Ananthipalayam Velupaiyan @ Velusamy, Kumar @ Muttaikannan and Shankar vs State by Inspector of Police

M. Chockalingam, J.—This judgment shall govern both C.A. Nos. 850 and 1199 of 2002.

The appellants in C.A. No. 850 of 2002 ranked as A1 and A5, while the appellant in C.A. No. 1199 of 2002 ranked as A4 in a sessions case

wherein they along with four others stood charged and tried for the offences under Sections 148, 341, 307 and 307 r/w 149 I.P.C. and the first

accused was found guilty u/s 148 and 307 I.P.C. and sentenced to undergo 3 years R.I. u/s 148 I.P.C. and 10 years R.I. along with fine of Rs.

1000/- in default 6 months R.I. u/s 307 I.P.C, the fifth accused was found guilty under Sections 148 and 307 r/w 149 I.P.C. and he was

sentenced to undergo 3 years R.I u/s 148 I.P.C. and 10 years R.I. along with fine of Rs. 1000/- in default 6 months R.I. u/s 307 r/w 149 I.P.C.

and the fourth accused was found guilty under Sections 148 and 307 I.P.C. and sentenced to undergo 3 years R.I. u/s 148 I.P.C. and 10 years

R.I. along with fine of Rs. 1000/- in default 6 months R.I. u/s 307 I.P.C. have brought forth these appeals.

The short facts necessary for the disposal of these appeals can be stated thus:

a) P.W. 1, Viji @ Yuvaraj, who was a resident of Alagarasan Nagar, Karungal Palayam, Erode District, was working in a cycle shop near

Checkpost, Kaveri Road, which was run by his father P.W. 5, Lakshmikanthan. On 13.12.2000 at about 8.00 p.m. when P.W. 1 was standing in

front of his cycle shop, A1 came in a cycle and asked him to come along with him to talk about the previous incidents. When the same was refused

by P.W. 1, A1 intimidated him with knife. Due to fear, P.W. 1 simply followed A1. When they walked to certain distance, A2 to A7 came with

three bicycles and followed P.W. 1. A1 instigated all of them to attack P.W. 1. A1 was already armed with sword, while the other accused also

armed with deadly weapons. A1 to A5 started attacking P.W. 1 by saying ""eP jhz;lh vq;fs; rutzid bfhd;wha;"" . A1 attacked P.W. 1 with M.O. 1

sword on the backside head of P.W. 1. A4 with M.O. 2 knife stabbed P.W. 1 on his stomach. A3 stabbed P.W. 1 with M.O. 3 knife on his right

side hip. A2 with knife stabbed on back side right shoulder of P.W. 1 and A5 with knife M.O. 4 attacked P.W. 1. However, P.W. 1 was able to

escape from them. The accused fled away from the scene of occurrence with weapons.

b) P.W. 4, Karupannan, an Auto driver, who came to that site, found P.W. 1 with grievous injuries, took him to Government Hospital, Erode in

his auto and reached the said hospital at about 8.35 p.m. P.W. 14 Dr. Karunanithi examined P.W. 1 medically and on finding the condition of

P.W. 1 serious, he informed the same to P.W. 13, the Judicial Magistrate-II, Erode for recording Dying Declaration from P.W. 1. P.W. 14

Doctor intimated the same to the police station. The Accident Register narrating all the injuries found on P.W. 1 was marked as Ex.P. 15. P.W.

15, Vinayagam Head Constable attached to Karungalpalayam Police Station on receipt of information from the Government Hospital, Erode,

proceeded to the said hospital at about 9.30 p.m., recorded the statement of P.W. 1, which was marked as Ex.P. 1 and registered a case in Crime

No. 988/2000 under Sections 147, 148 and 307 I.P.C. against the accused. The printed F.I.R Ex.P. 17 was despatched to the concerned Judicial

Magistrate Court. P.W. 13 Judicial Magistrate-II Erode, on receipt of information from P.W. 14, proceeded to the hospital and recorded Dying

Declaration of P.W. 1 in front of P.W. 14, which was marked under Ex.P. 14.

c) P.W. 15 on information, on 28.12.2000 at 8.00 p.m. arrested A6 in front of the witnesses and recorded his confessional statement voluntarily

made by him. The admissible portion of the said confessional statement was marked as Ex.P. 18. Pursuant to the said confessional statement,

P.W. 15 recovered M.O. 6 knife under Ex.P. 19 in front of P.W. 9 and other witness. A6 was sent for remand. P.W. 16, S.T. Rajan, Inspector

of Police, Erode North Police Station who was in-charge of Karungalpalayam Police Station took up further investigation. On 9.01.2001, he filed

a petition before the Judicial Magistrate-I, Erode for custody of A3, since he was arrested in connection with other case and detained in Prison. It

was accordingly ordered. P.W. 16 took the custody of A3 on 11.11.2001 and brought A3 to the concerned Police Station, where A3

volunteered to give a confessional statement and the same was recorded. The admissible portion of the confessional statement was marked as

Ex.P. 20. Pursuant to the confessional statement, M.O. 7, knife was recovered from A3 under Ex.P. 21 mahazar in front of P.Ws. 10 and 11. A3

was produced before the Court and was remanded to judicial custody. The properties were sent to Court under Form 95. P.W. 16 recorded the

statements of P.Ws. 10 and 11.

d) P.W. 17, S.M. Subramaniam, Inspector of Police, Karungalpalayam Police Station took investigation on 13.12.2000, proceeded to the

occurrence place and prepared Ex.P. 22, observation mahazar in the presence of witnesses and rough sketch under Ex.P. 23. He recorded the

statements of witnesses. P.W. 17 examined P.Ws. 2, 3, 4, 5, and 8 and other witnesses and recorded their statements. On 14.12.2000, P.W. 5

produced Bloodstained dhoti worn by P.W. 1 at the time of occurrence to P.W. 17. On 27.12.2000, P.W. 17 filed a petition for custody of A2,

A4 and A5 since they surrendered before the court already. Accordingly, the same was ordered. At the time of enquiry, they volunteered to give

confessional statement in front of witnesses. Ex.P. 24 was the admissible portion of confessional statement made by A2. Pursuant to the

confessional statement, he produced M.O. 8, Cycle and M.O. 9 knife, which was recovered under Ex.P. 25, mahazar in front of the witnesses.

The confessional statement made by A5 led to the recovery of M.O. 7 knife, which was recovered under Ex.P. 29 mahazar in front of the

witnesses. The accused were sent back to remand and the properties were also produced to Court. P.W. 17 examined the witnesses and

recorded their statements, who attested Ex.P. 24 to Ex.P. 30. On 4.2.2001 on information P.W. 17 arrested A1 and recorded his voluntary

confessional statement. The admissible portion of the same was marked as Ex.P. 31. Pursuant to the same, M.O. 1 sword and M.O. 10 cycle

were recovered under Ex.P. 32 in front of P.W. 12 and other witness. A1 was sent for remand. All the material objects were sent for chemical

analysis. On completion of investigation, P.W. 17 filed a charge sheet against the accused.

In order to prove the charges levelled against the accused, the prosecution has examined 17 witnesses and marked 32 exhibits and 10 M.Os.

After completion of the evidence of prosecution, the accused 1 to 7 were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found

in the evidence of prosecution witnesses, which they flatly denied as false. No defence witnesses were examined. After careful consideration of the

rival submissions made and scrutiny of the materials available, the trial court found the accused 1 to 5 guilty and sentenced them to undergo

imprisonment as stated above and acquitted accused 6 and 7. Hence, these appeals have been filed by A1, A5 and A4.

Advancing his arguments for the appellants in both appeals, the learned counsel made the following submissions:

The prosecution, in its attempt to bring home the guilt of the accused, relied on the evidence of P.Ws. 1 to 5. According to the prosecution, P.W.

1 was an injured and P.Ws. 2 and 3 were eyewitnesses. P.W. 2 has turned hostile, and hence, except the injured P.W. 1, the only testimony that

was available was that of P.W. 3. A careful scrutiny of the evidence of P.W. 3 would clearly indicate that he could not have seen the occurrence at

all, since his presence at the time of occurrence was doubtful. Thus, what was available for the prosecution was only an uncorroborated and

interested testimony of P.W. 1. It is not in dispute that P.W. 1 was one of the accused in a case relating to murder of one Saravanan, who was a

close friend of the accused and thus, P.W. 1 has falsely implicated the appellants. A5 was not shown as an accused in the F.I.R and no overt act

was also attributed to him by P.W. 1 in his evidence. Even in the cross examination, P.W. 1 has categorically admitted that he knew A1 to A4 and

the other three accused were not known to him already. Thus, insofar as A5 is concerned, there was practically no evidence available. The

evidence of P.W. 14 Doctor also do not support the case of prosecution. According to P.W. 14, the first injury was grievous, while all other

injuries were simple and superficial. Even assuming the case of the prosecution was proved, it cannot be stated that the accused acted with an

intention to cause death of P.W. 1 and the same did not attract the provisions u/s 307 I.P.C. All the witnesses examined by the prosecution to

prove the confessional statement and the recovery of weapons, have turned hostile. It is also pertinent to point out that the Investigating Officer has

examined P.W. 1 after five days in the hospital, which casts a clear doubt in his statement and all kinds of embellishment were possible in that

interval and to improve the prosecution case also. There were so many discrepancies in the evidence of P.W. 1 and P.W. 3. Hence, this is a fit

case in which the appellants are entitled for acquittal and the judgment of the trial court has got to be set aside.

Strongly opposing all the contentions put forth by the appellants'' side, the learned Government Advocate in his sincere attempt to sustain the

conviction recorded by the trial court has made the following submissions:

The prosecution has clearly proved the motive for the occurrence through the evidence of P.W. 1. It is not in dispute that there was a case of

murder of one Saravanan, where P.W. 1 was the accused and the accused persons in the instant case were close friends of the said Saravanan

and the same would clearly indicate the reason behind the attack by the accused on P.W. 1. P.W. 1 has categorically narrated the entire incident.

The evidence of P.W. 1 has been fully corroborated by the evidence of P.W. 3, who has also narrated the incident. P.W. 3 fled away from the

scene of occurrence because of fear. Shortly after the occurrence, P.W. 4, auto driver, who came that way, took P.W. 1 to the hospital and

admitted him. P.W. 14 Doctor, on seeing the serious condition of P.W. 1, informed the same to the judicial Magistrate-II, Erode, who rushed over

there and recorded the Dying Declaration of P.W. 1 in the presence of P.W. 14 Doctor and the same has also been produced before the Court.

All the injuries found on P.W. 1 has been clearly narrated in Ex.P. 15 Accident Register. At the earliest point, P.W. 1 has made a statement to

P.W. 14, which has also been recorded therein. Thereafter, on intimation, P.W. 15 came to the hospital and recorded the statement of P.W. 1.

During that time, P.W. 1 was very conscious. A reading of Ex.P. 1 statement, on the strength on which a case was registered by P.W. 15, would

clearly indicate that all the accused were involved in the crime. Thus, the Doctor''s evidence has fully corroborated the ocular evidence. In the

instant case, Dying Declaration was also marked by the Judicial Magistrate. Thus, the prosecution, in view of the above evidence, has clearly

proved its case beyond all reasonable doubt. The trial court, only on consideration and appreciation of the evidence available, has found the

appellants guilty and recorded findings against them, which has got to be affirmed by this Court.

This court paid its full attention to the rival submissions made, and made a close scrutiny of the materials available. As seen above, these

appellants along with four others stood charged on different counts, wherein the specific case of the prosecution was that all the accused have

constituted into an unlawful assembly with a common intention of committing murder of P.W. 1. At the time of occurrence, A1 armed with deadly

weapon came to the place nearby P.W. 5 cycle shop where P.W. 1 was employed at that time. A1 proceeded to the cycle shop, took P.W. 1

under threat to some distance where A1 to A7 attacked him with deadly weapons. A careful scrutiny of the evidence of the injured P.W. 1 would

clearly reveal that he has categorically narrated the entire incident wherein he was attacked by A1 to A4 on different parts of his body with deadly

weapons like knife, sword, etc. He has not spoken anything about either the presence of A5 or any overt act that was committed by A5. A perusal

of Ex.P. 1 report would also clearly reveal that he named A1 to A4 and not A5 to A7. P.W. 3''s evidence has clearly corroborated the evidence

of P.W. 1 as to the incident wherein A1 to A4 have attacked P.W. 1.

P.W. 4, who came that way at that time, has taken P.W. 1 to the Government Hospital, Erode within half an hour. P.W. 14 Doctor has

admitted P.W. 1 in the hospital and P.W. 1 has stated as follows:

He was stabbed by about 7-8 persons at about 8.15 p.m. today at autostand Karungalpalayam using fj;jp> tPr;rWths;

The same has also been recorded by him. P.W. 14, who medically examined P.W. 1 has given Ex.15 wound certificate, wherein the injuries were

narrated as follows:

1) A vertical cut injury in the midline 1 cm above the umbilicus 5 cm x 2 cm x abdominal contents protruding out.

2) 3 "" x 1 x 1 cm horizontally placed incised wound 4 cm above the left ear over the scalp.

3) Vertically placed 3 x 2 x 1 cm incised wound over back of left shoulder.

4) Obliquely placed incised wound 3 x 1 x 2 cm above right ant. iliac spine.

This part of the medical evidence would clearly support the case of prosecution as to the place, time and the manner in which the injuries were

sustained by P.W. 1. Since the condition of P.W. 1 was so serious, an occasion arose for P.W. 14 to inform the same to the Judicial Magistrate to

record the Dying Declaration, which was accordingly done. From the evidence of Judicial Magistrate, who recorded the Dying Declaration from

P.W. 1, it would be quite evident that P.W. 1 was conscious despite the said injuries caused on him.

On receipt of intimation, P.W. 15 proceeded to the hospital, recorded the statement of P.W. 1 marked Ex.P. 1. As pointed out earlier, even in

Ex.P. 1, which came into existence shortly, P.W. 1 has narrated the entire incident and named A1 to A4. It is true that all the witnesses, examined

for the purpose of proving the confessional statement made by the accused and the recovery of M.Os, have turned hostile, and thus, their evidence

was not helpful to the prosecution. This Court is of the considered view that though they have turned hostile and the prosecution cannot take their

evidence to their advantage, the same would not in any way affect the prosecution case. The evidence of P.W. 1 injured coupled with the evidence

of P.W. 3, eyewitness and fully corroborated by the medical evidence through P.W. 14 doctor, this Court is of the considered view that the

accused along with others constituted into an unlawful assembly and came to the place of occurrence to attack P.W. 1. Taking into consideration

the words uttered by them and the attack that was made by the accused on P.W. 1, it could be easily deduced that their intention was to cause

murder. Under the stated circumstances, the contentions of the appellants'' side that even as per the medical evidence except the first injury, all

other injuries were simple and superficial and there is nothing to even infer that they came to that place with an intention to cause murder has got to

be thoroughly discountenanced. This court is unable to find any evidence to connect A5 to the crime in question. Under the stated circumstances,

the trial court was perfectly correct in finding the appellants/A1 and A4 guilty under Sections 148 and 307 I.P.C.

Coming to the question of sentence awarded to A1 and A4, this Court is of the view that the sentence awarded by the trial court u/s 307

I.P.C. to A1 and A4 has got to be reduced to seven years, which would meet the ends of justice. Therefore, Criminal Appeal No. 850 of 2002 is

partly allowed. Insofar as A5 is concerned, the conviction and sentence imposed on him by the trial court under Sections 148 and 307 r/w 149

I.P.C. are set aside and he is acquitted of all charges levelled against him. The sentence of 10 years u/s 307 I.P.C. imposed by the trial court on

A1 and A4 is reduced to seven years. In other respect, the conviction and sentence imposed by the trial court on A1 and A4 are confirmed. C.A.

No. 1199 of 2002 is dismissed with the above modification. The Sessions Judge shall take steps to commit the Accused No. 1 to prison, if he is

on bail, to undergo the remaining period of sentence. Bail bonds, if any, executed by Accused No. 5 shall stand cancelled and the fine amounts, if

any paid, shall be refunded to the accused No. 5.