Madras High Court
Manikandan vs State Rep. By on 22 December, 2023
Author: M.S.Ramesh
Bench: M.S.Ramesh, M.Nirmal Kumar
2023/MHC/5530
Crl.A.(MD).No.154 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 28.08.2023
Pronounced on 22.12.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
Crl.A.(MD) No.154 of 2021
Manikandan ...Appellant/Accused
Vs.
State Rep. by
The Inspector of Police,
Bodi Town Police Station,
Theni District.
(Crime No.114 of 2014) ...Respondent/Complainant
PRAYER: Appeal filed under Section 374(2) of CrPC, to call for the
records relating to the conviction and sentence passed by the Mahila Fast
Track Court, Theni in S.C.No.95 of 2015 dated 27.11.2020, to set aside the
same and acquit the appellant.
For Appellant : Mr.C.Jeganathan
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
Crl.A.(MD).No.154 of 2021
JUDGMENT
M.S.RAMESH,J.
Heard Mr.C.Jeganathan, learned counsel for the appellant and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor, for the respondent.
2. The case of the prosecution is that, the appellant had married the deceased Ganapathiammal about five months prior to the occurrence and was staying with her in a rented house belonging to one Hussain Mohamed at Pallivasan Street, Bodi Nagar, as husband and wife. At the time of marriage, the father of the deceased had given five sovereigns of gold jewels as stridhana, which the appellant had pledged. The father of the deceased had thereafter redeemed the jewels and had kept them with him. The appellant had compelled the deceased to get back the jewels from her father and when she refused, he developed hatred towards her. With this grudge in mind, on 14.03.2014, at about 11.00 P.M., when the deceased was sleeping in their rented house, he had smothered her with a pillow and when the deceased had fainted, he had strangulated her with a rope and killed her, Page 2 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 thereby committing an offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as 'IPC').
3.1. The case of the prosecution, as evidenced through the witnesses, is that, after the marriage, the appellant and the deceased were living together as husband and wife in the house of PW.6. PW.1, who is the father of the deceased, had given nine sovereigns of jewels, Rs.25,000/- cash and other vessels as stridhana at the time of marriage, which was about six months prior to the occurrence. When the appellant had pledged five sovereigns of jewels, PW.1 had redeemed the jewels and retained it with him. The appellant had thereafter started to beat the deceased, asking her to get back the jewels from her father. After this incident, the deceased had returned back to the appellant's house and was in contact with PW.1 over phone. Thereafter, when she was not reachable, PW.1 had enquired about her whereabouts to the appellant, to which, he had been giving evasive replies as if the deceased had gone somewhere. On suspicion, PW.1 had gone to the appellant's house on 17.03.2014 at about 01.00 P.M., where he found that his daughter dead and her body was wrapped in a gunny bag. He had then given a complaint (Ex.P.1) on 17.03.2014 before the Police. Page 3 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 3.2. PW.2, who is the mother of the deceased, had reiterated the statements made by PW.1.
3.3. PW.4, who is the grandmother of the deceased, while reiterating the statements with regard to the stridhana given to the deceased at the time of her marriage and the pledging of five sovereigns of jewels by the appellant, had stated that she had seen the deceased in her house on a friday, prior to the date on which she was found dead.
3.4. PW.5, who is the daughter of PW.3, has spoken about the visit of PW.4 and her mother to the deceased's house and meeting her on a friday.
3.5. PW.6 is the house owner, who had let the house on the request of the appellant and PW.1 for a monthly rent of Rs.500/- and an advance of Rs. 15,000/-.
3.6. PW.7 and PW.8, who were the neighbors, were treated as hostile witnesses by the prosecution.
Page 4 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 3.7. PW.9, who is a Panchayatar, has spoken about the matrimonial dispute between the deceased and the appellant and that he had advised them and sent back the deceased to the appellant's house.
3.8. PW.11 is the mahazar witness, through whom the observation mahazar (Ex.P.6) and seizure mahazar (Ex.P.7) was marked.
3.9. The doctor, who had conducted the postmortem, was examined as PW.16. According to postmortem report (Ex.P.8) marked through him, the deceased would appear to have died of Mechanical Asphyxia due to smothering and compression of Neck-Ligature strangulation. He had also stated that the brain of the deceased was in a liquefied form.
4. The trial court had taken into account the statement of the accused made under Section 313 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.) and the other evidences available on record, both oral and documentary, had come to the conclusion that the alibi pleaded by the accused that he was acting as a driver, when he was absconding, was not substantially proved by him. The defence taken by the appellant that the Page 5 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 deceased would have died due to hanging, was also disbelieved by the trial Court, by placing reliance on the evidence of PW.16, who is the doctor who conducted the postmortem. The possibility of death by hanging was also ruled out on the strength of the evidence of PW.10, who had recovered the rope used for strangulation from the kitchen, whereas the body was found in the bedroom. The failure on the part of the Investigating Officer to send the rope for forensic expert was also explained, in view of the recovery of the rope after two weeks from the date of the incident.
5. In this background, the trial court had placed reliance on the evidence of PW.12, who is a pawn broker and who confirmed that the accused had pledged the jewels on 17.03.2014, and thereby disbelieved the statement of the accused that he was acting as a driver for four days from 17.03.2014 and thereby did not give credit to the plea of alibi raised by the appellant. Thus, the trial court had taken into account the incriminating facts and circumstances of the appellant and the deceased having lived in the house together as husband and wife; that they were not living happily together owing to the demand of jewels by the appellant; the circumstances under which the body of the deceased tied in a bag was found in the house Page 6 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 of the deceased; the evidence establishing that the appellant had smothered the deceased with a pillow and thereafter strangulated her; the absence of any evidence to substantiate that the death was due to self hanging; the accused having absconded after the incident on 17.03.2014 and on the same day, when he had pledged the jewels with PW.12 and his conduct of surrendering before the Judicial Magistrate on 26.03.2014 and thereby found these circumstances to be incompatible with the innocence pleaded by the accused and found him guilty of having committed the offence of murder punishable under Section 302 IPC and sentenced him to undergo life imprisonment, together with a fine of Rs.10,000/-, in default to undergo two years rigorous imprisonment.
6. The learned counsel for the appellant submitted that since the case is based on circumstantial evidence and last seen theory, the evidences of PW.4 and PW.5 creates a doubt, since as per the statement of PW.4, she had seen the deceased on friday, i.e., on 14.03.2014 and when PW.5 had gone to see the deceased on sunday, the accused had informed her that the deceased had gone to a temple. By pointing out to the evidence of PW.5 that PW.4 did Page 7 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 not go to the deceased's house on sunday, he submitted that the statements of PW.4 and PW.5, who are the only witnesses for the last seen theory, cannot be given credence, in view of their inconsistent statements.
7. By placing reliance on the postmortem certificate, the learned counsel submitted that since the doctor PW.16, who conducted the postmortem, had found the brain of the deceased in a liquefied form and had deposed that such liquefaction happens only after four to five days after the death, the theory put forth by the prosecution that the incident had happened at 11.00 P.M. on 14.03.2014 and the postmortem having been conducted within three days thereafter, is unbelievable. In support of such a submission, the learned counsel placed reliance on a decision of the Hon'ble Division Bench of this Court in the case of Chinnasamy vs. State by The Inspector of Police, Mathur Police Station, Krishnagiri District passed in Crl.A.No.282 of 2012, dated 03.02.2016.
8. With regard to the recovery of the jewels, the learned counsel submitted that the signature in the jewel loan receipt (Ex.P.5) differs from the signature of the accused and hence, the motive attributed by the Page 8 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 prosecution is doubtful.
9. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent submitted that there was a complete chain of evidence for the circumstances commencing from the motive, the presence of the deceased in the house of the appellant on the day of occurrence, the body being found after three days in the same house and when the accused had absconded after the date of occurrence with a non- satisfactory explanation, the guilt of the appellant stands substantiated. The learned Additional Public Prosecutor drew our attention to the oral testimonies of PW.3 and PW.4, who had seen the deceased with the accused on friday and the body having been found on the next monday in the house of the appellant and submitted that the burden of proof to substantiate the presence of the body in the house of the appellant, as required under Section 106 of the Indian Evidence Act, would be on the appellant only, which he has failed to establish with a cogent explanation.
10. I have given careful consideration to the submissions made by the respective counsels.
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11. This is the case which rests entirely on circumstantial evidence and last seen theory. The motive attributed to the crime by the prosecution is that the deceased was married to the appellant about six months prior to the incident. The appellant had pledged some of the stridhana jewels of the deceased, which was redeemed by PW.1 and kept with him. The deceased had been picking up quarrels and beating the deceased, asking her to get back the jewels from her father, to which she had refused. The deceased was sent back to her parents' house and thereafter, she reconciled with the appellant after one week. Again the appellant had started to fight with the deceased for getting the jewels back.
12. These facts were spoken to by PW.1, who is the father of the deceased. PW.2, who is the wife of PW.1, also reiterated PW.1's statements and further submitted that the uncle of the appellant had also informed her that the appellant had been fighting with the deceased for getting the jewels back and hence had informed PW.2 that, if the jewels are given back to the appellant, he would use the jewels to meet his drinking habit. PW.3, who is the maternal aunt of the deceased, had deposed about the jewels given to the deceased at the time of her marriage and the pledging of jewels by the Page 10 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 appellant for consuming liquor, as well as the Panchayat held by PW.9 when the appellant and deceased had temporarily separated. PW.4, who is the grandmother of the deceased, also confirms about the pledging of jewels and using the pledged amount for the appellant's drinking habit. Similar statements were also made by PW.5, who is the daughter of PW.3.
13. The appellant could not discredit any of the statements made by PW.1 to PW.5, with regard to the disputes and quarrels between the appellant and the deceased and the grudge he carried against her. Thus, the facts that nine sovereigns of gold jewels were given to the deceased at the time of her marriage and that the appellant had pledged a portion of the jewels, which money he had used for consuming liquor and thereafter, when PW.1 had redeemed the jewels, he had been fighting and beating the deceased, demanding for return of the jewels, have all been substantially established through the oral testimonies of all these witnesses. To this extent, the motive attributed by the prosecution has been established beyond reasonable doubt.
14. The case of the prosecution significantly rests on the oral Page 11 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 testimonies of PW.3 to PW.5, who had seen both the deceased, as well as the appellant, together in their house on 14.03.2014. As per the statement of PW.5, who is the daughter of PW.3 and grand daughter of PW.4, when she had given birth to a baby, PW.3 and PW.4 had come to her house to see her. After visiting her, both PW.3 and PW.4 had gone to the house of the deceased to see her. As per the statement of PW.3, she had seen the deceased on a friday, together with the appellant and both of them were in a normal relationship. PW.4, who is the grandmother of the deceased, had also testified that she had gone to the house of the deceased on 14.03.2014, which is a friday, at which point of time, the appellant was lying down and the deceased was cleaning the house.
15. In the oral testimony of PW.4, she had stated that after visiting her grand daughter on 14.03.2014, she had once again went to her house on sunday, at which point of time, the appellant, who was in the house, had informed her that the deceased had gone to a temple. On 17.03.2014, when the deceased had stopped calling PW.1, he had gone to the house of the appellant at about 01.00 P.M. and found that his daughter had died and her body was wrapped in a gunny bag. PW.3 had also gone to the place of Page 12 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 occurrence on 17.03.2014 at 10.00 A.M. and found the body of the deceased in a decomposed state. Likewise, PW.4 had also accompanied PW.3 when she had gone to the house of the deceased and reiterated the statements made by PW.3. Thus, the chain of circumstances leading to the fact that PW. 3 and PW.4 had seen the deceased along with the appellant at their house on a friday, i.e., on 14.03.2014, before discovering her dead body, has been well established by these two witnesses.
16. On 17.03.2014, when the body of the deceased was first seen at 10.00 A.M. in a decomposed state, the appellant was missing from the house. As per the statement made by the appellant under Section 313 Cr.P.C, he was working as a driver on daily wages and on the day of occurrence, he was driving a Tata Magic vehicle engaged by seven passengers and who were all taken for a four day trip to Srivilliputur, Pazhani, Madurai, Azhagar Koil, Sankaran Koil, etc. During the questioning, he further stated that he would produce witnesses to substantiate his plea of alibi. With regard to his knowledge about the murder of his wife, he stated that when he had read about the same in a newspaper at Madurai, he immediately had met his lawyer at about 12 Noon and surrendered before the Magistrate Court at Page 13 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 Madurai.
17. In the case of Hanumant and others vs. State of Madhya Pradesh reported in AIR 1952 SC 343, the Hon'ble Supreme Court had held that, in cases where the evidence is circumstantial in nature, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis, except the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
18. In the case of Tulshiram Sahadu Suryawanshi and others vs. State of Maharashtra reported in (2012) 10 SCC 373, it was held that, presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.
19. Section 114 of the Indian Evidence Act empowers the Court to presume the existence of any fact which it thinks likely to have happened, Page 14 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
20. Section 106 of the Indian Evidence Act provides that, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
21. Though Section 114 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but when they succeed in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, the proof of certain facts, which are within the exclusive knowledge of the appellant, requires to be proved only by him.
22. In the background of this legal position, it is seen from the evidences that PW.3 and PW.4 have, in unequivocal terms, testified that both of them had seen the deceased along with the appellant on 14.03.2014 at his residence. On 17.03.2014, when the body of the deceased was found, the appellant was missing from the house. In the statement made by the Page 15 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 appellant under Section 313 Cr.P.C., he introduced an alibi of having gone on a driving duty for four days to various places in Madurai carrying some passengers. The fact that PW.3 and PW.4 had last seen the deceased along with the accused on 14.03.2014 has been well established by the prosecution by drawing an inference from the statements given by them in this connection.
23. On the other hand, the claim that the appellant was not in the house, but was shuttling certain passengers in a van at Madurai for four days during the period of occurrence, is a fact which is within the exclusive knowledge of the appellant alone and therefore, the burden of proving such a plea of alibi, rests only on him. In his statement to the Magistrate, he had stated that he has witnesses to establish his plea of alibi, which he failed to produce during the course of trial.
24. In the case of Shaikh Sattar vs. State of Maharashtra reported in (2010) 8 SCC 430, the Hon'ble Supreme Court had held that when a plea of alibi is raised by an accused, it is for him to establish the same by letting in positive evidences and in the absence of the same, no reliance can be placed on such a plea. The relevant portion of the said judgment is extracted Page 16 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 hereunder:-
“35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which wold make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case.”
25. The trial court had also taken into account the statement given by the appellant under Section 313 Cr.P.C. and by taking into account the failure on his part to let in evidence to substantiate the fact of his presence at Madurai at the time of occurrence, had rejected such a plea. In the light of the aforesaid findings and the decision of the Hon'ble Supreme Court, we do not find any infirmity in such a finding of the trial court.
26. This apart, the initial burden of proof over the facts, that both the Page 17 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 deceased and the appellant were living in the house as husband and wife, that the deceased was seen alive along with the appellant on 14.03.2014 and that the body of the deceased was recovered in the same house on 17.03.2014, were all well established by the prosecution. The consequence to such satisfaction of the initial burden, would thereafter shift to the appellant, who is required to establish the circumstances for the presence of the body of the deceased in his house, which fact is especially within his knowledge, since the evidences establish that he was the last person to be seen with the deceased in his house, when she was alive.
27. Before the trial court, a defence was suggested that the deceased could have committed suicide by hanging. The trial court had placed reliance on the oral testimony of the postmortem doctor (PW.16), who had categorically denied the death due to hanging. Furthermore, PW.16 had also deposed that the death must have occurred due to strangulation and smothering. The trial court had also placed reliance on the evidence of the Village Administrative Officer (PW.10), before whom the rope (MO.1) was recovered and held that the rope was recovered from the kitchen, whereas the body was in the bedroom. We have perused Ex.P.11, which is the rough Page 18 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 sketch and which would indicate that between the kitchen and bedroom, there is one more room in the house of the deceased. By pointing out that the defence could not give any explanation with regard to the recovery of the rope (MO.1) from the kitchen, which is much far away from the body, the defence of death by hanging was ruled out. Thus, we are of the view that the trial court had rightly ruled out the possibility of a suicide.
28. The learned counsel for the appellant submitted that as per the evidence of PW.16 and her postmortem report (Ex.P.8), the brain of the deceased was found in a liquefied state and in view of the decision of the Hon'ble Co-ordinate Bench of this Court in Chinnasamy's case (supra), such liquefaction would happen, only after four or five days from the date of death and therefore, the claim of PW.3 and PW.4 of having seen the deceased alive on 14.03.2014 and the body being found on 17.03.2014, the statements of these two witnesses, cannot be relied upon, since the deceased must have died at least five days prior to 17.03.2014.
29. It is no doubt true that the Co-ordinate Bench in Chinnasamy's case had held that since liquefaction of brain takes place at least four to five Page 19 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 days after the death and when the evidence suggests the death to be less than four to five days, such evidences cannot be relied upon. But, to find fault with the judgment of the trial court in this regard, such a defence ought to have been put forth by the defence to the concerned witnesses during the course of trial and such a ground also should have been demonstrated before the trial court at the time of arguments.
30. However, when the evidence of the doctor (PW.16) was analysed in toto, there is not even a remote indication in his cross-examination with regard to the time when the death could have occurred, vis-a-vis, the liquid state of the brain found in the postmortem report. The only suggestion put forth by the defence during the cross-examination of PW.16, touching upon the condition of the brain, is the cause for liquefaction of the brain alone. In the cross-examination, PW.16 had deposed that when the body is in a decomposed state, the brain will also be in a liquid form and that any leakage of blood in the brain is possible to be deducted during postmortem for the purpose of ascertaining whether the person had complaints of fits during her lifetime. When no suggestion has been made to the expert doctor during his cross-examination on the possibility of death prior to 14.03.2014 Page 20 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 owing to this brain condition, nor canvassed before the trial court during the course of arguments, we are unable to appreciate as to how such a ground can now be canvassed in the stage of an appeal and thereby find fault with the judgment of the trial court.
31. The Hon'ble Supreme Court in the case of Muddasani Venkata Narasaiah Dead) through Legal Representatives vs. Muddasani Sarojana, reported in (2016) 12 SCC 288, has held that the cross-examination is a matter of substance and not of procedure and one is required to put one’s own version in the cross-examination of the opponent. Paragraph 15 of the judgment, which is relevant, would read as under:-
“15. Moreover, there was no effective cross- examination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW. 1 and PW. 2 have not been cross-examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non-cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Page 21 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put, the Court would presume that the witness account has been accepted, as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177:AIR 1958 P&H 440]”
32. The learned counsel for the appellant also made a faint attempt to suggest that there were discrepancies between the evidences of PW.5 and PW.4 with regard to the visit made by PW.4 on 16.03.2014, at which point of time, the appellant was in the house and had given some evasive reply with regard to the absence of the deceased at her house. According to the learned counsel, since PW.3 had stated that her grandmother PW.4 had not visited the appellant's house on 16.03.2014, whereas PW.4 claims to have visited him on that date, this discrepancy would be fatal to the case of the prosecution.
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33. In the preceding portions of this judgment, we have substantiated with regard to the last seen theory put forth by the prosecution about the fact that PW.3 and PW.4 had seen both the appellant and the deceased together on 14.03.2014 at their house and the subsequent recovery of the body from the same place on 17.03.2014 and also the fact that the appellant could not establish his plea of alibi, or the possibility of death by suicide. These are material evidences which goes to the root of the matter to substantiate a case based on circumstantial evidence and last seen theory. The discrepancy, which has now been pointed out by the defence, is not a material discrepancy which would go to the root of the matter, but are only minor contradictions.
34. In the case of N.Nageswara Reddy vs. State of Andhra Pradesh reported in (2022) SCC OnLine SC 268, the Hon'ble Apex Court had held that when there are some minor contradictions, which are not material contradictions, the same will not affect the case of the prosecution as a whole.
35. Likewise, in the case of Prabhu Dayal vs. State of Rajasthan Page 23 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 reported in (2018) 8 SCC 127, a similar ratio was laid down in the following manner:-
“18. It is a common phenomenon that the witnesses are rustic and can develop a tendency to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. This Court, in State of U.P. v. M.K. Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985 SCC (Cri) 105], held that inconsistencies and discrepancies alone do not merit the rejection of the evidence as a whole. It stated as follows:
“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by Page 24 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.” (emphasis supplied)
19. In State of U.P. v. Anil Singh [State of U.P. v.
Anil Singh, 1988 Supp SCC 686 : 1989 SCC (Cri) 48], this Court observed that:
“17. … invariably the witnesses add embroidery to prosecution story, perhaps for the Page 25 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.”
20. The Court can separate the truth from the false statements in the witnesses' testimony. In Leela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222], this Court held as follows:
“12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment — sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.”
21. Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false. This Court observed thus in Gangadhar Behera v. State of Orissa Page 26 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri) 32]:
“15. To the same effect is the decision in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526]. Stress was laid by the appellant-accused on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the 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 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 guilt of other accused persons. Falsity of a 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 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.” Page 27 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021
36. Thus, when the prosecution has substantially established the presence of the appellant and the deceased in their house on 14.03.2014 through the evidences of PW.3 and PW.4 as well as PW.5 and the body of the deceased thereafter having been discovered on 17.03.2014 in the same house in a decomposed state, the minor contradictions in the evidences of PW.5 and PW.4, with regard to the claim of PW.4 having visited the house of the deceased on 16.03.2014, cannot be construed to be a material contradiction, so as to affect the entire case of the prosecution, which has been otherwise conclusively substantiated.
37. Likewise, a similar ground with regard to a minor contradiction in connection with the pledging of jewels by the appellant in the jewel receipt (Ex.P.5) and the discrepancy in the signature of the appellant therein was also raised by the learned counsel for the appellant. The trial court found the fact that the appellant had pledged the jewels before PW.12 on 17.03.2014 has been spoken to by him and no questions were put to him with regard to this statement during the cross-examination. When the fact that the appellant had pledged the jewels on 17.03.2014, the day on which the body of the deceased was found, has been established through the evidence of Page 28 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 PW.12, this Court deems it a futile exercise to consider the alleged discrepancy in the signatures of the appellant in the receipt. Above all, no suggestions with regard to the discrepancy in the signatures have been put to any relevant witness during cross-examination and hence, such a ground cannot be raised at the appellate stage.
38. The false statement made by the accused under Section 313 Cr.P.C. alone cannot be the basis for imposition of a punishment to the appellant. However, the trial court had given due weightage to the circumstantial evidences on hand and by applying the last seen theory, had come to the conclusion that the appellant was guilty of the charged offence. We do not find any reason to interfere with such findings.
39. In the result, we are of the view that there are no merits in the present appeal. Accordingly, the Criminal Appeal stands dismissed.
(M.S.R.,J.) (M.N.K.,J.) 22.12.2023 Index:Yes Neutral Citation:Yes Speaking order hvk Page 29 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 To
1.The Inspector of Police, Bodi Town Police Station, Theni District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Page 30 of 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.154 of 2021 M.S.RAMESH,J.
and M.NIRMAL KUMAR,J.
hvk Pre-delivery Judgment made in Crl.A.(MD) No.154 of 2021 12.12.2023 Page 31 of 31 https://www.mhc.tn.gov.in/judis