Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1636 OF 2011

Paulmeli & Anr. …Appellants

Versus

State of Tamil Nadu Tr. Insp.

of Police …Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.

1.This appeal has been preferred against the impugned judgment

and order dated 6.10.2009, passed by the High Court of Tamil Nadu

(Madurai Bench) in Criminal Appeal (MD) No.540 of 2008 affirming

the judgment and order dated 18.11.2008, passed in Sessions Case

No.18 of 2001 by the Addl. District & Sessions Judge (Fast Track

Court), Ramanathapuram by which and whereunder the appellants had

been convicted under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as ‘IPC’) and awarded life imprisonment and a

Page 2 fine of Rs.2,000/- each, and in default to undergo further RI for six

months.

2.The prosecution case is as under:

A.That about 20 years ago, one Vellaimmal (PW.17, blind and

deaf), daughter of Paulmelie Thevar, got married to one Arumugam

and a daughter was born out of the said wedlock. The said

Arumugam deserted his wife Vellaimmal and married another lady

which resulted in enmity between the two families. Arumugam

assaulted Vellaimmal and her family. As a consequence, Ramasamy,

the uncle of Vellaimmal, with whom she had started living after being

deserted by her husband allegedly murdered Arumugam, Ramu

Thevar and Laxmana Thevar in the year 1981.

B.After a gap of about 20 years of the said incident happened in

the year 1981, it was alleged that on 30.7.1999, 17 persons including

the two appellants unlawfully assembled together with a common

object to murder Ramasamy and they came at his house at about 9

P.M. when he was sleeping on a cot outside his house. The accused

encircled him and caused indiscriminate cuts over his body using an

Aruval which caused instantaneous death. In order to save

Ramasamy, his two sons, namely Paulmeli and Vijayasamy

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Page 3 intervened and they also got injuries. After committing the offence,

accused persons ran away. The matter was reported to the police by

one Mr. Setu Raman to Mr. Gandhi (PW.16), the Head Constable of

Viracholan Police Station. However, as the incident occurred outside

the territorial jurisdiction of the said police station, the said Setu

Raman informed the Inspector of Parthi Banoor Police Station at

about 11 P.M. who went to the place of occurrence and recorded the

statement of Malliga (PW.1), wife of deceased. On the basis of the

same, an FIR was registered under Sections 147, 148, 324, 326, 307

and 302 of the Indian Penal Code, 1860 (hereinafter referred to as

‘IPC’) in the morning of next day at 7.30 A.M., wherein 17 accused

persons including two appellants had been named. The dead body

was sent for post-mortem and the two sons of the deceased were

medically examined. The accused were taken into custody on

different dates and on their disclosure statement, recoveries were

made. After completing the investigation, chargesheet was filed

against 17 accused persons and the case was committed to the

Sessions Court. The Trial Court vide judgment and order dated

27.11.2001 acquitted all the accused.

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Page 4 C.Aggrieved, the complainant Vijayasamy, son of deceased

challenged the said order of acquittal by filing Criminal Revision

No.274 of 2004 before the Madras High Court (MD) which was

allowed and the Sessions Court was directed to have the trial afresh.

D.In a fresh trial, prosecution led the evidence wherein Malliga

(PW.1) supported the case of the prosecution. Paulmeli (PW.2), the

injured did not support the case and thus was declared hostile.

Another injured Vijayasamy, son of deceased was not examined by

the prosecution. Thus, relying upon the evidence of Mallinga (PW.1),

the Trial Court vide judgment and order dated 18.11.2008 acquitted

all the accused except the appellants Paulmeli (A.5) and Chockaiah

(A.7) who were found guilty for the offences punishable under

Section 302 IPC and sentenced them as referred to hereinabove.

E.Aggrieved, the appellants preferred the appeal before the High

Court which has been dismissed vide impugned judgment and order

dated 6.10.2009.

Hence, this appeal.

3.Ms. Shirin Khajuria, learned counsel for the appellants has

submitted that the courts below have committed an error convicting

the appellants on the evidence which has been totally disbelieved on

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Page 5 the basis of which the other remaining 15 accused stood acquitted.

More so, Paulmeli (PW.2), son of deceased did not support the case

of the prosecution and another injured son of deceased, Vijayasamy

was not examined by the prosecution. There was a complete darkness

in the night thus, the question of identifying the appellants does not

arise even while Malliga (PW.1) could not identify the appellants in

darkness. More so, there had been material discrepancies in respect of

the manner and number of injuries caused by the appellants to the

deceased. Thus, the appeal deserves to be allowed.

4.Per contra, Shri M. Yogesh Kanna, learned Standing counsel

appearing for the State, has opposed the appeal contending that the

parties are closely related. Therefore, Paulmeli (PW.2) turned hostile,

but in the examination-in-chief he has named the appellants and

attributed them the overt act in participation of murder of his father.

There was sufficient light as per the evidence on record and Mallinga

(PW.1) could identify the appellants being closely related and well-

known even in the darkness. The discrepancy, if any, in the evidence

of the witnesses is insignificant as there was no material discrepancy

which go to the root of the cause. More so, in a case where a retrial

was conducted, the witnesses could not give the same version after a

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Page 6 long lapse of time. If some persons had been acquitted disbelieving

the deposition of Malliga (PW.1), that cannot be a ground for acquittal

of the appellants. The appeal lacks merit and is liable to be dismissed.

5.We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

6.Dr. Prakash Karath (PW.11) conducted the autopsy on the dead

body of deceased on 31.7.1999 and found the following external

injuries on the dead body.

“1).An incised wound of 10 x 4-1/2 x 4cms in front of

neck on the right side just below the lower border of the

mandible right from the chin to the angle of mandible.

The lower skin flab vessels found severed. Blood clots

present over the wound.

2).An incised wound of 8-1/2 x 4-1/2 x 4cms in the

front of the cheek just 3cm above the supra external

notch 3cms on the right side midline 5-1/2cm on the left

side in the horizontal direction. Trachea found cut.

Vessels found severed. The cut ends are regular and

smooth. Blood clots seen on the wound.

3).An incised wound of 13 x 3-1/2 x 3 cm on the back

of neck 3 cm from the midline extending just below the

lower border of left mandible upto the chin. The medial

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Page 7 end in the front is tapering. Underlying vessels and

muscles severed.

4).An incised wound of 15 x 3-1/2 x 2-1/2cms

extending from the nose in the midline towards the right

side of neck just below the right ear in the oblique

direction, medial end of the wound is tampering.

Maxillary bone found cut. Blood clots present.

5).A Elliptical incised wound of 2-1/2 x 1cm bone

depth just above the injury number 4.

6).An elliptical stab wound of 6 x 2-1/2 x 8cms. The

wound found communicate with the thoracic cavity on

the right side in the front of chest just below the right

clavicle.

7).An elliptical incised wound of 5 x 2 x 1cms on the

medial end of left clavicle.

8).An elliptical stab wound of 6 x 2-1/2 x 7-1/2cms

on the front of the left chest just below the middle of the

left clavicle to 2.5 cm medial to the anterior axillary line.

9).An elliptical incised wound of 4 x 1-1/2 x 1-

1/2cms on the lateral aspect of right shoulder in A.P.

direction.

10)An incised wound of 1-1/2 x 1-1/2 x 1cm on the

front of right shoulder in the horizontal direction.

11)An incised wound of 6 x 1-1/2 skin depth on the

back of right elbow towards the right forearm in vertical

direction.

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Page 8 12)An incised wound of 6 x 1-1/2 x skin depth on the

back of right forearm in horizontal direction.

13)An incised wound of 1-1/2 x ½ x 1/2cms on the

ulna border of right forearm.

14)An incised wound of 10 x 6 cms x bone depth on

the dorsal aspect of right hand. The meta carpal bone of

right index and middle finger found partially cut and

right index finger found missing at the level of

metacarpus phelengeal joint. Blood clots found on the

wound.

15)An incised wound of 3-1/2 X ¼ x bone depth on

the dorsal aspect of left ring finger.

All the above wounds found with blood clots.”

7.Vijayasamy, the son of the deceased was also injured in the

occurrence. He was treated by Dr. Maheswaran (PW.22) and he

issued Ex.P.40-Accident Register copy. He found the following

injuries:

“1)Cut injury back of neck (L) 5 cm x 1 cm skin deep.

2)Cut injury back of left supra 7cm x 7cm x 3cm

mandible deep.

3)Cut injury back of left forearm 4cm x 2cm x skin

deep.”

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Page 9 8.On the same day, Dr. Maheswaran (PW.22) examined Paulmeli

(PW.2) and he issued Ex.P.39-Accident Register Copy. He found the

following injury:

“1)Cut injury back left elbow 7” x 5” exposing

bone, with skin deep.”

M.O.1 is the X-Ray taken for Vijayasamy and M.O.2 is the X-Ray

taken for Paulmeli by Dr. Indrani (PW.12), Radiologist.

9.There had been recovery on the disclosure statement of the

accused. So far as the present appellants are concerned in their

statement under Section 313 of Code of Criminal Procedure, 1973

(hereinafter referred to as the `Cr.P.C.’), they denied their

involvement and did not lead any evidence in their defence.

10.In the instant case, Malliga (PW.1), wife of deceased, in the

FIR, in her statement under Section 161 Cr.P.C. and in her deposition

in the court, had specifically named both the appellants. Even though,

she had named other persons also. The appellants had been known to

the said witness for a long time as they were closely related. There

was sufficient light as per the evidence on record even otherwise there

can be no difficulty to recognise so closely related persons even in

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Page 10 darkness. The injuries found on the person of the deceased are duly

supported by medical evidence as well as got corroborated by the

deposition of Malliga (PW.1). The concurrent findings have been

recorded by the courts below in this regard. We do not find any force

in the submissions advanced by Ms. Khajuria, learned counsel for the

appellants that the injuries attributed to the appellants could not be

caused by Aruval as the findings recorded by the trial court in this

regard is that all injuries may be caused by the attack of Aruval. It has

further been held by the trial court that the appellants herein came

with Aruval and attacked the deceased indiscriminately causing

injuries on the neck, chest and other parts of the body, though,

inadvertently, the trial court has mentioned that the injuries found on

all over the body, had caused the death.

11.More so, with respect to various issues raised by the learned

counsel for the appellants in respect of the injuries found on the

person of the deceased, questions have not been put to the doctor who

conducted the postmortem when he appeared in the witness box. In

fact, he was the only competent person who could have furnished the

explanation for all such issues.

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Page 11 It is a settled legal proposition that in case the question is not

put to the witness in cross-examination who could furnish explanation

on a particular issue, the correctness or legality of the said fact/issue

could not be raised. (Vide: Atluri Brahmanandam (D), Thr. LRs. v.

Anne Sai Bapuji, AIR 2011 SC 545; and Laxmibai (dead) Thr. L.Rs.

& Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC

1204).

12.In respect of the deposition of Ganesan (PW.3), it has been

submitted that he may not be a trustworthy witness as he is not an

independent witness. His evidence revealed that he reached the place

after the incident was over and he saw the accused people leaving the

place of occurrence. Had he not been a truthful witness he could have

definitely improved his version and could depose describing the overt

acts of the appellants. Therefore, the submission so advanced has no

force.

13.So far as the issue of presence of light at the place of

occurrence at the relevant time, the trial court recorded the findings to

the fact that there was sufficient light. The High Court reappreciated

the evidence and came to the conclusion that admittedly there was

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Page 12 light in the facet of the house and there was also street light

illuminating the place of occurrence. Even in the observation

Mahazar Ex.P-18, the light has been shown. The evidence of

Kumareshan (PW.19), the wireman of Electricity Board, was

examined to prove the fact that at the relevant point of time, the

electricity was in supply at the place of occurrence. There is some

discrepancy in the statement of Malliga (PW.1) in this regard but she

might have not been able to give exact specific account being an

illiterate village woman and as the appellants have not been strangers,

there could be no difficulty for her to identify the appellants even in

the darkness.

14.The Trial Court recorded the finding that the FIR had been

lodged promptly. The High Court reappreciated the full particulars as

under what circumstance the FIR had been lodged. The relevant parts

thereof reads as under:

“31. The evidence on record would show that there is no

delay in registering the F.1.R. after the receipt of the

complaint. P.W.21 registered the F.I.R. at 00.45 hours

and send the same to the Judicial Magistrate through

P.W.14 - Mohamed Sherif. P.W.14 received the F.I.R. at

2.15 A.M. Since it was night, at 6.00 A.M. he proceeded

to the Paramakudi Judicial Magistrate's Court. Since

nobody was there he went to the house of Head Clerk of

Paramakudi Judicial Magistrate's Court, where he was

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Page 13 informed that Judicial Magistrate No.2, Ramanathapuram

was the incharge Magistrate. So, he went to the Judicial

Magistrate Court No.2, Ramanathapuram. At that time

the Judicial Magistrate was conducting cases. and later he

gave the F.I.R. to the Judicial Magistrate. So, the

explanation offered by the Judicial Magistrate is quite

convincing. So, there no delay in registering the F.I.R.”

Thus, there can be no doubt that the FIR had been lodged

promptly.

15. Paulmeni (PW.2) has supported the case of the prosecution so

far as the present appellants are concerned. He was declared hostile

when he did not name the other accused, who stood acquitted by the

courts below and there could be no difficultly to accept his deposition

to that extent.

16.This Court in Ramesh Harijan v. State of U.P., AIR 2012 SC

1979 while dealing with the issue held:

“It is a settled legal proposition that the evidence of a

prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat him as hostile and

cross examine him. The evidence of such witnesses

cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the extent

that their version is found to be dependable on a careful

scrutiny thereof.(Vide: Bhagwan Singh v. The State of

Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v.

State of Orissa, AIR 1977 SC 170; Syad Akbar v. State

of Karnataka, AIR 1979 SC 1848; and Khujji @

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Page 14 Surendra Tiwari v. State of Madhya Pradesh, AIR 1991

SC 1853).”

17.In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996

SC 2766, this Court held that evidence of a hostile witness would not

be totally rejected if spoken in favour of the prosecution or the

accused but required to be subjected to close scrutiny and that portion

of the evidence which is consistent with the case of the prosecution or

defence can be relied upon.

A similar view has been reiterated by this Court in Sarvesh

Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; Subbu

Singh v. State by Public Prosecutor, (2009) 6 SCC 462; C.

Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and

Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36).

Thus, the law can be summarised to the effect that the evidence

of a hostile witness cannot be discarded as a whole, and relevant parts

thereof which are admissible in law, can be used by the prosecution or

the defence.

18.Learned counsel for the appellants submits that in case, on the

basis of the same evidence, 15 accused persons had been acquitted,

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Page 15 the appellants could not have been convicted. We do not find any

force in such a submission for the reason that there may be some

exaggeration in depositions of the prosecution witnesses. The courts

below had not accepted the evidence to that extent and have given

benefit of doubt.

19.In Balka Singh & Ors. v. State of Punjab, AIR 1975 SC

1962, this Court considered a similar issue, placing reliance upon its

earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh,

AIR 1954 SC 15 and held as under:

"The Court must make an attempt to separate grain from

the chaff, the truth from the falsehood, yet this could only

be possible when the truth is separable from the

falsehood. Where the grain cannot be separated from the

chaff because the grain and the chaff are so inextricably

mixed up that in the process of separation, the Court

would have to reconstruct an absolutely new case for the

prosecution by divorcing the essential details presented

by the prosecution completely from the context and the

background against which they are made, then this

principle will not apply."

20.In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC

3678, this Court held as under:

"It is indeed necessary however to note that there would

hardly be a witness whose evidence does not contain

some amount of exaggeration or embellishment,

sometimes there would be a deliberate attempt to offer

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Page 16 the same and sometimes the witnesses in their over

anxiety to do better from the witness-box details out an

exaggerated account."

21.A similar view has been reiterated in Appabhai & Anr. v.

State of Gujarat, AIR 1988 SC 696, wherein this Court has

cautioned the courts below not to give undue importance to minor

discrepancies which do not shake the basic version of the prosecution

case. The court by calling into aid its vast experience of men and

matters in different cases must evaluate the entire material on record

by excluding the exaggerated version given by any witness for the

reason that witnesses now a days go on adding embellishments to

their version perhaps for the fear of their testimony being rejected by

the court. However, the courts should not disbelieve the evidence of

such witnesses altogether if they are otherwise trustworthy.

22.In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this

Court had taken note of its various earlier judgments and held that

even if major portion of the evidence is found to be deficient, in case

residue is sufficient to prove guilt of an accused, it is the duty of the

court to separate grain from chaff. Falsity of particular material

witness or material particular would not ruin it from the beginning to

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Page 17 end. The maxim falsus in uno falsus in omnibus (false in one thing,

false in everything) has no application in India and the witness cannot

be branded as a liar.In case this maxim is applied in all the cases it is

to be feared that administration of criminal justice would come to a

dead stop. Witnesses just cannot help in giving embroidery to a story,

however, truth is the main. Therefore, it has to be appraised in each

case as to what extent the evidence is worthy of credence, and merely

because in some respects the court considers the same to be

insufficient or unworthy of reliance, it does not necessarily follow as a

matter of law that it must be disregarded in all respects as well.

23.In view of the above, we are of the considered opinion that the

appeal is devoid of any merit and is accordingly dismissed.

....…….……………………..J.

(Dr. B.S. CHAUHAN)

.....……………………………J.

(A.K. SIKRI)

New Delhi,

May 23, 2014

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