{"id":270998,"date":"2003-07-11T00:00:00","date_gmt":"2003-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ananthipalayam-velupaiyan-vs-state-on-11-july-2003-3"},"modified":"2014-07-18T02:49:49","modified_gmt":"2014-07-17T21:19:49","slug":"ananthipalayam-velupaiyan-vs-state-on-11-july-2003-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ananthipalayam-velupaiyan-vs-state-on-11-july-2003-3","title":{"rendered":"Ananthipalayam Velupaiyan vs State on 11 July, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Ananthipalayam Velupaiyan vs State on 11 July, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 11\/07\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M. CHOCKALINGAM\n\nCRL. APPEAL NO.850 of 2002 AND CRL. APPEAL NO.1199 OF 2002\n\n1. Ananthipalayam Velupaiyan\n   @ Velusamy\n\n2. Kumar @ Muttaikannan                 .. Appellants in\n                                        C.A.Nos.850\/2002\n\nShankar                                 ..  Appellant in\n                                        C.A.No.1199\/2002\n-Vs-\n\nState\nby Inspector of Police\nKarungalpalayam Police Station\nErode Town\n(Cr.No.988\/2000)                                ..  Respondent in<\/pre>\n
                                                both appeals<\/p>\n
        These criminal appeals are  preferred  under  Section  374(2)<\/a>  Cr.P.c.
\nagainst  the  judgment  of  the  learned  Fast  Track  Court No.I, Erode in S.
\nC.No.148\/2001 dated 6.2.2002.\n<\/p>\n
!For Appellants :  Mr.S.Kaithamalai Kumaran
\n                in both appeals.\n<\/p>\n
^For Respondent :  Mr.V.Jaya Prakash Narayan
\n                Govt.  Advocate(Crl.  side)<\/p>\n
:COMMON JUDGMENT<\/p>\n
        This judgment shall govern both C.A.Nos.850 and 1199 of 2002.\n<\/p>\n
        2.  The appellants in C.A.No.850 of 2002 ranked as A1  and  A5,  while
\nthe  appellant  in C.A.No.1199 of 2002 ranked as A4 in a sessions case wherein
\nthey along with four others stood charged and tried  for  the  offences  under
\nSections 148<\/a>, 341<\/a>, 307<\/a> and 307<\/a> r\/w 149 I.P.C<\/a>.  and the first accused was found
\nguilty under Section 148<\/a> and 307<\/a> I.P.C.  and sentenced to undergo 3 years R.I.
\nunder Section 148<\/a>  I.P.C.   and 10 years R.I.  along with fine of Rs.1000\/- in
\ndefault 6 months R.I.  under Section 307<\/a> I.P.C, the fifth  accused  was  found
\nguilty under  Sections  148<\/a>  and  307<\/a>  r\/w 149 I.P.C<\/a>.  and he was sentenced to
\nundergo 3 years R.I under Section 148<\/a> I.P.C.  and 10 years R.I.    along  with
\nfine of  Rs.1000\/-  in default 6 months R.I.  under Section 307<\/a> r\/w 149 I.P.C<\/a>.
\nand the fourth accused was found guilty under Sections 148<\/a> and 307<\/a> I.P.C.  and
\nsentenced to undergo 3 years R.I.  under Section 148<\/a> I.P.C.  and 10 years R.I.
\nalong with fine of Rs.1000\/- in default 6  months  R.I.    under  Section  307<\/a>
\nI.P.C.  have brought forth these appeals.\n<\/p>\n
        3.  The short facts necessary for the disposal of these appeals can be
\nstated thus:\n<\/p>\n
        a)  P.W.1,  Viji  @  Yuvaraj,  who was a resident of Alagarasan Nagar,
\nKarungal Palayam, Erode District, was working in a cycle shop near  Checkpost,
\nKaveri Road, which was run by his father P.W.5, Lakshmikanthan.  On 13.12.2000
\nat about  8.00  p.m.    when P.W.1 was standing in front of his cycle shop, A1
\ncame in a cycle and asked him to  come  along  with  him  to  talk  about  the
\nprevious incidents.    When  the same was refused by P.W.1, A1 intimidated him
\nwith knife.  Due to fear, P.W.1 simply followed  A1.    When  they  walked  to
\ncertain distance,  A2  to  A7 came with three bicycles and followed P.W.1.  A1
\ninstigated all of them to attack P.W.1.  A1  was  already  armed  with  sword,
\nwhile the  other  accused  also  armed  with deadly weapons.  A1 to A5 started
\nattacking P.W.1 by saying “eP jhz;lh vq;fs; rutzid bfhd;wha;” .   A1  attacked
\nP.W.1 with  M.O.1  sword  on  the backside head of P.W.1.  A4 with M.O.2 knife
\nstabbed P.W.1 on his stomach.  A3 stabbed P.W.1 with M.O.3 knife on his  right
\nside hip.    A2 with knife stabbed on back side right shoulder of P.w.1 and A5
\nwith knife M.O.4 attacked P.W.1.  However, P.W.1 was able to escape from them.
\nThe accused fled away from the scene of occurrence with weapons.\n<\/p>\n
        b) P.W.4, Karupannan, an Auto driver, who came  to  that  site,  found
\nP.W.1  with  grievous  injuries, took him to Government Hospital, Erode in his
\nauto and reached the said hospital at  about  8.35  p.m.P.W.14  Dr.Karunanithi
\nexamined  P.W.1  medically  and  on finding the condition of P.W.1 serious, he
\ninformed the same to P.W.13,the Judicial Magistrate-II,  Erode  for  recording
\nDying Declaration  from P.W.1.  P.W.14 Doctor intimated the same to the police
\nstation.  The Accident Register narrating all the injuries found on P.w.1  was
\nmarked as   Ex.P.15.      P.w.15,   Vinayagam   Head   Constable  attached  to
\nKarungalpalayam Police Station on receipt of information from  the  Government
\nHospital,  Erode,  proceeded to the said hospital at about 9.30 p.m., recorded
\nthe statement of P.W.1, which was marked as Ex.P.1 and registered  a  case  in
\nCrime No.988\/2000 under Sections 147<\/a>, 148<\/a> and 307<\/a> I.P.C.  against the accused.
\nThe  printed F.I.R Ex.P.17 was despatched to the concerned Judicial Magistrate
\nCourt.  P.W.13 Judicial Magistrate-II Erode, on receipt  of  information  from
\nP.W.14,  proceeded  to the hospital and recorded Dying Declaration of P.W.1 in
\nfront of P.w.14, which was marked under Ex.P.14.\n<\/p>\n
        c) P.W.15 on information, on 28.12.2000 at 8.00 p.m.  arrested  A6  in
\nfront  of  the  witnesses  and recorded his confessional statement voluntarily
\nmade by him.  The admissible portion of the said  confessional  statement  was
\nmarked as  Ex.P.18.    Pursuant  to  the  said  confessional statement, P.W.15
\nrecovered M.O.6 knife under Ex.P.19 in front of P.W.9 and other witness.    A6
\nwas sent  for  remand.    P.w.16,  S.T.Rajan, Inspector of Police, Erode North
\nPolice Station who was in-charge of Karungalpalayam  Police  Station  took  up
\nfurther investigation.  On 9.01.2001 , he filed a petition before the Judicial
\nMagistrate-I,  Erode  for  custody  of A3, since he was arrested in connection
\nwith other case and detained in Prison.  It was accordingly ordered.    P.W.16
\ntook  the  custody  of A3 on 11.11.2001 and brought A3 to the concerned Police
\nStation, where A3 volunteered to give a confessional statement  and  the  same
\nwas recorded.  The admissible portion of the confessional statement was marked
\nas Ex.P.20.    Pursuant  to  the  confessional  statement,  m.O.7,  knife  was
\nrecovered from A3 under Ex.P.21 mahazar in front of P.Ws.10 and 11.    A3  was
\nproduced before  the  Court  and  was  remanded  to  judicial  custody.    The
\nproperties were sent to Court under Form 95.  P.W.16 recorded  the  statements
\nof P.Ws.10 and 11.\n<\/p>\n
        d)  P.W.17,  S.M.Subramaniam,  Inspector  of  Police,  Karungalpalayam
\nPolice Station took investigation on 13.12.2000, proceeded to  the  occurrence
\nplace  and  prepared Ex.P.22, observation mahazar in the presence of witnesses
\nand rough sketch under Ex.P.23.  He  recorded  the  statements  of  witnesses.
\nP.W.17  examined  P.Ws.2,3,4,5,  and  8 and other witnesses and recorded their
\nstatements.  On 14.12.2000, P.w.5 produced Bloodstained dhoti worn by P.W.1 at
\nthe time of occurrence to P.w.17.  On 27.12.2000, P.w.17 filed a petition  for
\ncustody  of  A2,  A4  and  A5 since they surrendered before the court already.
\nAccordingly, the same was ordered.  At the time of enquiry,  they  volunteered
\nto give  confessional  statement  in  front  of  witnesses.    Ex.P.24 was the
\nadmissible portion of confessional statement made by  A2.    Pursuant  to  the
\nconfessional  statement,  he  produced M.O.8, Cycle and M.O.9 knife, which was
\nrecovered under Ex.P.25, mahazar in front of the witnesses.  The  confessional
\nstatement  made  by A5 led to the recovery of M.O.7 knife, which was recovered
\nunder Ex.P.29 mahazar in front of the witnesses.  The accused were  sent  back
\nto remand and the properties were also produced to Court.  P.W.17 examined the
\nwitnesses and  recorded their statements, who attested Ex.P.24 to Ex.P.30.  On
\n4.2.2001  on  information  P.W.17  arrested  A1  and  recorded  his  voluntary
\nconfessional statement.    The  admissible  portion  of the same was marked as
\nEx.P.31.  Pursuant to the same, M.O.1 sword and M.O.10  cycle  were  recovered
\nunder Ex.P.32  in  front of P.W.12 and other witness.  A1 was sent for remand.
\nAll the material objects were sent for chemical analysis.   On  completion  of
\ninvestigation, P.w.17 filed a charge sheet against the accused.\n<\/p>\n
        4.   In  order  to prove the charges levelled against the accused, the
\nprosecution has examined 17 witnesses and marked  32  exhibits  and  10  M.Os.
\nAfter  completion  of  the  evidence  of  prosecution, the accused 1 to 7 were
\nquestioned under Section 313<\/a> Cr.P.C.  as to  the  incriminating  circumstances
\nfound  in  the  evidence of prosecution witnesses, which they flatly denied as
\nfalse.  No defence witnesses were examined.  After  careful  consideration  of
\nthe  rival submissions made and scrutiny of the materials available, the trial
\ncourt found  the  accused  1  to  5  guilty  and  sentenced  them  to  undergo
\nimprisonment as  stated  above  and  acquitted  accused 6 and 7.  Hence, these
\nappeals have been filed by A1 , A5 and A4.\n<\/p>\n
        5.  Advancing his arguments for the appellants in  both  appeals,  the
\nlearned counsel made the following submissions:\n<\/p>\n
        The  prosecution,  in  its  attempt  to  bring  home  the guilt of the
\naccused, relied on the evidence of P.Ws.1 to 5.  According to the prosecution,
\nP.W.1 was an injured and P.Ws.2 and 3 were eyewitnesses.    P.W.2  has  turned
\nhostile,  and  hence,  except  the  injured P.W.1, the only testimony that was
\navailable was that of P.W.3.  A careful scrutiny  of  the  evidence  of  P.W.3
\nwould  clearly  indicate  that  he  could not have seen the occurrence at all,
\nsince his presence at the time of occurrence was doubtful.    Thus,  what  was
\navailable  for  the  prosecution  was  only  an  uncorroborated and interested
\ntestimony of P.W.1.  It is not in dispute that P.W.1 was one of the accused in
\na case relating to murder of one Saravanan, who was  a  close  friend  of  the
\naccused and  thus,  P.W.1  has  falsely implicated the appellants.  A5 was not
\nshown as an accused in the F.I.R and no overt act was also attributed  to  him
\nby P.W.1  in  his  evidence.    Even  in  the  cross  examination,  P.W.1  has
\ncategorically admitted that he knew A1 to A4 and the other three accused  were
\nnot known  to  him  already.    Thus,  insofar  as  A5 is concerned, there was
\npractically no evidence available.  The evidence of P.W.14 Doctor also do  not
\nsupport the  case  of  prosecution.  According to P.W.14, the first injury was
\ngrievous, while all other injuries were simple and superficial.  Even assuming
\nthe case of the prosecution was proved, it cannot be stated that  the  accused
\nacted  with  an intention to cause death of P.W.1 and the same did not attract
\nthe provisions under Section 307<\/a> I.P.C.  All the  witnesses  examined  by  the
\nprosecution  to  prove the confessional statement and the recovery of weapons,
\nhave turned hostile.  It is also pertinent to point out that the Investigating
\nOfficer has examined P.W.1 after five days in  the  hospital,  which  casts  a
\nclear  doubt  in his statement and all kinds of embellishment were possible in
\nthat interval and to improve the prosecution case also.  There  were  so  many
\ndiscrepancies in  the  evidence of P.W.1 and P.W.3.  Hence, this is a fit case
\nin which the appellants are entitled for acquittal and  the  judgment  of  the
\ntrial court has got to be set aside.\n<\/p>\n
        6.  Strongly opposing all the contentions put forth by the appellants’
\nside,  the  learned  Government Advocate in his sincere attempt to sustain the
\nconviction recorded by the trial court has made the following submissions:\n<\/p>\n
        The prosecution has clearly  proved  the  motive  for  the  occurrence
\nthrough the  evidence of P.W.1.  It is not in dispute that there was a case of
\nmurder of one Saravanan, where P.W.1 was the accused and the  accused  persons
\nin  the  instant  case  were  close friends of the said Saravanan and the same
\nwould clearly indicate the reason behind the attack by the accused  on  P.W.1.
\nP.W.1 has  categorically  narrated the entire incident.  The evidence of P.W.1
\nhas been fully corroborated by the evidence of P.W.3, who  has  also  narrated
\nthe incident.    P.W.3 fled away from the scene of occurrence because of fear.
\nShortly after the occurrence, P.W.4, auto driver,  who  came  that  way,  took
\nP.W.1 to  the hospital and admitted him.  P.W.14 Doctor, on seeing the serious
\ncondition of P.W.1, informed the same to the  judicial  Magistrate-II,  Erode,
\nwho  rushed  over  there  and  recorded  the Dying Declaration of P.W.1 in the
\npresence of P.W.14 Doctor and the same  has  also  been  produced  before  the
\nCourt.   All  the injuries found on P.W.1 has been clearly narrated in Ex.P.15
\nAccident Register.  At the earliest point,  P.W.1  has  made  a  statement  to
\nP.W.14, which  has  also  been  recorded  therein.  Thereafter, on intimation,
\nP.W.15 came to the hospital and recorded the statement of P.W.1.  During  that
\ntime, P.W.1  was  very  conscious.    A  reading  of  Ex.P.1 statement, on the
\nstrength on which a case was registered by P.W.15, would clearly indicate that
\nall the accused were involved in the crime.  Thus, the Doctor’s  evidence  has
\nfully corroborated   the   ocular  evidence.    In  the  instant  case,  Dying
\nDeclaration was  also  marked  by  the  Judicial  Magistrate.      Thus,   the
\nprosecution, in view of the above evidence, has clearly proved its case beyond
\nall reasonable doubt.  The trial court, only on consideration and appreciation
\nof  the  evidence  available,  has  found  the  appellants guilty and recorded
\nfindings against them, which has got to be affirmed by this Court.\n<\/p>\n
        7.  This court paid its full attention to the rival submissions  made,
\nand made  a  close  scrutiny of the materials available.  As seen above, these
\nappellants along with four others stood charged on different  counts,  wherein
\nthe specific case of the prosecution was that all the accused have constituted
\ninto  an  unlawful  assembly  with  a common intention of committing murder of
\nP.W.1.  At the time of occurrence, A1 armed with deadly  weapon  came  to  the
\nplace nearby  P.W.5  cycle  shop  where  P.W.1  was employed at that time.  A1
\nproceeded to the cycle shop, took P.W.1 under threat to some distance where A1
\nto A7 attacked him with deadly weapons.  A careful scrutiny of the evidence of
\nthe injured P.W.1 would clearly reveal that he has categorically narrated  the
\nentire  incident wherein he was attacked by A1 to A4 on different parts of his
\nbody with deadly weapons like knife, sword, etc.  He has not  spoken  anything
\nabout either  the presence of A5 or any overt act that was committed by A5.  A
\nperusal of Ex.P.1 report would also clearly reveal that he named A1 to A4  and
\nnot A5 to A7.  P.W.3’s evidence has clearly corroborated the evidence of P.W.1
\nas to the incident wherein A1 to A4 have attacked P.W.1.\n<\/p>\n
        8.   P.W.4,  who  came  that  way at that time, has taken P.W.1 to the
\nGovernment Hospital, Erode within half an hour.  P.W.14  Doctor  has  admitted
\nP.W.1 in the hospital and P.W.1 has stated as follows:\n<\/p>\n
        “He was  stabbed  by  about  7-8  persons at about 8.15 p.m.  today at
\nautostand Karungalpalayam using fj;jp> tPr;rWths;”
\nThe same has also been recorded by him.  P.W.14, who medically examined  P.w.1
\nhas  given  Ex.15  wound  certificate,  wherein  the injuries were narrated as
\nfollows:\n<\/p>\n
1) A vertical cut injury in the midline 1 cm above the umbilicus 5 cm x 2 cm x
\nabdominal contents protruding out.\n<\/p>\n
2) 3 + x 1 x 1 cm horizontally placed incised wound 4 cm above  the  left  ear
\nover the scalp.\n<\/p>\n
3) Vertically placed 3 x 2 x 1 cm incised wound over back of left shoulder.\n<\/p>\n
4) Obliquely placed incised wound 3 x 1 x 2 cm above right ant.  iliac spine.
\nThis  part  of  the  medical  evidence  would  clearly  support  the  case  of
\nprosecution as to the place, time and the manner in which  the  injuries  were
\nsustained by  P.W.1.  Since the condition of P.W.1 was so serious, an occasion
\narose for P.W.14 to inform the same to the Judicial Magistrate to  record  the
\nDying Declaration,  which was accordingly done.  From the evidence of Judicial
\nMagistrate, who recorded the Dying Declaration from P.W.1, it would  be  quite
\nevident that P.W.1 was conscious despite the said injuries caused on him.\n<\/p>\n
        9.   On  receipt  of  intimation,  P.W.15  proceeded  to the hospital,
\nrecorded the statement of P.W.1 marked Ex.P.1.  As pointed out  earlier,  even
\nin  Ex.P.1,  which  came into existence shortly, P.W.1 has narrated the entire
\nincident and named A1 to A4.  It is true that all the witnesses, examined  for
\nthe  purpose of proving the confessional statement made by the accused and the
\nrecovery of M.Os, have turned  hostile,  and  thus,  their  evidence  was  not
\nhelpful to  the prosecution.  This Court is of the considered view that though
\nthey have turned hostile and the prosecution cannot  take  their  evidence  to
\ntheir  advantage,  the  same would not in any way affect the prosecution case.
\nThe evidence of P.W.1 injured coupled with the evidence of  P.W.3,  eyewitness
\nand  fully  corroborated  by  the medical evidence through P.W.14 doctor, this
\nCourt is of the considered view that the accused along with others constituted
\ninto an unlawful assembly and came to the place of occurrence to attack P.W.1.
\nTaking into consideration the words uttered by them and the  attack  that  was
\nmade  by the accused on P.W.1, it could be easily deduced that their intention
\nwas to cause murder.  Under the stated circumstances, the contentions  of  the
\nappellants’  side  that  even  as  per  the  medical evidence except the first
\ninjury, all other injuries were simple and superficial and there is nothing to
\neven infer that they came to that place with an intention to cause murder  has
\ngot to  be  thoroughly  discountenanced.    This  court  is unable to find any
\nevidence to  connect  A5  to  the  crime  in  question.    Under  the   stated
\ncircumstances,   the   trial  court  was  perfectly  correct  in  finding  the
\nappellants\/A1 and A4 guilty under Sections 148<\/a> and 307<\/a> I.P.C.\n<\/p>\n
        10.  Coming to the question of sentence awarded to  A1  and  A4,  this
\nCourt  is  of  the  view  that  the  sentence awarded by the trial court under
\nSection 307<\/a> I.P.C.  to A1 and A4 has got to be reduced to seven  years,  which
\nwould meet  the ends of justice.  Therefore, Criminal Appeal No.850 of 2002 is
\npartly allowed.  Insofar as A5  is  concerned,  the  conviction  and  sentence
\nimposed  on  him  by the trial court under Sections 148<\/a> and 307<\/a> r\/w 149 I.P.C<\/a>.
\nare set aside and he is acquitted of all charges levelled against  him.    The
\nsentence of  10 years under Section 3<\/a> 07<\/a> I.P.C.  imposed by the trial court on
\nA1 and A4 is reduced to seven years.  In other  respect,  the  conviction  and
\nsentence imposed  by  the trial court on A1 and A4 are confirmed.  C.A.No.1199
\nof 2002 is dismissed with the above modification.  The  Sessions  Judge  shall
\ntake  steps to commit the Accused No.1 to prison, if he is on bail, to undergo
\nthe remaining period of sentence.  Bail bonds, if  any,  executed  by  Accused
\nNo.5  shall  stand  cancelled  and  the  fine  amounts,  if any paid, shall be
\nrefunded to the accused No.5.\n<\/p>\n
Index :  Yes
\nInternet :  Yes
\nvvk<\/p>\n
To\n<\/p>\n
1.  The Judicial Magistrate-I, Erode\n<\/p>\n
2.  The Judicial Magistrate-I, Erode
\nthrough The Chief Judicial Magistrate, Erode\n<\/p>\n
3.  The Addl.  Sessions Judge(Fast Track Court No.i),Erode\n<\/p>\n
4.  The Principal Sessions Judge, Erode\n<\/p>\n
5.  The Superintendent, Central Prison, Coimbatore\n<\/p>\n
6.  The Public Prosecutor, High Court, Madras\n<\/p>\n
7.  The Dy.  Inspector General of police, Chennai-4\n<\/p>\n
8.  Mr.V.Jaya Prakash Narayan,Govt.  Advocate(Crl.  side)
\nHigh Court, Madras\n<\/p>\n
9.  The Inspector of Police, Karungalpalayam Police Station
\nErode Town.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ananthipalayam Velupaiyan vs State on 11 July, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11\/07\/2003 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM CRL. APPEAL NO.850 of 2002 AND CRL. APPEAL NO.1199 OF 2002 1. Ananthipalayam Velupaiyan @ Velusamy 2. Kumar @ Muttaikannan .. Appellants in C.A.Nos.850\/2002 Shankar .. Appellant in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-270998","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAnanthipalayam Velupaiyan vs State on 11 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ananthipalayam-velupaiyan-vs-state-on-11-july-2003-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ananthipalayam Velupaiyan vs State on 11 July, 2003 - 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