Mahendran vs The State of Tamil Nadu

Maxims –”falsus in uno, falsus in omnibus” – Application of, in India – Held: The maxim has no application in India – Entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed – General principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded – Witnesses – Evidence of – General principle of appreciation.

Judgments/Orders – Interpretaion of – Discussed. Dismissing the appeals, the Court

HELD: 1.1 The statement of PW1 was recorded at 8.45 AM by PW19-Police Inspector soon after the occurrence. Lodging of the FIR by PW1 is supported by PW2 and PW3 who have found that PW1 was already in Police Station lodging the complaint. The testimony of PW19 regarding lodging of FIR at

8.45 AM is not discredited in the cross-examination. He denied such suggestion and also the suggestion that the documents were sent to the Court at 4.15 PM. The trial court and the High Court have believed the prosecution version in this respect. PW1 disclosed the receipt of injuries on the body of his father-in-law and denied the suggestion that he does not know how his fatherin-law was killed, how his father-in-law’s hut was set on fire and he did not go to Neikuppai Village. In the re-examination, he deposed that five sickles recovered were approximately 1ft in length; some may be longer or shorter. Such statement of PW1 is corroborated by PW2 who is resident of same Village as that of the deceased. He also deposed that houses of PW13 and one Manickam are situated on the School street, one facing North and the other facing South and at a distance of half a furlong. At the time of incident Manickam’s house was locked and people came running to Manickam’s house from PW13’s house. Similar is the statement of PW3 that A-1 poured the kerosene from a tin container on the roof of hut of the deceased and A-2 set ablaze the hut. Even PW5-wife of the deceased also deposed that A-1 poured kerosene and A-2 lit the matchstick. She stated that there were other twenty or thirty people standing around as a group. The fact that she has not named other accused, will not absolve the role of the appellants, as their presence is disclosed by three other prosecution witnesses i.e. PW1, PW2 and PW3. The presence of witnesses examined by the prosecution at the place of occurrence is based upon the appreciation of the evidence by the two Courts. It is not found that such appreciation is perverse or wholly untenable which may warrant interference in the present appeals. There is no reasonable basis to hold that PW1 would not stay with his father-in-law in the circumstances explained by him. [Paras 26-30][397-A-H; 398-A-B]

1.2 The FIR was lodged soon after the occurrence when PW2 and PW3, residents of the same village reached the Police Station. Therefore, the fact that PW1 could not recollect the fathers name of three of the accused would not create doubt on the case set up by the prosecution. [Para 34] [399-D]

1.3 The trial court found that some discrepancies can be due to minor errors of perception or observation or due to lapse of memory. The witnesses were being examined after more than six years of the occurrence. The argument that the entire case set up is based on falsehood and thus not reliable for conviction of the appellants, is not tenable. It is well settled that the maxim “falsus in uno, falsus in omnibus” has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed. [Paras 37-39][400-B-D; 402-E]

1.4 If the witness is reliable and dependable then the entire statement cannot be discarded. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded. Ex.P.6 is a disclosure statement of A-1, whereas, Ex.P.8 is a disclosure statement of A-10, A-21, one ‘N.R’ (died), A-22 and A-24. It is not the confessional statement of one accused which led to recovery of weapons used in the occurrence but on the basis of confessional statements of the accused, a common recovery memorandum was prepared. Such common Memo of recovery of weapons used in the occurrence cannot create doubt on the prosecution story. DW4 is Assistant Doctor in the Kudavasal Government Hospital who has deposed that doctors were on duty on the date of occurrence. He deposed that Doctor ‘G’ was on duty in Out-Patient Ward from 7.30 AM. There was no duty at the Out-patient ward from 3.00 to 5.00 PM on that day. As is given on the record that the Village Kudavasal falls on the way to Thiruvarur and since the Doctor was not available, the injured were examined at Government Hospital Thiruvarur. The testimony of PW17-Doctor ‘R’ has not been questioned on the ground that the Doctor was available at Kudavasal Hospital and injuries should have been examined at that place as well. The only suggestion put to witness is that the injuries could have been caused within one hour before he examined them. The possibility of injuries is an opinion which cannot controvert the primary statement of the witness about the receipt of the injuries in the fateful morning of 13.3.1994. The prosecution has proved the active role played by A-1 and A-2. The presence of other accused at the time of occurrence as part of the crowd who lynched Murugaiyan also stands proved. There is physical severance on the parts of the body of the deceased. The presence of the appellants were disclosed in the First Information Report recorded soon after the occurrence. Therefore, there is no reason to hold that the accused- appellants have been implicated falsely. The prosecution witnesses PW1, PW2 and PW3 have clearly defined the role of each of the appellants in the occurrence which has taken the life of the the deceased. Such statement is corroborated by PW5-wife of the deceased who deposed that it is A-1 and A-2 who poured kerosene and lit the matchstick respectively along with twenty-thirty other persons. Therefore, the active participation of all the appellants stands proved on record. [Paras 40, 42-46][403-B-H; 404-A-D]

1.5 There is no merit in the argument that all the appellants cannot be said to have common object in view, in the absence of an overt act attributed to the appellants other than A-1 and A-2 by PW5. Even PW5 is categorical that A-1 and A-2 were accompanied by twenty-thirty other people. Though she has not named other accused but the fact that the other accused have been named specifically by PW1, PW2 and PW3, clearly shows that all the accused came as a group to attack the hut of the deceased and then took his life. Common object does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view if the five or more act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. [Paras 47, 51][404-D, E; 405-F, G]

1.6 Judicial orders are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases, therefore, whether there was common object of the accused in each case would depend upon cumulative effects of the facts of that particular case. In the present case, both the Courts below have found that the appellants have common object in burning the hut of the deceased and also attacking the deceased with aruvals (sickles) in view of the role of the deceased in the affairs of Panchayat against caste Hindus. Therefore, appellants other than A-1 and A-2 cannot be treated differently to convict them for the offences under Section 326 read with Section 149 IPC as all the accused were part of the unlawful assembly which has taken the life of the deceased in a murderous attack on the fateful morning of 13.03.1994. [Paras 53, 54][407-F-H; 408-A, B]

Ram Laxman v. State of Rajasthan (2016) 12 SCC 389 – held inapplicable.

Noushad alias Noushad Pasha and Others v. State of Karnataka (2015) 2 SCC 513; Suraj Mal v. State (Delhi Administration) (1979) 4 SCC 725; Joseph v. State, Represented by Inspector of Police (2018) 12 SCC 283 : [2017] 2 SCR 452; Najabhai Desurbhai Wagh v.

Valerabhai Deganbhai Vagh and Others (2017) 3 SCC 261; Gangadhar Behera and Others v. State of Orissa (2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; Sanjeev Kumar Gupta v. State of Uttar Pradesh (2015) 11 SCC

69 : [2015] 5 SCR 122 – referred to.