Jayant Patel, J.
1. The present appeal is directed against the Judgement and Order passed by the learned Sessions Judge in Sessions Case No. 24/01, whereby, both the appellants-accused have been convicted for the offence under Section 302 of IPC and sentence has been imposed upon them of life imprisonment with the fine of Rs. 1,000/-.
2. It appears that as per the complainant, Bharat Rajendraprasad Trivedi, P.W.1, the deceased Moyuddin Sheikh was dealing in land and he was also purchasing the land in partnership with the complainant as well as with Takdir Samsuddin Sheikh (hereinafter referred to as 'A-1' for the sake of convenience). The complainant, deceased and A-1 had agreed to purchase the land admeasuring 355 sq. mtrs. at village Gotri of one Jadauben Devabhai Parmar. On the date of the incident, i.e. on 21.08.2000, the complainant and the deceased together with A-1 and Rameshbhai Ramlal Kahar (hereinafter referred to as 'A-2' for the sake of convenience) had gone to see the land in their respective car. Thereafter, they came back and they decided to see the owner of the land Jadauben Devabhai Parmar. It appears that thereafter, at about 2.30 PM when the deceased and the complainant were coming back in the car, A-1 & A-2 came from the other side in their Maruti Fronti and they told the deceased and the complainant that all have to go to see Jadauben, and therefore, the deceased who was driving the car took a turn and followed the car of A-1. In between, on the way, A-1 gave a signal to stop the car and due to the same, deceased got down from the car and at that time, A-1 as well as A-2 also got down from their car with the sword and started giving indiscriminate blows with the sword. The complainant who was taken aback told A-1 and A-2 to stop giving blows, but A-2 with the sword started running towards the complainant and therefore, he ran away. Thereafter, he requested the persons of the nearby village, but nobody came and then he informed the brother of the deceased on phone and also filed the complaint which was registered with Vadodara Taluka Police Station vide C.R. No. 94/00.
3. The investigation was made in connection with the said complaint and thereafter, the charge-sheet was filed before the learned Sessions Judge. Before the learned Sessions Judge, the prosecution in order to prove the guilt of the accused, examined 13 witnesses and also produced the documentary evidence including complaint, the inquest panchnama, PM Report, recovery of cloths, arrest panchnama, discovery of cloths, panchnama for discovery of weapon, panchnama of the scene of offence and other relevant documents.
4. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of the CRPC, wherein both the accused denied evidence against them and in the further statement, the accused have stated that wrong case is filed against them. The pertinent aspect is that in the statement under Section 313 of A-1, in response to the question put to him for sale of the land and receipt of Rs. 15,000/- by Jadauben, A-1 had stated that the amount of Rs. 15,000/- of Agreement to Sale was correct and the said amount was given by him. Except the aforesaid, all other evidence is denied by the accused and none of the incriminating material as produced by the prosecution at the trial is explained otherwise.
5. The learned Sessions Judge thereafter, heard the State as well as the defence and ultimately, has found that the prosecution has been able to prove the case against both the accused for the offence under Section 302 read with Section 114 of the Indian Penal Code and he found that there is no evidence produced for the offence under Section 135 of the Bombay Police Act and therefore, he acquitted the accused for the offence under Section 135 of the B.P. Act. The learned Sessions Judge thereafter, also heard on the aspects of imposition of sentence and has imposed sentence of life imprisonment with fine of Rs. 1,000/- upon both the accused. It is under these circumstances, the present appeal before this Court.
6. We have heard Mr. Lakhani with Mr. Chintan Popat, learned Counsel for the appellants-accused, and Mr. Raval, learned APP for the State.
7. A-2 is reported absconding in report dated 05.02.2007 and the same position has continued uptil now. However, so far as A-1 is concerned, he is in jail. Therefore, keeping in view the aforesaid circumstances that the appeal is a common appeal arising from the common judgement and order of the learned Sessions Judge, we find it proper that the appeal be decided on merits and the appeal preferred by A-2 may not be dismissed on a mere ground that he is reported absconding. The another aspect is that one advocate is representing both the accused in the present appeal.
8. We have gone through the entire evidence led by the prosecution before the learned Sessions Judge and we have also gone through the judgement and order passed by the learned Sessions Judge.
9. It appears that Bharat Trivedi, P.W.1 is an eyewitness to the incident whose deposition is recorded at Exh.23. He was accompanying the deceased at the time when the incident had occurred. He has also seen the incident of giving indiscriminate blows of sword by both the accused and thereafter, since A-2 ran towards him, he ran away due to fear. Nothing has come out in the cross-examination of the said witness to the contrary so far as it relates to witnessing of the incident of giving blows by both the accused to the deceased in his presence.
10. The death of the deceased is proved by the prosecution with the proof of inquest panchnama. The injury upon the body of the deceased is proved by the prosecution by the deposition of Dr. Vijaysinh Ganpatsinh Rathod, P.W.10, who has performed PM on the dead body of the deceased and his deposition is at Exh.39. As per the said Doctor, there were 33 external injuries found on the body of the deceased out of which, injury Nos. 2, 3, 4, 5, 6 & 7 were on the head and there were multiple fractures on the head as well as on various parts of the body. Ex facie the number of injuries on the body of the deceased shows that they were brutal and indiscriminate in numbers. The Doctor has deposed that all such injuries could be caused with sharp cutting weapon and he has also been shown the muddamal Articles 32 and 33 which are sword and he has stated that such injuries could be caused with the sword and the injuries are sufficient to cause death of a human being in natural course. The Doctor has also deposed that the cause of death is due to shock and hemorrhage following multiple incise wounds. Therefore, the prosecution has been able to prove that multiple injuries as were found on the body of the deceased and the death caused of the deceased is due to such injuries.
11. The panchnamas are proved by the prosecution by examination of the panch witnesses. The evidence has come on record to show the recovery of cloths from the dickey of the car of the accused who were arrested after the period of about 13 days. The cloths of both the accused were found with bloodstains. The scene of offence is also proved by the panchnama and the bloodstains were found at the scene of offence. The discovery is also proved by the prosecution showing that the weapons which were used for commission of offence were discovered at the instance of accused from the place which was shown by the accused. Such weapons which were discovered are sword with bloodstains over the respective sword. The FSL Report is produced at Exh.13 and FSL report and more particularly, the serological investigation report completely supports the case of the prosecution inasmuch as the deceased was having blood group of 'B' and the very group is found on the bloodstains over the cloth recovered of both the accused, the weapon, the place of the offence.
12. The learned Counsel for the appellants-accused contended that the evidence of Bharat Trivedi, P.W.1, is untrustworthy inasmuch as he is an interested witness. Therefore, he should not be relied upon. In furtherance to the said submission, the learned Counsel contended that in the deposition, said Bharat Trivedi at para 3 stated that the sword was concealed by A-1 and A-2 in their hand and thereafter, the blows were given on the deceased. It was submitted that it is impossible for any person to conceal the sword, more particularly when as per the said witness, both the accused got down from the car. It was also submitted that instead of informing to the police directly, the said witness Bharat Trivedi, P.W.1 is stated to have informed the brother of the deceased and some other persons of the village. He therefore submitted that under these circumstances, it is apparent that no credibility can be attributed to such witness who is cited as the eyewitness by the prosecution. He submitted that if the evidence of Bharat Trivedi, P.W.1, is discarded, the case of the prosecution against the accused would be lost and the accused would be entitled to the benefit of the same.
13. The learned Counsel also in furtherance to the submission, contended that as per the said witness Bharat Trivedi, P.W.1, he made a phone call from STD PCO, whereas the other evidence led by the prosecution of Budhabhai Mangalbhai Prajapati, P.W. 6, at Exh.29 shows that the phone call was made by Bharat Trivedi, P.W.1 from his place. He also submitted that it would be impossible to believe that Bharat Trivedi did not inform Budhabhai Mangalbhai Prajapati, P.W.6 whose phone was used for such purpose about the death of the deceased.
14. It deserves to be recorded that while appreciating the evidence led by the prosecution, it is true that the witness should be trustworthy and the deposition should be credit worthy. But, merely because there is some contradiction on the irrelevant aspects which does not frustrate the case of the prosecution for proving his capacity as eyewitness to the incident, the deposition of such witness cannot be discarded wholly on such minor contradiction or contradiction to the irrelevant aspects, unless the Court, on the basis of deposition of the witness, gathers an impression that the witness has no sanctity for the truth and has a tendency to make false statement.
15. At this stage, we may refer to the decision of the Apex Court in the case of Sucha Singh and Anr. v. State of Punjab reported at : 2003CriLJ3876 wherein the Apex Court has negatived the plea of applying the principles of 'falsus in uno falsus in omnibus'(false in one thing, false in everything). It was emphasised by the Apex Court that it is the duty of the 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. It was observed that Falsity of 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 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 cases 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'. It was further observed that 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.
16. If the deposition of Bharatbhai Trivedi, P.W.1 is examined in light of the aforesaid, it appears that he is cited as eyewitness by the prosecution. The statement made by the said eyewitness to the incident of giving indiscriminate sword blows by both the accused is not contradicted in any manner whatsoever in the cross-examination of the said witness. Further, the presence of the said witness having accompanied to the deceased is natural since he was partner in the dealing of the land purchased by the deceased as well as A-1. The statement of the said witness accompanying the deceased in the car at the time when the incident has occurred is also not contradicted in any manner whatsoever. Under these circumstances, the relevant aspects of eyewitnessing the incident, if remains uncontradicted even in the cross examination, it is not possible to accept the contention of the learned Counsel for the appellants-accused that the deposition may be discarded by this Court. On the contrary, the re-appreciation of the deposition of Bharat Trivedi, P.W.1 shows that he has stood as an uncontroverted eyewitness to the incident of commission of offence. Further, such aspect has been corroborated materially by other witnesses examined by the prosecution including the medical evidence in this regard. Merely because he has stated that the swords were concealed by accused in their hand, would not be a sufficient ground to discard the uncontroverted part of the evidence of the said witness being eyewitness to the incident of commission of the offence. It is by now well settled that the deposition of the witness cannot be read by taking one sentence here and there and the contradiction, if any found to that particular sentence would result into discarding the evidence of the said witness.
17. If the witness has informed the brother of the deceased and has not informed the police, the same could hardly be said as a valid ground to discard the deposition. There is no suggestion by the defence that Budhabhai, P.W.6 whose phone is used by the witness Bharat Trivedi, P.W.1 was not running STD PCO at his residence. Therefore, merely because Bharat Trivedi in his deposition has referred to the use of the phone at STD PCO and the prosecution witness Budhabhai Mangalbhai Prajapati, P.W. 6 has confirmed the same, it cannot be said that there is any material contradiction in this regard, more particularly when no cross-examination is made of the said witness on the aspect of whether phone from the STD PCO of Budhabhai Mangalbhai Prajapati, P.W. 6 was used or not.
18. Under these circumstances, we cannot accept the contention of the learned for the appellants-accused that the evidence of Bharat Trivedi, P.W.1, more particularly to the extent of witnessing the incident is non-creditworthy and therefore, be discarded.
19. The learned Counsel for the appellants-accused next contended that Jagdishbhai Mali in whose favour the document is said to have been executed by Jadauben, the owner of the land, is not examined by the prosecution as the witness and therefore, the genesis of the case of the prosecution has not come out. He submitted that such would be fatal to the case of the prosecution and therefore, the benefit would endure to the appellants-accused.
19. Such contention deserves rejection on the face of it, inasmuch as the execution of the document or the monetary transaction has the relevance to the extent of motive and it cannot be examined as if the examination of the civil dispute of the rights of the parties inter se in a property. There is sufficient evidence led by the prosecution to show that there was motive, viz. of the dispute amongst the deceased and the accused over the transaction of the land and the payment to be made for such purpose. Therefore, it cannot be accepted that the genesis of the case of the prosecution is lost on such ground.
20. The learned Counsel for the appellants has contended that the arrest of the accused is made after 13 days and therefore, it is impossible for anyone to believe that the accused will keep the cloths with bloodstains with them and therefore, the evidence led by the prosecution is unbelievable.
21. We are afraid such contention can be accepted, more particularly when the cloths are recovered with the bloodstains and blood over that cloth is found as that of the deceased as per the FSL Report. Merely because the prosecution has been able to recover the cloths, may be at the time of arrest, the same would not be sufficient ground to disbelieve the case of the prosecution. Further, it has come on record that the accused were absconding and therefore, the arrest was made after 13 days. Under these circumstances, the said contention cannot be accepted.
22. The learned Counsel for the appellants-accused next contended that the sword was discovered from the open place where everybody had the access and therefore, the discovery of the sword is unreliable and the same may not be accepted against the accused.
23. Such contention also deserves to be rejected on the face of it inasmuch as the attempts were made for discovery for the first time at the instance of the accused, but it had failed. Thereafter, in further investigation, the discovery is made at a place which is not easily accessible to all. Further, the important aspect is that one sword is found with the handle (mooth) and the another sword is found without handle (mooth) and such discovery which is made at the instance of the accused. The same is fully corroborated with the deposition of the other witnesses inasmuch as the one handle (mooth) of the broken sword was found from the scene of the offence. Not only that but such swords are found with bloodstains and such blood stains as per the FSL report is found of the deceased. Therefore, when the very weapons used for the commission of the offence are discovered at the instance of the accused by the prosecution and satisfactory evidence has come on record, we cannot accept the contention of the learned Counsel for the appellants-accused that such discovery should not be believed and the benefit should go to the accused.
24. In view of the above, we find that the prosecution has been able to successfully prove its case against both the accused and therefore, the learned Sessions Judge has rightly convicted both the accused for the offence under Section 302 read with Section 114 of the IPC for the alleged offence and has also rightly imposed the sentence upon both the accused.
25. In the result, the appeal is meritless and hence, dismissed.