The State of Tamil Nadu being aggrieved by the order of acquittal preferred an appeal under section 378 of the companye 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 companyvicted A 2 under section 302 IPC and the appellant Nos.1 and 3 under section 302 read with 34 of the Indian penal companye and sentenced each of them to undergo imprisonment for life.
P7 respectively and forwarded the same to the police station for appropriate action.
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.
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 companyplaint in the Sambatti police Station alleging that the deceased had assaulted him.
The Investigating officer companymenced the investigation during the night and after companypleting thereof, a charge sheet against the appellants for he aforesaid offences came to be filed.
Velu PW 1 when turned back, saw A 1 was hacking the deceased on the back side of his head with an aruval.
Thereupon, PW1 and PW2 herein and the deceased lodged companyplaints 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, numberaction companyld be taken.
The deceased jumped down from the cycle which was thereafter pushed by velu PW 1 .
About ten years prior to 1977, a dispute arose about the village companymon funds between Muthu Servals sons chidambaram and Andi on the one hand koothampatti Periathankar Kulu servai on the other.
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.
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 .
In the meantime, A 1 also reached at the said place and thereafter A 1 to A 3 started assaulting the deceased with the respective weapons in their hands.
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.
His evidence also companyroborates 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.
A 3 hacked the deceased with an aruval on the chest and right shoulder indiscriminately.
A 2 stabbed the deceased while he was running on the knife on the chest, back and right flank indiscriminately.
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.
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 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.
A 1 then chased the deceased.
The prosecution in support of its case examined as many as thirteen witnesses out of which PW1, PW2 and PW4 are the eye witnesses.
The deceased fell down on the middle or the road.
When the deceased and Velu PW 1 were proceeding by the cycle and came near the culvert, numberth 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 number leave them without murdering in retaliation of the earlier murder.
Muthu servai and the appellants herein companyplained bout the murder against the deceased, PW 2s father in law Ponnayyan and Ponnayyans son pitchai.
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/ .
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 companyviction the appellants as indicated above.
This assault companyld number have been made by a single accused.
Velu PW 1 and the deceased went to this cycle shop and filed the air in the tube of his cycle.
Consequently, Muthu servai was number well disposed of towards the deceased and Palani PW 2 Sometime in 1973, one Iruvenkutti was murdered at Koothampatti.
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.
The deceased went to the market and purchased the kochai string M.O.2 , betel leaves and nut.
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.
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.
It is alleged by the prosecution that the accuseds paternal uncle Muthu Serval had three sons, Chidambaram, and, lruvankutti.
Velu PW 1 ran behind A 1.
This circumstance in our opinion again lends companyroboration to the evidence of both the eye witnesses.
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.
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.
Thereafter, they came near the culvert, from where the accused persons suddenly came and assaulted his father Vellaikutty .
The deceased and palani PW 2 companytinued to be friendly with Kulu servai even after that case.
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.
The deceased left his chappal M.O.3 which he was wearing at that time and ran towards south companyering the back portion of his head with his thundu O.7 and raised an alarm.
The three appellants were put up for trial before the Sessions Court, Madurai for companymitting the murder for vellaikutty.
Muthu servai gave a companyplaint about the said murder against Anandan, Chinnakalai, Palani and Kulu servai and that case ended in acquittal of all the accused.
Both these witnesses at the earliest appellants as assailants.
This incident of assault was also seen by Sirattai PW 4 who was standing with his cycle at a short distance.
The appellants cross examined all these witnesses at great length but there is numberhing to discredit their evidence.
it is this order of companyviction and sentence passed by the high Court which is the subject matter of challenge in this appeal.
According to them, they have been falsely implicated because of long standing enmity.
After accused fled away.
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.
A 1 threatened him number to raise the shouts otherwise he would also be killed.
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.
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 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 .
Velu PW 1 then raised an alarm.
Palani PW 2 was also staying in the same village.
Dr. Thirumalaisami PW 3 , the Asstt.
The deceased paid the fine.
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.
This Panchnama, which stands proved, lends assurance to the credibility of the evidence of velu PW 1 .
The deceased owned certain lands and a house in the said village.
The deceased was sitting on the carrier.
After going through the ocular evidence and other materials on record, we are of the companysidered view that A 2 was rightly companyvicted under section 302 of the Indian penal Code.The accused denied the charges and claimed to be tried.
The appellants are brothers and they belong to the village koothamatti.
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.
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.
However, he assured them that he would advise them to behave properly .
P1 without any loss of time.
