RAM SWARUP Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by 11 convicted persons against the order of their conviction passed by the Sessions Judge, Bharatpur, on 23-6-70 in criminal original case No. 13 of 1969.

(2.) IN order to appreciate the controversy in this case, it will be useful to give the chart of various counts of charges against each of the accused : (1) Ramkishan - Under secs. 324, 148, 302, 326, 323 read with sec. 149 I. P. C. (2) Ramkhilari - Under secs 323, 148, 302. 326. 324 read with sec. 149 I. P. C. (3) Laturia - Under secs 323. 148, 302, 326, 324 read with sec. 149 I. P. C. (4) Harisingh - Under secs. 323, 148 and 302, 326, 324 read with sec. 149 I P. C. (5) Mangilal - Under secs 323, 148 and 302 326. 324 read with sec. 149 I. P. C. (6) Bora - Under Secs. 323, 148 and 302. 326 read with sec. 149 I. P. C. (7) Surajmal - Under secs 323, 148 and 302, 326, 324 read with sec. 149 I. P. C. (8) Dhanpal - Under secs 324, 148 and 302, 326, 323 read with sec. 149 I. P. C. (9) Chhitaria - Under secs, 323, 148 and 302,326, 324 read wiih sec. 149 I. P. C. (l0) Rambabu - Under secs. 447, 323, 148 & 302, 326, 324 read with S. 149 IPC. (11) Ramswarup - Under secs 302, !48 & 326, 324, 323 read with S. 149 I. P. C.

(3.) MR. Chatterjee's further attack on the testimony of the eye witnesses was that they have suppressed the truth when they had deposed that they were unarmed and that they neither caused injuries to the party of the accused nor did they notice any injury on the person of the members of the accused party during the incident. He has therefore submitted that as the prosecution has failed to explain the injuries found on the bodies of the accused persons, we must discard the entire prosecution evidence. In this connection he invited our attention to the observations contained in Mohan Rai vs. State of Bihar (l ). In that case on the facts the court came to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the person of the accused went to show that the prosecution witnesses were not truthful witnesses and further on the material on record, the Supreme Court held that the possibility of the plea of self-defence could not be ruled out. On the other hand, in Bankeylal vs. State of U. P. (2 , the Supreme Court distinguished Mohar Rai vs. State of Bihar supra) and proceeded to observe that - "if prosecution witnesses are proved to have not deposed truly in all respect, their evidence is required to be scrutinised with care. " The question, however, is whether on account of there infirmities, we should reject the whole prosecution story. It, ofcourse, transpires from the record that as many as five accused had received injuries at the hands of the members of the complainant-party and the prosecution has not been able to explain them but that by itself, in our opinion, is not sufficient to discard the whole prosecution case. We may point out that the maxim falsus in uno falsus in omnibus 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, our duty to scrutinise the evidence carefully and in term- of the apt metaphor, separate the grain from the chaff. Having done that, if the substratum of the prosecution case is found to be true, then merely because of the embellishments, improvements of exaggerations, the case of the prosecution cannot be thrown out. On the other hand, if the substratum of the prosecution case is not worthy of credit or the material parts of the evidence do not to salvage the infirmities by reconstructing the new story. In our view, the substratum of the prosecution does not stand discredited in material particulars. All the prosecution witnesses have uniformly deposed as to the date and the time of the incident and so also as to the part played by each of the accussed in the incident and to the nature of the weapons used by them during the incident. It is further proved by the witnesses that the members of the complainant-party received injuries which are duly corroborated by Dr. Balkishen P. W. 1. The change of the place of incident, in our view, is of very little significance looking to the very short distance between Ramdhan's field and the place of the incident. The trial Judge cannot be said to have re-constructed a new prosecution story, as, in our opinion, the substratum of the story in material particulars remains the same and the accused could not be said to be in any way prejudiced on that account.