# Mohan @ Mohan Singh (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 871 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-27
- **Case number:** Criminal Appeal No. 871 of 1996
- **Bench:** Mrs. Sunita Agarwal, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-mohan-singh-in-jail-v-state-of-u-p-46417
- **Pages:** 14

## Headnote

Sri A.R.B. Kher, Ms. Mahima Maurya[A.C.]

Counsel
for
the
Opposite
Party:
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
355
A.G.A.

A. Duty of the prosecution to prove its
case
by
producing
truthful
and
trustworthy witnesses, may be only oneQuality and not the quantity of witnesses
is important- Any effort of the prosecution
to
prove
its
case
by
producing
untrustworthy or untruthful witnesses has
to be viewed seriously- It is not possible
for the Court to discard the testimony of
an
injured
witness
ordinarily.Identification by voice - Is a
weak piece of evidence- Court has to be
extremely
cautious
in
basing
the
conviction purely on the evidence of Voice
identification- The evidence led by the
prosecution must be cogent, positive,
affirmative
and
assertive
and
must
establish beyond all reasonable doubts
that the witness had ability to identify
voice and additionally there was sufficient
opportunity for the witness to identify the
assailant by voice only.The maxim "falsus
in uno, falsus in omnibus" (false in one
thing,
false
in
everything)
has
not
received general acceptance in different
jurisdiction in India, nor has this maxim
came to occupy the status of rule of law-
It is merely a rule of caution- All that it
amounts to is that in such cases testimony
may be disregarded, and not that it must
be
disregarded.
The
doctrine
merely
involves
the
question
of
weight
of
evidence which a court may apply in a
given set of circumstances, but it is not
what may be called a 'mandatory rule of
evidence"-The
ocular
evidence
of
prosecution witnesses is so inextricably
mixed up that it is not possible to sever
one from the other-Difficult to separate
grain of truth from the chaff of falsehood,
the only course open is to discard the
evidence in toto.

Held- Indian Evidence Act- Section 9 -
Evidence - Reliability of - Identification by
voice - Is a weak piece of evidence - Court
has to be extremely cautious in basing the
conviction purely on the evidence of Voice
identification-
The
evidence
led
by
the
prosecution
must
be
cogent,
positive,
affirmative and assertive and must establish
beyond all reasonable doubts that the witness
had ability to identify voice and additionally
there was sufficient opportunity for the witness
to identify the assailant by voice only.(Para 25)

Evidence
Law-Indian
Evidence
Act
-
Section 134 - Quality and not the quantity
of witnesses is important -Duty of the
prosecution to prove its case by producing
truthful and trustworthy witnesses, may be only
one- Any effort of the prosecution to prove its
case by producing untrustworthy or untruthful
witnesses has to be viewed seriously. (Para 19)

Evidence
Law-
Indian
Evidence
Act-
Section
5-"falsus
in
uno,
falsus
in
omnibus" (false in one thing, false in
everyt

## Text

_Characters 0–39,668 of 48,634. This is a partial read: ask again with offset=39668 for what follows._

354 INDIAN LAW REPORTS ALLAHABAD SERIES
to place on record that the prosecution has
tried to rope in the appellant merely on
assumption, surmises and conjectures. The
story of the prosecution is built on the
materials placed on record, which seems to
be neither the truth, nor wholly the truth.
The findings of the court below, though
concurrent, do not desire the merit of
acceptance or approval in our hands with
regard to the glaring infirmities and
illegalities vitiating them, and the patent
errors apparent on the face of record
resulting in serious and grave miscarriage
of justice to the appellant.

27. We find that the trial court
and the High Court have convicted the
accused
merely
on
conjectures
and
surmises. The Courts have come to the
conclusion based on assumptions and not
on legally acceptable evidence, but such
assumptions
were
not
well
founded,
inasmuch as such assumptions are not
corroborated by any reliable evidence.
Medical evidence does not support the case
of the prosecution relating to offence of
rape."

35. In view of the aforesaid law laid
down by the Hon'ble Supreme Court
(supra), law can be reiterated that though
an accused can be convicted under Section
376 I.P.C. on the basis of sole testimony of
the prosecutrix if such testimony is worthy
of credence and inspires confidence and is
of sterling quality then corroboration from
other evidence is not required, but like in
this case where statement of the prosecutrix
suffers from material inconsistency and
contradictions, is infirm and does not
inspire confidence and there is no other
material
may
be
even
short
of
corroboration to support the prosecution
case, so also the fact that statement of PW2 (Dr. Yamini Badal) does not support the
prosecution case and the statement of PW-5
(investigating officer) also does not inspire
confidence as once the clothes of the
prosecutrix were already seized and sent
for forensic examination by PW-2 on
12.09.2015, the investigating officer (PW5) could not have again seized the clothes
of the prosecutrix on 17.09.2015 and no
explanation regarding this could be given
by the prosecution and coupled with the
fact that independent witness of the alleged
seizure on 17.09.2015 namely Sri Pal has
not been produced before the Court and no
finding on this aspect has been recorded by
the learned trial court, I am of the view that
looking to the totality of the evidence and
other material on record, I am unable to
agree with the conclusion arrived at the
trial court. Accordingly, the judgment dated
03.08.2018 passed by Additional Sessions
Judge, F.T.C., Lakhimpur Kheri, is set
aside. The appellant is acquitted of all the
charges levelled against him. The appellant
is directed to be released forthwith if he is
not required in any other case.

36. The appeal is accordingly
allowed.
----------
(2020)03-05ILR A354
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE RAVI NATH TILHARI, J.

Criminal Appeal No. 871 of 1996

Mohan @ Mohan Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.R.B. Kher, Ms. Mahima Maurya[A.C.]

Counsel
for
the
Opposite
Party:
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
355
A.G.A.

A. Duty of the prosecution to prove its
case
by
producing
truthful
and
trustworthy witnesses, may be only oneQuality and not the quantity of witnesses
is important- Any effort of the prosecution
to
prove
its
case
by
producing
untrustworthy or untruthful witnesses has
to be viewed seriously- It is not possible
for the Court to discard the testimony of
an
injured
witness
ordinarily.Identification by voice - Is a
weak piece of evidence- Court has to be
extremely
cautious
in
basing
the
conviction purely on the evidence of Voice
identification- The evidence led by the
prosecution must be cogent, positive,
affirmative
and
assertive
and
must
establish beyond all reasonable doubts
that the witness had ability to identify
voice and additionally there was sufficient
opportunity for the witness to identify the
assailant by voice only.The maxim "falsus
in uno, falsus in omnibus" (false in one
thing,
false
in
everything)
has
not
received general acceptance in different
jurisdiction in India, nor has this maxim
came to occupy the status of rule of law-
It is merely a rule of caution- All that it
amounts to is that in such cases testimony
may be disregarded, and not that it must
be
disregarded.
The
doctrine
merely
involves
the
question
of
weight
of
evidence which a court may apply in a
given set of circumstances, but it is not
what may be called a 'mandatory rule of
evidence"-The
ocular
evidence
of
prosecution witnesses is so inextricably
mixed up that it is not possible to sever
one from the other-Difficult to separate
grain of truth from the chaff of falsehood,
the only course open is to discard the
evidence in toto.

Held- Indian Evidence Act- Section 9 -
Evidence - Reliability of - Identification by
voice - Is a weak piece of evidence - Court
has to be extremely cautious in basing the
conviction purely on the evidence of Voice
identification-
The
evidence
led
by
the
prosecution
must
be
cogent,
positive,
affirmative and assertive and must establish
beyond all reasonable doubts that the witness
had ability to identify voice and additionally
there was sufficient opportunity for the witness
to identify the assailant by voice only.(Para 25)

Evidence
Law-Indian
Evidence
Act
-
Section 134 - Quality and not the quantity
of witnesses is important -Duty of the
prosecution to prove its case by producing
truthful and trustworthy witnesses, may be only
one- Any effort of the prosecution to prove its
case by producing untrustworthy or untruthful
witnesses has to be viewed seriously. (Para 19)

Evidence
Law-
Indian
Evidence
Act-
Section
5-"falsus
in
uno,
falsus
in
omnibus" (false in one thing, false in
everything) - The maxim has not received
general
acceptance
in
different
jurisdiction in India, nor has this maxim
come to occupy the status of rule of law-
It is merely a rule of caution- It is the duty
of the court to separate the grain from the chaff
but where the two are inextricably mixed up,
then the evidence has to be discarded
completely.(Para 26, 28, 29)

The trial Court gave undue weightage to
testimony of injured witness ignoring all
material contradictions without ascertaining the
truthfulness of the prosecution witness -
prosecution failed to prove its story by
producing truthful witnesses - appellant given
benefit of doubt- the conviction of the
appellant for the offences under Sections
302 and 307 IPC set aside - Criminal
Appeal allowed.( Para 19,25,26,28,35)

Criminal Appeal allowed (E-3)

List of case cited:

1. Sainudeen Vs. St. of Kerala, (1992) Cri L.J.
1644

2. Nilesh DinkarParadkar Vs. St. of Maha., Cril.
Appeal No.537 of 2009 dec. on 9th March 2011
356 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Pratap Singh Vs. St. of M.P ,Crl. Appeal
no.00601 of 2004

4. Kripal Singh Vs. St. of U.P. ,1965 AIR 712

5. Kedar Singh &ors. Vs. St. of Bih, 1998 SCC
(cri) 907.

6. Dalbir Singh Vs. St. of Har., (2008) 11 SCC
425

7. State of Raj. Vs. Kalki&anr , (1981) 2 SCC 752

8. Sohrab S/O Belinayata&Anr Vs. State of M.P
,(1972) 3 SCC 751

9. UgarAhir Vs. St. of Bih,AIR 1965 SC 277.

10. Nisar Ali Vs. St. of U.P , AIR 1957 SC 366

11. ZwingleeAriel Vs. St. of M.P ,AIR 1954 SC 15

12. Balaka Singh Vs. The St. of Punj.(1975) 4
SCC 511

13. Anwar Hussain Vs. St. of U.P., (1982) 1 SCC
491
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Ravi Nath Tilhari, J.)

1. Heard Ms.Mahima Maurya, learned
Amicus Curiae appearing for the appellant and
Sri L.D.Rajbhar, Prem Shankar Mishra, learned
A.G.As for the State respondent.

2. This criminal appeal is directed against
the judgment and order dated 18.5.1996 passed
by the IVth Additional Sessions Judge, Jhansi in
Sessions Trial No.144 of 1991 (State vs Mohan
@ Mohan Singh) under Sections 307 & 302
IPC, P.S -Kotwali, District-Jhansi, whereby
appellant Mohan @ Mohan Singh has been
convicted for the offences under section 302
and sentenced for life imprisonment and under
section 307 I.P.C., sentenced for seven years
rigorous imprisonment. Both the punishments
are to run concurrently.

3. The prosecution story as unfolded
with the First Information Report, dated
10.6.1991 registered at about 5.30 a.m at
P.S-Kotwali,
District-Jhansi
that
on
10.6.1991 at about 4.30 a.m, when
deceased
Jamna
(wife
of
the
first
informant) and his aunt Rajabeti, wife of
Nathhu were going to get drinking water
from the Public (Sarkari) Tap and the first
informant was accompanying them to
attend the call of nature, Mohan (appellant)
son of Kallu Kachhi and two other young
boys met them at a place inside the outer
gate of the village. Seeing them standing,
on their way, his aunt Rajabeti stopped
them, Mohan then said "rw vkxs c<" and
attacked Jamna by knife in her chest while
his two accomplices caught hold of Jamuna
(deceased). The first informant Parikshit
(husband of deceased) challenged them in
the torch light and his aunt Rajabeti hit
them by the metal pot (Kasedi) which she
was carrying to fill water. Mohan also hit
back Rajabeti by knife causing injury in her
left hand. The deceased fell down and died.
Amidst the chaos, on the challenge raised
by the first informant, three assailants ran
away towards the grove. Some people took
deceased Jamna and injured Rajabeti to the
District Hospital. The motive to commit the
crime as stated in the report is that around
five days prior to the occurence, an
alteration took place between wife of first
informant Parikshit and his neighbour
Mohan s/o Kallu Kushwaha also his mother
Rama. In the said altercation, Mohan had
threatened
the
deceased
with
dire
consequences. Since it was a normal
dispute and hence no report was lodged by
the first informant. It was stated that the
first informant and his aunt Rajabeti had
seen the assailants Mohan and his two
accomplices clearly in the torch light and
they knew accused Mohan by name
whereas his two other accomplices were
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
357
not known to them. They, however, could
recognize them, if the assailants were
brought before them. The report is scribed
by one Kalicharan s/o Narayan Das.

4. The record indicates that the police
swung into action and recoveries were
made, site plan prepared and accused
Mohan was arrested. The recovery memo
of the torch which the first informant was
carrying, had been prepared, marked as
Exhibit Ka-2. Three Kaseria (metal pots for
filling water) carried by deceased and
injured Rajabeti recovered from the spot of
the crime on 10.6.1991, were sealed in a
recovery memo, which was proved and
exhibited as 'Exhibit Ka-6'. Blood-stained
clothes of injured Rajabeti recovered on
12.6.1991 were kept in Exhibit Ka-7.
Recovery memo of blood stained earth and
plain earth collected from the spot of crime
dated 10.6.1991 has been proved as Exhibit
Ka-8.

5. The injury report of Rajabeti wife
of Nathhoo aged about 70 years is dated
10.6.1991 which records that she was
brought to the district hospital Jhansi on
10.6.1991 at about 5.a.m by one Laxmi
Narayan s/o Ram Charan resident of the
same village. The injuries found on the
person of Rajabeti are as under:-

(1) A punctured wound on the
medial surface of Right upper arm. Size 3
cm x 1 cm x 2 cm and is 13 cm above
elbow joint. Rt side wound is severly
bleeding, margins are sharply cut. regular.

(2) An Incised wound 2.5 cm x 1
cm x-Muscle deep on the ventral surface of
Right fore arm. 9 cm above wrist joint
sever fresh bleeding present along with
some dust particles.

(3) An incised wound 3 cm x 0.5
cm x muscle deep on the dorsal surface of
Rt fore arm 10 cm above wrist joint. Fresh
bleeding present.

6. It was opined by the doctor that
injury nos.1 and 2 (kept under observation)
were caused by sharp edged weapon and
their duration was fresh. X-ray was
advised.

7. The post mortem of deceased
Jamna was conducted on 10.6.1991 at
about 3.00 pm. Clean cut wound of 2 &1/2
cm x 1 cm was found on the left chest so
deep that it punctured the heart of
deceased, which was found filled with
blood. It was opined by the doctor that
death was caused due to the said injury
resulting in asphyxia and shock.

8. The inquest was done at the
mortuary of the district hospital, Jhansi,
which commenced at 9.15 a.m and ended at
11.15 a.m. The person who gave first
information to the police, as mentioned in
the inquest report, is Parikshit husband of
deceased. Cause of death is shown as injury
caused by knife. The inquest report records
that body was taken out from the mortuary
of the District Hospital, lock of which was
opened in the presence of the inquest
witnesses and other people after police
came to the hospital.

9. It is pertinent to note here that the
Investigating Officer, who submitted the
chargesheet in the Court, had died before
his deposition could be recorded in the
trial. However, the site plan, charge sheet
and
other
papers
prepared
by
the
Investigating officer had been proved to be
in his handwriting and signature, by P.W.-5
Constable, Dhani Ram Tiwari P.S-Kotwali,
District-Jhansi and marked as Exhibit 'Ka6' to 'Ka-10' (site plan as Exhibit Ka-9 and
chargesheet as Exhibit Ka-10).
358 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Amongst the witnesses produced
by the prosecution, the first informant
(P.W-1) and injured Rajabeti (P.W-2) gave
eye-witness account of the incident. P.W-3,
Doctor R.N. Sharma who conducted post
mortem had proved his report. P.W-4, S.I
Ram Bharose Kushwaha is the Head
Constable who prepared Chik F.I.R (proved
as Exhibit Ka-4) on the written report
(proved as Exhibit Ka-1). He stated that the
Chik F.I.R was prepared by him at about
5.30 a.m on 10.6.91 and entered in the G.D
no.9, which was proved from the original
G.D and marked as Exhibit 'Ka-5' being in
his own handwriting and signature.

11. Thus, according to the prosecution,
deceased was accompanied by P.W-1 the first
informant and injured witness P.W-2 at the time
of the incident. The trial court discarded the
presence of the first informant on the spot of
crime noticing that his deposition indicates that
he was supposed to be on duty at the time of the
incident. The statement of the first informant in
the cross examination that he was an employee
in railway and his duty was changing in three
shifts, and from 7th June to 15th June his shift
duty was from 12:00 midnight to 8:00 a.m, was
noted by the trial court to hold that the presence
of the first informant on the spot was
improbable. We may note, at the outset, that the
prosecution could not demonstrate that this part
of the finding recorded by the trial court is
either perfunctory or against the evidence on
record.

12. This apart, having carefully read the
evidence of P.W-1, we further find that his
deposition is full of contradictions and clearly
reveal that his presence on the spot was not
possible. The first informant states that he was
ten steps behind his wife and the injured
witness when they were attacked by accused
Mohan. As per his version, accused Mohan was
intercepted by his aunt Rajabeti when he
attacked deceased Jamuna and during the
course of occurence Rajabeti was also hit by
knife in her right arm. It is astonishing that the
first informant being husband of deceased did
nothing but witnessed the entire sequence of
events in the torch light. Further, in his
deposition before the Court, though P.W-1
states that he alongwith others brought deceased
Jamuna and injured Rajabeti to the district
hospital, but in the written report it is averred
that other people took the injured and deceased
to the district hospital. When confronted in
cross-examination, P.W-1 gave an explanation
that since his brother and sister-in-law also
accompanied him to the hospital he dictated so
in the F.I.R. A suggestion was also given to him
that someone else brought deceased and injured
to the hospital and he reached the hospital
directly on hearing the news. In reply P.W-1
states that he remained at the site after the
incident for about 10-15 minutes, then took
deceased and the injured to the Hospital where
he reached within 10-15 minutes. He remained
in the hospital for about 2-3 hrs. In the
meantime, police reached the hospital. One
hour later, the police took him to the police
station to lodge the report. The inquest was
done in the hospital. He then states that by the
time he reached the police station, sun had
risen. His brother Laxmi Narayan and a
neighbour
namely
Kali
Charan
also
accompanied him to the police station. He then
states that the entire sequence of events was
narrated by him to the Station House Officer
(Daroga ji) who dictated it to Kali Charan who
wrote the report, and it was then signed by him
as the first informant.

13. Analysing the above naration of
the P.W-1, this much is evident that the
written report scribed by Kali Charan was
not dictated by the first informant rather it
was scribed on the dictation of the police
officer and P.W-1 merely endorsed it. P.W1 admitted that he was a railway employee
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
359
and his duties were changing weekly in
three shifts, i.e. 8.00 am to 4.00 p.m, 4 p.m
to 12.00 mid night and 12:00 mid night to
8.00 a.m. In the month of June 1991, from
1st June to 7th June, his duty shift was 8.00
a.m to 4.00 p.m and from 7th June to 15th
June, it was 12.00 midnight to 8.00 a.m.
Thus, in the cross examination, he had
admitted that on the fateful day, at the time
of incident, he was supposed to be on duty.
There is no whisper nor any indication in
the entire evidence as to how he could be
present at his home to accompany the
deceased at about 4.00 a.m when she went
to get drinking water from the public tap.
The prosecution has not explained this
circumstance by bringing any cogent
evidence on record rather it is completely
silent on the issue. This, in our opinion, is a
clear dent in the prosecution story.

14. Further, as far as motive narrated
by P.W-1 in the First Information Report is
concerned, in cross examination P.W-1
admitted that he was neither present during
the altercation which took place around 5
days back between accused Mohan and his
wife nor was told by his wife that Mohan
had threatened her. The narration of motive
by P.W-1 in the First Information Report,
therefore, seems to be his own creation.
When confronted as to why he did not
make any effort to save his wife, P.W-1
states that he hit the assailants from the
'Dibba' which he was carrying and
challenged them by showing the torch light,
but no such "Dibba" was recovered.

15. He further admitted that he did not
make any effort to release deceased from
the clutches of the assailants, nor he
thought of hitting them from the metal pots
carried by his wife. He did not touch the
dead body of his wife on the spot. We find
it difficult to believe that P.W.-1 though
was present on the spot but he did not even
lift the body of his wife to take her to the
hospital. For the above statement and
admission of P.W-1 about his duty time on
the fateful day which clashed with the time
of the incident, we find that the trial court
has rightly concluded that P.W-1 was not
accompanying
the
deceased.
The
prosecution version of P.W-1 being the eye
witness has been rightly discarded.

16. Presence of P.W-1 on the spot is
also belied from the statement of P.W-2
who states in the examination-in-chief that
apart from her no one else had seen the
assault. The relevant part of the statement
of P.W-2 is to be noted as under:

"ekSds ij tc eksgu us esjh cgw o eq>s
pkdw ekjk Fkk ml le; vkSj fdlh us ugha ns[kk
FkkA ogkW ij iMksl esa IysV QkeZ ij dkQh yksx
lks jgs FksA tks fd okd;k gksus ds ckn vius &2
?kjks esa pys x;s Fks o viuh &2 [kfV;k Hkh ys x;s
FksA"

17. P.W-2 further states that first one
to reach the spot was a neighbour Jamna
wife of Param, who in turn called Laxmi
Narayan, she then states that her nephew
Parikshit (first informant) was present
about 50 paces behind them, but in the very
next sentence she stated that she could only
remember that wife of Param and Laxmi
Narayan reached the spot and who else
came, she could not recollect. This part of
statement of P.W-2 (in her examination in
chief) is also relevant to be noted
hereunder:-

"lcls igys eqgYys ds ,d cgw ije
dh chch tequk gekjs ikl vk;h Fkh ogha y{eh
ukjk;.k dks cqykdj yk;h FkhA

esjk nwljk Hkrhtk ikjh{kr ?kVuk ds
le; djhc 50 dnenwjh ij Fkk cjxn ds isM ds
vkSj vkxs FkkA fQj dgk fd eSa csgks'k gks x;h Fkh
360 INDIAN LAW REPORTS ALLAHABAD SERIES
eq>s ugha ekywe fd dkSu vk;k dkSu ugha vk;kA
eq>s dsoy cgw ije dh chch o y{eh ukjk;.k ds
vkus dk /;ku gS ckn esa dkSu vk;k dkSu ugha
vk;kA eq>s ugha ekyweA ikjh{kr us dgk Fkk fd eSa
ySfVau tk jgk gwW A ;g ckr mlus ?kj ij gh
dgh FkhA

X X X X X X By R.C.A

ekSds ij vU/ksjk Fkk eSaus eksgu ;k
mlds lkFkh dk psgjk ns[kdj ugha ifgpkuk Fkk
cfYd mldh vkokt lqudj ifgpkuk Fkk fd og
eksgu FkkA

vU/ksjs ds dkj.k eSa ;g ugha ns[k ldh
fd mls eksgu us ekjk Fkk ;k lcus feydj ekjk
FkkA

eSus njksxk th dks Hkh ;gh crk;k Fkk
fd tc eksgu us vkokt nh rc eSasus mls vkokt
ls ifgpkuk Fkk A ;fn eksgu vkokt u nsrk vkSj
dksbZ ckr u djrk rks eq>s irk Hkh ugha pyrk fd
gesa dkSu ekj x;kA

eq>s 2 fnu ckn gks'k vk;k FkkA"

18. P.W-2 further states that she could
not see whether Mohan hit them or any of
the other assailants as there was dark. There
is no whisper in the statement of P.W-2
about the presence of any source of light,
especially the torch light wherein they
could have seen the assailants. P.W-2 rather
categorically
stated
that
she
could
recognize Mohan accused, only from his
voice. As per P.W-2, had Mohan not spoken
a few words she could not have known as
to who had assaulted them. This part of
extracted statements of P.W-2 belied the
whole version of P.W-1 and also makes the
recovery of torch wholly farce.

19. Having noticed the contradictions
in the statement of P.W-1 as also material
contradictions in the statement of both the
witnesses of fact (P.W-1 and P.W-2), there
remains no doubt that the testimony of
P.W-1 (projected as eye witness) is liable to
be discarded as a whole. P.W-1 is proved to
be a liar. It seems to us that P.W-1 was on
duty and he came to know about the
incident only after he returned from duty in
the morning and that could be only after
8:00 a.m. Apart from the above, further
record indicates that police was intimated
about the incident through the letter of the
hospital authorities which was entered in
G.D rapat no.9, time 5.30 a.m. As per the
entries therein, deceased was admitted in
the hospital at about 4.50 a.m. The district
hospital was located at a very short distance
(less than one furlong) from the police
station. The G.D entry shows that the first
information
(chik
report)
was
also
registered at 5.30 a.m. But P.W-1 states that
police reached the hospital on its own and
one hour later they took him to the police
station to lodge the report. The first
informant thus admits that he did not go
immediately to the Police Station to lodge
the report. The inquest commenced at about
9.15 a.m and in the meantime body was
locked in the Mortuary. There is no
explanation by the prosecution as to when
and on whose information police had
reached the hospital. It is also not explained
as to when the hospital authorities had
reported murder at 5.30 a.m, what action
was taken by the police authorities, i.e.
what was done between 5.30 a.m to 9.15
a.m.? Why the police took 2 & 1/2 hours to
reach the hospital? The inquest indicates
that it commenced after lodging of the F.I.R
as the time and date of the F.I.R and the
name of the first informant has been
mentioned therein. P.W-1 has admitted that
F.I.R was scribed by Kalicharan not on his
dictation rather it was written on the
dictation of the police officer (Daroga Ji) to
whom he narrated the whole story. From
the above conspectus of facts, it is
unbelievable that the First Information
Report came into picture at 5.30 a.m. It
seems to us clearly that the first informant
was on duty when the incident had occured.
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
361
He reached the hospital after 8.00 a.m
when his duty was over or may be
sometime before that on hearing the news
of the murder of his wife and, thereafter, he
went to the police station to lodge the
report. But by that time, police were
already intimated about the murder through
the letter sent by the hospital. In any
eventuality, the time of lodging of Chik
F.I.R could not be same as the time when
letter of the hospital was received in the
police station and both could not be entered
at G.D no.9, 5.30 a.m. In other words, it
seems
impossible
from
the
above
circumstances culled out from the record
that the first information report was lodged
at 5.30 a.m. The whole gamut of evidence
on record clearly prove the F.I.R being an
Ante-timed report having been lodged after
deliberations of the police officer (Station
house Officer) with the first informant. The
first informant has been proved to be a liar
considering all surrounding circumstances
as his testimony being full of concoctions
and contradictions seems a cooked up story.
It seems to us that P.W-1 was projected as
an eye witness by the Investigating Officer
in an overzealous effort to solve the crime.
Had the Investigating Officer entered in the
witness box, some light could have been
thrown on all these aspects bothering the
Court. But unfortunately, that could not
happen. We are, however, of the opinion
that the effort of the prosecution to prove
its case by producing a liar in the witness
box creates not only a scar but a deep dent
in its story. It is always the duty of the
prosecution to prove its case by producing
truthful and trustworthy witnesses may be
only one. The quality and not the quantity
of witnesses is important. Any effort of the
prosecution to prove its case by producing
untrustworthy or untruthful witnesses has
to be viewed seriously. In the instant case,
the prosecution is guilty of bringing false
evidence before a court of law and this act
of it makes its story untrue from the
beginning. The
residue,
that
is
the
testimony of P.W-2, therefore, has to be
sifted very carefully and with greater
circumspection by the Court to assess as to
whether the conviction can be based solely
on the same.

20. It is argued before us on behalf of
the appellant that the decision of the trial
court to base the conviction on the sole
testimony of P.W.-2 is faulty, in as much as,
P.W.-2 cannot but be said to be a tutored
witness. A clear suggestion was given by
the defence to P.W-2 during the course of
examination that she was a tutored witness
which could not be overruled from her
reply. Once it is established that P.W-1, the
creator of the whole story, was telling a lie
and the F.I.R is a result of deliberation, it
cannot be ruled out by all means that P.W-2
was tutored to take the name of the
assailant being accused Mohan. Placing the
abovenoted statement of P.W-2, it is
contended that she was tutored to take the
name of Mohan as the main assailant.
Further, as per the prosecution, there were
three persons who were involved in the
assault, looking to the version of P.W-2, it
is not possible for the prosecution to fix the
liability for murder on accused Mohan and
to prove that other two assailants only
caught hold of deceased. It was, thus, not
justifiable for the trial court to base the
conviction on the testimony of solitary
residue witness P.W-2 who categorically
admitted that she did not see the real
assailant.

21. It is further urged that, the trial
court has rested the conviction on the only
evidence against the appellant which is
voice recognizition by P.W-2, a weak piece
of evidence. Reliance is placed on
362 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of the Kerala High court in
Sainudeen vs State of Kerala reported in
(1992) Cri L.J. 1644 and of the Supreme
Court in Nilesh Dinkar Paradkar vs State
of Maharastra in Criminal Appeal No.537
of 2009 decided on 9th March 2011 as also
of M.P High Court in Pratap Singh vs
State of M.P in Criminal Appeal no.00601
of 2004 decided on 17.5.2017 to urge that
identification of persons by voice is a risky
proposition and it is not safe to base the
conviction on identification of voice alone
as there is always possibility of mistakes in
identifying persons by voice. Accurate
Voice identification is much more difficult
than visual identification. The Courts have
to be extremely cautious in basing
conviction purely on the evidence of Voice
identification. The ability of the individual
to identify voice in general and the
familiarity of the listener with the known
voice; and even a confident recognition of a
familiar voice by a listener, must be
established beyond all reasonable doubts by
cogent, positive, affirmative and assertive
evidence. Voice can also be identified by
means of voice identification parade.

22. It is vehemently contended by the
learned Amicus Curiae that the court below has
not taken due care while basing conviction
solely on the identification of voice of assailant
by P.W-2 who was an old lady of about 70
years at the time of incident. No voice
identification parade was done by the trial court
to satisfy itself that she was able to identify
voice of her neighbour. Submission is that
casual approach adopted by the trial court in
treating the P.W-2 as a truthful and reliable
witness
ignoring
inconsistencies
in
her
deposition has resulted in conviction of the
appellant in absence of any cogent evidence. In
fact the prosecution evidence as a whole is to be
discarded and the appeal deserves to be
allowed.

23. Learned A.G.A, on the other hand,
relying upon the judgment of the Apex Court in
Kripal Singh vs State of U.P reported in 1965
AIR 712 vehemently urged that identification
of the assailant by the injured witness Rajabeti
P.W-2 by voice was possible, in as much as, the
appellant was her neighbour and she was well
acquainted with his voice. It is contended that in
the similar facts and circumstances, the Apex
Court had upheld conviction on the testimony
of witness who asserted that he was able to
recognize
the
assailant
and
his
other
accomplices from their gait and voice. It was
held therein that even in pitch dark night, it is
possible to identify a person through the shape
of his body, clothes, gait, manner of walking
etc., and identification is possible by voice too.
Submission is that the position of law in this
regard is well settled with a long line of
decisions by the Apex Court, one of them being
Kedar Singh and others vs State of Bihar
reported in 1998 SCC (cri) 907.

24. Learned A.G.A further urged that
P.W-2, Rajabeti is an injured witness and
for this reason her testimony on its own has
efficacy and relevancy. The logic is that the
witness who sustained injuries on her body
would prove that she was present at the
place of occurence and had seen the
occurence by herself. Convincing evidence
would be required to discredit an injured
witness. The evidence of an injured witness
must be given due weightage being a
stamped witness as his presence cannot be
doubted.
His
statement
is
generally
considered to be very reliable as it is
unlikely that he spares the actual assailant
in order to falsely implicate some-one else.
The testimony of an injured witness is
accorded special status in law. Moreover,
every discrepancy in the statement of
witness cannot be treated as fatal as a
discrepancy which does not affect the
prosecution case materially cannot create
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
363
an infirmity. Unless there are grounds for
rejection of evidence of an injured witness
on the basis of major contradictions and
discrepancies therein, it should be normally
relied upon.

25. Considering the above, we may
note at the outset, that there is no dispute
about the legal principle with regard to the
identification of the assailant being possible
by voice only and that the evidence of an
injured witness acquired special status in
law has to be given due weightage. That, it
is not possible for the Court to discard the
testimony of an injured witness ordinarily.
However, at the same time there cannot be
a
quarrel
to
the
proposition
that
identification by voice is a weak piece of
evidence. Court has to be extremely
cautious in basing the conviction purely on
the evidence of Voice identification. The
evidence led by the prosecution must be
cogent, positive, affirmative and assertive
and must establish beyond all reasonable
doubts that the witness had ability to
identify voice and additionally there was
sufficient opportunity for the witness to
identify the assailant by voice only. There
cannot be quarrel also to the proposition
that conviction based on the identification
of voice alone is somewhat risky and it will
always depend on the facts of a case as to
what weight has to be attached to a
particular piece of evidence. If the Court is
satisfied about the identification of persons
by evidence of identification of voice
alone, no rule of law prevents its
acceptance as the sole basis for conviction.
In any case, the assessment of prosecution
evidence based on voice idenification has
to
be
made
in
the
surrounding
circumstances of an individual case.

26. It is settled law that the duty of the
Court is to find out truth from the statement
of witnesses as the whole body of the
testimony cannot be rejected because
witnesses were evidently speaking an
untruth
in
some
aspect.
Minor
discrepancies occuring in the statements of
witnesss
due
to
normal
error
of
observation, normal error of memory, due
to lapse of time, due to mental disposition
such as shock and horror at the time of
occurence
cannot
be
given
much
importance. It is often seen that the
witnesses tend to decorate their testimony
so as to make it more acceptable for the
fear of being rejected in a Court of law. An
attempt has, thus, to be made to separate
grain from chaff, truth from falsehood.
Reference Dalbir Singh vs State of
Haryana, (2008) 11 SCC 425.

27. The Apex Court in State of
Rajasthan vs Kalki and anothers reported
in (1981) 2 SCC 752, has held that normal
discrepancies in evidence are always there
even in the testimony of most honest and
truthful witness. The Courts have to label
the category to which discrepancies may be
categorised. Material discrepancies are
those which are not normal and not
expected of a normal person. While normal
discrepancies do not corrode the credibility
of party's case, material discrepancies do
so. That it is 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 or is sceptical on placing
reliance on the testimony of a witness, it
does not necessarily follow as a matter of
law that such evidence must be discarded in
all respects as well. It is held that the
doctrine "falsus in uno, falsus in omnibus'
is not a sound rule for the reason that
hardly one comes across a witness whose
evidence does not contain a grain of untruth
or at any rate exaggerations, embroideries
364 INDIAN LAW REPORTS ALLAHABAD SERIES
or embellishments. Reference Sohrab S/O
Belinayata & Anr vs State of M.P reported
in (1972) 3 SCC 751 and Ugar Ahir vs
State of Bihar reported in AIR 1965 SC
277.

28. Coming to the applicability of the
principle of "falsus in uno, falsus in
omnibus," it was held in Nisar Ali vs State
of U.P reported in AIR 1957 SC 366 that
even if a major portion of evidence is found
to be deficient, residue is sufficient to prove
guilt of an accused. It is the duty of the
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 witnessess cannot be branded as liars
taking aid of the said doctrine. The maxim
"falsus in uno, falsus in omnibus" (false in
one thing, false in everything) has not
received general acceptance in different
jurisdiction in India, nor has this maxim
came to occupy the status of rule of law. It
is merely a rule of caution. All that it
amounts to is that in such cases testimony
may be disregarded, and not that it must be
disregarded. The doctrine merely involves
the question of weight of evidence which a
court may apply in a given set of
circumstances, but it is not what may be
called a 'mandatory rule of evidence."

29. However, it was enunciated by the
Apex Court in Zwinglee Ariel vs State of
M.P reported in AIR 1954 SC 15 and
followed in Balaka Singh vs The State of
Punjab reported in (1975) 4 SCC 511 that
in the process of sifting or assessment of
weight of evidence, where it is not feasible
to separate truth from falsehood, because
grain and chaff are inextricably mixed up
and in the process of separation an
absolutely new case has to be reconstructed
by divorcing essential details presented by
the prosecution completely from the
context and the background against which
they are made, the only available course to
be made is discard the evidence in toto. The
same is true from the observations in
Sohrab also. This principle has further
been noted with approval in a recent
decision of the Apex Court in Dalbir Singh
vs State of Haryana (supra) wherein on
acquittal of other accused persons, it was
urged that the evidence was partisan, lacks
cogency and credibility and could not be
made basis to convict the appellant therein.
In that case, the trial court had directed the
acquittal of the co-accused whereas the
appellant was convicted on the basis of
identification of his voice. The High court
and the Apex Court had held therein that
identification was possible, particularly
when the accused was the grandson of the
witness. Further, reliance was placed
therein on the decision in Anwar Hussain
vs State of U.P reported in (1982) 1 SCC
491, to hold that 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.

30. In light of the above legal
position, coming to the facts of the instant
case, once we have held that the First
Information Report is an Ante-timed report
and
the
prosecution
has
deliberately
presented a false evidence by projecting
husband of deceased as an eye witness we
cannot rule out the possibility of false
implication of the appellant. The F.I.R
3-5 All. Mohan @ Mohan Singh Vs. State of U.P.
365
which is entire edifice and fabric of the
prosecution case has been demolished as it
lost its authenticity. In our opinion, if the
prosecution could go to the extent of
producing a false evidence by projecting
the husband of deceased as an eye witness,
though he was not, it could have added the
name of the appellant also falsely.