Hon'ble Mr. Justice Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1266 OF 2010
MAHENDRAN .........APPELLANT
Versus
THE STATE OF TAMIL NADU .........RESPONDENT
WITH
CRIMINAL APPEAL NO. 1260 OF 2010
RAVI @GOPU AND ORS. .........APPELLANTS
Versus
STATE REP. BY THE DEPUTY .........RESPONDENT
SUPERINTENDENT OF POLICE
J U D G M E N T
HEMANT GUPTA, J.
The Criminal Appeal No. 1266 of 2010 preferred by Mahendran
(Accused No. 3), and Criminal Appeal No. 1260 of 2010 preferred by
Ravi (Accused No. 1), Singaravelu (Accused No. 2), Iyappan (Accused
No. 4), Rajendran (Accused No. 5), Selvaraj (Accused No. 6),
Karunakaran (Accused No. 7), Arunachalam (Accused No. 8) and
1
Sundaramoorthy (Accused No. 9) arise out of a common judgment by
the Madurai Bench of the Madras High Court on 26.09.2008. The High
Court has acquitted Mohan (Accused No. 10), Ravi (Accused No. 12), P.
Mohan (Accused No. 13), Palanivel Thevar (Accused No. 14) and Kannan
(Accused No. 15) from all charges by granting them benefit of doubt.
The accused are referred to with reference to their status before the trial
court.
2. The prosecution had put on trial twenty-four persons for various
offences, but the learned trial court found the charges proved only
against Accused Nos. 1-10 and 12-15 and sentenced to imprisonment as
per the order passed in respect of the offences proved against them,
whereas, Manivasagam (Accused No.11), Ganapathy (Accused No. 16)
Muruganandam (Accused No. 17), Saravanan (Accused No. 18), Kathiah
(Accused No. 19), Maiyilaiyam (Accused No. 20), Subbaian (Accused No.
21), Santhanam (Accused No. 22), Mariappan (Accused No. 23) and
Kannan (Accused No. 24) were acquitted.
3. Learned counsel for the appellants states that Accused Nos. 8 and
9 have died during the pendency of the appeals. Resultantly, the
appeals survive in respect of Accused Nos. 1 to 7 only. One of the
accused Balakrishnan had died even before the Charge-sheet could be
filed, therefore, was not included in the report filed.
4. Prosecution case was set in motion on the basis of statement of
PW1-Ganesamoorthy, resident of Kumbakonam and son-in-law of
Murugaiyan-deceased. He stated that on 12.03.1994, he along with his
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father went to Nangarari, but due to darkness, they decided to stay in
his father-in-law’s house at Neikuppai.
5. He stated that his father-in-law shared the dispute between him
and the Caste Hindus that evening and that dispute was getting
intensified and that someone had set fire on the thatched hut in the
Pilaiyar street. He also said that a Panchayat was going to be conducted
in this regard but he had not informed the police. He stated that on
13.03.1994 at about 7.30 AM, he heard noise at the place of residence
when his father had gone to have tea. He and his father-in-law came
outside to see what happened. At that stage, A-1 to A-9 and
Balakrishnan (since dead) son of Raamaiya Konur were standing with
stones and aruvals (sickles). They exhorted that till such time you are
alive, you will not allow caste Hindus to live and we won’t leave you
alive. At that stage, Ravi (A-1) poured the kerosene from tin container
and Singaravelu (A-2) set fire to the roof. The hut was set ablaze. His
father-in-law ran towards backside of the house, frightened of his life. He
also ran behind him. He was questioned as to why he was running?
Murugaiyan ran towards barber Mahalingam’s house on School street.
But the accused hit on the head of Murugaiyan with the sickle, inflicting
injuries on the head, hand, leg and back. His father-in-law, Murugaiyan
was lying in the pool of blood in front of the house of PW13-Mahalingam
having injuries on both legs and shoulders. About 100 persons of caste
Hindus were standing around Murugaiyan. At that time PW3-Ramesh
and PW2-Raja came but they escaped after being hit with stones. He
also escaped without being seen by anybody. On the basis of such
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statement, FIR Ext.P-13 was lodged at about 8.45 AM against ten
accused.
6. PW19-Ramakrishnan is the retired Police Inspector who recorded
statement on the basis of which First Information Report was lodged. He
was entrusted with the investigations. He sent FIR to the Judicial
Magistrate, Thiruvarur at 09.30 A.M. He then went to the place of
occurrence in the Village Neikuppai. The sketch Ex.P.18 was prepared of
a place in front of Murugaiyan’s house and prepared an observation
Memo Ex.P.2. He also prepared sketch Ex.P.19 and observation Memo
Ex.P.3 after seeing the place where the dead body was lying at 10.20
hours on that day. He prepared inquest report Ex.P.30 and sent the
body for post-mortem. He associated the informant PW1-
Ganesamoorthy, PW2- Raja, PW3-Ramesh, PW4-Ravanan and PW5-
Lakshmi, wife of the deceased, for investigations and recorded their
statements. He also associated PW6-Sankaran and Mariappan(A-23) and
recorded their statements. He recovered burnt bamboo piece, a burnt
coconut leaf lattice, one burnt polyester sari in red, blue, white and
green colours, a burnt sprayer nozzle, and some burnt paddy as well as
one plank taken from the burnt cart at about 1615 hours, recorded in
Ex.P.4. The materials mentioned therein Ex.P.4 are M.Os. 10 to 15. He
also took in possession the blood stains from the seating area in west of
the house of Mahalingam; a sample earth without blood stain scratched
from the above area; blood-stained earth was taken from the place
where the dead body of Murugaiyan was lying as well as earth without
blood stain was taken from the same place. He also associated some
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other witnesses to complete investigations.
7. It was on 13.3.1994, ten accused initially mentioned by the
informant Ganesamoorthy were arrested. The disclosure statement
Ex.P.6 was recorded of accused Ravi (A-1), and on the basis of disclosure
statement five sickles were recovered from A-1 to A-5 and Balakrishnan,
whereas, bamboo sticks of different lengths were recovered from A-6 to
A-9. On 15.03.1994, he arrested other accused who stood acquitted,
therefore, not relevant for the purpose of present appeals. In the crossexamination, he denied that the complaint Ex. P.1 was not registered at
the stated time and that the same was prepared after discussion and
that the FIR Ex.P.13 was sent to Court on that day at around 4.00 PM. He
deposed that deceased Murugaiyan belongs to Scheduled Caste and
denied that the dead body was lying in the seating area near the
Manickam’s house. He also associated PW13-Mahalingam, his wife
Theivakani, daughter Raji, son Selvam in the course of investigations
and recorded their statements. But he stated that he had not gone to
Manickam’s house as mentioned by these persons. On completion of
the investigations, Charge-sheet was filed. The accused pleaded not
guilty and claimed trial.
8. The post-mortem on the dead body of Murugaiyan was conducted
by PW17-Dr. Razool. He found the following external injuries on the
person of the deceased: -
“1. 6” long Elliptical, Horizontal cut injury with clear cut
edges of skin, extending from angle of left mandible,
cross left neck, up to lateral process of spine. “C2”,
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without involving mastoid Bone on clearing dark blood
clots. The sterno cleido Mastoid muscles and jugular
veins & carotid arteries are found cut.
2. 1” below injury No.(1) a similar cut injury horizontal,
extending from Adam’s apple, across left of neck up to
c 5 spine, lateral process in the back “6” long its depth
extends, cutting the sterno-Mastoid muscles and jugular
veins and common carotid artery with profuse dark
blood oozing.
3. Similar cut injury 3” long horizontal and 1” below
injury No. 2 over root of neck involving clavicle bone
left.
4. Irregular edged 2” x 1” x ½“ serrated edged abrasion
over left scapula.
5. 10” long lacerated injury with clear edges very
superficial running obliquely across left breast to right
ribs with two packets on injury 1” deep lying on the
same line with 3” gap in between. This injury does not
involve heart, lungs and abdominal viscera.
6. Cut injury, 4” long horizontal and lateral side of left
thigh, 4” above knee joint just embracing femur bone.
7. Below left knee joint similar injury 4” long over
lateral side of leg, completely cutting away the Tibia
and Fibula bones.
8. 2” below injury No. (7), 3” long cut injury over lateral
side, 2” deep.
9. Complete severing of left wrist separating the hand
from its joints, cutting the radial and ulnar arteries with
only ½ “ broad-skin bridging the gap.
10. They only injury found on the right side of body is
6” long cut injury, running over the shoulder from
scapula to anterior of shoulder cutting the tender
insertion of biceps muscles chopping of the head of
humerus bone.
OTHERS:
Brain pale not liquefied. Skull bone, spinal, spinal
column not fractured. Stomach, spleen, liver, kidney
and lungs are pale, but not injured. Heart no injury. All
the left chambers are empty with little clots.”
6
The cause of death was injury Nos. 1 and 2 due to severing of left
carotid artery and jugular veins, leading to profuse haemorrhage, hypovolume shock and death in sequence. He produced his post-mortem
report as Ex.P.14.
9. PW17-Dr. Razool also examined informant PW1-Ganesamoorthy on
13.3.1994 at 6.00 PM alleged to be assaulted by stones at 7.30 AM on
the same day. The following injuries were reported:
“1. Contusion left ear lobe with tenderness.
2. Abrasion with edema 1” diameter nape of neck.”
10. PW17 Dr. Razool also examined PW2-Raja and PW3-Ramesh on the
same day and found the following injuries respectively:
“1. ½ ” diameter recent abrasion with surrounded
edema over right eye brow.”
“1. Recent contusion with blood clot ½“ diameter
abrasion over left crown of head.
2.Tenderness over left half muscles.”
11. To prove the allegations against the accused, the prosecution
examined PW1-Ganesamoorthy, the informant and son-in-law of the
deceased, PW2-Raja, PW3-Ramesh, PW5-Lakshmi wife of the deceased
and PW13-Mahalingam, all residents of Village Neikuppai, PW4-Ravanan
resident of Narsingampettai. Both the Courts have relied upon the
statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh to
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convict the appellants.
12. Learned counsel for the appellants argued that PW1-
Ganesamoorthy is not a witness of occurrence, but has been introduced
falsely. In support of the argument that the witness was not present at
the place of the occurrence, the following aspects were pointed out:-
a). It is unbelievable that son-in-law will stay with his in-laws more
so when his own village is around 15 Kms away only.
b). In his first statement Ex.P.1, he has not stated that he got
injuries with the stones pelted by the aggressors, whereas, he has
tried to prove his presence on the basis of self-inflicted injuries
which were found not to be more than one hour old by Dr. Razool,
who examined him at around 6.20 PM.
c). The FIR is ante-timed as there is no reason as to why FIR was
delivered to the Judicial Magistrate at 4.00 PM but not soon after it
was dispatched around 9.30 AM. It is unbelievable that the
constable would not know that the Magistrate would not come to
the Court being Sunday as he could have delivered the FIR at the
residence of the Officer.
d). PW1-Ganesamoorthy has given parentage of all the ten
accused in the statement Ext.P.1, but in Court he could not
disclose the parentage of A4, A6 and Balakrishnan (since died).
Thus, FIR was lodged after consultation, therefore, the delay in the
receipt of FIR by the Magistrate
8
13. It is also argued that the place of occurrence is opposite house of
Manickam as is deposed by PW13-Mahalingam, but the prosecution has
shifted the place of occurrence near the house of Mahalingam. Since the
place of occurrence itself has not been proved on the statement of
PW13 Mahalingam, the prosecution story in respect of the manner of
occurrence cannot be accepted. It is stated that PW1-Ganesamoorthy is
not reliable and truthful witness, therefore, unworthy of reliance.
14. It is also argued that PW1-Ganesamoorthy, PW2-Raja and PW3-
Ramesh have roped in many other accused during the course of
investigations and that such part of the statement has not been found
to be a truthful version resulting into acquittal of accused Nos. 10, 12,
13, 14 and 15 in appeal, whereas, some other accused were acquitted
by the learned trial court itself. It is thus argued that the statements of
witnesses are unreliable and lack credibility, therefore, such statements
cannot be relied upon for the conviction of the appellants.
15. Learned counsel for the appellants relies upon judgments reported
in Ram Laxman vs. State of Rajasthan1
, Noushad alias Noushad
Pasha and Others vs. State of Karnataka2 and Suraj Mal Vs.
State (Delhi Administration)3
to contend that if the testimony of the
witness is found to be unreliable in respect of part of the statement,
then the other part of the statement cannot be made basis to convict
the accused.
1 (2016) 12 SCC 389
2 (2015) 2 SCC 513
3 (1979) 4 SCC 725
9
16. It is argued that Ravi (A-1) is said to have suffered a disclosure
statement under Section 27 of the Indian Evidence Act, 1872 as per the
statement of PW8-Veeraiyan and got recovered five sickles, but, the
Investigating Officer has distributed the recovery to the five different
accused.
17. The explanation of the prosecution witnesses that doctor was not
available at Kudavasal stands controverted on the basis of statement of
DW4-Assistant Doctor Balakumaravelu in Kudavasal Government
Hospital who has deposed that the doctor was available. Therefore,
medical examination in respect of injuries which in opinion of doctor is
not more than one hour earlier totally discredits the prosecution story.
18. The story of receipt of injuries by the witnesses PW1-
Ganesamoorthy, PW2-Raja and PW3-Ramesh is highly doubtful as their
blood-stained clothes were given to the Investigating Officer after two
days, whereas, if they had received injuries on the date of occurrence, it
was mandatory for the prosecution to take into possession of the bloodstained clothes on the day of occurrence itself.
19. It is also argued that PW5-Lakshmi wife of the deceased has
named Ravi (A-1) and Singaravelu (A-2) only as the persons who had
poured kerosene and lit the match stick but has not deposed in respect
of role of the other accused. Thus, in view of the absence of any overt
act attributed to the appellants other than A-1 and A-2, their conviction
for offences under Section 302 IPC and other offences are not made out
and they can at best be punished for the offence under Section 326 read
10
with Section 149 IPC. The reliance is placed upon the Supreme Court
judgment reported as Joseph vs. State, Represented by Inspector
of Police4 and Najabhai Desurbhai Wagh vs. Valerabhai
Deganbhai Vagh and Others5
. Learned counsel for the appellants also
argued that the prosecution has failed to prove the common object so as
to attract the offence under Section 149 IPC.
20. On the other hand, learned counsel appearing for the State
pointed out that much stress has been laid on shifting the place of
occurrence from near the house of Manickam to near the house of
PW13-Mahalingam. It is argued that it is factually incorrect and the
discrepancy is minor, if any. The reliance is placed upon statement of
PW2-Raja who deposed that houses of Mahalingam and Manickam are in
the same street, one facing north and the other facing south meaning
thereby, facing to each other and they are located half a furlong from
each other. Therefore, the place of occurrence is in the street, in which
houses of PW13-Mahalingam and Manickam are located. The evidence
that blood-stained earth and the sample earth have been taken in
possession from the place of occurrence near the house of Mahalingam,
therefore, the minor discrepancy in respect of place of occurrence is
inconsequential as the occurrence is in the same street.
21. It is also argued that PW1-Ganesamoorthy, PW2-Raja and PW3-
Ramesh have explained their injuries which part of their evidence has
not been challenged in their cross-examination. The statement of DW4-
4 (2018) 12 SCC 283
5 (2017) 3 SCC 261
11
Balakumaravelu does not support the argument raised by the learned
counsel for the appellants as it is stated by the witness that the Doctors
give treatment to the patients in the Out-Patient Ward from 7.30 -10.30
AM and give treatment to the patients in In-Patient Ward from 10.30 AM
to 12.30 PM and then there is a lunch break from 12.30 PM – 2.00 PM.
Thereafter, the administrative work is performed up to 2.30 PM. Thus,
the witnesses have been medically examined at the earliest opportunity.
22. As per PW2-Raja, the road from Kumbakonam goes to Kudavasal,
Pudukudi and Thiruvarur. The witness has stated that the distance
between Pudukudi and Thiruvarur is 15 K.Ms., whereas, bus will take
twenty-five minutes from Kudavasal to reach Thiruvarur. Therefore, the
argument raised that PW1-Ganesamoorthy has manipulated his Medical
Report from a Hospital near to his residence is not correct as he has
travelled on the other side of his village as the Medico-Legal
Examination was conducted at Thiruvarur.
23. Learned counsel refers to the judgement in Gangadhar Behera
and Others Vs. State of Orissa6
to contend that the offence under
Section 149 is made out if the unlawful assembly shared common object
and not common intention, though mere presence in an unlawful
assembly cannot render a person liable unless there was a common
object. The common object is as set out in Section 141. It is not
necessary to prove overt act against a person who is alleged to be a
member of an unlawful assembly. In other words, the object should be
common to the persons, who compose the assembly, that is to say, they
6 (2002) 8 SCC 381
12
should all be aware of it and concur in it. A common object may be
formed by express agreement after mutual consultation, but that is by
no means necessary. It may be formed at any stage by all or a few
members of the assembly and the other members may just join and
adopt it.
24. The Judgment in Sanjeev Kumar Gupta vs. State of Uttar
Pradesh7
was relied upon to contend that Section 149 has two
components (i) offence committed by any member of an unlawful
assembly consisting of five or more members, and (ii) such offence must
be committed in prosecution of the common object under Section 141
IPC of the assembly or members of that assembly knew to be likely to
be committed in prosecution of the common object. For ‘common
object’, it is not necessary that there should be a prior concert in the
sense of a meeting of the members of the unlawful assembly.
25. The reliance is placed upon the Judgment reported as Gangadhar
Behera to argue that the maxim “falsus in uno, falsus in omnibus” has
no application in India and the witnesses cannot be branded as liars.
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 a rule of caution.
26. The first and foremost challenge is to the testimony of PW1-
Ganesamoorthy for the reason inter alia that he was not present at the
place of occurrence and that FIR has been ante dated. We do not find
any merit in the said argument. The statement of PW1-Ganesamoorthy
7 (2015) 11 SCC 69
13
was recorded at 8.45 AM by PW19-Police Inspector Ramakrishnan soon
after the occurrence. Lodging of the FIR by PW1-Ganesamoorthy is
supported by PW2-Raja and PW3-Ramesh who have found that PW1-
Ganesamoorthy was already in Police Station lodging the complaint.
The testimony of PW19-Ramakrishnan regarding lodging of FIR at 8.45
AM is not discredited in the cross-examination. He denied such
suggestion and also the suggestion that the documents were sent to the
Court at 4.15 PM. There is nothing on record not to believe statement so
the said witnesses more of the trial court and the High Court have
believed the prosecution version in this respect.
27. In respect of manner of occurrence, PW1-Ganesamoorthy in the
cross-examination stated that fifteen hundred people belonging to
different castes live in the Village Neikuppai. He denied the suggestion
that Thiruvarur Government Hospital was near to his house. He also
disclosed the receipt of injuries on the body of his father-in-law and
denied the suggestion that he does not know how his father-in-law was
killed, how his father-in-law’s hut was set on fire and he did not go to
Neikuppai Village.
28. In the re-examination, he deposed that five sickles recovered were
approximately 1ft in length; some may be longer or shorter. Such
statement of PW1-Ganesamoorthy is corroborated by PW2-Raja who is
resident of same Village as that of the deceased Murugaiyan. He also
deposed that houses of PW13-Mahalingam and Manickam are situated
on the School street, one facing North and the other facing South and at
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a distance of half a furlong. At the time of incident Manickam’s house
was locked and people came running to Manickam’s house from PW13
Mahalingam’s house. Similar is the statement of PW3-Ramesh that Ravi
(A-1) has poured the kerosene from a tin container on the roof of hut of
the Murugaiyan and Singaravelu (A-2) set ablaze the hut. Even PW5-
Lakshmi wife of the deceased also deposed that he was Ravi (A-1) who
poured kerosene and Singaravelu (A-2) who lit the matchstick. She has
stated that there were other twenty or thirty people standing around as
a group. The fact that she has not named other accused, will not
absolve the role of the appellants, as their presence is disclosed by
three other prosecution witnesses i.e. PW1-Ganesamoorthy, PW2-Raja
and PW3-Ramesh.
29. The presence of witnesses examined by the prosecution at the
place of occurrence is based upon the appreciation of the evidence by
the two Courts. We do not find that such appreciation is perverse or
wholly untenable which may warrant interference in the present
appeals.
30. The argument that it is unbelievable that son-in-law will not stay
with his in-laws, when his own village is around 15 KMs away, is purely
conjectural. There is no reasonable basis to hold that PW1-
Ganesamoorthy would not stay with his father-in-law in the
circumstances explained by him.
31. The argument that in statement Ex.P.1, PW1-Ganesamoorthy has
not stated the injuries suffered by him, will render his presence at the
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time of occurrence as doubtful. The said fact when examined in the
context of a complete statement loses its significance. As per PW1-
Ganesamoorthy soon after the incident, he went to Kudavasal located at
the distance of 4 KMs from Neikuppai Village when he lodged the Report
as statement Ex.P.1 and thereafter he went to Thiruvarur Government
Hospital. The Kudavasal and Thiruvarur are located on the other side of
his village.
32. PW17-Dr. Razool, an Assistant Surgeon in Thiruvarur Government
Hospital conducted post-mortem examination at 4.30 PM. Thereafter, he
conducted Medico-Legal Examination of PW1-Ganesamoorthy, PW2-Raja
and PW3-Ramesh. He proved injury report Ex.P.15-Report of PW1,
Ex.P.16-Report of PW2-Raja and Ex.P.17-Report of PW3-Ramesh. He has
deposed that the injuries are possible in the manner disclosed by the
witnesses. In the cross-examination, he disclosed that he cannot say
possible time of causing the injuries found on the persons of three
witnesses but he opined that the injuries could have been caused within
one hour before he examined them. The opinion of the Doctor in
respect of the timing of injuries is not conclusive based on possibility of
injuries within one hour of the examination when the presence of
prosecution witnesses as also the role attributed to each appellant’s
presence has been found to be proved by the oral testimony. The
opinion of an expert witness cannot be given preference over the
primary statement of the witnesses in respect of manner of injuries
suffered by them.
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33. In respect of the argument that FIR was delivered at 4.45 PM on
13.03.1994 to the Judicial Magistrate at Nagapattinam, though the
report was said to be sent at 9.30 AM, again does not create doubt on
the prosecution version. The argument that the competent Magistrate
was at Thiruvarur but the FIR has been delivered to the Judicial
Magistrate, Nagapattinam which shows that the FIR was ante-timed, is
again not acceptable. PW15-H.C. Narayanan, deposed that he went to
Thiruvarur and waited for the arrival of the Magistrate. Since, it was a
holiday, he handed over the FIR to the Judicial Magistrate at his
residence at Pauthiramanickam at 4.45 PM. Therefore, the delay in the
receipt of the FIR by the Judicial Magistrate is explained and cannot be
made basis to reject the case of the prosecution as the FIR was proved
to be lodged soon after the occurrence from the testimony of PW19-
Police Inspector Ramakrishnan.
34. In respect of an argument that PW1-Ganesamoorthy has given
parentage of all the ten accused in the statement Ex.P.1, but could not
disclose the parentage of three accused in Court shows that the first
version was lodged after prior consultation, is again not tenable. The FIR
was lodged soon after the occurrence when PW2-Raja and PW3-Ramesh
residents of the same village reached the Police Station. Therefore, the
fact that he could not recollect the fathers name of three of the accused
would not create doubt on the case set up by the prosecution.
35. The argument that the place of occurrence is based upon the
statement of PW13-Mahalingam who deposed that the dead body was
17
lying cut in front of Manickam’s house and that the members of the
Dravid Kazhagham left the body in the seating area of his house and
that blood of the deceased was pooled at the seating area of
Manickam’s house, we find that such argument cannot be accepted.
36. PW6-Sankaran, Village Administrative Officer reached the scene of
occurrence immediately on hearing about the incident and deposed that
the dead body of Murugaiyan was lying in front of PW13-Mahalingam’s
house. PW7-Kollimalai has also deposed that the bloodstained earth was
seized from the house of PW13-Mahalingam in his presence and in the
presence of Kunjupillai. The fact remains that houses of PW13-
Mahalingam and that of Manickam are in the same street and at a
distance of half a furlong. The witnesses have deposed the house of
Manickam was locked and residents from the house of Mahalingam
rushed to the place where dead body was lying. It explains the reason
as to why the witnesses have deposed that the dead body was lying
near the house of PW13.
37. The learned trial court found that some discrepancies can be due
to minor errors of perception or observation or due to lapse of memory.
It may be noticed that the witnesses were being examined after more
than six years of the occurrence.
38. It is argued that prosecution has put on trial twenty-four accused,
but presence of A-11 and A-16 to A-24 was doubted by learned trial
court and they were acquitted on benefit of doubt. Five accused, A-10,
A-12, A-13, A-14 and A-15 have been granted benefit of doubt in appeal
18
as well. The argument that the entire case set up is based on falsehood
and thus not reliable for conviction of the appellants, is not tenable. It is
well settled that the maxim “falsus in uno, falsus in omnibus” has no
application in India only for the reason that some part of the statement
of the witness has not been accepted by the trial court or by the High
Court. Such is the view taken by this Court in Gangadhar Behera’s
case, wherein the Court held as under:-
“15. To the same effect is the decision in State of
Punjab v. Jagir Singh
8 and Lehna v. State of Haryana
9
.
Stress was laid by the accused-appellants on the nonacceptance of evidence tendered by some witnesses
to contend about desirability to throw out the 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 a major portion of the evidence is
found to be deficient, in case residue is sufficient to
prove guilt of an accused, notwithstanding acquittal
of a number of other co-accused persons, his
conviction can be maintained. It is the duty of the
court to separate the grain from the chaff. Where
chaff can be separated from the 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 a 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
witnesses cannot be branded as liars. 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 a rule of
caution. All that it amounts to, is that in such cases
testimony may be disregarded, and not that it must
be disregarded. The doctrine merely involves the
question of weight of evidence which a court may
apply in a given set of circumstances, but it is not
8 (1974) 3 SCC 277
9 (2002) 3 SCC 76
19
what may be called “a mandatory rule of evidence”.
(See Nisar Alli v. State of U.P.
10
) Merely because some
of the accused persons have been acquitted, though
evidence against all of them, so far as direct
testimony went, was the same does not lead as a
necessary corollary that those who have been
convicted must also be acquitted. It is always open to
a court to differentiate the accused who had been
acquitted from those who were convicted.
(See Gurcharan Singh v. State of Punjab
11
). The
doctrine is a dangerous one specially in India for if a
whole body of the testimony were to be rejected,
because a witness was evidently speaking an untruth
in some aspect, 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 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
respects 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.
(See Sohrab v. State of M.P.
12
and Ugar Ahir v. State
of Bihar
13
.) An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate the
grain from the chaff, truth from falsehood. Where it is
not feasible to separate the truth from falsehood,
because grain and chaff are inextricably mixed up,
and in the process of separation an absolutely new
case has to be reconstructed by divorcing essential
details presented by the prosecution completely from
the context and the background against which they
are made, the only available course to be made is to
discard the evidence in toto. (See Zwinglee
Ariel v. State of M.P.
14
and Balaka Singh v. State of
Punjab
15
.) As observed by this Court in State of
10 AIR 1957 SC 366
11 AIR 1956 SC 460
12 (1972) 3 SCC 751
13 AIR 1965 SC 277
14 AIR 1954 SC 15
15 (1975) 4 SCC 511
20
Rajasthan v. Kalki
16 normal discrepancies in evidence
are those which are due to normal errors of
observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and
horror at the time of occurrence and those are always
there however honest and truthful a witness may be.
Material discrepancies are those which are not
normal, and not expected of a normal person. Courts
have to label the category to which a discrepancy
may be categorized. While normal discrepancies do
not corrode the credibility of a party's case, material
discrepancies do so. These aspects were highlighted
recently in Krishna Mochi v. State of Bihar
17
.
Accusations have been clearly established against the
accused-appellants in the case at hand. The courts
below have categorically indicated the distinguishing
features in evidence so far as the acquitted and the
convicted accused are concerned.”
39. Therefore, the entire testimony of the witnesses cannot be
discarded only because, in certain aspects, part of the statement has
not been believed.
40. The judgment referred to by learned counsel for the appellants in
Ram Laxman’s case is not applicable to the facts of the present case,
as in that case, the Court found the testimony of the witnesses as
undependable and unreliable so as to grant benefit to some accused
while maintaining the conviction of the others. The Court noticed that
the maxim “falsus in uno, falsus in omnibus” is not applicable.
Therefore, if the witness is reliable and dependable then the entire
statement cannot be discarded.
41. Similarly, in the case of Noushad the Court found that the
statement of PW11 that he has witnessed the incident with much of
16 (1981) 2 SCC 752
17 (2002) 6 SCC 81
21
exactitude as to which accused assaulted his brother with what weapon
cannot be said to have been really witnessed by him. Again, in Suraj
Mal’s case, the Court was examining the legality of conviction under
the provisions of Prevention of Corruption Act, 1947. It was found that
the evidence of witnesses against the two accused was inseparable and
indivisible, when on such evidence one of the accused was acquitted
and not the other accused.
42. All these judgments are in respect of appreciation of evidence of
witnesses in the facts being examined by the Court. The general
principle of appreciation of evidence is that even if some part of the
evidence of witness is found to be false, the entire testimony of the
witness cannot be discarded.
43. The argument that five aruvals (sickles) were recovered only on
the basis of disclosure statement of Ravi (A-1) is not factually correct.
Ex.P.6 is a disclosure statement of Ravi (A-1), whereas, Ex.P.8 is a
disclosure statement of Mohan (A-10), Subbaiyan (A-21), N.
Rajamanickam (died), Santhanam (A-22) and Kannan (A-24).
44. In presence of such disclosure statements, a common
memorandum of recovery as Ex.P.7 was prepared. Therefore, it is not
the confessional statement of one accused which led to recovery of
weapons used in the occurrence but on the basis of confessional
statements of the accused, a common recovery memorandum was
prepared. Such common Memo of recovery of weapons used in the
occurrence cannot create doubt on the prosecution story.
22
45. The argument that non-availability of a Doctor at Kudavasal
stands controverted on the statement of DW4-Balakumaravelu is again
not tenable. DW4-Balakumaravelu is Assistant Doctor in the Kudavasal
Government Hospital who has deposed that doctors were on duty on the
date of occurrence. He has deposed that Doctor Geetha was on duty in
Out-Patient Ward from 7.30 AM. There was no duty at the Out-patient
ward from 3.00 to 5.00 PM on that day. As is given on the record that
the Village Kudavasal falls on the way to Thiruvarur and since the Doctor
was not available, the injured were examined at Government Hospital
Thiruvarur. The testimony of PW17-Doctor Razool has not been
questioned on the ground that the Doctor was available at Kudavasal
Hospital and injuries should have been examined at that place as well.
The only suggestion put to witness is that the injuries could have been
caused within one hour before he examined them. The possibility of
injuries is an opinion which cannot controvert the primary statement of
the witness about the receipt of the injuries in the fateful morning of
13.3.1994.
46. The prosecution has proved the active role played by Ravi (A-1)
and Singaravelu (A-2). The presence of other accused at the time of
occurrence as part of the crowd who lynched Murugaiyan also stands
proved. There is physical severance on the parts of the body of the
deceased. The presence of the appellants were disclosed in the First
Information Report recorded soon after the occurrence. Therefore, there
is no reason to hold that the accused- appellants have been implicated
falsely. It may be noticed that the appellants are also Backward Class
23
Hindus. The prosecution witnesses PW1-Ganesamoorthy, PW2-Raja and
PW3-Ramesh have clearly defined the role of each of the appellants in
the occurrence which has taken the life of the Murugaiyan. Such
statement is corroborated by PW5-Lakshmi wife of the deceased who
deposed that it is Ravi (A-1) and Singaravelu (A-2) who poured kerosene
and lit the matchstick respectively along with twenty-thirty other
persons. Therefore, the active participation of all the appellants stands
proved on record.
47. We do not find any merit in the argument that all the appellants
cannot be said to have common object in view, in the absence of an
overt act attributed to the appellants other than Ravi (A-1) and
Singaravelu (A-2) by PW5-Lakshmi. Even PW5-Lakshmi is categorical
that Ravi (A-1) and Singaravelu (A-2) were accompanied by twenty-thirty
other people. Though she has not named other accused but the fact
that the other accused have been named specifically by PW1-
Ganesamoorthy, PW2-Raja and PW3-Ramesh, clearly shows that all the
accused came as a group to attack the hut of the deceased and then
took his life.
48. In the Joseph’s case as relied upon by the counsel for the
appellants, the Court held that if the prosecution succeeds in improving
the existence of common object amongst the accused and that accused
actuated the prosecution of common object and knew that the death
was likely to be committed, the conviction under Section 302 IPC read
with 149 is made out. The Court held as under:
24
“11.3. What is important in each case is to find out if
the offence was committed to accomplish the
common object of the assembly or was the one which
the members knew to be likely to be committed.
Once the court finds that the ingredients of Section
149 IPC are fulfilled, every person who at the time of
committing that offence was a member of the
assembly has to be held guilty of that offence. After
such a finding, it would not be open to the court to
see as to who actually did the offensive act nor would
it be open to the court to require the prosecution to
prove which of the members did which of the above
two ingredients. Before recording the conviction
under Section 149 IPC, the essential ingredients of
Section 141 IPC must be established.”
49. In the above case, the Court held that as to whether the members
of the unlawful assembly really had the common object to cause the
murder of the deceased has to be decided on the facts and
circumstances of each case. The nature of weapons used by such
members, the manner and sequence of attack made by those members
on the deceased and the circumstances under which the occurrence
took place are the factors to decide as to whether, the accused had
common object. It is an inference to be deduced from the facts and
circumstances of each case. The Court held that there is no evidence to
prove that Accused 1 to 11 had any common object to commit the
murder of Kennedy which activated all of them to join in furtherance of
the common object.
50. In Najabhai’s case, there was no evidence that there was a
common object of murder amongst the accused, as accused No. 1 was
infuriated on the question by the appellant regarding the damage to the
electricity pole near his house. There is nothing on record to suggest
any previous enmity between the parties. Such judgment is again on
25
the appreciation of the evidence in the case in hand.
51. In Gangadhar Behera’s case, while considering the Section 141
of IPC, it was held that common object is not common intention as the
mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that
common object. Common object does not require a prior concert and a
common meeting of minds before the attack. It is enough if each has
the same object in view if the five or more act as an assembly to
achieve that object. The “common object” of an assembly is to be
ascertained from the acts and language of the members composing it,
and from a consideration of all the surrounding circumstances. The
Court while considering the plea that definite roles ascribed to the
accused and therefore Section 149 is not applicable was not accepted. It
is held as under:
“25. The other plea that definite roles have not been
ascribed to the accused and therefore Section 149 is
not applicable, is untenable. A four-Judge Bench of
this Court in Masalti case
18 observed as follows: (AIR
p. 210, para 15)
“15. Then it is urged that the evidence given by
the witnesses conforms to the same uniform
pattern and since no specific part is assigned to
all the assailants, that evidence should not have
been accepted. This criticism again is not well
founded. Where a crowd of assailants who are
members of an unlawful assembly proceeds to
commit an offence of murder in pursuance of the
common object of the unlawful assembly, it is
often not possible for witnesses to describe
accurately the part played by each one of the
assailants. Besides, if a large crowd of persons
armed with weapons assaults the intended
victims, it may not be necessary that all of them
18 AIR 1965 SC 202
26
have to take part in the actual assault. In the
present case, for instance, several weapons were
carried by different members of the unlawful
assembly, but it appears that the guns were used
and that was enough to kill 5 persons. In such a
case, it would be unreasonable to contend that
because the other weapons carried by the
members of the unlawful assembly were not
used, the story in regard to the said weapons
itself should be rejected. Appreciation of evidence
in such a complex case is no doubt a difficult task;
but criminal courts have to do their best in
dealing with such cases and it is their duty to sift
the evidence carefully and decide which part of it
is true and which is not.”
26. To similar effect is the observation in Lalji v. State
of U.P.
19
It was observed that: (SCC p. 441, para 8)
“Common object of the unlawful assembly can be
gathered from the nature of the assembly, arms
used by them and the behaviour of the assembly
at or before the scene of occurrence. It is an
inference to be deduced from the facts and
circumstances of each case.”
27. In State of U.P. v. Dan Singh
20
it was observed
that it is not necessary for the prosecution to prove
which of the members of the unlawful assembly did
which or what act. Reference was made to Lalji case
where it was observed that: (SCC p. 442, para 9)
“While overt act and active participation may
indicate common intention of the person
perpetrating the crime, the mere presence in the
unlawful assembly may fasten vicariously
criminal liability under Section 149.”
28. Above being the position, we find no substance in
the plea that evidence of eyewitnesses is not
sufficient to fasten guilt by application of Section 149.
So far as the observations made in Kamaksha Rai
case
21 are concerned, it is to be noted that the
decision in the said case was rendered in a different
factual scenario altogether. There is always peril in
treating the words of a judgment as though they are
words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the
setting of the facts of a particular case.
19 (1989) 1 SCC 437
20 (1997) 3 SCC 747
21 (1999) 8 SCC 701
27
Circumstantial flexibility, one additional or different
fact may make a world of difference between
conclusions in two cases (see Padma Sundara
Rao v. State of T.N.
22
). It is more so in a case where
conclusions relate to appreciation of evidence in a
criminal trial, as was observed in Krishna Mochi
case.”
52. In Sanjeev Kumar’s case, the conviction under Section 302 with
the aid of Section 149 was maintained when, it was found that there
was no object of killing but only of stopping the deceased and other
contestants from elections. It was held that it cannot be ruled out that
the common intention to kill might have arisen on the spur of the
moment.
53. It is held in the Gangadhar Behera’s case that the words of a
judgment cannot be treated as words in a legislative enactment. It is to
be remembered that judicial orders are made in the setting of the facts
of a particular case. Circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions in two cases,
therefore, whether there was common object of the accused in each
case would depend upon cumulative effects of the facts of that
particular case.
54. In the present case, both the Courts below have found that the
appellants have common object in burning the hut of the deceased and
also attacking the deceased with aruvals (sickles) in view of the role of
the deceased in the affairs of Panchayat against caste Hindus.
Therefore, appellants other than Ravi (A-1) and Singaravelu (A-2) cannot
22 (2002) 3 SCC 533
28
be treated differently to convict them for the offences under Section 326
read with Section 149 IPC as all the accused were part of the unlawful
assembly which has taken the life of the deceased in a murderous
attack on the fateful morning of 13.03.1994.
55. Consequently, we do not find any merit in the present appeals and
the same are dismissed.
The appellants are on bail. They shall surrender within four weeks
to undergo their remaining part of the sentence.
..………………………………………J.
(Sanjay Kishan Kaul)
……..…………………………………J.
(Hemant Gupta)
New Delhi,
February 21, 2019
29
