# Ram Bhajan & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-10-06
- **Case number:** Criminal Appeal No. 2001 of 1995
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bhajan-anr-in-jail-v-state-of-u-p-44313
- **Pages:** 12

## Headnote

P.W.1 in his evidence tendered during the trial
has fully supported the prosecution case as
spelt out in the F.I.R. on all material points
relating to the occurrence. P.W.2 has fully
corroborated the evidence of P.W.1 on all
material aspects of the matter although their
evidence qua Rinkal being shot by Jitendra (A2)
accidentally may not be believable but on that
score alone, their entire evidence cannot be
thrown out- The maxim "falsus in uno, falsus in
omnibus"
has
neither
received
general
acceptance nor has this maxim come to occupy
the status of rule of law. It is merely rule of
caution. All that it amounts to, is that in such
cases testimony may be disregarded and not
that it must be disregarded. Even if major
portion of evidence is found to be deficient in
case residue is sufficient to prove guilt of an
accused, his conviction can be maintained and it
is the duty of Court to separate grain from chaff
and whether 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 or to be not
wholly reliable - If the statement of P.W.1 was
not recorded by the Investigating Officer
promptly, the defence will not get any benefit
due to any laxity on the part of the Investigating
Officer - The actions of Jitendra (A2) namely
bringing his father's gun from his house, his
firing at deceased Sarvesh although the shot did
not hit him, and then his father snatching the
same from his hands and firing at deceased
Sarvesh amount to acts done in furtherance of a
common intention. Therefore, we do not find
that the trial Judge committed any illegality or
infirmity in convicting Jitendra (A2) u/s 302/34
I.P.C. the prosecution has not been able to
prove by any cogent evidence that Rinkal had
received fire-arm injuries at the hands of
Jitendra (A2). Hence, the conviction of the
accused-appellants recorded u/s 307/34 I.P.C.
cannot be sustained and is liable to be setaside.

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.
Although the injured witness ( PW3) has turned
hostile and neither the medical evidence and
nor the site plan supports the case of the
prosecution that the Accused/Appellants shot
him , but that would not mean that the evidence
of the other witnesses can be discarded on the
point of the Accused/ Appellants having
committed the murder of the deceased.

Criminal Law - Code of Criminal Procedure
1973- Section 161- Delay in recording
statement of witness by the investigating
officer-
Defects
in
investigation-
If
the
statement of P.W.1 was not recorded by the
Investigating Officer promptly, the defence will
not get any benefit due to any laxity on the part
of the Investigating Officer.- It is settled law
6 All. Ram Bhajan & Anr. Vs. State of U.P.
487
that the accused cannot take benefit of the
laxities, omissions and commissions of the
investigating officer.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- The actions of
Jitendra (A2) namely bringing his father's gun
from his house, his firing at deceased Sarvesh
although the shot did not hit him, and then his
father snatching the same from his hands and
firing at deceased Sarvesh amount to acts done
in furtherance of a common intention.- Even
though A2 did not cause any injury to the
deceased but the fact that he fired at the
deceased and then provided the gun to A1 who
shot the deceased, establishes the common
intention of A2 with A1 to commit the offence.

The prosecution has not been able to prove by
any cogent evidence

## Text

_Characters 0–39,956 of 42,460. This is a partial read: ask again with offset=39956 for what follows._

486 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Advocate for the appellant on
payment of usual charges, immediately
thereafter.

4.

List
this
matter
for
final
hearing/disposal on 13.04.2020.
----------
(2020)06ILR A486
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2017

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 2001 of 1995

Ram Bhajan & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.S. Rathore, Sri Awadh Bihari Pandey,
Sri Sarvesh, Sri Vinay Saran, Sri K.K. Singh,
Sri Ghanshyam Chaubey, Sri S.K. Verma

Counsel for the Opposite Party:
A.G.A.

P.W.1 in his evidence tendered during the trial
has fully supported the prosecution case as
spelt out in the F.I.R. on all material points
relating to the occurrence. P.W.2 has fully
corroborated the evidence of P.W.1 on all
material aspects of the matter although their
evidence qua Rinkal being shot by Jitendra (A2)
accidentally may not be believable but on that
score alone, their entire evidence cannot be
thrown out- The maxim "falsus in uno, falsus in
omnibus"
has
neither
received
general
acceptance nor has this maxim come to occupy
the status of rule of law. It is merely rule of
caution. All that it amounts to, is that in such
cases testimony may be disregarded and not
that it must be disregarded. Even if major
portion of evidence is found to be deficient in
case residue is sufficient to prove guilt of an
accused, his conviction can be maintained and it
is the duty of Court to separate grain from chaff
and whether 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 or to be not
wholly reliable - If the statement of P.W.1 was
not recorded by the Investigating Officer
promptly, the defence will not get any benefit
due to any laxity on the part of the Investigating
Officer - The actions of Jitendra (A2) namely
bringing his father's gun from his house, his
firing at deceased Sarvesh although the shot did
not hit him, and then his father snatching the
same from his hands and firing at deceased
Sarvesh amount to acts done in furtherance of a
common intention. Therefore, we do not find
that the trial Judge committed any illegality or
infirmity in convicting Jitendra (A2) u/s 302/34
I.P.C. the prosecution has not been able to
prove by any cogent evidence that Rinkal had
received fire-arm injuries at the hands of
Jitendra (A2). Hence, the conviction of the
accused-appellants recorded u/s 307/34 I.P.C.
cannot be sustained and is liable to be setaside.

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.
Although the injured witness ( PW3) has turned
hostile and neither the medical evidence and
nor the site plan supports the case of the
prosecution that the Accused/Appellants shot
him , but that would not mean that the evidence
of the other witnesses can be discarded on the
point of the Accused/ Appellants having
committed the murder of the deceased.

Criminal Law - Code of Criminal Procedure
1973- Section 161- Delay in recording
statement of witness by the investigating
officer-
Defects
in
investigation-
If
the
statement of P.W.1 was not recorded by the
Investigating Officer promptly, the defence will
not get any benefit due to any laxity on the part
of the Investigating Officer.- It is settled law
6 All. Ram Bhajan & Anr. Vs. State of U.P.
487
that the accused cannot take benefit of the
laxities, omissions and commissions of the
investigating officer.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- The actions of
Jitendra (A2) namely bringing his father's gun
from his house, his firing at deceased Sarvesh
although the shot did not hit him, and then his
father snatching the same from his hands and
firing at deceased Sarvesh amount to acts done
in furtherance of a common intention.- Even
though A2 did not cause any injury to the
deceased but the fact that he fired at the
deceased and then provided the gun to A1 who
shot the deceased, establishes the common
intention of A2 with A1 to commit the offence.

The prosecution has not been able to prove by
any cogent evidence that Rinkal had received
fire-arm injuries at the hands of Jitendra (A2).
Hence, the conviction of the accused-appellants
recorded u/s 307/34 I.P.C. cannot be sustained
and is liable to be set-aside while the conviction
of the Appellants u/s 302/34 IPC is upheld.
(Para 25, 27, 30, 32, 33)

Criminal Appeal partly allowed. (E-3)

Case law relied upon:-

1. Gunnana Pentayya @ Pentadu & ors. Vs St.
of A.P., (2008) 62 ACC 898 SC = (2008) 69 AIC
57 SC

2. Triloki Nath Vs St. of U.P., (2006) 54 ACC 591
SC = (2006) 38 AIC 206

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. Heard Sri Vinay Saran, assisted by
Sri Awadh Bihari Pandey learned counsel
for appellant no.1 Ram Bhajan, Sri
Sarvesh, learned counsel for the appellant
no.2 Jitendra and Kumari Meena, learned
AGA for the State.

2. This criminal appeal has been filed
by the appellants Ram Bhajan and Jitendra
who are father and son against the
judgement and order dated 08.12.1995
passed by VIth Additional District and
Sessions Judge, Kanpur Nagar in S.T. No.
115 of 1993, State Vs. Ram Bhajan and
Another, by which both the appellants were
convicted and sentenced to imprisonment
for life u/s 302/34 I.P.C., five years
rigorous imprisonment and a fine of Rs.
500/-, in default of payment of fine, one
month rigorous imprisonment u/s 307 r/w
34 I.P.C. Both the sentences were directed
to run concurrently.

3. Briefly stated the facts of this case
are that on the basis of the written report
(Ext.Ka.1) given by P.W.1 informant
Banshi at P.S.- Narval, District- Kanpur
Nagar on 19.03.1992 at 1745 hours, Case
Crime No. 28/92 u/s 302/307 I.P.C. was
registered against four persons namely Ram
Bhajan (A1), Jitendra (A2), Moti Lal and
Mauji Lal. In the written report of the
occurrence, it was alleged by P.W.1
informant Banshi that while the festival of
Holi was being celebrated by the residents
of the village- Dalpatpur including Jitendra
(A2) son of Ram Bhajan (A1) and Sarvesh, son
of P.W.1 informant Banshi, a heated argument
took place between them which attracted Ram
Bhajan (A1), Moti Lal and Mauji Lal to the
place where they were arguing and abusing
each other. On noticing his son, Jitendra (A2)
and Sarvesh, son of informant Banshi abusing
each other, Ram Bhajan (A1) exhorted his son
to bring his licensed gun from his house and kill
Sarvesh on which Jitendra (A2) ran to his house
and returned with the licensed gun of his father
Ram Bhajan (A1) and fired at Sarvesh with the
intention of committing his murder. But the
shot fired by Jitendra (A2) hit Rinkal who was
standing next to Sarvesh causing fire-arm
injuries to him, as a result of which he fell on
the ground. Thereafter, Ram Bhajan (A1)
grabbed his gun from the hands of his son
Jitendra (A2) and fired at Sarvesh with the
488 INDIAN LAW REPORTS ALLAHABAD SERIES
object of killing him. The shot so fired by him
hit him on his chest causing fire-arm injury to
him which resulted in his falling down on the
ground and dying instantaneously. The incident
which had taken place in the lane in-front of
house of Raghuvar Dayal was witnessed by
Ramesh Chandra, Uresh Chandra, Brijpal,
Indrapal, Satish and several other villagers. On
being challenged by the villagers, the assailants
retreated from the place of occurrence,
challenging and abusing the villagers. Injured
Rinkal was taken by his maternal grandfather
and maternal uncle for treatment to Ursula
Hospital. Leaving behind the dead body of his
son, the informant went to the police station to
lodge the F.I.R. of the occurrence.

4. The investigation of the case was
entrusted to S.I. Ramesh Chandra Patel who
reached the place of occurrence promptly and
after taking the possession of dead body of
Sarvesh, conducted the inquest and prepared the
inquest report (Ext.Ka.4) and other related
documents, letters addressed to C.M.O and R.I.,
photo nash, challan lash, impression of
specimen seal, etc (Ext.Ka.5 to Ka.10).

5. After completing the inquest, he got
the dead body of Sarvesh sealed and
dispatched
through
Constable
Sahdev
Singh and Ram Charan to morturary for
conducting postmortem. He also inspected
the place of occurrence and prepared its site
plan (Ext.Ka.14). He seized plain and
blood-stained earth from the place of
occurrence and kept the same in two
different containers and then sealed the
same and prepared the recovery memos
(Ext.Ka.11 and Ka.12). He also seized two
empty cartridges of 12 bore from the crime
scene
and
prepared
recovery
memo
(Ext.Ka.13). He recorded the statements of
P.W.1
informant
Banshi
and
other
witnesses and then proceeded to search
Ram Bhajan (A1). On 30.04.1992, he
seized the licensed gun (bearing no.64459)
of Ram Bhajan (A1) from an almirah in his
house in the presence of witnesses, sealed
the same on the spot and prepared its
recovery memo (Ext.Ka.18). The seized
weapon was sent to the ballistic expert for
its examination. The report of the ballistic
expert was received on 31.03.1993. The
postmortem on the dead body of deceased
Sarvesh was conducted by P.W.3 Dr. M.K.
Jain in K.P.M. Hospital, Kanpur Nagar
who also prepared his postmortem report
(Ext.Ka.2).

6. The Investigating Officer after
completing the investigation submitted
charge-sheet (Ext.Ka.16) against both the
accused-appellants u/s 307/34 I.P.C. and
302/34 I.P.C. before Chief Metropolitan
Magistrate, Kanpur Nagar. Since the
offences mentioned in the charge-sheet
were triable exclusively by the Court of
Sessions, Chief Metropolitan Magistrate,
Kanpur Nagar committed the case for trial
of the accused-appellants to the Court of
Sessions Judge, Kanpur Nagar where it was
registered as S.T. No. 115 of 1993, State
Vs. Ram Bhajan and another and made
over for trial from there to the Court of
VIth Additional District and Sessions
Judge, Kanpur Nagar, who on the basis of
material collected during investigation and
after hearing the prosecution as well as
accused-appellants on the point of charge,
framed charge u/s 307/34 I.P.C. and 302/34
I.P.C. against the accused-appellants. The
accused-appellants pleaded not guilty and
claimed trial.

7. The prosecution in order to prove
the charges framed against the accusedappellants examined as many as six
witnesses of whom P.W.1 informant
Banshi, P.W.2 Ramesh Chandra and P.W.4
Rinkal who had received injuries in the
6 All. Ram Bhajan & Anr. Vs. State of U.P.
489
occurrence but had failed to support the
prosecution case and declared hostile, were
examined as witnesses of fact while P.W.3
Dr. M.K. Jain who had conducted the
postmortem on the dead body of Sarvesh
and
proved
his
postmortem
report
(Ext.Ka.2), P.W.5 Ramesh Chandra Patel,
Investigating Officer of the case and P.W.6
Dr. R.B. Gautam who had examined the
injuries of P.W.4 Rinkal and proved his
injury report (Ext.Ka.18) were produced as
formal witnesses.

8. The accused-appellants in their
statements recorded u/s 313 Cr.P.C. alleged
that they were falsely implicated in the
present case due to enmity with the
witnesses. They also alleged that Awadh
Narayana Shukla, Ex-pradhan of the village
was inimical towards them and it was he
who had got the instant case registered
against them pursuant to a conspiracy
hatched by him against them. The accusedappellants did not examine any witness in
defence.

9. Learned VIth Additional District
and Sessions Judge, Kanpur Nagar after
considering the submissions advanced
before him by the learned counsel for the
parties and scrutinizing the evidence on
record, both oral as well as documentary,
convicted the accused-appellant no.1, Ram
Bhajan
and
accused-appellant
no.2,
Jitendra u/s 307/34 I.P.C. and 302/34 I.P.C.
and awarded aforesaid sentences to them
while co-accused Moti Lal and Mauji Lal
were acquitted of all the charges.

10. Hence, this appeal.

11. It has been submitted by Sri
Vinay Saran, learned counsel for the
appellants that the testimonies of the two
witnesses examined during the trial by the
prosecution are inconsistent and do not
inspire confidence in view of the inherent
contradictions in their evidence. The
acquittal of co-accused Moti Lal and Mauji
Lal on the non-acceptance of evidence
tendered by P.W.1 informant Banshi and
P.W.2 Ramesh Chandra to a large extent
warranted
throwing
out
the
entire
prosecution case. In essence prayer was
made to apply the principle of falsus in uno
falsus in omnibus (false in one thing, false
in everything). He further submitted that
the medical evidence on record does not
corroborate the eye-witness account. The
prosecution has not been able to establish
the motive for the accused-appellants to
commit the murder of Sarvesh. The
recording of the statements of the eyewitnesses of the occurrence after 5 or 6
days is clearly indicative of the fact that
none of the so-called eye-witnesses had
neither actually seen the occurrence as they
were neither present in the village on the
date of occurrence nor they were available
for recording of their statements u/s 161
Cr.P.C. till lapse of 4-5 days. Since the
prosecution miserably failed to prove its
case at the trial, neither the recorded
conviction of the accused-appellants nor
the sentences awarded to them can be
sustained.

12. Per contra Kumari Meena, learned
AGA appearing for the State submitted that
the
prosecution
has
succeeded
in
establishing both the charges framed
against
the
accused-appellants
by
leading
cogent
evidence.
P.W.1
informant
Banshi
in
his
evidence
tendered during the trial has fully
supported the prosecution case as spelt
out in the F.I.R. His evidence has been
fully corroborated by P.W.2 Ramesh
Chandra on all material points relating to
the time, place and manner of assault as
490 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the identity of the perpetrators of
the crime. There is no irreconcilable
conflict between the ocular version and
the medical evidence on record. The
prosecution has proved that the murder
of Sarvesh was committed by the
accused-appellants as a fallout of the
fight which had taken place between
them 15 days prior to the occurrence
with regard to a raising of boundary wall
by the accused-appellants on the land of
public passage which was objected to by
the informant by cogent evidence. The
impugned judgement and order do not
suffer from any illegality or infirmity
requiring any interference by this Court.
This appeal lacks merit and is liable to
be dismissed.

13. The only question which arises for
our consideration in this appeal is whether the
prosecution has been able to prove its case
against the accused-appellants beyond all
reasonable doubts or not.

14. Record shows that the occurrence in
which Sarvesh, son of P.W.1 informant Banshi
was allegedly shot dead by Ram Bhajan (A1)
and one Rinkal had received fire-arm injury,
author whereof was Jitendra (A2), had taken
place on 19.03.1992 at about 4 P.M. when the
villagers were celebrating Holi, the festival of
colours. The F.I.R. of the incident was promptly
lodged by P.W.1 informant Banshi, father of
deceased Sarvesh on the same day at 1745
hours. The postmortem report on the dead body
of Sarvesh was conducted by P.W.3 Dr. M.K.
Jain in K.P.M. Hospital, Kanpur Nagar on
20.03.1992 who had also prepared his
postmortem report (Ext.Ka.2).

15. P.W.1 informant Banshi, in his
evidence recorded before trial court, apart
from supporting the prosecution case as
spelt out by him in the F.I.R., further
deposed that 15 days prior to the incident,
accused Moti Lal and Mauji Lal had
encroached
upon
the
public
passage
existing in the south of the village by
raising a boundary wall thereon which was
demolished by his sons Dinesh and Sarvesh
after Moti Lal and Mauji Lal had refused to
remove the aforesaid wall. On account of
demolition of the aforesaid wall by Dinesh
and Sarvesh, sons of P.W.1 informant
Banshi, the accused Moti Lal, Mauji Lal
and Ex-pradhan of the village, Awadh
Narayana Shukla had become inimical
towards the first informant and his family
members. Due to intervention of Awadh
Narayana
Shukla,
the
matter
was
compromised and it was agreed that Moti
Lal would reconstruct the wall after leaving
the area of passage on which he had earlier
encroached. However, next day Ram
Bhajan (A1), Moti Lal and Mauji Lal again
constructed the boundary wall on the same
place where it was existing earlier and after
constructing it, accused Moti Lal, Mauji
Lal and Ram Bhajan (A1) challenged the
first informant and his family members to
dare to demolish the wall constructed by
them on the village passage. He also
deposed that he got the written report
scribed by Dinesh Kumar.

16. P.W.2 Ramesh Chandra, the other
eye-witness of the occurrence deposed
before the trial court that the incident had
taken place in the village on 19.03.1992
when the villagers were celebrating Holi in
the southern corner of the lane running east
to west in-front of the house of Raghuvar
Dayal where Sarvesh and Jitendra were
arguing. Moti Lal, Mauji Lal and Ram
Bhajan
also
reached
the
place
of
occurrence where Sarvesh and Jitendra
were arguing and challenged Sarvesh and
Ram Bhajan (A1) ordered Jitendra to bring
his licensed gun from his house on which
6 All. Ram Bhajan & Anr. Vs. State of U.P.
491
Jitendra went to his house and returned
with the licensed gun of his father and fired
at Sarvesh from a place which was at a
distance of 4-5 paces from the door of his
house. The gunshot hit a small boy Rinkal
who was standing next to Sarvesh. As a result,
he fell on the ground and started wriggling with
pain. Thereafter, Ram Bhajan snatched his gun
from his son and on the exhortation of Moti Lal
and Mauji Lal, Ram Bhajan reloaded his gun
and fired a shot at Sarvesh which stuck him on
his chest, as a result of which he fell on the
ground and died instantaneously. He further
deposed that the distance between the place
from where Ram Bhajan had fired and the spot
where Sarvesh was hit was about 14-15 paces
approximately. The incident, apart from
himself, was witnessed by Uresh Chandra,
Brijpal, Indrapal, Satish and several other
villagers. He and the other persons present at
the place of occurrence had tried to catch the
accused but since one of them, Ram Bhajan
(A1) was armed with a gun and had threatened
anyone who dared to follow them, with dire
consequences, they retreated and the accused
fled towards the field in the east, hurling abuses
at the villagers. He also deposed that about 15
days before the occurrence, Moti Lal and Mauji
Lal, the cousin brothers of Ram Bhajan, in the
process of constructing boundary wall of their
house, had encroached upon some portion of
the village passage on account of which
deceased Sarvesh, his family members and
family members of Moti Lal had quarreled with
each other and the dispute was referred to ExPradhan of the village, Awadh Narayana
Shukla who after inspecting the disputed site
had succeeded in pacifying both the parties. But
the accused-appellant Ram Bhajan did not
abide with compromise and declared that he
was going to build his boundary wall on the
same land and dared anybody to stop him.
Injured Rinkal was taken to Kanpur for
treatment by his maternal uncle and maternal
grandfather. P.W.2 identified the accused
present in the Court room as the same persons
who had committed the murder of Sarvesh and
shot Rinkal.

17. Dr. M.K. Jain, who had conducted
the postmortem on the cadaver of Sarvesh
on 20.03.1992 in K.P.M Hospital, Kanpur
Nagar, was examined as P.W.3. He proved
the postmortem report of the deceased
(Ext.Ka.2). The postmortem report of the
deceased indicates following ante-mortem
injuries on his dead body:-

1) Multiple fire-arm wounds of
entries in number 19 left side of chest and
abdomen

2) Multiple wounds of entries
twenty-four in number over right side of
chest and abdomen

3) Two wounds of entries over left
upper part of front of thigh

4) Three wounds of entries over
right upper front of thigh

5) Five wounds of entries over
left front of upper arm

6) Three wounds of entries over
left front of fore arm

7) Two wounds of entries over
right shoulder

8) Five wounds of entries over
back of right fore arm

9) Two wounds of entries over
right submental area

10) One wound of entry over
right eye.

All the above wounds are size
0.25 to 8 cm round with blackening and
skin, muscle to cavity deep.

18. He deposed that the shot was fired
from a considerable distance. But he was
not in a position to say with precision about
the distance from which the shot was fired
as the aforesaid issue fell within the domain
of a ballistic expert. As regards the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
presence of blackening around the wound,
he deposed that it could be due to the heat
of the pellets. He further deposed that it
was possible that the deceased had died on
19.03.1992 at about 4 P.M. The antemortem injuries found on the dead body of
Sarvesh could be caused by one or two
gunshots. Thus, from the evidence of
P.W.3, it is proved that the deceased had
died as a result of the ante-mortem injuries
received by him on 19.03.1992 at about 4
P.M. which could have been caused by a
single shot. In his cross-examination on
page 35 of the paper book, he deposed that
when a shot is fired from a distance of 4-5
feet then the blackening is caused around
the wound due to gun powder.

19. Rinkal, who was also allegedly
injured in the incident in which Sarvesh had lost
his life, was examined as P.W.4. However, he
in his evidence tendered before the trial court
failed to attribute the gunshot which had caused
fire-arm injuries to any of the accused. Rather
he deposed that he had not seen the person who
had shot him because as soon as he received the
gunshot injury, he became unconscious and he
was not aware as to who had died in the
occurrence. P.W.4 Rinkal was declared hostile
on the request of the prosecution and crossexamined by ADGC (Criminal) with the
permission of trial court. Upon being
confronted with his statement recorded u/s 161
Cr.P.C. in which he had stated that Jitendra
(A2) had fired at him, he denied having made
any such statement before the Investigating
Officer and he could not say why the
Investigating Officer had recorded aforesaid
fact in his statement recorded u/s 161 Cr.P.C.
He denied that he knew the accused-appellants
who were present in the Court.

20. P.W.5 S.I. Ramesh Chandra Patel, the
Investigating Officer of the case in his evidence
tendered during the trial proved the check F.I.R.
(Ext.Ka.3) which was in the hand-writing of
Head Moharrir. He proved the inquest report
(Ext.Ka.4), letters addressed to the C.M.O. and
R.I., photo nash, challan lash and other
documents (Ext.Ka.5 to Ka.10). He also proved
the recovery memos of plain, simple earth and
blood-stained earth and two empty cartridges of
12 bore collected from the place of occurrence
(Ext.Ka.11, Ka.12 and Ka.13). He also proved
the site plan of the occurrence (Ext.Ka.14) and
the charge-sheet (Ext.Ka.16). He further
deposed that on 30.04.1992 on the information
received by him from the police informer, he
seized the licensed gun of Ram Bhajan from his
house, Serial No. whereof was 64459 and
deposited it in the malkhana of the police
station. He proved the check F.I.R. of the case
registered against the accused-appellant no.1,
Ram Bhajan under the Arms Act and the
carbon copy of the G.D. of the case which were
in the hand-writings of Constables Sahdev
Singh and Ram Charan as (Ext.Ka.17) and
recovery memo of the gun (Ext.Ka.18).

21. Dr. R.B. Gautam, who had
examined the injuries of P.W.4 Rinkal was
produced as P.W.6. He in his evidence
tendered before the trial court proved the
injury report of the injured Rinkal. The
injury report of the injured Rinkal indicated
following injuries on his person:-

1) Fire-arm wound of entry 0.3
cm x 0.3 cm, depth not measured, on right
side of forehead 4 and 1⁄2 cm above the
eyebrow. Blood oozing out from wound.

2) Fire-arm wound of entry 0.3
cm x 0.3 cm, on outer portion of left
forearm and 3 and 1⁄2 cm below the
shoulder

3) Fire-arm wound of entry 0.2
cm x 0.2 cm, from behind the chest 4 cm
below the shoulder
6 All. Ram Bhajan & Anr. Vs. State of U.P.
493

4) Fire-arm wound of entry 0.1
cm x 0.2 cm, on right arm 6 cm below the
elbow. Blood oozing out from the wound.

5) Fire-arm wound of entry 0.4
cm x 0.4 cm, depth not measured which
was on upper part of the abdomen on
epigastrium

6) Fire-arm wound of entry 0.3
cm x 0.3 cm, on upper left side of abdomen
which was 20 cm below the auxila

7) Fire-arm wound of entry 0.2
cm x 0.2 cm, on the lower part of abdomen
which was 10 cm below the navel

22. Both P.W.1 informant Banshi and
P.W.2 Ramesh Chandra were crossexamined extensively by the defence
counsel but their evidence on the point of
deceased Sarvesh having been shot by Ram
Bhajan (A1) has throughout remained
clinching
and
consistent.
Both
the
witnesses have proved the presence of each
other at the time and place of occurrence.
Learned counsel for the appellants has
relied heavily upon the site plan and the
medical evidence on record, namely the
postmortem report of the deceased Sarvesh
and the injury report of Rinkal for proving
that none of the two witnesses had seen the
incident. Inviting our attention to the antemortem injuries noted by P.W.3 Dr. M.K.
Jain on the dead body of the deceased and
recorded by him in the postmortem report
(Ext.Ka.2) which indicated the presence of
blackening around the multiple fire-arm
wounds of entry, 19 in number over left
side of chest and abdomen, multiple firearm wounds of entry, 24 in number, over
right side of chest and the deceased's
abdomen, two fire-arm wounds of entry
over left upper part of front of thigh, three
fire-arm wounds of entry over right upper
part of front of thigh, five fire-arm wounds
of entry over left front of upper arm, three
fire-arm wounds of entry over left front of
fore arm, two fire-arm wounds of entry
over right shoulder, five fire-arm wounds
of entry over back of right fore arm, two
fire-arm wounds of entry over right
submental area and one fire-arm wound of
entry over right eye, he submitted that the
blackening
around
the
wounds
unequivocally suggested that the fire was
shot at the deceased from a distance of not
more than 4-5 paces. He further invited our
attention to the injury report of P.W.4
Rinkal which indicated that he had received
7 fire-arm wounds of entry but no
blackening was present around his wounds
which according to the learned counsel for
the appellants indicated that the shot which
had caused fire-arm injuries to injured
Rinkal was not shot from the same place
from where the deceased was shot at and
Rinkal was not standing next to Sarvesh
when he was shot. In the site plan of the
place
of
incident
prepared
by
the
Investigating Officer, the spot where the
dead body of deceased Sarvesh was found
lying, has been shown by letter 'A'. The
place where Rinkal received gunshot injury
is denoted by letter 'XB'. The place from
where the accused had fired at the injured
and the deceased, has been shown by letter
'C'. The distance between the point 'C' and
point 'A' and 'XB' has been mentioned as
27 paces which comes to about 68 feet.

23. The question which arises for our
consideration is whether the consistent case
of prosecution that when Rinkal was shot
unintentionally by Jitendra (A2), he was
standing next to Sarvesh and on being shot,
he immediately fell on the ground and
became unconscious and thereafter Ram
Bhajan snatched the gun from Jitendra (A2)
and shot Sarvesh, stands totally demolished
in view of the factual position that dead
body of Sarvesh was found lying at a
distance of about 54 paces from the place
494 INDIAN LAW REPORTS ALLAHABAD SERIES
where Rinkal was shot, as is evident from
the perusal of the site plan. If both the
accused-appellants had fired at deceased
Sarvesh and injured Rinkal from the same
point and both the victims were standing at
the same distance from the place where the
accused had stationed themselves, then the
dead body of the deceased Sarvesh should
have been found lying at the same place
where Rinkal was shot or vice-versa. But it
is not like that.

24. Kumari Meena, learned AGA for
the State by inviting our attention to the
diagram of the dead body prepared at the
time of the inquest, submitted that the
blackening present around the fire-arm
wounds found on the dead body of Sarvesh
was due to the heat of the pellets which had
entered into his body after the shot was
fired. The blackening in this case is not due
to the gun powder. If the blackening was
present around the area enclosing the
multiple fire-arm wounds found on the
dead part of the deceased's dead body, then
in that case it could be said that the shot
was fired from a close distance. In the
instant case, the presence of blackening
around the pellet entry wounds does not
indicate that the shot was fired from a close
range and hence there is no discrepancy
between the ocular version and the medical
evidence on record. However, Kumari
Meena has not been able to explain how the
injured Rinkal had received gunshot
injuries at a place which was at the distance
of about 54 paces from the spot where the
deceased was shot.

25. The moot question which arises
for our consideration is whether the entire
prosecution case is liable to be discarded
due to the aforesaid inconsistencies in the
evidence led by the prosecution and also on
the ground of non-acceptance of evidence
tendered by P.W.1 informant Banshi and
P.W.2 Ramesh Chandra qua co-accused
Moti Lal and Mauji Lal which resulted in
their acquittal. The evidence of witnesses
of fact produced during the trial may not be
found to be reliable on the point of Rinkal
receiving injuries as a result of the gunshot
which was aimed by Jitendra (A2) at
Sarvesh, accidentally hitting him, in view
of the above inconsistencies and the
evidence of Rinkal himself and also with
regard to the participation of co-accused
Moti Lal and Mauji Lal in the occurrence.
But whether the evidence of the two
prosecution witnesses on the point of
deceased Sarvesh having been shot by Ram
Bhajan (A1) after snatching his gun from
his son's hands which he had brought from
his house on his father Ram Bhajan's order
is also liable to be disbelieved. The
substantive evidence on record consists of
the statements of P.W.1 informant Banshi
and P.W.2 Ramesh Chandra, recorded
during the trial. We have already held that
P.W.1 in his evidence tendered during the
trial has fully supported the prosecution
case as spelt out in the F.I.R. on all material
points relating to the occurrence. P.W.2 has
fully corroborated the evidence of P.W.1
on all material aspects of the matter
although their evidence qua Rinkal being
shot by Jitendra (A2) accidentally may not
be believable but on that score alone, their
entire evidence cannot be thrown out in
view of the principle of law laid down by
the Apex Court in the case of Gunnana
Pentayya @ Pentadu and others v. State
of A.P., 2008 (62) ACC 898 (SC) = 2008
(69) AIC 57 (SC). The Apex Court in
paragraph 15 of its judgement rendered in
the aforesaid case has held as hereunder:-

"The next plea as noted above
related to the acquittal of number of
persons. Stress was laid by the accused-
6 All. Ram Bhajan & Anr. Vs. State of U.P.
495
appellants
on
the
non-acceptance
of
evidence tendered by P.W.1 to a large
extent to contend about desirability to
throw out entire prosecution case. In
essence prayer is to apply the principle of
falsus in uno falsus in omnibus" (false in
one thing, false in everything). This plea is
clearly untenable. Even if major portion of
evidence is found to be deficient, in case
residue is sufficient to prove guilt of an
accused, his conviction can be maintained.
It is the duty of Court to separate grain
from chaff. Where chaff can be separated
from grain, it would be open to the Court to
convict an accused notwithstanding the fact
that evidence has been found to be
deficient, or to be not wholly credible.
Falsity of 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 or
witnesses cannot be branded as liar(s). The
maxim "falsus in uno falsus in omnibus"
has not received general acceptance nor has
this maxim come to occupy the status of
rule of law. It is merely 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' (See
Nisar Ali v. The State of Uttar Pradesh,
AIR 1957 SC 366). In a given case, it is
always open to a Court to differentiate
accused who had been acquitted from those
who were convicted where there are a
number
of
accused
persons
(See
Gurucharan Singh and another v. State
of Punjab, AIR 1956 SC 460). The
doctrine is a dangerous one specially in
India for if a whole body of the testimony
were to be rejected, because witness was
evidently speaking an untruth in some
aspect, it is to be feared that administration
of criminal justice would come to a deadstop. Witnesses just cannot help in giving
embroidery to a story, however, true in the
main. Therefore, it has to be appraised in
each case as to what extent the evidence is
worthy of acceptance, and merely because
in some respects the Court considers the
same to be insufficient for placing reliance
on the testimony of a witness, it does not
necessarily follow as a matter of law that it
must be disregarded in all respect as well.
The evidence has to be sifted with care.
The aforesaid dictum is not a sound rule for
the reason that one hardly comes across a
witness whose evidence does not contain a
grain of untruth or at any rate exaggeration,
embroideries or embellishment."

26. In Triloki Nath v. State of U.P.,
2006 (54) ACC 591 (SC) = 2006 (38) AIC
206 it has been observed by the apex Court
as under:-

"30. 'Falsus in uno, Falsus in
omnibus' is not a rule of evidence in
criminal trial and it is the duty of the Court
to disengage the truth from falsehood, to
sift the grain from the chaff."

27. Thus, what follows from the
reading of the aforesaid law reports is that
the maxim "falsus in uno, falsus in
omnibus" has neither received general
acceptance nor has this maxim come to
occupy the status of rule of law. It is
merely 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. Even if major portion of
evidence is found to be deficient in case
residue is sufficient to prove guilt of an
496 INDIAN LAW REPORTS ALLAHABAD SERIES
accused, his conviction can be maintained
and it is the duty of Court to separate grain
from chaff and whether 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 or to be not
wholly reliable.

28. After carefully scrutinizing the
evidence of P.W.1 and P.W.2, we find that
there evidence on the point of deceased
having been shot dead by Ram Bhajan (A1)
inspires full confidence. The defence has
neither challenged the time nor place or
manner of incident qua deceased Sarvesh.

29. Another circumstance which has
been relied upon by the learned counsel for
the appellants for proving that P.W.1
informant Banshi was not present at the
place of occurrence is that the statements of
P.W.1 informant Banshi u/s 161 Cr.P.C.
was recorded by the Investigating Officer
after 5-6 days of the occurrence.

30. If the statement of P.W.1 was not
recorded by the Investigating Officer
promptly, the defence will not get any
benefit due to any laxity on the part of the
Investigating Officer. Moreover, it is
proved from the G.D. entry (Ext.Ka.4) that
the written report of the occurrence was
given by P.W.1 Banshi himself at P.S.-
Narval, District- Kanpur Nagar on the basis
of which Case Crime No. 28/92 u/s
302/307 I.P.C. was registered against the
accused-appellants. The defence has not
challenged the aforesaid entry recorded in
G.D. (Ext.Ka.4).

31. As far as motive in this case is
concerned, it is true that the same has not
been mentioned in the F.I.R. but P.W.1
informant Banshi in his examination-inchief has categorically deposed that about
15 days before the occurrence, Moti Lal
and Mauji Lal, cousin brothers of Ram
Bhajan
(A1)
while
constructing
the
boundary
wall
of
their
house
had
encroached upon some portion of the
common passage in the south of the village
to which deceased Sarvesh and his family
members had objected and requested them
to remove the wall. The informant's son
and deceased Sarvesh had demolished the
boundary wall when they refused. The
dispute was referred to Awadh Narayana
Shukla, Ex-Pradhan of the village who had
persuaded the parties to enter into some
kind of compromise under which Moti Lal
and Mauji Lal had agreed to reconstruct
their boundary wall after leaving the area of
public passage. But the accused-appellants
did not abide with the terms of the
compromise
and
Ram
Bhajan
(A1)
reconstructed the boundary wall on the
same place where he had constructed the
boundary wall earlier and thereafter he had
threatened anyone including Ex-Pradhan,
Awadh Narayana Shukla, who dared to
demolish the boundary wall with dire
consequences and on the account of the
aforesaid
enmity,
the
offence
was
committed
by
the
accused-appellants.
P.W.2 Ramesh Chandra has substantially
corroborated the evidence of P.W.1 on the
aforesaid aspect of the matter. Thus, we
find that the prosecution has also succeeded
in proving the motive for the accusedappellants to commit the murder of the
deceased.

32. The question which arises for our
consideration next is whether the conviction of
Jitendra (A2) recorded by the trial court u/s 302
I.P.C. by invoking aid of Section 34 of the
I.P.C. can be maintained or not as admittedly
Jitendra (A2) has not caused any injury to the
deceased. There is no evidence on record
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
497
showing that Jitendra (A2) had exhorted Ram
Bhajan (A1) to kill Sarvesh. The incriminating
circumstances against him which appear to
have weighed with the trial court while
convicting Jitendra (A2) are that on the
command of his father Ram Bhajan, (A1),
while deceased Sarvesh and Jitendra (A2) were
arguing with each other, to get his licensed gun
from his house, he had gone to his house and
returned with his father's licensed gun and had
fired at deceased Sarvesh at the instigation of
his father. But the shot fired by him instead of
hitting Sarvesh had struck P.W.4 Rinkal. We
have already held that there is no reliable
evidence on record proving the aforesaid part of
occurrence.