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Tuesday, May 22, 2012

how to ascertain benefit of doubt ?=“…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1340 of 2007


    Ramesh Harijan
    …..Appellant


                                   Versus




    State of U.P.                                                   ....
    Respondent






                                  JUDGMENT


    Dr. B.S. CHAUHAN, J.




    l.             This criminal appeal  has  been  preferred  against  the
    judgment and  order  dated  23.3.2007  passed  by  the  High  Court  of
    Allahabad in Government Appeal No. 1246 of 1999 by which the High Court
    has reversed the judgment of Additional District  and  Sessions  Judge,
    Basti in Sessions Trial No. 312 of 1996 dated 2.2.1999  acquitting  the
    appellant.  Thus, the High Court has convicted the  appellant  for  the
    offence punishable under Sections 302 and 376  of  Indian  Penal  Code,
    1860  (hereinafter  called  as  `IPC’)  and  awarded   him   the   life
    imprisonment for both the offences. However, both  the  sentences  have
    been directed to run concurrently.


    2.       Facts and circumstances giving rise to this appeal are that:
    A.      One Smt. Batasi Devi (PW.2)  lodged  an  FIR  on  2.2.1996   in
    Haraiya Police Station  alleging  that  her  daughter  Renu,  aged  5-6
    years, was found dead on her cot  in  Muradipur,  the  village  of  her
    maternal grandmother on 30.1.1996 at about 9.00 p.m. Initially, she had
    been told that her daughter died of  paralysis and she  was  buried  at
    the bank of Manorama river.  Later on she got information from   Shitla
    Prasad Verma (PW.8), Jata Shankar Singh (PW.7) and other persons of the
    same village that her daughter had been raped  and  killed  by  Ramesh,
    appellant.  She also made a request that the dead body of the child  be
    exhumed and sent for post-mortem.


    B.      On the order of the concerned  Sub-Divisional  Magistrate,  the
    dead body of Renu was dug out from the grave and sent  for  post-mortem
    on 3.2.1996.  The autopsy was conducted by Dr. Ajay  Kumar   Verma  and
    Dr. S.S. Dwedi of District Hospital.  In their opinion, death  was  due
    to shock and haemorrhage as a result of ante-mortem vaginal injuries.


    C.       On the basis of the post-mortem report, Case Crime No.  22  of
    1996 was registered against the appellant under Sections  302  and  376
    IPC.  After having the investigation, the police filed the  chargesheet
    against the  appellant.   During  the  trial  prosecution  examined  14
    witnesses to prove its case including Kunwar Dhruv Narain Singh (PW.1),
    the scribe of the FIR, Batasi Devi (PW.2), mother of the deceased Renu,
    Jata Shankar  Singh  (PW.7),  Shitla  Prasad  Verma  (PW.8)  and  after
    conclusion of the trial and considering the  evidence  on  record,  the
    trial court vide its judgment and order dated  2.2.1999  acquitted  the
    appellant of both the aforesaid charges.


    D.      Being aggrieved, the State preferred Criminal Appeal  No.  1246
    of 1999 which has been allowed by the  High  Court  vide  judgment  and
    order dated 23.3.2007 and the appellant has been convicted and  awarded
    the sentence of life imprisonment on both counts.
                 Hence, this appeal.


    3.      Shri Rajender Parsad Saxena, learned counsel appearing for  the
    appellant, has submitted that High Court  has  committed  an  error  by
    reversing the well-reasoned judgment of acquittal by the  trial  court.
    There is no iota of evidence against the  appellant  on  the  basis  of
    which the conviction can be sustained.  The evidence relied upon by the
    High Court particularly that of Kunwar Dhruv Narain Singh (PW.1),  Jata
    Shankar Singh (PW.7)  and  Shitla  Prasad  Verma  (PW.8)  cannot  stand
    judicial scrutiny as these witnesses had been motivated; improvement in
    the depositions of Jata Shankar Singh (PW.7) and  Shitla  Prasad  Verma
    (PW.8) had been to the extent that it is liable to be  discarded  as  a
    whole.  The other witnesses have turned hostile,  therefore,  there  is
    nothing on record to show that the appellant  was  connected  with  the
    crime by any means.  There is no evidence on record  on  the  basis  of
    which it can be established that Renu (deceased) used to sleep  in  the
    house of the appellant or the appellant had an  opportunity  to  commit
    the offence.  The findings recorded by the High Court are perverse  not
    being based on  evidence on record.  Thus, the appeal  deserves  to  be
    allowed.


    4.      On the contrary, Shri  Manoj  Kumar  Dwivedi,  learned  counsel
    appearing for the State has vehemently opposed  the  appeal  contending
    that the judgment of the trial court has rightly been reversed  by  the
    High Court being contrary to the evidence on record.   The  High  Court
    has recorded the findings of fact on correct appreciation of  evidence.
      Thus, no interference is warranted.   The  appeal  is  liable  to  be
    dismissed.


    5.      We have  considered  the  rival  submissions  made  by  learned
    counsel for the parties and perused the records.


    6.      Admittedly, Renu, aged  5-6  years  of  age,  died  of  vaginal
    injuries.  The post-mortem report disclosed the  following  ante-mortem
    injuries:
           ?(1)   Contusion 4 cm x 2 cm over the right side face  below  the
           right ear lobules on upper part of the neck.
           (2)      Contusion 5 cm x 3 cm over the left side face in  front
           and above tragus of the left ear.
           (3)   Abraded contusion 4 cm X 3 cm over the back of  the  right
           shoulder joint and scapular region.
           (4)   Contusion 3 cm x 2 cm over the  upper  part  of  the  left
           scapula and back portion of the shoulder tip.
           (5)   Abraded contusion 4 cm x 1 cm on each side of  office  and
           labia majora.
           (6)   Abraded with tearing of labia majora of both side 2 cm x 1
           cm.
           (7)   Hymen absent, lower part of  vagina  badly  lacerated  and
           pubic lower part upper abdomen, and vaginal  tear  up  to  upper
           part of Guel orifice.
                     The internal examination of the supra pubic region  on
           opening the abdomen revealed that blood and gases  were  present
           and the lower part of the uterus had a bloodstained tear 1 cm  x
           1 cm. The cause of death was shock and  haemorrhage.  The  death
           could have taken place on 30.1.1996 between 9.00 or 9.30 pm.  If
           a hard object like a human penis was inserted in the  vagina  it
           could have caused the injuries Nos. 6 and 7.”


    7.      The prosecution has examined Kunwar Dhruv Narain Singh  (PW.1),
    the scribe of the FIR lodged by  Batasi  Devi  (PW.2),  mother  of  the
    deceased Renu. He deposed  that  Renu  was  living  with  her  maternal
    grandmother Smt. Phulpatta Devi who was totally blind and a  very  poor
    woman.   Her thatched house had fallen down so she used to sleep in the
    house of Ramesh, appellant which was adjacent to her house.   Renu  was
    found dead on 30.1.1996 in the night on her cot in the house of Ramesh,
    appellant.    Ramesh,  appellant  made  the  extra-judicial  confession
    before him in presence of Jata Shankar Singh (PW.7) and  Shitla  Prasad
    Verma (PW.8).  The father of Ramesh used to work in his house, however,
    at the relevant time, he was working in Sidharth  Nagar.   Batasi  Devi
    (PW.2) had come to him and asked him to write the FIR so that  she  can
    lodge the same  with  the  police  station.   However,  he  denied  the
    suggestion that he had a grudge against Ramesh,  appellant  as  it  was
    because of the appellant and his  father  that  other  persons  of  the
    village were not working at his house.


    8.      Batasi Devi (PW.2), mother of Renu, deceased, deposed that  her
    mother was very poor and her house was having a thatched roof which had
    fallen down so she used to sleep in  the  house  of  Ramesh,  appellant
    which is in very close proximity of her house.  In the  fateful  night,
    Renu slept with her  maternal  grandmother  in  the  house  of  Ramesh,
    appellant. She had been informed that her daughter died  of  paralysis.
    Renu had been buried at the bank of Manorama river.   However,  on  the
    next day, the rumour broke out that Ramesh,  appellant,  had  committed
    rape and she died of the same.  Then, she lodged the FIR.


    9.      Jata Shankar Singh (PW.7) deposed that  he  was  originally  of
    another village but was living in the  house  of  Kunwar  Dhruv  Narain
    Singh (PW.1), in the same village for 15-16 years.    He told  that  on
    30.1.1996 when he was returning alongwith Shitla Prasad  Verma  (PW.8),
    to his house  after  marketing  at  about  9.00  p.m.,  he  heard  some
    whispering near the house of appellant Ramesh.  He was having  a  torch
    so he focussed  it  in  the  same  direction  and  found  that  Ramesh,
    appellant was committing rape on a little girl of  6  years  beneath  a
    tree situated outside his house.  His  associate  Shitla  Prasad  Verma
    (PW.8) raised a cry as a result of which some persons from the  village
    gathered but appellant Ramesh ran out.  The girl had died of rape.


    10.     Shitla Prasad Verma (PW.8).  has supported the prosecution case
    narrating the similar facts as stated by Jata Shankar Singh (PW.7).


    11.     Doctor Ajay Kumar Verma (PW.11) who has conducted  the  autopsy
    on the body of Renu, deceased, supported the prosecution  case  to  the
    extent that deceased was having the ante-mortem injuries  as  mentioned
    hereinabove on her body.


    12.     Sharafat Hussain, S.I.,  (PW.13),  the  Investigating  Officer,
    deposed that he had recovered a part of  Khatari  (thin  mattress)  and
    white sheet with which  Renu  was  covered.  He  tried  to  search  the
    appellant/accused, however, the appellant could  be  arrested  at  3.35
    a.m.  in the intervening night of 3/4.2.1996 from the junction of three
    roads at Mahulghat when he was waiting for some transport to leave  the
    area.


    13.     The prosecution also examined Sumaiya Devi (PW.3), Urmila  Devi
    (PW.4), Hira Devi (PW.6), Sona  Devi  (PW.9).  However,  they  did  not
    support the prosecution case and had been declared hostile.   According
    to the aforesaid witnesses, they reached  the place of occurrence after
    having the information of Renu’s death and they  found  her  dead  body
    lying at the house of her maternal grandmother Smt. Phulpatta Devi.


    14.     The learned trial court  after  appreciating  the  evidence  on
    record acquitted the appellant on the following grounds:
        I) The prosecution could not produce any evidence to prove that  in
           the night of the incidence, Renu, deceased, had been sleeping in
           the house of the appellant Ramesh or  her  dead  body  had  been
           lying  on the cot in his house.
       II) Smt. Phulpatta, maternal  grandmother  of  Renu,  deceased,  was
           neither examined, nor  any  satisfactory  explanation  had  been
           given for not examining her.
      III) The deposition of Kunwar  Dhruv  Narain  Singh  (PW.1)  was  not
           worthy of reliance as he has deposed that the appellant had made
           extra-judicial  confession  before  him   for   committing   the
           aforesaid crime in the presence of Jata Shankar Singh (PW.7) and
           Shitla Prasad Verma (PW.8).   Such statement had not  been  made
           by either of the said witnesses.
       IV) Kunwar Dhruv Narain Singh (PW.1)  was  a  Jamindar  and  it  was
           because of the appellant’s father that other poor  persons  were
           not rendering service to  him  and  Kunwar  Dhruv  Narain  Singh
           (PW.1) had been inimical to the appellant.
        V) The deposition of Sumaiya Devi (PW.3), Urmila Devi (PW.4),  Hira
           Devi (PW.6) and Sona Devi (PW.9)  was  not  in  support  of  the
           prosecution case and all the aforesaid four witnesses  had  been
           cross-examined  but  they  could  not  be  held  to  be  hostile
           witnesses.
       VI) Sharafat Hussain, S.I., (PW.13), the Investigating Officer,  had
           recovered a part of the bed sheet and it had been sent for  CFSL
           report and to the said recovery Ram Prasad alias Parsadi  (PW.5)
           and   Bhikari  (PW.10)  did  not  support  the   recovery   and,
           therefore, recovery of the aforesaid incriminating  material  is
           to be disbelieved.
      VII) The evidence of Jata Shankar  Singh  (PW.7)  and  Shitla  Prasad
           Verma (PW.8) could not be relied upon as they had made knowingly
           improvements in the case of having  last  seen  Renu,  deceased,
           with the appellant  rather  distorted  the  whole  case  of  the
           prosecution totally as both of them had deposed  that  they  had
           seen the appellant committing rape on Renu, deceased.

    15.     In the  appeal,  the  High  Court  has  reversed  the  findings
    recorded by the trial court on the following grounds:


        I) There was sufficient  evidence  on  record  to  show  that  Smt.
           Phulpatta Devi, maternal  grandmother  of  Renu,  deceased,  was
           totally blind and a  very  poor  woman  and  the  roof  of   her
           thatched house had fallen and she used to sleep in the house  of
           the appellant Ramesh in her neighbourhood with Renu, deceased.
       II) It was no one’s case that Kunwar Dhruv Narain Singh  (PW.1)  was
           inimical to the appellant for any reason whatsoever as  none  of
           the witnesses had deposed  that  after  the  appellant’s  father
           joined  the  service,  he  had  supported  the  other  villagers
           financially and, therefore, they stopped working at the house of
           Kunwar Dhruv Narain Singh (PW.1).
      III) The witnesses Sumaiya Devi (PW.3), Urmila Devi (PW.4), Hira Devi
           (PW.6) and Sona Devi (PW.9), once had  been   cross-examined  by
           the prosecution as they had  not   supported  the  case  of  the
           prosecution, the trial  court  was  wrong  that  they  were  not
           hostile witnesses.   Similarly  remained  the  position  of  the
           witnesses of the recovery of sheet cover and bichona i.e. of Ram
           Prasad alias Parsadi (PW.5) and  Bhikari (PW.10).
       IV) The evidence of Kunwar Dhruv Narain Singh (PW.1),  Jata  Shankar
           Singh (PW.7) and Shitla Prasad Verma (PW.8) could be relied upon
           at least to the extent  that  deceased  was  last  seen  in  the
           company of the appellant.
        V) The  trial  court  had  given  undue  importance  to  the  minor
           contradictions in the depositions of  the  witnesses.  In  fact,
           there was evidence that after committing the crime outside,  the
           appellant brought the corpus of the child and placed it  on  the
           cot.


    16.     The law of interfering with the judgment of acquittal is  well-
    settled. It is to the effect that only in exceptional cases where there
    are compelling circumstances and the judgment in appeal is found to  be
    perverse, the appellate court can  interfere  with  the  order  of  the
    acquittal. The appellate court should bear in mind the  presumption  of
    innocence of the accused and further that the trial  court’s  acquittal
    bolsters the presumption  of  innocence.   Interference  in  a  routine
    manner where the other view is possible should be avoided, unless there
    are good reasons for  interference.   (Vide:   State  of  Rajasthan  v.
    Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram &  Anr.,
    AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram  Police
    Station & Anr., (2012) 4 SCC 722; and State of Haryana v.  Shakuntla  &
    Ors., (2012) 4 SCALE  526).


    17.     In the aforesaid fact-situation, we have to weigh as to whether
    the High Court is justified in reversing  the  judgment  and  order  of
    acquittal recorded by the trial court.
            We have been taken through the entire evidence  on  record  and
    after re-appreciating the same we can unhesitatingly record that:
    (i)     Undoubtedly, the trial court has not made any reference to  the
    depositions of Batasi Devi (PW.2) and also of Kunwar Dhruv Narain Singh
    (PW.1) in respect to the fact that the thatched house of roof  of  Smt.
    Phulpatta Devi, maternal grandmother of Renu, deceased  had fallen  and
    she as well as Renu used to sleep in the  house  of  Ramesh,  appellant
    which was in very close vicinity of  Smt. Phulpatta’s house.  Ganga Ram
    (DW.1) has stated that on the day of occurrence,  Smt.  Phulpatta  Devi
    and Renu did not sleep in the house  of  Ramesh,  however,  as  he  was
    living permanently in the city and did not say that he was  present  on
    that  day  in  the  village,  his  evidence  cannot   be   taken   into
    consideration so far as this issue is concerned.   The defence did  not
    cross-examine  Kunwar Dhruv Narain Singh (PW.1) and Batasi Devi  (PW.2)
    on this issue. Thus, the trial court committed an error recording  such
    finding of fact.
    (ii)    It has come on record that Smt. Phulpatta  Devi  was   an  old,
    infirm and totally blind woman and it was for this  reason  that  Renu,
    deceased was left for her assistance. The trial court ought not to have
    drawn adverse inference for not examining Smt. Phulpatta  Devi  by  the
    prosecution.  Thus, the adverse inference drawn by the trial  court  on
    this count is unwarranted and uncalled for.
    (iii)   The trial court has held that Kunwar Dhruv Narain Singh  (PW.1)
    had been inimical  to  Ramesh  and  his  family  for  the  reason  that
    appellant’s father had been working in the agricultural  field  at  the
    said witness and after  joining  the  service  appellant’s  father  had
    rendered financial help to other poor persons of the village  and  thus
    those poor persons were not available for work to the said witness.  In
    this regard, the defence has examined Ganga Ram (DW.1) who had  deposed
    that the appellant’s father had been  looking  after  the  agricultural
    work of that witness, however, joined the service  in  court  14  years
    prior to the date of incident and Ganga Ram’s family was  also  looking
    after the agricultural work of the  said witness but 8  years prior  to
    the date of incident. He had also left the village and opened a  beetle
    shop in the city after getting financial aid from appellant’s father.
            Such an  evidence is required to be examined in  the  light  of
    attending circumstances and particularly taking into consideration  the
    proximity of time. Time is the greatest heeler. In case the appellant’s
    father had left  working in the field of the witness 14 years prior  to
    the date of incident and Ganga Ram’s (DW.1) family  has  left  8  years
    prior to  the said date, the time gap itself  falsifies  the  testimony
    for the reason that the time gap is a factor  of  paramount  importance
    in this regard. More so, it is not the  defence  case  that  any  other
    family or labour was  available  in  the  village  to  look  after  the
    agricultural work of the said witness.
    (iv)    The recovery of part of the  sheet  and  white  clothes  having
    blood and semen  as per the FSL report  has been  dis-believed  by  the
    trial court in view of the fact that Ram Prasad  alias  Parsadi  (PW.5)
    and Bhikari (PW.10)  did not support the prosecution  case  like  other
    witnesses who did not support the last seen  theory.  The  trial  court
    failed to appreciate that both the said  witnesses,  Ram  Prasad  alias
    Parsadi (PW.5) and Bhikari (PW.10) had admitted  their  signature/thumb
    impression on the recovery
            The factum of taking the material exhibits and preparing of the
    recovery memo with regard to the same and sending the cut out  portions
    to the Serologist who found the blood and semen  on  them  vide  report
    dated 21.3.1996 (Ext.  Ka 21) is not disputed.  The serological  report
    also revealed that the vaginal swab which was taken by the  doctor  was
    also human blood and semen stained.


    18.     It is a settled  legal  proposition  that  the  evidence  of  a
    prosecution witness cannot be  rejected  in  toto  merely  because  the
    prosecution chose to treat him as hostile and cross examine  him.   The
    evidence of such witnesses cannot be treated as effaced or  washed  off
    the record altogether but the same can be accepted to the  extent  that
    their version is found to be dependable on a careful scrutiny  thereof.
    (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra
    Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v.  State  of
    Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v.  State  of
    Madhya Pradesh, AIR 1991 SC 1853).


    19.     In State of U.P. v. Ramesh Prasad Misra &  Anr.,  AIR  1996  SC
    2766, this Court held that evidence of a hostile witness would  not  be
    totally rejected if spoken in favour of the prosecution or the  accused
    but required to be subjected to close scrutiny and that portion of  the
    evidence which is consistent  with  the  case  of  the  prosecution  or
    defence can be relied upon.   A similar view  has  been  reiterated  by
    this Court in Balu Sonba Shinde v. State of Maharashtra, (2002)  7  SCC
    543; Gagan Kanojia & Anr. v. State of  Punjab, (2006) 13 SCC 516; Radha
    Mohan Singh @ Lal Saheb & Ors. v. State  of  U.P.,  AIR  2006  SC  951;
    Sarvesh Narain  Shukla v. Daroga Singh & Ors., AIR  2008  SC  320;  and
    Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.
                 Thus, the law can be summarised to  the  effect  that  the
    evidence of a hostile witness cannot  be  discarded  as  a  whole,  and
    relevant parts thereof which are admissible in law, can be used by  the
    prosecution or the defence.   (See also: C. Muniappan & Ors.  v.  State
    of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of
    Delhi), (2011) 2 SCC 36)


    20.     Undoubtedly, there may be some exaggeration in the evidence  of
    the prosecution witnesses, particularly,  that of  Kunwar Dhruv  Narain
    Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8).
     However, it is the duty of the court to unravel the  truth  under  all
    circumstances.

    21.     IN BALKA SINGH & ORS. V. STATE OF PUNJAB,  AIR  1975  SC  1962,
    THIS COURT CONSIDERED  A  SIMILAR  ISSUE,  PLACING  RELIANCE  UPON  ITS
    EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954
    SC 15 AND HELD AS UNDER:
           “The Court must make an  attempt  to  separate  grain  from  the
           chaff, the truth from the falsehood,  yet  this  could  only  be
           possible when the true is separable from  the  falsehood.  Where
           the grain cannot be separated from the chaff because  the  grain
           and the chaff are so inextricably mixed up that in  the  process
           of separation, the Court would have to reconstruct an absolutely
           new case for the prosecution by divorcing the essential  details
           presented by the prosecution completely from the context and the
           background against which they are made, then this principle will
           not apply.”




    22.     In Sukhdev Yadav & Ors.  v. State  of Bihar, AIR 2001 SC  3678,
    this Court held as under:
           “It is indeed necessary however to note that there would  hardly
           be a witness whose evidence does  not  contain  some  amount  of
           exaggeration  or  embellishment,  sometimes  there  would  be  a
           deliberate attempt to offer the same and sometimes the witnesses
           in their over anxiety to do better from the witness-box  details
           out an exaggerated account.”


    23.     A similar view has been re-iterated in Appabhai & Anr. v. State
    of Gujarat, AIR 1988 SC 696,  wherein  this  Court  has  cautioned  the
    courts below not to give undue importance to minor discrepancies  which
    do not shake the basic version of the prosecution case.  The  court  by
    calling into aid its vast experience of men and  matters  in  different
    cases must evaluate the entire material  on  record  by  excluding  the
    exaggerated version given by any witness for the reason that  witnesses
    now-a-days go on adding embellishments to their version perhaps for the
    fear of their testimony being  rejected  by  the  court.  However,  the
    courts should not dis-believe the evidence of such witnesses altogether
    if they are otherwise trustworthy.


    24.     In Sucha Singh v. State of  Punjab,  AIR  2003  SC  3617,  this
    Court had taken note of its various earlier  judgments  and  held  that
    even if major portion of the evidence is found to be deficient, in case
    residue is sufficient to prove guilt of an accused, it is the  duty  of
    the court to separate grain from chaff. 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 witness cannot be branded as a liar.  In case this  maxim
    is applied in all the cases 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 credence, and merely  because  in  some  respects  the  court
    considers the same to be insufficient or unworthy of reliance, it  does
    not necessarily follow as a matter of law that it must  be  disregarded
    in all respects as well.

    25.     In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra,  AIR
    1973 SC 2622,  this Court held :
           “…Thus too frequent acquittals of  the  guilty  may  lead  to  a
           ferocious penal law, eventually eroding the judicial  protection
           of the guiltless. For all these reasons it is true to say,  with
           Viscount Simon, that "a miscarriage of justice  may  arise  from
           the acquittal of the guilty no less than from the conviction  of
           the innocent ..." In short, our jurisprudential  enthusiasm  for
           presumed innocence must be moderated by the  pragmatic  need  to
           make criminal justice potent and realistic. A balance has to  be
           struck between chasing chance possibilities as  good  enough  to
           set the delinquent free and chopping the logic  of  preponderant
           probability to punish marginal innocents. We have adopted  these
           cautions in analysing the evidence and appraising the  soundness
           of  the  contrary  conclusions  reached  by  the  courts  below.
           Certainly, in the last analysis reasonable doubts  must  operate
           to the advantage of the appellant…”


    (See also: Bhagwan Singh & Ors. v. State of M.P.,  AIR  2002  SC  1621;
    Gangadhar Behera & Ors. v. State of Orissa, AIR  2002  SC  3633;  Sucha
    Singh  (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2  SCC
    83).


    26.     Therefore, in such a case the paramount importance of the court
    is to ensure that miscarriage of justice is avoided.   The  benefit  of
    doubt particularly in every case may not  nurture  fanciful  doubts  or
    lingering suspicion and thereby destroy social  defence.  A  reasonable
    doubt is not an imaginary trivial or merely possible doubt, but a  fair
    doubt based upon reason and common sense.


    27.     In view of the above, we are of  the  considered  opinion  that
    the acquittal in the instant  case  by  the  trial  court  was  totally
    illegal, unwarranted and based on mis-appreciation of evidence for  the
    reason  that  the  court  had  given  undue  weightage  to  unimportant
    discrepancies and inconsistencies  which  resulted  in  miscarriage  of
    justice.   Thus, the High Court was fully justified  in  reversing  the
    order of acquittal.
            In view of the above, the appeal lacks merit and is accordingly
    dismissed.


                                       ………………………..J.
                                         (Dr. B.S. CHAUHAN)




                                                ………………………..J.
                                              (DIPAK MISRA)


    New Delhi,
    May 21, 2012


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