# MAHENDRAN v. THE STATE OF TAMIL NADU

- **Citation:** [2019] 4 S.C.R. 383
- **Court:** Supreme Court of India
- **Decided:** 2019-02-21
- **Case number:** Criminal Appeal No. 1266 of 2010
- **Bench:** Sanjay Kishan Kaul, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahendran-v-the-state-of-tamil-nadu-33649
- **Pages:** 26

## Headnote

Penal Code, 1860 - ss.141, 149, 302 and 326 - Statement of
PW1-son-in-law of one 'M', that on 12.03.94 while going to
Nangarari with his father, due to darkness they decided to stay at
his father-in-law's house - He stated that his father-in-law shared
the dispute between him and the Caste Hindus - On 13.03.1994 at
about 7.30 AM, he heard noise when he and his father-in-law came
outside to see what happened - A-1 to A-9 were standing with stones
and aruvals (sickles) - A-1 poured the kerosene from tin container
and A-2 set fire to the hut of PW1's father in law - PW1's father-inlaw ran towards backside of the house - Accused hit on his head
with the sickle - PW1's father-in-law died - 24 persons put on trial
- Trial court found the charges proved only against accused nos.110 and 12-15, acquitting accused nos.11 and 16-24 - High Court
acquitted accused nos. 10 and 12-15 by granting them benefit of
doubt - On appeal by accused nos.1-9 (8 & 9 died during the
pendency of the appeal), held: Presence of the appellants were
disclosed in the FIR recorded soon after the occurrence - No reason
to hold that the accused-appellants have been implicated falsely -
Prosecution witnesses PW1, PW2 and PW3 clearly defined the role
of each of the appellants in the occurrence which took the life of
PW1's father-in-law- Such statement is corroborated by PW5 (PW1's
mother-in-law) - Active participation of all the appellants stands
proved on record - Both the Courts below found that the appellants
had 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 -
Appellants other than A-1 and A-2 cannot be treated differently to
convict them for the offences u/s.326 r/w. s.149 IPC as all the
accused were part of the unlawful assembly which took the life of
PW1's father-in-law in a murderous attack.
[2019] 4 S.C.R. 383
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Penal Code, 1860 - s.141 - Unlawful assembly - Common
Object of - Discussed.
Maxims -"falsus in uno, falsus in omnibus" - Application of, in
India - Held: The maxim has no application in India - Entire
testimony of the witnesses cannot be discarded only because, in
certain aspects, part of the statement has not been believed -
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 - Witnesses - Evidence
of - General principle of appreciation.
Judgments/Orders - Interpretaion of - Discussed.
Dismissing the appeals, the Court
HELD: 1.1 The statement of PW1 was recorded at 8.45
AM by PW19-Police Inspector soon after the occurrence.
Lodging of the FIR by PW1 is supported by PW2 and PW3 who
have found that PW1 was already in Police Station lodging the
complaint. The testimony of PW19 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. The trial court and the High Court
have believed the prosecution version in this respect. PW1
disclosed the receipt of injuries on the body of his father-in-law
and denied the suggestion that he does not know how his fatherin-law was killed, how his father-in-law's hut was set on fire and
he did not go to Neikuppai Village. 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
is corroborated by PW2 who is resident of same Village as that of
the deceased. He also deposed that houses of PW13 and one
Manickam are situated on the School street, one facing North
and the other facing South and at 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 PW1

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MAHENDRAN
v.
THE STATE OF TAMIL NADU
(Criminal Appeal No. 1266 of 2010)
FEBRUARY 21, 2019
[SANJAY KISHAN KAUL AND HEMANT GUPTA , JJ.]
Penal Code, 1860 - ss.141, 149, 302 and 326 - Statement of
PW1-son-in-law of one 'M', that on 12.03.94 while going to
Nangarari with his father, due to darkness they decided to stay at
his father-in-law's house - He stated that his father-in-law shared
the dispute between him and the Caste Hindus - On 13.03.1994 at
about 7.30 AM, he heard noise when he and his father-in-law came
outside to see what happened - A-1 to A-9 were standing with stones
and aruvals (sickles) - A-1 poured the kerosene from tin container
and A-2 set fire to the hut of PW1's father in law - PW1's father-inlaw ran towards backside of the house - Accused hit on his head
with the sickle - PW1's father-in-law died - 24 persons put on trial
- Trial court found the charges proved only against accused nos.110 and 12-15, acquitting accused nos.11 and 16-24 - High Court
acquitted accused nos. 10 and 12-15 by granting them benefit of
doubt - On appeal by accused nos.1-9 (8 & 9 died during the
pendency of the appeal), held: Presence of the appellants were
disclosed in the FIR recorded soon after the occurrence - No reason
to hold that the accused-appellants have been implicated falsely -
Prosecution witnesses PW1, PW2 and PW3 clearly defined the role
of each of the appellants in the occurrence which took the life of
PW1's father-in-law- Such statement is corroborated by PW5 (PW1's
mother-in-law) - Active participation of all the appellants stands
proved on record - Both the Courts below found that the appellants
had 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 -
Appellants other than A-1 and A-2 cannot be treated differently to
convict them for the offences u/s.326 r/w. s.149 IPC as all the
accused were part of the unlawful assembly which took the life of
PW1's father-in-law in a murderous attack.
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SUPREME COURT REPORTS
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Penal Code, 1860 - s.141 - Unlawful assembly - Common
Object of - Discussed.
Maxims -"falsus in uno, falsus in omnibus" - Application of, in
India - Held: The maxim has no application in India - Entire
testimony of the witnesses cannot be discarded only because, in
certain aspects, part of the statement has not been believed -
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 - Witnesses - Evidence
of - General principle of appreciation.
Judgments/Orders - Interpretaion of - Discussed.
Dismissing the appeals, the Court
HELD: 1.1 The statement of PW1 was recorded at 8.45
AM by PW19-Police Inspector soon after the occurrence.
Lodging of the FIR by PW1 is supported by PW2 and PW3 who
have found that PW1 was already in Police Station lodging the
complaint. The testimony of PW19 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. The trial court and the High Court
have believed the prosecution version in this respect. PW1
disclosed the receipt of injuries on the body of his father-in-law
and denied the suggestion that he does not know how his fatherin-law was killed, how his father-in-law's hut was set on fire and
he did not go to Neikuppai Village. 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
is corroborated by PW2 who is resident of same Village as that of
the deceased. He also deposed that houses of PW13 and one
Manickam are situated on the School street, one facing North
and the other facing South and at 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's house. Similar
is the statement of PW3 that A-1 poured the kerosene from a tin
container on the roof of hut of the deceased and A-2 set ablaze
the hut. Even PW5-wife of the deceased also deposed that A-1
poured kerosene and A-2 lit the matchstick. She stated that there
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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, PW2 and PW3. 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. It is not found that such appreciation is perverse
or wholly untenable which may warrant interference in the present
appeals. There is no reasonable basis to hold that PW1 would
not stay with his father-in-law in the circumstances explained by
him. [Paras 26-30][397-A-H; 398-A-B]
1.2 The FIR was lodged soon after the occurrence when
PW2 and PW3, residents of the same village reached the Police
Station. Therefore, the fact that PW1 could not recollect the fathers
name of three of the accused would not create doubt on the case
set up by the prosecution. [Para 34] [399-D]
1.3 The trial court found that some discrepancies can be
due to minor errors of perception or observation or due to lapse
of memory. The witnesses were being examined after more than
six years of the occurrence. 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.
Therefore, the entire testimony of the witnesses cannot be
discarded only because, in certain aspects, part of the statement
has not been believed. [Paras 37-39][400-B-D; 402-E]
1.4 If the witness is reliable and dependable then the entire
statement cannot be discarded. 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. Ex.P.6 is a disclosure statement of A-1,
whereas, Ex.P.8 is a disclosure statement of A-10, A-21, one 'N.R'
(died), A-22 and A-24. 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
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common recovery memorandum was prepared. Such common
Memo of recovery of weapons used in the occurrence cannot
create doubt on the prosecution story. DW4 is Assistant Doctor
in the Kudavasal Government Hospital who has deposed that
doctors were on duty on the date of occurrence. He deposed that
Doctor 'G' 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 'R' 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. The prosecution has proved
the active role played by A-1 and 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.
The prosecution witnesses PW1, PW2 and PW3 have clearly
defined the role of each of the appellants in the occurrence which
has taken the life of the the deceased. Such statement is
corroborated by PW5-wife of the deceased who deposed that it is
A-1 and 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. [Paras 40, 42-46][403-B-H; 404-A-D]
1.5 There is no 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 A-1 and A-2
by PW5. Even PW5 is categorical that A-1 and A-2 were
accompanied by twenty-thirty other people. Though she has not
named other accused but the fact that the other accused have
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been named specifically by PW1, PW2 and PW3, clearly shows
that all the accused came as a group to attack the hut of the
deceased and then took his life. 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. [Paras 47, 51][404-D, E;
405-F, G]
1.6 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. 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 A-1 and A-2 cannot 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. [Paras 53, 54][407-F-H;
408-A, B]
Ram Laxman v. State of Rajasthan (2016) 12 SCC 389
- held inapplicable.
Noushad alias Noushad Pasha and Others v. State of
Karnataka (2015) 2 SCC 513; Suraj Mal v. State (Delhi
Administration) (1979) 4 SCC 725; Joseph v. State,
Represented by Inspector of Police (2018) 12 SCC 283 :
[2017] 2 SCR 452; Najabhai Desurbhai Wagh v.
Valerabhai Deganbhai Vagh and Others (2017) 3 SCC
261; Gangadhar Behera and Others v. State of Orissa
(2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; Sanjeev
Kumar Gupta v. State of Uttar Pradesh (2015) 11 SCC
69 : [2015] 5 SCR 122 - referred to.
MAHENDRAN v. THE STATE OF TAMIL NADU
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Case Law Reference
(2016) 12 SCC 389
held inapplicable
Para 15
(2015) 2 SCC 513
referred to
Para 15
(1979) 4 SCC 725
referred to
Para 15
[2017] 12 SCR 452
referred to
Para 19
(2017) 3 SCC 261
referred to
Para 19
[2002] 3 Suppl. SCR 183
referred to
Para 23
[2015] 5 SCR 122
referred to
Para 24
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1266 of 2010
From the Judgment and Order dated 26.09.2008 of the High Court
of Madras (Madurai Bench) in Criminal Appeal No. 586 of 2001
With
Criminal Appeal No. 1260 of 2010.
V. K. Shukla, Ms. V. Mohana, Sr. Advs., P. B. Suresh, Vipin Nair,
Karthik Jayashankar, Udayaditya Banerjee, Advs. for the Appellant.
M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Advs.
for the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. 1. 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 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.
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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
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 (A2) 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
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injuries on both legs and shoulders. About 100 persons of caste Hindus
were standing around Murugaiyan. At that time PW3-Ramesh and PW2Raja came but they escaped after being hit with stones. He also escaped
without being seen by anybody. On the basis of such 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; bloodstained 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 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
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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", 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 sternoMastoid 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 1⁄2" 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.
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9. Complete severing of left wrist separating the hand from its
joints, cutting the radial and ulnar arteries with only 1⁄2 " broadskin 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."
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 PW1Ganesamoorthy 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. 1⁄2 " diameter recent abrasion with surrounded edema over
right eye brow."
"1. Recent contusion with blood clot 1⁄2" 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
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statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh to
convict the appellants.
12. Learned counsel for the appellants argued that PW1Ganesamoorthy 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
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
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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 Karnataka2and 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.
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 PW1Ganesamoorthy, 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
1 (2016) 12 SCC 389
2 (2015) 2 SCC 513
3 (1979) 4 SCC 725
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out and they can at best be punished for the offence under Section 326
read with Section 149 IPC. The reliance is placed upon the Supreme
Court judgment reported as Joseph vs. State, Represented by
Inspector of Police4and 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- 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
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5 (2017) 3 SCC 261
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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 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 PW1Ganesamoorthy for the reason inter alia that he was not present at the
6 (2002) 8 SCC 381
7 (2015) 11 SCC 69
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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
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 PW1Ganesamoorthy 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
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 PW5Lakshmi 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.
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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 PW1Ganesamoorthy 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 time of occurrence as doubtful. The said fact when examined in the
context of a complete statement loses its significance. As per PW1Ganesamoorthy 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 PW1Ganesamoorthy, 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.17Report 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.
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
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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 PW3Ramesh 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
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 PW13Mahalingam'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
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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 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.