Karnataka High Court
Huggi Bheemappa S/O Huggi Somappa vs The State Of Karnataka on 25 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.100120/2018
BETWEEN:
HUGGI BHEEMAPPA S/O HUGGI SOMAPPA
AGE: 29 YEARS,
R/O: 3RD WARD, M.M. HALLI VILLAGE,
HOSAPETE TALUK
BALLARI DISTRICT.
.....APPELLANT
(BY SMT. ARUNA DESHPANDE, ADV.)
AND:
THE STATE OF KARNATAKA,
THROUGH PSI, M.M. HALLI POLICE STATION,
HOSAPETE TALUK, BALLARI DISTRICT,
R/BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BENCH,
AT : DHARWAD.
.....RESPONDENT
(BY SRI.V.M. BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2)) OF CR.P.C., SEEKING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE ORDER
IMPOSED BY THE III ADDL. DISTRICT AND SESSIONS
JUDGE, BALLARI (SITTING AT HOSAPETE) IN S.C.
NO.5003/2016 BY HIS JUDGMENT OF CONVICTION AND
2
ORDER OF SENTENCE DATED 29.01.2018 AND 30.01.2018
RESPECTIVELY FOR OFFENCE U/S 302 OF IPC AND
ACQUIT THE APPELLANT.
RESERVED FOR JUDGMENT ON : 10.08.2020
JUDGMENT PRONOUNCED ON : 25.09.2020
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, V. SRISHANANDA, J., DELIVERED
THE FOLLOWING :
JUDGMENT
Being aggrieved by the judgment dated 29.01.2018, passed in S.C. No.5003/2016 on the file of III Additional District and Sessions Judge, Bellary sitting at Hosapete the accused has preferred this appeal questioning the validity of judgment, wherein he has been convicted for the offence under Section 302 of IPC, sentence to undergo rigorous imprisonment for his lifetime and to pay a fine of Rs.25,000/-, in default to pay fine, he shall undergo further simple imprisonment for six months.
2. The facts that are germane for the disposal of this appeal are as under:
3
One Bheemappa resident of Korawar oni, M.M. Village, Hosapete taluk lodged a complaint (Ex.P1) stating that himself and one Hanumantha are the sons of his parents and he has got two sisters; that wife of his younger brother-Hanumantha (hereinafter referred to as deceased) died about 7 years earlier to the date of complaint and Hanumantha has two sons.
He further contends that his younger brother-
deceased was eking out his livelihood by contract work.
One Huggi Bheemappa (hereinafter referred to as accused) and his wife Bhagyamma were working as labourers under him; accused suspected that deceased had illicit relationship with Bhagyamma. On enquiry, deceased denied such relationship and at that juncture accused had given a life threat to him.
He contends further that on 25.09.2015 at about 1.40 p.m. he had visited the agricultural land of Lokappa and while returning to Mariyammana Village, he noticed that a group of people were proceeding 4 towards the agricultural land of lamani community and out of curiosity, he also proceeded in that direction. En route he noticed accused with blood stained clothes and holding a blood stained axe. On reaching land of Lamani he noticed that his wife Meenaxi and his sister Hanumakka were crying and he saw dead body of deceased lying beneath a rock. He also noticed that blood stains in the place of incident. He noticed a blood injury near the neck, left-hand finger and behind the neck of deceased. On enquiry with one Hanuma Naik -a shepherd, he came to know that at about 1.20 p.m. he was gracing the sheep and 3 to 4 persons were playing cards beneath a tamarind tree and he was watching the game; at that juncture, accused came there with an axe in his hand and addressed to one person who were playing cards stating "hey you need company of my wife, I would take away your life today." So saying, he assaulted that person with an axe on the back side of the neck and on the right side of the neck and injured fell down from the rock and died. Others who were 5 playing the cards ran away. Thereafter, the complainant visited M.M. Halli Police Station and lodged a complaint.
3. The Police registered the case in crime No.127/2015 under Section 302 of IPC and conducted a detailed investigation, apprehended the accused and filed charge sheet against accused.
4. On receipt of charge sheet, the learned Magistrate took the cognizance of the offence and committed the case to Sessions Court. On committal, Sessions Court secured the presence of accused from judicial custody. After hearing the prosecution and the defence, charge was framed against the accused for the offence punishable under Section 302 of IPC. Accused pleaded not guilty, hence trial was held.
5. In order to establish the charge leveled against the accused, prosecution examined in all 34 witnesses as PW1 to PW34 and relied on documentary evidence which were marked as Ex.P1 to 37. So also the prosecution got marked material objects vide MO1 6 to MO11 in support of the case. On conclusion of the trial, accused statement under section 313 of Cr.P.C. was recorded. Accused denied all the incriminating circumstances found in prosecution evidence and did not offer any explanation nor adduced any evidence. Sessions Court after hearing the prosecution and defence, convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for his life and to pay a fine of Rs.25,000/- with default sentence of simple imprisonment for six months.
6. It is that judgment which is impugned in this appeal.
7. Smt. Aruna Deshpande, learned counsel for the appellant vehemently contended that PW18 has not supported the case of the prosecution which is ignored by the trial court. She has pointed out that even though PW5 to 9 have deposed that the deceased came to the alleged place of incident on motorcycle, Police did 7 not seize any motorcycle from the spot which raises sufficient doubt in the oral testimony of PW5 to 9. So also non seizure of playing cards from the spot. She further argued that taking advantage of unnatural death of deceased, P.W.1 in active collusion with investigating agency implanted P.W.5 to P.W.9 as eye witnesses to foist a false case against the accused.
8. She further argued that in the oral evidence of PW5 to 9, there are material contradictions and as such their testimony is not trust worthy. She also points out that even according to the prosecution, the accused was all alone and apart from deceased, 3 to 4 other persons were playing the cards and none of them have tried to rescue the deceased from the attack or pacify the quarrel, which is an unnatural conduct and trial court did not appreciate the same. Smt. Deshpande also submits that the trial court did not point out the cogent evidence on record while recording an order of conviction and has casually remarked in para No.15 of the judgment 'in general' while 8 appreciating the evidence on record and as such, the recording of conviction is bad in law. She prayed that this court is required to reappreciate the same and pass an order of acquittal by allowing the appeal.
9. Per contra, the learned Additional State Public Prosecutor vehemently contended that the trial court after properly appreciating the entire material on record has passed the impugned judgment and prayed for dismissal of the appeal.
10. He further argued that the prosecution is able to establish all the ingredients to attract the offence under Section 302 of IPC by placing cogent and convincing evidence on record which has been properly appreciated by the trial court. It is his further submission that the accused had a strong motive of taking away the life of the deceased as he was suspecting that the deceased and his wife were having illicit relationship. He further argued that the accused visited the spot with axe clearly establishes the 9 preparation on the part of the accused to commit the offence and ultimately, when he assaulted the deceased he accomplished the act and thus, all ingredients required under Section 302 of IPC has been proved by placing cogent and convincing evidence. He further argued that the contradictions as pointed out by Smt. Deshpande are minor in nature and as such, they are to be ignored and prays for dismissal of the appeal.
11. In view of the rival contentions urged by the parties, the following point that would arise for our consideration is:
1. Whether the appellant-accused has made out a case that finding of Sessions court that the prosecution has satisfactorily established that the accused has committed murder of Hanumantha on 25.09.2015 at about 01.20 p.m. is suffering from legal infirmities and thus calls for interference?10
12. We answer the above point in the negative for the following :
REASONS
13. To establish the charge against the accused, the prosecution in all examined 34 witnesses as PW1 to 34, relied on documentary evidence vide Ex.P1 to P37 and material objects as MO1 to 11. Among prosecution witnesses PW.5 to 8 are the eye witnesses to the incident.
14. Apart from eyewitness, other witnesses to establish prosecution case are PW1- complainant; P.W9 a charge witness, PW2 and PW3 mahazar witnesses for Ex.P7, P16 and mahazars.
15. PW1 deposed that wife of the deceased expired about 5- 6 years earlier to the date of incident; accused and his wife were working under deceased as labourers and the accused had entertained a doubt that the deceased had illicit relationship with his wife and in 11 that regard the accused complained to him. On his enquiry with deceased, allegation was denied by the deceased and since then accused nurtured enmity against deceased.
16. His further say is that about nine months earlier to the date of deposition, at about 1.00 p.m. while he was returning for lunch, he saw accused moving with an axe with blood stains and the Villagers were rushing towards the land of lamanies. Out of curiosity he also visited the land of Lamanies and found the dead body of his younger brother Hanumantha with grievous blood injuries on the neck region. Accordingly, he lodged Ex.P1-complaint to Police; Thereafter, Police visited the place of incident; conducted inquest and spot mahazar; seized chappals, towel that of deceased, sample mud and blood stained mud and took photographs. He identified the motorcycle on which the deceased had reached the place of incident. 12
17. In his cross examination, suggestion made to him that the deceased had murdered his wife Vishalaxi suspecting her fidelity is denied by him; but admits that the deceased was in jail in a case. He further denied that himself, deceased and others were pressurizing the mother of Vishalaxi namely Durgamma to compromise the criminal case. He further denied that Durgamma had nurtured enmity against him and with the deceased. He denied that he has given false evidence against the accused.
18. PW2 is the mahazar witness to Ex.P7 and P16 mahazars; He supported prosecution and identified the seized clothes and signatures in Ex.P7 and Ex. P16. In his cross examination, he admits that he was working as labourer under PW1 and PW3 is his co- worker. However, he denies that Ex.P7 and P16 are concocted.
19. PW3 is the co-panch witness to Ex.P16, wherein the Police seized an axe - MO8, pursuant to 13 voluntary statement of the accused. He supported prosecution and identified MO.8. In his cross examination, he admits that he was working as laborer under PW1 and he is illiterate he signed Ex.P16 and 17 at the instruction of the Police.
20. Another witness to Ex.P17 is examined as PW4. He supported the prosecution and identified MO.8 and photographs vide Ex.P18 to 21, which were taken during the mahazar proceedings. In his cross examination, he denies the suggestion that he is deposing falsely at the instruction of the Police.
21. PW5 to 8 are the eye witnesses to the incident according to the prosecution. They deposed before the court that on the date of incident at about 1.00 p.m., they had indulged in a party; they further deposed that the deceased came on motorcycle and he also joined the party. It is their say that the accused came there and assaulted Hanumantha with an axe on his neck and also abused him stating that he has 14 spoiled his house. It is their case that deceased Hanumantha fell down and all of them ran away from the spot. PW.5 has identified the photographs of the place of incident and the axe with which the accused assaulted the deceased as MO8. He also identified the clothes and chappals worn by the deceased and photographs vide Ex.P13 to 15. He identified the accused before the court.
22. PW.5 in his cross examination admits that he was working under PW1; deceased had married Vishalaxi. He denied the suggestion that the deceased has killed his wife and in that regard a criminal case was filed against him. However, he admits that the deceased was in jail for sometime. He denies the suggestion that somebody else from the side of wife of the deceased had killed Hanumantha and he denied that he deposing falsely against the accused.
23. PW.6 did not support the prosecution in its entirety. To the extent, he has not supported the 15 prosecution, he was treated as hostile and was subjected to cross examination by learned Public Prosecutor. He admits the suggestion made by the prosecution to the effect that they called Hanumantha to join the party and accused came there with an axe and he made a show of cutting the branches of tree and thereafter assaulted Hanumantha with the axe.
24. In his cross examination by defence, he admits that he has close acquaintance with complainant and he has visited the court along with him. He answered that while playing the cards, they were sitting in a circular form and accused assaulted Hanumantha from backside and ran away. He has answered that the place of incident is a barren land and no other public were present.
25. PW.7 is yet another person who participated in the party. He was also treated as hostile witness partly and cross examined by the prosecution. In his cross examination by the learned Public Prosecutor, 16 suggestion made to him that the accused assaulted Hanumantha as he nurtured enmity against the deceased on account of illicit relationship, the deceased had with his wife.
26. In defence cross examination he has answered that when all of them had gone to party, the other Lamani people were there and they were concentrating on the cards game and as such, they were not able to observe who are moving in and around the place.
27. Another witness who participated in the party is PW.8-Zilabi. He deposed in line with the examination chief of PW5, 6 and 7. He was also treated as hostile witness in part to the extent and cross examined by the prosecution. Suggestion made to him that the accused assaulted the deceased on account of fact that the deceased had illicit relationship with the wife of the accused was known to him is denied by him. 17
28. In defence cross examination, he answered that the place of incident (the land) belongs to him and he was not playing the cards and he was with shepherd by name Hanuma Naik.
29. Shepherd -Hanuma Naik is examined as PW9. He deposed that he has acquaintance with complainant and PW4 to 8. He deposed that about year and half earlier to the date of deposition at about 1.30 p.m. he was sitting beneath a tamarind tree, which is situated in Lamani land; he had gone there for gracing sheep; he saw Raja, Khaza, Parashuram were playing cards and Hanumantha-deceased came on motorcycle and he also sat there. He further deposed that after some time, accused came on a cycle with an axe and told that he had come for cutting the branches of tamarind tree and thereafter, he abused the deceased in filthy language and assaulted the deceased with axe on his neck and ran away from the spot and he and others also ran away from the place of incident. He further deposed that while they came there, they found that 18 Hanumantha was no more. He identified the photographs vide Ex.P2 to P6, P8 to P11; MO8.axe, He also identified the MO.11-cycle on which the accused came and motorcycle on which the deceased came to the spot.
30. In cross examination, he has answered that Raja, Khaza and Parashuram were playing the cards and the deceased visited at 12.45 p.m. and accused visited at 1.00 p.m. and also answered that they were sitting in circular form and they were holding the cards.
31. Ex.P12 is the seizure mahazar of motorcycle. Mahazar witness one Jahangir is examined as PW10, who supported the prosecution. In his cross examination, he has answered that when he was proceeding in front of the Police Station, the Police called him and shown the motorcycle and drafted Ex.P12- panchanama.
32. PW11 is the mahazar witness to Ex.P24, wherein the cycle has been seized, which is marked as 19 MO11. He also supported the case of the prosecution. In his cross examination, suggestion made that he deposed falsely, is denied.
33. One of the witnesses to Ex.P25-inquest mahazar is PW12. He supported prosecution. In his cross examination, he denies the suggestion that he deposed falsely.
34. PW13 visited the place of incident after he came to know about the incident and seen the dead body. He deposed about accused having doubt that the deceased had illicit relationship with his wife. In his cross examination, he denies the suggestion that somebody else has murdered the deceased Hanumantha. He denies that he has not seen the incident and he has deposed that on the date of incident he is not an eye witness to the incident.
35. PW14-Rathnamma, relative of accused deposed about acquaintance of deceased and wife of the accused. She further deposed that the accused and his 20 wife had visited Durgamma temple and accused wanted his wife to make a testament that she is not having illicit relationship and the priest had not permitted to do so. It is her case that thereafter she came to know about murder of Hanumantha. She further deposed that the accused had hidden an axe in a tree guard in her house; Police visiting her house along with accused; accused had shown to police the place where the axe was hidden, police seized the same when they had visited her house with accused. She identified the said axe as MO8. In cross examination by defence, she denied the suggestion that she had given false evidence.
36. PW15 and PW.16 are private persons; PW17- mother-in-law of the accused; Mother and wife of complainant are PW20 and 21 and priest of Durgamma temple is PW22. They all deposed about accused and his wife visiting Durgamma temple. Their evidence is formal in nature and not relevant to decide the point in issue in this appeal.
21
37. Brother of the accused is examined as PW18. He did not support the case of the prosecution.
38. Wife of accused is examined as PW19. She deposed that herself and accused were working as laborers under the deceased and she came to know that the accused had murdered Hanumantha suspecting her chastity. She also deposed that earlier to the incident, she was taken to Durgamma temple and she did not make any testament. In her cross examination she said that she had good relationship with the accused and he was not scolding her.
39. Owner of agricultural land, which is the place of incident, is examined as PW23. He identified the record of rights-extract of land as Ex.P27. He deposed that the land found in photographs as Ex.P8 is his land. In his cross examination, he stated that he is illiterate and he cannot read the contents of Ex.P27.
40. Police constable who was deputed to search the absconding accused is examined as PW24. Police 22 constable, who escorted the dead body for post mortem examination and producing the clothes of the dead body before the Police Station is PW25. Their evidence is formal in nature.
41. Autopsy surgeon is PW26 who conducted post mortem examination of deceased and issued Ex.P28, weapon report-Ex.P30 and final opinion- Ex.P37. He opined that cause of death is due to traumatic asphyxia due to severe laceration of right side neck vessels and Airway - secondary to sharp edged weapon injury over right side of neck.
42. In his cross examination, he answers that the injury noted by him vide Ex.P28 may be caused if a person hit by sharp edged stones. He denies that the injury found on the dead body cannot caused by assault by single person.
43. PW27 is the Engineer who prepared the spot sketch. FIR carrier is PW28. Police Constable who 23 carried the weapon to Doctor for opinion is PW29. Their evidence is formal in nature.
44. Investigating Officers are examined as PW30, 31, 33 and 34. They deposed about the registration of the case, carrying investigation, filing charge sheet.
45. Scientific Officer of FSL is examined as PW32. She deposed that on receipt of articles, she examined the same and issued Ex.P36 and mentioned the blood group found on the articles were that of 'B' group. In her cross examination, she denies that 9 articles cannot be examined on a single day.
46. One Shivakumar is examined as PW33, who registered the case on the basis of Ex.P1 and sent the FIR vide Ex.P32 to the concerned. His evidence is formal in nature.
47. The above evidence is sought to be reappreciated by this court by the appellant. 24
48. The homicidal death of Hanumantha is established through testimony of Autopsy Surgeon- PW26. Injury noted in Ex.P28 could be caused by use of a sharp edged weapon like MO8 and he has also opined that injury caused due to traumatic asphyxia due to severe laceration of right side neck vessels and Airway - secondary to sharp edged weapon injury over right side of neck.
49. Defence did not suggest to autopsy surgeon that Hanumantha died a natural death. Suggestions to other prosecution witnesses that taking advantage of death of Hanumantha, a false case has been foisted against accused is significant enough in this regard. Hence, finding recorded by sessions court that of Hanumantha's death is homicidal needs no interference.
50. The prosecution in order to bring home the guilt of the accused relied on testimony of eye witnesses-PW5 to 9 namely Raja, Khaza, Parashuram, 25 Zilabi and Hanumanth Naik. They have deposed in an unequivocal voice about the presence of deceased and accused; accused assaulting deceased with MO.8.
51. No doubt, learned counsel for the appellant pointed out that PW6 to PW8 have turned partly hostile and as such their testimony cannot be believed to convict the accused.
52. It is settled law that statement of hostile witnesses is not to be brushed aside in toto and Court can consider evidence of hostile witness to corroborate other evidence on record to the extent their testimony supported the prosecution case. It is equally settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. It is useful to rely on the decision of Hon'ble 26 Supreme Court in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506 wherein it is held as under:-
"32. That the evidence of a hostile witness in all eventualities ought not stand effaced . altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record".
53. It is further argued that the defence that few discrepancies in their testimony of PW5-PW.8 and as such they are not trustworthy witnesses and based on such evidence the conviction cannot be maintained.
54. There are discrepancies in the oral testimony of PW5 to 8 regarding the mode by which the accused 27 reached the place of incident, as PW5 to 8 have stated that accused came on motorcycle but what is seized by the Police is cycle. So also there are minor discrepancies with regard to actual assault by the accused to the deceased.
55. But, those discrepancies by itself would not render the testimony of PW.5 to 8 unbelievable. From their testimony, it is established that PW5 to 8 were playing cards and deceased has reached the said place on motorcycle and joined the party. Within a short while accused also reached the spot and assaulted Hanumantha with an axe (MO8). As a natural reaction, they all ran away and they saw the accused also running away from the spot. After a while, they reached the spot and confirmed death of Hanumantha.
56. It is well settled legal proposition that if the evidence of eye witness is found to be credible and trustworthy, minor discrepancies which do not affect 28 the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
57. In this regard this court places its reliance on the judgment of the Hon'ble Apex Court in the case of Mallikarjun Vs State of Karnataka reported in (2019) 8 SCC 359, wherein it is held as under:
13. While appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eye witness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab and another (2013) 12 SCC 187, it was held as under:-29
32. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 this Court observed as follows: (SCC p. 671, para 30) "30.
While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC 587.)"
33. ....... this Court in Raj Kumar Singh v. State of Rajasthan (2013) 5 SCC 722 has observed as under: (SCC p. 740, para 43) "43. ... It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of 30 a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief."
58. Applying the above legal principles of law to the case on hand, the evidence of PW-5 to 9 as to the place of occurrence is corroborated by the spot and inquest panchanama and photographs. The alleged variations in the statement of PW-5 to 8 in our considered view, does not affect the trustworthiness of testimony of PW.5 to 8. In fact the minor discrepancies reflects that the witnesses are not tutored. Further, there is no material elicited in the cross examination of 31 PW5 to 8 that they had any enmity or animosity against the accused to depose falsely against them.
59. Next submission on behalf of appellant to disbelieve the testimony of eyewitnesses is, all these witnesses are interested witnesses. Smt. Deshpande points out that these witnesses admitted that they are under the influence of PW1.
60. The theory of interestedness of these witnesses cannot also be appreciated in the absence of strong material in this regard. Mere fact that PW5 worked under PW.1 or PW.6 is accompanied by PW1 on the day of his examination, itself would not render their testimony as interested testimony. It is not uncommon that complainant accompanies the witnesses to the court on the date of their examination to ensure their presence and by way of moral courage. Further, it is well settled principle of law that on mere interestedness would not ipso-facto render the prosecution's testimony that the prosecution witnesses are doubtful. In this 32 regard, this court worth fully places reliance of the Hon'ble Apex Court in the case of Jalpat Rai vs. State of Haryana, reported in (2011) 14 SCC 208, has held as under :
''42. There cannot be a rule of universal application that if the eyewitnesses to the incident are interested in the prosecution case and/or are disposed inimically towards the accused persons, there should be corroboration of their evidence. The evidence of eyewitnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a calibre as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is a reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime.
61. Next argument of learned counsel for appellant that there are few improvements and 33 omissions in the testimony of eyewitnesses and as such their testimony is to be discarded. It is settled proposition of law that the Maxim "Falsus in Uno, Falsus in Omnibus", is not applicable to Indian Criminal Jurisprudence.
62. In this regard, this court places reliance on the decision of Hon'ble Supreme Court in the case of Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749 wherein it is held as under :-
''25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. 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 34 question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially 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 28 CRA 109/2011 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 an exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 ].) An attempt has to be made to, as noted above, in terms of 35 felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the 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 v. State of M.P. [ AIR 1954 SC 15] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511].) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752] normal discrepancies in the 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 v. State of Bihar [(2002) 6 SCC 81], Gangadhar Behera v. 36 State of Orissa [(2002) 8 SCC 381] and Rizan v. State of Chhattisgarh [(2003) 2 SCC 661].'' The Supreme Court in the case of Yogendra Vs. State of Rajasthan reported in (2013) 12 SCC 399 has held as under :-
''13. The argument advanced by Shri Altaf Hussain, learned counsel for the appellants, stating that the evidence which has been disbelieved in respect of certain accused, 29 CRA 109/2011 cannot be enough to convict the present appellants, has no force. This Court, in Ranjit Singh v. State of M.P. [(2011) 4 SCC 336] has dealt with a similar issue. The Court herein, considered its earlier judgments in Balaka Singh v. State of Punjab [(1975) 4 SCC 511], Ugar Ahir v. State of Bihar [(1975) 4 SCC 511] and Nathu Singh Yadav v. State of M.P. [(2002) 10 SCC 366] and has referred to the doctrine falsus in uno, falsus in omnibus and held, that the same has no application in India. The court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded."37
The Supreme court in the case of Raja Vs. State of Haryana reported in (2015) 11 SCC 43 has held as under :-
''20. Another circumstance which needs to be noted is that Sukha PW 7, a taxi driver, has deposed that on 18-1-2003 about 11.00 p.m. while he was going to Fatehabad for taking passengers, he saw a bullock cart parked in front of the house of the accused and certain persons were tying a bundle in a "palli". On query being made by him, the accused persons told him that they are carrying manure to the fields. Though, this witness has given an exaggerated version and stated differently about the time of arrest, yet his testimony to the effect that he had seen the accused with a bundle in "palli" at a particular place cannot be disbelieved. The maxim falsus in uno, falsus in omnibus, is not applicable in India. In Krishna Mochi v. State of Bihar, it has been held thus: (SCC pp. 113-14, para 51) "51. ... 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 the rule of law. It is merely a rule of caution. All that it amounts to is, that in 38 such cases 30 CRA 109/2011 testimony may be disregarded, and not that it must be disregarded." 21. In Yogendra v. State of Rajasthan, it has been ruled that: (SCC p. 404, para 13) "13. ........ The court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded."
63. Thus, from the above discussion, the oral testimony of PW5 to 9 coupled with seizure of weapon used in the incident (MO8), seized pursuant to voluntary statement of the accused and seizure panchanama Ex.P.24 would sufficiently corroborate each other. The clothes worn by the accused at the time of incident namely white colour full shirt, cotton pant namely MO9 and 10 were seized in Ex.P17. MO8 to 10 39 were sent for FSL examination. Ex.P36-FSL report suggests that blood stains were found on MO8 to 10. Ex.P17 is proved by the prosecution by the oral testimony of mahazar witnesses. It is pertinent to note that accused did not deny that MO9 and 10 are not his clothes. Accused did not explain how his clothes sustained blood stains while recording accused statement. Further FSL report shows that blood stains found on MO.8 to 10 of 'B' blood group which is the blood group of the deceased. When such being the factual position, the argument put forward on behalf of the appellant that somebody else has murdered the deceased, the case foisted against the accused cannot be countenanced in law.
64. The Autopsy Surgeon also stated that injury noted by him in the Post Mortem report vide Ex.P28 could be caused with a MO.8 strengthen the case of the prosecution.
40
65. Accused has been arrested on 26.09.2015 by the Investigating agency. PW1 is the elder brother of the deceased, who specifically deposed that prior to the incident, accused has complained to him that he is having doubt that deceased is having illicit relationship with the wife of the accused and in this regard he had made an enquiry. He also deposed that in this regard, being not satisfied with the enquiry, he had told that he would take away the life of the deceased. According to the prosecution, the accused having entertained doubt that the deceased having illicit relationship with his wife, is motive for the incident.
66. Accused reached the place of incident with an axe on his cycle and on the guise of cutting branches of tamarind tree, he had reached the place where the deceased and PW5 to 8 were playing the cards and took opportunity and assaulted on the neck of the deceased, clearly shows that he had come prepared to take away the life of the deceased. The part chosen is the neck and the weapon used is axe, this court has no 41 hesitation in holding that prosecution evidence is sufficient to hold that the accused has accomplished the intended act. These factors when viewed cumulatively, the culpability of the accused stands established beyond shadow of doubt, even after reappreciation of the entire material on record.
67. Thus, viewed from any angle, we are of the considered opinion that the appellant has not made out any grounds whatsoever much less good grounds to interfere with the judgment of the Sessions Court.
In view of the foregoing discussion, the point is answered in the negative and we pass the following :
ORDER The appeal sans merit. Hence dismissed.
Sd/-
JUDGE Sd/-
JUDGE MNS/