MAHENDRANversusTHE STATE OF TAMIL NADU

                        [2019] 4 S.C.R. 383                             383


                          MAHENDRAN                                     A
                                 v.
                  THE STATE OF TAMIL NADU
                (Criminal Appeal No. 1266 of 2010)
                       FEBRUARY 21, 2019                                B
   [SANJAY KISHAN KAUL AND HEMANT GUPTA , JJ.]
       Penal Code, 1860 – ss.141, 149, 302 and 326 – Statement of
PW1-son-in-law of one ‘M’, that on 12.03.94 while going to
Nangarari with his father, due to darkness they decided to stay at
                                                                        C
his father-in-law’s house – He stated that his father-in-law shared
the dispute between him and the Caste Hindus – On 13.03.1994 at
about 7.30 AM, he heard noise when he and his father-in-law came
outside to see what happened – A-1 to A-9 were standing with stones
and aruvals (sickles) – A-1 poured the kerosene from tin container
and A-2 set fire to the hut of PW1’s father in law – PW1’s father-in-   D
law ran towards backside of the house – Accused hit on his head
with 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 Court
acquitted accused nos. 10 and 12-15 by granting them benefit of
                                                                        E
doubt – On appeal by accused nos.1-9 (8 & 9 died during the
pendency of the appeal), held: Presence of the appellants were
disclosed in the FIR recorded soon after the occurrence – No reason
to hold that the accused-appellants have been implicated falsely –
Prosecution witnesses PW1, PW2 and PW3 clearly defined the role
of each of the appellants in the occurrence which took the life of      F
PW1’s father-in-law– Such statement is corroborated by PW5 (PW1’s
mother-in-law) – Active participation of all the appellants stands
proved on record – Both the Courts below found that the appellants
had common object in burning the hut of the deceased and also
attacking the deceased with aruvals (sickles) in view of the role of
                                                                        G
the deceased in the affairs of Panchayat against caste Hindus –
Appellants other than A-1 and A-2 cannot be treated differently to
convict them for the offences u/s.326 r/w. s.149 IPC as all the
accused were part of the unlawful assembly which took the life of
PW1’s father-in-law in a murderous attack.
                                                                        H
                                 383
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A           Penal Code, 1860 – s.141 – Unlawful assembly – Common
      Object of – Discussed.
            Maxims –”falsus in uno, falsus in omnibus” – Application of, in
      India – Held: The maxim has no application in India – Entire
      testimony of the witnesses cannot be discarded only because, in
B     certain aspects, part of the statement has not been believed –
      General principle of appreciation of evidence is that even if some
      part of the evidence of witness is found to be false, the entire
      testimony of the witness cannot be discarded – Witnesses – Evidence
      of – General principle of appreciation.
C           Judgments/Orders – Interpretaion of – Discussed.
            Dismissing the appeals, the Court
             HELD: 1.1 The statement of PW1 was recorded at 8.45
      AM by PW19-Police Inspector soon after the occurrence.
      Lodging of the FIR by PW1 is supported by PW2 and PW3 who
D     have found that PW1 was already in Police Station lodging the
      complaint. The testimony of PW19 regarding lodging of FIR at
      8.45 AM is not discredited in the cross-examination. He denied
      such suggestion and also the suggestion that the documents were
      sent to the Court at 4.15 PM. The trial court and the High Court
E     have believed the prosecution version in this respect. PW1
      disclosed the receipt of injuries on the body of his father-in-law
      and denied the suggestion that he does not know how his father-
      in-law was killed, how his father-in-law’s hut was set on fire and
      he did not go to Neikuppai Village. In the re-examination, he
      deposed that five sickles recovered were approximately 1ft in
F     length; some may be longer or shorter. Such statement of PW1
      is corroborated by PW2 who is resident of same Village as that of
      the deceased. He also deposed that houses of PW13 and one
      Manickam are situated on the School street, one facing North
      and the other facing South and at a distance of half a furlong. At
G     the time of incident Manickam’s house was locked and people
      came running to Manickam’s house from PW13’s house. Similar
      is the statement of PW3 that A-1 poured the kerosene from a tin
      container on the roof of hut of the deceased and A-2 set ablaze
      the hut. Even PW5-wife of the deceased also deposed that A-1
      poured kerosene and A-2 lit the matchstick. She stated that there
H
        MAHENDRAN v. THE STATE OF TAMIL NADU                            385


were other twenty or thirty people standing around as a group.          A
The fact that she has not named other accused, will not absolve
the role of the appellants, as their presence is disclosed by three
other prosecution witnesses i.e. PW1, PW2 and PW3. The
presence of witnesses examined by the prosecution at the place
of occurrence is based upon the appreciation of the evidence by
                                                                        B
the two Courts. It is not found that such appreciation is perverse
or wholly untenable which may warrant interference in the present
appeals. There is no reasonable basis to hold that PW1 would
not stay with his father-in-law in the circumstances explained by
him. [Paras 26-30][397-A-H; 398-A-B]
      1.2 The FIR was lodged soon after the occurrence when             C
PW2 and PW3, residents of the same village reached the Police
Station. Therefore, the fact that PW1 could not recollect the fathers
name of three of the accused would not create doubt on the case
set up by the prosecution. [Para 34] [399-D]
      1.3 The trial court found that some discrepancies can be          D
due to minor errors of perception or observation or due to lapse
of memory. The witnesses were being examined after more than
six years of the occurrence. The argument that the entire case
set up is based on falsehood and thus not reliable for conviction
of the appellants, is not tenable. It is well settled that the maxim    E
“falsus in uno, falsus in omnibus” has no application in India only
for the reason that some part of the statement of the witness has
not been accepted by the trial court or by the High Court.
Therefore, the entire testimony of the witnesses cannot be
discarded only because, in certain aspects, part of the statement
has not been believed. [Paras 37-39][400-B-D; 402-E]                    F

      1.4 If the witness is reliable and dependable then the entire
statement cannot be discarded. The general principle of
appreciation of evidence is that even if some part of the evidence
of witness is found to be false, the entire testimony of the witness
cannot be discarded. Ex.P.6 is a disclosure statement of A-1,           G
whereas, Ex.P.8 is a disclosure statement of A-10, A-21, one ‘N.R’
(died), A-22 and A-24. It is not the confessional statement of one
accused which led to recovery of weapons used in the occurrence
but on the basis of confessional statements of the accused, a
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386           SUPREME COURT REPORTS                    [2019] 4 S.C.R.


A     common recovery memorandum was prepared. Such common
      Memo of recovery of weapons used in the occurrence cannot
      create doubt on the prosecution story. DW4 is Assistant Doctor
      in the Kudavasal Government Hospital who has deposed that
      doctors were on duty on the date of occurrence. He deposed that
      Doctor ‘G’ was on duty in Out-Patient Ward from 7.30 AM. There
B
      was no duty at the Out-patient ward from 3.00 to 5.00 PM on that
      day. As is given on the record that the Village Kudavasal falls on
      the way to Thiruvarur and since the Doctor was not available, the
      injured were examined at Government Hospital Thiruvarur. The
      testimony of PW17-Doctor ‘R’ has not been questioned on the
C     ground that the Doctor was available at Kudavasal Hospital and
      injuries should have been examined at that place as well. The
      only suggestion put to witness is that the injuries could have
      been caused within one hour before he examined them. The
      possibility of injuries is an opinion which cannot controvert the
      primary statement of the witness about the receipt of the injuries
D
      in the fateful morning of 13.3.1994. The prosecution has proved
      the active role played by A-1 and A-2. The presence of other
      accused at the time of occurrence as part of the crowd who lynched
      Murugaiyan also stands proved. There is physical severance on
      the parts of the body of the deceased. The presence of the
E     appellants were disclosed in the First Information Report
      recorded soon after the occurrence. Therefore, there is no reason
      to hold that the accused- appellants have been implicated falsely.
      The prosecution witnesses PW1, PW2 and PW3 have clearly
      defined the role of each of the appellants in the occurrence which
      has taken the life of the the deceased. Such statement is
F
      corroborated by PW5-wife of the deceased who deposed that it is
      A-1 and A-2 who poured kerosene and lit the matchstick
      respectively along with twenty-thirty other persons. Therefore,
      the active participation of all the appellants stands proved on
      record. [Paras 40, 42-46][403-B-H; 404-A-D]
G          1.5 There is no merit in the argument that all the appellants
      cannot be said to have common object in view, in the absence of
      an overt act attributed to the appellants other than A-1 and A-2
      by PW5. Even PW5 is categorical that A-1 and A-2 were
      accompanied by twenty-thirty other people. Though she has not
H     named other accused but the fact that the other accused have
        MAHENDRAN v. THE STATE OF TAMIL NADU                          387


been named specifically by PW1, PW2 and PW3, clearly shows            A
that all the accused came as a group to attack the hut of the
deceased and then took his life. Common object does not require
a prior concert and a common meeting of minds before the attack.
It is enough if each has the same object in view if the five or
more act as an assembly to achieve that object. The “common
                                                                      B
object” of an assembly is to be ascertained from the acts and
language of the members composing it, and from a consideration
of all the surrounding circumstances. [Paras 47, 51][404-D, E;
405-F, G]
      1.6 Judicial orders are made in the setting of the facts of a
particular case. Circumstantial flexibility, one additional or        C
different fact may make a world of difference between conclusions
in two cases, therefore, whether there was common object of the
accused in each case would depend upon cumulative effects of
the facts of that particular case. In the present case, both the
Courts below have found that the appellants have common object        D
in burning the hut of the deceased and also attacking the deceased
with aruvals (sickles) in view of the role of the deceased in the
affairs of Panchayat against caste Hindus. Therefore, appellants
other than A-1 and A-2 cannot be treated differently to convict
them for the offences under Section 326 read with Section 149
IPC as all the accused were part of the unlawful assembly which       E
has taken the life of the deceased in a murderous attack on the
fateful morning of 13.03.1994. [Paras 53, 54][407-F-H;
408-A, B]
      Ram Laxman v. State of Rajasthan (2016) 12 SCC 389
      – held inapplicable.                                            F

      Noushad alias Noushad Pasha and Others v. State of
      Karnataka (2015) 2 SCC 513; Suraj Mal v. State (Delhi
      Administration) (1979) 4 SCC 725; Joseph v. State,
      Represented by Inspector of Police (2018) 12 SCC 283 :
      [2017] 2 SCR 452; Najabhai Desurbhai Wagh v.                    G
      Valerabhai Deganbhai Vagh and Others (2017) 3 SCC
      261; Gangadhar Behera and Others v. State of Orissa
      (2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; Sanjeev
      Kumar Gupta v. State of Uttar Pradesh (2015) 11 SCC
      69 : [2015] 5 SCR 122 – referred to.                            H
388            SUPREME COURT REPORTS                       [2019] 4 S.C.R.


A                            Case Law Reference
      (2016) 12 SCC 389               held inapplicable        Para 15
      (2015) 2 SCC 513                referred to              Para 15
      (1979) 4 SCC 725                referred to              Para 15
B     [2017] 12 SCR 452               referred to              Para 19
      (2017) 3 SCC 261                referred to              Para 19
      [2002] 3 Suppl. SCR 183         referred to              Para 23
      [2015] 5 SCR 122                referred to              Para 24
C
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1266 of 2010
           From the Judgment and Order dated 26.09.2008 of the High Court
      of Madras (Madurai Bench) in Criminal Appeal No. 586 of 2001
D                                      With
            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.
E
      for the Respondent.
            The Judgment of the Court was delivered by
             HEMANT GUPTA, J. 1. The Criminal Appeal No. 1266 of
      2010 preferred by Mahendran (Accused No. 3), and Criminal Appeal
F     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
G     (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.

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         MAHENDRAN v. THE STATE OF TAMIL NADU                                   389
                 [HEMANT GUPTA, J.]

      2. The prosecution had put on trial twenty-four persons for various       A
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
                                                                                B
(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              C
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            D
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   E
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            F
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       G
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               H
390            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     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.
B             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 Murugaiyan’s house and prepared an observation
C     Memo Ex.P.2. He also prepared sketch Ex.P.19 and observation Memo
      Ex.P.3 after seeing the place where the dead body was lying at 10.20
      hours on that day. He prepared inquest report Ex.P.30 and sent the
      body for post-mortem. He associated the informant PW1-Ganesamoorthy,
      PW2- Raja, PW3-Ramesh, PW4-Ravanan and PW5-Lakshmi, wife of
D     the deceased, for investigations and recorded their statements. He also
      associated PW6-Sankaran and Mariappan(A-23) and recorded their
      statements. He recovered burnt bamboo piece, a burnt coconut leaf
      lattice, one burnt polyester sari in red, blue, white and green colours, a
      burnt sprayer nozzle, and some burnt paddy as well as one plank taken
      from the burnt cart at about 1615 hours, recorded in Ex.P.4. The materials
E     mentioned therein Ex.P.4 are M.Os. 10 to 15. He also took in possession
      the 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 of
      Murugaiyan was lying as well as earth without blood stain was taken
F     from the same place. He also associated some other witnesses to complete
      investigations.
             7. It was on 13.3.1994, ten accused initially mentioned by the
      informant Ganesamoorthy were arrested. The disclosure statement Ex.P.6
      was recorded of accused Ravi (A-1), and on the basis of disclosure
G     statement five sickles were recovered from A-1 to A-5 and Balakrishnan,
      whereas, bamboo sticks of different lengths were recovered from A-6
      to 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 at
      the stated time and that the same was prepared after discussion and that
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        MAHENDRAN v. THE STATE OF TAMIL NADU                                   391
                [HEMANT GUPTA, J.]

the FIR Ex.P.13 was sent to Court on that day at around 4.00 PM. He            A
deposed that deceased Murugaiyan belongs to Scheduled Caste and
denied that the dead body was lying in the seating area near the
Manickam’s house. He also associated PW13-Mahalingam, his wife
Theivakani, daughter Raji, son Selvam in the course of investigations
and recorded their statements. But he stated that he had not gone to
                                                                               B
Manickam’s house as mentioned by these persons. On completion of
the investigations, Charge-sheet was filed. The accused pleaded not
guilty and claimed trial.
       8. The post-mortem on the dead body of Murugaiyan was
conducted by PW17-Dr. Razool. He found the following external injuries
on the person of the deceased: -                                               C
      “1. 6” long Elliptical, Horizontal cut injury with clear cut edges of
      skin, extending from angle of left mandible, cross left neck, up to
      lateral process of spine. “C2”, without involving mastoid Bone on
      clearing dark blood clots. The sterno cleido Mastoid muscles and
      jugular veins & carotid arteries are found cut.                          D
      2. 1" below injury No.(1) a similar cut injury horizontal, extending
      from Adam’s apple, across left of neck up to c 5 spine, lateral
      process in the back “6” long its depth extends, cutting the sterno-
      Mastoid muscles and jugular veins and common carotid artery
      with profuse dark blood oozing.                                          E
      3. Similar cut injury 3" long horizontal and 1" below injury No. 2
      over root of neck involving clavicle bone left.
      4. Irregular edged 2" x 1" x ½” serrated edged abrasion over left
      scapula.
                                                                               F
      5. 10" long lacerated injury with clear edges very superficial running
      obliquely across left breast to right ribs with two packets on injury
      1" deep lying on the same line with 3" gap in between. This injury
      does not involve heart, lungs and abdominal viscera.
      6. Cut injury, 4" long horizontal and lateral side of left thigh, 4"
                                                                               G
      above knee joint just embracing femur bone.
      7. Below left knee joint similar injury 4" long over lateral side of
      leg, completely cutting away the Tibia and Fibula bones.
      8. 2" below injury No. (7), 3" long cut injury over lateral side, 2"
      deep.                                                                    H
392            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A           9. Complete severing of left wrist separating the hand from its
            joints, 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 cut
            injury, running over the shoulder from scapula to anterior of shoulder
B           cutting the tender insertion of biceps muscles chopping of the
            head of humerus bone.
            OTHERS:
            Brain pale not liquefied. Skull bone, spinal, spinal column not
            fractured. Stomach, spleen, liver, kidney and lungs are pale, but
C           not injured. Heart no injury. All the left chambers are empty with
            little clots.”
             The cause of death was injury Nos. 1 and 2 due to severing of left
      carotid artery and jugular veins, leading to profuse haemorrhage, hypo-
      volume shock and death in sequence. He produced his post-mortem
D     report 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 by
      stones 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-Ramesh
      on the same day and found the following injuries respectively:
               “1. ½ “ diameter recent abrasion with surrounded edema over
F              right eye brow.”
               “1. Recent contusion with blood clot ½” diameter abrasion
               over left crown of head.
               2.Tenderness over left half muscles.”
G           11. To prove the allegations against the accused, the prosecution
      examined PW1-Ganesamoorthy, the informant and son-in-law of the
      deceased, PW2-Raja, PW3-Ramesh, PW5-Lakshmi wife of the deceased
      and PW13-Mahalingam, all residents of Village Neikuppai, PW4-Ravanan
      resident of Narsingampettai. Both the Courts have relied upon the
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         MAHENDRAN v. THE STATE OF TAMIL NADU                                  393
                 [HEMANT GUPTA, J.]

statements of PW1-Ganesamoorthy, PW2-Raja and PW3-Ramesh to                    A
convict the appellants.
       12. Learned counsel for the appellants argued that PW1-
Ganesamoorthy is not a witness of occurrence, but has been introduced
falsely. In support of the argument that the witness was not present at
the place of the occurrence, the following aspects were pointed out:-          B
      a). It is unbelievable that son-in-law will stay with his in-laws
      more 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 got
      injuries with the stones pelted by the aggressors, whereas, he has
      tried to prove his presence on the basis of self-inflicted injuries      C
      which 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 FIR
      was delivered to the Judicial Magistrate at 4.00 PM but not soon
      after it was dispatched around 9.30 AM. It is unbelievable that          D
      the constable would not know that the Magistrate would not come
      to the Court being Sunday as he could have delivered the FIR at
      the residence of the Officer.
      d). PW1-Ganesamoorthy has given parentage of all the ten accused
      in the statement Ext.P.1, but in Court he could not disclose the         E
      parentage of A4, A6 and Balakrishnan (since died). Thus, FIR
      was lodged after consultation, therefore, the delay in the receipt
      of FIR by the Magistrate
        13. It is also argued that the place of occurrence is opposite house
of Manickam as is deposed by PW13-Mahalingam, but the prosecution              F
has shifted the place of occurrence near the house of Mahalingam. Since
the place of occurrence itself has not been proved on the statement of
PW13 Mahalingam, the prosecution story in respect of the manner of
occurrence cannot be accepted. It is stated that PW1-Ganesamoorthy
is not reliable and truthful witness, therefore, unworthy of reliance.
                                                                               G
       14. It is also argued that PW1-Ganesamoorthy, PW2-Raja and
PW3-Ramesh have roped in many other accused during the course of
investigations and that such part of the statement has not been found to
be a truthful version resulting into acquittal of accused Nos. 10, 12, 13,
14 and 15 in appeal, whereas, some other accused were acquitted by
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394             SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     the learned trial court itself. It is thus argued that the statements of
      witnesses are unreliable and lack credibility, therefore, such statements
      cannot be relied upon for the conviction of the appellants.
             15. Learned counsel for the appellants relies upon judgments
      reported in Ram Laxman vs. State of Rajasthan1, Noushad alias
B     Noushad Pasha and Others vs. State of Karnataka2and Suraj Mal
      Vs. State (Delhi Administration)3 to contend that if the testimony of
      the 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 the
      accused.
C            16. It is argued that Ravi (A-1) is said to have suffered a disclosure
      statement under Section 27 of the Indian Evidence Act, 1872 as per the
      statement of PW8-Veeraiyan and got recovered five sickles, but, the
      Investigating Officer has distributed the recovery to the five different
      accused.
D            17. The explanation of the prosecution witnesses that doctor was
      not available at Kudavasal stands controverted on the basis of statement
      of DW4-Assistant Doctor Balakumaravelu in Kudavasal Government
      Hospital who has deposed that the doctor was available. Therefore,
      medical examination in respect of injuries which in opinion of doctor is
      not more than one hour earlier totally discredits the prosecution story.
E
             18. The story of receipt of injuries by the witnesses PW1-
      Ganesamoorthy, PW2-Raja and PW3-Ramesh is highly doubtful as their
      blood-stained clothes were given to the Investigating Officer after two
      days, whereas, if they had received injuries on the date of occurrence, it
      was mandatory for the prosecution to take into possession of the blood-
F     stained clothes on the day of occurrence itself.
              19. It is also argued that PW5-Lakshmi wife of the deceased has
      named Ravi (A-1) and Singaravelu (A-2) only as the persons who had
      poured kerosene and lit the match stick but has not deposed in respect
      of role of the other accused. Thus, in view of the absence of any overt
G     act attributed to the appellants other than A-1 and A-2, their conviction
      for offences under Section 302 IPC and other offences are not made
      1
        (2016) 12 SCC 389
      2
        (2015) 2 SCC 513
      3
        (1979) 4 SCC 725
H
            MAHENDRAN v. THE STATE OF TAMIL NADU                             395
                    [HEMANT GUPTA, J.]

out and they can at best be punished for the offence under Section 326       A
read with Section 149 IPC. The reliance is placed upon the Supreme
Court judgment reported as Joseph vs. State, Represented by
Inspector of Police4and Najabhai Desurbhai Wagh vs. Valerabhai
Deganbhai Vagh and Others5. Learned counsel for the appellants
also argued that the prosecution has failed to prove the common object
                                                                             B
so as to attract the offence under Section 149 IPC.
       20. On the other hand, learned counsel appearing for the State
pointed out that much stress has been laid on shifting the place of
occurrence from near the house of Manickam to near the house of
PW13-Mahalingam. It is argued that it is factually incorrect and the
discrepancy is minor, if any. The reliance is placed upon statement of       C
PW2-Raja who deposed that houses of Mahalingam and Manickam are
in the same street, one facing north and the other facing south meaning
thereby, facing to each other and they are located half a furlong from
each other. Therefore, the place of occurrence is in the street, in which
houses of PW13-Mahalingam and Manickam are located. The evidence             D
that blood-stained earth and the sample earth have been taken in
possession from the place of occurrence near the house of Mahalingam,
therefore, the minor discrepancy in respect of place of occurrence is
inconsequential as the occurrence is in the same street.
       21. It is also argued that PW1-Ganesamoorthy, PW2-Raja and            E
PW3-Ramesh have explained their injuries which part of their evidence
has not been challenged in their cross-examination. The statement of
DW4- Balakumaravelu does not support the argument raised by the
learned counsel for the appellants as it is stated by the witness that the
Doctors give treatment to the patients in the Out-Patient Ward from
7.30 -10.30 AM and give treatment to the patients in In-Patient Ward         F
from 10.30 AM to 12.30 PM and then there is a lunch break from 12.30
PM – 2.00 PM. Thereafter, the administrative work is performed up to
2.30 PM. Thus, the witnesses have been medically examined at the
earliest opportunity.
      22. As per PW2-Raja, the road from Kumbakonam goes to                  G
Kudavasal, Pudukudi and Thiruvarur. The witness has stated that the
distance between Pudukudi and Thiruvarur is 15 K.Ms., whereas, bus

4
    (2018) 12 SCC 283
5
    (2017) 3 SCC 261
                                                                             H
396                SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     will take twenty-five minutes from Kudavasal to reach Thiruvarur.
      Therefore, the argument raised that PW1-Ganesamoorthy has
      manipulated his Medical Report from a Hospital near to his residence is
      not correct as he has travelled on the other side of his village as the
      Medico-Legal Examination was conducted at Thiruvarur.
B            23. Learned counsel refers to the judgement in Gangadhar
      Behera and Others Vs. State of Orissa6 to contend that the offence
      under Section 149 is made out if the unlawful assembly shared common
      object and not common intention, though mere presence in an unlawful
      assembly cannot render a person liable unless there was a common
      object. The common object is as set out in Section 141. It is not necessary
C     to prove overt act against a person who is alleged to be a member of an
      unlawful assembly. In other words, the object should be common to the
      persons, who compose the assembly, that is to say, they should all be
      aware of it and concur in it. A common object may be formed by express
      agreement after mutual consultation, but that is by no means necessary.
D     It may be formed at any stage by all or a few members of the assembly
      and the other members may just join and adopt it.
             24. The Judgment in Sanjeev Kumar Gupta vs. State of Uttar
      Pradesh 7 was relied upon to contend that Section 149 has two
      components (i) offence committed by any member of an unlawful
      assembly consisting of five or more members, and (ii) such offence
E
      must be committed in prosecution of the common object under Section
      141 IPC of the assembly or members of that assembly knew to be likely
      to be committed in prosecution of the common object. For ‘common
      object’, it is not necessary that there should be a prior concert in
      the sense of a meeting of the members of the unlawful assembly.
F             25. The reliance is placed upon the Judgment reported as
      Gangadhar Behera to argue that the maxim “falsus in uno, falsus in
      omnibus” has no application in India and the witnesses cannot be branded
      as liars. The maxim “falsus in uno, falsus in omnibus” has not received
      general acceptance nor has this maxim come to occupy the status of
G     rule 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
      6
          (2002) 8 SCC 381
      7
          (2015) 11 SCC 69
H
         MAHENDRAN v. THE STATE OF TAMIL NADU                                 397
                 [HEMANT GUPTA, J.]

place of occurrence and that FIR has been ante dated. We do not find          A
any merit in the said argument. The statement of PW1-Ganesamoorthy
was recorded at 8.45 AM by PW19-Police Inspector Ramakrishnan
soon after the occurrence. Lodging of the FIR by PW1-Ganesamoorthy
is supported by PW2-Raja and PW3-Ramesh who have found that PW1-
Ganesamoorthy was already in Police Station lodging the complaint. The
                                                                              B
testimony of PW19-Ramakrishnan regarding lodging of FIR at 8.45 AM
is not discredited in the cross-examination. He denied such suggestion
and also the suggestion that the documents were sent to the Court at
4.15 PM. There is nothing on record not to believe statement so the said
witnesses more of the trial court and the High Court have believed the
prosecution version in this respect.                                          C
       27. In respect of manner of occurrence, PW1-Ganesamoorthy in
the cross-examination stated that fifteen hundred people belonging to
different castes live in the Village Neikuppai. He denied the suggestion
that Thiruvarur Government Hospital was near to his house. He also
disclosed the receipt of injuries on the body of his father-in-law and        D
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 and he did not go to
Neikuppai Village.
        28. In the re-examination, he deposed that five sickles recovered
were approximately 1ft in length; some may be longer or shorter. Such         E
statement of PW1-Ganesamoorthy is corroborated by PW2-Raja who
is resident of same Village as that of the deceased Murugaiyan. He also
deposed that houses of PW13-Mahalingam and Manickam are situated
on the School street, one facing North and the other facing South and at
a distance of half a furlong. At the time of incident Manickam’s house
was locked and people came running to Manickam’s house from PW13              F
Mahalingam’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 of
the 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. She         G
has stated that there were other twenty or thirty people standing around
as a group. The fact that she has not named other accused, will not
absolve the role of the appellants, as their presence is disclosed by three
other prosecution witnesses i.e. PW1-Ganesamoorthy, PW2-Raja and
PW3-Ramesh.
                                                                              H
398            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A            29. The presence of witnesses examined by the prosecution at
      the place of occurrence is based upon the appreciation of the evidence
      by the two Courts. We do not find that such appreciation is perverse or
      wholly untenable which may warrant interference in the present appeals.
            30. The argument that it is unbelievable that son-in-law will not
B     stay with his in-laws, when his own village is around 15 KMs away, is
      purely conjectural. There is no reasonable basis to hold that PW1-
      Ganesamoorthy would not stay with his father-in-law in the circumstances
      explained by him.
              31. The argument that in statement Ex.P.1, PW1-Ganesamoorthy
C     has not stated the injuries suffered by him, will render his presence at
      the time of occurrence as doubtful. The said fact when examined in the
      context of a complete statement loses its significance. As per PW1-
      Ganesamoorthy soon after the incident, he went to Kudavasal located at
      the distance of 4 KMs from Neikuppai Village when he lodged the Report
      as statement Ex.P.1 and thereafter he went to Thiruvarur Government
D     Hospital. The Kudavasal and Thiruvarur are located on the other side of
      his village.
             32. PW17-Dr. Razool, an Assistant Surgeon in Thiruvarur
      Government Hospital conducted post-mortem examination at 4.30 PM.
      Thereafter, he conducted Medico-Legal Examination of PW1-
E     Ganesamoorthy, PW2-Raja and PW3-Ramesh. He proved injury report
      Ex.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 possible
      in the manner disclosed by the witnesses. In the cross-examination, he
      disclosed that he cannot say possible time of causing the injuries found
F     on the persons of three witnesses but he opined that the injuries could
      have been caused within one hour before he examined them. The opinion
      of the Doctor in respect of the timing of injuries is not conclusive based
      on possibility of injuries within one hour of the examination when the
      presence of prosecution witnesses as also the role attributed to each
      appellant’s presence has been found to be proved by the oral testimony.
G     The opinion of an expert witness cannot be given preference over the
      primary statement of the witnesses in respect of manner of injuries
      suffered by them.
            33. In respect of the argument that FIR was delivered at 4.45 PM
      on 13.03.1994 to the Judicial Magistrate at Nagapattinam, though the
H
         MAHENDRAN v. THE STATE OF TAMIL NADU                                 399
                 [HEMANT GUPTA, J.]

report was said to be sent at 9.30 AM, again does not create doubt on         A
the prosecution version. The argument that the competent Magistrate
was at Thiruvarur but the FIR has been delivered to the Judicial
Magistrate, Nagapattinam which shows that the FIR was ante-timed, is
again not acceptable. PW15-H.C. Narayanan, deposed that he went to
Thiruvarur and waited for the arrival of the Magistrate. Since, it was a
                                                                              B
holiday, he handed over the FIR to the Judicial Magistrate at his residence
at Pauthiramanickam at 4.45 PM. Therefore, the delay in the receipt of
the FIR by the Judicial Magistrate is explained and cannot be made
basis to reject the case of the prosecution as the FIR was proved to be
lodged soon after the occurrence from the testimony of PW19-Police
Inspector Ramakrishnan.                                                       C
      34. In respect of an argument that PW1-Ganesamoorthy has given
parentage of all the ten accused in the statement Ex.P.1, but could not
disclose the parentage of three accused in Court shows that the first
version was lodged after prior consultation, is again not tenable. The
FIR was lodged soon after the occurrence when PW2-Raja and PW3-               D
Ramesh residents of the same village reached the Police Station.
Therefore, the fact that he could not recollect the fathers name of three
of the accused would not create doubt on the case set up by the
prosecution.
       35. The argument that the place of occurrence is based upon the        E
statement of PW13-Mahalingam who deposed that the dead body was
lying cut in front of Manickam’s house and that the members of the
Dravid Kazhagham left the body in the seating area of his house and
that blood of the deceased was pooled at the seating area of Manickam’s
house, we find that such argument cannot be accepted.
                                                                              F
       36. PW6-Sankaran, Village Administrative Officer reached the
scene of occurrence immediately on hearing about the incident and
deposed that the dead body of Murugaiyan was lying in front of PW13-
Mahalingam’s house. PW7-Kollimalai has also deposed that the
bloodstained earth was seized from the house of PW13-Mahalingam in
his presence and in the presence of Kunjupillai. The fact remains that        G
houses of PW13- Mahalingam and that of Manickam are in the same
street and at a distance of half a furlong. The witnesses have deposed
the house of Manickam was locked and residents from the house of
Mahalingam rushed to the place where dead body was lying. It explains
                                                                              H
400                SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     the reason as to why the witnesses have deposed that the dead body
      was lying near the house of PW13.
             37. The learned trial court found that some discrepancies can be
      due to minor errors of perception or observation or due to lapse of memory.
      It may be noticed that the witnesses were being examined after more
B     than six years of the occurrence.
              38. It is argued that prosecution has put on trial twenty-four
      accused, but presence of A-11 and A-16 to A-24 was doubted by learned
      trial 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 in
C     appeal as well. The argument that the entire case set up is based on
      falsehood and thus not reliable for conviction of the appellants, is not
      tenable. It is well settled that the maxim “falsus in uno, falsus in
      omnibus” has no application in India only for the reason that some part
      of the statement of the witness has not been accepted by the trial court
      or by the High Court. Such is the view taken by this Court in Gangadhar
D     Behera’s case, wherein the Court held as under:-
               “15. To the same effect is the decision in State of Punjab v. Jagir
               Singh8 and Lehna v. State of Haryana9. Stress was laid by the
               accused-appellants on the non-acceptance of evidence tendered
               by some witnesses to contend about desirability to throw out the
E              entire prosecution case. In essence prayer is to apply the principle
               of “falsus in uno, falsus in omnibus” (false in one thing, false in
               everything). This plea is clearly untenable. Even if a major portion
               of the evidence is found to be deficient, in case residue is sufficient
               to prove guilt of an accused, notwithstanding acquittal of a number
F              of other co-accused persons, his conviction can be maintained. It
               is the duty of the court to separate the grain from the chaff. Where
               chaff can be separated from the grain, it would be open to the
               court to convict an accused notwithstanding the fact that evidence
               has been found to be deficient to prove guilt of other accused
               persons. Falsity of a particular material witness or material
G              particular would not ruin it from the beginning to end. The maxim
               “falsus in uno, falsus in omnibus” has no application in India
               and the witnesses cannot be branded as liars. The maxim “falsus
      8
          (1974) 3 SCC 277
      9
          (2002) 3 SCC 76
H
         MAHENDRAN v. THE STATE OF TAMIL NADU                                  401
                 [HEMANT GUPTA, J.]

       in uno, falsus in omnibus” has not received general acceptance          A
       nor has this maxim come to occupy the status of rule of law. It is
       merely a rule of caution. All that it amounts to, is that in such
       cases testimony may be disregarded, and not that it must be
       disregarded. The doctrine merely involves the question of weight
       of evidence which a court may apply in a given set of
                                                                               B
       circumstances, but it is not what may be called “a mandatory rule
       of evidence”. (See Nisar Alli v. State of U.P.10 ) Merely because
       some of the accused persons have been acquitted, though evidence
       against all of them, so far as direct testimony went, was the same
       does not lead as a necessary corollary that those who have been
       convicted must also be acquitted. It is always open to a court to       C
       differentiate the accused who had been acquitted from those who
       were convicted. (See Gurcharan Singh v. State of Punjab 11).
       The doctrine is a dangerous one specially in India for if a whole
       body of the testimony were to be rejected, because a witness
       was evidently speaking an untruth in some aspect, it is to be feared
                                                                               D
       that 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 as
       to what extent the evidence is worthy of acceptance, and merely
       because in some respects the court considers the same to be
       insufficient for placing reliance on the testimony of a witness, it     E
       does not necessarily follow as a matter of law that it must be
       disregarded in all respects as well. The evidence has to be sifted
       with care. The aforesaid dictum is not a sound rule for the reason
       that one hardly comes across a witness whose evidence does not
       contain a grain of untruth or at any rate exaggeration, embroideries
                                                                               F
       or embellishment. (See Sohrab v. State of M.P. 12 and Ugar
       Ahir v. State of Bihar13.) An attempt has to be made to, as noted
       above, in terms of felicitous metaphor, separate the grain from
       the chaff, truth from falsehood. Where it is not feasible to separate
       the truth from falsehood, because grain and chaff are inextricably
       mixed up, and in the process of separation an absolutely new            G
       case has to be reconstructed by divorcing essential details presented
10
   AIR 1957 SC 366
11
   AIR 1956 SC 460
12
   (1972) 3 SCC 751
13
   AIR 1965 SC 277
                                                                               H
402             SUPREME COURT REPORTS                        [2019] 4 S.C.R.


A            by the prosecution completely from the context and the background
             against which they are made, the only available course to be made
             is to discard the evidence in toto. (See Zwinglee Ariel v. State of
             M.P. 14 and Balaka Singh v. State of Punjab 15.) As observed
             by this Court in State of Rajasthan v. Kalki 16 normal
             discrepancies in evidence are those which are due to normal errors
B
             of observation, normal errors of memory due to lapse of time, due
             to mental disposition such as shock and horror at the time of
             occurrence and those are always there however honest and
             truthful a witness may be. Material discrepancies are those which
             are not normal, and not expected of a normal person. Courts have
C            to label the category to which a discrepancy may be categorized.
             While normal discrepancies do not corrode the credibility of a
             party’s case, material discrepancies do so. These aspects were
             highlighted 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 categorically
D
             indicated the distinguishing features in evidence so far as the
             acquitted and the convicted accused are concerned.”
            39. Therefore, the entire testimony of the witnesses cannot be
      discarded only because, in certain aspects, part of the statement has not
      been believed.
E
             40. The judgment referred to by learned counsel for the appellants
      in Ram Laxman’scase is not applicable to the facts of the present
      case, as in that case, the Court found the testimony of the witnesses as
      undependable and unreliable so as to grant benefit to some accused
      while maintaining the conviction of the others. The Court noticed that
F     the maxim “falsus in uno, falsus in omnibus” is not applicable.
      Therefore, if the witness is reliable and dependable then the entire
      statement cannot be discarded.
             41. Similarly, in the case of Noushad the Court found that the
      statement of PW11 that he has witnessed the incident with much of
G     exactitude as to which accused assaulted his brother with what weapon
      cannot be said to have been really witnessed by him. Again, in Suraj
      Mal’s case, the Court was examining the legality of conviction under
      14
         AIR 1954 SC 15
      15
         (1975) 4 SCC 511
      16
         (1981) 2 SCC 752
H     17
         (2002) 6 SCC 81
         MAHENDRAN v. THE STATE OF TAMIL NADU                                  403
                 [HEMANT GUPTA, J.]

the provisions of Prevention of Corruption Act, 1947. It was found that        A
the evidence of witnesses against the two accused was inseparable and
indivisible, when on such evidence one of the accused was acquitted
and not the other accused.
      42. All these judgments are in respect of appreciation of evidence
of witnesses in the facts being examined by the Court. The general             B
principle of appreciation of evidence is that even if some part of the
evidence of witness is found to be false, the entire testimony of the
witness cannot be discarded.
       43. The argument that five aruvals (sickles) were recovered only
on the basis of disclosure statement of Ravi (A-1) is not factually correct.   C
Ex.P.6 is a disclosure statement of Ravi (A-1), whereas, Ex.P.8 is a
disclosure 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 common
memorandum of recovery as Ex.P.7 was prepared. Therefore, it is not            D
the confessional statement of one accused which led to recovery of
weapons used in the occurrence but on the basis of confessional
statements of the accused, a common recovery memorandum was
prepared. Such common Memo of recovery of weapons used in the
occurrence cannot create doubt on the prosecution story.
                                                                               E
       45. The argument that non-availability of a Doctor at Kudavasal
stands controverted on the statement of DW4-Balakumaravelu is again
not tenable. DW4-Balakumaravelu is Assistant Doctor in the Kudavasal
Government Hospital who has deposed that doctors were on duty on the
date of occurrence. He has deposed that Doctor Geetha was on duty in
Out-Patient Ward from 7.30 AM. There was no duty at the Out-patient            F
ward from 3.00 to 5.00 PM on that day. As is given on the record that
the Village Kudavasal falls on the way to Thiruvarur and since the Doctor
was not available, the injured were examined at Government Hospital
Thiruvarur. The testimony of PW17-Doctor Razool has not been
questioned on the ground that the Doctor was available at Kudavasal            G
Hospital and injuries should have been examined at that place as well.
The only suggestion put to witness is that the injuries could have been
caused within one hour before he examined them. The possibility of
injuries is an opinion which cannot controvert the primary statement of
the witness about the receipt of the injuries in the fateful morning of
13.3.1994.                                                                     H
404             SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A             46. The prosecution has proved the active role played by Ravi
      (A-1) and Singaravelu (A-2). The presence of other accused at the time
      of occurrence as part of the crowd who lynched Murugaiyan also stands
      proved. There is physical severance on the parts of the body of the
      deceased. The presence of the appellants were disclosed in the First
      Information Report recorded soon after the occurrence. Therefore, there
B
      is no reason to hold that the accused- appellants have been implicated
      falsely. It may be noticed that the appellants are also Backward Class
      Hindus. The prosecution witnesses PW1-Ganesamoorthy, PW2-Raja
      and PW3-Ramesh have clearly defined the role of each of the appellants
      in the occurrence which has taken the life of the Murugaiyan. Such
C     statement is corroborated by PW5-Lakshmi wife of the deceased who
      deposed that it is Ravi (A-1) and Singaravelu (A-2) who poured kerosene
      and lit the matchstick respectively along with twenty-thirty other persons.
      Therefore, the active participation of all the appellants stands proved on
      record.
D            47. We do not find any merit in the argument that all the appellants
      cannot be said to have common object in view, in the absence of an
      overt act attributed to the appellants other than 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 other
      people. Though she has not named other accused but the fact that the
E     other accused have been named specifically by PW1-Ganesamoorthy,
      PW2-Raja and PW3-Ramesh, clearly shows that all the accused came
      as 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 the
      appellants, the Court held that if the prosecution succeeds in improving
F     the existence of common object amongst the accused and that accused
      actuated the prosecution of common object and knew that the death
      was likely to be committed, the conviction under Section 302 IPC read
      with 149 is made out. The Court held as under:
            “11.3. What is important in each case is to find out if the offence
G           was committed to accomplish the common object of the assembly
            or was the one which the members knew to be likely to be
            committed. Once the court finds that the ingredients of Section
            149 IPC are fulfilled, every person who at the time of committing
            that offence was a member of the assembly has to be held guilty
H           of that offence. After such a finding, it would not be open to the
        MAHENDRAN v. THE STATE OF TAMIL NADU                               405
                [HEMANT GUPTA, J.]

      court to see as to who actually did the offensive act nor would it   A
      be open to the court to require the prosecution to prove which of
      the members did which of the above two ingredients. Before
      recording the conviction under Section 149 IPC, the essential
      ingredients of Section 141 IPC must be established.”
      49. In the above case, the Court held that as to whether the         B
members of the unlawful assembly really had the common object to
cause the murder of the deceased has to be decided on the facts and
circumstances of each case. The nature of weapons used by such
members, the manner and sequence of attack made by those members
on the deceased and the circumstances under which the occurrence
took place are the factors to decide as to whether, the accused had        C
common object. It is an inference to be deduced from the facts and
circumstances of each case. The Court held that there is no evidence
to prove that Accused 1 to 11 had any common object to commit the
murder of Kennedy which activated all of them to join in furtherance of
the common object.                                                         D
       50. In Najabhai’s case, there was no evidence that there was a
common object of murder amongst the accused, as accused No. 1 was
infuriated on the question by the appellant regarding the damage to the
electricity pole near his house. There is nothing on record to suggest
any previous enmity between the parties. Such judgment is again on the     E
appreciation of the evidence in the case in hand.
       51. In Gangadhar Behera’s case, while considering the Section
141 of IPC, it was held that common object is not common intention as
the mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that common        F
object. Common object does not require a prior concert and a common
meeting of minds before the attack. It is enough if each has the same
object in view if the five or more act as an assembly to achieve that
object. The “common object” of an assembly is to be ascertained from
the acts and language of the members composing it, and from a
consideration of all the surrounding circumstances. The Court while        G
considering the plea that definite roles ascribed to the accused and
therefore Section 149 is not applicable was not accepted. It is held as
under:
      “25. The other plea that definite roles have not been ascribed to
      the accused and therefore Section 149 is not applicable, is          H
406             SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A            untenable. A four-Judge Bench of this Court in Masalti case18
             observed as follows: (AIR p. 210, para 15)
                “15. Then it is urged that the evidence given by the witnesses
                conforms to the same uniform pattern and since no specific
                part is assigned to all the assailants, that evidence should not
B               have been accepted. This criticism again is not well founded.
                Where a crowd of assailants who are members of an unlawful
                assembly proceeds to commit an offence of murder in
                pursuance of the common object of the unlawful assembly, it
                is often not possible for witnesses to describe accurately the
                part played by each one of the assailants. Besides, if a large
C               crowd of persons armed with weapons assaults the intended
                victims, it may not be necessary that all of them have to take
                part in the actual assault. In the present case, for instance,
                several weapons were carried by different members of the
                unlawful assembly, but it appears that the guns were used and
D               that was enough to kill 5 persons. In such a case, it would be
                unreasonable to contend that because the other weapons carried
                by the members of the unlawful assembly were not used, the
                story in regard to the said weapons itself should be rejected.
                Appreciation of evidence in such a complex case is no doubt a
                difficult task; but criminal courts have to do their best in dealing
E               with such cases and it is their duty to sift the evidence carefully
                and 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 It
             was observed that: (SCC p. 441, para 8)

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

G            27. In State of U.P. v. Dan Singh20 it was observed that it is not
             necessary for the prosecution to prove which of the members of
             the unlawful assembly did which or what act. Reference was

      18
         AIR 1965 SC 202
      19
         (1989) 1 SCC 437
      20
H        (1997) 3 SCC 747
            MAHENDRAN v. THE STATE OF TAMIL NADU                                407
                    [HEMANT GUPTA, J.]

       made to Lalji case where it was observed that: (SCC p. 442,              A
       para 9)
           “While overt act and active participation may indicate common
           intention of the person perpetrating the crime, the mere
           presence in the unlawful assembly may fasten vicariously
           criminal liability under Section 149.”                               B
       28. Above being the position, we find no substance in the plea
       that evidence of eyewitnesses is not sufficient to fasten guilt by
       application of Section 149. So far as the observations made
       in Kamaksha Rai case21 are concerned, it is to be noted that the
       decision in the said case was rendered in a different factual scenario
       altogether. There is always peril in treating the words of a judgment    C
       as though they are words in a legislative enactment, and it is to be
       remembered that judicial utterances are made in the setting of the
       facts of a particular case. Circumstantial flexibility, one additional
       or different fact may make a world of difference between
       conclusions in two cases (see Padma Sundara Rao v. State of              D
       T.N.22). It is more so in a case where conclusions relate to
       appreciation of evidence in a criminal trial, as was observed
       in Krishna Mochi case.”
       52. In Sanjeev Kumar’scase, the conviction under Section 302
with the aid of Section 149 was maintained when, it was found that              E
there was no object of killing but only of stopping the deceased and
other contestants from elections. It was held that it cannot be ruled out
that the common intention to kill might have arisen on the spur of the
moment.
       53. It is held in the Gangadhar Behera’scase that the words of
a judgment cannot be treated as words in a legislative enactment. It is to      F
be remembered that judicial orders are made in the setting of the facts
of a particular case. Circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions in two cases,
therefore, whether there was common object of the accused in each
case would depend upon cumulative effects of the facts of that particular       G
case.
      54. In the present case, both the Courts below have found that
the appellants have common object in burning the hut of the deceased
21
     (1999) 8 SCC 701
22
     (2002) 3 SCC 533                                                           H
408            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     and also attacking the deceased with aruvals (sickles) in view of the role
      of the deceased in the affairs of Panchayat against caste Hindus.
      Therefore, appellants other than Ravi (A-1) and Singaravelu (A-2) cannot
      be treated differently to convict them for the offences under Section
      326 read with Section 149 IPC as all the accused were part of the
      unlawful assembly which has taken the life of the deceased in a murderous
B
      attack on the fateful morning of 13.03.1994.
            55. Consequently, we do not find any merit in the present appeals
      and the same are dismissed.
            The appellants are on bail. They shall surrender within four weeks
C     to undergo their remaining part of the sentence.


      Divya Pandey                                              Appeals dismissed.



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