2008 Supreme(SC) 895

2008(3) Supreme 629
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Dalbir Singh —Appellant
Versus
State of Haryana —Respondent
Criminal Appeal No. 899 of 2008
Decided on 15.05.08

IMPORTANT POINT
In a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible.

Headnote:(i) Indian Penal Code, 1860- Sections 302 , 148-Prosecution of appellant along with co accused for causing death of his uncle by assaulting him with deadly weopans- Trial Court while convicting appellant relying upon ocular evidence of appellant’s grandfather directed acquittal of co-accused-Appeal thereagainst on plea that PW8 had undergone eye operation about two years prior to date of occurrence and in dark night there was no scope for identification-Dismissed by High Court holding that identification was possible, particularly, when accused was grandson of witness-.Appeal- PW8 disclosed before Court that deceased went for taking a bath in canal and after 10- 15 minutes a jeep came on bank of canal- He did not see other occupants of jeep and only identified appellant who raised lalkara to teach lesson to deceased for cultivating land of his grandfather- Evidence of PW8 that accused persons came with respected weapons and started inflicting injuries on person of deceased- Categorical statement of PW8 that he did not recognize other assailants, and though he knew other assailants, he did not know their names and, therefore, had not given their names- PW8 categorically also stated that from voice of accused who raised lalkara he recognized assailant as his grandson-The stand of appellant that in dark night recognition would not have been possible from voice held clearly untenable- In a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible- Even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features etc-Hence ,there held to be nothing to discard evidence of PW8 so far as his claim to have recognized appellant was concerned-Appeal dismissed. (Para6)

       (AIR1981 SC 2073),relied upon

       (ii) Indian Penal Code, 1860- Sections 302 , 148-Principle of falsus in uno falsus in omnibus,-Applicability of- Even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained-However, where large number of other persons are accused, the Court has to carefully screen the evidence- 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 to prove guilt of other accused persons- Falsity of particular material witness or material particular would not ruin it from the beginning to end- The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. (Para 9)

       (iii) Indian Penal Code, 1860- Sections 302 , 148-Principle of falsus in uno falsus in omnibus-Scope and ambit of-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”- 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- 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-The witnesses just cannot help in giving embroidery to a story, however, true in the main- Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well- The evidence has to be shifted with care. (Para10)

       Facts of the case:

       Appellant along with co accused herein in the instant case was prosecuted for causing death of his uncle by assaulting him with deadly weapons. Trial Court while convicting appellant relying upon ocular evidence of appellants grandfather directed acquittal of co-accused. Appeal thereagainst was preferred on plea that PW8 had undergone eye operation about two years prior to date of occurrence and in dark night there was no scope for identification. Said appeal was dismissed by High Court holding that identification was possible, particularly, when accused was grandson of witness.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court:

       PW8 disclosed before Court that deceased went for taking a bath in canal and after 10- 15 minutes a jeep came on bank of canal. He did not see other occupants of jeep and only identified appellant who raised lalkara to teach lesson to deceased for cultivating land of his grandfather. Evidence of PW8 that accused persons came with respected weapons and started inflicting injuries on person of deceased. Categorical statement of PW8 that he did not recognize other assailants, and though he knew other assailants, he did not know their names and, therefore, had not given their names.PW8 categorically also stated that from voice of accused who raised lalkara he recognized assailant as his grandson. The stand of appellant that in dark night recognition would not have been possible from voice held clearly untenable. In a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible. Even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features etc. Hence ,there was held to be nothing to discard evidence of PW8 so far as his claim to have recognized appellant was concerned.

       Result- Appeal dismissed.