MAHENDRAN v. THE STATE OF TAMIL NADU

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 A B C D E F G H 386 SUPREME COURT REPORTS [2019] 4 S.C.R. A B C D E F G H 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 MAHENDRAN v. THE STATE OF TAMIL NADU 387 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. A B C D E F G H 388 SUPREME COURT REPORTS [2019] 4 S.C.R. Case Law Reference (2016) 12 SCC 389 held inapplicable Para 15 (2015) 2 SCC 513 (1979) 4 SCC 725 [2017] 12 SCR 452 (2017) 3 SCC 261 referred to referred to referred to referred to [2002] 3 Suppl. SCR 183 referred to [2015] 5 SCR 122 referred to Para 15 Para 15 Para 19 Para 19 Para 23 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 Criminal Appeal No. 1260 of 2010. With 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. A B C D E F G H MAHENDRAN v. THE STATE OF TAMIL NADU [HEMANT GUPTA, J.] 389

#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 (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 A B C D E F G H 390 SUPREME COURT REPORTS [2019] 4 S.C.R. 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 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 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 cross- examination, 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 A B C D E F G H MAHENDRAN v. THE STATE OF TAMIL NADU [HEMANT GUPTA, J.] 391 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 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. A B C D E F

#6. Cut injury, 4" long horizontal and lateral side of left thigh, 4" above knee joint just embracing femur bone. G

#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. H 392 SUPREME COURT REPORTS [2019] 4 S.C.R.

#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.” The cause of death was injury Nos. 1 and 2 due to severing of left carotid artery and jugular veins, leading to profuse haemorrhage, hypo- volume 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 A B C D E F G H MAHENDRAN v. THE STATE OF TAMIL NADU [HEMANT GUPTA, J.] 393 statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh to convict the appellants. A

#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

#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 B C D E F G H 394 SUPREME COURT REPORTS [2019] 4 S.C.R. 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 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 blood- stained 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