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

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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 3

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 4

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 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.”  

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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

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

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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

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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 out

and they can at best be punished for the offence under Section 326 read

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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

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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

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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

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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.  

16

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 Singh8 and Lehna v. State of Haryana9. Stress was laid by the accused-appellants on the non- acceptance 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  Punjab11).  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 Bihar13.) 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 Punjab15.)  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. Kalki16 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  Bihar17. 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 case18 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  Singh20 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 case21 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