IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14/01/2003 Coram THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM and THE HONOURABLE MR. JUSTICE A.K. RAJAN CRIMINAL APPEAL No.1051 of 1998 and Crl.M.P.No.235 of 2003 1. Joser @ Ponnusamy 2. Bhaskaran @ Basker 3. Karuppiah 4. Murugan 5. Sampath @ Sampathkumar .. Appellants -Vs- State (Inspector of Police). Jeeyapuram Police Station. (Cr.No.232/94). .. Respondent Criminal Appeal against the conviction and sentence imposed in S.C. No.169 of 1997 on the file of the II Additional Sessions Judge, Tiruchirapalli, dated 4.11.1998. For Appellant-1 : Mr. J.I.Rajkumar Roberts For Appellant-2 : Mr. R.Sankarasubbu For Appellants 3 to 5 : Mr. A.Padmanabhan For Respondent : Mr. E. Raja, Addl. P.P. :JUDGMENT M. KARPAGAVINAYAGAM, J. On 11.7.1993, one Thennarasu, the son of A1 Joser alias Ponnusamy was murdered by Balu alias Balachandran, the deceased and his brother Sathasivam. In respect of this incident, a case was registered against both of them and the investigation was pending. During that time, the deceased Balu alias Balachandran came out on bail. In retaliation to the said murder, the accused 1 to 5 wanted to take revenge. On 2 3.4.1994 at about 10.30 a.m., Balu alias Balachandran, the deceased was proceeding towards his plantain grove. The accused 1 to 5 came with aruvals and spear and restrained the deceased and attacked him indiscriminately, with the result, the deceased fell down and died at the spot. With the above allegations, A1 to A5 were tried for the offences under Sections 148, 341 and 302 I.P.C. and ultimately, they were convicted for these offences. Hence, this appeal by all the accused. 2. The short facts leading to the conviction could be summarized as follows: "(a) P.W.1 Thangavel is the younger brother of the deceased Balu alias Balachandran. P.W.2 Gopalakrishnan and P.W.3 Selvam were working under the deceased as farm servants. Both the accused and P.Ws.1 to 3 were residing in Thiruparayethurai village. The first accused is the uncle of the accused 2 to 4. Both the deceased and A2 to A4 belong to Mutharaiyar community. Sampath alias Sampath Kumar (A5) belongs to Harijan community. (b) Out of enmity, Balu alias Balachandran and his brother Sathasivam murdered Thennarasu, the only son of the first accused on 11.7.1993 . On the complaint of A3 Karuppiah, who also sustained injury in the said incident, a case was registered. In that case, Balu alias Balachandran was arrested and later, he was released on bail. He came back home and attended on to his regular duties. The first accused along with others threatened the said Balu alias Balachandran that they would one day or the other kill him. (c) The fateful occurrence took place at 10.30 a.m. on 23.4.1994. The deceased Balachandran left his house and proceeded to his plantain grove. At a distance of 50 feet, P.W.1 Thangavel, his younger brother, also went behind him. At that time, the accused 1 to 5 appeared at the scene and restrained the deceased from proceeding further. A1 to A3 and A5 were armed with aruvals and A4 was armed with spear. On noticing that the accused coming near the deceased with the weapons, P.W.1 shouted asking the deceased to escape from the place. By that time, the accused began to attack the deceased. A1 Joser alias Ponnusamy gave a cut on the left leg, A2 Baskaran alias Baskar dealt cuts on the right elbow and right shoulder and A5 Sampath alias Sampathkumar gave a cut on the left thigh. On receipt of the injuries, the deceased fell down on the ground facing downwards. Again A1 Joser alias Ponnusamy gave a cut on the back of the head, A5 Sampath inflicted a cut on the back, A3 Karuppiah gave a cut on the right hand and A4 Murugan with spear stabbed on the middle of the back, left hip and nape. A4 Murugan gave a cut on the back of the right knee, again A1 Joser alias Ponnusamy gave repeated cuts on the wrist, hand and the fingers. At that time, P.W.2 Gopalakrishnan and P.W.3 Selvam also saw the occurrence. All the three witnesses raised an alarm and chased the accused to catch them. Carrying the weapons in their hands, the accused sped away. At the spot itself, the deceased died. (d) P.W.1 immediately went to the police station and gave complaint Ex.P1 to P.W.10 Sub Inspector of Police at about 11.30 a.m. P.W.10 registered the case under Sections 147, 148, 341 and 302 I.P.C. against all the five accused. He thereupon, sent Ex.P1 complaint and Ex.P1 8 F.I.R. to the Judicial Magistrate, Kuzhithalai. He also sent intimation to the Inspector of Police (P.W.12). (e) Immediately, on receipt of the information, P.W.12, the Inspector of Police at about 12.00 noon came to the spot. He prepared observation mahazar Ex.P2 and rough sketch Ex.P19. He recovered blood stained earth and sample earth. He conducted inquest between 1.00 p.m. and 3.00 p.m. and examined P.Ws.1 to 4. The inquest report is Ex.P20. Thereupon, he sent the dead body with requisition Ex.P16 to the Doctor for post-mortem. P.W.9 Doctor conducted post-mortem on 23.4.1994 at 4.00 p.m. He found 19 injuries all over the body. He issued post-mortem certificate Ex.P17 giving opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained. (f) P.W.12, the Inspector of Police on 28.4.1994 at 8.00 a.m. arrested A4 Murugan and in pursuance of his confession, he recovered aruval and spear. He came to know that A1 to A3 and A5 together surrendered before the Court at Pudukottai on 25.4.1994. Then, he applied for police custody and obtained the custody of all the accused on 11.5.1994. From A2, A3 and A5, aruvals were recovered on their confession. The aruval which was recovered from A5 was marked as M.O.3 and the aruval recovered from A3 was marked as M.O.4. Then, he sent the accused for remand. He sent requisition along with the material objects for getting the chemical analysis report. After completing the investigation, P.W.12, the Inspector of Police filed charge sheet against all the accused under Sections 148, 341 and 302 I.P.C. (g) During the course of trial, the prosecution examined P.Ws.1 to 1 2, filed Exs.P1 to 25 and marked M.Os.1 to 8. (h) The accused were questioned under Section 313 Cr.P.C. A1 alone filed a written statement stating that a false case had been foisted against him and others, since the complaint was given by A3 against the deceased Balachandran and Sathasivam in respect of the murder of his son and the evidence given by P.Ws.1 to 3 before the Court is false. A2 to A5 simply denied their complicity in the crime. (i) Ultimately, the trial Court concluded that the prosecution case has been established beyond reasonable doubt and as such, the accused persons are liable to be convicted for the offences under Sections 148, 341 and 302 I.P.C." 3. Challenging the same, a common appeal has been filed before this Court by all the accused through a single counsel Mr.Rajkumar Roberts. During the pendency of the appeal, on behalf of the second appellant (A2), Mr.Sankarasubbu, the learned counsel has entered appearance and on behalf of the appellants 3 to 5 (A3 to A5), Mr.Padmanabhan, the learned counsel has entered appearance. 4. When the matter was taken up for final disposal, it was pointed out by Mr.Rajkumar Roberts, the counsel for the first appellant(A1) that the first accused died in the jail itself and as such, the appeal gets abated as far as he is concerned. The learned Additional Public Prosecutor also would confirm the death of the first accused. In view of the above statement, the appeal as far as the first appellant (A1) is concerned gets abated. 5. Mr.Sankarasubbu, the learned counsel for the second appellant(A2) would submit that the evidence of P.Ws.1 to 3 as against the second accused is not consistent and at any rate, the second accused cannot be convicted for the offence under Section I.P.C., as there is no evidence to show that the second accused had caused the injury which is sufficient to cause death in the ordinary course of nature and as such, the second accused, if at all liable to be convicted, is only for the lesser offence on the basis of his individual overt act. He would cite the authorities in JAYARAJ v. STATE OF T.N. (1976 S.C.C. (Cri) 293) and CHILAMAKUR NAGIREDDY v. STA TEOF A.P. (1977 S.C.C. (Crl.) 562). 6. Mr. Padmanabhan, the counsel appearing for the appellants 3 to 5 (A3 to A5) would submit that there are various infirmities in the evidence of P.Ws.1 to 3, the eye witnesses, who are highly interested and as such, their evidence cannot be believed. Further, the presence of A4 at the scene of occurrence is doubtful, in view of the fact that P.W.1, the author of the F.I.R., has not mentioned the overt acts attributed to A4 and as such, A4 is liable to be acquitted. Ultimately, he would submit that even assuming that the case of prosecution is to be accepted, A3 to A5 cannot be convicted for the offence under Section 302 I.P.C., as there is no medical evidence to the effect that the injuries are sufficient to cause death in the ordinary course of nature. He would cite the decision in RAM JATTAN v. STATE OF U.P. (1995 S.C.C.(Cri) 169). 7. In reply to the said submissions, the Additional Public Prosecutor would justify the reasonings given by the trial Court for conviction and cite the judgment in KRISHNA MOCHI v. STATE OF BIHAR (2002 CRI.L.J.2645 (SC) ). 8. We have assessed the inherent merits of the contentions urged by the counsel on either side and gone through the entire records. 9. At the outset, it requires to be stated that the fact that Thennarasu, the only son of the first accused Joser alias Ponnusamy was murdered on 11.7.1993 and with reference to the said murder, the third accused Karuppiah, who was also injured in that occurrence, gave a complaint against Balu alias Balachandran, the deceased in this case and his brother Sathasivam and consequently, they were arrested by the police has not been disputed. It is also not in dispute that Balu alias Balachandran was released on bail in the said murder case even at the stage of investigation and he came back to the village. 10. The grievance that the first accused had against the deceased over the murder of his son is that he came back to village on bail. The motive projected by the prosecution is that in retaliation to the murder of his son by the deceased and another, the first accused with the help of others took revenge, which resulted in the attack of the deceased and his consequent death on 23.4.1994. 11. According to P.W.1 both in Ex.P1 complaint and his evidence, A1 Joser alias Ponnusamy along with the other accused had made arrangements to murder the deceased. P.W.1 would specifically state in his evidence that A1 threatened the deceased while he was in his house that he would murder him. In fact, A1 himself admitted in his statement under Section 313 Cr.P.C. that his son was murdered on 11.7.1993 by the deceased and his brother and consequently, a murder case was registered against them and as such, he had enmity against the deceased. P.W.12, the Inspector of Police also had stated in the crossexamination that the witnesses gave a statement to him during the course of investigation that A1 was trying to attack and murder the deceased. These things would clearly indicate that A1 had the motive to attack the deceased in retaliation to the murder of his son committed by him. Further, A2 to A4 are closely related to A1. Therefore, it can be safely held that the motive for the murder as projected by the prosecution has been clearly established. 12. To prove the occurrence, on the side of prosecution, P.Ws.1 to 3 have been examined. P.W.1 Thangavel is the younger brother of the deceased. P.Ws.2 and 3 were farm servants working under the deceased family. 13. According to P.W.1, on 23.4.1994 at 10.30 a.m., the deceased proceeded to his plantain grove and P.W.1 went behind him at a distance of 50 feet. At that point of time, A1 to A5 appeared at the scene with weapons in front of the deceased. P.W.1 sensing the danger cautioned the deceased asking to run away from the place. But, A1 Joser alias Ponnusamy without allowing the deceased to escape from the scene gave a cut with aruval on his leg. A2 Baskaran attacked him with aruval inflicting injury on the right elbow and shoulder and A5 Sampath alias Sampathkumar with aruval attacked on his left thigh. On receipt of these injuries, the deceased fell down. Then, A1 gave a cut on the back of the head, A5 attacked on the right hip and right hand, A4 Murugan with spear stabbed on the middle of the back, left hip and nape and A2 Baskaran attacked near the right knee. Again, A1 inflicted injuries on the hands indiscriminately. 14. This occurrence was witnessed by P.Ws.2 and 3, who came on their way to home after finishing their work. All the witnesses, P.Ws.1 to 3 tried to catch them, but the accused took to their heels with the weapons. 15. Immediately, P.W.1 went to the Jeeyapuram Police Station. P.W.1 0 Sub Inspector of Police received the complaint at 11.30 a.m. and registered the case against all the five accused and sent the complaint Ex.P1 and the F.I.R. Ex.P18 to the Court. Ex.P18 would show that the Judicial Magistrate, Kuzhithalai received the F.I.R. and the complaint on 23.4.1994 at about 1.00 p.m. In the said complaint, all the details of the occurrence have been mentioned. The names of the other two witnesses (P.Ws.2 and 3) have also been stated in Ex.P1. 16. It is true that P.W.1 is the brother of the deceased and P.Ws.2 and 3 were working as farm servants under the deceased and P.W.1. But, on that score, we cannot reject the evidence of P.Ws.1 to 3, if their testimony is otherwise reliable. 17. According to P.W.9, the Doctor, he found 19 injuries all over the body. The Doctor would state in his evidence that the injuries found on the body of the deceased as mentioned in Ex.P17 post-mortem certificate could have been caused by aruval and spear. 18. In these circumstances, the ocular testimony tendered by these witnesses, namely P.Ws.1 to 3, which is corroborated by the medical testimony cannot be said to be unreliable. 19. Even though it is stated by P.W.1 during the course of crossexamination that P.Ws.2 and 3 came afterwards, it is mentioned in Ex.P1 and in the chief examination of P.W.1 that they had also witnessed the occurrence and only on their shouting, the accused ran away from the scene with the weapons. 20. However, in respect of the part played by A4 Murugan, it is noticed that there is no consistency in the case of prosecution. According to the complaint Ex.P1, all the accused, except A4 who used spear (M.O.5), used aruval. As per Ex.P1, A4 with spear stabbed on the middle of the back, left hip and nape. Unfortunately, P.W.1 did not refer to the said overt acts in his evidence. Though he initially said that A1 to A3 and A5 were armed with aruvals and A4 with spear came to the scene, he did not choose to refer to the part played by A4 in his evidence, despite the fact that he said in Ex.P1 that A4 also stabbed the deceased with spear. It is true that P.Ws.2 and 3 would refer to the presence of A4 with spear at the scene and his infliction of injury on the deceased. But, there is no consistency in the overt acts attributed to A4 by P.Ws.2 and 3. According to P.W.2, A4 with spear stabbed on the back, right hip and nape, whereas it is stated by P.W.3 that A4 Murugan with spear stabbed only on the back. As per Ex.P1 7 post-mortem certificate, one punctured wound, 19th injury, is over the back of the chest and all the other injuries are cut injuries and incised injuries. Therefore, in the absence of the reference about the part played by A4 Murugan in the evidence of P.W.1, who is the author of the complaint, though a reference about his overt act has been made in the complaint, and in view of the contradiction between the evidence of P.Ws.2 and 3 with reference to the part played by A4 and in the light of the absence of the corresponding injuries on the respective parts of the body, we are constrained to hold that the presence of A4 and his causing injury with spear on the deceased is doubtful. 21. Furthermore, it is to be stated that A4 alone was arrested on 28 4.1994 and from him, aruval and spear were recovered in pursuance of his confession. When it is alleged that he had used only spear, there is no reason as to why P.W.12, the Inspector of Police had to recover both aruval and spear from him. Though it is mentioned in the mahazar that M.O.5 was blood stained spear, the Serologist's repeor shows that there was no blood. All the other accused together surrendered before the Judicial Magistrate, Pudukottai on 25.4.1994 along with surrender petition. On obtaining police custody, aruvals (M.Os.3 and 4) were recovered on 11.5.1994. 22. It is to be pointed out in this context, A3 Karuppiah was the complainant in the earlier murder case which was given against Balachandran, the deceased in this case. A4 Murugan is admittedly the brother of A3. As stated by P.W.12, except A4, all the other accused together surrendered before the Judicial Magistrate, Pudukottai and filed surrender petition. As far as A4 is concerned, he did not choose to surrender, on the other hand, he was arrested by the police on 28.4.1994. In view of the above fact situation, we are unable to hold that the prosecution has established that A4 Murugan also participated in the occurrence. 23. However, in regard to the part played by the other accused, there is a consistent version by all the witnesses with reference to the overt acts attributed against each of them and we find corresponding injuries on the body of the deceased as per Ex.P17 post-mortem certificate. Though the witnesses would give account only for some of the injuries, they would clearly state that all the accused with the weapons gave cuts on different parts of the body of the deceased repeatedly (midtUk; khwp khwp btl;odh;;). 24. It was contended by the counsel for the fifth accused that P.W.1 stated that A5 used spear and attacked the deceased and as such, the same is against the prosecution. But, the reading of Ex.P1 and the evidence of P.Ws.2 and 3 would clearly show that A5 was using aruval and attacked the deceased on various parts of the body. P.W.12, the Inspector of Police also would state that fro m A5, M.O.3 aruval was recovered on 11.5.1994 in pursuance of his confession when he was under police custody. Therefore, the statement of P.W.1 with reference to the part played by A5 is purely a mistake. However, as noted above, we have taken into consideration the evidence of P.W.1 with reference to the absence of the part played by A4 and held that the presence of A4 at the scene of occurrence is doubtful. 25. As indicated earlier, the presence of P.Ws.2 and 3 cannot be suspected, in view of the fact that P.W.1 mentioned in Ex.P1, the earliest document in this case, that P.Ws.2 and 3 also saw the occurrence. Nothing has been elicited in their cross-examination that they speak falsehood against the accused. 26. Merely because the participation of A4in the crime has not been established, we cannot straightaway hold that the entire evidence adduced by all the three eye witnesses against other accused is to be rejected. 27. It is settled law that the non-acceptance of evidence tendered by the witnesses in some portion would not be the ground to throw out the entire prosecution case. The maximum "falsus in uno falsus in omnibus" (false in one thing, false in everything) has no application in India. Even if one portion of evidence is found to be deficient, in case other portion is sufficient to prove guilt of the accused, the conviction imposed upon the other accused can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict the accused notwithstanding the fact that the evidence has been found to be deficient to prove guilt of another accused. 28. In that view of the matter, it can be safely held that the evidence adduced by P.W.1 as against A1 to A3 and A5 is sufficient to hold their complicity in the crime, even though the evidence is deficient as against A4. 29. It was strenuously contended by Mr.Sankarsubbu, the counsel for A2 and Mr.Padmanabhan, the counsel for A3 to A5 that even assuming that the entire prosecution case is true as against the remaining accused, they cannot be convicted for the offence under Section 302 I.P.C. and they are liable only for their independent overt acts, especially when there is no evidence to show that the injuries caused on the deceased would be sufficient to cause death in the ordinary course of nature. They cited the decisions in RAM JATTAN v. STATE OF U.P.(1995 S.C.C.(Cri) 169), RAJARAM v. STATE OF M.P.(1994 S.C.C.(CrI) 889),JAYARAJ v. STATE OF T.N. (1976 S.C.C.(C ri) 293) and CHILAMAKUR NAGIREDDY v. STATE OF A.P.(1977 S.C.C.(Cri) 562). 30. The above decisions, in our view, would not be applicable to the present facts of the case. In 1994 S.C.C.(Cri) 889 (supra), the conviction under Section 302 read with 149 I.P.C. was modified into one under Section 326 read with 149 I.P.C. against 19 accused, in view of the fact that only one injury on the deceased was found to be fatal and rest of the injuries were only contusions and it was held in such circumstances, it could not be said that the common object of the unlawful assembly was to cause death. 31. Similarly, in 1995 S.C.C.(Cri) 169 (supra), it has been held that in the absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be interfered with unless the injuries are so patent. In the said case, the opinion given by the Doctor is that death was due to shock and haemorrhage. So also, the Doctor did not find any injury to the vital organs. He found only fracture of 8th and 9th ribs. But, there were no corresponding external injuries. In the light of those facts and circumstances, it was held in that case that the act committed by the accused cannot come under Section 300 I.P.C. and as such, they could be convicted under Section 3 04 Part II read with Section 149 I.P.C. 32. In the decision in 1976 S.C.C.(Cri) 293 (supra) cited by the counsel for the appellants, it has been held that the prosecution did not elicit from the Doctor that the injuries on the deceased were sufficient to cause death in the ordinary course of nature and as such, the act of the appellants did not amount to murder. In that case, the deceased died after 9 or 10 days during which the deceased was operated upon in the hospital. In that context, it was held that it was not a murder. 33. In the same way, the Supreme Court in 1977 S.C.C. (Cri) 562 would hold that when the Doctor did not say that the injuries are fatal