Rizan and Another v. State of Chhatisgarh, Through the Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh

. . The Judg.01ent of the Court was cielivered by ARiJiT PASAYAT, J. Leave granted.·.··· Appellants call in que~tion legality of impugned judgment rendered by the Madhya PtadeshHighCou:rtat Jabalour,whereby it upheld the conviction and sentence awa~ded.by the Additional S~s~ions Judge, Jashpumagar. . · · Pros~cution. version which l_ed to the trial of the appellants {hereinafter H referred to as 'the accused' by their respective names) is as follows: RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 463 On 29.11.86 information was lodged by Jhanguram (PW-2) that six A persons had assaulted him with intention to take his life, and had also caused injuries to his wife Pandri Bai (P.W.4) and his daughter-in-law Tilobai (P.W.5). On the basis of such information, the case was registered and investigation was undertaken. On completion of investigation charge was framed for commission of offences punishable under Sections 147, 148, 307 read with B Section 34 and.Section 323 of the Indian Penal Code, 1860 (in short '!PC'). It was alleged that accused Khodhibai (since acquitted) and Pandri Bai (P.W.4) are sisters. There was a bad blood between them over certain properties and civil litigation was going on. The six accused persons were cutting the crops raised by Jhanguram (P.W.2) on the date of the occurrence. When he asked them not to do so, the accused persons did not pay any heed. Suddenly C accused-appellant Rizan snatched the axe which Jhanguram (P.W.2) was holding and assaulted him with the said weapon and caused several injuries on different·parts of his body e.g. lips, hands and feet. More particularly, accused-appellant. Duda hit Jhanguram and Pandri Bai with a stick. Other accused persons also hit him with their hands and feet. Some persons standing nearby came to their rescue. The injured P.Ws. 2, 4 and 5 were examined by D the Doctor (PW-I). During investigation the weapon of assault i.e. axe was seized from the accused-appellant, Rizan and some other weapons from the other persons. Six witnesses were examined to further the prosecution version. Accused persons pleaded innocence and false implication. On consideration of the evidence on record, the Trial Court held that the prosecution has not E been able to bring home the accusations against accused-Paras, Vinod, Khodibai and Jaymala. Accused-appellant Rizan was found guilty for the offences punishable under Section 326 !PC for inflicting injuries on Jhangurarn (P.W.2) and· under Sectio~ 323IPC for the injuri~s inflicted on Pando Bai (P.W.4). Accused F Duda was found guilty for the offences punishable under Section 323 !PC for inflicting injuries mi aforesaid two witnesses. However, both the ac~used­ appel]ants Rizan arid.Duda were acquitted of the offences relatable to Sections· 147 and 148 !PC. I.I was also held that the offence committed by the accused persons is not covered by Section 307 !PC. After hearing the accused persons G on the question of sentence, accused-appellant, Rizan was sentenced to undergo RI for two years arid two months· respectively for the o.ffence punishable ¥ under Sections 326 and 323 !PC. Both the sentences were directed to run concurrently. Accused Duda was sentenced to undergo RI for two months. In appeal, by the impugned judgment, the High Court dismissed the appeal maintaining the convictions and the sentences. H 464 SUPREME COURT REPORTS (2003] 1 S.C.R. A In support of the appeal, learned counsel for the accused-appellants submitted that this is a case where the conviction is not maintainable as the !\._ injuries were inflicted by the accused-appellants while exercising their right of private defence. Further on the same set of evidence four persons have been acquitted and, therefore, so far as the appeflants are concerned, conviction does not stand to reason. It is also submitted that the witnesses who claim to have seen the occurrence are witnesses who were in inimical ternis with the accused-appellants. Residually, it is submitted that the sentences as imposed )-- are high, and considering the fact that the occurrence took place five years back, the sentences should be reduced to what has already been undergone which is stated to be about three months. It is pointed out that accused- c appellant. Duda has already suffered the sentence awarded. Learned Counsel for the prosecution on the other hand submitted that the evidence clearly rules out application of the right of private defence. Merely because the -+ evidence of some of the witnesses has not been accepted to be fully reliable, in view of the clear and categorical findings recorded that the evidence is ~ogent and credible so far as the appellants are concerned, the conviction does not suffer from any infirmity. We shall first deal with the contention regarding interestedness of the • witnesses for furthering prosecution version. Relationship is not a factor to r affect credibility of a witness. It is more often than not th!!t a relation would ~ I- ;- E not conceal actual culprit and make allegations against an fonocent person. I Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out \ whether it is cogent and credible. In Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364 ( F it has been laid down as under:- J.. ~ "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, G to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culorit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far H from being a foundation is often a sure guarantee of truth. However, RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 465 we are not attempting any sweeping generalization. Each case must A be judged on its own facts. Our observations are only mads to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. The above decision has since been followed in Gu/i Chand and Ors. v. B State of Rajasthan, [1974] 3 SCC 698 in which Vadive/u Thevar v. State of • Madras, AIR (1957) SC 614 was also relied upon. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon c has no substance. This theory was repelled by this Court as early as in Dalip Singh 's case supra in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose. J. it was observed: "We are unable to agree with the learned Judges of the High Court D that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of even men hangs on their testimony, we know of such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to may criminal cases and one which another E Bench of this Court endeavoured to dispel in Ramoshwar v. State of Rajasthan, AIR (1957) SC 54 at p.59). We find, however, that the unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." Again in Masa/ti and Ors. v. State of U.P., AIR (1965) SC 202 this F Court observed; 202-210 para 14; "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ....... The mechanical rejection of such evidence on the sole ground that it is partisan would G invariably lead to failure of justice. No hard and fast rule can be laid ~ down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence: put the ~ plea that such evidence should be rejected because it is partisan' cannot be accepted as correct." H ~ ... ~ ,, 466 SUPREME COURT REPORTS (2003) I S.C.R. A ·To the same effect is.the decision i.n Staie of Punjab v. Jagir Singh, ._ AIR (1973) SC 2407 and Lebna v. State ofHaryana, (2002) 3 SCC .76. Stress was laid by the accused-appellants· on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of . . . ''fa/sus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly ufltenable. Even if major portion of evidence is found to ): be deficient, in case residue is sufficient to "prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviciion can be maintained. It is the duty of Court to separate yafrt. from chaff. Where c chaff can be separatecl 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 would not ruin it from the beginning to end. The maXim + ''fa/sus in uno falsus in ominbu~" has no application in India and the witnesses cannot be branded as liar. The maxim ''falsus in uno falsus in omnibus" bas D not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a.rule of caution. Allthat it amounts to, is that in such case. 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 + E may be called 'a mandatory rule of evidence'. See Nisar Alli v. The State of . . / . . Uttar fradesh, AIR (1957) SC 366. 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 -F w~re convicted. See Gurucharan Singh and Anr. v. ·State of Punjab, AIR (I 956) SC 460. The doctrine is a dangerous one specially in India for if a A w"ole 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 c9me to a dead-stop. Witnesses.just cannot help ·i~ giving embroidery to a story; however, true in the main. Therefore, it has to be appraised in eachcase 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 ~ ail respects as well. The evidence has to be shifted with care. The afo~esaid H dictum is not a sound rule for the reason that one hardly comes across a RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 467 /"\ witness whose evidence does not contain a grain of untruth or at any rate A exaggeration, embroideries or embellishment. See Sohrab s!o Beli Nava/a 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 B 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 Zwingle Ariel v. State of Madhya.Pradesh, AIR (1954) SC 15 and Ba/aka Singh andOrs. v. C The State of Punjab AIR (1962). As observed by this Court in State of -+ Rajasthan v. Smt. Kalki and Anr., AIR (1981) SC 1390, 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 discrepanci.es are those which D 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 recently in Krishna Mochi and Ors. v. Stale of Bihar, etc. JT (2002) 4 SC 186 Gangadhar Behera and E Ors. v. Stale of Orissa. (2002) 7 Supreme 276. Accusations have been clearly established against accused-appellants in the case at hand, The Courts below have categorically indicated the distinguishing features in evidence so far as . acquitted and convicted accused are concerned. > Then comes plea relating to alleged exercise ofright of private defence. F Section 96 IPC provides that nothing is an offence which .is done on the exercise of the right of private defence. The Section does not define the expression 'right of private defence.' It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular · set of circumstance, a person acted in th~ exercise of the right of private defence is a question of fact to be determined on the facts and circumstances G 1,. of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defences was legitimately exercised it is open to the Court H 468 SUPREME COURT REPORTS [2003) I S.C.R. A to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is, available to be considered from the material on record. Under Section l 05 of the Indian Evidence Act, 1872 the A burden of proof is on the accused who sets up the plea of self-defence and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts ~· from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence: he can establish his plea by reference to circumstances transpiring from the prosecution c evidence itself. The question in such a case would be a question of assessing the true effect of the. prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that + the harm caused by the accused was necessary for either warning off the attack or for forestalling the further reasonaole apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. See Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702; State of Gujarat v. Bal Fatima, AIR (1975) SC 1478; State of UP. v. Mohd. Musheer E Khan, AIR ( 1977) SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577). Sections l 00 to IO! define the extent of the right of private defence of body. If a person has a right of private defence of body ·under Section 97, that right extends under Section l 00 to causing death if there is reasonable apprehension that death of grievous hurt would be the consequenc~ of the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P., AIR (1979) SC 391, runs as follows: ,( "It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its G case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere prepon9erance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing ;.t defence evidence." ... H The accus~d need not prove the existence of the right of private defence RIZAN v. ATE OF CHHATISGARH [ARIJIT PASAYAT, I.] 469 beyond reasonable doubt. It is enough for him to show as in a civil case that A Al the preponderance of probabilities is i'lt favour of his plea. The number of injuries is not always a safe criterion for determining who the aggressor was, it cannot be stated as a universal rule that whenever the injuries are on the body of the accused person, a presumption must B necessarily be raised that the accused persons had caused injuries in exercise ~ of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to c ~ cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested, so probable, consistent and credit-worthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263. In this case, as the Courts D below found there was not even a single injury on the accused persons, while PW2 sustained large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict E severe and mortal injury on the aggressor. In order to find whether the right or private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other ~ person; and the right may be exercised in the case of any offence against the F A body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim aright G of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for I( apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show he had a right of private defence which extended to causing of death. Sections I 00 and IO I. !PC define the limit and extent of right of private defence. H 470 SUPREME COURT REPORTS . [2003] I S;C.R. A Sections 102 and 105. IPC deal withcommepc~ment and continuance ·. of the right of private defence of body and property resp~ctively. The right commence; as soon as a reasonable apprehension of danger to the body arises from an attempt, or commit the offence, although the offence may not have been committed but not until that there is that teasonable apprehension. The · B right lasts so Jong as the reasonable apprehension of the danger to the body cohtinues. In Jai Dev v. State of Punjab, AIR (1963) SC 612, it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has. been put to route, there can be no occasion to exercise the right of priva~e defence. C In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Thus, running to house, fetching a tab Ii and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill D and take the case out of the purview Qf private defence. Similar view. was expressed by this Court in Biran Singh' v. State of Bihar, AIR (1975) SC 87 and recently in Sekar@ Raja Bekharan v. State represented by lmpector of Police Tamil Nadu, (2002) 7 Supreme 124. Sentences imposed do not in any way appear to be harsh. Merely because E the occurrence took place sometime back, same cannot be a factor to reduce the sentences. The appeal is without merit and is dismissed. K.K.T. Appeal dismissed. ,.