Dr. Arijit Pasayat, J.— Leave granted.
2. The appellants question the correctness of the judgment rendered by a Division Bench of the Andhra Pradesh High Court.
3. Sixteen persons including the appellants faced trial for the alleged commission of offences punishable under Sections 147, 148, 448 read with Sections 149, 302 read with Section 149 and Section 324 read with Section 149 of the Penal Code, 1860 (in short “IPC”); learned IIIrd Additional Sessions Judge, Karimnagar for (sic found) each one of them guilty. In appeal, the High Court upheld the conviction of A-1, A-3, A-7 to A-9, A-12 and A-13 and sentence of imprisonment for life as imposed by the trial court. Rest of the accused persons were acquitted. The present appeals are by A-7 to A-9 and A-13.
4. Background facts in a nutshell are as follows:
PW 1 is the wife, PW 2 is the father, PW 3 is the mother, PW 4 is the brother and PW 5 is the sister-in-law of the deceased. The accused, deceased and the material witnesses are residents of Neerukulla Village. The deceased purchased an auto and was plying in between Sulthanabad and Neerukulla. On 2-7-2003 at about 9.00 p.m, the deceased returned to his house from Sulthanabad and informed PWs 1 to 3 that when he requested A-1 and A-2 to travel in his auto as per the serial number, they refused to travel in his auto and beat him.
5. On 3-7-2003 morning, PW 1 and the deceased went to the house of the sarpanch and raised a dispute. The sarpanch called A-1 and informed about the incident. A-1 admitted his guilt in the presence of PWs 9 and 10. On the same day at about 6.00 p.m, A-1 to A-16 came to the house of the deceased and attacked him. A-1 beat the deceased with a stick. The deceased ran into the house and bolted the door. In the meanwhile, when PW 2 intervened to rescue the deceased, A-1 beat him with a stick. A-3 broke the doors and all the accused entered the house and beat the deceased. Some of the accused were armed with iron rods and axes. They beat the deceased indiscriminately. Then the deceased ran out from the house. The accused chased and beat him indiscriminately. Finally, the deceased fell down at the Gram Panchayat Office on receipt of the injuries. Later, the deceased was taken in an auto to Government Hospital, Sulthanabad. On the advice of the doctor, they went to the police station and gave Ext. P-1, report. On the basis of Ext. P-1, the police registered a crime for the offences under Sections 147, 148, 448, 307, 327 read with Section 149 IPC. Thereafter, the deceased and PW 2, who received injuries, were referred to Government Hospital, Karimnagar.
6. The deceased, while undergoing treatment, succumbed to the injuries. After the death of the deceased, the sections of law were altered in the crime through the alteration memo. The Inspector of Police took up the investigation, prepared the rough sketch, observed the scene of offence, held inquest over the dead body of the deceased, seized MOs 1 and 2 and later sent the dead body for post-mortem examination. The accused were arrested and weapons were recovered. After completion of the investigation, the police laid the charge-sheet. The accused denied the charges and claimed trial.
7. The prosecution, in order to prove the guilt of the accused, examined PWs 1 to 22 and marked Exts. P-1 to P-39. On behalf of the defence, no oral evidence was adduced, but Ext. D-1, a portion of Section 161 CrPC, statement of PW 3 was marked.
8. The High Court by a common judgment disposed of four appeals numbered as Criminal Appeals Nos. 1114, 1128, 1130 and 1155 of 2005.
9. In support of the appeals learned counsel for the accused persons submitted that the conviction is based primarily on the evidence of witnesses who were related to the deceased. Further, the accusations even if accepted in toto do not make out a case relatable to Section 302 IPC.
10. Learned counsel for the respondent State on the other hand supported the judgments of the courts below.
11. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness.
“13. … It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
14. In Dalip Singh v. State of Punjab AIR 1953 SC 364 it has been laid down as under: (AIR p. 366, para 26)
‘26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.’
15. The above decision has since been followed in Guli Chand v. State of Rajasthan (1974) 3 SCC 698 in which Vadivelu Thevar v. THE STATE OF MADRAS AIR 1957 SC 614 was also relied upon.
16. We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25)
‘25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in—Rameshwar v. The State Of Rajasthan. AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.’
17. Again in Masalti v. State Of U.P . AIR 1965 SC 202 this Court observed: (AIR pp. 209-10, para 14)
‘14. … But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.’
18. To the same effect is the decision in State of Punjab v. Jagir Singh (1974) 3 SCC 277, AIR 1973 SC 2407 and Lehna v. State Of Haryana . (2002) 3 SCC 76. Stress was laid by the appellant-accused on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, prayer is to apply the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the 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 the guilt of other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liar. The maxim falsus in uno, falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that 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 Ali v. State Of Uttar Pradesh .. AIR 1957 SC 366)”
The above position was elaborately discussed in Sucha Singh v. State Of Punjab . (2003) 7 SCC 643, JT (2003) 6 SC 348, and Israr v. State Of U.P . (2005) 9 SCC 616
12. In S. Sudershan Reddy v. State of A.P (2006) 10 SCC 163, AIR 2006 SC 2716 it was observed:
“12. … Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.”
13. In Criminal Appeal No. 222 of 2007, this Court has occasioned to deal with the cases of some of the co-accused persons. In that case it was concluded as follows:
“If the evidence on record is considered on the touchstone principles set out above, the inevitable conclusion is that the proper conviction would be under Section 304 Part I IPC instead of Section 302 IPC. The conviction of the appellants is accordingly altered from Section 302 read with Section 149 to Section 304 Part I read with Section 149 IPC. Custodial sentence of 10 years would meet the ends of justice. The findings of the guilt in respect of other offences and the sentences imposed do not warrant interference. The sentence shall run concurrently.”
In view of what has been stated in the aforesaid criminal appeal, the appeals are allowed to the aforesaid extent.
14. The appeals are partly allowed.
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