Mahendran v. State of Tamil Nadu; Ravi @ Gopu and Ors. v. State

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, hypovolume shock and death in sequence. He produced his post-mortem report as Ex.P.14.

9. PW17-Dr. Razool also examined informant PW1-Ganesamoorthy on 13.3.1994 at 6.00 PM alleged to be assaulted by stones at 7.30 AM on the same day. The following injuries were reported:

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.”

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 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 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 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 PW[1], 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.

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 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 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:-

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 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.

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 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: “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 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:

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.

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 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