Postman Vengaisamy vs The State Rep. By Inspector Of Police

POSTMAN VENGAISAMY & ORS. .....APPELLANT(S)

VERSUS

STATE REPRESENTED BY INSPECTOR OF POLICE & ORS. .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

The present appeal survives only in respect of Accused No. 1

– Postman Vengaisami (A-1), Accused No. 11 – Thalaiyaripandi

(A-11) and Accused No. 15 – Vellachamy (A-15), as Accused No. 9

– Rathinettamatiyan (A-9), Accused No. 10 – Kotti @ Kotteswaran

(A-10) and Accused No. 12 – Neelamegavannan (A-12) have

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

Page 1 of 9 vide judgment dated December 7, 2007 convicted A-1, A-9, A-10,

A-11, A-12 and A-15 for the offences punishable under Sections

148, 302 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 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 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 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

Page 2 of 9 Vengaisami (A-1) and Thalaiyaripandi (A-11) and that they also

snatched the money. Baskaran (PW-4), Rathi (PW-5) and

deceased Chinnaperiaiyah went 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. The

deceased Chinnaperiaiyah belonged 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

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 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 @ Valadukai Neelamegam (A-14) and Vellachamy

Page 3 of 9 (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. 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

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, Irulandi

as PW-1, Ramar as 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 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 have received injuries and the other on April 26,

Page 4 of 9 2003 in which Irulandi (PW-1) and Ramar (PW-2) received injuries

whereas Chinnaperiaiyah 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 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 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 footing and deserve

parity. Learned counsel also relied on Najabhai Desurbhai Wagh

v. Valerabhai Deganbhai Vagh & Ors.2 to 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 1 (2016) 12 SCC 389 2 (2017) 3 SCC 261

Page 5 of 9 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 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 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 (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 but he was immobilised 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)

immobilised Ramar (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 Neelamegavannan

(A-12) hit in the right side of the back side of his father.

3 (2019) 5 SCC 67

Page 6 of 9 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 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 multiple injuries were noticed by the

Doctor. Such injuries corroborate the oral testimony of Irulandi

(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:

“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. 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

Page 7 of 9 (PW-5), wife 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 courts below are plausible findings in law.

12) In Ram Laxman’s case, the Court found that the High Court

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 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 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,

Page 8 of 9 on the exhortation of Thalaiyaripandi (A-11), the 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 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

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’ time to surrender before the competent court.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA) NEW DELHI;

JULY 24, 2019.

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