S. K. Ray, J.
1. This is an appeal by the State under Section 417. Cr. P. C. from the judgment of acquittal dated 5-12-70 of the Sessions Judge, Mayurbhanj-Keonjhar passed in S. T. No. 30-M of 1969 whereby accused-respondent Sukra Singh has been acquitted of the charge under Section 302, I. P. C. for having committed murder of one Budhu Singh, his paternal uncle.
2. The prosecution story may now be related. The deceased had 5 brothers. His elder brother Durga Singh having died he married the latter s widow Gurubari, who is P.W. 1. The accused is the son of Gurubari by her first husband Durga Singh. He, the deceased and P. Ws. 1 to 4 belong to the same village. On 20-3-69 Selei Puja was being performed in the village and general feast was being held on that occasion. All villagers, both young or old., congregated at the Puja to participate in the feast. The feast was over before dusk and all the villagers left that place for their respective houses. Chukulu (P. W. 3) is another brother of the deceased. While the deceased and P.W. 3 were returning home they had quarrelled and the deceased was about to throttle him when P.W. 1 intervened and separated them. Another brother of the deceased is one Sagram in whose house his mother was living. P, W. 1 was also sleeping there for want of space in the house of the deceased. The deceased came to the house of Sagram to call his mother to participate in the feast, but was informed by his wife (P. W. 1) that she had already gone to sleep. The deceased, thereupon, sat in front of the room where his wife was sleeping and called for a chadar. Subsequently, P.W. 3 also arrived there to get some tobacco and finding the deceased sitting there slapped him. Both of them were slightly tipsy. On being thus assaulted the deceased got up and caught hold of P.W. 3 and a tussle between them ensued in which each began to assault the other manually. While so fighting, the deceased dragged P.W. 3 to the adjoining open ban of Same Singh and threw him on the ground and began to throttle him. P.W. 3 who was no match for the deceased in physical prowess called out the accused by name for help. The accused, whose house was nearby, rushed to the spot with a stick and gave a blow on the head of the deceased who then released P.W. 3 and sat down on the ground. By that time P. Ws. 1 and 2 had already arrived there. After the accused dealt the blow to the deceased, Iswar (P.W. 2) and Chukulu (P.W. 3) snatched away the stick from his band obviously with a view to save the deceased from further assault. The accused then ran back to his house and came armed with bow and arrows and shot two arrows at the deceased. P.W. 3 snatched the bow and arrows from the accused who then ran away. Within an hour or so of this occurrence, the deceased expired.
3. P.W. 1 lodged F. I. R. (Ex. 5) at Udala P. S. which was 12 kilometers from the village of occurrence on 21-3-69 at 8. A. M. P.W. 7 the A. S. I. recorded the F. L R. and took up preliminary investigation. He reached the spot at 1 p.m. on 21-3-69 and held the inquest over the dead body and sent it to the Subdivisional hospital at Udla for post-mortem examination. He seized blood soaked earth from the place of occurrence and some sample earth. He seized the bow, the handle of a pick axe and two arrows under seizure list Ex. 8. Thereafter, he made over charge of investigation to the Circle Inspector, who seized one arrow-head and an arrow under seizure list Ex. 3. He sent the sample earth and shaft of the arrow for chemical examination. On completion of investigation he charge-sheeted the accused.
4. The defence, as appears from statement of the accused under Section 342, Cr.P.C. is a total denial. A secondary de-fencer was adopted during cross-examination of P. Ws., according to which the accused shot two arrows in the darkness to escape pursuit by P. Ws. 2, 3 and one Dapang, another brother of the deceased, who was armed with a stick, and those arrows might have accidently hit the deceased.
5. The prosecution evidence is clear and categorical that the shooting of the deceased took place in the bari of Sama Singh and that the death was homicidal. P.W. 5, the doctor who conducted the post-mortem examination on 22-3-69 found 7 injuries on the body of the deceased. Two of them were punctured wounds, one over the right side of the chest wall in the 4th intercostal space of the mid axillary line 1 1/2 x 1' margins inverted and the other was 1 1/2' x3/4' with margins inverted in the right second intercostal space having clean cut margins. The punctured wound in the chest had two apertures, one of entry situated in the right mid axillary line in the 4th intercostal space and the other of exit situated in the front chest in the right 2nd inter space 1/2' right to the mid line. This wound passed through the right intercostal space (4th), pleura (right) and right lung, pleura and 2nd para sternal space and the pleural cavity contained bright forthy blood of about 1 litre. The rest comprised of 4 bruises of different dimensions on the forehead, right temporal region about the right ear, the right side of the neck, and the right upper lid of the eye, and one a leniar abrasion, 2 1/2' long, on the inner aspect of the right upper arm. On their dissection he found haemotoma of the scalp and bruises on the neck muscles. All these injuries were antemortem in nature, and the injury caused to the lungs was dangerous and was sufficient in the ordinary course of nature, to cause death the arrow head which was seized from near the place of occurrence was shown to him for his opinion if any of injuries could be caused by it and he opined that the lung injury could be caused by it. The age of the injuries as determined by him corresponded with the time of occurrence.
* P.W. 5 has also examined P.W. 3 on 22-3-69, He found one superficial linear abrasion 3' long over the right disc of the abdomen 1/2' right to the midline near the umbilicus and another superficial abrasion 1 1/2' x 1/2' over the right cheek near the angle of the eye, simple in nature. The age of the injuries on P.W. 3 is stated to be 36 to 48 hours which also correspond to the time of occurrence.
* The Serologist was of opinion that the earth and the shaft of an arrow and the napkin were stained with human blood but the origin of blood-stains on the arrow head, arrow shaft and wooden lathi could not be determined due to disintegration.
6. The prosecution has sought to prove his case through 4 eye-witnesses P. Ws. 1, 2, 3 and 4 medical evidence and the reports of the Chemical Examiner and Serologist, as indicated above.
7. P.W. 1 is the wife of the deceased and she lodged the F. I. R. According to F. I. R, story there was one tussle between deceased and P.W. 3 while returning home from the feast. This fight terminated on the intervention of P.W. I. The second fight started in front of Sangram's house with P.W. 3 slapping the deceased and ended in the death of the deceased in the open field of Saman Singh. P.W. 1 proves presence of P. Ws. 2, 3 and 4 at the time of occurrence and the fight which commenced in front of Sangram's nouse and culminated in the death of the deceased in the field of Sama Singh. There is no doubt that she was present at or near about the place of occurrence when the deceased was assaulted by lathi, shot by arrows and killed P. Ws. 2, 3 and 4 all say so. She has, however, made statements before the police, in the Committing Court and In the Sessions Court, regarding assault and shooting of arrows by the accused which are somewhat discrepant and also contradictory to medical evidence. But her evidence as to how the occurrence commenced, who were witnesses of the occurrence and how she was dragged away from the scene of occurrence and assaulted and how P.W. 3 called for the help of the accused has received substantial corroboration from other P. Ws. and is acceptable.
* P.W. 2 is a witness of entire occurrence. The first part of the story deposed to by P.W. 1 is corroborated in full by this witness. As soon as the quarrel between P.W. 3 and the deceased started, they caught hold of each other and proceeded to the field of Sama Singh and fought there. He followed them and saw the entire occurrence. P.W. 3 being over powered by the deceased called for The from the accused who turned up with a lathi and dealt a blow on the head of the deceased. In consequence, the deceased released P.W. 3. Then he and P.W. 3 both snatched away the lathi from the hands of the accused. Thereupon the accused ran to his house and came back armed with a bow and arrows and shot two arrows at the deceased. P.W. 3 snatched the bow and arrow from the hands of the accused, who then ran away. The bow and arrows and the lathi used by the accused were produced before the police. His evidence is fully corroborated by the medical evidence. The doctor found two punctured wounds one in the armpit and the other in the chest of the deceased. The lathi and arrows were seized by the A. S. I. P.W. 7 from a place 4 cubits away from the dead body where these articles had been stacked together. In cross examination, he stated that P, W. 1 was in the bari of Sama Singh and was holding her husband in her arms when accused shot him with arrows. There is no corroboration for this statement which does not appear to be true. But the vital part of his testimony regarding the overt acts of the accused has been corroborated not only by the doctor (P. W. 5) but also by P.W. 3 and the out line of his story has received corroboration from P.W. 1. He has not been shown to be either hostile to the accused or partial to the prosecution, In our opinion the main substratum of the prosecution story has come from this witness and can be wholly relied upon P.W. 3 also corroborates P.W. 2 in all material particulars. He was close to the deceased when the assault with lathi and shooting of arrows by the accused took place, He in fact called upon the accused by name to come to his rescue being apprehensive of death from throttling by the deceased. P.W. 3 has deposed that while he snatched away the arrows from the accused he sustained injuries. He was examined by the doctor (P. W. 5) who found a superficial linear abrasion 3' long over the right side of the abdomen 1/2' right to the midline near the umbilicus and an-other superficial abrasion 1 1/2' x 1/2' over the right cheek near the angle of the eye simple in nature. But having regard to the age of these injuries, the opinion given by the doctor corresponds to the time to occurrence. The existence of these injuries on him lends full corroboration to his testimony that he got injuries not only on account of the fight between him and the deceased but on account of snatching away of the arrow and bow from the accused. In cross-examination he said that the accused shot 2 arrows in the darkness and he fled away to a distance and he could not know at that time where the two arrows landed. That statement is obviously inconsistent with his statement in his chief examination. This part of his evidence can be ignored as an attempt to save the accused at the last moment when the main essence of his story stands fully corroborated and is acceptable. P.W. 4 is the wife of Depanga Sing, who turned hostile in Sessions Court. Her statement in the committing Court has been confronted to her and has been tendered in evidence under Section 288, Cr.P.C. Her evidence there corroborates essentially P. Ws. 2 and 3 as to shooting of arrows by accused at the deceased, and that one of the arrows hit the deceased in his right armpit and the other hit him on the right chest. She has also admitted in the Sessions Court that she stated to the I. O. that P. Ws. 2 and 3 were also there at the time of shooting of arrows. In fact, in cross-examination, she has repeated her main evidence in committing Court. Barring some embellishments, exaggerations and some inconsequential statements P. Ws. 2, 3 and 4 corroborated one another and are corroborated by the medical evidence. Some comment is made relying upon P.W. 5's opinion that it would not be possible for the accused to have shot the deceased lying on the ground at the armpit and chest from a standing position. This comment is based on a hypothetical assumption of a particular posture of the accused when shooting. That apart, no question has been asked to the eye-witnesses as to the posture of the accused when shooting. This comment has no legs to stand upon.
8. Relying upon a decision of this Court in the case of Harun-Tirkey v. The State, 34 Cut LT 215 : (1968 Cri LJ 1251), it is argued that the entire evidence of P. Ws, 1 to 4 should be discarded wholesale because they have been found to be guilty of suppression, concoction or embellishment of facts which are untrue. That decision indeed shows that when a particular witness or batch of witnesses are shown to have swerved from the path of truth, either by suppression or by concoction or by embellishment of facts which are untrue, such evidence must, as a rule, be discarded in absence of any independent and reliable corroboration by aid of which the truth out of the tarnished evidence can be sifted and falsehood distinguished. It is apparently on this principle that the Sessions Judge has acted in throwing out the entire prosecution evidence and acquitting the accused. In that case truth and falsehood were so inextricably mixed up that it was impossible to pick out the truth from that jumble and it never intended to lay down as an absolute proposition of law that once truth and falsehood are found to be admixtured in the testimony of a witness the entire evidence must go unless corroborated by independent and reliable evidence. It is only where 'truth and falsehood are inextricably mixed up, polluting beyond refinement, the entire fabric of narration given by a witness that the Court might be justified in rejecting the entire evidence in toto and, in that case, the entire fabric of the narration given by the witnesses must fall to the ground (See the case of Bagwan Tana Patil v. State of Maharashtra : 1974CriLJ145 . Thus in every case where the testimony of the witnesses suffered from the infirmity of suppression, concoction and embellishment of facts, it is necessary to judge the extensive character of such infirmity and to determine where the truth can be disengaged from falsehood. If it can be so done the prosecution might subsist on the basis of the true facts so disentangled. In appraising such evidence the Supreme Court has relied that the maxim 'falsus in uno falsus in omnibus' is not to be blindly invoked because according to general experience witnesses seldom tell the whole truth, but often resort to exaggerations, embellishments and 'padding up' to support a story however true in the main. To the same effect was the opinion of the Supreme Court in the case of Sobrab v. State of Madhya Pradesh : 1972CriLJ1302 , where it has been said:
Falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum or the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest.
* The Supreme Court in the case of Ugar Ahir v. State of Bihar : AIR1965SC277 has said:
The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms or the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
The same principle has also been accepted in the case of Gallu Sah v. State of Bihar : 1958CriLJ1352 and in the case of Nisar Ali v. State of Uttar Pradesh : 1957CriLJ550 .
9. We have analysed the evidence In the perspective of the aforesaid principles' and have come to the conclusion that the substratum of the prosecution case that it is the accused who first dealt the deceased a lathi blow and thereafter shot him with 2 arrows which culminated in his ultimate death has been established by oral testimony corroborated by the medical evidence and other circumstances indicated above.
10. The learned Sessions Judge has not attempted to sift the truth from falsehood in the testimony of prosecution witnesses. One of the main reasons for disbelieving the prosecution witnesses is that their testimony does not correspond with the medical finding of seven injuries on the deceased. He forgot that before the accused arrived on the scene, P.W. 3 and the deceased were fighting with each other and in course of that fight both of them fell on the ground and bruises on the deceased were the likely result of such fight and fall. It the doctor was not questioned as to whether the bruises were possible by the manual assaults or by fall on the rough ground, it was not proper to discard the prosecution evidence on the basis of absence of explanation of the bruises on die deceased when the causes for such injuries were apparent. Another ground for discarding P.W. 2 put forth by the Sessions Judge is that his testimony is discrepant with the version in F. I. R. He has committed an error of law in treating the F, I. R. as substantial evidence and in using it for the purpose of contradicting P.W. 2. The only main utility of the F. I. R. is to corroborate or contradict the maker thereof or to show that the implication of the accused is not an afterthought. That apart, the discrepancy is so minor that it does not entitle any Court of fact to discard the testimony of P.W. 2 in toto. Another reason for discarding P.W. 2 is the discrepancy between his evidence in committal Court and in Sessions Court regarding the accused causing a fracture of the skull of the deceased by lathi blow, A bona fide mistaken impression of that nature cannot daub him as a perjurer when assault by lathi on the head of the deceased was a fact. It is further argued by the Sessions Judge that the evidence of P. Ws. 2 and 3 that the accused shot 2 arrows towards the deceased is not believable in view of the doctor's opinion that it was not possible for the accused to shoot the deceased in his armpit and chest if he was standing when he shot and the deceased was either sitting or lying on the ground at the time. This argument has been noticed earlier as purely hypothetical and cannot be the basis for rejecting, P. Ws. 2 and 3 from consideration altogether. It is true that the night was dark, but no question has been asked to P, Ws. as to visibility and their ability to identify the accused person and no suggestion has been made to that effect. In the circumstances, it will be purely speculative and conjectural to hold that they could not have identified the accused. The Sessions Judge has doubted the prosecution evidence on account of failure on its part to explain the injuries on the accused. Having regard to the age of injuries stated in Ex. A, the injury report of the accused, it does not appear that the accused received injuries in the course of the occurrence. Secondly, it is also not an absolute rule of law that non-explanation of injuries on the accused which are mere bruises and abrasions, is bound to result in acquittal. If the positive evidence of guilt of the accused is otherwise cogent and reasonable, failure to explain the injuries on turn cannot compel an acquittal. All eyewitnesses are relatives of the accused and they are not inimically disposed towards him. Corroboration is forthcoming from medical, evidence and serologist's report. We are satisfied that the grounds for rejecting the prosecution evidence as discussed in the judgment of the learned Sessions Judge are not tenable. When prosecution evidence is accepted, the accused must be held to have snot two arrows at the deceased with the knowledge that such shooting was so imminently dangerous that it must, in all probability, cause death or such bodily injuries as are likely to cause death. He is, therefore, guilty of murder.
11. In result, the acquittal is bad. We set aside the acquittal and convict the accused-respondent under Section 302, I. P. C. and sentence him to undergo R. I. for life. Accordingly, the appeal is allowed.
Mohanty, J.: I agree.