MAHENDRAN versus THE STATE OF TAMIL NADU on 21 February 2019

[2019] 4 S.C.R. 383

MAHENDRAN

v.

THE STATE OF TAMIL NADU

(Criminal Appeal No. 1266 of 2010)

FEBRUARY 21, 2019

[SANJAY KISHAN KAUL AND HEMANT GUPTA , JJ.]

Penal Code, 1860 – ss.141, 149, 302 and 326 – Statement ofPW1-son-in-law of one ‘M’, that on 12.03.94 while going toNangarari with his father, due to darkness they decided to stay athis father-in-law’s house – He stated that his father-in-law sharedthe dispute between him and the Caste Hindus – On 13.03.1994 atabout 7.30 AM, he heard noise when he and his father-in-law cameoutside to see what happened – A-1 to A-9 were standing with stonesand aruvals (sickles) – A-1 poured the kerosene from tin containerand A-2 set fire to the hut of PW1’s father in law – PW1’s father-in-law ran towards backside of the house – Accused hit on his headwith the sickle – PW1’s father-in-law died – 24 persons put on trial– Trial court found the charges proved only against accused nos.1-10 and 12-15, acquitting accused nos.11 and 16-24 – High Courtacquitted accused nos. 10 and 12-15 by granting them benefit ofdoubt – On appeal by accused nos.1-9 (8 & 9 died during thependency of the appeal), held: Presence of the appellants weredisclosed in the FIR recorded soon after the occurrence – No reasonto hold that the accused-appellants have been implicated falsely –Prosecution witnesses PW1, PW2 and PW3 clearly defined the roleof each of the appellants in the occurrence which took the life ofPW1’s father-in-law– Such statement is corroborated by PW5 (PW1’smother-in-law) – Active participation of all the appellants standsproved on record – Both the Courts below found that the appellantshad common object in burning the hut of the deceased and alsoattacking the deceased with aruvals (sickles) in view of the role ofthe deceased in the affairs of Panchayat against caste Hindus –Appellants other than A-1 and A-2 cannot be treated differently toconvict them for the offences u/s.326 r/w. s.149 IPC as all theaccused were part of the unlawful assembly which took the life ofPW1’s father-in-law in a murderous attack.

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[2019] 4 S.C.R.

APenal Code, 1860 – s.141 – Unlawful assembly – CommonObject of – Discussed.

Maxims –”falsus in uno, falsus in omnibus” – Application of, inIndia – Held: The maxim has no application in India – Entiretestimony of the witnesses cannot be discarded only because, inBcertain aspects, part of the statement has not been believed –General principle of appreciation of evidence is that even if somepart of the evidence of witness is found to be false, the entiretestimony of the witness cannot be discarded – Witnesses – Evidenceof – General principle of appreciation.

CJudgments/Orders – Interpretaion of – Discussed.

Dismissing the appeals, the Court

Conclusion

HELD: 1.1 The statement of PW1 was recorded at 8.45AM by PW19-Police Inspector soon after the occurrence.Lodging of the FIR by PW1 is supported by PW2 and PW3 whoDhave found that PW1 was already in Police Station lodging thecomplaint. The testimony of PW19 regarding lodging of FIR at8.45 AM is not discredited in the cross-examination. He deniedsuch suggestion and also the suggestion that the documents weresent to the Court at 4.15 PM. The trial court and the High CourtEhave believed the prosecution version in this respect. PW1disclosed the receipt of injuries on the body of his father-in-lawand 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 andhe did not go to Neikuppai Village. In the re-examination, hedeposed that five sickles recovered were approximately 1[ft] inFlength; some may be longer or shorter. Such statement of PW1is corroborated by PW2 who is resident of same Village as that ofthe deceased. He also deposed that houses of PW13 and oneManickam are situated on the School street, one facing Northand the other facing South and at a distance of half a furlong. AtGthe time of incident Manickam’s house was locked and peoplecame running to Manickam’s house from PW13’s house. Similaris the statement of PW3 that A-1 poured the kerosene from a tincontainer on the roof of hut of the deceased and A-2 set ablazethe hut. Even PW5-wife of the deceased also deposed that A-1poured kerosene and A-2 lit the matchstick. She stated that thereH

were other twenty or thirty people standing around as a group.The fact that she has not named other accused, will not absolvethe role of the appellants, as their presence is disclosed by threeother prosecution witnesses i.e. PW1, PW2 and PW3. Thepresence of witnesses examined by the prosecution at the placeof occurrence is based upon the appreciation of the evidence bythe two Courts. It is not found that such appreciation is perverseor wholly untenable which may warrant interference in the presentappeals. There is no reasonable basis to hold that PW1 wouldnot stay with his father-in-law in the circumstances explained byhim. [Paras 26-30][397-A-H; 398-A-B]

1.2 The FIR was lodged soon after the occurrence whenPW2 and PW3, residents of the same village reached the PoliceStation. Therefore, the fact that PW1 could not recollect the fathersname of three of the accused would not create doubt on the caseset up by the prosecution. [Para 34] [399-D]

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

1.4 If the witness is reliable and dependable then the entirestatement cannot be discarded. The general principle ofappreciation of evidence is that even if some part of the evidenceof witness is found to be false, the entire testimony of the witnesscannot 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 oneaccused which led to recovery of weapons used in the occurrencebut on the basis of confessional statements of the accused, a AB

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Acommon recovery memorandum was prepared. Such commonMemo of recovery of weapons used in the occurrence cannotcreate doubt on the prosecution story. DW4 is Assistant Doctorin the Kudavasal Government Hospital who has deposed thatdoctors were on duty on the date of occurrence. He deposed thatDoctor ‘G’ was on duty in Out-Patient Ward from 7.30 AM. ThereBwas no duty at the Out-patient ward from 3.00 to 5.00 PM on thatday. As is given on the record that the Village Kudavasal falls onthe way to Thiruvarur and since the Doctor was not available, theinjured were examined at Government Hospital Thiruvarur. Thetestimony of PW17-Doctor ‘R’ has not been questioned on theCground that the Doctor was available at Kudavasal Hospital andinjuries should have been examined at that place as well. Theonly suggestion put to witness is that the injuries could havebeen caused within one hour before he examined them. Thepossibility of injuries is an opinion which cannot controvert theprimary statement of the witness about the receipt of the injuriesDin the fateful morning of 13.3.1994. The prosecution has provedthe active role played by A-1 and A-2. The presence of otheraccused at the time of occurrence as part of the crowd who lynchedMurugaiyan also stands proved. There is physical severance onthe parts of the body of the deceased. The presence of theEappellants were disclosed in the First Information Reportrecorded soon after the occurrence. Therefore, there is no reasonto hold that the accused- appellants have been implicated falsely.The prosecution witnesses PW1, PW2 and PW3 have clearlydefined the role of each of the appellants in the occurrence whichhas taken the life of the the deceased. Such statement isFcorroborated by PW5-wife of the deceased who deposed that it isA-1 and A-2 who poured kerosene and lit the matchstickrespectively along with twenty-thirty other persons. Therefore,the active participation of all the appellants stands proved onrecord. [Paras 40, 42-46][403-B-H; 404-A-D]G

1.5 There is no merit in the argument that all the appellantscannot be said to have common object in view, in the absence ofan overt act attributed to the appellants other than A-1 and A-2by PW5. Even PW5 is categorical that A-1 and A-2 wereaccompanied by twenty-thirty other people. Though she has notHnamed other accused but the fact that the other accused have been named specifically by PW1, PW2 and PW3, clearly showsthat all the accused came as a group to attack the hut of thedeceased and then took his life. Common object does not requirea 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 ormore act as an assembly to achieve that object. The “commonobject” of an assembly is to be ascertained from the acts andlanguage of the members composing it, and from a considerationof 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 aparticular case. Circumstantial flexibility, one additional ordifferent fact may make a world of difference between conclusionsin two cases, therefore, whether there was common object of theaccused in each case would depend upon cumulative effects ofthe facts of that particular case. In the present case, both theCourts below have found that the appellants have common objectin burning the hut of the deceased and also attacking the deceasedwith aruvals (sickles) in view of the role of the deceased in theaffairs of Panchayat against caste Hindus. Therefore, appellantsother than A-1 and A-2 cannot be treated differently to convictthem for the offences under Section 326 read with Section 149IPC as all the accused were part of the unlawful assembly whichhas taken the life of the deceased in a murderous attack on thefateful 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.

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

Noushad alias Noushad Pasha and Others v. State ofKarnataka (2015) 2 SCC 513; Suraj Mal v. State (DelhiAdministration) (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 SCC261; Gangadhar Behera and Others v. State of Orissa(2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; SanjeevKumar Gupta v. State of Uttar Pradesh (2015) 11 SCC69 : [2015] 5 SCR 122 – referred to.

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Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1266 of 2010

From the Judgment and Order dated 26.09.2008 of the High Courtof Madras (Madurai Bench) in Criminal Appeal No. 586 of 2001

DWith

Criminal Appeal No. 1260 of 2010.

V. K. Shukla, Ms. V. Mohana, Sr. Advs., P. B. Suresh, Vipin Nair,Karthik Jayashankar, Udayaditya Banerjee, Advs. for the Appellant.

M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Advs.Efor the Respondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. The Criminal Appeal No. 1266 of2010 preferred by Mahendran (Accused No. 3), and Criminal AppealFNo. 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 MadrasHigh Court on 26.09.2008. The High Court has acquitted MohanG(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 arereferred to with reference to their status before the trial court.

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2. The prosecution had put on trial twenty-four persons for variousoffences, but the learned trial court found the charges proved only againstAccused Nos. 1-10 and 12-15 and sentenced to imprisonment as per theorder 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 (AccusedNo. 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. 8and 9 have died during the pendency of the appeals. Resultantly, theappeals survive in respect of Accused Nos. 1 to 7 only. One of theaccused Balakrishnan had died even before the Charge-sheet could befiled, therefore, was not included in the report filed.

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

5. He stated that his father-in-law shared the dispute betweenhim and the Caste Hindus that evening and that dispute was gettingintensified and that someone had set fire on the thatched hut in the Pilaiyarstreet. He also said that a Panchayat was going to be conducted in thisregard but he had not informed the police. He stated that on 13.03.1994at about 7.30 AM, he heard noise at the place of residence when hisfather had gone to have tea. He and his father-in-law came outside tosee what happened. At that stage, A-1 to A-9 and Balakrishnan (sincedead) son of Raamaiya Konur were standing with stones and aruvals(sickles). They exhorted that till such time you are alive, you will notallow 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 rantowards backside of the house, frightened of his life. He also ran behindhim. He was questioned as to why he was running? Murugaiyan rantowards barber Mahalingam’s house on School street. But the accusedhit on the head of Murugaiyan with the sickle, inflicting injuries on thehead, hand, leg and back. His father-in-law, Murugaiyan was lying inthe pool of blood in front of the house of PW13-Mahalingam having A

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Ainjuries on both legs and shoulders. About 100 persons of caste Hinduswere standing around Murugaiyan. At that time PW3-Ramesh and PW2-Raja came but they escaped after being hit with stones. He also escapedwithout being seen by anybody. On the basis of such statement, FIRExt.P-13 was lodged at about 8.45 AM against ten accused.

B6. PW19-Ramakrishnan is the retired Police Inspector whorecorded statement on the basis of which First Information Report waslodged. He was entrusted with the investigations. He sent FIR to theJudicial Magistrate, Thiruvarur at 09.30 A.M. He then went to the placeof occurrence in the Village Neikuppai. The sketch Ex.P.18 was preparedof a place in front of Murugaiyan’s house and prepared an observationCMemo Ex.P.2. He also prepared sketch Ex.P.19 and observation MemoEx.P.3 after seeing the place where the dead body was lying at 10.20hours on that day. He prepared inquest report Ex.P.30 and sent thebody for post-mortem. He associated the informant PW1-Ganesamoorthy,PW2- Raja, PW3-Ramesh, PW4-Ravanan and PW5-Lakshmi, wife ofDthe deceased, for investigations and recorded their statements. He alsoassociated PW6-Sankaran and Mariappan(A-23) and recorded theirstatements. He recovered burnt bamboo piece, a burnt coconut leaflattice, one burnt polyester sari in red, blue, white and green colours, aburnt sprayer nozzle, and some burnt paddy as well as one plank takenfrom the burnt cart at about 1615 hours, recorded in Ex.P.4. The materialsEmentioned therein Ex.P.4 are M.Os. 10 to 15. He also took in possessionthe blood stains from the seating area in west of the house of Mahalingam;a sample earth without blood stain scratched from the above area; blood-stained earth was taken from the place where the dead body ofMurugaiyan was lying as well as earth without blood stain was takenFfrom the same place. He also associated some other witnesses to completeinvestigations.

7. It was on 13.3.1994, ten accused initially mentioned by theinformant Ganesamoorthy were arrested. The disclosure statement Ex.P.6was recorded of accused Ravi (A-1), and on the basis of disclosureGstatement five sickles were recovered from A-1 to A-5 and Balakrishnan,whereas, bamboo sticks of different lengths were recovered from A-6to A-9. On 15.03.1994, he arrested other accused who stood acquitted,therefore, not relevant for the purpose of present appeals. In the cross-examination, he denied that the complaint Ex. P.1 was not registered atthe stated time and that the same was prepared after discussion and thatH

the FIR Ex.P.13 was sent to Court on that day at around 4.00 PM. Hedeposed that deceased Murugaiyan belongs to Scheduled Caste anddenied that the dead body was lying in the seating area near theManickam’s house. He also associated PW13-Mahalingam, his wifeTheivakani, daughter Raji, son Selvam in the course of investigationsand recorded their statements. But he stated that he had not gone toManickam’s house as mentioned by these persons. On completion ofthe investigations, Charge-sheet was filed. The accused pleaded notguilty and claimed trial.

8. The post-mortem on the dead body of Murugaiyan wasconducted by PW17-Dr. Razool. He found the following external injurieson the person of the deceased: - “1. 6” long Elliptical, Horizontal cut injury with clear cut edges ofskin, extending from angle of left mandible, cross left neck, up tolateral process of spine. “C2”, without involving mastoid Bone onclearing dark blood clots. The sterno cleido Mastoid muscles andjugular veins & carotid arteries are found cut.

2. 1" below injury No.(1) a similar cut injury horizontal, extendingfrom Adam’s apple, across left of neck up to c 5 spine, lateralprocess in the back “6” long its depth extends, cutting the sterno-Mastoid muscles and jugular veins and common carotid arterywith profuse dark blood oozing.

3. Similar cut injury 3" long horizontal and 1" below injury No. 2over root of neck involving clavicle bone left.

4. Irregular edged 2" x 1" x ½” serrated edged abrasion over leftscapula.

5. 10" long lacerated injury with clear edges very superficial runningobliquely across left breast to right ribs with two packets on injury1" deep lying on the same line with 3" gap in between. This injurydoes not involve heart, lungs and abdominal viscera.

6. Cut injury, 4" long horizontal and lateral side of left thigh, 4"above knee joint just embracing femur bone.

7. Below left knee joint similar injury 4" long over lateral side ofleg, completely cutting away the Tibia and Fibula bones.

8. 2" below injury No. (7), 3" long cut injury over lateral side, 2"deep.

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A9. Complete severing of left wrist separating the hand from itsjoints, 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 cutinjury, running over the shoulder from scapula to anterior of shoulderBcutting the tender insertion of biceps muscles chopping of thehead of humerus bone.

OTHERS:

Brain pale not liquefied. Skull bone, spinal, spinal column notfractured. Stomach, spleen, liver, kidney and lungs are pale, butCnot injured. Heart no injury. All the left chambers are empty withlittle clots.”

The cause of death was injury Nos. 1 and 2 due to severing of leftcarotid artery and jugular veins, leading to profuse haemorrhage, hypo-volume shock and death in sequence. He produced his post-mortemDreport 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 bystones at 7.30 AM on the same day. The following injuries were reported:

“1. Contusion left ear lobe with tenderness.E

2. Abrasion with edema 1" diameter nape of neck.”

10. PW17 Dr. Razool also examined PW2-Raja and PW3-Rameshon the same day and found the following injuries respectively:

“1. ½ “ diameter recent abrasion with surrounded edema overFright eye brow.”

“1. Recent contusion with blood clot ½” diameter abrasionover left crown of head.

2. Tenderness over left half muscles.”G

11. To prove the allegations against the accused, the prosecutionexamined PW1-Ganesamoorthy, the informant and son-in-law of thedeceased, PW2-Raja, PW3-Ramesh, PW5-Lakshmi wife of the deceasedand PW13-Mahalingam, all residents of Village Neikuppai, PW4-Ravananresident of Narsingampettai. Both the Courts have relied upon the H

statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh toconvict the appellants.

12. Learned counsel for the appellants argued that PW1-Ganesamoorthy is not a witness of occurrence, but has been introducedfalsely. In support of the argument that the witness was not present atthe place of the occurrence, the following aspects were pointed out:- a). It is unbelievable that son-in-law will stay with his in-lawsmore so when his own village is around 15 Kms away only.

b). In his first statement Ex.P.1, he has not stated that he gotinjuries with the stones pelted by the aggressors, whereas, he hastried to prove his presence on the basis of self-inflicted injurieswhich were found not to be more than one hour old by Dr. Razool,who examined him at around 6.20 PM.

c). The FIR is ante-timed as there is no reason as to why FIRwas delivered to the Judicial Magistrate at 4.00 PM but not soonafter it was dispatched around 9.30 AM. It is unbelievable thatthe constable would not know that the Magistrate would not cometo the Court being Sunday as he could have delivered the FIR atthe residence of the Officer.

d). PW1-Ganesamoorthy has given parentage of all the ten accusedin the statement Ext.P.1, but in Court he could not disclose theparentage of A4, A6 and Balakrishnan (since died). Thus, FIRwas lodged after consultation, therefore, the delay in the receiptof FIR by the Magistrate

13. It is also argued that the place of occurrence is opposite houseof Manickam as is deposed by PW13-Mahalingam, but the prosecutionhas shifted the place of occurrence near the house of Mahalingam. Sincethe place of occurrence itself has not been proved on the statement ofPW13 Mahalingam, the prosecution story in respect of the manner ofoccurrence cannot be accepted. It is stated that PW1-Ganesamoorthyis not reliable and truthful witness, therefore, unworthy of reliance.

14. It is also argued that PW1-Ganesamoorthy, PW2-Raja andPW3-Ramesh have roped in many other accused during the course ofinvestigations and that such part of the statement has not been found tobe a truthful version resulting into acquittal of accused Nos. 10, 12, 13,14 and 15 in appeal, whereas, some other accused were acquitted by AB

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Athe learned trial court itself. It is thus argued that the statements ofwitnesses are unreliable and lack credibility, therefore, such statementscannot be relied upon for the conviction of the appellants.

15. Learned counsel for the appellants relies upon judgmentsreported in Ram Laxman vs. State of Rajasthan[1], Noushad aliasBNoushad Pasha and Others vs. State of Karnataka[2]and Suraj MalVs. State (Delhi Administration)[3] to contend that if the testimony ofthe witness is found to be unreliable in respect of part of the statement,then the other part of the statement cannot be made basis to convict theaccused.

16. It is argued that Ravi (A-1) is said to have suffered a disclosurestatement under Section 27 of the Indian Evidence Act, 1872 as per thestatement of PW8-Veeraiyan and got recovered five sickles, but, theInvestigating Officer has distributed the recovery to the five differentaccused.

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D17. The explanation of the prosecution witnesses that doctor wasnot available at Kudavasal stands controverted on the basis of statementof DW4-Assistant Doctor Balakumaravelu in Kudavasal GovernmentHospital who has deposed that the doctor was available. Therefore,medical examination in respect of injuries which in opinion of doctor isnot more than one hour earlier totally discredits the prosecution story.E

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18. The story of receipt of injuries by the witnesses PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh is highly doubtful as theirblood-stained clothes were given to the Investigating Officer after twodays, whereas, if they had received injuries on the date of occurrence, itwas mandatory for the prosecution to take into possession of the blood-Fstained clothes on the day of occurrence itself.

19. It is also argued that PW5-Lakshmi wife of the deceased hasnamed Ravi (A-1) and Singaravelu (A-2) only as the persons who hadpoured kerosene and lit the match stick but has not deposed in respectof role of the other accused. Thus, in view of the absence of any overtGact attributed to the appellants other than A-1 and A-2, their convictionfor offences under Section 302 IPC and other offences are not made 1 (2016) 12 SCC 3892 (2015) 2 SCC 5133 (1979) 4 SCC 725H

out and they can at best be punished for the offence under Section 326read with Section 149 IPC. The reliance is placed upon the SupremeCourt judgment reported as Joseph vs. State, Represented byInspector of Police[4]and Najabhai Desurbhai Wagh vs. ValerabhaiDeganbhai Vagh and Others[5]. Learned counsel for the appellantsalso argued that the prosecution has failed to prove the common objectso as to attract the offence under Section 149 IPC.

20. On the other hand, learned counsel appearing for the Statepointed out that much stress has been laid on shifting the place ofoccurrence from near the house of Manickam to near the house ofPW13-Mahalingam. It is argued that it is factually incorrect and thediscrepancy is minor, if any. The reliance is placed upon statement ofPW2-Raja who deposed that houses of Mahalingam and Manickam arein the same street, one facing north and the other facing south meaningthereby, facing to each other and they are located half a furlong fromeach other. Therefore, the place of occurrence is in the street, in whichhouses of PW13-Mahalingam and Manickam are located. The evidencethat blood-stained earth and the sample earth have been taken inpossession from the place of occurrence near the house of Mahalingam,therefore, the minor discrepancy in respect of place of occurrence isinconsequential as the occurrence is in the same street.

21. It is also argued that PW1-Ganesamoorthy, PW2-Raja andPW3-Ramesh have explained their injuries which part of their evidencehas not been challenged in their cross-examination. The statement ofDW4- Balakumaravelu does not support the argument raised by thelearned counsel for the appellants as it is stated by the witness that theDoctors give treatment to the patients in the Out-Patient Ward from7.30 -10.30 AM and give treatment to the patients in In-Patient Wardfrom 10.30 AM to 12.30 PM and then there is a lunch break from 12.30PM – 2.00 PM. Thereafter, the administrative work is performed up to2.30 PM. Thus, the witnesses have been medically examined at theearliest opportunity.

22. As per PW2-Raja, the road from Kumbakonam goes toKudavasal, Pudukudi and Thiruvarur. The witness has stated that thedistance between Pudukudi and Thiruvarur is 15 K.Ms., whereas, bus 4 (2018) 12 SCC 283

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Awill take twenty-five minutes from Kudavasal to reach Thiruvarur.Therefore, the argument raised that PW1-Ganesamoorthy hasmanipulated his Medical Report from a Hospital near to his residence isnot correct as he has travelled on the other side of his village as theMedico-Legal Examination was conducted at Thiruvarur.B23. Learned counsel refers to the judgement in Gangadhar B23. Learned counsel refers to the judgement in GangadharBehera and Others Vs. State of Orissa[6] to contend that the offenceunder Section 149 is made out if the unlawful assembly shared commonobject and not common intention, though mere presence in an unlawfulassembly cannot render a person liable unless there was a commonobject. The common object is as set out in Section 141. It is not necessaryCto prove overt act against a person who is alleged to be a member of anunlawful assembly. In other words, the object should be common to thepersons, who compose the assembly, that is to say, they should all beaware of it and concur in it. A common object may be formed by expressagreement after mutual consultation, but that is by no means necessary.DIt may be formed at any stage by all or a few members of the assemblyand the other members may just join and adopt it.

24. The Judgment in Sanjeev Kumar Gupta vs. State of UttarPradesh[7] was relied upon to contend that Section 149 has twocomponents (i) offence committed by any member of an unlawfulassembly consisting of five or more members, and (ii) such offenceEmust be committed in prosecution of the common object under Section141 IPC of the assembly or members of that assembly knew to be likelyto be committed in prosecution of the common object. For ‘commonobject’, it is not necessary that there should be a prior concert inthe sense of a meeting of the members of the unlawful assembly. F

25. The reliance is placed upon the Judgment reported asGangadhar Behera to argue that the maxim “falsus in uno, falsus inomnibus” has no application in India and the witnesses cannot be brandedas liars. The maxim “falsus in uno, falsus in omnibus” has not receivedgeneral acceptance nor has this maxim come to occupy the status ofGrule of law. It is merely a rule of caution.

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 H

6 (2002) 8 SCC 381

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place of occurrence and that FIR has been ante dated. We do not findany merit in the said argument. The statement of PW1-Ganesamoorthywas recorded at 8.45 AM by PW19-Police Inspector Ramakrishnansoon after the occurrence. Lodging of the FIR by PW1-Ganesamoorthyis supported by PW2-Raja and PW3-Ramesh who have found that PW1-Ganesamoorthy was already in Police Station lodging the complaint. Thetestimony of PW19-Ramakrishnan regarding lodging of FIR at 8.45 AMis not discredited in the cross-examination. He denied such suggestionand also the suggestion that the documents were sent to the Court at4.15 PM. There is nothing on record not to believe statement so the saidwitnesses more of the trial court and the High Court have believed theprosecution version in this respect.

27. In respect of manner of occurrence, PW1-Ganesamoorthy inthe cross-examination stated that fifteen hundred people belonging todifferent castes live in the Village Neikuppai. He denied the suggestionthat Thiruvarur Government Hospital was near to his house. He alsodisclosed the receipt of injuries on the body of his father-in-law anddenied the suggestion that he does not know how his father-in-law waskilled, how his father-in-law’s hut was set on fire and he did not go toNeikuppai Village.

28. In the re-examination, he deposed that five sickles recoveredwere approximately 1[ft] in length; some may be longer or shorter. Suchstatement of PW1-Ganesamoorthy is corroborated by PW2-Raja whois resident of same Village as that of the deceased Murugaiyan. He alsodeposed that houses of PW13-Mahalingam and Manickam are situatedon the School street, one facing North and the other facing South and ata distance of half a furlong. At the time of incident Manickam’s housewas locked and people came running to Manickam’s house from PW13Mahalingam’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 ofthe 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. Shehas stated that there were other twenty or thirty people standing aroundas a group. The fact that she has not named other accused, will notabsolve the role of the appellants, as their presence is disclosed by threeother prosecution witnesses i.e. PW1-Ganesamoorthy, PW2-Raja andPW3-Ramesh.

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A29. The presence of witnesses examined by the prosecution atthe place of occurrence is based upon the appreciation of the evidenceby the two Courts. We do not find that such appreciation is perverse orwholly untenable which may warrant interference in the present appeals.

30. The argument that it is unbelievable that son-in-law will notBstay with his in-laws, when his own village is around 15 KMs away, ispurely conjectural. There is no reasonable basis to hold that PW1-Ganesamoorthy would not stay with his father-in-law in the circumstancesexplained by him.

31. The argument that in statement Ex.P.1, PW1-GanesamoorthyChas not stated the injuries suffered by him, will render his presence atthe time of occurrence as doubtful. The said fact when examined in thecontext of a complete statement loses its significance. As per PW1-Ganesamoorthy soon after the incident, he went to Kudavasal located atthe distance of 4 KMs from Neikuppai Village when he lodged the Reportas statement Ex.P.1 and thereafter he went to Thiruvarur GovernmentDHospital. The Kudavasal and Thiruvarur are located on the other side ofhis village.

32. PW17-Dr. Razool, an Assistant Surgeon in ThiruvarurGovernment Hospital conducted post-mortem examination at 4.30 PM.Thereafter, he conducted Medico-Legal Examination of PW1-EGanesamoorthy, PW2-Raja and PW3-Ramesh. He proved injury reportEx.P.15-Report of PW1, Ex.P.16-Report of PW2-Raja and Ex.P.17-Report of PW3-Ramesh. He has deposed that the injuries are possiblein the manner disclosed by the witnesses. In the cross-examination, hedisclosed that he cannot say possible time of causing the injuries foundFon the persons of three witnesses but he opined that the injuries couldhave been caused within one hour before he examined them. The opinionof the Doctor in respect of the timing of injuries is not conclusive basedon possibility of injuries within one hour of the examination when thepresence of prosecution witnesses as also the role attributed to eachappellant’s presence has been found to be proved by the oral testimony.GThe opinion of an expert witness cannot be given preference over theprimary statement of the witnesses in respect of manner of injuriessuffered by them.

33. In respect of the argument that FIR was delivered at 4.45 PMon 13.03.1994 to the Judicial Magistrate at Nagapattinam, though theH

report was said to be sent at 9.30 AM, again does not create doubt onthe prosecution version. The argument that the competent Magistratewas at Thiruvarur but the FIR has been delivered to the JudicialMagistrate, Nagapattinam which shows that the FIR was ante-timed, isagain not acceptable. PW15-H.C. Narayanan, deposed that he went toThiruvarur and waited for the arrival of the Magistrate. Since, it was aholiday, he handed over the FIR to the Judicial Magistrate at his residenceat Pauthiramanickam at 4.45 PM. Therefore, the delay in the receipt ofthe FIR by the Judicial Magistrate is explained and cannot be madebasis to reject the case of the prosecution as the FIR was proved to belodged soon after the occurrence from the testimony of PW19-PoliceInspector Ramakrishnan.

34. In respect of an argument that PW1-Ganesamoorthy has givenparentage of all the ten accused in the statement Ex.P.1, but could notdisclose the parentage of three accused in Court shows that the firstversion was lodged after prior consultation, is again not tenable. TheFIR 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 threeof the accused would not create doubt on the case set up by theprosecution.

35. The argument that the place of occurrence is based upon thestatement of PW13-Mahalingam who deposed that the dead body waslying cut in front of Manickam’s house and that the members of theDravid Kazhagham left the body in the seating area of his house andthat blood of the deceased was pooled at the seating area of Manickam’shouse, we find that such argument cannot be accepted.

36. PW6-Sankaran, Village Administrative Officer reached thescene of occurrence immediately on hearing about the incident anddeposed that the dead body of Murugaiyan was lying in front of PW13-Mahalingam’s house. PW7-Kollimalai has also deposed that thebloodstained earth was seized from the house of PW13-Mahalingam inhis presence and in the presence of Kunjupillai. The fact remains thathouses of PW13- Mahalingam and that of Manickam are in the samestreet and at a distance of half a furlong. The witnesses have deposedthe house of Manickam was locked and residents from the house ofMahalingam rushed to the place where dead body was lying. It explains AB

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Athe reason as to why the witnesses have deposed that the dead bodywas lying near the house of PW13.

37. The learned trial court found that some discrepancies can bedue to minor errors of perception or observation or due to lapse of memory.It may be noticed that the witnesses were being examined after moreBthan six years of the occurrence.

38. It is argued that prosecution has put on trial twenty-fouraccused, but presence of A-11 and A-16 to A-24 was doubted by learnedtrial 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 inCappeal as well. The argument that the entire case set up is based onfalsehood and thus not reliable for conviction of the appellants, is nottenable. It is well settled that the maxim “falsus in uno, falsus inomnibus” has no application in India only for the reason that some partof the statement of the witness has not been accepted by the trial courtor by the High Court. Such is the view taken by this Court in GangadharDBehera’s case, wherein the Court held as under:-

“15. To the same effect is the decision in State of Punjab v. JagirSingh[8] and Lehna v. State of Haryana[9]. Stress was laid by theaccused-appellants on the non-acceptance of evidence tenderedby some witnesses to contend about desirability to throw out theEentire prosecution case. In essence prayer is to apply the principleof “falsus in uno, falsus in omnibus” (false in one thing, false ineverything). This plea is clearly untenable. Even if a major portionof the evidence is found to be deficient, in case residue is sufficientto prove guilt of an accused, notwithstanding acquittal of a numberFof other co-accused persons, his conviction can be maintained. Itis the duty of the court to separate the grain from the chaff. Wherechaff can be separated from the grain, it would be open to thecourt to convict an accused notwithstanding the fact that evidencehas been found to be deficient to prove guilt of other accusedpersons. Falsity of a particular material witness or materialGparticular would not ruin it from the beginning to end. The maxim“falsus in uno, falsus in omnibus” has no application in Indiaand the witnesses cannot be branded as liars. The maxim “falsus H

8 (1974) 3 SCC 277

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in uno, falsus in omnibus” has not received general acceptancenor has this maxim come to occupy the status of rule of law. It ismerely a rule of caution. All that it amounts to, is that in suchcases testimony may be disregarded, and not that it must bedisregarded. The doctrine merely involves the question of weightof evidence which a court may apply in a given set ofcircumstances, but it is not what may be called “a mandatory ruleof evidence”. (See Nisar Alli v. State of U.P.[10] ) Merely becausesome of the accused persons have been acquitted, though evidenceagainst all of them, so far as direct testimony went, was the samedoes not lead as a necessary corollary that those who have beenconvicted must also be acquitted. It is always open to a court todifferentiate the accused who had been acquitted from those whowere convicted. (See Gurcharan Singh v. State of Punjab[11]).The doctrine is a dangerous one specially in India for if a wholebody of the testimony were to be rejected, because a witnesswas evidently speaking an untruth in some aspect, it is to be fearedthat administration of criminal justice would come to a dead stop.Witnesses just cannot help in giving embroidery to a story, however,true in the main. Therefore, it has to be appraised in each case asto what extent the evidence is worthy of acceptance, and merelybecause in some respects the court considers the same to beinsufficient for placing reliance on the testimony of a witness, itdoes not necessarily follow as a matter of law that it must bedisregarded in all respects as well. The evidence has to be siftedwith care. The aforesaid dictum is not a sound rule for the reasonthat one hardly comes across a witness whose evidence does notcontain a grain of untruth or at any rate exaggeration, embroideriesor embellishment. (See Sohrab v. State of M.P.[12] and UgarAhir v. State of Bihar[13].) An attempt has to be made to, as notedabove, in terms of felicitous metaphor, separate the grain fromthe chaff, truth from falsehood. Where it is not feasible to separatethe truth from falsehood, because grain and chaff are inextricablymixed up, and in the process of separation an absolutely newcase has to be reconstructed by divorcing essential details presented 10 AIR 1957 SC 366

11 AIR 1956 SC 460

12 (1972) 3 SCC 75113 AIR 1965 SC 277

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Aby the prosecution completely from the context and the backgroundagainst which they are made, the only available course to be madeis to discard the evidence in toto. (See Zwinglee Ariel v. State ofM.P.[14] and Balaka Singh v. State of Punjab[15].) As observedby this Court in State of Rajasthan v. Kalki[16] normaldiscrepancies in evidence are those which are due to normal errorsBof observation, normal errors of memory due to lapse of time, dueto mental disposition such as shock and horror at the time ofoccurrence and those are always there however honest andtruthful a witness may be. Material discrepancies are those whichare not normal, and not expected of a normal person. Courts haveCto label the category to which a discrepancy may be categorized.While normal discrepancies do not corrode the credibility of aparty’s case, material discrepancies do so. These aspects werehighlighted recently in Krishna Mochi v. State of Bihar[17].Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categoricallyDindicated the distinguishing features in evidence so far as theacquitted and the convicted accused are concerned.”

39. Therefore, the entire testimony of the witnesses cannot bediscarded only because, in certain aspects, part of the statement has notbeen believed.E

40. The judgment referred to by learned counsel for the appellantsin Ram Laxman’scase is not applicable to the facts of the presentcase, as in that case, the Court found the testimony of the witnesses asundependable and unreliable so as to grant benefit to some accusedwhile maintaining the conviction of the others. The Court noticed thatFthe maxim “falsus in uno, falsus in omnibus” is not applicable.Therefore, if the witness is reliable and dependable then the entirestatement cannot be discarded.

41. Similarly, in the case of Noushad the Court found that thestatement of PW11 that he has witnessed the incident with much ofGexactitude as to which accused assaulted his brother with what weaponcannot be said to have been really witnessed by him. Again, in SurajMal’s case, the Court was examining the legality of conviction under14 AIR 1954 SC 1515 (1975) 4 SCC 51116 (1981) 2 SCC 752H17 (2002) 6 SCC 81

the provisions of Prevention of Corruption Act, 1947. It was found thatthe evidence of witnesses against the two accused was inseparable andindivisible, when on such evidence one of the accused was acquittedand not the other accused.

42. All these judgments are in respect of appreciation of evidenceof witnesses in the facts being examined by the Court. The generalprinciple of appreciation of evidence is that even if some part of theevidence of witness is found to be false, the entire testimony of thewitness cannot be discarded.

43. The argument that five aruvals (sickles) were recovered onlyon 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 adisclosure 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 commonmemorandum of recovery as Ex.P.7 was prepared. Therefore, it is notthe confessional statement of one accused which led to recovery ofweapons used in the occurrence but on the basis of confessionalstatements of the accused, a common recovery memorandum wasprepared. Such common Memo of recovery of weapons used in theoccurrence cannot create doubt on the prosecution story.

45. The argument that non-availability of a Doctor at Kudavasalstands controverted on the statement of DW4-Balakumaravelu is againnot tenable. DW4-Balakumaravelu is Assistant Doctor in the KudavasalGovernment Hospital who has deposed that doctors were on duty on thedate of occurrence. He has deposed that Doctor Geetha was on duty inOut-Patient Ward from 7.30 AM. There was no duty at the Out-patientward from 3.00 to 5.00 PM on that day. As is given on the record thatthe Village Kudavasal falls on the way to Thiruvarur and since the Doctorwas not available, the injured were examined at Government HospitalThiruvarur. The testimony of PW17-Doctor Razool has not beenquestioned on the ground that the Doctor was available at KudavasalHospital and injuries should have been examined at that place as well.The only suggestion put to witness is that the injuries could have beencaused within one hour before he examined them. The possibility ofinjuries is an opinion which cannot controvert the primary statement ofthe witness about the receipt of the injuries in the fateful morning of13.3.1994.

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A46. The prosecution has proved the active role played by Ravi(A-1) and Singaravelu (A-2). The presence of other accused at the timeof occurrence as part of the crowd who lynched Murugaiyan also standsproved. There is physical severance on the parts of the body of thedeceased. The presence of the appellants were disclosed in the FirstInformation Report recorded soon after the occurrence. Therefore, thereBis no reason to hold that the accused- appellants have been implicatedfalsely. It may be noticed that the appellants are also Backward ClassHindus. The prosecution witnesses PW1-Ganesamoorthy, PW2-Rajaand PW3-Ramesh have clearly defined the role of each of the appellantsin the occurrence which has taken the life of the Murugaiyan. SuchCstatement is corroborated by PW5-Lakshmi wife of the deceased whodeposed that it is Ravi (A-1) and Singaravelu (A-2) who poured keroseneand lit the matchstick respectively along with twenty-thirty other persons.Therefore, the active participation of all the appellants stands proved onrecord.D47. We do not find any merit in the argument that all the appellantscannot be said to have common object in view, in the absence of anovert 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 otherpeople. Though she has not named other accused but the fact that theEother accused have been named specifically by PW1-Ganesamoorthy,PW2-Raja and PW3-Ramesh, clearly shows that all the accused cameas 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 theappellants, the Court held that if the prosecution succeeds in improvingFthe existence of common object amongst the accused and that accusedactuated the prosecution of common object and knew that the deathwas likely to be committed, the conviction under Section 302 IPC readwith 149 is made out. The Court held as under:

“11.3. What is important in each case is to find out if the offenceGwas committed to accomplish the common object of the assemblyor was the one which the members knew to be likely to becommitted. Once the court finds that the ingredients of Section149 IPC are fulfilled, every person who at the time of committingthat offence was a member of the assembly has to be held guiltyHof 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 itbe open to the court to require the prosecution to prove which ofthe members did which of the above two ingredients. Beforerecording the conviction under Section 149 IPC, the essentialingredients of Section 141 IPC must be established.”

49. In the above case, the Court held that as to whether themembers of the unlawful assembly really had the common object tocause the murder of the deceased has to be decided on the facts andcircumstances of each case. The nature of weapons used by suchmembers, the manner and sequence of attack made by those memberson the deceased and the circumstances under which the occurrencetook place are the factors to decide as to whether, the accused hadcommon object. It is an inference to be deduced from the facts andcircumstances of each case. The Court held that there is no evidenceto prove that Accused 1 to 11 had any common object to commit themurder of Kennedy which activated all of them to join in furtherance ofthe common object.

50. In Najabhai’s case, there was no evidence that there was acommon object of murder amongst the accused, as accused No. 1 wasinfuriated on the question by the appellant regarding the damage to theelectricity pole near his house. There is nothing on record to suggestany previous enmity between the parties. Such judgment is again on theappreciation of the evidence in the case in hand.

51. In Gangadhar Behera’s case, while considering the Section141 of IPC, it was held that common object is not common intention asthe mere presence in an unlawful assembly cannot render a person liableunless there was a common object and he was actuated by that commonobject. Common object does not require a prior concert and a commonmeeting of minds before the attack. It is enough if each has the sameobject in view if the five or more act as an assembly to achieve thatobject. The “common object” of an assembly is to be ascertained fromthe acts and language of the members composing it, and from aconsideration of all the surrounding circumstances. The Court whileconsidering the plea that definite roles ascribed to the accused andtherefore Section 149 is not applicable was not accepted. It is held asunder:

“25. The other plea that definite roles have not been ascribed tothe accused and therefore Section 149 is not applicable, is A

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Auntenable. A four-Judge Bench of this Court in Masalti case[18]observed as follows: (AIR p. 210, para 15)

“15. Then it is urged that the evidence given by the witnessesconforms to the same uniform pattern and since no specificpart is assigned to all the assailants, that evidence should notBhave been accepted. This criticism again is not well founded.Where a crowd of assailants who are members of an unlawfulassembly proceeds to commit an offence of murder inpursuance of the common object of the unlawful assembly, itis often not possible for witnesses to describe accurately thepart played by each one of the assailants. Besides, if a largeCcrowd of persons armed with weapons assaults the intendedvictims, it may not be necessary that all of them have to takepart in the actual assault. In the present case, for instance,several weapons were carried by different members of theunlawful assembly, but it appears that the guns were used andDthat was enough to kill 5 persons. In such a case, it would beunreasonable to contend that because the other weapons carriedby the members of the unlawful assembly were not used, thestory in regard to the said weapons itself should be rejected.Appreciation of evidence in such a complex case is no doubt adifficult task; but criminal courts have to do their best in dealingEwith such cases and it is their duty to sift the evidence carefullyand decide which part of it is true and which is not.”

26. To similar effect is the observation in Lalji v. State of U.P.[19] Itwas observed that: (SCC p. 441, para 8)

F“Common object of the unlawful assembly can be gatheredfrom the nature of the assembly, arms used by them and thebehaviour of the assembly at or before the scene of occurrence.It is an inference to be deduced from the facts andcircumstances of each case.”

G27. In State of U.P. v. Dan Singh[20] it was observed that it is notnecessary for the prosecution to prove which of the members ofthe unlawful assembly did which or what act. Reference was 18 AIR 1965 SC 20219 (1989) 1 SCC 437H20 (1997) 3 SCC 747

made to Lalji case where it was observed that: (SCC p. 442,para 9)

“While overt act and active participation may indicate commonintention of the person perpetrating the crime, the merepresence in the unlawful assembly may fasten vicariouslycriminal liability under Section 149.”

28. Above being the position, we find no substance in the pleathat evidence of eyewitnesses is not sufficient to fasten guilt byapplication of Section 149. So far as the observations madein Kamaksha Rai case[21] are concerned, it is to be noted that thedecision in the said case was rendered in a different factual scenarioaltogether. There is always peril in treating the words of a judgmentas though they are words in a legislative enactment, and it is to beremembered that judicial utterances are made in the setting of thefacts of a particular case. Circumstantial flexibility, one additionalor different fact may make a world of difference betweenconclusions in two cases (see Padma Sundara Rao v. State ofT.N.[22]). It is more so in a case where conclusions relate toappreciation of evidence in a criminal trial, as was observedin Krishna Mochi case.”

52. In Sanjeev Kumar’scase, the conviction under Section 302with the aid of Section 149 was maintained when, it was found thatthere was no object of killing but only of stopping the deceased andother contestants from elections. It was held that it cannot be ruled outthat the common intention to kill might have arisen on the spur of themoment.

53. It is held in the Gangadhar Behera’scase that the words ofa judgment cannot be treated as words in a legislative enactment. It is tobe remembered that judicial orders are made in the setting of the factsof a particular case. Circumstantial flexibility, one additional or differentfact may make a world of difference between conclusions in two cases,therefore, whether there was common object of the accused in eachcase would depend upon cumulative effects of the facts of that particularcase.

54. In the present case, both the Courts below have found thatthe appellants have common object in burning the hut of the deceased 21 (1999) 8 SCC 70122 (2002) 3 SCC 533

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Aand also attacking the deceased with aruvals (sickles) in view of the roleof the deceased in the affairs of Panchayat against caste Hindus.Therefore, appellants other than Ravi (A-1) and Singaravelu (A-2) cannotbe treated differently to convict them for the offences under Section326 read with Section 149 IPC as all the accused were part of theunlawful assembly which has taken the life of the deceased in a murderousBattack on the fateful morning of 13.03.1994.

55. Consequently, we do not find any merit in the present appealsand the same are dismissed.

The appellants are on bail. They shall surrender within four weeksCto undergo their remaining part of the sentence.

Divya Pandey

Appeals dismissed.

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