RAMESH HARIJANversusSTATE OF U.P.

                          [2012] 6 S.C.R. 688


A                         RAMESH HARIJAN
                                    v.
                           STATE OF U.P.
                 (Criminal Appeal No. 1340 of 2007)
                             MAY 21, 2012
B
          [DR. 8.S. CHAUHAN AND DIPAK MISRA, JJ.]

        Penal Code, 1860 - ss. 302 and 376 - Rape and murder
  of a minor girl aged 5-6 years - Deceased last seen with the
C accused by two witnesses - Recovery of the part of bed sheet
  having blood and semen, in the presence of panch witnesses
  - Medical evidence supporting prosecution case - Acquittal
  by trial court - Conviction by High Court - On appeal, held:
  Appellate court to interfere with acquittal order only in
D exceptional cases - In the instant case High Court rightly
  interfered with acquittal order - Acquittal order by trial court was
  illegal, unwarranted and was based on mis-appreciation of
  evidence as it gave undue weightage to unimportant
  discrepancies and inconsistencies which resulted in
E miscarriage of justice.
         Criminal Trial - Benefit of doubt - Held: The doubt should
    be reasonable based upon reason and common sense and
    not an imaginary, trivial or merely possible doubt - The duty
    of the court is to ensure that miscarriage of justice is avoided.
F
        Witness - Hostile witness - Evidentiary value - Held:
    Evidence of hostile witness cannot be discarded as a whole -
    Relevant parts thereof which are admissible in law, can be
    used - Evidence.
G
        Maxim: 'Falsus in uno falsus in omnibus' - Applicability.

       · The appellant-accused was prosecuted for having
    raped and caused death of minor girl aged 5-6 years. The

H                                 688
        RAMESH HARIJAN v. STATE OF U.P.                 689


prosecution case was that PW-2 (mother of the deceased) A
lodged an FIR alleging that the deceased was raped and
killed by the appellant-accused, when the deceased with
her blind grandmother was sleeping in the house of the
accused. She also made a request to exhume the dead
body of the decease as the same was buried. As per the B
post-mortem report of the dead body, death was due to
shock and hemorrhage as a result of ante-mortem vaginal
injuries. Case was registered against the accused u/ss.
302 and 376 IPC, on the basis of the post-mortem report.
Trial Court acquitted the accused, of both the charges. c
The appeal preferred by the State was allowed by High
Court, convicting the accused for both the charges.
Hence, the present appeal by the accused.

     Appellant-accused contended that the High Court
committed an error in reversing the acquittal order; that D
there was no evidence to establish that the deceased
used to sleep in the house of appellant or the appellant
had the opportunity to commit the offence; that the
evidence of PW1 (the scribe of the FIR), PWs 7 and 8 (the
alleged eye-witnesses to the commission of offence) E
which have been relied upon by the High _Court, cannot
stand judicial scrutiny as these witnesses were
motivated; that depositions of PWs 7 and 8 was liable to
be discarded as a whole as there were improvements in
their depositions, and that other witnesses also could not F
be relied upon as they turned hostile.

    Dismissing the appeal, the Court

    HELD: 1. Only in exceptional cases, where there are
compelling circumstances and the judgment in appeal is          G
found to be perverse, the appellate court can interfere
with the order of the acquittal. The appellate court should
bear in mind the presumption of innocence of the
accused and further that the trial court's acquittal bolsters
                                                                H
    690      SUPREME COURT REPORTS             (2012] 6 S.C.R.

A   the presumption of innocence. Interference in a routine
    manner where the other view is possible, should be
    avoided, unless there are good reasons for interference.
    The acquittal in the instant case by the trial court was
    totally illegal, unwarranted and based on mis-
8   appreciation of evidence for the reason that the court had
    given undue weightage to unimportant discrepancies
    and inconsistencies which resulted in miscarriage of
    justice. Thu·s, the High Court was fully justified in
    reversing the order of acquittal. [Paras ·16 and 27] [703-
C   A-B; 709-A-B]

         State of Rajasthan v. Talevar and Anr. AIR 2011 SC
    2271: 2011 (6)SCR 1050; State of UP. v. Mohd. lqram and
    Anr. AIR 2011 SC 2296: 2011 (6) SCR 1017; Govindaraju
    @ Govinda v. State by Srirampuram Police Station and Anr.
D   (2012) 4 SCC 722; State of Haryana v. Shakuntla and Ors.
    (2012) 4 SCALE 526 - relied on.

          2. The trial court committed an error in recording the
    finding of fact that the thatched house of roof of the
E   maternal grandmother of the deceased had fallen and she
    as well as the deceased used to sleep in the house of the
    appellant/accused which was in very close vicinity. The
    trial court has not made any reference to the depositions
    of PW.2 and also of PW.1 in respect to this fact. DW.1 has
F   stated that on the day of occurrence, the deceased and
    her grandmother did not sleep in the house of the
    accused, cannot be taken into consideration so far as this
    issue is concerned, because he did not say that he was
    present on that day in the village. The defence also did
G   not cross-examine PW. 1 and P.W. 2 on this issue. [Para
    ~ 7] [703-E-H]

       3. The trial court ought not to have drawn adverse
  _inference for not examining the grandmother of the
  prosecution. It has come on record that she was an old,
H infirm and totally blind woman and it was for this reason
        RAMESH HARIJAN v. STATE OF U.P.                691


that the deceased was left for her assistance. Thus, the A
adverse inference drawn by the trial court on this count
is unwarranted and uncalled for. [Para 17] [704-A-B]
     4. The trial court held that PW.1 had been inimical to
the accused/appellant and his family for the reason that ·
                                                              8
appellant's father had been working in the agricultural
field of the said witness and after joining the service,
appellant's father had rendered financial help to other
poor persons of the village and thus those poor persons
were not available for work to the said witness. In this
regard, the defence has examined DW.1 who had C
deposed that his family was also looking after the
agricultural work of PW 1, but 8 years prior to the date of
incident. He had also left the village and opened a beetle
shop in the city after getting financial aid from appellant's
father. Such an evidence is required to be examined in D
the light of attending circumstances and particularly
taking into consideration the proximity of time. In case the
appellant's father had left working in the field of the
witness 14 years prior to the date of incident and the
family of OW 1 has left 8 years prior to the said date, the E
time gap itself falsifies the testimony, for the reason that
the time gap is a factor of paramount importance in this
regard. More so, it is not the defence case that any other
family or labour was available in the village to look after
the agricultural work of the said witness. [Para 17] [704- F
B-G]
     5. The recovery of part of the sheet and white clothes
having blood and semen as per the FSL report has been
dis-believed by the trial court in view of the fact that PW.5
and PW.10 did not support the prosecution case like G
other witnesses who did not support the last seen theory.
The trial court failed to appreciate that both the said
witnesses, had admitted their signature/thumb
impression on the recovery. The factum of taking the
material exhibits and preparing of the recovery memo H
    692      SUPREME COURT REPORTS            [2012] 6 S.C.R.


A   with regard to the same and sending the cut out portions
    to the Serologist who found the blood and semen on
    them is not disputed. The serological report also revealed
    that the vaginal swab which was taken by the doctor was
    also human blood and semen stained. [Para 17] [704-H;
B   705-A-C]

         6. The evidence of a prosecution witness cannot be
    rejected in toto merely because the prosecution chose to
    treat him as hostile and cross examined him. The
    evidence of such witnesses cannot be treated as effaced
C   or washed off the record altogether, but the same can be
    accepted to the extent that their version is found to be
    dependable on a careful scrutiny thereof. [Para 18] [705-
    0-E]

D      Bhagwan Singh v. The State of Haryana AIR 1976 SC
  202: 1976 (2) SCR 921; Rabindra Kumar Dey v. State of
  Orissa AIR 1977 SC 170: 1977 (1) SCR 439; Syad Akbar v.
  State of Karnataka AIR 1979 SC 1848: 1980 (1) SCR 95;
  Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR
E 1991 SC 1853: 1991 (3) SCR 1; State of U.P. v. Ramesh
  Prasad Misra and Anr. AIR 1996 SC 2766: 1996 (4) Suppl.
  SCR 631; Batu Sonba Shinde v. State of Maharashtra (2002)
  7 SCC 543: 2002 {2) Suppl. SCR 135; Gagan Kanojia and
  Anr. v. State of Punjab (2006) 13 SCC 516; Radha Mohan
F Singh @ Lal Saheb and Ors. v. State of U.P. AIR 2006 SC
  951: 2006 (1) SCR 519; Sarvesh Narain Shukla v. Daroga
  Singh and Ors~ AIR 2008 SC 320: 2007 (11) SCR 300;
  Subbu Singh v. State by Public Prosecutor (2009) 6 SCC
  462: 2009 (7) SCR 383; C. Muniappan and Ors. v. State of
  Tamil Nadu AIR 2010 SC 3718: 2010 (10) SCR 262;
G Himanshu@ Chintu v. State (NCT of Delhi) (2011) 2 SCC
  36: 2011 (1) SCR 48 - relied on.

         7. Undoubtedly, there may be some exaggeration in
    the evidence of the prosecution witnesses, particularly,
H   that of PW.1, PW.7 and PW.8. However, it is the duty of
        RAMESH HARIJAN v. STATE OF U.P.                  693


the court to unravel the truth under all circumstances.         A
Even if major portion of the evidence is found to be
deficient, in case residue is sufficient to prove guilt of an
accused, it is the duty of the court to separate grain from
chaff. Falsity of particular material witness or material
particular would not ruin it from the beginning to end. The     B
maxim falsus in uno falsus in omnibus has no application
in India and the witness cannot be branded as a liar. In
case this maxim is applied in all the cases, it is to be
feared that administration of criminal justice would come
to a dead stop. Witnesses just cannot help in giving            c
embroidery to a story, however true in the main.
Therefore, it has to be appraised in each case as to what
extent the evidence is worthy of credence, and merely
because in some respects the court considers the same
to be insufficient or unworthy of reliance, it does not
                                                                0
necessarily follow as a matter of law that it must be
disregarded in all respects as well. [Paras 20 and 24] (706-
C-D; 787-E-H; 708-A]

     Balka Singh and Ors. v. State of Punjab AIR 1975 SC
1962: 1975 (0) Suppl. SCR 129; Zwinglee Ariel v. State of       E
Madhya Pradesh AIR 1954 SC 15; Sukhdev Yadav and Ors.
v. State of Bihar AIR 2001 SC 3678: 2001 (3) Suppl. SCR
91; Appabhai and Anr. v. State of Gujarat AIR 1988 SC 696;
Sucha Singh v. State of Punjab AIR 2003 SC 3617: 2003 (2)
Suppl. SCR 35 - relied on.                                      F

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

    Shivaji Sahebrao Bobade and Anr. v. State of                H
    694    SUPREIVtt:. COURT REPORTS        [2012] 6 S.C.R.


A Maharashtra AIR 1973 SC 2622: 1974 (1) SCR 489;
  Bhagwan Singh and Ors. v. State of M.P. AIR 2002 SC 1621;
  Gangadhar Behera and Ors. v. State of Orissa AIR 2002 SC
  3633; Sucha Singh v. State of Punjab AIR 2003 SC 3617:
  2003 (2) Suppl. SCR 35; S. Ganesan v. Rama
B Raghuraman and Ors. (2011) 2 SCC 83: 2011 (1) SCR 27 -
  relied on.
                        Case Law Reference:
     2011 (6) SCR 1050          Relied on       Para 16
c    2011 (6) SCR 1017          Relied on       Para 16
     (2012) 4 sec 122           Relied on       Para 16
     (2012) 4 SCALE 526         Relied on       Para 16
D    1976 (2) SCR 921           Relied on       Para 18
     1977 (1) SCR 439           Relied on       Para 18
     1980 (1) SCR 95            Relied on       Para 18
     1991 (3) SCR 1             Relied on       Para 18
E
     1996 (4) Suppl. SCR 631    Relied on       Para 19
     2002 (2) Suppl. SCR 135    Relied on       Para 19
     (2006) 13 sec 516          Relied on       Para 19
F
     2006 (1) SCR 519           Relied on       Para 19
     2007 (11) SCR 300          Relied on       Para 19
     2009 (7) SCR 383           Relied on       Para 19
G    2010 (10) SCR 262          Relied on       Para19
     2011 (1) SCR 48            Relied on       Para 19
                        I
     1975 (0) Suppl. SCR 129    Relied on       Para 21

H   AIR 1954 SC 15              Relied on       Para 21
            RAMESH HARIJAN v. STATE OF U.P.                   695


  2001 (3) Suppl. SCR 91           Relied on        Para 22         A

  AIR 1988 SC 696                  Relied on        Para 23
  2003 (2) Suppl. SCR 35           Relied on        Paras 24
                                                    and 25
                                                                    8
  1974 (1) SCR 489                 Relied on        Para 25
  AIR 2002 SC 1621                 Relied on        Para 25
  AIR 2002 SC 3633                 Relied on        Para 25
  2011 (1) SCR 27                  Relied on        Para 25         c
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1340 of 2007.
    From the Judgment and Order dated 23.03.2007 of the
High Court of Judicature at Allahabad in Government Appeal          D
No. 1246 of 1999.
        Rajender Pd. Saxena for the Appellant.
    Vikrant Yadav, Jyoti Sharma, Vinay Kumar Garg, Gunnam
Venkateswara Rao for the Respondent.                                E
        The Judgment of the Court was delivered by
       DR. B.S. CHAUHAN, J. 1. This criminal appeal has been
  preferred against the judgment and order dated 23.3.2007
  passed by the High Court of Allahabad in Government Appeal        F
  No. 1246 of 1999 by which the High Court has reversed the
  judgment of Additional District and Sessions Judge, Basti in
  Sessions Trial No. 312 of 1996 dated 2.2.1999 acquitting the
  appellant. Thus, the High Court has convicted the appellant for
  the offence punishable under Sections 302 and 376 of Indian       G
. Penal Code, 1860 (hereinafter called as 'IPC') and awarded
  him the life imprisonment for both the offences. However, both
 the sentences have been directed to run concurrently.

        2. Facts and circumstances giving rise to this appeal are   H
that:
    696        SUPREME COURT REPORTS             [2012] 6 S.C.R.


A       A. One Smt. Batasi Devi (PW.2) lodged an FIR on
  2.2.1996 in Haraiya Police Station alleging that her daughter
  Renu, aged 5-6 years, was found dead on her cot in Muradipur,
  the village of her maternal grandmother on 30.1.1996 at about
  9.00 p.m. Initially, she had been told that her daughter died of
B paralysis and she was buried at the bank of Manorama river.
  Later on she got information from Shitla Prasad Verma (PW.8),
  Jata Shankar Singh (PW.7) and other persons of the same
  village that her daughter had been raped and killed by Ramesh,
  appellant. She also made a request that the dead body of the
c child be exhumed and sent for post-mortem.
       B. On the order of the concerned Sub-Divisional
  Magistrate, the dead body of Renu was dug out from the grave
  and sent for post-mortem on 3.2.1996. The autopsy was
  conducted by Dr. Ajay Kumar Verma and Dr. S.S. Dwedi of
D District Hospital. In their opinion, death was due to shock and
  haemorrhage as a result of ante-mortem vaginal injuries.

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

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

H         Hence, this appeal.
        RAMESH HARIJAN v. STATE OF U.P.                       697
            [DR. B.S. CHAUHAN, J.]
      3. Shri Rajender Parsad Saxena, learned counsel                A
appearing for the appellant, has submitted that High Court has
committed an error by reversing the well-reasoned judgment of
acquittal by the trial court. There is no iota of evidence against
the appellant on the basis of which the conviction can be
sustained. The evidence relied upon by the High Court                B
particularly that of Kunwar Dhruv Narain Singh (PW.1 ), Jata
Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8) cannot
stand judicial scrutiny as these witnesses had been motivated;
improvement in the depositions of Jata Shankar Singh (PW.7)
and Shitla Prasad Verma (PW.8) had been to the extent that it        c
is liable to be discarded as a whole. The other witnesses have
turned hostile, therefore, there is nothing on record to show that
the appellant was connected with the crime by any means.
There is no evidence on record on the basis of which it can be
established that Renu (deceased) used to sleep in the house          0
of the appellant or the appellant had an opportunity to commit
the offence. ,The findings recorded by the High Court are
perverse not being based on evidence on record. Thus, the
appeal deserves to be allowed.

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

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

      6. Admittedly, Renu, aged 5-6 years of age, died of vaginal    G
injuries. The post-mortem report disclosed the following ante-
mortem injuries:

    (1) Contusion 4 cm x 2 cm over the right side face below
    the right ear lobules on upper part of the neck.                 H
    698       SUPREME COURT REPORTS               [2012] 6 S.C.R.


A         (2) Contusion 5 cm x 3 cm over the left side face in front
          and above tragus of the left ear.

          (3) Abraded contusion 4 cm X 3 cm over the back of the
          right shoulder joint and scapular region.
8         (4) Contusion 3 cm x 2 cm over the upper part of the left
          scapula and back portion of the shoulder tip.

          (5) Abraded contusion 4 cm x 1 cm on each side of office
          and labia majora.
c         (6) Abraded with tearing of labia majora of both side 2 cm
          x 1 cm.

          (7) Hymen absent, lower part of vagina badly lacerated and
          pubic lower part upper abdomen, and vaginal tear up to
D         upper part of Guel orifice.

                The internal examination of the supra pubic region
          on opening the abdomen revealed that blood and gases
          were present and the lower part of the uterus had a
E         bloodstained tear 1 cm x 1 cm. The cause of death was
          shock and haemorrhage. The death could have taken
          place on 30.1.1996 between 9.00 or 9.30 pm. If a hard
          object like a human penis was inserted in the vagina it
          could have caused the injuries Nos. 6 and 7."
F      7. The prosecution has examined Kunwar Dhruv Narain
   Singh (PW.1 ), the scribe of the FIR lodged by Batasi Devi
   (PW.2), mother of the deceased Renu. He deposed that Renu
  was living with her maternal grandmother Smt. Phulpatta Devi
  who was totally blind and a very poor woman. Her thatched
G house had fallen down so she used to sleep in the house of
  Ramesh, appellant which was adjacent to her house. Renu was
  found dead on 30.1.1996 in the night on her cot in the house
  of Ramesh, appellant. Ramesh, appellant made the extra-
  judicial confession before him in presence of Jata Shankar
H Singh (PW. 7) and Shitla Prasad Verma (PW.8). The father of
          RAMESH HARIJAN v. STATE OF U.P.                       699
              [DR. B.S. CHAUHAN, J.]
  Ramesh used to work in his house, however, at the relevant            A
· time, he was working in Sidharth Nagar. Batasi Devi (PW.2)
  had come to him and asked him to write the FIR so that she
  can lodge the same with the police station. However, he denied
  the suggestion that he had a grudge against Ramesh, appellant
  as it was because of the appellant and his father that other          B
  persons of the village were not working at his house.

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

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

     10. Shitla Prasad Verma (P'N.8). has supported the
 prosecution case narrating the similar facts as stated by Jata
 Shankar Singh (PW.7).
                                                                        H
    700          SUPREME COURT REPORTS             [2012) 6 S.C.R.


A        11. Doctor Ajay Kumar Verma (PW.11) who has
    conducted the autopsy on the body of Renu, deceased,
    supported the prosecution case to the extent that deceased was
    having the ante-mortem injuries as mentioned hereinabove on
    her body.
B
        12. Sharafat Hussain, S.I., (PW.13), the Investigating
  Officer, deposed that he had recovered a part of Khatari (thin
  mattress) and white sheet with which Renu was covered. He
  tried to search the appellant/accused, however, the appellant
C could be arrested at 3.35 a.m. in the intervening night of 31
  4.2.1996 from the junction of three roads at Mahulghat when
  he was waiting for some transport to leave the area.

       13. The prosecution also examined Sumaiya Devi (PW.3),
  Urmila Devi (PW.4), Hira Devi (PW.6), Sona Devi (PW.9).
D However, they did not support the prosecution case and had
  been declared hostile. According to the aforesaid witnesses,
  they reached the place of occurrence after having the
  information of Renu's death and they found her dead body lying
  at the house of her maternal grandmother Smt. Phulpatta Devi.
E
       14. The learned trial court after appreciating the evidence
  on record acquitted the appellant on the following grounds:

          I)      The prosecution could not produce any evidence to
                  prove that in the night of the incidence, Renu,
F                 deceased, had been sleeping in the house of the
                  appellant Ramesh or her dead body had been lying
                  on the cot in his house.

          II)     Smt. Phulpatta, maternal grandmother of Renu,
G                 deceased, was neither examined, nor any
                  satisfactory explanation had been given for not
                  examining her.

          Ill)    The deposition of Kunwar Dhruv Narain Singh
                  (PW.1) was not worthy of reliance as he has
H                 deposed that the appellant had made extra-judicial
            RAMESH HARIJAN v. STATE OF U.P.                 701
                [DR. B.S. CHAUHAN, J.]
              confession before him for committing the aforesaid    A
              crime in the presence of Jata Shankar Singh
              (PW.7) and Shitla Prasad Verma (PW.8). Such
              statement had not been made by either of the said
              witnesses.
                                                                    B
      IV)     Kunwar Dhruv Narain Singh (PW.1) was a
              Jamindar and it was because of the appellant's
              father that other poor persons were not rendering ·
              service to him and Kunwar Dhruv Narain Singh
              (PW.1) had been inimical to the appellant.
                                                                    c
      V)      The deposition of Sumaiya Devi (PW.3), Urmila
              Devi (PW.4), Hira Devi (PW.6) and Sona Devi
              (PW.9) was not in support of the prosecution case
              and all the aforesaid four witnesses had been
              cross-examined but they could not be held to be       D
              hostile witnesses.

      VI)     Sharafat Hussain, S.I., (PW.13), the Investigating
              Officer, had recovered a part of the bed sheet and
              it had been sent for CFSL report and to the said      E
              recovery Ram Prasad alias Parsadi (PW.5) and
              Bhikari (PW.10) did not support the recovery and,
              therefore, recovery of the aforesaid incriminating
              material is to be disbelieved.

      VII) The evidence of Jata Shankar Singh (PW. 7) and           F
            Shitla Prasad Verma (PW.8) could not be relied
            upon as they had made knowingly improvements in
            the case of having last seen Renu, deceased, with
            the appellant rather distorted the whole case of the
            prosecution totally as both of them had deposed         G
            that they had seen the appellant committing rape
            on Renu, deceased.

     15. In the appeal, the High Court has reversed the findings
recorded by the trial court on the following grounds:
                                                                    H
    702           SUPREME COURT REPORTS              [2012] 6 S.C.R.

A         (I)      There was sufficient evidence on record to show
                   that Smt. Phulpatta Devi, maternal grandmother of
                   Renu, deceased, was totally blind and a very poor
                   woman and the roof of her thatched house had fallen
                   and she used to sleep in the house of the appellant
B                  Ramesh in her neighbourhood with Renu,
                   deceased.

          (II)     It was no one's case that Kunwar Dhruv Narain
                   Singh (PW.1) was inimical to the appellant for any
                   reason whatsoever as none of the witnesses had
c                  deposed that after the appellant's father j6ined the
                   service, he had supported the other villagers
                   financially and, therefore, they stopped working at
                   the house of Kunwar Dhruv Narain Singh (PW.1 ).

D         (Ill)    The witnesses Sumaiya Devi (PW.3), Urmila Devi
                   (PW.4), Hira Devi (PW.6) and Sona Devi (PW.9),
                   once had been cross-examined by the prosecution .
                   as they had not supported the case of the
                   prosecution, the trial court was wrong that they were
E                  not hostile witnesses. Similarly remained the
                   position of the witnesses of the recovery of sheet
                   cover and bichona i.e. of Ram Prasad alias
                   Parsadi (PW.5) and Bhikari (PW.10).

          (IV)     The evidence of Kunwar Dhruv Narain Singh
F                  (PW.1 ), Jata Shankar Singh (PW.7) and Shitla
                   Prasad Verma (PW.8) could be relied upon at least
                   to the extent that deceased was last seen in the
                   company of the appellant.

G         (V)      The trial court had given undue importance to the
                   minor contradictions in the depositions of the
                   witnesses. In fact, there was evidence that after
                   committing the crime outside, the appellant brought
                   the corpus of the child and placed it on the cot.
H
          RAMESH HARIJAN v. STATE OF U.P.                        703
              [DR. B.S. CHAUHAN, J.]
     16. The law of interfering with the judgment of acquittal is        A
well-settled. It is to the effect that only in exceptional cases where
there are compelling circumstances and the judgment in appeal
is found to be perverse, the appellate court can interfere with
the order of the acquittal. The appellate court should bear in
mind the presumption of innocence of the accused and further             B
that the trial court's acquittal bolsters the presumption of
innocence. Interference in a routine manner where the other view
is possible should be avoided, unless there are good reasons
for interference. (Vide: State of Rajasthan v. Ta/evar & Anr.,
AIR 2011 SC 2271; State of U.P. v. Mohd. /qram & Anr., AIR               c
2011 SC 2296; Govindaraju @ Govinda v. State by
Srirampuram Police Station & Anr., (2012) 4 SCC 722; and
State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526).

    17. In the aforesaid fact-Situation, we have to weigh as to
whether the High Court is justified in reversing the judgment and        D
order of acquittal recorded by the trial court.

    We have been taken through the entire evidence on record
and after re-appreciating the same we can unhesitatingly record
fu~:                                                                     E
     (i) Undoubtedly, the trial court has not made any reference
to the depositions of Batasi Devi (PW.2) and also of Kunwar
Dhruv Narain Singh (PW.1) in respect to the fact that the
thatched house of roof of Sr:nt. Phulpatta Devi, maternal
                                                                         F
grandmother of Renu, deceased had fallen and she as well as
Renu used to sleep in the house of Ramesh, appellant which
was in very close vicinity of Smt. Phulpatta's house. Ganga Ram
(DW.1) has stated that on the day of occurrence, Smt. Phulpatta
Devi and Renu did not sleep in the house of Ramesh, however,
as he was living permanently in the city and did not say that he         G
was present on that day in the village, his evidence cannot be
taken into consideration so far as this issue is concerned. The
defence/ did not cross-examine Kunwar Dhruv Narain Singh
(PW.1) and Batasi Devi (PW.2) on this issue. Thus, the trial
court committed an error recording such finding of fact.                 H
    704       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A      (ii) It has come on record that Smt. Phulpatta Devi was an
  old, infirm and totally blind woman and it was for this reason
  that Renu, deceased was left for her assistance. The trial court
  ought not to have drawn adverse inference for not examining
  Smt. Phulpatta Devi by the prosecution. Thus, the adverse
B inference drawn by the trial court on this count is unwarranted
  and uncalled for.

       (iii) The trial court has held that Kunwar Dhruv Narain Singh
  (PW.1) had been inimical to Ramesh and his family for the
  reason that appellant's father had been working in the
C agricultural field at the said witness and after joining the service
  appellant's father had rendered financial help to other poor
  persons of the village and thus those poor persons were not
  available for work to the said witness. In this regard, the defence
  has examined Ganga Ram (DW.1) who had deposed that the
D appellant's father had been looking after the agricultural work
  of that witness, however, joined the service in court 14 years
  prior to the date of incident and Ganga Ram's family was also
  looking after the agricultural work of the said witness but 8
  years prior to the date of incident. He had also left the village
E and opened a beetle shop in the city after getting financial aid
  from appellant's father.

        Such an evidence is required to be examined in the light
  of attending circumstances and particularly taking into
F consideration the proximity of time. Time is the greatest heeler.
  In case the appellant's father had left working in the field of the
  witness 14 years prior to the date of incident and Ganga Ram's
  (DW.1) family has left 8 years prior to the said date, the time
  gap itself falsifies the testimony for the reason that the time gap
G is a factor of paramount importance in this regard. More so, it
  is not the defence case that any other family or labour was
  available in the village to look after the agricultural work of the
  said witness.

          (iv) The recovery of part of the sheet and white clothes
H
        RAMESH HARIJAN v. STATE OF U.P.                     705
            [DR. B.S. CHAUHAN, J.]
having blood and semen as per the FSL report has been dis-          A
believed by the trial court in view of the fact that Ram Prasad
alias Parsadi (PW.5) and Bhikari (PW.10) did not support the
prosecution case like other witnesses who did not support the
last seen theory. The trial court failed to appreciate that both
the said witnesses, Ram Prasad alias Parsadi (PW.5) and             B
Bhikari (PW.10) had admitted their signature/thumb impression
on the recovery

     The factum of taking the material exhibits and preparing
of the recovery memo with regard to the same and sending the        C
cut out portions to the Serologist who found the blood and
semen on them vide report dated 21.3.1996 (Ext. Ka 21) is not
disputed. The serological report also revealed that the vaginal
swab which was taken by the doctor was also human blood and
semen stained.
                                                                    D
     18. It is a settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross examine
him. The evidence of such witnesses cannot be treated as
effaced or washed off the record altogether but the same can        E
be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh
v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar
Dey v. State of Orissa, Al R 1977 SC 170; Syad Akbar v. State
of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra               F
Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).

      19. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR
1996 SC 2766, this Court held that evidence of a hostile witness
would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to          G
close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence can be
relied upon. A similar view has been reiterated by this Court in
Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC
                                                                    H
    706       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A   543; G,agan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC
    516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of
    U.P., AIR 2006 SC 951; Sarvesh Narain Shukla v. Daroga
    Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State
    by Public Prosecutor, (2009) 6 SCC 462.
B
      Thus, the law can be summarised to the effect that the
  evidence of a hostile witness cannot be discarded as a whole,
  and relevant parts thereof which are admissible in law, can be
  used by the prosecution or the defence. (See also: C.
C Muniappan & Qrs. v. State of Tamil Nadu, AIR 2010 SC 3718;
  and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2
  sec 36)
       20. Undoubtedly, there may be some exaggeration in the
  evidence of the prosecution witnesses, particularly, that of
D Kunwar Dhruv Narain Singh (PW.1 ), Jata Shankar Singh
  (PW.7) and Shitla Prasad Verma (PW.8). However, it is the
  duty of the court to unravel the truth under all circumstances.

       21. In Balka Singh & Ors. v. State of Punjab, Al R 1975
E SC 1962, this Court considered a similar issue, placing
  reliance upon its earlier judgment in Zwinglee Ariel v. State of
  Madhya Pradesh, AIR 1954 SC 15 and held as under:

          "The Court must make an attempt to separate grain from
          the chaff, the truth from the falsehood, yet this could only
F         be possible when the true is separable from the falsehood.
          Where the grain cannot be separated from the chaff
          because the grain and the chaff are so inextricably mixed
          up that in the process of separation, the Court would have
          to reconstruct an absolutely new case for the prosecution
G         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."

H
          RAMESH HARIJAN v. STATE OF U.P.                      707
              [DR. B.S. CHAUHAN, J.]
    22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001            A
SC 3678, this Court held as under:

     "It is indeed necessary however to note that there would
     hardly be a witness whose evidence does not contain
     some amount of exaggeration or embellishment,                     8
     sometimes there would be a deliberate attempt to offer the
     same and sometimes the witnesses in their over anxiety
     to do better from the witness-box details out an
     exaggerated account."

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

      24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617,
this Court had taken note of its various earlier judgments and
 held that even if major portion of the evidence is found to be
                                                                       F
deficient, in case residue is sufficient to prove guilt of an
accused, it is the duty of the court to separate grain from chaff.
 Falsity of particular material witness or material particular would
 not ruin it from the beginning to end. The maxim falsus in uno
falsus in omnibus has no application in India and the witness
cannot be branded as a liar. In case this maxim is applied in          G
all the cases it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just cannot help
in giving embroidery to a story, however, true in the main.
Therefore, it has to be appraised in each case as to what extent
                                                                       H
    708       SUPREME COURT REPORTS                    (2012] 6 S.C.R.


A   the evidence is worthy of credence, and merely because in
    some respects the court considers the same to be insufficient
    or unworthy of reliance, it does not necessarily follow as a
    matter of law that it must be disregarded in all respects as well.

       25. In Shivaji Sahebrao Bobade & Anr. v. State of
8
    Maharashtra, AIR 1973 SC 2622, this Court held :

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

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

       26. Therefore, in such a case the paramount importance
  of the court is to ensure that miscarriage of justice is avoided.
G The benefit of doubt particularly in every case may not nurture
  fanciful doubts or lingering suspicion and thereby destroy social
  defence. A reasonable doubt is not an imaginary trivial or
  merely possible doubt, but a fair doubt based upon reason and
  common sense.
H
         RAMESH HARIJAN v. STATE OF U.P.                        709
             [DR. B.S. CHAUHAN, J.]
      27. In view of the above, we are of the considered opinion        A
that the acquittal in the instant case by the trial court was totally
illegal, unwarranted and based on mis-appreciation of evidence
for the reason that the court had given .undue weightage to
unimportant discrepancies· and inconsistencies which resulted
in miscarriage pf justice. Thus, the High Court was fully justified     B
in reversing the order of acquittal.

    In view of the above, the appeal lacks, merit and is .
accordingly dismissed.

K.K.T.                                         Appeal dismissed.        C