TMI Blog2019 (11) TMI 1759X X X X Extracts X X X X X X X X Extracts X X X X ..... pot near the hospital where Mohar Pal was assaulted by the Accused. The fact that the blood group of the human blood stained soil cannot be ascertained, can be no basis to discard that piece of evidence. Even the recovery of weapon used by Rohtas (Accused No. 1) during the commission of the offence reinforces the role and involvement of the Appellants in the commission of the crime. The quality substantive evidence on record clearly establishes the guilt of the Appellants. Even the fact that the Accused have been acquitted in the cross-cases filed with regard to the first incident which took place at 6.30 p.m. on the same evening will not take the matter any further for the Appellants. That was an independent incident whereas the finding of guilt recorded against the Appellants is concerning the incident which had taken place at 8.30 p.m. near the Government Hospital, Palwal as proved by the prosecution witnesses. In fact, the incident at 8.30 p.m. was the counter blast of the fight which had taken place between two groups at 6.30 p.m. and the previous enmity between them. The fact that there is no evidence about the previous enmity and that no evidence is produced by the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Pal attempted to run away by raising alarm mar diya, mar diya . Billu (Accused No. 5) and Rajender (Accused No. 3) caught hold of Mohar Pal and Dev Kumar (Accused No. 6) gave one knife blow in the abdomen of Mohar Pal. Similarly, Roop Chand (Accused No. 4) gave knife blow in the abdomen of Mohar Pal. He also gave a knife blow on the waist of Mohar Pal as a result of which Mohar Pal fell down. It is stated that Bishan Singh, Ravi, Ved Prakash, Anil and Baljit Singh (PW-2), who were present at the scene, ran towards the spot and on seeing them, the Accused persons ran away. Thereafter, Mohar Pal was immediately removed to the hospital in injured condition where he succumbed to the injuries and was declared dead. On the basis of this FIR, the investigation was taken over by ASI Gian Singh (PW-6). 3. After completion of investigation, charge-sheet was filed against six Accused persons for offence punishable Under Sections 148, 302 and 149 Indian Penal Code. The trial commenced before the Additional Sessions Judge (I), Faridabad being Sessions Case No. 40 of 1998. Both sides produced witnesses. According to the Accused persons, they were falsely implicated. Further, it is their s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4) and Dev Kumar (Accused No. 6) by the High Court. Their acquittal has become final. 7. In the present appeal, the assail is based essentially on the argument that both the Courts below have misread or misappreciated the evidence on record. The evidence of Bishan Singh (PW-1) and Baljit Singh (PW-2) was unreliable and was an attempt to falsely implicate the Appellants. It is urged that the prosecution has failed to prove the case beyond reasonable doubt even against the Appellants. According to the Appellants, the real and core facts have not been properly investigated and the prosecution's case is replete with several deficiencies such as: (i) No seizure list of clothes of deceased made by IO; (ii) Blood group of deceased was not ascertained, hence no link was established between blood found on alleged kurta and blood stained earth with the blood of the deceased. Thus the prosecution has totally failed to establish the link between blood found on the seized articles and blood of the deceased; (iii) Prosecution though allegedly recovered the alleged knife and sent it to FSL, but it did not produce the said knife in the Court nor got it exhibited, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been fully disclosed genesis of the crime, names of the assailants, name of the weapon and names of the witnesses etc, which are completely missing in the Inquest report. (xiv) There is the variance between the alleged FIR and report of IO for registering case; (xv) Non-seizure of Motor Cycle; (xvi) Non production of Anil and Ved Prakash as witnesses and various other irregularities and serious lapses of the Investigation including improper statement of IO PW-6 which entitles benefit of doubt to the Appellants. 8. According to the Appellants, the Trial Court and the High Court have completely glossed over the glaring infirmities and foundational defects of the prosecution which were fatal, and in any case, the Appellants deserved similar benefit of doubt as given to other Accused persons by the Trial Court and then by the High Court. The role of the other Accused persons spoken about by the prosecution witnesses is no different than that ascribed to the Appellants. Accordingly, it is urged that the Appellants be acquitted as the prosecution has failed to prove their guilt beyond reasonable doubt, and in any case, they should be given benefit of dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is not debarred from separating the truth from the falsehood and accepting a part of the evidence. It is urged that the appeal is devoid of merits and the same be dismissed. 11. We have heard Mr. Arvind Kumar, Advocate for the Appellants and Dr. Monika Gusain Advocate for the Respondent State. 12. It is well established position in law that this Court, while entertaining an appeal by way of special leave Under Article 136 of the Constitution of India, ordinarily, will not attempt to reappreciate the evidence on record unless the decision of the Trial Court or the High Court is shown to have committed a manifest error of law or procedure or the conclusion reached by the Courts below is, on the face of it, perverse. Merely because another view on the same evidence is possible, that cannot be the basis to interfere with the finding of fact recorded by the Courts below much less concurrent finding of facts. (See Duli Chand v. Delhi Administration (1975) 4 SCC 649; Mst. Dalbir Kaur and Ors. v. State of Punjab (1976) 4 SCC 158; Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat JT 1999 (9) SC 319; Chandra Bihari Gautam and Ors. v. State of Bihar JT 2002 (4) SC 62; and Radh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohar Pal were caused injuries in defence. This first information report was lodged by Rajinder Accused. However, no reliance can be placed upon this version as the same came into existence after the death of Mohar Pal had taken place. A perusal of the Fir Ex. DB shows that the same came to be recorded on the basis of rapat No. 5 dated 26.1.1998 at 9 a.m. By that time, Mohar Pal had expired and to us allegation that he had (sic) been caused injuries in the incident of 25.4.1998 at 6.30 p.m. in the village cannot be given any credence. Morever, it is well established that the FIR is not a substantive evidence by itself. The same can be used only for the purpose of contradicting or corroborating a particular versions. The Accused have not examined any witness in their defence who could depose that Mohar Pal had been caused injuries by the Accused party in their right of private defence in the incident that took place in the village. The Trial Court, further observed: But in the case this judgment does not help to the Accused in any manner because there is no whisper of suggestion even in the cross examination of Bishan Singh and Baljit Singh PWs that Mohar Pal had been cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this part of the version with regard to Rohtas and Surender. Rohtas and Surender are sons of Shiv Singh, who according to the defence, were injured in the earlier incident. A knife has been recovered from Rohtas. Opening of the attack by Rohtas and Surender could have been easily noticed by Bishan Singh PW1 and PW 2 Baljit Singh, whose presence on the spot is established by prompt lodging of the FIR. Mere fact that their names are not mentioned in the MLR, does not create any doubt. In the MLR, it has not been mentioned as to who brought the injured to the hospital. The fact that the injured was described as having died, instead of having been injured, is not a major discrepancy. The injured died within half an hour and immediately the police was informed. The I.O., recorded the statement of Bishan Singh PW 1 in the hospital itself soon after the death. FIR was formally registered immediately at 12.45 AM in the night and copy was received by the Magistrate in the night itself by 4 AM. Case of the prosecution is to be examined a whole and any minor discrepancy cannot be taken in isolation. Mere fact that the said witnesses did not intervene to save the deceased, is of no effect. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s underlying superficial and deep facia and omentum was cut on the left side of the abdomen. 3. Reddish abrasion 8 cm long and linear in shape and 8 cm above and lateral to the left side of umbilicus. 4. Incised wound 1 x 0.5 cm in the left supra scapular region underlying muscles were cut with no injury to lung or pleura. XXX XXX XXX VI-REMARKS BY MEDICAL OFFICER In my opinion the cause of death in this case in shock and haemorrhage (sic) as a result of injuries sustained by the deceased, particularly No. 1 which alone in sufficient to cause death in an ordinary course of nature. All injuries are ante mortem in nature. 16. Suffice it to observe that the cross-examination of Bishan Singh (PW-1) does not take the matter any further for the Appellants, as is rightly held by the two Courts below. Same is the position with regard to the evidence of Baljit Singh (PW-2). Even he has plainly mentioned about the manner in which Mohar Pal was stopped by all the Accused persons when he was riding his motorcycle and immediately thereafter Rohtas (Accused No. 1) and Surender Singh (Accused No. 2) inflicted knife blows on his stomach one after the other. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used cannot enure to the advantage of the Appellants against whom clear, truthful and unassailable evidence is forthcoming. For, neither the presence of Bishan Singh (PW-1) and Baljit Singh (PW-2) can be doubted nor their evidence can be discarded on the specious ground that they are related to the deceased Mohar Pal, and are therefore interested witnesses. 20. Indubitably, just because the witnesses are related cannot be the basis to discard their evidence, if it is otherwise natural and truthful. Their evidence has commended to the Trial Court as well as the High Court as truthful and we see no reason to deviate from that concurrent view taken by the Courts below. It is the duty of the Court to separate the grain from the chaff and then to arrive at a finding of guilt of an Accused or otherwise, notwithstanding the fact that evidence is found to be deficient qua another Accused named in the same offence. The maxim falsus in uno, falsus in omnibus has not received general acceptance in India nor has this maxim come to occupy the status of Rule of law. This has been restated in Rizan and Anr. v. State of Chhattisgarh (2003) 2 SCC 661. In paragraph 12 of the said decision, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. (See State of U.P. v. M.K. Anthony, State of Rajasthan v. Om Prakash, State v. Saravanan and Prithu v. State of H.P.) 22. The so-called deficiencies pointed out by the Appellants in the investigation or the prosecution case, in our opinion, are insignificant and trivial and cannot be the basis to reject the whole evidence of Bishan Singh (PW-1) and Baljit Singh (PW-2) which is corroborated by the other evidence in the form of medical reports and recovery of human blood stained soil from the spot near the hospital where Mohar Pal was assaulted by the Accused. The fact that the blood group of the human blood stained soil cannot be ascertained, can be no basis to discard that piece of evidence. Even the recovery of weapon used by Rohtas (Accused No. 1) during the commission of the offence reinforces the role and involvement of the Appellants in the commission of the crime. The quality substantive evidence on record clearly establishes the guilt of the Appellants. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Station was informed by the doctor at 11.30 p.m. Thereafter, Bishan Singh (PW-1) complained to ASI Gian Singh (PW-5) near hospital building and finally the FIR was registered at 0015 hrs. on the night between 25th and 26th April, 1998. In Kishan Singh (Dead) Through L.Rs. v. Gurpal Singh and Ors. (2010) 8 SCC 775, This Court had observed as follows: 22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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