Chandrika and Others vs State of C.G.

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 18-1-2002 passed by the 5th Additional Sessions Judge, Bilaspur, in Sessions Trial No. 377/2001, whereby and where under learned Additional Sessions Judge, while acquitting other co-accused Manjri Bai and Badrika Bai, held the Appellants guilty for commission of culpable homicide amounting to murder of Ram Kumar in sharing common intention, convicted them u/s 302 read with Section 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for one month.

On account of the death of Appellant No. 1 Chandrika, the name of Chandrika was deleted from the array of cause title vide order dated 12-9-2008 passed by this Court.

Judgment is impugned on the ground that without any clinching and credible evidence against the Appellants, the Court below has convicted and sentenced them as aforementioned and thereby committed illegality.

Case of the prosecution, in brief, is that on the fateful day of 17-6-2001 at about 7 p.m. at Village Rank, Police Station Sipat, Distt. Bilaspur, the Appellants along with Manjri Bai and Badrika Bai, relatives of deceased Ram Kumar, dragged Ram Kumar inside their house and after closing the door, all the accused persons assaulted Ram Kumar with sticks, hands and fists. Wife of Ram Kumar Fagni Bai (P.W. 1) cried for help and also sent her daughter Miss Sunanda (P.W. 3) towards the place of incident. Mother-in-law of Fagni Bai (P.W. 1) namely, Rahi Bai (P.W. 2) - wife of deceased Appellant Chandrika was trying to open the door, but the Appellants assaulted her also. Hearing the cries, Shivram, Bahoran Yadav, Girija Shankar, Ram Prasad and Dudhari came to the spot and seen the incident. The Appellants assaulted Miss Sunanda (P.W. 3) also. Girija Shankar and Ram Prasad took injured Ram Kumar and the Appellants. Fagni Bai (P.W. 1) went to the Police Station and lodged F.I.R. vide Ex.P-25. Injured Ram Kumar was sent for treatment to Primary Health Centre, Sipat. He was examined by Dr. Rajesh Kumar (P.W. 15) vide Ex.P-18. He was unconscious. Fracture of little finger of right hand, swelling over right wrist and lacerated wound of 10 cms. x 0.5 cm. x 0.5 cm. over left hand were found. Injured Rahi Bai (P.W. 2) was also sent for medical examination and she was examined by Dr. Rajesh Kumar (P.W. 15) vide Ex.P-19. She was unconscious, fracture was suspected over left thigh and she was referred to District Hospital, Bilaspur. Miss Sunanda (P.W. 3) was also examined by Dr. Rajesh Kumar (P.W. 15) vide Ex.P-20 and swelling of 3 cms. x 2 cms. over right leg, swelling and tenderness over right wrist were found and fractui e of wrist was suspected. During the course of treatment, Ram Kumar died. Merg was recorded vide Ex.P-26. After summoning the witnesses vide Ex.P-14, inquest over the dead body of Ram Kumar was prepared vide Ex.P-15. Dead body WES sent for autopsy to District Hospital, Bilaspur and autopsy was conducted by Dr. CM. Tiwari (P.W. 13) vide Ex.P-16 who found following injuries:

(1) Fracture of left radius with haematoma.

(2) Fracture/dislocation of little finger of right hand with haematoma.

(3) One abrasion of 6 cms. length over left infra scapular region.

(4) Lacerated wound of 3 cms. x 1 cm. x bone deep over left fronto parietal region comprising hairline fracture of left fronto parietal bone and subdural haematoma.

(5) Lacerated wound over right parietal region of 2 cms. x 1 cm. x bone deep.

Injuries No. 1 to 4 were grievous in nature and death of the deceased was due to coma as a result of head injury.

X-ray of Rahi Bai (P.W. 2) was taken and fracture of left femur was found vide Ex.P-2. X-ray of right little finger and left forearm of injured Ram Kumar was also taken and fracture of middle phalange and left radius was found vide Ex.P-3. During the course of investigation, accused Chandrika (since deceased) was taken into custody, on 24-6-2001 he made discloser statement of stick vide Ex.P-8 and the same was recovered at the instance of Chandrika vide Ex.P-9. Appellant Chhatram was also taken into custody, on 24-6-2001 he made discloser statement of stick vide Ex.P-10 and the same was recovered from Chhatram vide Ex.P-11. Appellant Suman was taken into custody, he also made discloser statement of stick vide Ex.P-12 and the same was recovered at the instance of Suman vide Ex.P-13.

Patwari prepared spot map vide Ex.P-17. Seized articles were sent for examination to Dr. Rajesh Kumar (P.W. 15) who opined that the injuries found over the dead body of Ram Kumar may be caused by the sticks. Bed head ticket of the deceased was seized vide Ex.P-24. Spot map was also prepared vide Ex.P-27.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial.

In order to prove the guilt of the accused persons, the prosecution has examined as many as twenty witnesses. The accused were examined u/s 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them, pleaded innocence and false implication. The accused persons have also examined defence witnesses Alakh Ram (D.W. 1) and Kashi Prasad Rathore (D.W. 2) and have taken the plea of alibi that unknown persons have assaulted Ram Kumar in the field, Ram Kumar was lying in the field and they took Ram Kumar to his house, on that day Fagni Bai and Sunanda were not present in the village, they came at about 8.30 p.m. and they have not seen the incident.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge has acquitted two accused namely, Manjri Bai and Badrika Bai, and convicted and sentenced the Appellants in the aforesaid manner.

We have heard learned Counsel for the parties, perused the judgment and record of the trial Court.

Learned Counsel for the Appellants vehemently argued that the case is based on the evidence of relative witnesses Fagni Bai (P.W. 1), wife of deceased Ram Kumar and child witness Miss Sunanda (P.W. 3), daughter of deceased Ram Kumar, who are highly interested witnesses, their evidences are full of omissions and contradictions, they are not the natural witnesses and their evidences are not safe to rely. The Appellants are close relatives of the deceased, they have not caused any injury to the deceased, some other person has caused injury to the deceased while he was present in the field. Defence witnesses Alakh Ram (D.W. 1) and Kashi Prasad Rathore (D.W. 2) have informed the Appellants and their relatives that somebody has assaulted Ram Kumar on which the Appellants and other persons went to the field and took Ram Kumar to his house. Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) were not present in the village on the fateful day, they came at about 8.30 p.m. and they have falsely implicated the Appellants. Even otherwise, the place of incident is not visible from outside and Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) have not seen the incident. It was not even possible to see the incident from outside. Learned Counsel further argued that nothing has been recovered at the instance of the Appellants. The prosecution has not proved presence of blood over the sticks, therefore, seizure of sticks from the Appellants is of no use. Learned Counsel placed reliance in the matter of Gendiya v. State of M.P. 1986 (1) MPWN 106 in which the High Court of Madhya Pradesh has held that unreliable testimony of sole eye witness cannot be acted upon to convict accused for charge of murder. Learned Counsel further placed reliance in the matter of Ramdhar and Anr. v. State of C.G. 2004 (1) CGU 370 in which this Court has held that in absence of human blood over the article recovered from the accused and the statements of eye witnesses not inspire confidence, conviction would not be possible. Learned Counsel also placed reliance in the matter of State of M.P. v. Mangu 1997 CriLR (MP) 106 in which the High Court of Madhya Pradesh has held that in case of conviction on the basis of solitary eye witness, the evidence of solitary eye witness should be of sterling worth. Learned Counsel relied upon the matter of Pohap Singh v. State of Haryana and Ors. 1998 (1) CriLJ (S.C.) 132 in which the Apex Court has held that improbable version and improvement by eye-witnesses make their evidence unreliable. Learned Counsel further relied upon the matter of State of Kerala v. Anilachandran @ Madhu and Ors. 2009 (77) AIC 46 (S.C.) in which it has been held by the Apex Court that tampering of F.I.R., considerable delay in sending copy of the F.I.R. to the Magistrate and variation in the evidence are not safe to rely. Learned Counsel also relied upon the matter of Joseph v. State of Kerala 2003 CriLR (S.C.) 670 in which the Apex Court has held that material contradiction in the testimony of sole eyewitness is not safe to rely. Learned Counsel placed reliance in the matter of State of Rajasthan v. Rajendra Singh 1998 SCC (Cri) 1605 in which it has been held by the Apex Court that contradiction in police statement and Court statement on material points creates serious doubt about the truthfulness of the witness. Learned Counsel further placed reliance in the matter of Joginder Singh and Ors. v. State of Punjab 1998 CriLR (S.C.) 320 in which the Apex Court has held that in case of police witness not trustworthy and investigation not fair, conviction is not safe. Learned Counsel also placed reliance in the matter of Satish Narayan Sawant v. State of Goa 2009 CriLR (S.C.) 829 in which it has been held by the Apex Court that fatal injury found on back side of the deceased shows that intention was not to kill or to inflict an injury of a particular degree of seriousness. In case of hot exchange of words before the incident which occurred at the spur of moment, offence falls u/s 304 Part-II of the I.P.C. Learned Counsel further placed reliance in the matter of Hazari Lal Vs. State (Delhi Administration), in which the Apex Court has held that statements made by witnesses in the course of investigation cannot be used as substantive evidence.

On the other hand, learned State counsel vehemently opposed the appeal and submitted that conviction is based on the evidence of eyewitnesses Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3), wife and daughter of the deceased, respectively, their presence at the time of incident was natural, they have seen the incident and they shouted for help on which the villagers came and took out injured Ram Kumar from the house of the accused persons. The evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) inspire confidence, their evidence is trustworthy and safe to rely. The evidence of the aforesaid witnesses is also corroborated by recovery of weapons on the basis of discloser statements made by the accused persons.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties.

In the present case, homicidal death of the deceased as a result of fatal injuries found over his body has not been substantially disputed by the Appellants, otherwise also established by the evidence of Dr. Rajesh Kumar (P.W. 15), Dr. CM. Tiwari (P.W. 13) and autopsy report Ex.P-16 which reveal that fracture of temporal bone and haematoma were found over the body of the deceased which was fatal to life and death of the deceased was homicidal in nature.

As regards complicity of the Appellants in the crime in question, conviction is based on the direct evidence of eyewitnesses Fagni Bai (P.W. 1) - wife of the deceased and Miss Sunanda (P.W. 3) - daughter of the deceased.

Fagni Bai (P.W. 1) - wife of the deceased, daughter-in-law of deceased Appellant Chandrika and sister-in-law of the Appellants herein has deposed in her evidence that on the fateful day her husband deceased Ram Kumar was going in front of the house of the Appellants, suddenly Appellant Chhatram caught hold of his hand and dragged him into his house, Appellant Suman also caught hold of his neck and deceased Appellant Chandrika helped Chhatram and Suman in dragging Ram Kumar inside their house, Appellant Narmada Bai closed the door from inside and they assaulted her husband. Her husband cried for help ''save save run run'' on which she sent her daughter Miss Sunanda (P.W. 3) to see the incident and she also went to the house of the Appellants through another way. She requested the Appellants for opening the door, but they did not open the door. Her daughter also reached there and Appellants Chandrika, Ghhatram and Suman assaulted her daughter over her waist. She went to call the persons for help and came with Bahoran and Girija Shankar. Lastly they took out the injured from the house of the Appellants. Rahi Bai (P.W. 2) - wife of deceased Appellant Chandrika and mother of deceased Ram Kumar and the Appellants herein also came to the place of incident and opposed the incident on which the Appellants assaulted her also. This witness {Fagni Bai (P.W. 1)} went to the Police Station and lodged report. She has further deposed that the police has not written the report in accordance with her version.

The prosecution has also examined Rahi Bai (P.W. 2), the injured witness, who has admitted their relationship, but has not supported the case of the prosecution and the prosecution has declared her hostile. Rahi Bai (P.W. 2) is mother of Appellants No. 2 to 4 herein and wife of deceased Appellant Chandrika. Although deceased Ram Kumar was also her son, it appears that on the ground of relation she has not corroborated the evidence of Fagni Bai (P.W. 1) which is not unnatural.

Another eye witness Miss Sunanda (P.W. 3) has deposed in her evidence that while her father was coming in front of the house of the Appellants, the Appellants caught hold of him and dragged inside their house, Narmada closed the door from inside and they assaulted her father, then she reached near the place of incident through the kitchen garden of Manharan and saw the incident. She tried to intervene in the incident, but instead of stopping the quarrel they assaulted her over her waist. Her mother came with Bahoran, Hemant Sharma, Panchram and other persons who caused to open the door and at that time her grand-mother Rahi Bai also came, when the accused persons chased Rahi Bai to assault her, she (Sunanda) fled away towards Bazaar Para. After causing injury to Ram Kumar, the Appellants came to the house of this witness and tried to assault her, her mother and her younger sister. Keshav and Sumant took out her father from the house of the Appellants. She asked her father that at whose instance he was beaten to which her father told that he was beaten at the instance of Sarpanch on the ground of payment of compensation. They took the injured to the Police Station where her mother lodged the report. The police has not sent her for medical examination.

Gendram (P.W. 5), Ram Prasad (P.W. 6) and Mst. Bhaga Bai (P.W. 7) have only deposed that Ram Kumar died, but they have not supported the case of the prosecution and the prosecution has declared them hostile.

Bahoran (P.W. 8) has deposed that on the fateful day at about 8 p.m. he was sitting at Bazaar Para near the house of Pusau where wife of Ram Kumar namely, Fagni Bai (P.W. 1) came and took him to the house of the Appellants where 100-150 persons were standing, deceased Chandrika and his sons were also standing and Chandrika told him that he should let them beat and do not intervene, at that time, Fagni Bai also came whom Chandrika pushed. The prosecution has also declared this witness as hostile.

Shivram (P.W. 9) has deposed in his evidence that on the fateful day he along with Ram Kumar was coming from pond, he went inside his house, Ram Kumar went ahead, after some time heard cries and the house of Chandrika was closed. After some time, persons took out Ram Kumar from the house and took Ram Kumar to the Police Station. He has further deposed that he has not seen the incident and the prosecution has declared him hostile.

The evidence of hostile witnesses Gendram (P.W. 5), Ram Prasad (P.W. 6) and Mst. Bhaga Bai (P.W. 7) reveal that some incident took place near the house of the Appellants, Ram Kumar sustained injuries and as a result of such injuries he ultimately died. The evidence of Bahoran (P.W. 8) reveals that deceased Appellant Chandrika along with others was quarrelling with Ram Kumar. In his cross-examination he has admitted that Fagni Bai informed him that the Appellants are assaulting her husband. Likewise, the evidence of Shivram (P.W. 9) reveals that some incident took place between the Appellants and Ram Kumar, Ram Kumar sustained injuries and finally he died.

Defence has examined Alakh Ram (D.W. 1) and Kashi Prasad Rathore (D.W. 2). Alakh Ram (D.W. 1) has deposed in his evidence that at the time of incident there was complete darkness, there was no facility of light near the place of incident, visibility was very poor, he was sitting near his house, one person came and informed that somebody assaulted Ram Kumar in the field, then deceased Appellant Chandrika, Appellant Chhatram and injured Rahi Bai went to the field for bringing deceased Ram Kumar and finally they brought Ram Kumar from the field to his house. He has further deposed that on that day, Fagni Bai and Sunanda were not present in the village and they came between 8.30 and 9 p.m. He has given description of the kitchen garden of Chandrika and stated that the kitchen garden was surrounded by a wall and houses of Tijau and Jivan, height of the wall is 8-10 ft. He has denied the suggestions that on the date of incident Fagni Bai and Sunanda were present in the village, there was no darkness at the time of incident and Ram Kumar was not lying in the field.

Another defence witness Kashi Prasad Rathore (D.W. 2) has also deposed that there was no light near the place of incident and kitchen garden of the Appellants was surrounded by a wall of 7-8 ft. height. He has further deposed that he was sitting near the square, then one person was shouting, he came and told that somebody has assaulted Ram Kumar in the field, Chandrika came to him, they went to the field and brought Ram Kumar to the village. At that time,

Fagni Bai and Sunanda were not present in their house, they had gone outside and they came at about 8.30 - 9 p.m. In his cross-examination, he has denied the suggestions that Fagni Bai and Sunanda were present in the village, Ram Kumar was not lying in the field and nobody has informed him.

On close scrutiny of the evidence of these witnesses (D.W. 1 and D.W. 2) it reveals that they were not in a position to say that who informed them about the incident, how they knew the incident that some person has assaulted Ram Kumar and that Ram Kumar was lying in the field, where he resides and how these witnesses know the fact that Fagni Bai and Sundanda were not present in the village and they came between 8.30 and 9 p.m., especially when other witnesses had specifically admitted the presence of Fagni Bai near the place of incident, at the time of incident. Bahoran (P.W. 8) has specifically deposed that Fagni Bai came to him and took him to the place of incident. This fact clearly shows that Alakh Ram (D.W. 1) and. Kashi Prasad Rathore (D.W. 2) are not speaking-truth, inter alia, they are concealing the truth.

Defence has cross-examined Fagni Bai (P.W. 1) at length. In her detailed, cross-examination, she was stuck to her version that the Appellants are the persons who have dragged her husband inside the room and assaulted her husband. She: has also deposed in para 13 of her cross-examination that she requested the Appellants for opening the door, but they did not open the door on which she went to the village for calling other persons. She has further admitted that the Appellants assaulted her daughter Sunanda and her mother-in-law Rahi Bai also. In para 22 of her cross-examination she has admitted the suggestion that her house consists of two floors (temporary termed as patav). In para 25 she has denied the suggestion that Anand Sharma, Hemant Sharma and Pusau Vastrakar have assaulted her husband. She has also denied the suggestion that after knowing the fact that they have assaulted her husband, the Appellants went to the spot for bringing her husband and they brought her husband. She has further denied the suggestion that she was not present in the village and when she came to her village, Anand Sharma mislead her that the Appellants have assaulted her husband, therefore, she has lodged the report. She has also denied the suggestion in para 28 of her cross-examination that only with a view to take the property of the accused persons which she may get after conviction of the accused, she has lodged false report against the Appellants.

Defence has also cross-examined Miss Sunanda (P.W. 3) in detail. She has stated in para 15 of her cross-examination that when she reached near the spot and she saw her injured father whose hand and leg were fractured, the Appellants were consuming liquor and they were assaulting her father. She has denied the suggestion in para 19 of her cross-examination that on the fateful day she and her mother were not present in the village and when they came from her maternal uncle''s village, she came to know that Anand Sharma and others have assaulted her father. She has also denied the suggestion that Anand Sharma and others have misled her, therefore, she has made false complaint against the Appellants.

Rahi Bai and Sunanda have been examined by the doctor and injuries over their persons including fracture of left femur of Rahi Bai were found. Spot map Ex.P-17 reveals that the incident took place in an open courtyard surrounded by walls and rooms. Kitchen garden of the Appellants is adjoining to the house and kitchen garden of Bhakku. Both the eye witnesses have deposed that the Appellants dragged Ram Kumar inside their house and closed the door from inside. They went from the other side and seen the incident. The incident took place in an open courtyard adjoining to the kitchen garden of the Appellants adjacent to the kitchen garden and house of Bhakku and it was veiy much possible for aperson to reach near the place of incident from other side towards the kitchen garden of Bhakku and kitchen garden of the Appellants.

The evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) reveals that all the Appellants were present inside the room, they dragged Ram Kumar inside the house and only four persons were present inside the house along with Ram Kumar. Ram Kumar was found in injured condition inside their house. The evidence of Bahoran (P.W. 8) also reveals that deceased Appellant Chandrika and his sons i.e. Appellants No. 2 and 3 herein were standing in their house, Chandrika told this witness that he should allow them to beat and she should not intervene. This witness corroborates the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) that deceased Appellant Chandrika and his sons Suman and Chhatram have assaulted Ram Kumar.

Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) are wife and daughter of the deceased, respectively, and close relatives of the deceased, but their evidence cannot be discarded on the ground of relationship. Even otherwise, relatives are the persons reluctant to spare the real culprit and implicate innocent person falsely.

Fagni Bai (P.W. 1) has specifically deposed that the Appellants have caused injury to Ram Kumar at the instance of Sarpanch on the ground of payment of compensation, but the police has not made them accused, she has tried her level best for impleading them as accused, but the police has not impleaded them as accused. Her evidence shows the there was dispute relating to payment of compensation. There are some omissions and contradictions in the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3). The statement recorded u/s 161 of the Code of Criminal Procedure is a brief statement and the statement recorded in the Court is a detailed statement, therefore, contradictions and omissions in both the statements are natural. The evidence of the witnesses cannot be discarded only on the ground that there are contradictions and omissions.

The maxim ''faisus in uno, faisus in omnibus'' is not applicable in India. Statement of any witness cannot be discarded and rejected out rightly on the ground that the witnesses patently falsely implicated to one or more accused or his statement is not reliable for some accused. Statement of a witness may be relied upon for some accused and may be rejected or discarded relating to some accused.

While dealing with the question of reliability of the evidence of the person who has exaggerated and patently given false statement up to some extent, the Apex Court in the matter of Laxman and Others Vs. The State of Maharashtra, has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under:

Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p. 51), "Law and the Modem Mind" (see: 1949 ed. P. 106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon afterwards, what the)'' had seen and heard. The astounding result was:

Words were put into the mouths of men who had been silent; spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic-comedy were completely eliminated from the memory of a number of witnesses.

Hence, the Professor concluded: "We never know, or imagine", Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse tc apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno faisus in omnibus".

In the matter of Sucha Singh and Another Vs. State of Punjab, , the Apex Court has held that the maxim faisus in uno faisus 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''. Para 18 of the said judgment reads thus

To the same effect is the decision in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, ) and Lehna Vs. State of Haryana, }. Stress was laid by the accused-Appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out 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 major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of the 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 "faisus 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 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 Vs. The State of Uttar Pradesh, }. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate accused who had been acquitted from those who were convicted. {See Gurcharan Singh and Another Vs. State of Punjab, }. 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. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. [See Sohrab and Another Vs. The State of Madhya Pradesh, } Ugar Ahir and Others Vs. The State of Bihar, ]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible 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 Zwinglee Ariel Vs. State of Madhya Pradesh, and Balaka Singh and Others Vs. The State of Punjab, . As observed by this Court in State of Rajasthan Vs. Smt. Kalki and Another, , 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 categorized. While normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. { 2002 (4) JT (S.C.) 186}. Accusations have been clearly established against accused-Appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.

In the light of the aforesaid preposition of law and in the context of the evidence of Bahoran (P.W. 8), if we examine the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3), it would be clear that deceased Appellant Chandrika and his sons were the persons who had assaulted Ram Kumar. Both the eye witnesses have deposed that these three persons had assaulted Ram Kumar and they also assaulted Miss Sunanda (P.W. 3). There is consistency in the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3), even in the evidence of Bahoran (P.W. 8) relating to injuries caused by Chandrika, Suman and Chhatram to Ram Kumar and the assault made by these persons, but there is inconsistency relating to the assadt made by Narmada Bai or the role attributed to her.

As has been held by the High Court of Madhya Pradesh in Mangu''s case (supra), in case of solitary eye-witness, the standard of evidence should be sterling worth. But in the present case, conviction is not based only on the evidence of solitary eye witness. The case of Mangy 1997 CriLR (MP) 106 (supra) is distinguishable on facts to that of the present case. Similarly, as in the case of Gendiya 1986 (1) MPWN 106 (supra), the present case is not based on the evidence of sole eye witness. In the present case, there are some contradictions and omissions in the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3), but they are trifle in nature and do not effect the root of the case. The case of Gendiya 1986 (1) MPWN 106 (supra) is also distinguishable on facts to that of the present case.

In the present case, Fagni Bai (P.W. 1) has deposed that the police has not recorded F.I.R. in accordance with her saying and she has tried her level best, but the police has not impleaded other person as accused. She has not deposed that the police has falsely recorded the F.I.R. against these accused persons. In case if the evidence of Fagni Bai (P.W. 1) is considered as true, it may be presumed that the police has failed to implead other persons at whose instance the Appellants have assaulted the injured, but it is difficult to hold that the police has tampered the first information report. Therefore, Anilachandran s case 2009 (77) AIC 46 (S.C.) (supra) is also distinguishable on facts to that of the present case.

On close scrutiny of the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3), especially in the light of the dictum of High Courts and Apex Court as relied upon by the defence, evidence against Appellant Narmada Bai is not of sterling quality sufficient for drawing inference against her that she has participated in the commission of the offence. Even mere presence of Appellant Narmada Bai in her house, which was natural, will not make her the offender. However, the evidence of Fagni Bai (P.W. 1) and Miss Sunanda (P.W. 3) corroborated by the evidence of Bahoran (P.W. 8) are sufficient for drawing inference that these Appellants (deceased Appellant Chandrika, Suman and Chhatram) have dragged Ram Kumar inside their house and afterwards, Ram Kumar was found in injured condition when he was taken out from the house of the Appellants. The Appellants have not offered any explanation that how Ram Kumar sustained injuries when he was within their custody inside the house of deceased Appellant Chandrika, Suman and Chhatram. They were under obligation to explain the injuries found over the body of Ram Kumar which were serious in nature, in accordance with Section 106 of the Indian Evidence Act. Non-explanation of the injuries sustained by Ram Kumar is substantive adverse circumstance against Appellants Chhatram, Suman and deceased Appellant Chandrika, and the same is sufficient for drawing inference that these accused persons have caused fatal injuries to Ram Kumar resulting into his death.

After appreciating the evidence available on record, learned trial Court has convicted the Appellants u/s 302 read with Section 34 of the I.P.C., but has not considered the inconsistency in the evidence relating to Appellant Narmada Bai, especially in the light of the injuries caused to Rahi Bai and Sunanda only by three persons and presence of deceased Appellant Chandrika along with his sons which excludes the possibility of participation of Appellant Narmada Bai in the commission of the offence, and thereby committed illegality.

Conviction of Appellants Suman, Chhatram and deceased Chandrika is based on clinching and legal evidence sustainable under the law, but the evidence relating to Appellant Narmada Bai is not sufficient for drawing inference that she has also caused injuries to deceased Ram Kumar in sharing common intention and has caused the death of Ram Kumar. Conviction of Appellant Narmada Bai is not sustainable under the law, on the ground of insufficient evidence.

For the foregoing reasons, we are of the considered view that convictio n and sentences of Appellant Narmada Bai u/s 302 read with Section 34 of the I.P.C. are not sustainable under the law, but conviction and sentences of Appellants Suman and Chhatram u/s 302 read with Section 34 of the I.P.C. are sustainable under the law.

Consequently, the appeal is partly allowed. Conviction and sentences of Appellants Suman and Chhatram u/s 302 read with Section 34 of the I.P.C. are hereby maintained, but conviction and sentences of Appellant Narmada Bai u/s 302 read with Section 34 of the I.P.C. are hereby set aside, she is acquitted of the said charge and she be released forthwith, if not required in any other case.