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CASE NO.:

Appeal (crl.) 82 of 2003

PETITIONER:

RIZAN & ANOTHER

RESPONDENT:

STATE OF CHHATISGARH THRU CHIEF SECRETARY GOVT. OF CHHATISGARH RAIPUR

DATE OF JUDGMENT: 21/01/2003

BENCH:

SHIVARAJ V. PATIL & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

2003(1) SCR 457

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

Appellants call in question legality of impugned judgment rendered by the

Madhya Pradesh High Court at Jabalour, whereby it upheld the conviction and

sentence awarded by the Additional Sessions Judge, Jashpurnagar.

Prosecution version which led to the trial of the appellants (hereinafter

referred to as 'the accused' by their respective names) is as follows:

On 29.11.86 information was lodged by Jhanguram (PW-2) that six persons had

assaulted him with intention to take his life, and had also caused injuries

to his wife Pandri Bai (P.W.4) and his daughter-in-law Tilobai (P.W.5). On

the basis of such information, the case was registered and investigation

was undertaken. On completion of investigation charge was framed for

commission of offences punishable under Sections 147, 148, 307 read with

Section 34 and Section 323 of the Indian Penal Code, 1860 (in short MPC').

It was alleged that accused Khodhibai (since acquitted) and Pandri Bai

(P.W.4) are sisters. There was a bad blood between them over certain

properties and civil litigation was going on. The six accused persons were

cutting the crops raised by Jhanguram (P. W.2) on the date of the

occurrence. When he asked them not to do so, the accused persons did not

pay any heed. Suddenly accused-appellant Rizan snatched the axe which

Jhanguram (P.W.2) was holding and assaulted him with the said weapon and

caused several injuries on different parts of his body e.g. lips, hands and

feet. More particularly, accused-appellant. Duda hit Jhanguram and Pandri

Bai with a stick. Other accused persons also hit him with their hands and

feet. Some persons standing nearby came to their rescue. The injured P.Ws.

2, 4 and 5 were examined by the Doctor (PW-1). During investigation the

weapon of assault i.e. axe was seized from the accused-appellant, Rizan and

some other weapons from the other persons. Six witnesses were examined to

further the prosecution version. Accused persons pleaded innocence and

false implication. On consideration of the evidence on record, the Trial

Court held that the prosecution has not been able to bring home the

accusations against accused-Paras, Vinod, Khodibai and Jaymala.

Accused-appellant Rizan was found guilty for the offences punishable under

Section 326 IPC for inflicting injuries on Jhanguram (P.W.2) and under

Section 323 IPC for the injuries inflicted on Pandri Bai (P.W.4). Accused

Duda was found guilty for the offences punishable under Section 323 IPC for

inflicting injuries on aforesaid two witnesses. However, both the accused-

appellants Rizan and Duda were acquitted of the offences relatable to

Sections 147 and 148 IPC. It was also held that the offence committed by

the accused persons is not covered by Section 307 IPC. After hearing the

accused persons on the question of sentence, accused-appellant, Rizan was

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sentenced to undergo RI for two years and two months respectively for the

offence punishable under Sections 326 and 323 IPC. Both the sentences were

directed to run concurrently. Accused Duda was sentenced to undergo RI for

two months. In appeal, by the impugned judgment, the High Court dismissed

the appeal maintaining the convictions and the sentences. In support of the

appeal, learned counsel for the accused-appellants submitted that this is a

case where the conviction is not maintainable as the injuries were

inflicted by the accused-appellants while exercising their right of private

defence. Further on the same set of evidence four persons have been

acquitted and, therefore, so far as the appellants are concerned,

conviction does not stand to reason. It is also submitted that the

witnesses who claim to have seen the occurrence are witnesses who were in

inimical terms with the accused-appellants. Residually, it is submitted

that the sentences as imposed are high, and considering the fact that the

occurrence took place five years back, the sentences should be reduced to

what has already been undergone which is stated to be about three months.

It is pointed out that accused-appellant. Duda has already suffered the

sentence awarded. Learned Counsel for the prosecution on the other hand

submitted that the evidence clearly rules out application of the right of

private defence. Merely because the evidence of some of the witnesses has

not been accepted to be fully reliable, in view of the clear and

categorical findings recorded that the evidence is cogent and credible so

far as the appellants are concerned, the conviction does not suffer from

any infirmity.

We shall first deal with the contention regarding interestedness of the

witnesses for furthering prosecution version. Relationship is not a factor

to affect credibility of a witness. It is more often than not that a

relation would not conceal actual culprit and make allegations against an

innocent person. Foundation has to be laid if plea of false implication is

made. In such cases, the court has to adopt a careful approach and analyse

evidence to find out whether it is cogent and credible.

In Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364 it has

been laid down as under:-

"A witness is normally to be considered independent unless he or she

springs from sources which are likely to be tainted and that usually means

unless the witness has cause, such as enmity against the accused, to wish

to implicate him falsely. Ordinarily a close relation would be the last to

screen the real culorit and falsely implicate an innocent person. It is

true, when feelings run high and there is personal cause for enmity, there

is a tendency to drag in an innocent person against whom a witness has a

grudge along with the guilty, but foundation must be laid for such a

criticism and the mere fact of relationship far from being a foundation is

often a sure guarantee of truth. However, we are not attempting any

sweeping generalization. Each case must be judged on its own facts. Our

observations are only mads to combat what is so often put forward in cases

before us as a general rule of prudence. There is no such general rule.

Each case must be limited to and be governed by its own facts.

The above decision has since been followed in Guli Chand and Ors. v. State

of Rajasthan, [1974] 3 SCC 698 in which Vadivelu Thevar v. State of Madras,

AIR (1957) SC 614 was also relied upon.

We may also observe that the ground that the witness being a close relative

and consequently being a partisan witness, should not be relied upon has no

substance. This theory was repelled by this Court as early as in Dalip

Singh's case supra in which surprise was expressed over the impression

which prevailed in the minds of the Members of the Bar that relatives were

not independent witnesses. Speaking through Vivian Bose. J. it was

observed:

"We are unable to agree with the learned Judges of the High Court that the

testimony of the two eyewitnesses requires corroboration. If the foundation

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for such an observation is based on the fact that the witnesses are women

and that the fate of even men hangs on their testimony, we know of such

rule. If it is grounded on the reason that they are closely related to the

deceased we are unable to concur. This is a fallacy common to may criminal

cases and one which another Bench of this Court endeavoured to dispel in

Rameshwar v. State of Rajasthan, AIR (1957) SC 54 at p.59). We find,

however, that the unfortunately still persists, if not in the judgments of

the Courts, at any rate in the arguments of counsel."

Again in Masalti and Ors. v. State of U.P.. AIR (1965) SC 202 this Court

observed; 202-210 para 14;

"But it would, we think, be unreasonable to contend that evidence given by

witnesses should be discarded only on the ground that it is evidence of

partisan or interested witnesses.......The mechanical rejection of such

evidence on the sole ground that it is partisan would invariably lead to

failure of justice. No hard and fast rule can be laid down as to how much

evidence should be appreciated. Judicial approach has to be cautions in

dealing with such evidence: put the plea that such evidence should be

rejected because it is partisan cannot be accepted as correct."

To the same effect is the decision in State of Punjab v. Jagir Singh, AIR

(1973) SC 2407 and Lebna v. State of Haryana, [2002] 3 SCC 76.

Stress was laid by the accused-appellants on the non-acceptance of evidence

tendered by some witnesses to contend about desirability to throw out

entire prosecution case. In essence prayer is to apply the principle of

"falsus in uno falsus in omnibus" (false in one thing, false in

everything). This plea is clearly untenable. Even if major portion of

evidence is found to be deficient, in case residue is sufficient to prove

guilt of an accused, notwithstanding acquittal of number of other co-

accused persons, his conviction can be maintained. It is the duty of Court

to separate grain from chaff. Where chaff can be separated from grain, it

would be open to the Court to convict an accused notwithstanding the fact

that evidence has been found to be deficient to prove guilt of other

accused persons. Falsity of particular material witness or material would

not ruin it from the beginning to end. The maxim "falsus in uno falsus in

ominbus" has no application in India and the witnesses cannot be branded as

liar. The maxim "falsus in uno falsus in omnibus" has not received general

acceptance nor has this maxim come to occupy the status of rule of law. It

is merely a rule of caution. All that it amounts to, is that in such case

testimony may be disregarded, and not that it must be disregarded. The

doctrine merely involves the question of weight of evidence which a Court

may apply in a given set of circumstances, but it is not what may be called

'a mandatory rule of evidence'. See Nisar Alli v. The State of Uttar

Pradesh, AIR (1957) SC 366. Merely because some of the accused persons have

been acquitted, though evidence against all of them, so far as direct

testimony went, was the same does not lead as a necessary corollary that

those who have been convicted must also be acquitted. It is always open to

a Court to differentiate accused who had been acquitted from those who were

convicted. See Gurucharan Singh and Am. v. State of Punjab, AIR (1956) SC

460. The doctrine is a dangerous one specially in India for if a whole body

of the testimony were to be rejected, because witness was evidently

speaking an untruth in some aspect, it is to be feared that administration

of criminal justice would come to a dead-stop. Witnesses just cannot help

in giving embroidery to a story, however, true in the main. Therefore, it

has to be appraised in each case as to what extent the evidence is worthy

of acceptance, and merely because in some respects the Court considers the

same to be insufficient for placing reliance on the testimony of a witness,

it does not necessarily follow as a matter of law that it must be

disregarded in all respects as well. The evidence has to be shifted with

care. The aforesaid dictum is not a sound rule for the reason that one

hardly comes across a witness whose evidence does not contain a grain of

untruth or at any rate exaggeration, embroideries or embellishment. See

Sohrab s/o Belt Navata and Anr. v. The State of Madhya Pradesh, [1972] 3

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SCC 751 and Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) SC 277. An

attempt has to be made to, as noted above, in terms of felicitous metaphor,

separate grain from the chaff, truth from falsehood. Where it is not

feasible to separate truth from falsehood, because grain and chaff are

inextricably mixed up, and in the process of separation an absolutely new

case has to be reconstructed by divorcing essential details presented by

the prosecution completely from the context and the background against

which they are made, the only available course to be made is to discard the

evidence in toto. See Zwingle Ariel v. State of Madhya Pradesh, AIR (1954)

SC 15 and Balaka Singh and Ors. v. The State of Punjab AIR (1962). As

observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR

(1981) SC 1390, normal discrepancies in evidence are those which are due to

normal errors of observation, normal errors of memory due to lapse of time,

due to mental disposition such as shock and horror at the time of

occurrence and those are always there however honest and truthful a witness

may be Material discrepancies are those which are not normal, and not

expected of a normal person. Courts have to label the category to which a

discrepancy may be categorized. While normal discrepancies do not corrode

the credibility of a party's case, material discrepancies do so. These

aspects were highlighted recently in Krishna Mochi and Ors. v. State of

Bihar, etc. JT (2002) 4 SC 186 Gangadhar Behera and Ors. v. State of

Orissa, (2002) 7 Supreme 276. Accusations have been clearly established

against accused-appellants in the case at hand. The Courts below have

categorically indicated the distinguishing features in evidence so far as

acquitted and convicted accused are concerned.

Then comes plea relating to alleged exercise of right of private defence.

Section 96 IPC provides that nothing is an offence which is done on the

exercise of the right of private defence. The Section does not define the

expression 'right of private defence.' It merely indicates that nothing is

an offence which is done in the exercise of such right. Whether in a

particular set of circumstance, a person acted in the exercise of the right

of private defence is a question of fact to be determined on the facts and

circumstances of each case. No test in the abstract for determining such a

question can be laid down. In determining this question of fact, the Court

must consider all the surrounding circumstances. It is not necessary for

the accused to plead in so many words that he acted in self-defence. If the

circumstances show that the right of private defines was legitimately

exercised it is open to the Court to consider such a plea. In a given case

the Court can consider it even if the accused has not taken it, if the same

is available to be considered from the material on record. Under Section

105 of the Indian Evidence Act, 1872 the burden of proof is on the accused

who sets up the plea of self-defence and, in the absence of proof, it is

not possible for the Court to presume the truth of the plea of self-

defence. The Court shall presume the absence of such circumstances. It is

for the accused to place necessary material on record either by himself

adducing positive evidence or by eliciting necessary facts from the

witnesses examined for the prosecution. An accused taking the plea of the

right of private defence is not required to call evidence: he can establish

his plea by reference to circumstances transpiring from the prosecution

evidence itself. The question in such a case would be a question of

assessing the true effect of the prosecution evidence, and not a question

of the accused discharging any burden. Where the right of private defence

is pleaded, the defence must be a reasonable and probable version

satisfying the Court that the harm caused by the accused was necessary for

either warning off the attack or for forestalling the further reasonable

apprehension from the side of the accused. The burden of establishing the

plea of self-defence is on the accused and the burden stands discharged by

showing preponderance of probabilities in favour of that plea on the basis

of the material on record. See Munshi Ram and Ors. v. Delhi Administration,

AIR (1968) SC 702; State of Gujarat v. Bal Fatima, AIR (1975) SC 1478;

State of U.P. v. Mohd. Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal

Jolly v. State of Punjab, AIR (1979) SC 577). Sections 100 to 10! define

the extent of the right of private defence of body. If a person has a right

of private defence of body under Section 97, that right extends under

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Section 100 to causing death if there is reasonable apprehension that death

of grievous hurt would be the consequence of the assault. The oft quoted

observation of this Court in Salim Zia v. State of U.P., AIR (1979) SC 391,

runs as follows:

"It is true that the burden on an accused person to establish the plea of

self-defence is not as onerous as the one which lies on the prosecution and

that, while the prosecution is required to prove its case beyond reasonable

doubt, the accused need not establish the plea to the hilt and may

discharge his onus by establishing a mere preponderance of probabilities

either by laying basis for that plea in the cross-examination of the

prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence

beyond reasonable doubt. It is enough for him to show as in a civil case

that the preponderance of probabilities is in favour of his plea.

The number of injuries is not always a safe criterion for determining who

the aggressor was, it cannot be stated as a universal rule that whenever

the injuries are on the body of the accused person, a presumption must

necessarily be raised that the accused persons had caused injuries in

exercise of the right of private defence. The defence has to further

establish that the injuries so caused on the accused probabilises the

version of the right of private defence. Non-explanation of the injuries

sustained by the accused at about the time of occurrence or in the course

of altercation is a very important circumstance. But mere non-explanation

of the injuries by the prosecution may not affect the prosecution case in

all cases. This principle applies to cases where the injuries sustained by

the accused are minor and superficial or where the evidence is so clear and

cogent so independent and disinterested, so probable, consistent and

credit-worthy, that if far outweighs the effect of the omission on the part

of the prosecution to explain the injuries. See Lakshmi Singh v. State of

Bihar, AIR (1976) SC 2263. In this case, as the Courts below found there

was not even a single injury on the accused persons, while PW2 sustained

large number of injuries and was hospitalized for more than a month. A plea

of right of private defence cannot be based on surmises and speculation.

While considering whether the right of private defence is available to an

accused, it is not relevant whether he may have a chance to inflict severe

and mortal injury on the aggressor. In order to find whether the right or

private defence is available to an accused, the entire incident must be

examined with care and viewed in its proper setting. Section 97 deals with

the subject matter of right of private defence. The plea of right comprises

the body or property (i) of the person exercising the right; or (ii) of any

other person; and the right may be exercised in the case of any offence

against the body, and in the case of offences of theft, robbery, mischief

or criminal trespass, and attempts at such offences in relation to

property. Section 99 lays down limits of the right of private defence.

Sections 96 and 98 give a right of private defence against certain offences

and acts. The right given under Sections 96 to 98 and 100 to 106 is

controlled by Section 99. To claim a right of private defence extending to

voluntary causing of death, the accused must show that there were

circumstances giving rise to reasonable grounds for apprehending that

either death or grievous hurt would be caused to him. The burden is on the

accused to show he had a right of private defence which extended to causing

of death. Sections 100 and 101. IPC define the limit and extent of right of

private defence. Sections 102 and 105. IPC deal with commencement and

continuance of the right of private defence of body and property

respectively. The right commence, as soon as a reasonable apprehension of

danger to the body arises from an attempt, or commit the offence, although

the offence may not have been committed but not until that there is that

reasonable apprehension. The right lasts so long as the reasonable

apprehension of the danger to the body continues. In Jai Dev v. State of

Punjab, AIR (1963) SC 612, it was observed that as soon as the cause for

reasonable apprehension disappears and the threat has either been destroyed

or has been put to route, there can be no occasion to exercise the right of

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private defence.

In order to find whether right of private defence is available or not, the

injuries received by the accused, the imminence of threat to his safety,

the injuries caused by the accused and the circumstance whether the accused

had time to have recourse to public authorities are all relevant factors to

be considered. Thus, running to house, fetching a tabli and assaulting the

deceased are by no means a matter of course. These acts bear stamp of a

design to kill and take the case out of the purview of private defence.

Similar view was expressed by this Court in Biran Singh v. State of Bihar,

AIR (1975) SC 87 and recently in Sekar @ Raja Bekharan v. State represented

by Inspector of Police Tamil Nadu, (2002) 7 Supreme 124.

Sentences imposed do not in any way appear to be harsh. Merely because the

occurrence took place sometime back, same cannot be a factor to reduce the

sentences. The appeal is without merit and is dismissed.