M. Papanna, J.
1. This Jail Criminal Appeal is filed by accused persons Sauki Pradhan and Gangadhar Pradhan (hereinafter referred to as 'the appellants'. They have challenged the impugned order of conviction under Section 302 read with Section 34. I.P.C. and sentence of rigorous imprisonment for life thereunder recorded by learned Additional Sessions Judge. Sambalpur in S.T. Case No. 4/20 of 1993.
2. Prosecution case is very simple. On 14.6.1992 appellants were taking bath at the tube well of their village. It was evening time. Pravaka'r (hereinafter referred to as the deceased) and his son Saroj came there. The deceased found appellants making that area muddy. He objected to that. There was altercation between them. At that time accused Bhulku, Bhikari an Kalabati came there. Accused Bhulku and Bhikari caught hold of the deceased. In the meantime appellant Gangadhar brought a knife from his house nearby. He was trying to stab the deceased. At that juncture appellant Sauki took away the said knife from him. Then he dealt blows by means of the said knife on the chest, belly and back of the deceased. As a result, he succumbed to the injuries. On the F.I.R. (Ext.3) lodged by P.W.2. Brajrajnagar P.S. Case No. 116 of 1992 was registered. During investigation Police held inquest over the dead body. It was sent for autopsy. On completion of investigation appellants were charge sheeted.
3. Plea of defence is not of denial of the charges.
4. Prosecution examined 12 witnesses in proof of charges against the appellants P.W. 1 is a Doctor. He conducted autopsy. P.Ws. 2 and 3 are sons of deceased. P.W.4 is an independent witness. P.W.5 is his son. P.W.6 is a co-villager. P.W.7 is an inquest witness. P.W.8 is a Constable. P.W.9 is a Ward member of Charbati Panchayat. P.W. 10 is the I.I.C. of Brajrajnagar P.S. P. W. 11 is a seizure witness and P.W. 12 is another Doctor. He examined injured Dolamani Pradhan and Saroj Kumar Pradhan.
5. Defence examined to witness.
6. Learned Additional Sessions Judge based conviction of appellants on eye-witness evidence of P.Ws. 2.3.4 and 5 and some documents exhibited for the prosecution.
7. Learned counsel for appellants urged that there are infirmities and contradictions in the evidence of the so called eye-witnesses. Learned trial Judge found improvement in their versions during trial though they have not stated so in their previous statements under Section 161Cr.P.C. He disbelieved them and acquitted accused Bhikari, Bhulku and Kalabati of the charges. He has also contended that accused Bhulku and deceased Pravakar have been in litigating terms centering round land dispute. To him, evidence of the so-called eye-witnesses who are relations of the deceased, cannot be relied upon to base conviction of appellants.
8. The Additional Government Advocate, on the other hand, supported the judgment impugned in this appeal.
9. Prosecution case hinges essentially on eye-witness evidence of P.Ws. 2, 3.4 and 5. Evidence of these witnesses has to be re- appraised in the light of contentions raised by learned counsel for appellants.
10. In a case of murder the Court has to find out first whether victim died homicidal death. The Doctor (P.W.I) has proved P.M. Report (Ext. 1). It shows 6 incised wounds of different sizes on the chest, belly and back of the victim. He has opined these injuries to be ante mortem in nature. Cause of death was probably due to hypovolaemic shock due to extensive bleeding resulting from the aforesaid stab and incised wounds probably inflicted by a sharp and pointed weapon. The said injuries were sufficient to cause death of a person in ordinary course of nature. P.W.I, on examination of M.O.J. referred to him submitted his opinion (Ext.2) to the effect that the injuries as per P.M. Report (Ext.l) could be possible by M.O.I. Neither during trial before the trial Court nor before us in course of hearing of this appeal, the fact that injuries sustained by victim were ante mortem in nature and he died homidical death has been disputed on behalf of the appellants. As such, we agree with finding of the learned trial Judge that victim died a homidical death.
11. Relying on the decision of this Court in Nabakishore Rout v. State, (1990), 3 O.C.R. 659, the learned counsel for appellants persuaded us to apply the principle 'falsus in uno Jalsus in omnibus' to the present case. His contention is that when the learned trial Judge substantially disbelieved the evidence of witnesses, residuary evidence cannot be utilised for purpose of convicting the appellants. It is true that because of evidence of eye-witnesses being deficient to prove guilt of accused Bhikari, Bhulku and Kalabati, the learned trial Judge acquitted them of the charges. Thus, according to him, there is no reason why the present appellants would be held liable to be convicted of t he- charges on the selfsame evidence. In the light of his content ion, we have to appreciate evidence of witnesses and also examine, if principle of 'Jalsus in uno Jalsus in omnibus' applies to the present case. On the other hand, learned Additional Government Advocate has contended that the aforesaid maxim does not apply to the present case.
12. In view of rival contentions we have to consider whether learned trial Judge is justified in holding the appellants guilty on the evidence of P.Ws. 2, 3, 4 and 5.
13. We have carefully examined the evidence of P.W.2. His testimony indicates that deceased having found appellants making tube well area muddy, raised objection. During altercation that ensued between them appellant Gangadhar having annoyed ran to his house nearby and came back with a knife. When he tried to assault deceased, he was caught hold of by P.W.5. In that juncture, appellant Sauki snatched away the knife from the hands of appellant Gangadhar and he in turn inflicted injuries on his chest, abdomen and back by means of the said knife. We have found his testimony very clear, cogent, consistent and convincing when he says that he went to village tube well to fetch water and witnessed the occurrence as stated above. Further, his testimony inspires our confidence when he says that on intervention he sustained injuries for which he was medically examined by P.W. 12 who proves injury report Ext. 11/1 which shows that he had sustained an incised wound of 2 cm x 1/2 cm x skin deep situated on the left ring finger lateral margin, probably caused by a sharp cutting weapon such as knife. Evidence of P.W.2 in the opinion of appellants' counsel might be deficient so far as accused Bhikari, Bhulku and Kalabati are concerned. But so far as the appellants are concerned, it does not suffer from any infirmity or contradiction.
14. The maxim 'falsus in uno falsus in omnibus' means false in one thing, false in everything. This maxim does not apply in India. This is not a principle which can be accepted and applied in general in all jurisdictions particularly when it has not been recognised and given status of rule of law in India. No doubt, the maxim may be accepted as a rule of caution. As such, in some cases applying such a rule of caution, we may disregard some testimony if the same is found deficient but it depends on the facts and circumstances of each case. That being so, it is not a mandatory rule of evidence as decided in the case of Nisar Ali v. State of U.P. reported in AIR 1957 SC 366. It is held therein that 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. Their Lordships have observed that it is always open to a Court to differentiate accused who had been acquitted from those who were convicted. We may also refer to AIR 1956 460. Gurcharan Singh and Anr. v. State of Punjab where their Lordships have said that 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 one more particular it is to be feared that administration of criminal justice would come to a dead stop. The witness 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 respect 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 respect as' well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reasons that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment.
15. In this regard, we would also like to rely upon a recent decision of the Apex Court in the case of Rizen v. State of Chandigarh through the Chief Secretary, Government of Chandigarh (Raipur) reported in AIR 2003 SCW 469. In the above case their Lordships have taken the view that even if major portion of evidence is found to be deficient in a case, residue is sufficient to prove guilt of accused notwithstanding acquittal of number of other accused persons, his conviction can be maintained. It is the duty of the Court to separate grain from chaffs. Where chaffs can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilt of the other accused persons.
16. We have found eye-witness evidence of P.W.2 being amply corroborated by evidence of P.W.3 in all material particulars. His version inspires our confidence when he says, having heard hullah he rushed to the tube well and found appellant Gangadhar trying to give blow on his father (deceased) but Subash Padhan (P.W.5) rescued him. However, appellant Sauki did not leave him. He snatched away the knife (M.O.I) from appellant Gangadhar and dealt blows on his chest, belly and back by M.O.I, which has been properly and correctly identified by P.Ws. 2,3,4 and 5. During cross-examination their evidence remained unassailed and unimpeached in any manner.
17. We have also re-examined evidence of P.Ws.4 and 5. Their testimony clearly indicates that Sauki snatched away M.O.I, from appellant Gangadhar and dealt blows on the chest, abdomen and back of the deceased by the same. Their evidence could not be rendered unacceptable or unimpeachable by defence during cross-examination. P.W.6 has also stated to have seen the assault being committed by appellant Sauki by means of M.O.I, His evidence further disclosed that on the information of appellant Gangadhar while in custody Police recovered and seized weapon of offence (M.O.I.) from a corner of his house. Evidence of P.W.6 coupled with evidence of I.I.C. (P.W. 10) has proved the relevant seizurelist (Ext.6). Furthermore, during his examination under Section 313 Cr.P.C. appellant Sauki offered explanation to question No. 28 stating that he assaulted the deceased. So on material evidence available on record, learned trial Judge has correctly found appellant Sauki guilty of the offence in causing deceased's death and having found the same deficient to prove guilt of Bhikari. Bhulku and Kalabati he acquitted them of the charges, Falsity of particular material witness or material particulars would not ruin it from beginning to end. Thus, the maxim 'Jalsus in unofalsus in omnibus' has no application in the present case.
18. In view of our discussions made above, we are not inclined to brand P.Ws. 2, 3, 4, 5 and 6 as liars. Merely because Bhikari, Bhulku and Kalabati 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 appellants Sauki and Gangadhar who have been convicted must also be acquitted. Here in the light of dictum quoted above we have differentiated accused Bhikari, Bhulku and Kalabati who have been acquitted from the appellants Sauki and Gangadhar who have been convicted. We do not think it proper to reject the whole body of the testimony of the aforesaid witnesses. They have spoken truth so far as appellants who have been convicted are concerned. We confirm their conviction to safeguard the administration of criminal justice which would come to a dead-stop otherwise.
19. The appellants' counsel has left no stone unturned in attacking prosecution case from another angle. According to him, the so called eye-witnesses are relations of the deceased who was also in litigating terms with accused Bhulku centering round land dispute prior to the occurrence. It is true that P.Ws. 2,3,4 and 5 are relations of the deceased. But on re-examining their testimony we have found that during cross-examination by the defence nothing substantial could be elicited to impeach their testimony. As such we are not inclined to discard and disbelieve their versions merely because they are relations of the deceased. In this regard, we place reliance on Rechamreddy Chemma Reddy and Ors. v. State of Andhra Pradesh reported in (1999) 16 O.C.R. (S.C.) 351. In the reported case, the Supreme Court has laid down the law that the relations of the deceased will not try to implicate any innocent person in the murder of the deceased. In the present case, we have found from the evidence of P.Ws.4 and 9 that there was land dispute between the deceased and accused Bhulku (since acquitted) but we do not find any personal enmity between the appellants who have been convicted and above witnesses who have no axe to grind against them. That being so, in our considered view the learned trial Judge has rightly accepted evidence of these witnesses to be wholly reliable and based conviction of the appellants Sauki and Gangadhar on their testimony. In the above reported case their Lordships have taken view that relationship of deceased and witnesses cannot be a ground to discard their evidence if it is otherwise found to be reliable. Therefore, in view of our discussion of facts as well as law, we accept and rely upon evidence of P.Ws. 2,3,4,5 and 6 corroborated by medical evidence as spoken to by P.W.I in reaching a positive, irresistible and unescapable conclusion that appellant Sauki stabbed the deceased on his chest, belly and back by means of M.O.I.
20. The learned counsel for appellants has alternatively submitted before us that it is appellant Sauki who alone committed murder of deceased but not appellant Gangadhar. To him. appellant Sauki stands in a different footing from that of appellant Gangadhar. In such a view of the matter he has urged that act of appellant Gangadhar cannot be brought within Hie purview of Section 34 of Indian Penal Code.
21. Relying on 1988 (1) O.L.R. 626 (Tunu Puturi and Ors. v. State of Orissa) appellants counsel has contended that, in the absence of pre-meditation or preconcert, knowledge or inclination that appellant Sauki could stab the deceased with M.O.I., the other appellant Gangadhar could not be associated. In this regard, he has also relied on (1992) 5 O.C.R. 180 (Dhoba alias Dhoba Sahu and Ors. v. State) wherein this Court held that to fasten liability to an accused, two ingredients are to be established. They are (i) common intention to commit an offence and (2) participation by all accused persons in doing act or acts in furtherance of common intention. In the Supreme Court decision reported in 1991 S.C. 536 (Vencil Pusparaj v. State of Rajasthan). the law is well settled that in order to bring an accused under the purview of Section 34 I.P.C. he must have acted in concert or there was existence of pre-arranged plan to commit murder of the deceased in order that common intention on the part of the accused can be inferred. None of the aforesaid decisions come to rescue of appellant Gangadhar. We have to examine how far prosecution has established common intention of appellant Gangadhar, which is a sine qua nonfor application of Section 34 I.P.C. Section 34 I.P.C. embodies principle of joint liability in doing of a criminal act. Firstly, there must be existence of common intention. Secondly, there must be participation in the commission of offence in furtherance of common intention. Then only the principle of joint liability applies. Section 34 does not create distinct offence. It only lays down principle of constructive liability. Therefore, to invoke aid of this section, the prosecution must show that the act complained of has been done by one of the culprits in furtherance of common intention of all the culprits.
22. In the present case, we have gone through the impugned judgment along with relevant portion of the evidence of witnesses on record and found thai appellant Gangadhar first ran to his house and brought, the knife with intention to stab the deceased. But he could not stab him because while he was attempting to stab him he was prevented by P.W.5. Any way, his intention to stab the deceased was fulfilled by appellant Sauki who by snatching away M.O.I from his hands stabbed on the person of the deceased. This shows that appellant Gangadhar and Sauki had the common intention to stab the deceased. Had Gangadhar not brought the knife from his house, perhaps question of appellant Sauki snatching away the said knife from his hands and stabbing on the person of the deceased would not have arisen. Therefore, in such sequence and facts situation and circumstances, we cannot hold that appellant Gangadhar stands in a different, footing from that of appellant Sauki. We are fully convinced that case of appellant Gangadhar is not at all different from that of appellant Sauki. As such, act of Gangadhar can be brought within the purview of Section 34 of the Indian Penal Code for having common intention withappellant Sauki in stabbing the deceased. As such, the contention of the appellants, counsel having no force of law stands rejected.
23. The last and final question for consideration is if order of sentence recorded by learned Additional Sessions Judge is legal and can be sustained in law. We have found from eye- witness evidence that out of a trivial matter of making Tube Well area muddy by appellants, there ensued altercation between them and deceased. It was a sudden quarrel. The appellants having been pronoked by the deceased, they became imbalanced in mind. It-shows that their intention was not to kill the deceased though the injuries inflicted on him resulted in his death. Moreover, had the deceased not objected to the fact of making Tube Well area muddy by appellants, the latter would not have re-acted to the extent of inflicting injuries on his person resulting in his death. In our considered view, their conviction under Section 302. I.P.C. is not sustainable in law in view of the facts and circumstances of this case. As such we set aside the said conviction of the appellants under Section 302, I.P.C. On the contrary we hold the appellants guilty under Section 304, Part-I I.P.C. and treat the sentence of imprisonment undergone already by them as substantive sentence of imprisonment.
24. In the ultimate result, the Jail Criminal Appeal is allowed in part.
B.P. Das, J.
25. I agree.