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2019 Supreme(SC) 192

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, HEMANT GUPTA, JJ.
MAHENDRAN – APPELLANT
Versus
THE STATE OF TAMIL NADU – RESPONDENT
CRIMINAL APPEAL NO. 1266 OF 2010
WITH
RAVI @GOPU AND ORS. – APPELLANTS
Versus
STATE REP. BY THE DEPUTY SUPERINTENDENT OF POLICE – RESPONDENT
CRIMINAL APPEAL NO. 1260 OF 2010
Decided on : 21-02-2019

Advocates:
Advocate Appeared:
For the Appellant : Mr. V.K. Shukla, Sr. Adv. Ms. V. Mohana, Sr. Adv. Mr. P.B. Suresh, Adv. Mr. Vipin Nair, AOR Mr. Karthik Jayashankar, Adv. Mr. Udayaditya Banerjee, Adv.
For the Respondent: Mr. M. Yogesh Kanna, AOR Mr. S. Partha Sarathi, Adv. Mr. S. Raja Rajeshwaran, Adv.

IMPORTANT POINT
Opinion of expert witness cannot be given preference over primary statement of witnesses in respect of manner of injuries suffered by them.

Headnote:Indian Penal Code, 1860 – Sections 302/149 – Murder – Common object – Conviction and sentence – Presence of witnesses examined by prosecution at place of occurrence is based upon appreciation of evidence by two Courts – Delay in receipt of FIR by Judicial Magistrate is explained and cannot be made basis to reject case of prosecution as FIR was proved to be lodged soon after occurrence – Witnesses were being examined after more than six years of occurrence – Some discrepancies can be due to minor errors of perception or observation or due to lapse of memory – Entire testimony of witnesses cannot be discarded only because in certain aspects, part of statement has not been believed – Presence of other accused at the time of occurrence as part of crowd who lynched deceased also stands proved – There is physical severance on parts of body of deceased – Presence of appellants were disclosed in First Information Report recorded soon after occurrence – There is no reason to hold that accused- appellants have been implicated falsely – Active participation of all appellants stands proved on record – Appeals dismissed. (Paras 29, 33, 37, 39, 46, 54 and 55)
       (B) Criminal Procedure Code, 1973 – Section 291 – Medical evidence – Evidentiary value – Opinion of Doctor in respect of timing of injuries is not conclusive based on possibility of injuries within one hour of examination when presence of prosecution witnesses as also role attributed to each appellant’s presence has been found to be proved by oral testimony – Opinion of expert witness cannot be given preference over primary statement of witnesses in respect of manner of injuries suffered by them. (Para 32)
       (C) Criminal Procedure Code, 1973 – Section 141 – Common object of unlawful assembly – Common object does not require a prior concert and a common meeting of minds before the attack – It is enough if each has same object in view if five or more act as an assembly to achieve that object – Common object of an assembly is to be ascertained from acts and language of members composing it and from a consideration of all surrounding circumstances – Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases – Whether there was common object of accused in each case would depend upon cumulative effects of facts of that particular case. (Paras 51 and 53)
       Facts of Case:
       Murder case. Prosecution had put on trial twenty-four persons for various offences, but trial court found charges proved only against Accused Nos. 1-10 and 12-15 and sentenced to imprisonment as per the order passed in respect of offences proved against them.
       Findings of Court:
       Argument that entire case set up is based on falsehood and thus not reliable for conviction of appellants, is not tenable. It is well settled that the maxim “falsus in uno, falsus in omnibus” has no application in India only for reason that some part of statement of witness has not been accepted by trial court or by High Court.
       Result : Appeals dismissed.

JUDGMENT :

HEMANT GUPTA, J.

1. The Criminal Appeal No. 1266 of 2010 preferred by Mahendran (Accused No. 3), and Criminal Appeal No. 1260 of 2010 preferred by Ravi (Accused No. 1), Singaravelu (Accused No. 2), Iyappan (Accused No. 4), Rajendran (Accused No. 5), Selvaraj (Accused No. 6), Karunakaran (Accused No. 7), Arunachalam (Accused No. 8) and Sundaramoorthy (Accused No. 9) arise out of a common judgment by the Madurai Bench of the Madras High Court on 26.09.2008. The High Court has acquitted Mohan (Accused No. 10), Ravi (Accused No. 12), P. Mohan (Accused No. 13), Palanivel Thevar (Accused No. 14) and Kannan (Accused No. 15) from all charges by granting them benefit of doubt. The accused are referred to with reference to their status before the trial court.

2. The prosecution had put on trial twenty-four persons for various offences, but the learned trial court found the charges proved only against Accused Nos. 1-10 and 12-15 and sentenced to imprisonment as per the order passed in respect of the offences proved against them, whereas, Manivasagam (Accused No.11), Ganapathy (Accused No. 16) Muruganandam (Accused No. 17), Saravanan (Accused No. 18), Kathiah (Accused No. 19), Maiyilaiyam (Accused No. 20), Subbaian (Accused No. 21), Santhanam (Accused No. 22), Mariappan (Accused No. 23) and Kannan (Accused No. 24) were acquitted.

3. Learned counsel for the appellants states that Accused Nos. 8 and 9 have died during the pendency of the appeals. Resultantly, the appeals survive in respect of Accused Nos. 1 to 7 only. One of the accused Balakrishnan had died even before the Charge-sheet could be filed, therefore, was not included in the report filed.

4. Prosecution case was set in motion on the basis of statement of PW1-Ganesamoorthy, resident of Kumbakonam and son-in-law of Murugaiyan-deceased. He stated that on 12.03.1994, he along with his father went to Nangarari, but due to darkness, they decided to stay in his father-in-law's house at Neikuppai.

5. He stated that his father-in-law shared the dispute between him and the Caste Hindus that evening and that dispute was getting intensified and that someone had set fire on the thatched hut in the Pilaiyar street. He also said that a Panchayat was going to be conducted in this regard but he had not informed the police. He stated that on 13.03.1994 at about 7.30 AM, he heard noise at the place of residence when his father had gone to have tea. He and his father-in-law came outside to see what happened. At that stage, A-1 to A-9 and Balakrishnan (since dead) son of Raamaiya Konur were standing with stones and aruvals (sickles). They exhorted that till such time you are alive, you will not allow caste Hindus to live and we won't leave you alive. At that stage, Ravi (A-1) poured the kerosene from tin container and Singaravelu (A-2) set fire to the roof. The hut was set ablaze. His father-in-law ran towards backside of the house, frightened of his life. He also ran behind him. He was questioned as to why he was running? Murugaiyan ran towards barber Mahalingam's house on School street. But the accused hit on the head of Murugaiyan with the sickle, inflicting injuries on the head, hand, leg and back. His father-in-law, Murugaiyan was lying in the pool of blood in front of the house of PW13-Mahalingam having injuries on both legs and shoulders. About 100 persons of caste Hindus were standing around Murugaiyan. At that time PW3-Ramesh and PW2-Raja came but they escaped after being hit with stones. He also escaped without being seen by anybody. On the basis of such statement, FIR Ext.P-13 was lodged at about 8.45 AM against ten accused.

6. PW19-Ramakrishnan is the retired Police Inspector who recorded statement on the basis of which First Information Report was lodged. He was entrusted with the investigations. He sent FIR to the Judicial Magistrate, Thiruvarur at 09.30 A.M. He then went to the place of occurrence in the Village Neikuppai. The sketch Ex.P.18 was prepared of a place in front of Mur

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2019 Supreme(SC) 192

IMPORTANT POINTOpinion of expert witness cannot be given preference over primary statement of witnesses in respect of manner of injuries suffered by them.

Cases Referred (20)

IMPORTANT POINT
Opinion of expert witness cannot be given preference over primary statement of witnesses in respect of manner of injuries suffered by them.