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PETITIONER: VELLELI AND OTHERS

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       10/09/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      The three  appellants were  put up for trial before the Sessions  Court,  Madurai  for  committing  the  murder  for vellaikutty.  To  be  more  precise,  the  second  appellant Mandaipuli was  charged  for  an  offence  punishable  under Section 302  of the  Indian Penal Code whereas the other two appellants Velleli  @ Raman  and Sogai  Puli  @  Muthu  were charged under  Section 302  read with 34 of the Indian Penal Code.      The Sessions Judge, Madurai on appreciation of the oral evidence and other materials on record vide his judgment and order dated  July 24,1977, acquitted all the appellants. The State  of  Tamil  Nadu  being  aggrieved  by  the  order  of acquittal preferred  an appeal under section 378 of the code of criminal  procedure to  the High  Court at Madras and the learned  High  Court  vide  its  judgment  and  order  dated February  5,1977,   reversed  the  order  of  acquittal  and convicted A-2  under section 302 IPC and the appellant Nos.1 and 3  under section  302 read  with 34  of the Indian penal code and  sentenced each of them to undergo imprisonment for life. 2.   The case  of the  prosecution as disclosed at the trial may be briefly summarised as under:-      Vellaikutty @  Sanjai, the  deceased, was the father of Velu (PW  1). Palani  (PW 2)  was the  elder brother  of the deceased who  was staying  alongwith his wife and son Vel in Atchipuram village  situated about  4 miles  to the south of Nilakottai). Palani  (PW 2)  was also  staying in  the  same village. The deceased owned certain lands and a house in the said village. The appellants are brothers and they belong to the village koothamatti. 3.   It is  alleged by  the prosecution  that the  accused’s paternal uncle  Muthu Serval  had three  sons,  Chidambaram, and, lruvankutti.  About ten  years prior to 1977, a dispute arose about  the village common funds between Muthu Serval’s sons chidambaram  and Andi  on  the  one  hand  koothampatti Periathankar Kulu  servai on  the  other.  Because  of  this dispute,  Chidambaram  and  Andi  left  their  cattle  first contrary to  the usual  practice whereby Kulu servai used to take his cattle first on the Pongal day. This episode caused

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a trouble  in the  village and  resulted in  the  murder  of Chidambaram and  Andi. Muthu  servai gave  a complaint about the said  murder against  Anandan, Chinnakalai,  Palani  and Kulu servai  and that  case ended  in acquittal  of all  the accused. The  deceased and  palani (PW  2) continued  to  be friendly  with   Kulu   servai   even   after   that   case. Consequently, Muthu  servai was not well disposed of towards the deceased and Palani (PW 2)      Sometime in  1973,  one  Iruvenkutti  was  murdered  at Koothampatti.  Muthu   servai  and   the  appellants  herein complained bout  the murder  against the  deceased,  PW  2’s father in  law Ponnayyan  and Ponnayyan’s  son pitchai.  All these  three   persons  were  tried  but  acquitted  by  the prosecution that  on this issue, there was an enmity between the deceased  family on  the one hand and the accused on the other. It  is further  alleged by  the prosecution that bout three months  prior to  the occurrence  in the  present case (17-12-1976), A-2  lodged a complaint in the Sambatti police Station alleging  that the  deceased had  assaulted him. The police  found   the  deceased  guilty  in  that  petty  case No.283/76 and  accordingly he was sentenced to pay a fine of Rs.25/-. The  deceased paid  the fine.  One day, the accused while passing through the lands of the deceased for reaching their lands threatened to murder the deceased in retaliation of the earlier murder. Thereupon, PW1 and PW2 herein and the deceased lodged  complaints against  the accused  to Subbiah Gounder (PW 9), the village munsiff of kottoor who told them that since the accused were residents of different villages, no action  could be  taken. However, he assured them that he would advise  them to behave properly . Since then, deceased was scared  of the  accused and  often used to take with him either Velu (PW 1) or Palani (PW 2) whenever he used to go. 4.   On 17-12-1976,  the day of occurrence, the deceased and Velu(PW 1)  went to  village Nilakottai  in the afternoon on the cycle  (M.O.1) driven  by Velu  (PW 1). The deceased was sitting on  the carrier. The deceased went to the market and purchased the  kochai string  (M.O.2), betel leaves and nut. Thereafter Velu  (PW 1)  and the  deceased  left  for  their village at about 4.30 P.M. Paramaswami (PW 8), a resident of Michaelplayam had  a cycle  shop in the said village and was knowing the accused as well as Velu (PW 1) and the deceased. Velu (PW  1) and  the deceased  went to  this cycle shop and filed the air in the tube of his cycle. 5.   When the  deceased and  Velu (PW  1) were proceeding by the  cycle   and  came   near  the  culvert,  north  of  the Jangalpatti   branch road  at  about  5.00  P.M.,  A-1  came running from  the Odai  situated on  the west  of  the  said culvert with  an aruval in his hand saying that he would not leave them  without murdering  in retaliation of the earlier murder. Velu  (PW 1)  when turned  back, saw A-1 was hacking the deceased  on the  back side  of his head with an aruval. The deceased jumped down from the cycle which was thereafter pushed by velu (PW 1). The deceased left his chappal (M.O.3) which he  was wearing  at that  time and  ran towards  south covering the  back portion  of  his  head  with  his  thundu (M.O.7) and  raised an  alarm. A-1 then chased the deceased. Velu (PW  1) ran behind A-1. A-2 and A-3 thereafter suddenly came from  the side  of the  banyan tree with a knife and an aruval  respectively  in  their  hands  and  obstructed  the deceased while  he was  running on the tar road. A-2 stabbed the deceased while he was running on the knife on the chest, back  and  right  flank  indiscriminately.  A-3  hacked  the deceased with  an aruval  on the  chest and  right  shoulder indiscriminately. In  the meantime,  A-1 also reached at the said place  and thereafter A-1 to A-3 started assaulting the

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deceased with  the respective  weapons in  their hands.  The deceased fell  down on  the middle  or the road. Velu (PW 1) then raised  an alarm.  A-1 threatened  him not to raise the shouts otherwise he would also be killed. After accused fled away. This incident of assault was also seen by Sirattai (PW 4) who was standing with his cycle at a short distance. 6.   It is  further alleged   by  the prosecution  that this incident of  assault was  also seen  by Palani  (PW 2),  the uncle of  velu (PW  1), who  had  gone  to  Jangalpatti  for grazing the  cattle and   he was there at about 5.00 P.M. It is the  claim of Palani (PW 2) that when he heard the shouts of Velu (PW 1), he ran in that direction and when he reached at the said place, he saw the appellants were assaulting the deceased with the weapons in their hands. 7.   Anandan (PW  5), an  agriculturist who  owned who lands adjoining the  western side of the Jangalpatti  branch road, after hearing  the alarm  reached at  the place of incident, and saw the assault on the deceased by the accused. Velu (PW 1) thereafter,  went running  to his village, informed about the incident  to his  mother and  bought her to the house of village munsiff  Subbiah Gounder  (PW 9) where the statement of Velu  (PW 1) was recorded (Ex.P1) at about 6.00 P.M. They all then  proceeded to  the place  of occurrence.  PW9  then prepared wetha  yadasts (Ex. P6 and Ex. P7) and proceeded to Nilakottai Police  station at  about  8.00  P.M.    The  sub Inspector attached to the said police station registered the offence  and  they  all  then  left  towards  the  place  of occurrence.  The   Investigating   officer   commenced   the investigation during the night and after completing thereof, a charge  sheet against  the  appellants  for  he  aforesaid offences came to be filed. 8.   The accused denied the charges and claimed to be tried. According  to   them,  they  have  been  falsely  implicated because of  long standing  enmity. They  are innocent and be acquitted. 9.   The prosecution in support of its case examined as many as thirteen  witnesses out of which PW1, PW2 and PW4 are the eye witnesses.  Dr. Thirumalaisami (PW 3) held his report is Annexure P-4. 10.  The learned  sessions judge,  on appraisal  of the oral and  documentary   evidence  on   record  found   that   the prosecution had  failed to prove the charge/charges  against the  appellants  beyond  reasonable  doubt  and  accordingly acquitted all  the accused.  In an  appeal by  the state  of Tamil Nadu to the High Court at Madras, the learned Division Bench reversed  the said  order of  acquittal passed  by the Trial Court  and  conviction  the  appellants  as  indicated above. it is this order of conviction and sentence passed by the high  Court which  is the subject matter of challenge in this appeal. 11.  Mr.  R.S.  Hegde,  the  learned  Counsel  appearing  in support of  this appeal  urged that  the high  Court was not justified in  setting  aside  the  well  reasoned  order  of acquittal. The  view taken  by the trial court, in the facts and circumstances  of the case was a reasonable and probable one. He urged that the judgment of the sessions court cannot he termed as perverse or based on no evidence and if this be so the  High Court  ought not  to have  interfered with  the order of  acquittal. he,  therefore, urged that the order of conviction and  sentence passed  by the  High Court  be  set aside and the order of Trial Court be restored. 12.  We have  carefully gone  through the  judgments of  the courts below  as  also  the  materials  on  record.  In  our considered view,  the High  Court  was  fully  justified  in reversing the  order of  acquittal since  it  was  based  on

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perverse reasoning.  The Trial  Court discarded the evidence of the eye witnesses merely on the ground that they happened to be  the close  relations of  the deceased  and it was not safe to base conviction on such evidence. 13.  Mr.  Hegde,  the  learned  counsel  appearing  for  the appellants urged  that the  evidence of Velu (PW 1) does not inspire confidence  inasmuch as  he night  not be  with  the deceased at  the time  of incident.  Velu (PW  1)  was  only sixteen years  old at the time of incident and being the son of the  deceased is  highly interested witness. The evidence of Palani (PW 2) who being the elder brother of the deceased also suffers  from the  same infirmity.  He although  stated that he  was present  at the  time of  incident but  without disclosing the purpose for which he had gone to the place of occurrence, the  evidence of  such   a chance witness be not accepted as  credible. Mr.  Hegde then urged that if accused persons has  really killed  Vellaikutty in  the presence  of Velu (PW  1) and  palani (PW  2), they would not have spared these eye  witnesses which  cold help in detecting the crime and criminals. 14.  After  going   through  the   evidence  of  both  these witnesses, we  find that  none of  the contentions raised on behalf of  the appellants is sustainable. Velu (PW 1) in his evidence has  stated that  he alongwith  had purchased kochi string, betel leaves  and other items. While returning, they had gone to the cycle shop of Paramaswami (PW 8) to fill the air in  his cycle  tube.  Thereafter,  they  came  near  the culvert, from  where the  accused persons  suddenly came and assaulted  his   father  (Vellaikutty).   The  investigating officer during  the spot Panchnama seized the Kochai string, betel leaves  and other  items that  were purchased  by  the deceased  from  the  bazar.  This  Panchnama,  which  stands proved, lends  assurance to  the credibility of the evidence of velu  (PW 1). In addition to this, Paramaswami (PW 8) has also stated on, oath that at about 5.00 P.M. accused and the deceased came  to his shop to fill the air in the cycle tube and thereafter  they  proceeded  towards  the  culvert.  His evidence also  corroborates the  presence of Velu (PW 1) has stated that  A-2 has  given a blow with knife on the back of father and  thereafter chased  him for  some distance and in the meantime  A-1,  A-3  and  also  A-2  had  assaulted  the deceased. 15.  The evidence  of Palani  (PW 2)  is also  to  the  same effect who  had stated  on oath  that  he  saw  the  accused assaulting Vellaikutty at the culvert. The appellants cross- examined all  these witnesses  at great  length but there is nothing to discredit  their evidence. 16.  Dr.  Thirumalaisami   (PW  3),   the  Asstt.   Surgeon, Government Hospital,  Nilakottai,  on  18-12-1976  held  the autopsy on  the dead body of Vellaikutty and had reported as many as eighteen anti mortem incised and stab injuries. This assault could not have been made by a single accused. 17.  It may  also be  stated that this incident was reported to the  village Munsiff Subbiah Gounder (PW 9) by Palani (PW 2) vide  his report  Ex.P1 without  any loss  of  time.  The village munsiff  (PW 9)  then recorded the statement of both these witnesses  namely, Velu (PW 1) and Palani (PW 2) (Ex.6 and Ex.P7) respectively and forwarded the same to the police station for  appropriate action. Both these witnesses at the earliest appellants  as assailants. This circumstance in our opinion again  lends corroboration  to the  evidence of both the eye witnesses. 18.  After going  through  the  ocular  evidence  and  other materials on record, we are of the considered  view that A-2 was rightly  convicted under section 302 of the Indian penal

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Code. The  conviction of A-1 and A-3 under Section 302/34 of the Indian penal Code in the facts and circumstances of this case is  legal and  valid. The  learned High Court was fully justified in  convicting the appellants for the offences for which they  were tried,  and there  is no  substance in this appeal. 19.  In  the   result,  appeal   to  stand   dismissed.  The appellants  who  are  in  bail,  shall  surrender  to  their bailbonds forthwith  to serve  out the  remaining period  of their respective sentences.