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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1636 OF 2011

Paulmeli & Anr.                                    …Appellants

Versus

State of Tamil Nadu Tr. Insp. of Police                                                              …Respondent  

J U D G M E N T

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 6.10.2009, passed by the High Court of Tamil Nadu  

(Madurai Bench) in Criminal Appeal (MD) No.540 of 2008 affirming  

the judgment  and order dated 18.11.2008,  passed in  Sessions  Case  

No.18 of 2001 by the Addl. District & Sessions Judge (Fast Track  

Court), Ramanathapuram by which and whereunder the appellants had  

been convicted under  Section 302 of  the Indian  Penal  Code,  1860  

(hereinafter referred to as ‘IPC’) and awarded life imprisonment and a

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fine of Rs.2,000/- each, and in default to undergo further RI for six  

months.

2. The  prosecution case is as under:

A. That about 20 years ago,  one Vellaimmal (PW.17, blind and  

deaf), daughter of Paulmelie Thevar,  got married to one Arumugam  

and  a  daughter  was  born  out  of  the  said  wedlock.   The  said  

Arumugam deserted his wife Vellaimmal and married another lady  

which  resulted  in  enmity  between  the  two  families.   Arumugam  

assaulted Vellaimmal and her family.  As a consequence, Ramasamy,  

the uncle of Vellaimmal, with whom she had started living after being  

deserted  by  her  husband  allegedly  murdered  Arumugam,  Ramu  

Thevar and Laxmana Thevar in the year 1981.

B. After a gap of about 20 years of the said incident happened in  

the year 1981, it was alleged that on 30.7.1999, 17 persons including  

the  two  appellants  unlawfully  assembled  together  with  a  common  

object to murder Ramasamy and they came at his house at about 9  

P.M.  when he was sleeping on a cot outside his house.  The accused  

encircled him and caused indiscriminate cuts over his body using an  

Aruval  which  caused  instantaneous  death.   In  order  to  save  

Ramasamy,  his  two  sons,  namely  Paulmeli  and  Vijayasamy  

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intervened and they also got injuries.  After committing the offence,  

accused persons ran away.  The matter was reported to the police by  

one Mr. Setu Raman to Mr. Gandhi (PW.16), the Head Constable of  

Viracholan Police Station. However, as the incident occurred outside  

the  territorial  jurisdiction  of  the  said  police  station,  the  said  Setu  

Raman  informed  the  Inspector  of  Parthi  Banoor  Police  Station  at  

about 11 P.M. who went to the place of occurrence and recorded the  

statement of Malliga (PW.1), wife of deceased.  On the basis of the  

same, an FIR was registered under Sections 147, 148, 324, 326, 307  

and 302 of  the Indian Penal Code,  1860 (hereinafter  referred to as  

‘IPC’) in the morning of next day at 7.30 A.M., wherein 17 accused  

persons including two appellants had been named.  The dead body  

was  sent  for  post-mortem and  the  two sons  of  the  deceased  were  

medically  examined.   The  accused  were  taken  into  custody  on  

different  dates  and  on  their  disclosure  statement,  recoveries  were  

made.   After  completing  the  investigation,  chargesheet  was  filed  

against  17  accused  persons  and  the  case  was  committed  to  the  

Sessions  Court.   The  Trial  Court  vide  judgment  and  order  dated  

27.11.2001 acquitted all the accused.

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C. Aggrieved,  the  complainant  Vijayasamy,  son  of  deceased  

challenged  the  said  order  of  acquittal  by  filing  Criminal  Revision  

No.274  of  2004  before  the  Madras  High  Court  (MD)  which  was  

allowed and the Sessions Court was directed to have the trial afresh.

D. In a fresh trial, prosecution led the evidence wherein Malliga  

(PW.1) supported the case of the prosecution.  Paulmeli (PW.2), the  

injured  did  not  support  the  case  and  thus  was  declared  hostile.  

Another injured Vijayasamy, son of deceased was not examined by  

the prosecution.  Thus, relying upon the evidence of Mallinga (PW.1),  

the Trial Court vide judgment and order dated 18.11.2008 acquitted  

all the accused except the appellants  Paulmeli (A.5) and Chockaiah  

(A.7)  who  were  found  guilty  for  the  offences  punishable  under  

Section 302  IPC and sentenced them as referred to hereinabove.

E. Aggrieved, the appellants preferred the appeal before the High  

Court which has been dismissed vide impugned judgment and order  

dated 6.10.2009.

Hence, this appeal.

3. Ms.  Shirin  Khajuria,  learned  counsel  for  the  appellants  has  

submitted that the courts below have committed an error convicting  

the appellants on the evidence which has been totally disbelieved on  

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the basis of which the other remaining 15 accused stood acquitted.  

More so,  Paulmeli (PW.2), son of deceased did not support the case  

of the prosecution and another injured son of deceased, Vijayasamy  

was not examined by the prosecution.  There was a complete darkness  

in the night thus, the question of identifying the appellants does not  

arise even while Malliga (PW.1) could not identify the appellants in  

darkness.  More so, there had been material discrepancies in respect of  

the manner  and number of injuries caused by the appellants to the  

deceased.  Thus, the appeal deserves to be allowed.

4. Per contra, Shri M. Yogesh Kanna, learned Standing counsel  

appearing for the State, has opposed the appeal contending that the  

parties are closely related.  Therefore, Paulmeli (PW.2) turned hostile,  

but  in  the  examination-in-chief  he  has  named  the  appellants  and  

attributed them the overt act in participation of murder of his father.  

There was sufficient light as per the evidence on record  and Mallinga  

(PW.1)  could identify the appellants being closely related and well-

known even in the darkness.  The discrepancy, if any, in the evidence  

of the witnesses is insignificant as there was no material discrepancy  

which go to the root of the cause.  More so, in a case where a retrial  

was conducted, the witnesses could not give the same version after a  

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long lapse of time.  If some persons had been acquitted disbelieving  

the deposition of Malliga (PW.1), that cannot be a ground for acquittal  

of the appellants.  The appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.

6. Dr. Prakash Karath (PW.11) conducted the autopsy on the dead  

body  of  deceased  on  31.7.1999  and  found  the  following  external  

injuries on the dead body.  

“1). An incised wound of 10 x 4-1/2 x 4cms in front of  

neck on the right side just below the lower border of the  

mandible right from the chin to the angle of mandible.  

The lower skin flab vessels found severed.  Blood clots  

present over the wound.

2). An incised wound of 8-1/2 x 4-1/2 x 4cms in the  

front  of  the  cheek  just  3cm  above  the  supra  external  

notch 3cms on the right side  midline 5-1/2cm on the left  

side  in  the  horizontal  direction.   Trachea  found  cut.  

Vessels  found  severed.   The  cut  ends  are  regular  and  

smooth.  Blood clots seen on the wound.

3). An incised wound of 13 x 3-1/2 x 3 cm on the back  

of neck 3 cm from the midline extending just below the  

lower border of left mandible upto the chin.  The medial  

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end  in  the  front  is  tapering.   Underlying  vessels  and  

muscles severed.

4). An  incised  wound  of  15  x  3-1/2  x  2-1/2cms  

extending from the nose in the midline towards the right  

side  of  neck  just  below  the  right  ear  in  the  oblique  

direction,  medial  end  of  the  wound  is  tampering.  

Maxillary bone found cut.  Blood clots present.

5). A Elliptical  incised wound of 2-1/2 x 1cm bone  

depth just above the injury number 4.

6). An elliptical stab wound of 6 x 2-1/2 x 8cms.  The  

wound found communicate with the thoracic cavity on  

the right side in the front of chest just below the right  

clavicle.

7). An elliptical incised wound of 5 x 2 x 1cms on the  

medial end of left clavicle.

8). An elliptical stab wound of 6 x 2-1/2 x 7-1/2cms  

on the front of the left chest just below the middle of the  

left clavicle to 2.5 cm medial to the anterior axillary line.

9). An  elliptical  incised  wound  of  4  x  1-1/2  x  1-

1/2cms  on  the  lateral  aspect  of  right  shoulder  in  A.P.  

direction.

10) An incised wound of 1-1/2 x 1-1/2 x 1cm on the  

front of right shoulder in the horizontal direction.

11) An incised wound of 6 x 1-1/2 skin depth on the  

back of right elbow towards the right forearm in vertical  

direction.

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12) An incised wound of 6 x 1-1/2 x skin depth on the  

back of right forearm in horizontal direction.

13) An incised wound of 1-1/2 x ½ x 1/2cms on the  

ulna border of right forearm.

14) An incised wound of 10 x 6 cms x bone depth on  

the dorsal aspect of right hand. The meta carpal bone of  

right  index  and  middle  finger  found  partially  cut  and  

right  index  finger  found  missing  at  the  level  of  

metacarpus  phelengeal  joint.  Blood clots  found on the  

wound.

15) An incised wound of 3-1/2 X ¼ x bone depth on  

the dorsal aspect of left ring finger.

All the above wounds found with blood clots.”

7. Vijayasamy,  the son of  the deceased was also injured in the  

occurrence.   He  was  treated  by  Dr.  Maheswaran  (PW.22)  and  he  

issued  Ex.P.40-Accident  Register  copy.   He  found  the  following  

injuries:

        “1) Cut injury back of neck (L) 5 cm x 1 cm skin deep.

2) Cut injury back of  left  supra 7cm x 7cm x 3cm  

mandible deep.

3) Cut injury back of left forearm 4cm x 2cm x skin  

deep.”

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8. On the same day, Dr. Maheswaran (PW.22) examined Paulmeli  

(PW.2) and he issued Ex.P.39-Accident Register Copy.  He found the  

following injury:

“1) Cut injury back left elbow 7” x 5” exposing  

bone, with skin deep.”

M.O.1 is the X-Ray taken for Vijayasamy and M.O.2 is the X-Ray  

taken for Paulmeli by Dr. Indrani (PW.12), Radiologist.

9. There  had  been  recovery  on  the  disclosure  statement  of  the  

accused.   So  far  as  the  present  appellants  are  concerned  in  their  

statement  under  Section 313 of  Code of  Criminal  Procedure,  1973  

(hereinafter  referred  to  as  the  `Cr.P.C.’),  they  denied  their  

involvement and did not lead any evidence in their defence.

10. In the instant case,  Malliga (PW.1), wife of deceased,  in the  

FIR, in her statement under Section 161 Cr.P.C. and in her deposition  

in the court, had specifically named both the appellants.  Even though,  

she had named other persons also.  The appellants had been known to  

the said witness for a long time as they were closely related.  There  

was sufficient light as per the evidence on record even otherwise there  

can be no difficulty to recognise  so closely related persons even in  

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darkness.  The injuries found on the person of the deceased are duly  

supported  by medical  evidence  as  well  as  got  corroborated by the  

deposition  of  Malliga  (PW.1).   The concurrent  findings  have  been  

recorded by the courts below in this regard.  We do not find any force  

in the submissions advanced by Ms. Khajuria, learned counsel for the  

appellants that the injuries attributed  to the appellants could not be  

caused by Aruval as the findings recorded by the trial court in this  

regard is that all injuries may be caused by the attack of Aruval.  It has  

further been held by the trial court that the appellants herein came  

with  Aruval  and  attacked  the  deceased  indiscriminately  causing  

injuries  on  the  neck,  chest  and  other  parts  of  the  body,  though,  

inadvertently, the trial court has mentioned that the injuries found on  

all over the body, had caused the death.   

11. More so, with respect to various issues raised by the learned  

counsel  for  the  appellants  in  respect  of  the  injuries  found  on  the  

person of the deceased, questions have not been put to the doctor who  

conducted the postmortem when he appeared in the witness box. In  

fact, he was the only competent person who could have furnished the  

explanation for all such issues.  

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It is a settled legal proposition that in case the question is not  

put to the witness in cross-examination who could furnish explanation  

on a particular issue, the correctness or legality of the said fact/issue  

could not be raised. (Vide: Atluri Brahmanandam (D), Thr. LRs. v.  

Anne Sai Bapuji, AIR 2011 SC 545; and Laxmibai (dead) Thr. L.Rs.  

& Anr. v. Bhagwantbuva (dead) Thr. L.Rs.  & Ors., AIR 2013 SC  

1204).

12. In respect  of  the  deposition  of  Ganesan  (PW.3),  it  has  been  

submitted that he may not be a trustworthy witness as he is not an  

independent witness. His evidence revealed that he reached the place  

after the incident was over and he saw the accused people leaving the  

place of occurrence. Had he not been a truthful witness he could have  

definitely improved his version and could depose describing the overt  

acts of the appellants.  Therefore, the submission so advanced has no  

force.  

13. So  far  as  the  issue  of  presence  of  light  at  the  place  of  

occurrence at the relevant time, the trial court recorded the findings to  

the fact that there was sufficient light.  The High Court reappreciated  

the evidence and came to the conclusion that  admittedly there was  

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light  in  the  facet  of  the  house  and  there  was  also  street  light  

illuminating  the  place  of  occurrence.   Even  in  the  observation  

Mahazar  Ex.P-18,  the  light  has  been  shown.   The  evidence  of  

Kumareshan  (PW.19),  the  wireman  of  Electricity  Board,  was  

examined  to  prove  the  fact  that  at  the  relevant  point  of  time,  the  

electricity was in supply at the place of occurrence.  There is some  

discrepancy in the statement of Malliga (PW.1) in this regard but she  

might  have  not  been  able  to  give  exact  specific  account  being  an  

illiterate village woman and as the appellants have not been strangers,  

there could be no difficulty for her to identify the appellants even in  

the darkness.  

14. The Trial  Court  recorded  the  finding  that  the  FIR had  been  

lodged promptly. The High Court reappreciated the full particulars as  

under what circumstance the FIR had been lodged. The relevant parts  

thereof reads as under:  

“31. The evidence on record would show that there is no  delay  in  registering  the  F.1.R.  after  the  receipt  of  the  complaint.  P.W.21 registered the F.I.R. at 00.45 hours  and  send  the  same  to  the  Judicial  Magistrate  through  P.W.14 - Mohamed Sherif.  P.W.14 received the F.I.R. at  2.15 A.M. Since it was night, at 6.00 A.M. he proceeded  to  the  Paramakudi  Judicial  Magistrate's  Court.  Since  nobody was there he went to the house of Head Clerk of  Paramakudi  Judicial  Magistrate's  Court,  where  he  was  

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informed that Judicial Magistrate No.2, Ramanathapuram  was the incharge Magistrate. So, he went to the Judicial  Magistrate  Court  No.2,  Ramanathapuram.  At  that  time  the Judicial Magistrate was conducting cases. and later he  gave  the  F.I.R.  to  the  Judicial  Magistrate.   So,  the  explanation  offered  by the  Judicial  Magistrate  is  quite  convincing. So, there no delay in registering the F.I.R.”  

Thus,  there  can  be  no  doubt  that  the  FIR  had  been  lodged  

promptly.  

15.  Paulmeni (PW.2) has supported the case of the prosecution so  

far as the present appellants are concerned. He was declared hostile  

when he did not name the other accused, who stood acquitted by the  

courts below and there could be no difficultly to accept his deposition  

to that extent.    

16. This Court in Ramesh Harijan v. State of U.P., AIR 2012 SC  

1979 while dealing with the issue held:

“It is a settled legal proposition that the evidence of a   prosecution  witness  cannot  be  rejected  in  toto  merely   because the prosecution chose to treat him as hostile and   cross  examine  him.  The  evidence  of  such  witnesses   cannot be treated as effaced or washed off  the record   altogether  but  the same can be accepted  to  the  extent   that their version is found to be dependable on a careful   scrutiny thereof.(Vide:  Bhagwan Singh v. The State of   Haryana,  AIR 1976 SC 202;  Rabindra Kumar Dey v.   State of Orissa, AIR 1977 SC 170; Syad Akbar v. State   of  Karnataka,  AIR  1979  SC  1848;  and  Khujji @  

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Surendra Tiwari v. State of Madhya Pradesh, AIR 1991  SC 1853).”

17. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996  

SC 2766, this Court held that evidence of a hostile witness would not  

be  totally  rejected  if  spoken  in  favour  of  the  prosecution  or  the  

accused but required to be subjected to close scrutiny and that portion  

of the evidence which is consistent with the case of the prosecution or  

defence can be relied upon.  

A similar  view has been reiterated by this Court  in  Sarvesh  

Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; Subbu  

Singh  v.  State  by  Public  Prosecutor,  (2009)  6  SCC  462;  C.  

Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and  

Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36).  

Thus, the law can be summarised to the effect that the evidence  

of a hostile witness cannot be discarded as a whole, and relevant parts  

thereof which are admissible in law, can be used by the prosecution or  

the defence.  

18. Learned counsel for the appellants submits that in case, on the  

basis of the same evidence, 15 accused persons had been acquitted,  

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the appellants could not have been convicted.  We do not find any  

force  in  such a  submission for  the reason that  there  may be  some  

exaggeration in depositions of the prosecution witnesses. The courts  

below had not accepted the evidence to that extent and have given  

benefit of doubt.  

19. In  Balka Singh & Ors.  v.  State  of  Punjab,  AIR 1975 SC  

1962, this Court considered a similar issue, placing reliance upon its  

earlier  judgment  in  Zwinglee  Ariel  v.  State of  Madhya Pradesh,  

AIR 1954 SC 15 and held as under:

"The Court must make an attempt to separate grain from   the chaff, the truth from the falsehood, yet this could only   be  possible  when  the  truth  is  separable  from  the   falsehood. Where the grain cannot be separated from the   chaff because the grain and the chaff are so inextricably   mixed  up that  in  the  process  of  separation,  the  Court   would have to reconstruct an absolutely new case for the   prosecution by divorcing the essential details presented   by the prosecution completely from the context and the   background  against  which  they  are  made,  then  this   principle will not apply."

20. In  Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC  

3678, this Court held as under:

"It is indeed necessary however to note that there would   hardly  be  a  witness  whose  evidence  does  not  contain   some  amount  of  exaggeration  or  embellishment,   sometimes there would be a deliberate attempt to offer   

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the  same  and  sometimes  the  witnesses  in  their  over   anxiety to do better from the witness-box details out an   exaggerated account."

21. A similar  view has  been  reiterated  in  Appabhai  & Anr.  v.  

State  of  Gujarat,  AIR  1988  SC  696,  wherein  this  Court  has  

cautioned the courts  below not to give undue importance to minor  

discrepancies which do not shake the basic version of the prosecution  

case.  The court  by calling into aid its  vast  experience of  men and  

matters in different cases must evaluate the entire material on record  

by excluding the exaggerated version given by any witness for the  

reason that  witnesses  now a days  go on adding embellishments  to  

their version perhaps for the fear of their testimony being rejected by  

the court. However, the courts should not disbelieve the evidence of  

such witnesses altogether if they are otherwise trustworthy.

22. In  Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this  

Court had taken note of its various earlier judgments and held that  

even if major portion of the evidence is found to be deficient, in case  

residue is sufficient to prove guilt of an accused, it is the duty of the  

court  to  separate  grain  from  chaff.  Falsity  of  particular  material  

witness or material particular would not ruin it from the beginning to  

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end. The maxim falsus in uno falsus in omnibus (false in one thing,  

false in everything) has no application in India and the witness cannot  

be branded as a liar.In case this maxim is applied in all the cases it is  

to be feared that administration of criminal justice would come to a  

dead stop. Witnesses just cannot help in giving embroidery to a story,  

however, truth is the main. Therefore, it has to be appraised in each  

case as to what extent the evidence is worthy of credence, and merely  

because  in  some  respects  the  court  considers  the  same  to  be  

insufficient or unworthy of reliance, it does not necessarily follow as a  

matter of law that it must be disregarded in all respects as well.

23. In view of the above, we are of the considered opinion that the  

appeal is devoid of any merit and is accordingly dismissed.   

....…….……………………..J.           (Dr. B.S. CHAUHAN)

                                      .....……………………………J.                                             (A.K. SIKRI)  

New Delhi,                                         May 23, 2014

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