POSTMAN VENGAISAMY & ORS. versus STATE REPRESENTED BY INSPECTOR OF POLICE & ORS. on 24 July 2019

1. The present appeal survives only in respect of Accused No. 1– Postman Vengaisami (A-1), Accused No. 11 – Thalaiyaripandi(A-11)and Accused No. 15 – Vellachamy(A-15),as Accused No. 9 –Rathinettamatiyan(A-9), Accused No. 10 – Kotti @ Kotteswaran (A-10) and Accused No. 12 – Neelamegavannan(A-12) have completedtheir sentence and had since been released from custody.

2. 15 accused were made to stand trial before Principal SessionsJudge, Virudunagar District at Srivilliputtur. The learned trial court videjudgment dated December 7, 2007 convicted A-1, A-9, A-10, A-11, A-12 and A-15 for the offences punishable under Sections 148, 302 readwith Section 149 IPC, whereas A-11 was also sentenced for an offencepunishable under Section 506 (Part II) IPC. Thirumeni (A-4) andNeelamegam @ Valadukai Neelamegam (A-14) died even beforeframing of charges by the learned trial court, whereas other accusedpersons i.e. Karnan (A-2), Krishnamurthi (A-3), Lingam (A-5),Poovalingam (A-6), Kesavan (A-7), Ramalingam (A-8) and Arjunan(A-13) were sentenced for a period of one or two years for the offencespunishable under Sections 342 and 324 IPC. Such accused did not fileany appeal before the High Court as well. However, in appeal by otheraccused, the High Court confirmed the sentence imposed, except inrespect of Poovalingam (A-6), who was convicted for an offence underSection 324 IPC and sentenced to one year rigorous imprisonment.

3. One Chinnaperiaiyah (Father of Irulandi – PW-1) is thedeceased. The prosecution case is that Baskaran (PW-4) bought goatsvaluing about Rs.12,000/- from the deceased and has promised to paythe amount after 20 days. On April 8, 2003, the deceased came toAnaikulam to collect the amount from Baskaran. Baskaran (PW-4) senthis wife Rathi (PW-5) to collect the money from the persons to whomhe had sold the goats. His wife received the amount but, on her way,she was waylaid by the men belonging to Postman Vengaisami (A-1)and Thalaiyaripandi (A-11) and that they also snatched the money.Baskaran (PW-4), Rathi (PW-5) and deceased Chinnaperiaiyahwent topolice station to lodge a report but while returning, Baskaran (PW-4),Rathi (PW-5) and deceased Chinnaperiaiyah were attacked by the menbelonging to Thalaiyaripandi (A-11) due to which they sustained injuries.

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AThe deceased Chinnaperiaiyahbelonged to Village Kurunthankulamwhereas accused belonged to Nathakulam Village and both the villagesare coming under the jurisdiction of Veeracholan Police Station.

4. After taking treatment, deceased and his son Irulandi (PW-1)went to Anaikulam Village on April 25, 2003 to collect money fromBBaskaran (PW-4). At that time, Ramar (PW-2), brother-in-law ofBaskaran (PW-4), was present. Baskaran (PW-4) told the deceasedChinnaperiaiyah that he will pay the money next day. Therefore, thedeceased Chinnaperiaiyah stayed in the house of Ramar(PW-2). It wason April 26, 2003, all the accused armed with weapons surrounded Irulandi(PW-1), Ramar (PW-2) and the deceased Chinnaperiaiyah. At thatCjuncture, Thalaiyaripandi(A-11) instigated the other accused to finish offthe deceased. In pursuance of the instigation given by Thalaiyaripandi(A-11), apart from himself, Postman Vengaisami (A-1), Rathinettamatiyan(A-9), Kotti @ Kotteswaran (A-10), Neelamegavannan(A-12),Neelamegam @ ValadukaiNeelamegam(A-14) and DVellachamy(A-15) attacked the deceased with aruvals(sword) on variousparts of his body. Irulandi (PW-1) was also attacked by Arjunan (A-13)with aruval on his left hand whereby Poovalingam (A-6) hit left shoulderof Ramar (PW-2). Irulandi (PW-1) and Ramar (PW-2) went toVeeracholan Police Station at about 9:30 am on April 26, 2003. On the basis of complaint, FIR (Exh. P-13) was lodged for various offences.EIrulandi (PW-1) and Ramar (PW-2) were sent to Thiruchuli GovernmentHospital for treatment, whereas the FIR was sent to the learned JudicialMagistrate, Aruppukottai.

5. Irulandi (PW-1) and Ramar (PW-2) were medically examinedby Dr. Jayakumar (PW-13). After completion of investigation, accusedFwere made to stand trial. Before the learned trial court, the prosecutionexamined as many as 18 witnesses including Dr. Jayakumar (PW-13),informant and son of the deceased, Irulandias PW-1, Ramaras PW-2,Baskaran as PW-4 and his wife, Rathi as PW-5. On the evidence led,the order of conviction was passed. The High Court relying upon theGtestimony of Irulandi (PW-1) and Ramar (PW-2), the injured witnessesas well as the evidence of Baskaran (PW-4) and Rathi (PW-5),maintained the order of conviction and sentence, as mentioned above.

6. Briefly, there are two incidents, one on April 8, 2003 in whichBaskaran (PW-4) and Rathi (PW-5) and the deceased ChinnaperiaiyahHhave received injuries and the other on April 26, 2003 in which Irulandi (PW-1) and Ramar (PW-2) received injuries whereas Chinnaperiaiyahlost his life.

7. Learned counsel for the appellants argued that the so-calledinjured witnesses Irulandi (PW-1) and Ramar (PW-2) have beenintroduced by the prosecution and they have not received injuries in themanner set up by the prosecution. It is contended that the injuries receivedon such witnesses are simple injuries which are not proved to be inflictedby the accused. It is also argued that all the prosecution witnesses areinterested witnesses, therefore, their testimony cannot be believed bythe learned trial court and affirmed by the High Court. It is also contendedthat the statements of material witnesses i.e. Irulandi (PW-1) and Ramar(PW-2) are contradictory, therefore, in the absence of corroboration ofthe evidence of such witnesses, their statements cannot be relied upon.Reliance is placed upon the judgments in Ram Laxman v. State ofRajasthan[1] to contend that the statements of Irulandi (PW-1) and Ramar(PW-2) cannot be split to grant benefit to some co-accused whilemaintaining conviction of others when all accused stand on the samefooting and deserve parity. Learned counsel also relied on NajabhaiDesurbhai Waghv. ValerabhaiDeganbhai Vagh & Ors.[2]to submit thatthe prosecution has failed to prove common object to commit a murderon the basis of evidence led, therefore, conviction of the appellants withthe aid of Section 149 is not tenable. Reliance is also placed upon in thecase of Mahendran v. State of Tamil Nadu[3]. In the said case, it washeld that though the maxim “falsus in uno, falsus in omnibus” has noapplication in India but the rule of caution is required to be applied whileexamining the statement of witnesses whose part statement is not foundto be truthful.

8. We have heard learned counsel for the parties and find nomerit in the present appeal.

9. Irulandi (PW-1) has deposed that, on April 26, 2003, he alongwith his father Chinnaperiaiyah and Ramar (PW-2)were on their way toAnaikulam, when they were surrounded by accused persons who wereled by Thalaiyaripandi (A-11)and armed with swords. Thalaiyaripandi(A-11) exhorted other accused to cut the deceased in pieces as planned.It is thereafter, Vengaisami (A-1) chopped up right elbow of his father 1 (2016) 12 SCC 389

2 (2017) 3 SCC 261

3 (2019) 5 SCC 67

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Abut he was immobilized by Karnan (A-2), Krishnamurthi (A-3) andThirumeni (A-4) whereas Lingam (A-5), Poovalingam (A-6), Kesavan(A-7) and Ramalingam (A-8)immobilisedRamar (PW-2).Rathinettamatiyan (A-9) chopped the right hand wrist of his father bysword, Kotti @ Kotteswaran (A-10) chopped the right side forehead ofhis father, Thalaiyaripandi A-11) hit left side rib of his father, whereasBNeelamegavannan (A-12) hit in the right side of the back side of hisfather. Chinnaperiaiyah died at the spot. Irulandi (PW-1) andRamar(PW-2) escaped from the clutches of the accused, then Arjunan(A-13) chopped the left hand below elbow of Irulandi (PW-1) whereasPoovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, theCargument of learned counsel for the appellants is that Irulandi (PW-1)and Ramar (PW-2) are introduced witnesses but the lengthy cross-examination conducted on them does not lead to any such inference.Dr. Jayakumar (PW-13) has examined Irulandi (PW-1) and Ramar (PW-2)on April 26, 2003, the same day when Chinnaperiyayya lost his life.Chinnaperiyayya, whose postmortem report is Ex.P-28, shows thatDmultiple injuries were noticed by the Doctor. Such injuries corroboratethe oral testimony ofIrulandi(PW-1) and Ramar (PW-2). Ex.P-29 is thereport in respect of injuries suffered by Irulandi (PW-1) measuring 6x1x½cm near left hand. He has also provided medical report (Ex.P-30) onRamar. He stated that Ramar has sustained the following injuries:

E“1. Wound on the left bullocks. The pain was stated by patientswelling on the right fact. Pain felt not welling to get treated asinfluent treated as out patient.

2. At the right ankle pray was taken and found that right KibulaBone was broken the said injury was termed as severe injury.FCertificate issued the same is accident report Ex.P.30.”

10. Baskaran (PW-4), in his statement, also confirmed the incidentof April 8, 2003. He stated that he, along with Chinnaperiaiyah, werebeaten up by the accused. He further stated that he sustained injurieson the face below both the eyes. The statement of Rathi(PW-5), wifeGof Baskaran (PW-4), is also to the same effect.

11. The oral testimony of material witnesses Irulandi (PW-1) andRamar (PW-2) is corroborated by the medical evidence, whereas themotive of taking life of the deceased is made out from the incident whichhappened on April 8, 2003. Therefore, the findings recorded by theHcourts below are plausible findings in law.

12. In Ram Laxman’s case, the Court found that the High Courtdisbelieved with witness in respect of the other accused but believedsuch witness in respect of the other accused. That is not a case of someomissions or contradictions of statement but the credibility of witnessitself was doubted. Such is not in the present case. Some contradictionsarise on account of perception of the witnesses and due to passage oftime. But the creditability of the witnesses has not been shaken.Therefore, such witnesses are reliable and credit worthy witnesses.

13. In Najabhai Desurbhai Wagh case, this Court was examiningthe judgment of acquittal recorded by the High Court when the HighCourt maintained sentence against only one accused. The appeal by thecomplainant was against the acquittal of the accused. This Court heldthat armed with weapons like axe, iron pipe and spear, the commonobject to commit an offence can be inferred from the weapons used andthe violent manner of the attack but the question examined was whetherthey can be attributed with the knowledge about murder. The present isnot such a case. Here, on the exhortation of Thalaiyaripandi (A-11), theaccused who were armed with sword had raised murdered assault onthe deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Sincethere is a history of earlier attack on the deceased on April 8, 2003,accused formed an unlawful assembly with a view to take life ofChinnaperiaiyah. The judgments referred to are not applicable to thefacts of the present case. It is cumulative effect of the evidence led bythe prosecution which determines whether unlawful assembly had acommon object to commit culpable homicide amounting to murder.

14. in Mahendran’s case, reiterating the well-established principlethat follows “falsus in uno, falsus in omnibus” has no application inIndia and is not a rule of law. Therefore, even if some part of thestatement is found to be unproved, entire testimony of witnesses cannotbe rejected.

15. In view thereof, we do not find any error in the judgment ofconviction and sentence recorded by the High Court. Accordingly, theappeal is dismissed.However, the appellants are granted three months’time to surrender before the competent court.

Ankit Gyan

Appeal dismissed.

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