accused No.1), Surender SinghC(Accused No.2), Roop Chand (Accused No.4) and Dev Kumar(Accused No.6) but acquitted Rajender (Accused No.3) and Billu(Accused No.5) by giving them benefit of doubt. The Trial Courtaccordingly convicted the four accused under Section 302 read withSection 34 IPC and sentenced them to undergo life imprisonment andto pay fine of Rs.30,000/- each to the widow of deceased Mohar Pal,Din default to undergo further rigorous imprisonment for two years. Thisdecision was carried in appeal by Accused Nos. 1, 2, 4 and 6 beingCriminal Appeal No.241-DB of 1999 before the High Court of Punjaband Haryana at Chandigarh. The High Court, on reappreciation of theevidence on record, affirmed the finding of guilt against the appellantsERohtas (Accused No.1) and Surender Singh (Accused No.2) butacquitted Roop Chand (Accused No.4) and Dev Kumar (Accused No.6)by giving them benefit of doubt. As regards the appellants, the HighCourt, vide impugned judgment, opined that the evidence on recordclearly established their involvement in the commission of the offence Fand causing death of Mohar Pal by inflicting knife blow injuries to whichhe eventually succumbed.

5. Resultantly, the appellants, Rohtas (Accused No.1) andSurender Singh (Accused No.2) have assailed the finding of guiltrecorded against them by way of this appeal, arising from special leaveGpetition.

6. Neither the State nor the complainant had challenged theacquittal of Rajender (Accused No.3) and Billu (Accused No.5) by theTrial Court nor the acquittal of Roop Chand (Accused No.4) and DevKumar (Accused No.6) by the High Court. Their acquittal has becomeHfinal.

[A. M. KHANWILKAR, J.]

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7. In the present appeal, the assail is based essentially on theargument that both the Courts below have misread or misappreciatedthe evidence on record. The evidence of Bishan Singh (PW-1) and BaljitSingh (PW-2) was unreliable and was an attempt to falsely implicatethe appellants. It is urged that the prosecution has failed to prove thecase beyond reasonable doubt even against the appellants. Accordingto the appellants, the real and core facts have not been properlyinvestigated and the prosecution’s case is replete with severaldeficiencies such as :- B

“(i) No seizure list of clothes of deceased made by IO; C

(ii) Blood group of deceased was not ascertained, henceno link was established between blood found on allegedkurta and blood stained earth with the blood of thedeceased. Thus the prosecution has totally failed toestablish the link between blood found on the seizedarticles and blood of the deceased;D

(iii) Prosecution though allegedly recovered the alleged knifeand sent it to FSL, but it did not produce the said knifein the Court nor got it exhibited, besides there were noblood stains, hence the recovered knife cannot beconnected with this crime;E

(iv) Shirt was seized as per recovery memo Ex. PB, butKurta was replaced while sending it to FSL;

(v) Kurta if worn by the deceased while he was injured byknife, must have cut signs but there was none; F

(vi) No Independent Panchas (Recovery witness) examinedby the prosecution;

(vii) The IO has miserably failed to show in the Sketch planEx PH as to from which place or places, trail of bloodwas there as per FIR and alleged blood recovered, sincein the alleged first attack by appellants the deceasedwas on motor cycle, which he left and tried to run awayby making noise “mar diya mar diya” and thereafter hewas knived at least two to three times by Roop Chandand Devi; G

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(viii) No Independent witness examined either for theoccurance or for the alleged Recovery and InquestReport;

(ix) The most important and valuable witnesses i.e. Anil andVed Prakash were withheld by the prosecution, who alsoparticipated in the earlier village incident @ 6.30 pm andgot injured;

(x) Prosecution did not examine any eye witness of theincident which occurred in the village at about 6.30 pmon 25/04/1998, which was shown as motive for thepresent incident allegedly @ 8.30 pm.

(xi) Prosecution purposely withheld MLR of the deceasedwhich was proved by the defence through DW-2 andon the said MLR and injuries sustained by Moharpal,Ved Prakash & Anil, there was a cross case throughthe FIR lodged by injured Ved Prakash u/s 323/324/506/149 r/w 148 IPC at PS Sadar, Case was tried by JudicialMagistrate 1st Class, Palwal, and the accused wereacquitted vide judgment dated 24/01/2007;

(xii) Sketch plan Ex PH does not show as to wheremotorcycle was thrown, where deceased threw awayhis clothes, where the witnesses PW-1, PW-2 and theirAssociates were standing and from which place bodyof the deceased was lifted and brought to the Hospital.Hence the prosecution has miserably failed to connectthe place of occurrence with the commission of offence;

(xiii) In this case FIR appears to be concocted, fabricatedand recorded and after consultations etc. It appears thatFIR was lodged only after Inquest report where the timeof death was recorded as 11.50 AM on the dictates ofPW-1 and also there would have been fully disclosedgenesis of the crime, names of the assailants, name ofthe weapon and names of the witnesses etc, which arecompletely missing in the Inquest report.

(xiv) There is the variance between the alleged FIR andreport of IO for registering case;

(xv) Non-seizure of Motor Cycle;

(xvi) Non production of Anil and Ved Prakash as witnessesand various other irregularities and serious lapses of theInvestigation including improper statement of IO PW-6which entitles benefit of doubt to the appellants.”

8. According to the appellants, the Trial Court and the High Courthave completely glossed over the glaring infirmities and foundationaldefects of the prosecution which were fatal, and in any case, theappellants deserved similar benefit of doubt as given to other accusedpersons by the Trial Court and then by the High Court. The role of theother accused persons spoken about by the prosecution witnesses isno different than that ascribed to the appellants. Accordingly, it is urgedthat the appellants be acquitted as the prosecution has failed to provetheir guilt beyond reasonable doubt, and in any case, they should begiven benefit of doubt as is given to accused Roop Chand (AccusedNo.4) and Dev Kumar (Accused No.6) by the High Court.

9. Learned counsel for the State has adopted the reasonsrecorded by the Trial Court and the High Court to distinguish the caseof the appellants Rohtas (Accused No.1) and Surender Singh (AccusedNo.2), who have been named by the prosecution witnesses, and becausethere is clinching evidence on record to establish their guilt. It is urgedthat there is no deficiency in the investigation nor in the evidenceproduced before the Court which commended the Trial Court as wellas the High Court to record finding of guilt against the appellants. Itcannot be said to be inadequate in any manner. On the other hand, it isevident that the accused persons took contradictory plea by firstasserting that Mohar Pal sustained injuries during the fight between twogroups in the earlier incident which had occurred at 6.30 p.m. on thesame evening. Having realised that the said plea cannot be substantiatedby them, alternative plea was taken that the incident in question didnot occur near the Government hospital and the injuries suffered byMohar Pal were sustained at some other place near Anaj Mandi fromwhere he was brought in a three-wheeler to the hospital for beingadmitted for treatment. However, no evidence was produced by theaccused to substantiate that fact. It is urged by the State that justbecause co-accused have been acquitted, that does not warrant grantof same relief to the appellants despite the clinching evidence againstthem about their role and the manner of commission of offence by them.

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AThe learned counsel for the State contended that even if the State hasnot challenged the acquittal of other accused persons, that by itselfcannot be the basis to acquit the appellants herein, for there is sufficientevidence against them and has been produced by the prosecution tobring home their guilt. It is thus contended that the benefit given to otheraccused by the High Court cannot be the basis to give similar benefitBto the appellants.

10. It is submitted that the evidence of Bishan Singh (PW-1) andBaljit Singh (PW-2), who were the eye-witnesses, cannot be undermined,at least against the appellants before this Court. It is well establishedposition that the principle of falsus in uno, falsus in omnibus has noCgeneral applicability in India and the Court is not debarred fromseparating the truth from the falsehood and accepting a part of theevidence. It is urged that the appeal is devoid of merits and the samebe dismissed.

11. We have heard Mr. Arvind Kumar, Advocate for theDappellants and Dr. Monika Gusain Advocate for the respondent State.

12. It is well established position in law that this Court, whileentertaining an appeal by way of special leave under Article 136 ofthe Constitution of India, ordinarily, will not attempt to reappreciate theevidence on record unless the decision of the Trial Court or the HighECourt is shown to have committed a manifest error of law or procedureor the conclusion reached by the Courts below is, on the face of it,perverse. Merely because another view on the same evidence ispossible, that cannot be the basis to interfere with the finding of factrecorded by the Courts below much less concurrent finding of facts.F(See Duli Chand vs. Delhi Administration[1]; Mst. Dalbir Kaur &Ors. vs. State of Punjab[2]; Ramanbhai Naranbhai Patel & Ors. vs.State of Gujarat[3]; Chandra Bihari Gautam & Ors. vs. State ofBihar[4]; and Radha Mohan Singh @ Lal Saheb & Ors. vs. State ofU.P.[5]).

G13. Despite this settled position, we may venture to wade throughthe evidence on record to reassure ourselves as to whether the Trial 1 (1975) 4 SCC 6492 (1976) 4 SCC 1583 (JT 1999 (9) SC 3194 JT 2002 (4) SC 62H5 JT 2006 (1) SC 428

Court and the High Court have committed manifest error bordering onperversity or error apparent on the face of record. As regards the roleof the appellants, Rohtas (Accused No.1) and Surender Singh (AccusedNo.2), the Trial Court analysed the testimonies of eye-witnesses BishanSingh (PW-1) and Baljit Singh (PW-2) and found them to be naturaland trustworthy. The Trial Court, observed as follows :- “20. ………………… Both of them have stated that in theincident which had taken place in the village, Anil and VedParkash from their side had received injuries and that in thatconnection they had brought them to General Hospital Palwalwhere Mohar Pal arrived at his motor cycle at 8.30 p.m. andthat when Mohar Pal left for Anaj Mandi, Palwal for bringingsome money from some commission agent, then he was way laidby the accused persons and then caused injuries by means ofknives. No suggestion was given to these PWs that Mohar Palhad received injuries along with Anil and Ved Prakash in thevillage. They were rather given the suggestions that Baljit (PW-2) and Mohar Pal had gone to Anaj Mandi from the village afterthe incident had taken place there and both of them had consumedliquor. They were further given the suggestion that Mohar Palhad received injuries in the Anaj Mandi Palwal and Baljit hadbrought him in a rickshaw for being admitted in the nursing homeof Dr. Lokesh which was situated in the vicinity of GeneralHospital Palwal and when Mohar Pal died then taking undueadvantage of his death, this false story was coined implicatingthe accused. They were further given the suggestion that MoharPal had received injuries from sharp edged railings of the kitchengarden of the commission agent to whom he had gone. Nosuggestion at all was given that Mohar Pal was rendered injuredfor the incident that took place in the evening in the village. Thus,the plea that the accused party caused injuries to Mohar Pal inthe right of private defence is absolutely baseless.

21. It is true that in the FIR No.152 dated 28/4/1998 vide Ex.DB recorded at Police Station Sadar Palwal against thecomplainant party, it was mentioned that Anil, Ved Prakash andMohar Pal were caused injuries in defence. This first informationreport was lodged by Rajinder accused. However, no reliancecan be placed upon this version as the same came into existenceafter the death of Mohar Pal had taken place. A perusal of the A

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Fir Ex. DB shows that the same came to be recorded on thebasis of rapat No.5 dated 26.1.1998 at 9 a.m. By that time, MoharPal had expired and to us allegation that he had (sic) been causedinjuries in the incident of 25.4.1998 at 6.30 p.m. in the villagecannot be given any credence. Morever, it is well established thatthe FIR is not a substantive evidence by itself. The same canbe used only for the purpose of contradicting or corroborating aparticular versions. The accused have not examined any witnessin their defence who could depose that Mohar Pal had beencaused injuries by the accused party in their right of privatedefence in the incident that took place in the village.”

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The Trial Court, further observed :-

“But in the case this Judgment does not help to the accused inany manner because there is no whisper of suggestion even inthe cross examination of Bishan Singh and Baljit Singh PWs thatMohar Pal had been cause injuries in the incident which tookplace on 25.4.1998 evening in the village.”

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The Trial Court again observed :-

“24. It is true that Bishan Singh (PW-1) Baljit (PW-2) RattiChand, Ved Prakash and Anil could not case effective resistancewhen Mohar Pal was assaulted by the accused within their sightE(sic). But that by itself is no ground to paint their statements withblack color. Incident after all had taken place near GeneralHospital, Palwal as the investigating officer ASI Gian Singh alsolifted blood stained earth from there. Presence of these personsthere was natural as they must have come to obtain treatmentFfor Anil and Ved Parkash, who had received injuries in the prioraltercation that took place in the village.

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……….. In the present case, the incident appears to have takenplace all of a sudden near the hospital. It might have lasted only2-3 minutes, Bishan Singh, Baljit Singh and thus it is not surprisingGthat they could not effectively intervene (sic) by chasing theaccused.”

The High Court, on reappreciation of the evidence, once againobserved as follows :- “PW-1 Bishan Singh and PW 2 Baljit Singh can be safely reliedupon about Mohar Pal having been assaulted in the occurrence H

at 8.30 PM. Contention that there was delay in FIR or that theFIR was ante-timed or that the genesis of the occurrence wassuppressed, based only on the ground that in the inquest report,number of the FIR and names of the FIR and names of theaccused were not mentioned, has no merit. Statement of BishanSingh PW 1 is duly recorded in the inquest report and entireversion given by him in the FIR including presence of PW 2 BaljitSingh finds mention therein. Reading of a part of the statementseparately recorded that he identified the dead body of whichpost mortem was being done, as statement recorded later is notjustified. Testimony of PW 1 Bishan Singh and PW 2 Baljit Singhcannot be rejected but has to be carefully appreciated byaccepting that part which may be clearly reliable and by notaccepting the part which may not be safe to be relied upon. Roleof each accused has to be carefully considered.

According to the version given by PWs, when Mohar Pal hadleft for the Anaz Mandi on motor cycle, he was stopped by theaccused. Rohtas and Surender, gave one knife blow each in thestomach of Mohar Pal. We do not find any reason to reject thispart of the version with regard to Rohtas and Surender. Rohtasand Surender are sons of Shiv Singh, who according to thedefence, were injured in the earlier incident. A knife has beenrecovered from Rohtas. Opening of the attack by Rohtas andSurender could have been easily noticed by Bishan Singh PW1and PW 2 Baljit Singh, whose presence on the spot is establishedby prompt lodging of the FIR. Mere fact that their names arenot mentioned in the MLR, does not create any doubt. In theMLR, it has not been mentioned as to who brought the injuredto the hospital. The fact that the injured was described as havingdied, instead of having been injured, is not a major discrepancy.The injured died within half an hour and immediately the policewas informed. The I.O., recorded the statement of Bishan SinghPW 1 in the hospital itself soon after the death. FIR was formallyregistered immediately at 12.45 AM in the night and copy wasreceived by the Magistrate in the night itself by 4 AM. Case ofthe prosecution is to be examined a whole and any minordiscrepancy cannot be taken in isolation. Mere fact that the saidwitnesses did not intervene to save the deceased, is of no effect.The witnesses were at some distance and within minutes, the AB

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Aaccused caused injuries to the deceased. The witnesses had, thus,no opportunity to intervene. Discrepancy of the I.O. in notrecovering the motor cycle or not showing the source of light,does not create any suspicion about the version of theprosecution.”

B14. After perusing the evidence of Bishan Singh (PW-1), we haveno hesitation in taking the view that the concurrent finding of factrecorded by the two Courts below needs no interference. Bishan Singh(PW-1) in his examination-in-chief has deposed as follows :- “At about (sic) 8.30 p.m. on the same day I, Rati Chand andCBaljit were talking at the gate of G.H. Palwal. My brother MoharPal also came there on a motor cycle. I then sent Mohar Palback for bringing money from a commission agent in the AnazMandi, Palwal.

Mohar Pal must have crossed hardly a distance of 10 paces thatDthe accused Rohtas, Surender, Billu, Rajender, Roopi and Devipresent in the Court came there and they made to stop the MoharPal’s motor cycle. Rohtas and Surender then gave one knife bloweach on the abdomen of Mohar Pal. Leaving his motor cycle,Mohar Pal then started running and raised the alarm of mar-diyamardiya. Billu and Rajender then caught him and Roopi accusedEgave a knife blow on his back and Devi accused gave anotherknife blow on his abdomen with the result that Mohar Pal diedat the spot. When I, Rati Chand, Ved Parkash and Anil etc.started running for saving Mohar Pal, then the accused personsran away.”F

15. He has been extensively cross-examined but the cross-examination does not make any dent with regard to his statement inthe examination-in-chief that Rohtas (Accused No.1) and SurenderSingh (Accused No.2) gave knife blow each on the stomach of MoharPal and caused the fatal injuries. Dr. Ramesh Leekha (PW-5) hasGspoken about the injuries in his evidence and the same also can benoticed from the post-mortem report of Mohar Pal that he had sustainedthe following injuries :- “1. Incised wound 3 x 0.25 cm, 8 cm above and lateral toumbilicus. On the opening of the abdomen, the middleHlog of liver was found cut badly with huge quantity of blood in the abdominal cavity. Superficial and deep faciewith omentum and peritoneum was cut through andthrough.

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2. Incised wound 2.5 x 0.5 cm which was 2 cm above andlateral to umbilicus underlying superficial and deep faciaand omentum was cut on the left side of the abdomen.B

3. Reddish abrasion 8 cm long and linear in shape and 8cm above and lateral to the left side of umbilicus.

4. Incised wound 1 x 0.5 cm n the left supra scapularregion underlying muscles were cut with no injury toClung or pleura.”

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VI-REMARKS BY MEDICAL OFFICER

In my opinion the cause of death in this case in shock andhaemorrhage (sic) as a result of injuries sustained by thedeceased, particularly No.1 which alone in sufficient to causedeath in an ordinary course of nature. All injuries are ante mortemin nature.”

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16. Suffice it to observe that the cross-examination of BishanSingh (PW-1) does not take the matter any further for the appellants,as is rightly held by the two Courts below. Same is the position withregard to the evidence of Baljit Singh (PW-2). Even he has plainlymentioned about the manner in which Mohar Pal was stopped by allthe accused persons when he was riding his motorcycle and immediatelythereafter Rohtas (Accused No.1) and Surender Singh (Accused No.2)inflicted knife blows on his stomach one after the other. The fact thatsimilar role has been ascribed to Roop Chand (Accused No.4) and DevKumar (Accused No.6) but the High Court acquitted them by givingbenefit of doubt cannot be the basis to undermine the quality of evidencewhich has already come on record. We are not dilating on thecorrectness of the view so taken by the High Court qua those accusedas neither the State nor the complainant has assailed the finding recordedby the High Court in that regard. That does not mean that a wrongrelief given to co-accused should also be given to the appellants againstwhom clinching evidence has come on record about the manner inwhich the offence was committed by them.

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A17. Reverting to the exposition of this Court in State of U.P. vs.Moti Ram & Ors.[6], it turns on the facts of that case. That case wasan appeal against acquittal and the quality of evidence was notreassuring and warranting a finding of guilt against the acquittedaccused. Even in the case of Balaka Singh & Ors. vs. The State ofPunjab[7], this Court was dealing with evidence against the appellantsBand four accused named along with the appellants therein, which wasso inextricably mixed up that it was not possible to separate one fromthe other.

18. In the present case, however, the evidence of Bishan Singh(PW-1) and Baljit Singh (PW-2), who are the eye witnesses, hasCmentioned about the events as unfolded. First, all the accused personsobstructed Mohar Pal who was riding a motorcycle. Immediately afterhe was stopped, both the appellants inflicted knife blows on the stomachof Mohar Pal one after the other. This role of the appellants is distinct.Thereafter Mohar Pal attempted to flee away from the spot when heDwas stopped by the other accused persons and two of them inflictedknife blows one after the other. The events, therefore, can besegregated.

19. So far as the second event is concerned, the Trial Court andthe High Court gave benefit of doubt to the concerned accused. In thatEsense, the appellants are not concerned with that part of the event. Asaforementioned, even if we do not agree with the approach of the HighCourt in absolving Accused Nos.4 and 6, we refrain from dilating onthe said approach of the High Court as neither the State nor thecomplainant has assailed the acquittal of those accused. In any case,wrong benefit given to those accused cannot enure to the advantageFof the appellants against whom clear, truthful and unassailable evidenceis forthcoming. For, neither the presence of Bishan Singh (PW-1) andBaljit Singh (PW-2) can be doubted nor their evidence can be discardedon the specious ground that they are related to the deceased MoharPal, and are therefore interested witnesses.G20. Indubitably, just because the witnesses are related cannot bethe basis to discard their evidence, if it is otherwise natural and truthful.Their evidence has commended to the Trial Court as well as the HighCourt as truthful and we see no reason to deviate from that concurrent

view taken by the Courts below. It is the duty of the Court to separatethe grain from the chaff and then to arrive at a finding of guilt of anaccused or otherwise, notwithstanding the fact that evidence is foundto be deficient qua another accused named in the same offence. Themaxim falsus in uno, falsus in omnibus has not received generalacceptance in India nor has this maxim come to occupy the status ofrule of law. This has been restated in Rizan & Anr. vs. State ofChhattisgarh[8]. In paragraph 12 of the said decision, the Courtobserved, thus :- “12. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contendabout desirability to throw out the entire prosecution case. Inessence, prayer is to apply the principle of falsus in uno falsusin omnibus (false in one thing, false in everything). This plea isclearly untenable. Even if a major portion of evidence is foundto be deficient, in case residue is sufficient to prove guilt of anaccused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the dutyof the court to separate the grain from the chaff. Where the chaffcan be separated from the grain, it would be open to the courtto convict an accused notwithstanding the fact that evidence hasbeen found to be deficient to prove guilt of other accused persons.Falsity of a particular material witness or material particularwould not ruin it from the beginning to end. The maxim falsusin uno falsus in omnibus has no application in India and thewitnesses cannot be branded as liars. The maxim falsusin uno falsus in omnibus has not received generalacceptance nor has this maxim come to occupy the statusof a rule of law. It is merely a rule of caution. All that itamounts to, is that in such cases testimony may bedisregarded, and not that it must be disregarded. Thedoctrine merely involves the question of weight ofevidence which a court may apply in a given set ofcircumstances, but it is not what may be called “amandatory rule of evidence”. (See Nisar Ali v. State of U.P.)Merely because some of the accused persons have beenacquitted, though evidence against all of them, so far as 8 (2003) 2 SCC 661

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direct testimony went, was the same does not lead as anecessary corollary that those who have been convictedmust also be acquitted. It is always open to a court todifferentiate accused who had been acquitted from those whowere convicted. (See Gurcharan Singh v. State of Punjab.)The doctrine is a dangerous one, specially in India for if a wholebody of the testimony were to be rejected, because a witnesswas evidently speaking an untruth in some aspect, it is to befeared that administration of criminal justice would come to adeadstop. Witnesses just cannot help in giving embroidery to astory, however true in the main. Therefore, it has to be appraisedin each case as to what extent the evidence is worthy ofacceptance, and merely because in some respects the courtconsiders the same to be insufficient for placing reliance on thetestimony of a witness, it does not necessarily follow as a matterof law that it must be disregarded in all respects as well. Theevidence has to be sifted with care. The aforesaid dictum is nota sound rule for the reason that one hardly comes across awitness whose evidence does not contain a grain of untruth orat any rate exaggeration, embroideries or embellishment. (SeeSohrab v. State of M.P. and Ugar Ahir v. State of Bihar.) Anattempt has to be made to, as noted above, in terms of thefelicitous metaphor, separate the grain from the chaff, truth fromfalsehood. Where it is not feasible to separate truth fromfalsehood, because the grain and the chaff are inextricably mixedup, and in the process of separation an absolutely new case hasto be reconstructed by divorcing essential details presented bythe prosecution completely from the context and the backgroundagainst which they are made, the only available course to bemade is to discard the evidence in toto. (See Zwinglee Ariel v.State of M.P. and Balaka Singh v. State of Punjab.) Asobserved by this Court in State of Rajasthan v. Kalki normaldiscrepancies in evidence are those which are due to normalerrors of observation, normal errors of memory due to lapse oftime, due to mental disposition such as shock and horror at thetime of occurrence and those are always there, however honestand truthful a witness may be. Material discrepancies are thosewhich are not normal, and not expected of a normal person.Courts have to label the category into which a discrepancy may be categorized. While normal discrepancies do not corrode thecredibility of a party’s case, material discrepancies do so. Theseaspects were highlighted recently in Krishna Mochi v. State ofBihar and Gangadhar Behera v. State of Orissa. Accusationshave been clearly established against the accused-appellants inthe case at hand. The courts below have categorically indicatedthe distinguishing features in evidence so far as the acquitted andconvicted accused are concerned.”

(emphasis supplied)

21. In another decision of this Court in State of Uttar Pradeshvs. Ram Kumar & Ors.[9], it is held that minor discrepancies in thestatement of witnesses of trivial nature cannot be a ground to rejectevidence as a whole. The Court relied upon the exposition of BrahmSwaroop & Anr. vs. State of Uttar Pradesh[10]. In paragraph 32 ofthe said decision, the Court observed, thus :-

“32. It is a settled legal proposition that while appreciating theevidence of a witness, minor discrepancies on trivial matters,which do not affect the core of the prosecution’s case, may notprompt the court to reject the evidence in its entirety. “Irrelevantdetails which do not in any way corrode the credibility of awitness cannot be labelled as omissions or contradictions.”Difference in some minor details, which does not otherwise affectthe core of the prosecution case, even if present, would not itselfprompt the court to reject the evidence on minor variations anddiscrepancies. After exercising care and caution and siftingthrough the evidence to separate truth from untruth, exaggerationand improvements, the court comes to a conclusion as to whetherthe residuary evidence is sufficient to convict the accused. Thus,an undue importance should not be attached to omissions,contradictions and discrepancies which do not go to the heart ofthe matter and shake the basic version of the prosecution witness.As the mental capabilities of a human being cannot be expectedto be attuned to absorb all the details, minor discrepancies arebound to occur in the statements of witnesses. (See State of U.P.v. M.K. Anthony, State of Rajasthan v. Om Prakash, State v.Saravanan and Prithu v. State of H.P.)”

9 (2017) 14 SCC 614

10 (2011) 6 SCC 288

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A22. The so-called deficiencies pointed out by the appellants inthe investigation or the prosecution case, in our opinion, are insignificantand trivial and cannot be the basis to reject the whole evidence of BishanSingh (PW-1) and Baljit Singh (PW-2) which is corroborated by theother evidence in the form of medical reports and recovery of humanblood stained soil from the spot near the hospital where Mohar Pal wasBassaulted by the accused. The fact that the blood group of the humanblood stained soil cannot be ascertained, can be no basis to discard thatpiece of evidence. Even the recovery of weapon used by Rohtas(Accused No.1) during the commission of the offence reinforces therole and involvement of the appellants in the commission of the crime.CThe quality substantive evidence on record clearly establishes the guiltof the appellants.

23. In a recent decision in Dilawar Singh & Ors. vs. State ofHaryana[11], the Court restated that while analysing the evidence of eyewitnesses, it must be borne in mind that there is bound to be variationsDand difference in the behaviour of the witnesses or their reactions fromsituation to situation and individual to individual. There cannot beuniformity in the reaction of witnesses. The Court must not decipherthe evidence on unrealistic basis. There can be no hard and fast ruleabout the uniformity in human reaction. The difference in the statementsEof the prosecution witnesses about the conditions of Mohar Pal whenhe was admitted in the hospital, therefore, does not take the matter anyfurther especially when the medical reports clearly indicate that he wasadmitted in the hospital in semi-conscious state and was declared deadby the doctor only thereafter.

F24. As regards, the delay in registration of FIR, that aspect hasalso been considered by the Trial Court and the finding recorded bythe Trial Court rejecting that defence plea found favour with the HighCourt. We see no reason to deviate from the conclusion so recordedthat there was no delay in registration of FIR in the facts of the presentcase. The significance of registration of FIR without loss of time needGnot be underscored. This Court in State of Andhra Pradesh vs. M.Madhusudhan Rao[12], while dealing with similar arguments, observedin paragraph 30 as follows :-

[A. M. KHANWILKAR, J.]

“30. Time and again, the object and importance of prompt lodgingof the first information report has been highlighted. Delay inlodging the first information report, more often than not, resultsin embellishment and exaggeration, which is a creature of anafterthought. A delayed report not only gets bereft of theadvantage of spontaneity, the danger of the introduction of acoloured version, an exaggerated account of the incident or aconcocted story as a result of deliberations and consultations, alsocreeps in, casting a serious doubt on its veracity. Therefore, it isessential that the delay in lodging the report should besatisfactorily explained.”

25. In the present case, there has been no delay as is evidentfrom the contemporaneous record. Mohar Pal was admitted in hospitalimmediately after the incident and was examined by Dr. Ramesh.Mohar Pal was declared dead at 11.00 p.m. The City Police Stationwas informed by the doctor at 11.30 p.m. Thereafter, Bishan Singh(PW-1) complained to ASI Gian Singh (PW-5) near hospital buildingand finally the FIR was registered at 0015 hrs. on the night between25th and 26th April, 1998. In Kishan Singh (Dead) Through LRs vs.Gurpal Singh & Ors.[13], This Court had observed as follows :- “22. In cases where there is a delay in lodging an FIR, the courthas to look for a plausible explanation for such delay. In theabsence of such an explanation, the delay may be fatal. Thereason for quashing such proceedings may not be merely thatthe allegations were an afterthought or had given a colouredversion of events. In such cases the court should carefullyexamine the facts before it for the reason that a frustrated litigantwho failed to succeed before the civil court may initiate criminalproceedings just to harass the other side with mala fide intentionsor the ulterior motive of wreaking vengeance on the other party.Chagrined and frustrated litigants should not be permitted to givevent to their frustrations by cheaply invoking the jurisdiction ofthe criminal court. The court proceedings ought not to bepermitted to degenerate into a weapon of harassment andpersecution. In such a case, where an FIR is lodged clearly with AB

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Aa view to spite the other party because of a private and personalgrudge and to enmesh the other party in long and arduous criminalproceedings, the court may take a view that it amounts to anabuse of the process of law in the facts and circumstances ofthe case. (Vide Chandrapal Singh v. Maharaj Singh; StateBof Haryana v. Bhajan Lal; G. Sagar Suri v. State of U.P.; andGorige Pentaiah v. State of A.P.)”

26. In view of the above, we have no hesitation in upholding theview taken by the Trial Court that there was no delay in registration ofthe FIR in the fact situation of the present case.

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27. We are also in agreement with the view taken by the TrialCourt and affirmed by the High Court that the defence had taken self-contradictory stand. First, it was asserted that Mohar Pal sustainedinjuries in the first incident which had occurred at 6.30 p.m. on the sameevening. However, no evidence in support of that plea was forthcoming.DThen, the alternative plea taken by the defence was that Mohar Palwas, in fact, injured at some other place near Anaj Mandi and wasbrought in a three-wheeler to the hospital. Even this plea of the accusedhas been held to be figment of imagination and without any evidencein support thereof. On the other hand, the prosecution has producedEevidence in the form of human blood soiled mud from the spot nearthe hospital where the incident in question had occurred as stated byBishan Singh (PW-1) and Baljit Singh (PW-2).

28. Even the fact that the accused have been acquitted in thecross-cases filed with regard to the first incident which took place atF6.30 p.m. on the same evening will not take the matter any further forthe appellants. That was an independent incident whereas the findingof guilt recorded against the appellants is concerning the incident whichhad taken place at 8.30 p.m. near the Government Hospital, Palwal asproved by the prosecution witnesses. In fact, the incident at 8.30 p.m.Gwas the counter blast of the fight which had taken place between twogroups at 6.30 p.m. and the previous enmity between them. The factthat there is no evidence about the previous enmity and that no evidenceis produced by the prosecution in that regard, in our view, cannot bethe basis to reverse the concurrent view taken by two Courts below -Hrecording finding of guilt against the appellants for commission of offence to assault Mohar Pal near the Government Hospital, Palwal ataround 8.30 p.m. on 25th April, 1998.

29. Taking any view of the matter, therefore, no interference iswarranted in this appeal and we are disposed to dismiss the same.Accordingly, this appeal is dismissed. The bail bonds of the appellantsstand cancelled. The appellants shall surrender within four weeks fromtoday failing which, the local police station must take necessary actionagainst the appellants in accordance with law.

Devika Gujral

Appeal dismissed.

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