POSTMAN VENGAISAMY & ORS.versusSTATE REPRESENTED BY INSPECTOR OF POLICE & ORS.

                        [2019] 9 S.C.R. 1115                             1115


               POSTMAN VENGAISAMY & ORS.                                 A
                                  v.
 STATE REPRESENTED BY INSPECTOR OF POLICE & ORS.
                 (Criminal Appeal No.1234 of 2010)
                           JULY 24, 2019                                 B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
        Penal Code, 1860: s.302 – Fifteen accused – Prosecution
case was that there was history of previous attack on complainant
party – On the fateful day, all the accused armed with weapons
                                                                         C
surrounded PW-1, PW-2 and the deceased – A-11 instigated the
other accused to cut the victim-deceased into pieces – Pursuant to
that, they were attacked whereby A-13 chopped the left hand
below elbow of PW-1 whereas A-6 hit left shoulder of PW-2 while
the victim-deceased was attacked on several parts of his body with
sword by the accused persons – PW-1 and PW-2 escaped from the            D
clutches of the accused – Victim-deceased succumbed to injuries –
Trial court and High Court convicted the appellants and other
accused persons for various offences – On appeal, held: Though,
the argument for the appellants was that PW-1 and PW-2 were
introduced witnesses but the lengthy cross-examination conducted
                                                                         E
on them did not lead to any such inference – Postmortem report
showed multiple injuries on the victim-deceased – The oral
testimony of material witnesses PW-1 and PW-2 was corroborated
by the medical evidence, whereas the motive of taking life of the
deceased was made out from the incident – Therefore, the findings
recorded by the courts below were plausible findings in law – Some       F
contradictions may have arisen on account of perception of the
witnesses and passage of time, but the creditability of the witnesses
were not shaken – Therefore, such witnesses were reliable and
creditworthy – Since there was a history of earlier attack on the
deceased, accused formed an unlawful assembly with a view to take
                                                                         G
life of the victim-deceased – No reason to interfere with the order of
conviction.
      Dismissing the appeal, the Court
     HELD: PW-4 stated that he, along with the victim-
deceased, were beaten up by the accused. He further stated that          H
                                  1115
1116            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


 A     he sustained injuries on the face below both the eyes. The
       statement of PW-5, wife of PW-4 was also to the same effect. The
       oral testimony of material witnesses PW-1 and PW-2 was
       corroborated by the medical evidence, whereas the motive of
       taking life of the deceased was made out from the incident.
       Therefore, the findings recorded by the courts below were
 B
       plausible findings in law. Some contradictions arose on account
       of perception of the witnesses and due to passage of time. But
       the creditability of the witnesses was not shaken. On the
       exhortation of A-11, the accused who were armed with sword had
       raised murdered assault on the deceased and also injured PW-1
 C     and PW-2. Since there is a history of earlier attack on the deceased
       on April 8, 2003, accused formed an unlawful assembly with a
       view to take life of the victim-deceased. It is cumulative effect of
       the evidence led by the prosecution which determines whether
       unlawful assembly had a common object to commit culpable
       homicide amounting to murder. [Paras 10-13] [1120-G-H; 1121-
 D
       A-E]
             Ram Laxman v. State of Rajasthan (2016) 12 SCC 389;
             Najabhai Desurbhai Wagh v. Valerabhai Deganbhai
             Vagh & Ors. (2017) 3 SCC 261– distinguished.
 E           Mahendran v. State of Tamil Nadu (2019) 5 SCC 67
             – held inapplicable.

                                 Case Law Reference
              (2016) 12 SCC 389       distinguished          Para 7
 F            (2017) 3 SCC 261        held inapplicable      Para 7
              (2019) 5 SCC 67         held inapplicable      Para 7
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No. 1234 of 2010
 G          From the Judgment and Order dated 30.09.2008 of the Madurai
       Bench of Madras High Court in Criminal Appeal No. 647 of 2007
             P. B. Suresh, Vipin Nair, Karthik Jayashankar, Advs. for the
       Appellants.
             M. Yogesh Kanna, Ms. Meha Aggarwal, Partha Sarathi, S. Raja
 H     Rajeshwaran, Advs. for the Respondents.
   POSTMAN VENGAISAMY v. STATE REPRESENTED BY                                 1117
              INSPECTOR OF POLICE

      The Judgment of the Court was delivered by                              A
      HEMANT GUPTA, J.
       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-              B
10) and Accused No. 12 – Neelamegavannan(A-12) have completed
their sentence and had since been released from custody.
      2. 15 accused were made to stand trial before Principal Sessions
Judge, Virudunagar District at Srivilliputtur. The learned trial court vide
judgment dated December 7, 2007 convicted A-1, A-9, A-10, A-11, A-            C
12 and A-15 for the offences punishable under Sections 148, 302 read
with Section 149 IPC, whereas A-11 was also sentenced for an offence
punishable under Section 506 (Part II) IPC. Thirumeni (A-4) and
Neelamegam @ Valadukai Neelamegam (A-14) died even before
framing of charges by the learned trial court, whereas other accused          D
persons 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 offences
punishable under Sections 342 and 324 IPC. Such accused did not file
any appeal before the High Court as well. However, in appeal by other
accused, the High Court confirmed the sentence imposed, except in             E
respect of Poovalingam (A-6), who was convicted for an offence under
Section 324 IPC and sentenced to one year rigorous imprisonment.
       3. One Chinnaperiaiyah (Father of Irulandi – PW-1) is the
deceased. The prosecution case is that Baskaran (PW-4) bought goats
valuing about Rs.12,000/- from the deceased and has promised to pay           F
the amount after 20 days. On April 8, 2003, the deceased came to
Anaikulam to collect the amount from Baskaran. Baskaran (PW-4) sent
his wife Rathi (PW-5) to collect the money from the persons to whom
he 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)              G
and Thalaiyaripandi (A-11) and that they also snatched the money.
Baskaran (PW-4), Rathi (PW-5) and deceased Chinnaperiaiyahwent to
police station to lodge a report but while returning, Baskaran (PW-4),
Rathi (PW-5) and deceased Chinnaperiaiyah were attacked by the men
belonging to Thalaiyaripandi (A-11) due to which they sustained injuries.
                                                                              H
1118            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


 A     The deceased Chinnaperiaiyahbelonged to Village Kurunthankulam
       whereas accused belonged to Nathakulam Village and both the villages
       are 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 from
 B     Baskaran (PW-4). At that time, Ramar (PW-2), brother-in-law of
       Baskaran (PW-4), was present. Baskaran (PW-4) told the deceased
       Chinnaperiaiyah that he will pay the money next day. Therefore, the
       deceased Chinnaperiaiyah stayed in the house of Ramar(PW-2). It was
       on April 26, 2003, all the accused armed with weapons surrounded Irulandi
       (PW-1), Ramar (PW-2) and the deceased Chinnaperiaiyah. At that
 C     juncture, Thalaiyaripandi(A-11) instigated the other accused to finish off
       the 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
 D     Vellachamy(A-15) attacked the deceased with aruvals(sword) on various
       parts 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 shoulder
       of Ramar (PW-2). Irulandi (PW-1) and Ramar (PW-2) went to
       Veeracholan 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.
 E     Irulandi (PW-1) and Ramar (PW-2) were sent to Thiruchuli Government
       Hospital for treatment, whereas the FIR was sent to the learned Judicial
       Magistrate, Aruppukottai.
             5. Irulandi (PW-1) and Ramar (PW-2) were medically examined
       by Dr. Jayakumar (PW-13). After completion of investigation, accused
 F     were made to stand trial. Before the learned trial court, the prosecution
       examined 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 the
 G     testimony of Irulandi (PW-1) and Ramar (PW-2), the injured witnesses
       as 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 which
       Baskaran (PW-4) and Rathi (PW-5) and the deceased Chinnaperiaiyah
 H     have received injuries and the other on April 26, 2003 in which Irulandi
    POSTMAN VENGAISAMY v. STATE REPRESENTED BY                                 1119
       INSPECTOR OF POLICE [HEMANT GUPTA, J.]

(PW-1) and Ramar (PW-2) received injuries whereas Chinnaperiaiyah              A
lost his life.
       7. Learned counsel for the appellants argued that the so-called
injured witnesses Irulandi (PW-1) and Ramar (PW-2) have been
introduced by the prosecution and they have not received injuries in the
manner set up by the prosecution. It is contended that the injuries received   B
on such witnesses are simple injuries which are not proved to be inflicted
by the accused. It is also argued that all the prosecution witnesses are
interested witnesses, therefore, their testimony cannot be believed by
the learned trial court and affirmed by the High Court. It is also contended
that the statements of material witnesses i.e. Irulandi (PW-1) and Ramar
(PW-2) are contradictory, therefore, in the absence of corroboration of        C
the evidence of such witnesses, their statements cannot be relied upon.
Reliance is placed upon the judgments in Ram Laxman v. State of
Rajasthan1 to contend that the statements of Irulandi (PW-1) and Ramar
(PW-2) cannot be split to grant benefit to some co-accused while
maintaining conviction of others when all accused stand on the same            D
footing and deserve parity. Learned counsel also relied on Najabhai
Desurbhai Waghv. ValerabhaiDeganbhai Vagh & Ors.2to submit that
the prosecution has failed to prove common object to commit a murder
on the basis of evidence led, therefore, conviction of the appellants with
the aid of Section 149 is not tenable. Reliance is also placed upon in the
case of Mahendran v. State of Tamil Nadu3. In the said case, it was            E
held that though the maxim “falsus in uno, falsus in omnibus” has no
application in India but the rule of caution is required to be applied while
examining the statement of witnesses whose part statement is not found
to be truthful.
       8. We have heard learned counsel for the parties and find no            F
merit in the present appeal.
        9. Irulandi (PW-1) has deposed that, on April 26, 2003, he along
with his father Chinnaperiaiyah and Ramar (PW-2)were on their way to
Anaikulam, when they were surrounded by accused persons who were
led by Thalaiyaripandi (A-11)and armed with swords. Thalaiyaripandi            G
(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                                                              H
1120            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


 A     but he was immobilized by Karnan (A-2), Krishnamurthi (A-3) and
       Thirumeni (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 by
       sword, Kotti @ Kotteswaran (A-10) chopped the right side forehead of
       his father, Thalaiyaripandi A-11) hit left side rib of his father, whereas
 B
       Neelamegavannan (A-12) hit in the right side of the back side of his
       father. Chinnaperiaiyah died at the spot. Irulandi (PW-1) and
       Ramar(PW-2) escaped from the clutches of the accused, then Arjunan
       (A-13) chopped the left hand below elbow of Irulandi (PW-1) whereas
       Poovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, the
 C     argument 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 that
 D
       multiple injuries were noticed by the Doctor. Such injuries corroborate
       the oral testimony ofIrulandi(PW-1) and Ramar (PW-2). Ex.P-29 is the
       report in respect of injuries suffered by Irulandi (PW-1) measuring 6x1x½
       cm near left hand. He has also provided medical report (Ex.P-30) on
       Ramar. He stated that Ramar has sustained the following injuries:
 E           “1. Wound on the left bullocks. The pain was stated by patient
             swelling on the right fact. Pain felt not welling to get treated as
             influent treated as out patient.
             2. At the right ankle pray was taken and found that right Kibula
             Bone was broken the said injury was termed as severe injury.
 F           Certificate issued the same is accident report Ex.P.30.”
             10. Baskaran (PW-4), in his statement, also confirmed the incident
       of April 8, 2003. He stated that he, along with Chinnaperiaiyah, were
       beaten up by the accused. He further stated that he sustained injuries
       on the face below both the eyes. The statement of Rathi(PW-5), wife
 G     of Baskaran (PW-4), is also to the same effect.
              11. The oral testimony of material witnesses Irulandi (PW-1) and
       Ramar (PW-2) is corroborated by the medical evidence, whereas the
       motive of taking life of the deceased is made out from the incident which
       happened on April 8, 2003. Therefore, the findings recorded by the
 H     courts below are plausible findings in law.
   POSTMAN VENGAISAMY v. STATE REPRESENTED BY                                  1121
      INSPECTOR OF POLICE [HEMANT GUPTA, J.]

        12. In Ram Laxman’s case, the Court found that the High Court          A
disbelieved with witness in respect of the other accused but believed
such witness in respect of the other accused. That is not a case of some
omissions or contradictions of statement but the credibility of witness
itself was doubted. Such is not in the present case. Some contradictions
arise on account of perception of the witnesses and due to passage of
                                                                               B
time. 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 examining
the judgment of acquittal recorded by the High Court when the High
Court maintained sentence against only one accused. The appeal by the
complainant was against the acquittal of the accused. This Court held          C
that armed with weapons like axe, iron pipe and spear, the common
object to commit an offence can be inferred from the weapons used and
the violent manner of the attack but the question examined was whether
they can be attributed with the knowledge about murder. The present is
not such a case. Here, on the exhortation of Thalaiyaripandi (A-11), the       D
accused who were armed with sword had raised murdered assault on
the deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Since
there is a history of earlier attack on the deceased on April 8, 2003,
accused formed an unlawful assembly with a view to take life of
Chinnaperiaiyah. The judgments referred to are not applicable to the
facts of the present case. It is cumulative effect of the evidence led by      E
the prosecution which determines whether unlawful assembly had a
common object to commit culpable homicide amounting to murder.
       14. in Mahendran’s case, reiterating the well-established principle
that follows “falsus in uno, falsus in omnibus” has no application in
India and is not a rule of law. Therefore, even if some part of the            F
statement is found to be unproved, entire testimony of witnesses cannot
be rejected.
      15. In view thereof, we do not find any error in the judgment of
conviction and sentence recorded by the High Court. Accordingly, the
appeal is dismissed.However, the appellants are granted three months’          G
time to surrender before the competent court.



Ankit Gyan                                                 Appeal dismissed.
                                                                               H