JUDGMENT I.S. Mathur, J.
1. This appeal is directed against the judgment and order dated 30-8-1979, passed by the Sessions Judge, Azamgarh, convicting the appellant for offence punishable under Section 302, I.P.C., and sentencing him to life imprisonment. The other five accused, who were tried under Sections 302/149, I.P.C, and Section 147, I.P.C., have been given benefit of doubt and acquitted.
2. The State has not filed any appeal against the acquittal of the aforesaid persons.
3. Faujdar, the brother of the appellant was murdered about 7 or 8 months before the date of the incident. The deceased Gulbadan was one of the named accused, vide first information report Ex. Ka. 16. He was arrested in connection with that case and had come out on bail some time before the incident. According to the prosecution the accused or some of them used to threaten the deceased Gulbadan of dire consequences. On 27-7-1978 at about 8 a.m., the deceased Gulbadan was getting his field irrigated. This field was about 150 paces from his house. Kanhai Chamar, Jokhu Chamar, Sewak Chamar and Kalloo Chamar were engaged for irrigating this field. At the time of incident sewak and Kalloo were working in the field while Kanhai and Jokhu were sitting on the Mend of the field which was being irrigated and were waiting for their turn. On that very Mend, at some distance, the deceased Gulbadan was sitting along with his brother-in-law (Kailash). P.W. 2 Bhagwani, the niece of Gulbadan, was bringing tea for him and Kailash. Before she reached them, the appellant Dalloo, armed with lathis came from the west. The deceased Gulbadan tried to escape but the appellant Dalloo fired at him twice. Thereafter the other accused assaulted him with lathis. Some more persons came there and the accused escaped. The report of the incident was lodged at police station Raunapur Districts. Azamgrah at 10 a.m. The investigation was taken up by P.W. 8 Sheo Harakh Tewari. The Investigating Officer prepared the inquest report, took blood stained and ordinary earth as also 'Bendi' (used for irrigation) in possession. He sent the dead body for postmortem. On postmortem examination the Medical Officer found the following ante-mortem injuries :-
1. Gun shot wound of entry 1 1/4" x 1 1/4" round in shape, abdominal cavity deep and left side back lower part, 1 1/2" above illiac crest.
2. Gun shot wound of entry 1" x 1/2" back right side 1 1/2" above injury No. 1 abdominal cavity deep.
3. Gun shot wound of exit 1 1/2" x 3/4" on the stomach left side lower part, a portion of loop of intestine was coming out.
4. Gun shot wound of entry 2" x 1" on left arm in the middle on the outer surface.
5. Gun. shot wound of entry 1 1/2" x 1/4" on the eye-lids, right eye ball badly lacerated and punctured, right bone of eye socket was punctured.
6. Gun shot wound of exit 6" x 4" on the head left side 2 1/2" above the left ear, The brain matter was coming out from the wound and the wound was irregular. There was no blackening or tattooing on or near the wounds. No scorching of hair at any place was present.
On internal examination, the Medical Officer found the frontal bone and the parietal bones fractured. There was also fracture of temporal and occipital bones. The membranes of the brain were badly lacerated. The brain was badly lacerated and clotted blood was present in it. The peritoneum and the stomach was perforated under injuries 2 and 3 and there was clotted blood inside. In the stomach there was watery mucous present. The large intestine was lacerated at one place. In the opinion of the Medical Officer death was caused due to coma due to head injuries. After investigation charge-sheet was submitted against all the accused.
4. In a well reasoned judgment, the learned Sessions Judge has held the appellant alone guilty of offence punishable under Section 302, I.P.C. He acquitted the other accused as, in his opinion, their involvement was doubtful.
5. We have heard learned counsel for the appellant and the learned Addl. Government Advocate at length. In our opinion, there is no force in this appeal. There was dearly a strong motive for the appellant to commit this murder. The facts relating to it are not disputed. Faujdar, the brother of the appellant Dalloo, was admittedly murdered some time before this incident and the deceased Gulbadan was one of the named accused. He had come out on bail some time before the date of incident and was being threatened with dire consequences by the appellant and others. The appellant and other accused belong to the same family. Ram Samujh and Sheo Pujan are brothers and Dalloo (appellant), Ramdhari alias Dhari, Ram Chhabile and Peshkar are sons of Ram Samujh. Since the appellant thought that the deceased Gulbadan had murdered his brother, Faujdar, must have felt unhappy on his being released on bail and it is quite likely that he would have thought of taking revenge against him.
6. The learned counsel for the appellant, however, contended that enmity is a double edged weapon. It could be a motive for committing the offence but it could as well be a reason for false implication. The submission of the Teamed counsel is quite correct but not so the inference that, in the present case, the admitted enmity was a reason for false implication and not commission of the murder. As to whether, in a particular case, enmity could be held a motive for murder or a reason for false implication will depend upon the facts and circumstances of each case. In our opinion, in the present case, there are overwhelming circumstances for the inference that the enmity was a motive for murder as we shall presently discuss.
7. The prosecution has examined three eye witnesses, namely, P.W. 1 Shripat, P.W. 2 Bhagwani and P.W. 3 Jokhu. We agree with the learned Sessions Judge that they have made substantially consistent statements to the effect that the appellant fired at Gulbadan twice as a result of which he died at the spot. All these witnesses have been subjected to searching cross-examination but so far as this part of their statement is concerned they have withstood the cross-examination convincingly.
8. The learned counsel for the appellant, Sri A.D. Giri, with his usual brilliance and vahemence, laid before us a number of facts and circumstances which, according to him, must compel this Court to disbelieve the statements of these witnesses and, consequently, the version of the prosecution. According to him P.W. 1 Shirpat and P.W. 2 Bhagwani are interested witnesses inasmuch as Shripat admittedly had some litigation with some of the accused and Bhagwani is the niece of the deceased. It was contended by him that some independent witnesses have not been produced and adverse inference be drawn. His further submission was that the case of the prosecution regarding involvement of the accused, other than the appellant Dalloo, has been disbelieved by the Sessions Judge. Since the statements of these witnesses have been disbelieved on material part of the prosecution version, the argument proceeded, these witnesses or the third witness cannot be believed in regard to their version against the appellant Dalloo.
9. It is true that P.W. 1 Shripat had some sort of litigation against some of the accused or he had filed some complaints against them. It is also true that P.W. 2 Bhagwani is the niece of the deceased. However, their statement cannot be discarded merely on that account. In Swaran Singh v. State of Punjab, Hon'ble Supreme Court has observed :-
"Moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witnesses has a ring of truth, such evidence could be relied upon even without corroboration".
In State of Uttar Pradesh v. Manohar Lal, the Supreme Court has observed:
"This Court has laid down in several cases that while the evidence of interested eye-witnesss may be apporached with a little caution but it cannot be discarded only on the ground of being of a partisan nature. The High Court should have appraised the testimony of the witnesses on its intrinsic merits to determine its credibility."
The testimony of related witness duly corroborated by medical evidence can form basis for conviction. In fact, relatives of the deceased can be relied upon as more natural witnesses since they would not normally spare real assailants and involve innocent persons merely because of some enmity (See Gopal Singh v. State of U.P. 1978 SCC (Cri) 398).
10. In State of Punjab v. Wasan Singh the Supreme Court has observed :-
"It is true that both these witnesses are related to the deceased and, as such, are interested witnesses, but their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witnesses. Mere relationship with the deceased was not a good ground for discarding their testimony when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part and role assigned to each of the accused."
11. We are also unable to accept the submission of the learned counsel for the appellant that if the prosecution does not produce independent witnesses and merely produces interested witnesses adverse inference be drawn. There is no law requiring the prosecution to necessarily produce independent witnesses and adverse inference be drawn merely on account of their non-production. We have to be alive to the fact that due to factions in the villages, the persons other than relatives do not normally comeforth to give evidence. Accordingly, no adverse inference need be drawn merely on this account (See Ram Autar Rai v. State of Uttar Pradesh, . We may also take notice of the fact that in these times a common man has generally become oblivious to the needs of the society and his duties as a responsible member thereof. He does not wish to get himself involved in such cases voluntarily for fear of reprisals or being dragged to the police station or the Courts In Appa Bhai v. State of Gujarat Hon'ble Supreme Court has observed:-
"Experience reminds us that civilised people are generally insensitive when crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they must not involve themselves. The kind of apathy of general public is, indeed, unfortunate but it is every where, whether in village life, towns or cities. One cannot ignore the handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
12. Thus the correct legal position is that the testimony of relative witnesses or the witnesses who are otherwise interested cannot be equated with the testimony of a tainted witness. All that is required, by way of prudence and not by way of law, is that the testimony of such witnesses must be examined with little more care and caution. If on such scrutiny, it is found that there is nugget of truth in their statements, there will be no illegality or even impropriety in accepting their testimony. So far as relative witnesses are concerned, unless there are strong grounds to disbelieve their testimony, they are normally more natural and reliable witnesses as they would not like to spare the real assailants and involve innocent persons just because of enmity. Further, no adverse inference need be drawn merely because of the failure of the prosecution to examine independent witness. If on scrutiny of the statements of interested witnesses, with care and caution, they are found to be truthful, failure to examine independent witnesses will not be material at all.
13. We must, at this stage, dispose of another submission of the learned counsel for the appellant that if the testimony of the prosecution witnesses cannot be believed in respect of some of the material facts or vis-a-vis some of the accused, it should not be believed in regard to the other material facts or vis-a-vis other accused also. We are unable to accept such a sweeping submission. Falsus in Uno Falsus in Omnibus has not been accepted as a sound rule in India. In Sohrab v. State of Madhya Pradesh, Hon'ble Supreme Court has observed at page 2024 :-
"This Court has held that Falsus in Uno falsus in Omnibus is not the sound rule for the reason that hardly one comes across a witness whose statement does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnesses but that is not to say that their evidence as to salient feature of the case, after cautious scrutiny, cannot be considered."
14. In Deep Chand v. State of Haryana, , referred to by the learned counsel for the complainant, Supreme Court referred to this doctrine 'Falsus in Uno Falsus in Omnibus' and observed :--
"Mr. Chari conceded that Maxim (Falsus in Uno Falsus in Omnibus) has not been found to be a sound rule in the conditions in this country, (See Umar Ahir v. State of Bihar, and Ambika Sharan Singh v. Mahant Mahadeva Nand Giri), and therefore the court's duty in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, is to scrutinise the rest of his evidence with care and caution. If that part of evidence takes away the very substratum of his case, the Court cannot disbelieve the substratum and reconstruct a story of its own out of the rest."
In Deep Chand's case the evidence of the witnesses and, accordingly, the case of the prosecution regarding one of the accused Manage Ram to the effect that he had also assaulted the deceased was not found to be true by the trial court and the High Court. The Supreme Court rejected the contention that this circumstance should persuade the Court to disbelieve the version of the witnesses and of the prosecution against the other accused and observed :-
"That part of the evidence obviously, therefore, was untrue. But if the maxim Falsus in Uno Falsus in Omnibus were not to be applied there would still be the evidence relating to the other persons who were the assailants of the deceased. There still remained the duty of the Court to scrutinise with caution and care the evidence with regard to those others. The substratum of the prosecution case, therefore, could not be said to have fallen with the evidence as against Mange Ram. A conviction based on the rest of the evidence as against the rest could be justified if that evidence was found on a careful and cautious consideration of it to be reliable. That is precisely what has been done in this case."
The Supreme Court agreed with the trial court and the High Court that the statements of witnesses and the prosecution version as against the other accused could still be relied upon and dismissed the appeal.
15. In Hoshiar Singh v. State of Punjab, , four of the nine accused were acquitted. On a consideration of the "totality of circumstances", Hon'ble Supreme Court held that 'the Maxim Falsus in Uno Falsus in Omnibus' is not attracted. Conviction of five accused was upheld (also see J. Bharat Singh Gohil v. State of Gujarat, 1994 SCC (Cri) 1193).
16. It must accordingly be held that since the doctrine 'Falsus in Uno Falsus in Omnibus' is not applicable in India, the case of the prosecution cannot be thrown out merely because the witnesses or some of them have not been truthful in regard to some of the accused or part of the prosecution version. In such a case the only requirement of law will be that the testimony of these witnesses in regard to the remaining version or the case against the other accused will have to be considered by the Court with more care and caution. The Court will have to determine whether the statements of the prosecution witnesses or the prosecution version in regard to the accused who have been found to be not involved or against whom the case appears to be doubtful could be separated from the case against rest of the accused and as to whether the statements and the version in regard to the rest of the accused could withstand more cautions and careful scrutiny. In other words, where truth and falsehood could be separated and court finds the case against the other accused to be convincingly proved beyond reasonable doubt, there would be no illegality in convicting the other accused or upholding their conviction. If, on the other hand, on a consideration of the substratum of the prosecution case, the truth and falsehood are found to be so inextricably mixed as to be incapable of being separated the entire case of the prosecution may have to be rejected.
17. Nothing to the contrary would appear to have been laid down in the cases relied upon by the learned counsel for the appellant. In Balaka Singh v. The State of Punjab, , Hon'ble Supreme Court has observed :-
"It is true that, as laid down by this Court in Zinglee Ariel v. State of M.P. and other cases which have followed that case, 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 truth 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".
In the particular circumstances of the case the Supreme Coutt found as a fact that "the evidence of the prosecution witnesses would show that the prosecution case against the appellants and the four accused is so inextricably mixed up that it is not possible to sever one from the other". On this finding the Court has held that if the case against the four accused falls then the entire prosecution case will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the High Court.
18. In Prem Singh v. State of Punjab, (1975) 1 SCC 805, the report does not indicate full facts. It is not clear from the facts given as to whether the role of all the accused was similar or the case of the persons who were acquitted was inextricably mixed up and was incapable of separation. Considering the law laid down by Hon'ble Supreme Court in the other cases noted above it is reasonable to infer that the Supreme Court found in this case that the case of the appellant could not be separated from the others. It will further appear that failure of the prosecution to examine some independent witnesses who were available also weighed with Hon'ble Supreme Court in coming to the conclusion that it will not be safe to convict the appellant on the basis of the evidence produced and that he was entitled to benefit of doubt.
19. In Lakshmi Singh v. State of Bihar, , Hon'ble Supreme Court reiterated the principle that where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff or where falsehoods are so inextricably mixed together that it is difficult to separate them, it will not be permissible not to give the benefit of doubt to some of the accused and convict them while acquit others. The decision in this case quite obviously turns on the particular facts and on the finding that the case of the two sets of the accused cannot be separated.
20. Therefore, as indicated above, it must be held that if some of the accused are acquitted, the other accused are not, for that reason alone, entitled to acquittal, if the evidence of the prosecution in regard to them can be separated and, on close scrutiny with care and caution, it is found to be-truthful and convincing. The same principle will apply in such a case as is applicable to the scrutiny of the statements of interested witnesses, namely, that the evidence has to be scrutinised with a little more care and caution.
21. We proceed to do so. In the present case, as we have already noticed above, the statements of the three witnesses produced by the prosecution are quite consistent insofar as the complicity of the appellant is concerned. According to the version given by each of them it was the appellant who first came from the northern side and fired at the deceased Gulbadan, who was at that time trying to escape. The first bullet hit him and then a second bullet was also fired which too hit him. It was only, thereafter that the other accused are alleged to have come there, three of whom merely exhorted and two assaulted Gulbadan, who was at that time lying on the ground. These two transactions are clearly separable. The appellant had come alone from the northern side and he had already fired two shots as a result of which the deceased fell down. It was then only that the other accused would appear, to have come there.
22. The statements of these prosecution witnesses find full corroboration, vis-a-vis the appellant, from the medical report and the statement of PW 7 Dr. R.R. Rai, who conducted the post-mortem examination. The post-mortem report and the statement of the doctor will indicate that the gun shot injuries have been caused and they must have been caused from two bullets. Injuries Nos. 1, 2, 4 and 5 are entry wounds while injuries Nos. 3 and 6 are exit wounds. Injury No. 6 would appear to be exit wound relative to injury No. 5 while injury No. 3 is the exit wound in relation to injuries Nos. 1, 2 and 4. It would further appear from the data given in the post-mortem report that there has been dispersal of pellets causing injuries Nos. 1, 2 and 4 and, as such, these injuries must have been caused from a bullet fired from a little distance. According to Taylor the dispersal of pellets in inches equals about 1 1/2 times distance in yards. The distance of injury No. 2 is 1 1/2 inches from injury No. 1 and the distance of the fourth injury would also appear to be about the same considering the situation. Accordingly, the first shot would appear to have been fired from a distance of about 2-3 yards. Injuries Nos. 5 and 6 would show that there has not been any dispersal of the pellets in this case which should lead to the inference that the gun shot was fired from a close distance. Since there was no scorching or tattooing this distance may well be a little more than three feet (vide Modi's Medical Jurisprudence and Toxicology - Twentyfirst Edition) or may be about 18 inches (vide Medical Jurisprudence by R.N. Jhala and V. V. Raju - Fourth Edition). This will be substantially consistent with the statements of the prosecution witnesses.
23. Much stress was laid by the learned counsel for the appellant on the statement of PW 2 Bhagwaiu to the effect that at the time the second shot was fired the barrel of the gun must have been 1 or 2 "BITTA" and it was contended that if that were so there should have been tattooing or blackening. On this count the learned counsel contended that the statement of this witness must be held to be doubtful. We do not think so. A little before this statement this witness had stated that the second shot was fired from 3-4 feet and subsequently she stated that the distance between the barrel and the deceased must have been 1 or 2 "BITTA". Bhagwani was a young girl of about 14 years only who saw this occurrence from a little distance and it could not have been expected from her that she could give the exact distance from the place she saw the occurrence. It may also be observed that the whole incident must have passed off in a very short span of time and a witness who must have been taken unaware could not be expected to observe things so minutely. The power of observation varies with each individual and there cannot be any fixed rule in that regard. In these circumstances the witness could only be expected to give some approximation and cannot be expected to give exact distance. Accordingly, we are unable to consider this statement to be in any way inconsistent with the post-mortem report.
24. In fact, the version given by the prosecution witnesses regarding the fact that the first bullet was fired from a little distance while the second shot was fired from a close distance would, in our opinion, appear to be consistent with the data given in the post-mortem report. Accordingly, we are fully convinced that the medical report fully corroborates the prosecution version as given by the eye-witnesses and that quite obviously lends much support to their version.
25. We have a feeling that possibly the other accused may have also come over there. They admitted belong to the same family and had the same animus against the deceased. It is reasonable to expect that they will also have the similar motive against the deceased. It is true that in the post-mortem report none of the injuries have been mentioned as that of lathi. However, it may be noticed from injury No. 5, mentioned in the post-mortem report, that the entry wound is on the eye; lid, and right eye-ball was found badly lacerated and punctured and right bone of eye-socket was punctured. Besides this, it will further appear that parietal bone, frontal bone, left temporal bone and occipital bone have also been fractured. A perusal of injuries Nos. 5 and 6 would indicate that the bullet which entered near the eye-lid passed straight across over the left ear. In this situation it seems to be highly improbable that this bullet alone would have fractured parietal, frontal, left temporal and occipital bones. Occipital bone is on the back side of the head and frontal bone is in the front. The parietal bone is on top. They would appear to be not in the direct line of the bullet which entered the eye-lid and made its exit above the left ear. Accordingly, there would appear to be a reasonable suspicion that the fracture of other bones may have resulted from lathi blows. In this context there may be some truth in the statements of the prosecution witnesses that two of the accused assaulted Gulbadan deceased with lathis on his head.
26. In this connection it may also be observed that the learned Sessions Judge, mainly on the basis of the post-mortem report and also on the basis of the ages of some of the accused, held that their presence was highly doubtful. He has further observed that these persons may have been present but they did not take any active part. Those accused have accordingly been given the benefit of doubt and acquitted. Since there is no appeal against their acquittal we consider it unnecessary to examine this aspect any further.
27. Learned counsel for the appellant then attacked the veracity of the statements of the prosecution witnesses on the basis of some contradictions or omissions which, according to the learned counsel, are material. In regard to P.W. 1 Shripat it was suggested that he had stated in his examination-in-chief that his attention was drawn on firing the gun shot while in his cross-examination he stated that he had already started towards the place of incident on hearing some quarrel and he heard the gun shot while on his way. The statment of P.W. 2 Bhagwani has been challenged on the ground of the alleged inconsistency in regard to the distance from which the shot was fired and also on the ground that there were some inconsistencies between the first information report and the report which was got dictated by her in the Sessions court during evidence. The statement of P.W. 3 Jokhu as also the statements of other witnesses have also been challenged on the ground that according to them irrigation was going on but no trace of it was found by the Investigating Officer; It may again be observed in this connection that in the fleeting moments or may be in few minutes the whole transaction was completed and it was not possible for all these witnesses to observe the facts in detail. We agree with the learned Sessions Judge that the contradictions or omissions pointed out by the learned counsel are not material at all. The quarrel and the firing of the shot must have been almost simultaneous and it is not material whether P.W. 1 Shripat heard the shot or Quarrel first. We have already indicated above that there is no material inconsistency in the statement of Bhagwani (P.W. 2) regarding the distance from which the shots were fired. In regard to irrigation it would appear from the statements of witnesses that only a very little portion of the field had been irrigated in the morning before 8 a.m. It is quite possible that by the time the Investigating Officer arrived in the afternoon there may have been no trace of it or the attention of the Investigating Officer may not have been drawn towards that fact specifically.
28. Learned counsel for the appellant vehemently contended that if the evidence of the prosecution regarding irrigation is found to be untrustworthy the prosecution version must fail, for in that case there would have been no occasion for the deceased to have gone to the field at 8 a.m. We are unable to accept this submission. The statements of the witnesses regarding irrigation cannot be held to be false. Besides P.W. 1 Shripat and P.W. 2 Bhagwani, P.W. 3 Jokhu, who is quite an independent witness, has so stated that the field was being irrigated at that time. The version of these witnesses regarding irrigation finds support from the recovery of 'Bendi' (vide Ex. Ka. 12) from the place of occurrence. This is made of bamboo and is admittedly used for irrigation. As we understand it to be it is held by two persons from two different ends and water is transferred from ponds or rivers to the field.
29. This submission of the learned counsel for the appellant must also be rejected on the simple ground that the place of occurrence has not at all been challenged by the defence. Therefore, it is quite obvious that the deceased did go to the place where his dead body was found. It is also not disputed that irrigation was necessary at that time.
30. In regard to the alleged inconsistencies between the first information report and the report dictated by P.W. 2 Bhagwani in the court, we have gone through both these reports and we do not find any substantial inconsistency which is not explainable and attributable to the passage of time. The broad spectrum given in both these reports in regard to the appellant is the same. There is incosistency only in minor particulars. We may also remember that this report was being dicatated in the court after a lapse of sufficient time. The witness is a village girl, who cannot be expected to remember and reproduce her version in exactly same from as was given by her long time back.
31. Even if we find some embellishments in the statements of PW. 1 Shripat and P.W. 2 Bhagwani we must remember that there is hardly a case in India where witnesses do not try to embellish their statement in an attempt to back up a good case by a false or exaggertaed version. "It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps, for fear of being disbelieved, but that is no ground to throw the case over board if true in the main. If there is a ring of truth in the main the proscution case should not be rejected. It is the duty of the court to cull out the nugget of the truth from the evidence unless there is reason to believe that inconsistencies or falsehood are so glaring as to utterly destory confidence in the witness. It is necessary to remember the dictum of Hon'ble Supreme Court that Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge also presides to see that a guilty man does not escape" (see State of U.P. v. Anil Singh .
32. Considered in the light of these principles and the other principles, noted above, and on a close and cautions scrutiny of the statements of these witnesses, we are clearly of the opinion that their version regarding the appellant is quite consistent and convincing in material parts. They have succeeded in proving the broad spectrum of the incident and complicity of the appellant therein. The statement of P.W. 1 Shripat and P.W. 2 Bhagwani appear to us to be truthful in regard to the appellant even on a very close scrutiny. There is absolutely no reason to disbelieve the statement of P.W. 3 Jokhu who, as we have noted above, is quite an independent witness. His presence at the place of occurrence was very natural. There is no reason to disbelieve his version or the version of P.W. 2 Bhagwani that he was engaged for irrigation purposes along with others. The statements of the eye witnesses must accordingly be accepted.
33. The learned counsel for the appellant, however, made a last ditch attempt to dislodge the prosecution version. It was contended by him that, according to the post mortem report, faecal matter was found in large and small intestines. This, according to the learned counsel, indicated that the deceased had not evacuated till the time of death and inference must be drawn that his death had been caused in the night or in earlier hours. It is not possible to accept this submission or draw the inference suggested on the basis of the available data. P.W. 2 Bhagwani has stated that the deceased had gone away to the field merely after washing his mouth and face and she was taking tea for him when this incident took place. It has not been put to this witness as to what time the deceased usually went for 'evacuating. It is possible that the deceased may have been habituated of taking tea before evacuating or usually he may not have been doing so in the early hours of the morning. No doubt, the doctor has stated that the death could have been caused during the night, but that does not do away within the positive evidence that death was caused at about 8 a.m. According to the doctor also it was possible that death would have taken place at this time. The data given by him in the post mortem report also indicates that death could have occurred about the time stated by the prosecution. In this connection it may also be observed that no adverse circumstance could be considered against a witness or the prosecution case unless an opportunity is given to explain that circumstance (see State of U.P. v. Anil Singh ). This submission of the learned counsel must, accordingly, be rejected.
34. To sum up, we find the statements of the prosecution witnesses regarding the complicity of the appellant to be truthful and convincing. Even on close scrutiny, with care and caution, we do not find any sufficient reason to discard their testimony. All these witnesses have successfully withstood the cross-examination and there is nothing material therein which could cast any doubt regarding their truthfulness. No doubt, PW 1 Shripat and PW2 Bhagwani could be said to be interested witnesses but the testimony of interested witnesses cannot be equated to the testimony of a tainted witness and the only requirement was to scrutinise those statements with more care and caution. We find that the medical report fully supports their version. There was strong motive for the appellant to commit this murder, his brother having been allegedly murdered by the deceased Gulbadan. So far as the circumstance that few of the accused have been acquitted is concerned, in this connection too the doctrine of Falsus in Uno Falsus in Omnibus cannot be held to be applicable. If the case against the appellant could be separated from the other accused and the prosecution version could reasonably be believed as against him there is no legal impediment in separating his case from the others and holding him guilty. The circumstances suggested by the learned counsel for the appellant do not at all mitigate against the inference of complicity of the appellant. Accordingly, on a most careful and cautious approach, we fully agree with the learned Sessions Judge that the case against the appellant was fully proved by the prosecution. The appeal is accordingly liable to be dismissed.
35. The appeal is dismissed. The appellant is on bail. His bail bonds are cancelled. He shall surrender and shall be taken into custody to undergo the sentence awarded to him by the learned Sessions Judge under Section 302, I.P.C.