ISRAR versus STATE OF U.P.

Citation: [2004] SUPP. 6 S.C.R. 695 · Decided: 06-12-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

.. 
ISRAR 
A 
V. 
STATE OF U.P. 
DECEMBER 6, 2004 
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
B 
Penal Code, 1860 : 
Section 304 read with section 34-Conviction under, on basis 
of testimony of witnesses-Order upheld by High Court-Justification , C 
of-Held: Evidence of witnesses being a close relative and consequently 
being a partisan witnesses cannot be discarded-Falsity of particular 
material witness does not throw the prosecution case-Further, the evidence 
describes that the accused had common intention to cause death of 
deceased-Also light facilitate identification of accused and the dying D 
declaration does not suffer from any infirmity-Hence, conviction justified-
Evidence Act, 1872-Sections 3 and 34. 
Section 34-Application of-General principals-Discussed. 
Maxim : 
"Falsus in uno falsus in omnibus"-App/icability of-Discussed. 
According to the prosecution, there was previous enmity between 
the parties. On the date of occurrence at night when Z was returning 
home along with PW-2, in front of the mosque, appellant-accused 
caught hold of Z from back and his nephew inflicted blows on him. PWs 
- 3, 4, 5 rushed to the spot and saw the occurrence and also tried to 
intervene. Z was taken to the hospital. Case was registered, and his 
dying declaration was recorded. He died two days thereafter. Autopsy 
E 
F 
was conducted and cause of death was recorded as peritonitis and G 
broncho pneumonia. Trial Court recorded evidence. Except 
PW-2 other witnesses narrated the incident as witnessed by them. Trial 
Court convicted and sentenced the appellant and his nephew under 
section 302 read with section 34 IPC. High Court upheld the order. 
Hence the present appeal. 
H 
695 
A 
B 
696 
SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R. 
Appellant-accused contended that the eye witnesses being partisan 
witnesses, their evidence should be discarded; that the principle of 
''falsus in uno falsus in omnibus" is applicable; that it could not be 
established that the accused had any common intention to cause death 
of the deceased, thus section 34 has no application; that there was no 
light for facilitating the identification of the accused; and that the cause 
of death was due to peritonitis and broncho pneumonia and as such with 
proper medical treatment and care, life of the deceased could have been 
saved. 
Respondent-State contended that merely because the witnesses 
C were friends or relatives of the accused, their credible and cogent 
evidence cannot be discarded; and tltat the part played by the appellant 
has been vividly described, therefore, Section 34 IPC has been rightly 
applied. 
D 
Dismissing the appeal, the Court 
HELD : 1.1. Relationship is not a factor to affect the credibility of 
a witness. It is more often than not that a relation would not conceal 
actual culprit and make alleg~tions against an innocent person. 
Foundation has to be laid if plea of false implication is made. In such 
E cases, the court had to adopt a careful approach and analyse evidence 
to find out whether it is cogent and credible. Thus, it cannot be said that 
the witness being close relative and consequently a partisan witness, the 
evidence should not be relied upon. [701-F-G; 702-E] 
F 
Dalip Singh and Ors. v. State of Punjab, AIR (1953) SC 364; Guli 
Chand and Ors. v. State of Rajasthan, [1974) 3 SCC 698; Masalti and Ors. 
v. State of U.P., AIR (1965) SC 202; State of Punjah v. Jagir Singh, AIR 
(1973) SC 2407 and Lehna v. State of Haryana, [2002) 3 SCC 76, referred 
to. 
G 
2.1. 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 to prove guilt of other accused persons. Falsity of 
particular material witness or material particular would not ruin it 
H from the beginning to end. [703-E-F] 
.. 
ISRAR v. STATE 
697 
2.2. The maxim 'fa ls us in uno falsus in omnibus" (false in one thing, A 
false in everything) has no application in India. The maxim has not 
received general acceptance nor it has come~ to occupy the status of rule 
of law. It is merely a rule of caution. All that it amounts to, is that in 
such cas~~ testimony may be disregarded, and not that it must be 
disregarded. The doctrine merely involves the question of weight of B 
evidence which a Court may apply in a given set of circumstances, but 
it is not what may be called 'a mandatory rule of evidenc

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