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2016 DIGILAW 120 (TRI)

Md. Kutub Khan v. State of Tripura

2016-05-31

S.TALAPATRA, U.B.SAHA

body2016
JUDGMENT : S. Talapatra, J This appeal is directed against the judgment dated 01.06.2011 delivered in Sessions Trial No.08(NT/K) of 2008 by the Sessions Judge, North Tripura, Kailasahar convicting the appellant No.1 under Sections 304, Part-II and 447 of the IPC and the other appellants under Sections 323 and 447 of the IPC. As consequence of that conviction, the appellant No.1 has been sentenced to suffer rigorous imprisonment for 5(five) years with fine of Rs.2,000/- (Rupees Two thousand), in default of payment of fine, to suffer simple imprisonment for 3(three) months under Section 304, Part-II of the IPC and to suffer further simple imprisonment for 1(one) month under Section 447 of the IPC. The other appellants have been sentenced to suffer rigorous imprisonment for 6(six) months under Section 323 of the IPC and simple imprisonment for 1(one) month under Section 447 of the IPC. 2. The genesis of the prosecution case is rooted in the written ejahar filed by one Chalik Mia(PW-1) on 10.04.2007 disclosing to the Officer-in-Charge, Kailasahar Police Station that on 10.04.2007 in the afternoon at about 4 O’clock he was transporting earth by his handcart. On the northern side of his house, there is a drain alongside the road. For convenience of carrying the earth by his cart, his younger brother had filled a small part of the drain with earth. One Abdul Malik, one Intaz Ali accompanied by the other accused persons namely, Abdul Khalek, Almas Ali, Kutub Khan, Monowar Hossain, Dilwar Hossain and Mashaid Khan had removed the earth from the drain. When the younger brother of the informant raised objection, the accused persons had abused him in filthy language. On hearing the altercation, the informant, his mother, sister and his father came out and intervened. The accused persons attacked them with dao, iron rod and dagger. Kutub Khan had given blows on the head of the informant’s father by a long dao, resulting in severe bleeding cut injuries. Intaz Ali attacked his mother by iron rod and kicked in the lower abdomen. At that time, his mother was pregnant and for that assault, she was threatened of abortion. According to the written ejahar, his mother sustained severe bleeding injuries on her parson. Those accused persons had assaulted his sister by kicks and fist-blows. Thus, she had become injured. Intaz Ali attacked his mother by iron rod and kicked in the lower abdomen. At that time, his mother was pregnant and for that assault, she was threatened of abortion. According to the written ejahar, his mother sustained severe bleeding injuries on her parson. Those accused persons had assaulted his sister by kicks and fist-blows. Thus, she had become injured. Those accused persons also assaulted the informant and his brother by fist-blows and as a result, they received swollen injuries on their parson. The informant has identified him as an auto driver. He has also alleged in the written ejahar that his auto rickshaw bearing registration No.TR-OL-2854 was also taken forcibly out of his lawful custody by the accused persons from Babur Bazar area. His father along with his mother and sister immediately went to the police station. The concerned authority of the police station sent them to the District Hospital with a zakhmi (injury) report. The informant’s father namely, Farju Mia, mother namely, Bachirun Necha and his sister namely, Mina Begam were admitted in the hospital. 3. Based on the said written ejahar (Exbts.1, 4 & 6), Kailasahar P.S. Case No.62/2007 under Sections 326/325/34 of the IPC was registered and taken up for investigation. There is no dispute that on 11.04.2007, the informant’s father namely Farju Mia succumbed to the injuries as received in the said transaction. As a result, with leave of the court, the investigation was also carried out in respect of the offence punishable under Sections 302/34 of the IPC allegedly committed by the accused persons. After the investigation was complete, the final police report charge sheeting the accused persons, the appellants herein, was filed under Sections 447/323/302/34 of the IPC as the offence punishable under Sections 302/34 of the IPC are exclusively triable by the court of Sessions, the police papers on taking cognizance were committed to the court of the Sessions Judge, North Tripura, Kailasahar as it then was. The Sessions Judge transferred the said case for trial to the court of the Addl. Sessions Judge, North Tripura, Kailasahar as it then was. Before transferring the case to the court of the Addl. Sessions Judge, North Tripura, Kailasahar, the Sessions Judge framed the charge against the appellants separately under Sections 447/34 of the IPC, under Sections 323/34 of the IPC and under Sections 302/34 of the IPC. Sessions Judge, North Tripura, Kailasahar as it then was. Before transferring the case to the court of the Addl. Sessions Judge, North Tripura, Kailasahar, the Sessions Judge framed the charge against the appellants separately under Sections 447/34 of the IPC, under Sections 323/34 of the IPC and under Sections 302/34 of the IPC. The appellants pleaded innocence and claimed to face the trial. 4. In order to substantiate the charge, the prosecution adduced as many as 12(twelve) witnesses including the informant (PW-1), his mother namely Bachirun Necha (PW-3), his younger brother namely Athik Mia (PW-4), Md. Abdul Munim (PW-5), Eklas Mia (PW-6), Md. Sikandar Ali (PW-7), Md. Rajab Ali (PW-9), Dr. Gitesh Bhattacharji (PW-11) and Sri Pranjit Ghosh, the investigating officer (PW-10). A few documentary evidence including injury reports, (Exbts.12 to 14) and the inquest report (Exbt.15). It appears from the records that Dr. Gitesh Bhattacharji was also examined as the defence witness as DW-1. After recording the prosecution’s evidence, the appellants were examined under Section 313 of the Cr.P.C. for having their response to the incriminating materials surfaced in the evidence. The appellants denied those materials and repeated their plea of innocence. Thereafter, on appreciation of the evidence, the Sessions Judge, North Tripura, Kailasahar [as it appears that the trial was conducted by the Sessions Judge], returned the finding of conviction by the impugned judgment under Sections 304, Part-II/447/323/34 of the IPC. The said judgment of conviction is under challenge in this appeal. 5. Mr. P.K. Biswas, learned senior counsel appearing for the appellants has submitted that from the nature of the injuries, it would be apparent that the conviction under Section 304, Part- II of the IPC is wholly unwarranted. Mr. Biswas, learned senior counsel has referred to the statement made by the medical officer (PW-11) who has stated in the trial that after examining Farju Mia, the deceased, he found one hand injury which was caused by blunt weapon. The related injury report (Exbt.12) has been referred by PW-11 for that purpose. On examination of Mina Begam (PW-4), he found only tenderness of swelling on right occipital region on the scull. The related injury report (Exbt.13) has been referred by PW-11 for that purpose. On examination of Bachirun Necha (PW-3), he found cut injuries over the right parietal region of head, one abrasion on the right metacarpophalangeal joint. On examination of Mina Begam (PW-4), he found only tenderness of swelling on right occipital region on the scull. The related injury report (Exbt.13) has been referred by PW-11 for that purpose. On examination of Bachirun Necha (PW-3), he found cut injuries over the right parietal region of head, one abrasion on the right metacarpophalangeal joint. The related injury report (Exbt.14) has been referred by PW-11 for that purpose. In the cross-examination, PW-11 stated that he did not find any cut injury while examining Farju Mia. He has also stated that while examining the patient, namely Bachirun Necha she told him that she received the injury during cycle accident on 10.04.2007 at about 5 pm. 6. Mr. Biswas, learned senior counsel appearing for the appellants has emphatically submitted that the prosecution case which revealed at the first instance by the written ejahar (Exbt.3) was embellished, improved and concocted by way of introducing a second episode which never occurred. Even the investigating officer when prepared the hand sketch map (Exbt.7) identified the place of occurrence by the letter ‘A’ and in the index, ‘A’ has been described as under: “PO is drain part” Thereafter, Mr. Biswas, learned senior counsel appearing for the appellants has drawn notice of this Court to the written ejahar and contended that there is no murmur about the second episode which has been narrated by the informant, Md. Chalik Mia while deposing in the trial. He has stated in the trial that after 5-7 minutes one auto rickshaw came in front of their house and from the auto rickshaw Md. Intaz Ali, Almas Ali, Dilwar Hossain, Monowar Hossain and Mashaid Khan got down and Kutub Khan came with a motorbike. Abdul Khalek had joined them. All the aforesaid persons entered in their house and Kutub Khan dealt a dao blow on the head of his father who was then inside their house. Abdul Khalek was armed with an iron rod and he assaulted his father by the said rod. Intaz Ali was armed with a wooden stick. All the remaining accused persons were wielding various weapons. While the accused persons attacked their father, at that time they were also inside the house along with their father and witnessed the occurrence. He has also named the persons who were inside the room along with him. Mr. Intaz Ali was armed with a wooden stick. All the remaining accused persons were wielding various weapons. While the accused persons attacked their father, at that time they were also inside the house along with their father and witnessed the occurrence. He has also named the persons who were inside the room along with him. Mr. Biswas, learned senior counsel has submitted that even though the ejahar was filed after about 5½ hours, no disclosure about this episode was made and as such, this part of the statement is to be treated as improved and cannot be relied on. Mr. Biswas, learned senior counsel has again stated that PW-6, Eklas Mia has categorically stated that over a dispute of stagnation of water when Abdul Khalek started removing earth then Bachirun Necha (PW-3) appeared there and asked Abdul Khalek not to remove earth. Then an altercation ensued and Chalik Mia, Athik Mia and Farju Mia appeared in that place. Then the altercation had spread. PW-6 has stated that besides him there was no outsider at that time. He tried to snatch way the spade from the hand of Abdul Khalek and he was able to snatch and throw it away. Due to scuffling, Abdul Khalek fell down on the road and PW-6 noticed that the blood was oozing out from various parts of his body but he denied that he had knowledge of the cause of such injuries. In the cross-examination, he has stated that he had seen blood marks on the head of Farju Miah. Mr. Biswas, learned senior counsel has emphasized that PW-6 has not been declared hostile by the prosecution. Finally, Mr. Biswas, learned senior counsel has argued that from the reading of the witnesses, it would clearly appear that two versions have surfaced from the testimonies recorded in the trial and as such, no version can be relied by the court against the accused persons as per the settled position of law. To buttress his contention, Mr. Biswas, learned senior counsel has relied on a few decisions of the apex court. On how to appreciate when two versions surfaced by two sets of witnesses 7. In Harchand Singh and Anr. vs. State of Haryana, reported in AIR 1974 SC 344 , the apex court has enunciated the law as under: “11. To buttress his contention, Mr. Biswas, learned senior counsel has relied on a few decisions of the apex court. On how to appreciate when two versions surfaced by two sets of witnesses 7. In Harchand Singh and Anr. vs. State of Haryana, reported in AIR 1974 SC 344 , the apex court has enunciated the law as under: “11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation.” [Emphasis supplied] On medical evidence not supporting the eye witness’s account 8. In Gurmej Singh and others vs. State of Punjab, reported in 1992 CRI.L.J 293, the apex court had the occasion to observe as under: “8. Counsel for the appellants next submitted that according to the prosecution appellant Gian Singh was armed with a Gandasi and he is alleged to have given a blow therewith on the chest of the deceased. Ordinarily a Gandasi blow would cause an incised wound whereas the deceased had an abrasion 5" x 1" on the chest caused by a hard and blunt substance. According to counsel normally when a witness deposes to the use of a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant. In support of this contention counsel invited our attention to two decisions, namely, Hallu and Ors. v. State of MP : 1974 Cri L.J 1385 and Nachhattar Singh and Ors. v. The State of Punjab : AIR (1976) 1 SCC 750 . In support of this contention counsel invited our attention to two decisions, namely, Hallu and Ors. v. State of MP : 1974 Cri L.J 1385 and Nachhattar Singh and Ors. v. The State of Punjab : AIR (1976) 1 SCC 750 . In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the Gandasi. We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the Gandasi. If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight. But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used. The observations in the aforesaid two judgments do not lay down to the contrary. In fact in the first mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference. Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of PW1 Dr. Malhotra on the question whether such an abrasion was possible by a Gandasi blow. According to him, as held by this Court in Kartarey v. State of U.P. : (1976) 1 SCC 172 and Ishwar Singh v. State of UP : (1976) 4 SCC 355 , it was the duty of the prosecution to elicit the opinion of the medical man in this behalf. PW 1 clearly stated in the course of his examination-in-chief that injuries Nos. 2, 3 and 4 were caused by a blunt weapon. It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the Gandasi. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical-man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness. In fact the Presiding Officer should himself have elicited the opinion. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical-man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness. In fact the Presiding Officer should himself have elicited the opinion. However, in this case it should not make much difference because the evidence of PWs 2 and 3 is acceptable and is corroborated by the first information report as well as PW 4. If the medical witness had also so opined it would have lent further corroboration. But the omission to elicit his opinion cannot render the direct testimony of PWs 2 and 3 doubtful or weak. We, therefore, do not see any merit in this submission. In fact if we turn to the cross-examination of PW 1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected.” [Emphasis added] 9. In Raj Pal & Anr. Vs. State of Haryana, reported in 2007 AIR SCW 2643, the apex court while dilating on a resembling situation has observed as under: “11. In this connection it may be mentioned that in the FIR dated 5.8.1990 it has been stated that the accused Jai Pal gave a pharsi blow on the head of Sohan Lal while Rajpal gave a lathi blow on his head. The same is the statements in Court of the alleged eye witnesses PW 9 Hira Lal and PW 10 Zile Singh. A pharsi is a weapon which causes an incised wound like an axe. However, there is no incised wound on the body of Sohan Lal as is evident from the post mortem report. There are four injuries on the dead body of Sohan Lal as found by Dr. Sushil Goyal's post mortem report conducted on 5.8.1990 at 6.05 p.m. One of these wounds was a lacerated wound on the head while the other wounds are contusions on the shoulder. There is no incised wound. Thus, there is a clear inconsistency between the ocular version and the medical version. 12. The prosecution version is that the pharsi was used lathi wise by its blunt edge. There is no incised wound. Thus, there is a clear inconsistency between the ocular version and the medical version. 12. The prosecution version is that the pharsi was used lathi wise by its blunt edge. It seems to us that this appears to be a tutored version when the prosecution realized that there was a clear inconsistency between the ocular version and the medical version. In fact in his statement in Court PW 9 Hira Lal stated that he did not state to the police in his statement under Section 161 Cr.PC that the pharsi blow was given lathi wise. Thus, his statement in the court appears to be a clear improvement over the statement given to the police. As regards the other witness PW 10 Zile Singh, he has not stated in his evidence that the pharsi blow was given to Sohan Lal lathi wise.” On accepting the evidence as cogent and credible when there is improvement or non-disclosure at the earlier stage 10. In Syed Ibrahim vs. State of Andhra Pradesh, reported in AIR 2006 SC 2908 , the apex court held as under: “10. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by PW1 to a large extent 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, 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, or to be note wholly credible. Falsity of 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 witness or witnesses cannot be branded as liars. 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. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liars. 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. (See Nisar Alli v. The State of Uttar Pradesh : AIR 1957 SC 366 ). In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. 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 respect 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 Beli Nayata and Anr. v. The State of Madhya Pradesh : (1972) 3 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. (See Sohrab S/o Beli Nayata and Anr. v. The State of Madhya Pradesh : (1972) 3 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 Zwinglee Ariel v. State of Madhya Pradesh : AIR 1954 SC 15 and Balaka Singh and Ors. v. The State of Punjab : (1975) 4 SCC 511 ). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. : (1981) 2 SCC 752 , 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 in Krishna Mochi and Ors. v. State of Bihar etc.: (2002) 6 SCC 81 and in Sucha Singh v. State of Punjab : (2003) 7 SCC 643 . It was further illuminated in the Zahira H. Sheikh v. State of Gujarat : (2000) 4 SCC 158CriLJ 2050 , Ram Udgar Singh v. State of Bihar : (2004) 10 SCC 443 , Gorle S. Naidu v. State of Andhra Pradesh : (2003) 12 SCC 449 and in Gubbala Venugopalswamy v. State of Andhra Pradesh : (2004) 10 SCC 120 . 11. In the background of principles set out above it is to be seen how far the evidence of PW1 is cogent and credible. 11. In the background of principles set out above it is to be seen how far the evidence of PW1 is cogent and credible. Merely because he was the solitary witness who claimed to have seen the occurrence, that cannot be a ground to discard his evidence, in the background of what has been stated in Section 134 of the Evidence Act, 1872 (in short the ' Evidence Act'). No particular number of witnesses are required for the proof of any fact, material evidence and not number of witnesses has to be taken note of by the courts to ascertain the truth of the allegations made. Therefore, if the evidence of PW 1 is accepted as cogent and credible, then the prosecution is to succeed. It is to be noted that PW1-father of the appellant, claimed to have set law into motion. The testimony of PW1 was to the effect that after witnessing a part of the occurrence he had run to the police station and had come back within about five minutes. The evidence on record disproves veracity of this part of his evidence. The occurrence is alleged to have taken place and at about 10 P.M. the FIR was lodged at the police station at about 11.30 P.M. PW1 and the investigating officer accepted that it will take nearly one hour for somebody on foot to reach the police station considering the distance of the alleged place of occurrence and the police station. There is another interesting factor PW1 accepted in the cross examination that the report (Ex.B1) was written in the police station in the presence of sub inspector and a constable. But in his examination-in-chief, he had stated that he had got written the report by somebody at a hotel and the person normally writes petitions. No particulars of this person who allegedly scribed the report, not even his name, was stated by PW1. His evidence is further to the effect that he alone had come to the police station where the report was lodged and that is how he admitted that the report was written at the police station. This may not appear to be that important a factor considering the illiteracy of PW1. But there is another significant factor which completely destroys the prosecution version and the credibility of PW1 as a witness. This may not appear to be that important a factor considering the illiteracy of PW1. But there is another significant factor which completely destroys the prosecution version and the credibility of PW1 as a witness. He has indicated four different places to be the place of occurrence. In his examination in chief he stated that the occurrence took place in his house. In the cross-examination he stated that the incident took place at the house of his wife the deceased's mother. This is a very important factor considering the undisputed position and in fact the admission of PW1 that he and his wife were separated nearly two decades ago, and that he was not in visiting terms with his wife. Then the question would automatically arise as to how in spite of strained relationship he could have seen the occurrence as alleged in the house of his wife. That is not the end of the matter. In his cross examination he further stated that the incident happened in the small lane in front of the house of his wife. This is at clear variance with the statement that the occurrence took place inside the house where allegedly he, the deceased, his son-PW2 and daughters PWs. 3 and 6 were present. That is not the final say of the witness. He accepted that in the FIR (Ex. B1) he had stated the place of occurrence to be the house of the deceased. Though the FIR is not a substantive evidence yet, the same can be used to test the veracity of the witness. PW1 accepted that what was stated in the FIR was correct. When the place of occurrence itself has not been established it would be not proper to accept the prosecution version.” Whether the defence can rely on the evidence of the prosecution witness not supporting the prosecution case or part thereof but not declared hostile 11. In Raja Ram vs. State of Rajasthan, reported in (2005) 5 SCC 272, where the apex court held as under: “9. But the testimony of P.W. 8-Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw P.W. 5 making the deceased believe that unless she puts the blame on the appellant and his parent, she would have to face the consequences like prosecution proceedings. But the testimony of P.W. 8-Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw P.W. 5 making the deceased believe that unless she puts the blame on the appellant and his parent, she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the Court to heard (sic declare) P.W. 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of P.W. 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how P.W. 8's testimony can be side-lined.” 12. Approvingly noting the decision of Raja Ram vs. State of Rajasthan, the apex court in Mukhtiar Ahmed Ansari vs. State, reported in (2005) 5 SCC 258, the apex court has reiterated the law as under: “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW1 ‘hostile’ His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence. 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared ‘hostile’. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution. 31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence.” 13. 31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence.” 13. It has been stressed that those lacunae in the prosecution case cannot be brushed aside as those have destroyed the reliability of the prosecution case. Thus, Mr. Biswas, learned senior counsel has urged for acquittal of the appellants from the charge. 14. From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the State when contesting the submission made by the counsel for the appellants has submitted that the First Information Report (FIR) is not the encyclopedia but a necessary disclosure for initiating the investigation. It would be apparent that the prosecution has successfully brought the charge home by the eye witnesses and on the basis of medical evidence. If the FIR is read keenly, it would be apparent that the second part of the transaction has been described but it has not been disclosed with full particulars. It is apparent that the said part occurred after 5-7 minutes. That omission cannot be treated as fatal non-disclosure. The incidence of assault has been clearly made in the first information report and names of all the accused persons were disclosed at the first instance by means of the said FIR. Therefore, the contention that the second part of the transaction was not disclosed or the change in the place of occurrence has not been disclosed, if accepted, would destroy the very foundation of the principle that in the tense circumstances, it is not far from human conduct to remember every minute detail and the sequels of the transaction. But the crux of the offence, if disclosed with relevant materials would be adequate for relying the story. Mr. Debnath, learned Addl. P.P. has submitted that the report and testimony of PW-1 cannot wholly destroy the prosecution case inasmuch as PW-11 has clearly stated that on examination of Farju Mia, he found a grievious injury caused by a blunt weapon and thereupon, the trial court has correctly inferred as under: “In this instant case Farju Miah, human being died. Such death was caused in consequence of assault upon him by Kutub Khan. Such death was caused in consequence of assault upon him by Kutub Khan. However, Kutub Khan in this case did not use the sharp edge of the dao. He used the blunt side of the dao. Form that it can be inferred that he had no intention to murder Farju Miah. He inflicted single blow on the victim on the spur of the moment without intention to cause death. So, the offence falls under Section, 304, Part-II IPC.” 15. The grievious injury on the vital organ is sufficient in the ordinary course to cause death. Mr. Debnath, learned Addl. P.P. has submitted that there does not exist two versions by two set of witnesses. PW-6 has supported the prosecution case so far the first part of transaction is concerned and he himself has stated in the trial that he left immediately thereafter. It is obvious, therefore, that after his leaving, after the first part of the occurrence, the second part of the transaction had taken place. As a result, even if the defence entirely relies the testimony of PW-6 it would not create a dent in the prosecution case. Mr. Debnath, learned Addl. P.P. has also submitted that if there is any discrepancy in the prosecution case or by taking an extreme recourse in appreciating the evidence, if it is found that a part of the statement is in conflict with the medical evidence the entire evidence cannot be thrown out inasmuch as the maxim falsus in uno falsus in omnibus has no application in India and the witness or witnesses cannot be branded as liars. 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. 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 respect as well. The evidence has to be sifted with care. The evidence has to be sifted 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 any exaggeration, embroideries or embellishment. Reference has been made to Sohrab S/o Beli Nayata and Anr. v. The State of Madhya Pradesh : (1972) 3 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. Reference has been made in this regard to Zwinglee Ariel v. State of Madhya Pradesh : AIR 1954 SC 15 and Balaka Singh and Ors. v. The State of Punjab : (1975) 4 SCC 511 ). As observed by apex court in State of Rajasthan v. Smt. Kalki and Anr. : (1981) 2 SCC 752 is relevant to note: 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 in Krishna Mochi and Ors. v. State of Bihar etc.: (2002) 6 SCC 81 and in Sucha Singh v. State of Punjab : (2003) 7 SCC 643 . While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc.: (2002) 6 SCC 81 and in Sucha Singh v. State of Punjab : (2003) 7 SCC 643 . It was further elucidated in Zahira H. Sheikh v. State of Gujarat : (2000) 4 SCC 158CriLJ 2050 , Ram Udgar Singh v. State of Bihar : (2004) 10 SCC 443 , Gorle S. Naidu v. State of Andhra Pradesh : (2003) 12 SCC 449 and in Gubbala Venugopalswamy v. State of Andhra Pradesh : (2004) 10 SCC 120 . 16. Mr. Debnath, learned Addl. P.P. while closing his submission has urged this Court that the prosecution case has been well proved for convicting the appellant No.1 under Sections 304 Part-II/447 of the IPC and against the appellants No.2,3,4,5,6 and 7 under Sections 323/447 of the IPC and no interference is, therefore, warranted. 17. It would be apposite on the face of those submissions, to revisit the evidence in order to appreciate appropriately. The informant, namely Md. Chalik Mia (PW-1) has stated in the trial that on 10.04.2007 while he was having a casual conversation with his brother, namely Athik Mia (PW-2) and another person, namely Abdul Munim (PW-5) he registered the cry of his mother. They rushed to the place and saw that Abdul Khalek (the appellant No.6) was attempting to give a blow on the head of his mother by spade. He registered that one Abdul Munim and one Eklas Mia (PW-6) had tried to resist Abdul Khalek from giving blow on his mother by the spade. Abdul Khalek kicked on the belly of his mother. At that time, his mother was carrying. PW-6 was able to snatch the spade from Abdul Khalek. In the scuffling, Abdul Khalek received minor injury on his head. Thereafter, they returned to their house. After 5-7 minutes, one auto rickshaw came wherefrom the appellants namely, Intaz Ali (the appellant No.7), Almas Ali (the appellant No.4), Dilwar Hossain (the appellant No.3), Monowar Hossain (the appellant No.5) and Mashaid Khan (the appellant No.2) came out and entered in their house when Kutub Khan reached there by riding a motorbike. Kutub entered their house and dealt a dao blow on the head of his father who was inside their house. Kutub entered their house and dealt a dao blow on the head of his father who was inside their house. Abdul Khalek was armed with an iron rod. He also assaulted his father by the said rod. Intaz Ali was armed with wooden stick. All the remaining accused persons were armed with various weapons. PW-1 and his brother, namely Athik Mia and their sister Mina Begam (PW-4) were present at that time, at the place of occurrence. While they tried to save their father, they received some blows from the accused persons. At their alarm, some neighbouring persons came, then the accused persons fled away. His father was critically ill and he was transported to the hospital by their own auto rickshaw. On way to the hospital, they reported the occurrence to the police station. His father, mother, Bachirun Necha (PW-3) and sister Mina Begam (PW-4) were admitted in the hospital. After their admission he came back to the police station and filed the written ejahar which was written by one Kamal Khan (PW-8). He identified the ejahar (Exbt.1) in the trial. On the following day, his father was shifted to Silchar Medical College. But there he was declared death. The postmortem over the dead body of his father was carried out in the said medical college. Thereafter, his father’s dead body was brought back to their place at Kailasahar and was cremated. He identified the accused persons. In the cross-examination, he was consistent about his version except some dates which he had narrated by way of giving definite indication. 18. Md. Athik Mia (PW-2) corroborated the statement of PW-1 on the material particulars and he has categorically stated that all the accused persons, namely Kutub Khan, Intaz Ali, Monowar Ali, Dilwar Hossain, Almas Ali and Mashaid Khan were armed with various weapons including dao and iron rod. He has categorically stated that Kutub Khan dealt dao blow on his father and Khalek dealt a blow by an iron rod on the head of his father. Due to that assault, his father Farju Mia received bleeding injuries. When at their alarm, the neighboring people rushed in, the accused persons fled away. Initially, his father was treated in Kailasahar hospital. Having regard the critical stage, his father was referred to Agartala but they shifted their father to Silchar for treatment. Due to that assault, his father Farju Mia received bleeding injuries. When at their alarm, the neighboring people rushed in, the accused persons fled away. Initially, his father was treated in Kailasahar hospital. Having regard the critical stage, his father was referred to Agartala but they shifted their father to Silchar for treatment. But when his father was taken to the hospital, he succumbed to the injuries. He has admitted in the cross-examination that he used to call Eklas Mia as Chacha. But he denied the suggestions put to him from the defence. 19. Smt. Bachirun Necha (PW-3), wife of the victim, Farju Mia has stated in the trial that on hearing that Abdul Khalek using slang language against them, she had gone out of their house and appeared on the road. She found Abdul Khalek there removing the earth from the drain. Abdul Khalek dashed her and she fell down on the ground. She raised alarm for help. Abdul Khalek attempted to attack her by spade but at the intervention of her son and others, he could not do that. Eklas Mia and Manu Mia separated them. Thereafter, she returned to her house when Kutub Khan by riding a motorbike and Intaz Ali, Almas Ali, Mashaid Ali, Dilwar Hossain and Monowar Hossain came to their house by one auto rickshaw. At that time, Abdul Khalek joined them. All of them were armed with various weapons. Kutub Khan dealt a blow on the head of her husband by dao and immediately thereafter, Abdul Khalek dealt a blow by an iron rod. When she and her daughter, tried to save her husband, they received injuries. Seeing that situation, her sons namely, Athik and Chalik took shelter in the other room. Due to the said assault, her husband received bleeding injuries and she became senseless. She regained her sense in the hospital. Her husband was taken to Silchar Medical College for better treatment and there he was declared dead. Her statement as recorded under Section 161 of the Cr.P.C. that on her alarm, her sons and husband came near the drain was not vouched in the trial. That part has been indicated by marking the said part as Exbt.A. Even she has been confronted by indicating that she did not state to the investigating officer that her husband was assaulted by Kutub Khan by dao. That part has been indicated by marking the said part as Exbt.A. Even she has been confronted by indicating that she did not state to the investigating officer that her husband was assaulted by Kutub Khan by dao. Even her statement as to the use of vehicle by the accused persons was indicated to have not been made to the investigating officer. Even her statement that she became senseless was not available in the statement recorded under Section 161 of the Cr.P.C. She has categorically stated that she was in the hospital for 25 days. She denied the suggestions of the defence. 20. Smt. Mina Begam (PW-4) almost replicated the statement of PW-3 and there were omissions which were indicated by the defence. 21. Md. Abdul Munim (PW-5) who was present at the place of occurrence is not a related witness. What he has stated in the trial is that he found an altercation between Abdul Khalek and Bachirun Necha in front the house of Abdul Khalek which is separated by a drain. He noticed Abdul Khalek was removing earth from the drain. Bachirun Necha raised protest to such act. Hearing her cry, he along with Chalik Mia, Athik Mia, Farju Mia and Muslim Mia came to that place of occurrence. They all asked Abdul Khalek why he was removing the earth from the drain. Ultimately, there broke out an altercation and scuffling. He tried to snatch away the spade from Abdul Khalek. Eklas Mia and other persons were able to snatch away the spade from the hand of Abdul Khalek. Farju received injuries and thereafter, Eklas Mia took Abdul Khalek to his house. This witness at that stage was declared hostile and was cross-examined by the prosecution and as well as by the defence. 22. Eklas Mia (PW-6) has stated that while Abdul Khalek was removing the earth from the drain which blocked the flow and stagnated the water, Bachirun Necha appeared there and raised serious objection. After sometimes, Chalik Mia, Athik Mia and Farju Mia came to the place of occurrence. He snatched away the spade from Abdul Khalek. He has stated that Abdul Khalek also sustained injury. Apart that, in the cross-examination, he has stated further that he noticed blood marks on the head of Farju Mia. 23. Md. After sometimes, Chalik Mia, Athik Mia and Farju Mia came to the place of occurrence. He snatched away the spade from Abdul Khalek. He has stated that Abdul Khalek also sustained injury. Apart that, in the cross-examination, he has stated further that he noticed blood marks on the head of Farju Mia. 23. Md. Sikandar Ali (PW-7) has stated that on the way to his home, when he reached near the house of Abdul Khalek, he heard some hue and cry. On reaching at the place, he found Farju Mia was lying in the injured condition inside his room. He had also noticed that the wife and daughter of Farju Mia were also in the injured condition. He has further stated that he saw Khalek Mia, Kutub Khan, Mashaid Khan, Intaz Ali, Anwar Hossain, Monowar Hossain and Dilwar Hossain leaving the house of Farju Mia. They were all armed with various weapons. PW-7 has asserted that Farju Mia received bleeding injuries. He confirmed the presence of Chalik Mia and Athik Mia in their house. On being asked, they told him that Khalek Mia, Kutub Khan, Mashaid Khan, Intaz Ali, Anwar Hossain, Almas Ali and Dilwar Hossain assaulted Farju Mia. Farju Mia, his wife and daughter were shifted to the hospital. He identified the accused persons in the dock. He stood by his statement in the cross-examination. 24. Md. Kamal Khan (PW-8) wrote the ejahar and he did not state anything beyond that. 25. Md. Rajab Ali (PW-9) has stated in the trial that he saw Abdul Khalek, Intaz Ali, Kutub Khan, Mashaid Khan, Almas Ali, Monowar Hossain and Dilwar Hossain leaving the house of Farju Mia indicating the day of occurrence. He saw one dao in the hand of Kutub Khan, one iron rod in the hand of Abdul Khalek and one long wooden stick in the hand of Intaz Ali. On being asked, Athik and Chalik Mia told him that those persons assaulted their father, Farju Mia, their mother and sister. He witnessed those persons with injuries. They were immediately shifted to the hospital for treatment. In the cross-examination, he has stated that Farju Mia was his sister-in-law but he did not deviate from what he had stated in the examination-in-chief. 26. He witnessed those persons with injuries. They were immediately shifted to the hospital for treatment. In the cross-examination, he has stated that Farju Mia was his sister-in-law but he did not deviate from what he had stated in the examination-in-chief. 26. Sri Pranjit Ghosh (PW-10), the investigating officer has stated how he investigated the matter in a nut shell by preparing the site map (Exbt.7) with the index (Exbt.9). He has also stated that after recording the statement and collecting the injury reports from Kailasahar hospital, he found a prima-facie case and accordingly, filed the chargesheet. He has clarified that by mistake it has been shown that the articles were seized on 30.04.2007 in place of 29.04.2007. 27. Dr. Gitesh Bhattacharji (PW-11) as the Medical Officer working in the RGM Hospital, Kailasahar had occasion to examine Farju Mia, Mina Begam and Bachirun Necha. He stated in the examination-in-chief as under: “After examining Farju Mia I found one head injury with injury face with black eye of right eye. The injury was grievious in nature and caused by blunt weapon. This is the injury report which bears my signature. The injury report is marked as Exbt.12. The patient was referred to GB hospital, Agartala on 11.04.07. On examination of Mina Begam I found tenderness swelling on the right occipital region of the scalp. The injury was simple in nature and caused by blunt weapon. This is the injury report which bears my signature. The injury report is marked as Exbt.13. On examination of Bachirun Necha I found three injuries and these are 1. Stitch injury measuring 2 inch in length over the right parietal region of the head. The injury was simple in nature. 2. One abrasion measuring 1½ in length over the right hand on the right metacarpo-phalangeal joint. The injury was simple in nature and caused by blunt weapon. 3. Tenderness over the right hands on its extenso aspect. The injury was simple in nature and caused by blunt weapon. This is the injury report which bears my signature. The injury report is marked as Exbt.14. Mina Begam was discharged on 12.04.07 and Bachirun Necha voluntarily left hospital on DORV. On 12.04.07. Cross-Examination : I did not find any cut injury while examining Farju Mia. While examining that patient Bachirun Necha she told me that she received the injury during cycle accident on 10.04.07 at about 5 pm.” 28. The injury report is marked as Exbt.14. Mina Begam was discharged on 12.04.07 and Bachirun Necha voluntarily left hospital on DORV. On 12.04.07. Cross-Examination : I did not find any cut injury while examining Farju Mia. While examining that patient Bachirun Necha she told me that she received the injury during cycle accident on 10.04.07 at about 5 pm.” 28. Sri Ajoy Kanti Nath (PW-12) was posted as the ASI in the Ghoongoor Outpost. On receiving the information about the death of Farju Mia, he conducted the inquest as per direction of the Executive Magistrate and he identified the inquest report (Exbt.15). It is to be noted that at the instance of the defence, PW-11 has also examined as DW-1 on 02.05.2011, after the examination under Section 313 of the Cr.P.C. was over, when he stated that on 10.04.2007, one Abdul Khalek was also admitted in the emergency ward with injuries. The injury report in respect of Abdul Khalek has been identified by him as Exbt.D/1, which was forwarded in connection with Kailasahar P.S. case No.61 of 2007. It is to be noted that the postmortem examination report was not admitted in the evidence and no endeavour was taken by the State even at the appellate stage to get the said postmortem report admitted in the evidence and that would definitely impact the prosecution case adversely inasmuch as there is no positive evidence as to the cause of death of Farju Mia. 29. As stated, the defence did not adduce any other evidence either for purpose of rebutting or for laying foundation or making out a probable story. 30. In this case, the lapse of prosecution to lay the evidence as to the cause of death to bring such death within the definition of Section 299 of the IPC. Culpable homicide as defined by the said section means a death by doing an act with the intention of causing death or with intention of causing such bodily injury as is likely to cause death or with a knowledge that he is likely by such act to cause death. Culpable homicide as defined by the said section means a death by doing an act with the intention of causing death or with intention of causing such bodily injury as is likely to cause death or with a knowledge that he is likely by such act to cause death. In Afrahim Sheikh and others vs. State of West Bengal, reported in AIR 1964 SC 1263 , the apex court has enunciated that the causing death of a person by intention expressed in two different ways or with the knowledge as mentioned in the Section as distinguishable for cases of death resulting form rash and negligent act or from hurt grievious or simple. Once it is proved that the act was deliberate, and not the result of an accident and or negligence, the offence committed was culpable homicide. There is no evidence in this case to relate the hurt as the cause of death and as such, even the said culpable act of giving hurt to the deceased cannot be brought within the meaning of culpable homicide. The element like intention of causing death or intention of causing such bodily injury as is likely to cause death or the knowledge that the act is likely to cause death is also not available in the evidence. That apart, from a keen appreciation of the evidence led by the prosecution it would be evident that Farju received injury in the first part of transaction on the road outside his house, which however was denied by PW- 3 as she had categorically stated that Farju was not present there. But other witnesses have made statement that Farju was there and he received bleeding injury. As a result, this Court is unable to accept the finding as returned by the trial court that the culpable act has been proved to be culpable homicide without any intention to murder and what happened is happened on the spur of moment and as such, the offence is covered under Section 304, Part-II of the IPC. Accoridngly, that finding is interfered with and set aside. That apart, the blow by dao by Kutub Khan, the appellant No.1 herein and blow by an iron rod by Abdul Khalek (the appellant No.6) on the head of Farju Mia create serious doubt. The only injury on the head of Farju Mia, as PW-11 has stated, was caused by the blunt weapon. That apart, the blow by dao by Kutub Khan, the appellant No.1 herein and blow by an iron rod by Abdul Khalek (the appellant No.6) on the head of Farju Mia create serious doubt. The only injury on the head of Farju Mia, as PW-11 has stated, was caused by the blunt weapon. Almost all the witnesses, the family members of the deceased have stated that both the appellant No.1 and the appellant No.6 have dealt blow on the head of Farju Mia respectively by a dao and iron rod. Even though no witness has indicated that by the backside of the dao the appellant No.1 dealt the blow. Despite that the trial court inferred that the blow was given by the backside of the dao, by the appellant No.1, completely ignoring the statement that the appellant No.6 dealt blow on the head of Farju Mia by iron rod. As such, the prosecution case is shrouded by serious doubt and on that ground also, it cannot be categorically observed that it was the appellant No.1 who dealt the blow on the head of Farju Mia. The case of having common intention as projected by the prosecution has not been accepted by the trial court. Against that finding no appeal has been filed. 31. After reading the evidence, on the tool of settled principle of appreciation, it can safely be said that all the appellants raided the house of Farju Mia attacked him and his wife (PW-3), daughter namely, Mina Begam (PW-4) and caused hurt. Since there is no convincing evidence of hurt causing death of Farju Mia, the conviction under Section 304, Part-II of the IPC against the appellant No.1 is set aside. But in exercise of the powers as provided under Section 222 of the Cr.P.C., the conviction against the appellant No.1 is converted under Section 323 of the IPC in lieu of Section 304, Part-II of the IPC. The conviction under Section 447 of the IPC as returned against the appellant No.1 is maintained. The conviction of the other appellants under Sections 323 of the IPC and 447 of the IPC are also maintained. Thus, the conviction under Section 304, Part-II of the IPC is set aside. As consequence thereof, the appellant No.1 is acquitted from the said charge under Section 304 Part-II of the IPC. 32. The conviction of the other appellants under Sections 323 of the IPC and 447 of the IPC are also maintained. Thus, the conviction under Section 304, Part-II of the IPC is set aside. As consequence thereof, the appellant No.1 is acquitted from the said charge under Section 304 Part-II of the IPC. 32. Having observed thus, all the appellants shall suffer 6 (six) months rigorous imprisonment for the offence punishable under Section 323 of the IPC. They are also sentenced to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for 1(one) month for committing the offence punishable under Section 447 of the IPC. In the result, the appeal is partly allowed to the extent as indicated above. Send down the LCRs.