Lokendra Singh & Ors vs State Of Madhya Pradesh

This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 30/09/2003 passed by 6th Additional

Sessions Judge (Fast Track Court), Bhind in Sessions Trial No.260/2002, by which the appellants have been convicted for the offence under Sections

304-B, 498-A, 201 of IPC as well as Section 4 of Dowry Prohibition Act and sentenced to undergo the rigorous imprisonment of ten years, rigorous

imprisonment of two years, rigorous imprisonment of two years and rigorous imprisonment of one year and fine of Rs.1,000/- for each offence

respectively, with default imprisonment.

(2) The undisputed fact is that appellant No.1-Lokendra Singh is thehusband, appellant No.2-Jogendra Singh is the brother-in-law and appellant No.3-

Bitouli Devi is the mother-in-law of the deceased. Smt. Rama, who is the sister-in-law of the deceased, was also tried along with the appellants, but

she has been acquitted. Her acquittal has not been challenged either by the State or by the complainant, therefore, any reference to Smt.Rama would

be in the context of allegations made against the appellants.

(3) The necessary facts for the disposal of present appeal in short arethat on 06/07/2002, the deceased Saroj died other than in normal circumstances

within seven years of her marriage. Her dead body was disposed of by the appellants in a clandestine manner. According to the prosecution case, the

deceased was married to the appellant No.1 on 09/05/1997 as per Hindu rites and rituals. At the time of marriage, father of the deceased Saroj had

given Rs.60,000/-in cash and articles worth of Rs.30,000-35,000/-. About one and a half years from the date of marriage, the deceased Saroj was kept

properly. However, thereafter the appellants started demanding Rs.50,000/- and a motorcycle from the deceased Saroj and because of non-fulfillment

of said demand, the deceased Saroj was being harassed by the appellants. Ultimately, she died under suspicious circumstance. Thereafter, the dead

body of the deceased was thrown in the river after tying the same with heavy stones. Prior to her death, she had requested her brother Vinod Singh

Chauhan on 05/07/2002 to take her back otherwise she would be killed. When the father of the deceased Ravindra Singh Chauhan, came back to his

house on 07/07/2002, Vinod Singh Chauhan informed his father about the telephonic request made by the deceased and accordingly, on 08/07/2002 the

brother of the deceased went to the matrimonial house of the deceased and found that the house was locked and there was nobody in the house. An

information was given by the brother of the deceased to his father and accordingly, the parents of the deceased along with some other persons came

to village Phoop, District Bhinnd, where they were informed by the neighbourers that the deceased Saroj has already been killed by the appellants and

her dead body has been immersed in Kuari river near Paraghat. The dead body of the deceased was identified by the parents of the deceased. The

police, after completing the investigation, filed the charge sheet against the appellants for the offences under Sections 304B, 498-A, 201, 34 of IPC

and under Section 3/4 of Dowry Prohibition Act. The trial Court framed the charges under Section 304-B, in the alternative Section 304-B/34, under

Section 498-A in the alternative Section 498A/34, under Section 201 of IPC and under Section 4 of Dowry Prohibition Act.

(4) The appellants abjured their guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined Mewaram (PW1), N.L.Pippal (PW2), Ravindra Singh Chauhan (PW3), Munim Singh

(PW4), Vinod Singh Chauhan (PW5), Shivpal Singh (PW6), Ramhet Singh Tomar (PW7), Shanti (PW8), Naresh Singh (PW9), RD Prajapati (PW10),

JS Chauhan (PW11), Virendra Kumar (PW12) and Dr.JN Soni (PW13).The appellants, examined Maturlal Sharma (DW1) and Kamlesh Singh

(DW2), in their defence.

(6) The trial Court by judgment dated 30/09/2003 convicted theappellants for the offences under Sections 304-B, 498-A, 201 of IPC and under Section

4 of Dowry Prohibition Act and sentenced them, as stated in paragraph of this judgment and acquitted Smt.Rama of all the charges.

(7) Challenging the judgment and sentence passed by the Court below,it is submitted by the counsel for the appellants that in fact, the marriage of the

deceased took place on 09/05/1995 and not on 09/05/1997, as claimed by the prosecution and accordingly, the death of the deceased took place after

seven years of her marriage. It is further submitted that after giving birth to the child, the deceased was not keeping well and her health did not

improve in spite of the treatment, as a result of which she died natural death. As per the customs prevailing in the society, the dead body of the

deceased was immersed in the river and the allegations of harassment have been falsely made after the death of the deceased. It is further submitted

that the appellants are innocent persons and the appellants No.2 & 3, namely, Jogendra Singh and Bitouli Devi were residing at Itarasi and omnibus

and vague allegations have been made against the appellants.

(8) Per contra, it is submitted by the counsel for the State that it is incorrect to state that the deceased was married to the appellant No.1 on

09/05/1995. The prosecution has proved beyond reasonable doubt that the deceased was married to the appellant No.1 on 09/05/1997 and the death of

the deceased occurred other than in normal circumstance within seven years of her marriage. It is further submitted that the appellants have failed to

prove that the appellants No.2 & 3 were residing at Itarasi and not at Phoop, District Bhind. The defence taken by the appellants that the deceased

was not keeping well after the birth of her child, is incorrect. No medical prescription has been filed in order to show that she was being treated for

any ailment. It is the case of the appellants themselves that the deceased was residing with them and she died and accordingly, the appellants had

submerged the dead body of the deceased in the river. Although the appellants have claimed that there is a custom in their society to immerse the

dead body in the river, but the custom has not been proved. Even otherwise, the fact that the appellants did not inform the parents of the deceased

about the death of the deceased clearly indicates their guilty consciousness. Further, the deceased herself had informed her brother on 05/07/2002 that

he should take the deceased from her matrimonial house otherwise she would be killed and accordingly, when on 08/07/2002, the brother of the

deceased went to the matrimonial house of the deceased, he found that the house was locked and nobody was there. If the deceased had died natural

death and there was no default on the part of the appellants, then there was no reason for them to abscond after the incident. It is further submitted

that the incriminating circumstance of disposing of the dead body of the deceased by submerging the same in the river without informing even the

parents of the deceased or the neighbourers of the locality, clearly indicates that the death of the deceased had occurred other than in normal

circumstance.

(9) Heard the learned counsel for the parties.

(10) In the present case, the postmortem of the dead body of thedeceased Saroj was conducted by Dr.JN Soni (PW13). On external examination, the

doctor had found the following circumstances:-

''Ring on left middle finger, three glass bangles on left wrist, facial muscles, skin of chest and abdomen and both legs were missing while skin was

missing at places over thighs, buttocks and back. Part of both ears were missing. Scalp hairs was present over vertex and occiptal region and easily

peeled off on slight presence. Neck structures were decomposing and upper half of the structure was missing. Both upper limbs muscles were

softened and bones visible in between left elbow joint and shoulder joint were opened. Fingers were comparatively infect (one ring) right hand below

the wrist was missing. Finger tips were also missing on left side. Skin of sole was also missing while bones were articulated by soft decomposing

tissue. Lips were also missing. Internal organs were also found decomposing.''

The doctor after conducting postmortem had given the following opinion:-

''The dead body of a young female is on the state of moderate decomposition. Cause of death kept open. Hence, viscera has been preserved for

chemical analysis and right tibia bone for diatom test. The duration of death is within 02 days to 04 days since postmortem examination and the nature

of death should be decided on the basis of circumstantial evidence.''

The postmortem report is Ex.P18.

 Dr.J.N.Soni(PW13) was cross-examined and in his cross-examination he admitted that only by diatom test, it can be established that whether the

person was thrown in the river prior to her death or after her death. In the cross-examination, it was firmly stated by Dr.JN Soni that it was clear from

the condition of the dead body of the deceased that it had remained submerged in the water for a considerably long time.

(11) It is submitted by the counsel for the appellants that Dr. JN Soni(PW13) could not point out any cause of death and the right tibia bone was

preserved for conducting diatom test and the prosecution has failed to place the report of diatom test and, therefore, an adverse presumption has to be

drawn against the prosecution and thus, it is clear that the prosecution has failed to prove that the death of the deceased Saroj had occurred other than

in normal circumstance and, therefore, the appellants have wrongly convicted for offence under Section 304-B of IPC.

The submission made by the counsel for the appellants cannot be accepted.

(12) It is undisputed fact that the deceased Saroj was residing with theappellants. A suggestion was also given by the appellants to Ravindra Singh

Chauhan (PW3), the father of the deceased Saroj, in para 25 of his cross-examination that in case of natural death the dead body is immersed in the

flowing water. Even otherwise, it is the defence of the appellants that the deceased had died natural death. Although a suggestion was given by the

appellants to Ravindra Singh Chauhan (PW3) that there is a custom in the society to immerse the dead body in the river, but this stand has not been

taken by the appellants in their statements under Section 313 of CrPC. Furthermore, when the dead body was taken out from the river, it was found

tied with heavy stones. In Recovery Memo Ex.P.4 and Naksha Panchnama Ex.P6, it has been specifically mentioned that the dead body of the

deceased was found tied with stones and was lying in the river. Since the appellants have themselves admitted that the deceased had died in the

matrimonial house itself and the dead body of the deceased Saroj was submerged in the river and that dead body was found tied with heavy stones, so

that the dead body may not float in the river, coupled with the specific answer given by Dr.JN Soni (PW13) about the condition of the dead body, it

may be said that the dead body had remained submerged in the river for a considerable long time, this Court is of the considered opinion that the

prosecution has succeeded in establishing that death of the deceased had occurred other than in normal circumstance.

(13) The next question which arises for determination is that whetherthe deceased had married to the appellant No.1 on 09/05/1995 or 09/05/1997, as

claimed by the prosecution. According to the prosecution case, the deceased was married to the appellant No.1 on 09/05/1997 and the marriage card

has also been placed on record as Ex.P10. The marriage card has been duly proved by Ravindra Singh Chauhan (PW3), the father of the deceased.

A specific question was put to the father of the deceased in paragraph 16 of his cross-examination that the deceased was married to the appellant

No.1 on 09/05/1995, which was specifically denied by Ravindra Singh Chauhan (PW3). Another question was put to this witness that the marriage

card Ex.P10 is not addressed to anybody and was never sent to anybody and it was replied by this witness that some marriage cards had remained

with him unused and Ex.P10 is one of those marriage cards. It is submitted by the counsel for the appellants that in fact, the marriage card Ex.P10

was got printed subsequently and, therefore, the name of the printing press was not mentioned on the marriage card. Even otherwise, the marriage

card was never sent to anybody, which clearly shows that the marriage card Ex.P10, is a concocted document.

(14) Considered the submissions made by the counsel for the appellants.(15) Â So far as the explanation given by Ravindra Singh Chauhan (PW3)

that some of the marriage cards had remained unused and the marriage card Ex.P10 is one of those unused marriage cards is concerned, the same

cannot be said to be false or incorrect. It is a matter of common knowledge that sometimes, some of the marriage cards remain unused and under

these circumstances, the explanation given by this witness that the marriage card Ex.P10 had remained unused and was with this witness itself, cannot

be said to be an afterthought. On the contrary, it is honest reply given by Ravindra Singh Chauhan (PW3).

(16) It is next contended by the counsel for the appellants that the said marriage card was not seized by the police, therefore, the marriage card

Ex.P10 cannot be said to be reliable document. It is well-established principle of law that the accused cannot take advantage of a defective

investigation. Even otherwise, it was claimed by the appellants that the marriage of the deceased Saroj took place with the appellant No.1 on

09/05/1995, however, the appellants have failed to substantiate their claim for the following reasons:-

The appellants have examined Matrula Sharma (DW1) as a Pandit, who had written Lagun of the appellant No.1. The Lagun written by this witness

has been placed on record as Ex.D1. Matrula Sharma (DW1) was cross-examined by the public prosecutor and in cross-examination, this witness

could not tell the locality, where Ravindra Singh Chauhan (PW3) was residing. He also could not tell that whether the house of Ravindra Singh

Chauhan (PW3) was a single storey or a double storey. He has further stated that he had gone along with Man Singh to the house of Ravindra Singh

Chauhan (PW3) for writing the Lagoon, but stated that he came back to village Phoop all alone. For performing the Lagun ceremony 10-11 persons

had gone but he could not name any of them. He also could not tell as to how much cash was given at the time of Lagun. Even, he also could not tell

that by which vehicle the persons had gone to the house of Ravindra Singh Chauhan. This witness further admitted that in Ex.D1, he has not

mentioned the date on which the Lagun was written. This witness further admitted that he did not attend the marriage of the appellant No.1 but he

explained that he had sent his younger brother because he had gone to perform the marriage of a girl. However, he could not tell the name of the

father of the said girl. He further admitted that he had gone to the house of Ravindra Singh Chauhan only for once. He also could not explain as to

how many persons had attended the Barat. Thus, it is clear that on the other hand, this witness had claimed that he had gone to the house of Ravindra

Singh Chauhan (PW3) and had written the Lagun but on the contrary, he even could not tell that whether the house of Ravindra Singh Chauhan was a

single storey or double storey. Even this witness could not tell the name of the locality. This witness also did not attend the marriage of the appellant

No.1 and the explanation for nonattending the marriage also could not be justified by this witness because he even could not tell the name of person of

whose daughter he had performed the marriage. Thus, it is clear that the appellants have failed to prove that the Lagun was written on 09/05/1995.

It is next contended by the counsel for the appellants that Arun Singh Bhadauria is the son of the deceased and in the school admission register, the

date of birth of Arun Singh Bhadauria has been mentioned as 12/10/1996. To prove the school admission register Ex.D3, the appellants have examined

Kamlesh Singh (DW2). In cross-examination, Kamlesh Singh (DW) has admitted that there is an overwriting on the date of birth of the son of the

deceased. This witness has also admitted that there is some variation in the ink. The appellants have also filed one mark-sheet of Arun Singh

Bhadauria as Ex.D2, in which the date of birth of the son of the deceased has been mentioned as 12/09/1996. This mark sheet has also been

issued/proved by Kamlesh Singh (DW2). Kamlesh Singh (DW2) has admitted that he was earlier working as a teacher in the school and now he is

working on the post of clerk. The school is situated in the city of Bhind whereas the appellants were residents of village Phoop, District Bhind which is

far away from the city of Bhind. If the date of birth of Arun Singh Bhadauria is accepted as 12/10/1996, then it is clear that he was admitted in KG

Class on 07/07/1999 that means he was less than three years of age. Kamlesh Singh (DW2) has admitted that as per the rules, the age of child for

admission in KG Class should not be less than three and half years and if the date of birth of Arun Singh Bhadauria is accepted as 12/10/1996, then it

would be clear that on 07/07/1999, the child of the deceased was less than three years of age and, therefore, he could not have been given the

admission in the school, as per admission made by Kamlesh Singh (DW2).

Even otherwise, there is another aspect that cannot be lost sight of. The appellants are residents of village Phoop situated at a distant place from the

city of Bhind. It cannot be imagined that the appellants who were residents of village Phoop, would send their two and half years child to the school

which is situated at a distant place. Furthermore, the appellants could have produced the birth certificate of the son of the deceased. It is submitted by

the counsel for the appellants that in the year 2002, there was no procedure for registration of birth and death of a child or a person. The submission

made by the counsel for the appellants cannot be accepted for the simple reason that even for the sake of argument, it is accepted that there was no

authority in the village to register the death or birth of a child/ person, then it was the duty of the Kotwar to register the death or birth of a

person/person in Kotwari book. The appellants could have produced the Kotwari book to prove the birth of the child of the deceased. Even they have

not stated that in which hospital the deceased had given birth to the child. They could have produced the record of the hospital, where the deceased

had given birth to the child but even that was not done. Even in the statements under Section 313 of CrPC the appellants have not claimed that the

date of birth of the child of the deceased is 12/10/1996. Thus, it is clear that the appellants have failed to prove that the deceased was married to the

appellant No.1 on 09/05/1995 and not on 09/05/1997, as claimed by prosecution. Accordingly, it is held that the prosecution has proved beyond

reasonable doubt that the deceased was married to the appellant No.1 on 09/05/1997 and accordingly, it is held that the deceased died in suspicious

circumstance within seven years of her marriage.

 It is next contended by the counsel for the appellants that the prosecution has failed to prove that there was any demand of dowry or any

harassment by the appellants because of non-fulfillment of their demand. It is also contended by the counsel for the appellants that it is the case of the

prosecution itself that the deceased was kept properly for one and a half years of her marriage. The demand of harassment started only after one and

a half years of her marriage. It is submitted that there was no reason for the appellants to start demanding dowry after one and a half years of her

marriage and had there been any demand of motorcycle and Rs.50,000/-, then the appellants would have made such demand immediately after the

date of marriage. It cannot be said that the appellants were demanding Rs.50,000/- and a motorcycle from the deceased and her parents and because

of non-fulfillment of such demand, she was being harassed.

(17) Considered the submissions made by the counsel for the appellants.

(18) Ravindra Singh Chauhan (PW3), who is father of the deceased, has specifically stated that the deceased Saroj made a complaint with regard to

harassment for the first time after one and a half years of her marriage and she informed that the appellants and her sister-in-law Smt. Rama were

demanding an amount of Rs.50,000/- and a motorcycle and were harassing because of said demand. However, this witness expressed his inability to

fulfill the demand. On 05/07/2002, the deceased called her brother Vinod Singh Chauhan and when father of the deceased Ravindra Singh Chauhan

came back to his house on 07/02/2002, then he was told by his son Vinod Singh Chauhan about the telephonic message of the deceased, who had

requested her brother to take her away from her matrimonial house as the appellants were harassing her. On 08/02/2002, this witness sent his son

Vinod Singh Chauhan to the matrimonial house of the deceased, who informed on telephone that there was nobody in the matrimonial house of the

deceased and the house was locked and even the deceased was not there and accordingly, this witness along with his wife and other persons went to

village Phoop and found that the matrimonial house of the deceased was locked and nobody was there. The neighbourers informed this witness that

the deceased has been killed and her dead body was thrown in Kuari river and this witness went to Police Station and made a report

Ex.P2.Thereafter, the police searched for the dead body of the deceased in the river. They found that the hand of the dead body was visible on the

top of the river and accordingly, the dead body was taken out from the river. The Panchnama of recovery of dead body Ex.P4 was prepared and in

the Panchnama, it was specifically mentioned that the dead body was found tied with bricks and stones and total weight of bricks and stones was

around 60 kg. The dead body of the deceased was identified and the identification memo Ex.P5 was prepared. Naksha Panchnama Ex.P6 was

prepared. The notices to the witnesses were given vide Ex.P7. Some water of the river was seized vide Ex.P8 and spot map Ex.P9 was prepared.

This witness has also proved the marriage card of the deceased which is Ex.P10.

(19) Vinod Singh Chauhan (PW5) has also supported the prosecutioncase and has also narrated the entire incident. This witness has stated that the

deceased was married to the appellant No.1 on 09/05/1997 and the deceased was kept properly for about one year and thereafter, the appellants and

sister-in-law of the deceased started demanding a motorcycle and Rs.50,000/- and because of the said demand she used to be beaten by the

appellants. On 05/07/2002, the deceased called this witness and requested that he should take her from her matrimonial house. On that day, Ravindra

Singh Chauhan (PW3) was not in the house. On 07/07/2002, the father of the deceased, namely, Ravindra Singh Chauhan (PW3) came back to his

house and he was informed about the telephonic message given by the deceased and accordingly, this witness was sent by Ravindra Singh Chauhan

(PW3) to the matrimonial house of the deceased in order to bring her back and on 08/07/2002, when he reached the matrimonial house of the

deceased, he found that the house was locked and accordingly, he informed his father Ravindra Singh Chauhan (PW3). His father along with other

persons came to village Phoop and enquired from the neighbourers who informed that the deceased Saroj has already been killed about two days back

and the dead body has been thrown in Kuari river. Thereafter, this witness informed the police and went to Kuari river, from where the deceased was

taken. The deceased was identified from the finger ring, which she was wearing.

(20) Shanti Bai (PW8) who is mother of the deceased, has stated in thesame manner. This witness was cross-examined by the police. However,

nothing could be pointed out by the appellants so as to disbelieve the allegations made by this witness that the deceased was being harassed because

of non-fulfillment of demand of dowry.

(21) As already pointed out, undisputedly the deceased was living alongwith the appellants. After her death even the parents of the deceased were not

informed and just prior to her death, the deceased had requested her brother Vinod Singh Chauhan (PW5) to take her back otherwise she would be

killed and when on 08/07/2002, the brother of the deceased went to the matrimonial house of the deceased, then he found that the house was locked

and the appellants were not there. This Court has already come to a conclusion that the subsequent conduct of the appellants as well as telephonic

message given by the deceased to her brother just prior to her death clearly proves that the death of the deceased had occurred other than in normal

circumstance within seven years of her marriage. Thus, it is held that the prosecution has proved beyond reasonable doubt that the deceased was

being harassed by the appellants because of non-fulfillment of demand of Rs.50,000/- and a motorcycle.

(22) It is next contended by the counsel for the appellants that as thetrial Court itself has acquitted the co-accused Smt. Rama on the basis of similar

allegations, therefore,it is clear that the trial Court itself had not considered the evidence of these witnesses as reliable and thus, the evidence of these

witnesses should be discarded and disbelieved. The submission made by the counsel for the appellants cannot be accepted for the simple reason that

the maxim ''falsus in uno, falsus in omnibus'' has no application in India. The Court must try to remove the chaff from the grain.

The Supreme Court in the case of Paulmeli Vs. State of T.N. reported in (2014) 5 SCC (Cri) 573 has held as under :

''23. The learned counsel for the appellants submits that in case, on the basis of the same evidence, 15 accused persons had been acquitted, the

appellants could not have been convicted. We do not find any force in such a submission for the reason that there may be some exaggeration in

depositions of the prosecution witnesses. The courts below had not accepted the evidence to that extent and have given benefit of doubt.

In Balaka Singh v. State of Punjab, this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of

M.P. and held as under: (Balaka Singh case, SCC p. 517, para 8) “8. … the Court must make an attempt to separate grain from the chaff, the

truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the

chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely

new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against

which they are made, then this principle will not apply.â€​

In Sukhdev Yadav v. State of Bihar, this Court held as under: (SCC p. 90, para 3)

“3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or

embellishmentâ€"sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from

the witness box detail out an exaggerated account.â€​

A similar view has been reiterated in Appabhai v. State of Gujarat, wherein this Court has cautioned the courts below not to give undue

importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of

men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the

reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court.

However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.

In Sucha Singh v. State of Punjab, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is

found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from the chaff. Falsity of

particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus (false in one

thing, false in everything) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to

be feared that the administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however,

truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some

respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be

disregarded in all respects as well.''

 The Supreme Court in the case of Krishna Mochi Vs. State of Bihar reported in (2002) 6 SCC 81 has held as under :-

''51. Stress was laid by the accused-appellants 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. This plea is clearly untenable. Even if a

major portion of evidence is found to be deficient, in case residue is sufficient to prove 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 the chaff can be

separated from the 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 particular material witness or 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 liars. The maxim falsus in uno, falsus in

omnibus (false in one thing, false in everything) 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 evidenceâ€. (SeeNisar Ali v. State of U.P.) 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 the accused who had been acquitted from those who were convicted. (See Gurcharan

Singh v. 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 the

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

sifted 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 v. State of M.P. and Ugar Ahir v. State of Bihar.) An

attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not

feasible to separate the truth from falsehood, because the grain and the 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 v. State of M.P. and Balaka Singh

v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki 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. Accusations have been established against the accused-appellants in the case at hand.''

 Accordingly, the submissions made by the counsel for the appellants that once the evidence of these witnesses has been found to be unreliable in

the context of the co-accused Smt. Rama, then the Court should disbelieve these witnesses in toto, cannot be accepted. (23)  It is next contended

by the counsel for the appellants that the appellants No.2 and 3 were residing at Itarasi and not at Phoop and they had no occasion to make a demand

of dowry and to harass the deceased because of non-fulfillment of their demand. Although the appellants have claimed that the appellants No.2 and 3

were residing at Itarasi but they have not filed any document to substantiate their submissions. The appellant No.2 has taken a stand in his statement

under Section 313 of CrPC that he is working as a vendor at Railway Station Itarasi but the appellants have not examined the employer of the

appellant No.2 to prove that the appellant No.2 was working as a vendor at Railway Station Itarasi. No document has been filed to substantiate his

defence. It appears that since the co-accused Smt. Rama was residing at Itarasi, therefore, a false defence has been taken by the appellants that they

are residing at Itarasi and not in village Phoop, District Bhind. Thus, it is held that the appellants have failed to prove that the appellants No.2 and 3

were not residing at village Phoop, District Bhind but they were residing at Itarasi, District Hoshangbad.

 It is next contended by the counsel for the appellants that if the appellants did not inform the parents of the deceased about the death of the

deceased, even then no adverse inference can be drawn against the appellants and if the appellants had left their house, even then it cannot be said

that mere absconsion from the place of incident indicates the guilty consciousness of the appellants.

The submission made by the counsel for the appellants, cannot be accepted.

(24) It is well-established principle of law that non-explanation of an incriminating circumstance can be construed as a circumstance indicating the guilt

of the accused.

The Supreme Court in the case of Swamy Shraddananda alias Murali Manohar Mishra vs. State of Karnataka, reported in (2007) 12 SCC 288 has

held as under:-

''34. If it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires

the husband to offer an explanation in this behalf. We, however, do not intend to lay down down a general law in this behalf as much would depend

upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a

circumstance against the accused.

We may, however, notice that recently in Raj Kumar Prasad Tamarkar v. State of Bihar (2007) 10 SCC 433 this Court opined:( SCC pp.440-41,

paras 23-25)

 ''23. …... Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple,

the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to

discharge the same.

This legal position would appear from adecision of this Court in Nika Ram vs. State of HP (1972) 2 SCC 80, wherein it was held: (SCC p.87, para

16)

'16. It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the

statements of Mani Ram (PW8), who is uncle of the accused, and Bhagat Ram, school teacher (PW16). According to Bhagat Ram, he saw the

accused and the deceased together at their house on the day of occurrence. Mani Ram (PW8) saw the accused at his house at 3 p.m. while Poshu

Ram (PW7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was

with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room, one other

small room and a verandah. The correctness of that plan is proved by A. R. Verma, overseer (PW5). The fact that the accused alone was with Churi

deceased in the house when she was murdered there with the Khokhri and fact that the relations of the accused with the deceased, as would be

shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.'

In Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681 the law is stated in the following terms: (SCC p.694, para 22).

 '22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly

before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it

has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to

be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.''

The Supreme Court in the case of Ponnusamy vs. State of Tamil Nadu reported in (2008) 5 SCC 587 has held as under:-

 ''20. This Court in State of Maharashtra vs. Suresh (2000) 1 SCC 471 opined (SCC PP.479 80, para 26).

'26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed

without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else

concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the

criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was

concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of

such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to

be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in

Section 27 of the Evidence Act.''

We have to consider the factual background ofthe present case in the light of the relationship between the parties. If his wife was found missing,

ordinarily, the husband would search for her. If she has died in an unnatural situation when she was in his company, he is expected to offer an

explanation therefor. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him.

In Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681 it was observed:(SCC p.694, para 22).

''22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly

before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it

has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to

be false, it is a strong circumstance which indicates that he is responsible for commission of crime.''

Section 106 of the Indian Evidence Act reads as under:-

''106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that

intention is upon him.''

It is well-established principle of law that where an incident is especially within the knowledge of the accused, then the burden of proof is on the

accused to prove as to how the death of the deceased had occurred other than in normal circumstance.

The Supreme Court in the case of Babu alias Balsubramaniam and Another vs. State of Tamil Nadu, reported in (2013) 8 SCC 60 has held as under:-

''21. It is also pertinent to note that PW-5 Dr. Rajabalan stated that the injuries sustained by the deceased could have been caused 10 to 12 hours prior

to the postmortem. We have already stated that the post-mortem was conducted at 5.00 p.m. Thus, the death occurred around 6.00 a.m. The death

occurred in the house where the deceased resided with A1-Babu. Presence of the accused at 6.00 a.m. in the house is natural. Besides, it is not

contended by A1-Babu that he was not present in the house when the incident occurred. To this fact situation, Section 106 of the Evidence Act is

attracted. As to how the deceased received injuries to her head and how she died must be within the exclusive personal knowledge of A1-Babu. It

was for him to explain how the death occurred. He has not given any plausible explanation for the death of the deceased in such suspicious

circumstances in the house in which he resided with her and when he was admittedly present in the house at the material time. This circumstance

must be kept in mind while dealing with this case. We are mindful of the fact that this would not relieve the prosecution of its burden of proving its

case. But, it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding

the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which

might drive the court to draw a different inference. In this case, in our opinion, the prosecution has succeeded in proving facts from which reasonable

inference can be drawn that the death of the deceased was homicidal and A1-Babu was responsible for it. A1-Babu could have by virtue of his

special knowledge regarding the said facts offered an explanation from which a different inference could have been drawn. Since he has not done so,

this circumstance adds up to other circumstances which substantiate the prosecution case.

22.In Tulshiram Sahadu Suryawanshi & Anr. v. State of Maharashtra[ (2012) 10 SCC 373 ], while dealing with Section 106 of the of the Evidence

Act, this Court observed as under:

“A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts,

the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in

view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In

that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these

circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however is not intended to relieve the

prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded

in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his

special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference.†The above

observation is attracted to this case.''

The Supreme Court in the case of Tulshiram Sahadu Suryawanshi and Another vs. State of Maharashtra reported in (2012) SC 373, has held as

under:-

''22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the 3 accused. In other

words, the appellants, their son-A3 and the deceased were the only occupants of the house and it was, therefore, incumbent on the appellants to have

tendered some explanation in order to avoid any suspicion as to their guilt. All the factors referred above are undoubtedly circumstances which

constitute a chain even stronger than the account of a eye-witness and, therefore, we are of the opinion that conviction of the appellants is fully

justified.

It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.

When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as

the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the Court to presume

the existence of any fact which it thinks likely to have happened. In that process, the Courts shall have regard to the common course of natural events,

human conduct etc in addition to the facts of the case. In these circumstances, the principles embodied in Section 106of the Evidence Act can also be

utilized. We make it clear that this Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable

doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding

the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which

might drive the Court to draw a different inference. It is useful to quote the following observation in State of West Bengal vs. Mir Mohammed Omar,

(2000) 8 SCC 382:

“38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be

impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.In Shambhu Nath Mehra v. State

of Ajmer (2000) 8 SCC 382 the learned Judge has stated the legal principle thus:

11“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is ertainly not intended to

relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate

disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could

prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his

knowledge.â€​

(25) In the present case, the deceased was undisputedly staying withthe appellants. She has expired in her matrimonial house. The appellants have not

examined any neighbourer to prove that her death was informed by the appellants to any neighbourer. Even it is the case of the prosecution that the

parents of the deceased were not informed about the death of the deceased. A suggestion was given by the appellants to Ravindra Singh Chauhan

(PW3) that as per the custom prevailing in the society after burning a part of the dead body, the remaining dead body is immersed in the river. When

the dead body was taken out from the river, it was found that lot of bricks and stones about 60 kg weight were tied with the dead body. It was obvious

that the dead body was thrown in the river with heavy weight tied along with the dead body so that the dead body of the deceased may not come on

the top of the river. Thereafter, the appellants after putting lock their house left theplace after the incident. Even absconsion memo was prepared by

the police of the appellants. Thus, it is clear that in view of Section 106 of the Indian Evidence Act, the burden of proof is on the appellants. Thus, the

prosecution has already proved the above-mentioned circumstances beyond reasonable doubt.

(26) There is another circumstance against the appellants that they hadabsconded immediately after the incident. Although it is equally true that in

some of the cases the person under apprehension of false implication, may abscond after the incident but in some of the cases, where the remaining

circumstance indicates guilty consciousness of the accused, then his absconsion immediately after the incident,is also an incriminating circumstance

indicating towards guilt of the accused.

(27) The Supreme Court in the case of Kundula Bala Subrahmanyam and Another vs. State of Andhra Pradesh, reported in (1993) 2 SCC 684 has

held as under :-

 ''23. A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating

to their absconding. Md. Badruddin PW15, the investigating officer, deposed that he had taken up the investigation of the case and having examined

PWsl-4 had caused search to be made for the accused but they were not found in the village and despite search, they could not be traced. Appellant

No. 1 surrendered before the court on 10.11.1981 while appellant No. 2 surrendered in the court on 7.12.1981. No explanation, worth the name, much

less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the court in the face of

such a gruesome 'tragedy'. Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused

because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but

coupled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance. The

prosecution has successfully established this circumstance also to connect the appellants with the crime.''

The Supreme Court in the case of Mangat Rai vs. State of Punjab reported in (1997) 7 SCC 507 has held as under:-

''8.On the other hand, learned counsel for the respondent submitted that both the courts below have concurrently held on appreciation of relevant

evidence that it was the appellant and no one else who could commit the murder of his wife. That she had died at his own residence. That he was

having his other clinic only one kilometer away from his residence and it was very easy for him to go to his clinic at the relevant time after liquidating

the deceased. That the theory of suicide by the deceased was patently false as the ligature mark was found to be postmortem by the doctors and it is

impossible to even allege that a dead person would hang herself and, therefore, it was a false case tried to be made to misled the investigating agency

and precisely for that reason the appellant rushed to the police authorities and gave a wrong version about the incident. That as the appellant resided

with the deceased at the relevant time in his residential house where his wife met her untimely death, the inference drawn by both the courts below

against the appellant that is was he and no one else who had committed the murder of his wife, can be said to be well justified on record of the case.

That his earlier conduct of harassing the deceased an nagging her in connection with the dowry demand, his conduct of not even visiting his in-law

house when he was blessed with a son and his subsequent conduct of giving false version of the incident before the police and not intimating the in-

laws on the date of the incident itself and subsequently his absconding from the place of occurrence are all pointer to his guilty mind and, therefore, his

appeal deserves to be dismissed. ''

No other submission was made by the counsel for the appellants.

(28) Considering the totality of the facts and circumstances of the case,this Court is of the considered opinion that the prosecution has succeeded in

establishing the guilt of the appellants for the offences under Sections 304-B, 498-A, 201 of IPC and under Section 4 of Dowry Prohibition Act.

Accordingly, they are held guilty for the above-mentioned offences.

(29) Resultantly, the judgment and sentence dated 30/09/2003 passedby Sixth Additional Sessions Judge (Fast Track Court), Bhind in Sessions Trial

No.260/2002 is hereby affirmed.

(30) It is next contended by the counsel for the appellants that sentenceof 10 years RI, two years RI and two years RI for the offences under

Sections 304-B, 498-A, 201 of IPC and sentence of one year RI for the offence under Section 4 of Dowry Prohibition Act, is on the higher side.

(31) Considered the submission made by the counsel for the appellants.

(32) For the offence punishable under Section 304-B of IPC theminimum sentence provided under Section 304-B of IPC is seven years which may

extend to imprisonment for life. Thus, it is clear that the sentence less than seven years of RI cannot be imposed. In the present case, the trial Court

has awarded rigorous imprisonment of ten years for the offence under Section 304-B of IPC. The manner in which the dead body of the deceased

was disposed of by the appellants after the death of the deceased Saroj as well as the allegations made against the appellants that they were

constantly harassing and treating the deceased Saroj with cruelty because of non-fulfillment of demand of Rs.50,000/- and a motorcycle, coupled with

the fact that just a day before the death, the deceased had requested her brother to take her back otherwise she would be killed, clearly indicates the

conduct of harassing the deceased by the appellants. Under these circumstances, this Court is of the considered opinion that the trial Court has

already adopted a lenient view and accordingly, the sentence of ten years awarded by the trial Court for the offenece under Section 304-B of IPC

does not require any interference. Accordingly, the judgment and sentence dated 30/09/2003 passed by Sixth Additional Sessions Judge (Fast Track

Court), Bhind in Sessions Trial No.260/2002 is hereby affirmed.

(33) The appellants are on bail. Their bail bonds and surety bonds arehereby cancelled. They are directed to surrender immediately before the trial

Court for undergoing the remaining jail sentence.

(34) The appeal fails and is hereby dismissed.