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2020 DIGILAW 380 (GUJ)

State of Gujarat v. Jilubhai D. Vala

2020-03-02

A.C.RAO, BELA M.TRIVEDI

body2020
JUDGMENT : A.C. RAO, J. 1. The State has preferred an appeal against the judgment and order of acquittal passed by the learned Sessions Judge, Amreli in Sessions Case No. 114 of 1992. The respondents accused were charged for the offences punishable under Section 302 read with Section 34 and 114 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. The learned Sessions Judge after recording the evidence led by the prosecution, by his judgment and order dated 05.05.1994, has been pleased to acquit the respondents accused for the offences with which they were charged. 2. The case of the prosecution in nutshell is that on 21.08.1992 at about 04:00 pm the deceased Shambhu, the complainant Rameshbhai and Javerbhai were travelling on motorcycle from village Aberda to village Morzar and when they reached near Manavav, the respondent no. 1, who was armed with weapon, attacked Shambhubhai who was driving the motorcycle. At that time, when the complainant Rameshbhai tried to intervene, the respondent no. 2 gave knife blow to the complainant. Accused No. 1 had inflicted blow with knife to the deceased and thereafter they ran away. The complainant informed one Devjibhai and thereafter Rameshbhai filed a complaint. Investigation was carried out by the Investigating Officer. He had recorded statements of witnesses. He had prepared panchnama and recovered the articles and then sent it to FSL and after collecting necessary evidence he had filed charge-sheet before the trial Court. As offence was sessions triable, the trial Court, as per section 209 of the Cr.P.C. committed the case to the Court of Sessions where it was renumbered as Sessions Case No. 114 of 1992. The prosecution has examined as many as 15 witnesses and produced 56 documentary evidences. The case of the prosecution hinges on the evidence of the complainant, eyewitness, Executive Magistrate and the documentary evidence i.e. FSL report and, therefore, this Court would discuss their evidences. 3. The complainant Rameshbhai Devjibhai is PW-2 (Exh.45) and according to his evidence the deceased Shambhu was driving vehicle i.e. motorcycle while the PW-3 Zaverbhai Laljibhai (Exh.48) was pillion rider and thereafter the complainant also sat as pillion rider. When they reached near Manavav, accused no. 1 along with the accused no. 2, wearing khakhi dress, who was not known to this witness, were standing in the middle of the road. When they reached near Manavav, accused no. 1 along with the accused no. 2, wearing khakhi dress, who was not known to this witness, were standing in the middle of the road. They tried to intercept motorcycle but the victim did not stop the motorcycle, so the accused no. 1 inflicted knife blow on the shoulder of deceased Shambhubhai and, therefore, all the three fell down. Again accused Jilu Deha (accused no. 1) tried to inflict another blow so he intervened and caught hold his hand. At that time another unknown person inflicted blow on both his hands which caused injuries on his small finger of right hand and middle finger of his left hand. So he was forced to let go accused no. 1. Thereafter accused no. 1 inflicted knife blows indiscriminately to his uncle. The victim called his uncle to try to get up and run away from the place but he again fell down. Both the accused had also chased the complainant and PW-3 and thereafter he saw that both had left towards village Manavav. When they returned to the place of incident, they found uncle Shambhubhai dead. So PW-3 stayed at the place of incident and complainant went to his house on motorcycle. He informed his father so his father reached to the place of incident with the tractor while the complainant went to dispensary at Chalala. However, as the doctor was not present there he went to Chalala Police Station and filed the complaint. Thereafter he was treated at dispensary. He had also produced motorcycle of his uncle. There were blood stains on the clutch and on the cap of the plug of the said motorcycle. He has also given description of the accused no. 2. In his cross-examination, he has admitted that he was called at the police station to identify accused no. 2 after 9-10 days of incident. Accused No. 1 Jilu Deha along with Accused No. 2 Dilu Khoda at that time was present in the police station. He had also seen accused no. 2 and other persons and thereafter he was again called at Executive Magistrate Office for identification parade wherein he identified accused no. 2 along with Jayraj Gorakh Kathi and Kasu Deha Dhadi and others. He has stated that at the time of incident accused no. He had also seen accused no. 2 and other persons and thereafter he was again called at Executive Magistrate Office for identification parade wherein he identified accused no. 2 along with Jayraj Gorakh Kathi and Kasu Deha Dhadi and others. He has stated that at the time of incident accused no. 2 had small mustache and beard whereas at the time of identification parade he was clean saved. At the time of his recording of his evidence accused no. 2 had thick beard and mustache. He had stated that accused no. 1 is of Manavav village which is 3 km away from his own town. The accused no. 1 used to visit his town for purchasing Bidi and matchbox. He has also admitted that he did not know how many brothers accused no. 1 have. He admitted that he could not say how many time he had seen accused no. 1. He has stated that he used to visit his town, other people were addressing him by his name and, therefore, he knew him. He cannot say when he had seen lastly the accused no. 1 before the incident. He has stated that PW-3 viz. Zaverbhai Laljibhai has not tried to save him and he was not assaulted by the accused. 4. Prosecution Witness No. 3 Zaverbhai Laljibhai (Exh.48) has also given deposition on the same line but has not filed any complaint. He further stated that after the incident he remained with the dead body of the victim and after 20-25 minutes, his uncle had come with the tractor along with other villagers. In the cross-examination, he has stated that he has identified accused no. 2 and other three in the Identification Parade conducted by the Executive Magistrate. He has also admitted in cross-examination that he did not know how many brothers Jilubhai have. He has also stated about accused no. 1 that how he identified him. His deposition is on the same line as given by PW-2 on the issue of identification of the accused no. 1. He has denied that after 9-10 days of incident accused no. 2 and other 9-10 persons were present at the police station and he had identified them by their names and they were not at the place of incident. He has also denied the same fact is stated in his police statement. 1. He has denied that after 9-10 days of incident accused no. 2 and other 9-10 persons were present at the police station and he had identified them by their names and they were not at the place of incident. He has also denied the same fact is stated in his police statement. He has stated that he had not sustained any injury even though he fell down from the motorcycle. 5. The accused no. 1 was arrested on 23.10.1992. His arrest panchnama is on record at Exh.51. While the incident has happened on 21.08.1992. While the PW-6 is Executive Magistrate and according to his deposition, he has conducted Identification Parade on 23.10.1992 and according to his deposition the complainant has identified Dilubhai Khodabhai and Jayrajbhai Gorakhbhai while PW-3 Zaverbhai has identified the accused and other three persons. In cross-examination, he [PW-6, Exh.54] has admitted that before the accused were produced in his chamber, their faces were not covered. He has also admitted that in the punchnama, suspicion word was added before the word accused. The clothes of the accused were recovered and the panchnama is produced at Exh.60. The clothes of the accused no. 1 had blood stains. Exh.63 is the discovery panchnama where the accused no. 1 had shown knife in commission of offence which he had hide under electric pole. While the accused no. 2 has also produced knife used in commission of the crime. The panchnama is at Exh.66. Though all the panchas of discovery panchnama have turned hostile, the Investigating Officer has stated in his deposition that the accused by themselves had shown the knife used in the incident. He has also stated about preliminary panchnama drawn and as to how accused no. 1 had taken the Investigating Officer to the place where knife was hide and found blood stains on the knife. 6. It is pertinent to note that in the complaint one unknown person was described with ordinary height and ordinary mustache and beard. Whereas in the deposition of Sahdevsinh Jitubha Gohel, Prosecution Witness No. 14, who is Police Inspector, it is admitted that he has seen accused no. 2 on 25th, the description in the complaint does not match with him. He has made some interrogation of accused no. 2 and it was specified that he was not involved in offence so he let him go upto 25.08.1992 to 08.09.1992. 2 on 25th, the description in the complaint does not match with him. He has made some interrogation of accused no. 2 and it was specified that he was not involved in offence so he let him go upto 25.08.1992 to 08.09.1992. He has not found any evidence involving the accused no. 2 in the offence. While PW-15 is PSI Chalala Police Station. In his cross examination he has admitted that upto 23.10.1992 he was not having any evidence against accused no. 2. He has also admitted that when the accused no. 2 was called at the police station for the identification parade there was no evidence against him. He has stated that he had received information that crime may be committed by accused no. 2 and other three persons and, therefore, they were called for identification parade. He has also admitted that as per police record accused no. 2 along with the three others were shown to PW-2 and 3 and as per their statement they were known to them and they were not present at the time of incident nor at the place of incident. He has also admitted that four persons were identified by witnesses. He has no reason to let go other three persons. It is pertinent to note that from the clothes of accused no. 1, on the knife and on the clutch and cap of the plug of the motorcycle blood was found which was identified of 'B' group. Sample of blood group of deceased was also taken which is also of 'B' group. 7. At the time of argument, learned Additional Public Prosecutor contended that though there is ample evidence against the accused, the trial Court has wrongly acquitted the accused nos. 1 and 2. It is contended that the learned Judge has not properly appreciated the evidence of complainant, who is an injured witness though he has fully supported the case of the prosecution. The trial Court has failed to consider that deceased Shambhubhai sustained 20 external injuries on his body and his evidence is fully corroborated by the evidence of the doctor. The trial Court has failed to appreciate that PW-3 has also supported the case of the prosecution. The trial Court has wrongly discarded the evidence of the injury on the accused no. 2 on flimsy ground that the injury cannot be sustained by single blow. The trial Court has failed to appreciate that PW-3 has also supported the case of the prosecution. The trial Court has wrongly discarded the evidence of the injury on the accused no. 2 on flimsy ground that the injury cannot be sustained by single blow. The trial Court has failed to appreciate that doctor has opined that the injury could be sustained by muddamal article which was recovered at the instance of the respondents. The trial Court has wrongly disbelieved the evidence of the PW-2 and according to the trial Court the evidence of the PW-2 is contrary to the opinion given by the Medical Officer. The trial Court has failed to consider that even defense has not disputed the presence of PW-2 and 3 at the place of incident. The trial Court has wrongly acquitted the respondent no. 2 on a ground that there was no identification by the prosecution witness qua respondent no. 2. The trial Court has wrongly given benefit of doubt to accused no. 1. The trial Court has failed to consider that there is ample evidence to prove the case against the respondent beyond reasonable doubt. It is contended that the judgment and order of the trial Court is required to be interfered with and the respondent nos. 1 and 2 are required to be convicted for the offences under Sections 302, 324 read with Section 34 of the Indian Penal Code and also under Section 135 of the Bombay Police Act. Learned Additional Public Prosecutor has also contended that trial Court has totally ignored the evidence of the FSL and failed to consider that on the clothes of both the accused blood stains were found. Both the weapons also contained blood stains which had the same blood group as that of the victim. It is contended that identification parade is not necessary as per view taken by the Apex Court in a case of Kulwinder Singh and Another vs. State of Punjab, 2012 (7) SCC 464. 8. As against this, Mr. Pathan, learned advocate for respondent nos. 1 and 2 has contended that complainant himself has admitted in his chief examination that at the time of incident he had not identified accused no. 2. He has also stated that in his statement before the police that he knew accused no. 2 by name and he was not one of the assailants. Pathan, learned advocate for respondent nos. 1 and 2 has contended that complainant himself has admitted in his chief examination that at the time of incident he had not identified accused no. 2. He has also stated that in his statement before the police that he knew accused no. 2 by name and he was not one of the assailants. It is contended that there was animosity between the complainant and the respondent no. 1 accused and, therefore, he has falsely roped in the offence. He has relied upon the judgment of the Apex Court reported in the case of Harijana Thirupala vs. Public Prosecutor, High Court of A.P. AIR 2002 SC 2821 wherein it is held that in a case where the Courts entertain a "reasonable doubt" regarding the guilt of accused, the benefit of doubt should go in favour of accused. It is further held in the said judgment that the High Court should not interfere with the order of the acquittal merely because one another view is possible. It is contended that in the said decision it is held that with the passing of an order of acquittal the presumption of innocence of the accused get reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal lightly or merely because one other view is possible. He has relied on the judgment of the Apex Court in the case of in the case of Harijana Thirupala vs. Public Prosecutor, High Court of A.P. (supra) wherein same principle is reiterated. 9. Before dealing with the perversity in the judgment of the trial Court we would like to observe that it is undisputed fact from the record of the case that the PW-2 and 3 were called by the police after 9-10 days of the incident wherein the respondent No. 2-original accused no. 2 was present in the police station and wherein the PW-2 and 3 had identified the accused no. 2 with name and they have stated that he was not present at the time of incident at the time of offence or nearby to it. Thereafter suddenly identification parade, which was conducted after considerable delay of the incident, both witnesses have identified accused no. 2 along with others. In such circumstances, the identification of the accused no. 2 with name and they have stated that he was not present at the time of incident at the time of offence or nearby to it. Thereafter suddenly identification parade, which was conducted after considerable delay of the incident, both witnesses have identified accused no. 2 along with others. In such circumstances, the identification of the accused no. 2 does not inspire any confidence and we are of the view that benefit of doubt was rightly given to the accused no. 2. 10. Learned advocate for the respondents has vehemently argued that respondents are acquitted by the trial Court in the year 1994. So after long delay of about more than 25 years in hearing of this appeal, it is not proper to convict the respondent for the alleged offences even though the judgment of the trial Court is found to be perverse. 10.1 We do not find any substance in the submission made by learned advocate for the respondents. In this regard, it is opt to refer the decision delivered by the Supreme Court in the case of Shyam Babu vs. State of Uttar Pradesh, AIR 2012 SC 3311 , which is squarely applicable to the facts of the present case and, therefore, the contention raised regarding the delay in hearing appeal could not be a ground to exonerate respondent. Relevant abstracts of the said judgment reads thus: “This Court, in a series of decisions, held that the Limitation Act, 1963 does not apply to criminal proceedings unless there is express and specific provision to that effect. It is also settled law that a criminal offence is considered as a wrong against the State and the Society even though it is committed against an individual. After considering various decisions including the decision of the Constitution Bench of this Court in Abdul Rehman Antulay vs. R.S. Nayak, (1992) 1 SCC 225 and Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 and a decision rendered by seven learned Judges of this Court in P. Ramachandra Rao vs. State of Karnataka, (2002) 4 SCC 578 , recently on 17.08.2012, a Bench of two Judges of this Court in Ranjan Dwivedi vs. C.B.I. through the Director General (Writ Petition (Cri.) No. 200 of 2001) rejected similar argument based on delay either at the stage of trial or thereafter. 18. 18. In the case on hand, merely because the High Court had taken nearly 25 years to dispose of the appeal, the present appellant cannot be exonerated on the ground of delay. As stated earlier, it is not a case of single murder but due to firing and gunshot, five persons died and one injured. Accordingly, we reject the said contention.” 11. So far the acquittal qua accused no. 1 is concerned, the judgment of the trial Court is perverse on following counts. (i) Tainted Investigation: 11.1 The trial Court has acquitted both the accused on the ground that investigation is found tainted and, therefore, unsafe to rely on such investigation and, therefore, respondent no. 1 is entitled for acquittal on the aspect of faulty investigation. The view take by the trial Court is erroneous and against the settled law and the findings of the Apex Court. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. Chandra Kanth Lakshmi vs. State of Maharashtra, AIR 1974 SC 220 , Karnel Singh vs. State of Madhya Pradesh, (1995) 5 SCC 518 , Ram Bihari Yadav vs. State of Bihar, AIR 1998 SC 1850 , Paras Yadav vs. State of Bihar, AIR 1999 SC 644 , State of Karnataka vs. K. Yarappa Reddy, AIR 2000 SC 185 , Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164 , Allarakha K. Mansuri vs. State of Gujarat, AIR 2002 SC 1051 and Ram Bali vs. State of U.P. AIR 2004 SC 2329 . Thus, the view taken by the trial Court can be said to be perverse as the trial Court has wrongly held that if the investigation is found tainted with it is unsafe to rely on the same. In this regard, we would like to observe that these findings is against the settled law and view taken by the Apex Court in above referred judgments. (ii) Hostile Witnesses: 11.2 There is no merit in the conclusion of the trial Court as it did not believe that once the panch witnesses have turned hostile, the recovery of the weapons should be vitiated. The Investigating Officer has categorically stated in his deposition that the accused was ready and willing to show the weapon used in commission of offence. He has also stated in his deposition that from where the weapons were found and weapons were sent to the Forensic Science Laboratory (FSL). The FSL report also shows that the blood group of victim and the group of the blood found on the weapon was of the same group. 11.3 In the case on hand, from the examination-in-chief and the course of cross-examination also, it appears that the Investigating Officer has stuck to his version that he followed all the procedures regarding collecting of evidence under the panchnama and recording the statements of witnesses. As such, there could not be any justification in discarding the evidence of the Investigating Officer to the extent of collecting evidence under the panchnama. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. As such, there could not be any justification in discarding the evidence of the Investigating Officer to the extent of collecting evidence under the panchnama. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli vs. State of Gujarat and Others, (2011) 11 SCC 111 , it was held as under: “33. In Modan Singh vs. State of Rajasthan, (1978) 4 SCC 435 , that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam vs. State of Maharashtra, (2001) 9 SCC 362 . In Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657 , it was further held that: “10......even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.” The Supreme Court has held in a large number of cases that merely because the panch witnesses have turned hostile, it is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defense that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case) “....PW-17 PSI has clearly spoken about the recovery of MO1-dagger at the behest of accused No. 1 and MO2-dagger and MO3-handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile.” (iii) Discarding evidence doubting the nature of injury: 11.4 It is contended that the learned Judge observed that as per the deposition of medical evidence, the injury on the victim were possible by both the muddamal knife. However, according to the opinion of the doctor to inflict two injuries described in the complaint, two separate blows are required. While as per the deposition of PW-2 only one knife blow was given and, therefore, the accused no. 2 is acquitted of the offences punishable under Section 324 of the Indian Penal Code. However, according to the opinion of the doctor to inflict two injuries described in the complaint, two separate blows are required. While as per the deposition of PW-2 only one knife blow was given and, therefore, the accused no. 2 is acquitted of the offences punishable under Section 324 of the Indian Penal Code. The trial Court has failed to consider that the complainant PW-2 is injured eyewitness. The trial Court has discarded the material evidence on flimsy ground that such injury could not be caused with a single blow and two blows are required. 11.5 We are of the opinion that the question of the weight to be attached to the evidence of a witness who was himself injured in the course of the occurrence has been extensively discussed by the Apex Court in catena of decisions. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. To cite a few judgments in this regard are Ramlagan Singh and Others vs. State of Bihar, AIR 1972 SC 2593 , Malkhan Singh and Another vs. State of Uttar Pradesh, AIR 1975 SC 12 , Machhi Singh and Others vs. State of Punjab, AIR 1983 SC 957 , Appabhai and Another vs. State of Gujarat, AIR 1988 SC 696 , Bonkya alias Bharat Shivaji Mane vs. State of Maharashtra, AIR 1996 SC 257 , Bhag Singh and Others (supra), Mohar and Another vs. State of Uttar Pradesh, AIR 2002 SC 3279 , Dinesh Kumar vs. State of Rajasthan, AIR 2008 SC 3259 , Vishnu and Others vs. State of Rajasthan, AIR 2009 SC (Supp) 2374, Annareddy Sambasiva Reddy vs. State of Andhra Pradesh, AIR 2009 SC 2661 , Balraje alias Trimbak vs. State of Maharashtra, 2010 AIR SCW 3707. While deciding this issue, a similar view was taken in, Jarnail Singh vs. State of Punjab, 2009 AIR SCW 7206, where the Apex Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: “Darshan Singh (PW-4) was an injured witness. While deciding this issue, a similar view was taken in, Jarnail Singh vs. State of Punjab, 2009 AIR SCW 7206, where the Apex Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: “Darshan Singh (PW-4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube-well. In Shivalingappa Kallayanappa vs. State of Karnataka, AIR 1995 SC 254 , this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. vs. Kishan Chand, AIR 2004 SC 4671 , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon. Krishan vs. State of Haryana, (2006) 12 SCC 459 . Thus, we are of the considered opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon by the courts below.” 11.6 The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 11.7 It needs to be clarified that it is also well settled that when the medical opinion given by the medical officer is found inconsistent with the probability of the case, looking to the record of the case, the Court cannot discard the credibility of the direct evidence otherwise the administration of the justice would have to depend on the opinionative evidence of the medical expert. (iv) Duty of the Court to separate grain from the chaff: 11.8 Though there was ample evidence against the accused no. 1, the trial Court has discarded the evidence of the injured witness stating that the evidence given by the witnesses in support of accused no. 2 is not clear and the identification of accused no. 2 is unreliable. On that count, the evidence against the accused no. 1 is also discarded. The prosecution has produced scientific evidence at Exhs.26 to 30, which are the reports of by the Forensic Science Laboratory, where the serological test was carried out. From the said documents, it appears that the clothes and the knife recovered at the instance of the accused no. 1 were having blood group 'B' which was of the victim, however the accused did not have offer any explanation about the blood mark on his clothes and weapon which was recovered at his instance. These facts are not discussed by the trial Court in his judgment. Trial Court has not stated any reason as to why this evidence is discarded. 11.9 It is needless to say that it is the duty of the trial Court to separate the grain from the chaff and then to arrive at a finding of guilt of an accused or otherwise, notwithstanding the fact that evidence is found to be deficient qua another accused named in the same offence. The maxim falsus in uno, falsus in omnibus has not received general acceptance in India nor has this maxim come to occupy the status of rule of law. This has been restated in Rizan and Another vs. State of Chhattisgarh, (2003) 2 SCC 661 . In paragraph 12 of the said decision, the Court observed, thus: “12. The maxim falsus in uno, falsus in omnibus has not received general acceptance in India nor has this maxim come to occupy the status of rule of law. This has been restated in Rizan and Another vs. State of Chhattisgarh, (2003) 2 SCC 661 . In paragraph 12 of the said decision, the Court observed, thus: “12. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the 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 a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the 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. Falsity of a 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 liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a 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." (Nisar Ali vs. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate accused who had been acquitted from those who were convicted. It is always open to a court to differentiate accused who had been acquitted from those who were convicted. (Gurcharan Singh vs. State of Punjab) The doctrine is a dangerous one, specially in India for if a whole body of the testimony were to be rejected, because a 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 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 at any rate exaggeration, embroideries or embellishment. (Sohrab vs. State of M.P. and Ugar Ahir vs. State of Bihar) An attempt has to be made to, as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because the grain and the 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. (Zwinglee Ariel vs. State of M.P. and Balaka Singh vs. State of Punjab) As observed by this Court in State of Rajasthan vs. Kalki 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 into which a discrepancy may be categorized. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category into 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 recently in Krishna Mochi vs. State of Bihar and Gangadhar Behera vs. State of Orissa. Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and convicted accused are concerned.” 11.10 In another decision of the Supreme Court in State of Uttar Pradesh vs. Ram Kumar, (2017) 14 SCC 614 it is held that minor discrepancies in the statement of witnesses of trivial nature cannot be a ground to reject evidence as a whole. The Court relied upon the exposition of Brahm Swaroop and Another vs. State of Uttar Pradesh, (2011) 6 SCC 288 . In paragraph 32 of the said decision, the Court observed, thus: “32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution s case, may not prompt the court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. (State of U.P. vs. M.K. Anthony, State of Rajasthan vs. Om Prakash, State vs. Saravanan and Prithu vs. State of H.P).” 11.11 Thus, under such circumstance and in view of the above decisions, the judgment and order of the trial Court acquitting the respondent no. 1 is perverse and against the settled principles of law. The trial Court has ignored the evidence on the record and acquitted the accused no. 1 on flimsy ground. Such order cannot sustain in eye of law and requires to be interfered with. (v) Wrongly awarded benefit of doubt: Looking to the evidence on record and the findings of the judgment and order of acquittal passed by the trial Court, we find that the trial Court has wrongly awarded the 'benefit of doubt' to the accused no. 1. 11.12 As held by the Supreme Court in catena of decisions, the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. 11.13 It is nearly impossible in any criminal trial to prove all elements with scientific precision. A criminal Court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge. A criminal Court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge. Francis Wharton, a celebrated writer on Criminal Law in United States has quoted from judicial pronouncements in his book on "Wharton's Criminal Evidence" as follows: “It is difficult to define the phrase "reasonable doubt." However, in all criminal cases a careful explanation or the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster Case.” He says: “It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” In the treatise on "The Law of Criminal Evidence" authored by HC Under hill it is stated: “The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.” 11.14 In Shivaji Saheb Rao Bobade vs. State of Maharashtra, (1974) 1 SCR 489 the Supreme Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said: “The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs though the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.” The above ratio is also reiterated by the Supreme Court in Municipal Corporation of Delhi vs. Ram Kishan Rohatgi, AIR 1983 SC 67 . 12. On forgoing discussion, we do not hesitate to hold that the judgment and order of the trial Court is perverse and trial Court has wrongly discarded evidence against the settled law. Under such circumstances, the order of the acquittal qua original accused No. 1 viz. Jilubhai Dehabhai Vala cannot sustain in eye of law. Hence, the present appeal filed against the acquittal qua accused No. 1 viz. Jilubhai Dehabhai Vala is allowed. Whereas the appeal against the order of acquittal qua accused No. 2 viz. Dilubhai Khodabhai Dakhda is not entertained. 13. Before parting with the judgment, we would like to state that on the question of imprisonment either minimum or maximum, opportunity of hearing to the accused is necessary? In this regard, we would like to refer to the decision of the Apex Court in the case of Accused x vs. State of Maharashtra, AIR 2019 SC 3031 , wherein it is held that in case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise. Tarlok Singh vs. State of Punjab, (1977) 3 SCC 218 and Ramdeo Chauhan vs. State of Assam, (2001) 5 SCC 714 . 14. For the reasons recorded above, Criminal Appeal No. 808 of 1994 succeeds qua accused no. 1 and the same is partly allowed. The impugned judgment and order dated 05.05.1994 passed by the learned Sessions Judge, Amreli in Session Case No. 114 of 1992 is modified. The acquittal of accused no. 1 Jilubhai Dehabhai Vala is set aside. He is convicted for offences punishable under Sections 302 read with Sections 34, 114 and Section 324 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act and is sentenced to undergo imprisonment for life. He is also ordered to pay fine of Rs. 10,000/- and in default thereof, to undergo simple imprisonment of two months. He is also ordered to pay fine of Rs. 10,000/- and in default thereof, to undergo simple imprisonment of two months. Original Accused No. 1 Jilubhai Dehabhai Vala shall surrender within six weeks. R&P may be transmitted back to concerned trial Court forthwith. No separate sentence is imposed so far as Sections 34, 114 and 324 of the Indian Penal Code as well as Section 135 of the Bombay Police Act are concerned. Whereas the order of acquittal qua original accused no. 2- Dilubhai Khodabhai Dhakhda is confirmed and appeal qua original accused no. 2-Dilubhai Khodabhai Dhakhda stands dismissed.