Bass @ Jayabaskaran, S/O. Ganesan Vs. the State of Tamilnadu, Rep. by Inspector of Police - Court Judgment

Excerpt:
- orders. ashok kumar, j.1. the appellant, who is the sole accused in sessions case no. 468 of 2000 on the file of learned iv-additional sessions judge, madurai, has filed this appeal against the judgment, dated 26.9.2001, convicting him under section 341 and 302, i. p. c. and sentencing him to undergo one year rigorous imprisonment for the offence under section 341, ipc and also to undergo life imprisonment and to pay a fine of rs. 1000, in default to undergo rigorous imprisonment for one year for the offence under section 302, i. p. c.2. the brief facts of the prosecution case are as follows:(a) p.w.1 lakshmi is the mother of the deceased chandra and p.w.2 sasikumar is her brother. the deceased was deserted by her husband and living in the house of her mother p.w.1. the house of accused bass alias jayabaskaran is 100 ft. away from the house of p.w.1. there was a vacant sight between these two houses, which was used by the family of p.w.1. this has given rise to frequent quarrels between the family of the deceased and the accused.(b) on 2.11.1999, at about 8.00 p.m., p.w.1 asked the deceased to go to shop and purchase groundnut cakes for the cattle, for which she gave rs. 100 to her. p.w.2 was also present at that time. the deceased wanted to answer the call of nature (urinate) and thereafter to go to purchase groundnut cakes for the cattle. at that time, the accused went towards the site where the deceased was proceeding to answer the call of nature. both p.ws. l and 2 seen this. when chandra was coming near the house of the accused, the accused prevented her from moving further attempted to attack chandra, and she escaped and rushed towards the house of one sarala, to which place the accused chased her and when she fell down near the foot-steps of the house of sarala, the accused stabbed chandra with m.o.1, knife. the entire occurrence was witnessed by p.ws. l and 2. after the occurrence, the accused ran away from the scene of occurrence.(c) p.ws. l and 2 and some other persons took the injured chandra to 'akunthala clinic' and after examination, the doctor pronounced her as dead. thereafter, p.ws. l and 2 went to palamedu police station at about 8,45 p.m., where p.w.1 lodged ex. p-1 complaint with p.w. 13-sub-inspector of police. p.w. 13-sub-inspector of police, on the strength of ex. p-1 complaint, registered a case in crime no. 8 of 1999 and prepared ex. p-6 first information report and despatched the same to court. he also sent the copies of ex. p-6-fir to higher authorities.(d) p.w. 14-inspector of police, on receipt of copy of ex. p-6 fir, took up the investigation, visited the occurrence place at 10.00 p.m., made an observation and prepared ex. p-7 observation mahazar. he also drew ex. p-8 rough sketch. at 11.15 p.m., p.w.14 recovered m.0.6-bloodstained cement plaster and m.0. 7-sample cement plaster from the scene of occurrence under the cover of mahazar-9-mahazar. from 11.30 p.m. to next day morning 2.00 a.m., p.w.14 conducted inquest on the body of deceased chandra in the presence of panchayatdars and witnesses and prepared mahazar-10 inquest report. during the inquest, p.w.14 examined p.ws.l & 2, p.w.3-mohanraj, p.w.4 another mohanraj, p.w. 6-krishnamoorthy, p.w. 8-venkatesan and p.w.9-rajasekaran and recorded their statements. p.w.14 also recovered m.o.8 hundred rupee currency note from the her hip of the deceased, which, was kept by her putting a knot, under mahazar-11-mahazar in the presence of witnesses. thereafter, p.w.14 sent the body of the deceased for postmortem through p.w. 11-police constable 882 arumugam.(f) on 3.11.1999 at about 5.30 a.m., p.w. 14-inspector of police arrested the accused near pathirakaliamman theatre and recorded his statement and at 6.15 a.m., the accused voluntarily produced m.o.l-knife used by him at the time of occurrence from his waist and the same was recovered by p.w. 14 under ex. p-2 in the presence of witnesses.(g) p.w.15-dr.thiyagarajan, attached to madurai medical college hospital, on receipt of the request from p.w.14 for conducting postmortem on the body of deceased chandra, conducted autopsy on the body of the deceased at 10.45 a.m. on 03.11.1999 and found the following injuries on the body.'1. an transversely oblique stab wound at the back of left chest 10 cms. lateral to the midline at the 9th intercostal level measuring 4.5 x 3 cms. entering the abdominal cavity. both ends pointed. margins regular. on diossection, the wound passes obliquely upwards, forwards and medially piercing the underlying inter costal muscles, vessels, nerves 4.5 x 0.5 cm x through and through and entering into the left pleural cavity 150 ml of blood clots. peritoneal cavity contains 1200 ml of blood with clots.2. a transversely oblique incised wound 18 cms above the elbow joint on the inner aspect of the left upper arm 5 x 0.25 cm x skin deep with tailing of 1 cm outwards.3. a transversely oblique incised wound 10 cms. below the elbow joint 6 x 0.25 cm x skin deep with tailing of 1.25 cm outwards.4. a transversely oblique incised wound in the dorsal aspect of the base of middle of ring finger 3.5 cm x 0.25 cm x skin deep with tailing of 0.5 cm outwards.'on completion of the postmortem, p.w.15 opined in his ex. p-12 postmortem certificate that the deceased would appear to have died of shock and haemorrhage, due to external stab injury no. l and the corresponding internal injuries, 12-16 hours prior to postmortem. after postmortem, p.w. 11-constable arumugam recovered m.o.2-sari, m.o.3-green colour blouse and m.o.4-petticoat and m.o.5-nose stud from the body of the deceased and handed over the same to p.w. 14 inspector of police.(h) p.w.16-subbaraj, inspector of police, took up the further investigation. he examined p.w.7-vasantha and other witnesses and recorded their statements. he also examined p.w.15 postmortem doctor and recorded his statement. he completed the investigation and filed final report against the accused under sections 341 and 302, i.p.c.3. in the trial, p.ws.l to 16 were examined on behalf of the prosecution and exs. p-1 to p-12 as well as m.o.s.1 to 8 were marked on the side of the prosecution. exs. d-1 to d-7 were marked on the side of the accused and no witness was examined on behalf of him. when the accused was questioned under section 313 of criminal procedure code with regard to the incriminating circumstances, appearing in the evidence of prosecution witnesses, the accused has denied the same stating either as false or does not know. on considering oral and documentary evidence produced by the prosecution and as well as on the side of the defence, the learned trial judge found this, appellant guilty under. sections 341 and 302, i.p.c, convicted him thereunder and sentenced him to undergo the maximum punishment of life imprisonment. aggrieved over the. said conviction and sentence, this appeal has been filed by the sole accused.4. before this court, mr. a. r. l. sundaresan, learned counsel appearing for the appellant, would contend there is contradiction between the evidence of p. ws. l and 2 with that of ex. p-l -complaint and that the real culprit is the husband of the deceased, who deserted her wife but, unfortunately this innocent appellant has been fixed by the mother of the deceased. he further contended that p.ws.l and 2 could not have been the eye witnesses to the occurrence. per contra mr. k. radhakrishnan, learned additional public prosecutor, contended that p.ws.l and 2 are natural eye-witnesses, being the mother and brother of the deceased residing very near, to the place of the, occurrence and further the accused was arrested within ten hours from the time of occurrence and at the time of his arrest itself he has produced m.o. 1-knife used at the time of commission of the offence and ex. p-4-chemical examiner's report would show that the blood was found in m.o. 1 -knife and the group of blood found in m.o. 1 tallied with the blood group of the deceased as seen from ex. p.6 -serologist's report.5. we have given our anxious consideration to the contentions of the learned counsel for the appellant and the rival contentions put-forth by the learned additional public prosecutor for the state.6. the motive for the occurrence is said to be the dispute with regard to the use of a vacant site found in between the house of the accused and the deceased and because of that there were frequent quarrels between the two families. this motive for the occurrence has been mentioned in ex. p-1 complaint itself by p.w.1. apart from that, the accused is said to have mentioned at the time of occurrence 'unless you die, the quarrel will subsist ever between the two families'. there is no serious dispute on the part of the appellant with regard to the motive.7. p.w.1 is the mother of the deceased and p.w.2 is her brother. their house is nearer to the house of the accused and the occurrence had taken place just on the western side of the accused house, near the door steps of one sarala's house. according to p.w.1, she gave rs. 100 to the deceased to purchase groundnut cakes for the cattle and when the deceased went to answer the call of nature (urinate) before going to the shop, the accused followed her, prevented her from proceeding further, picked up a quarrel, chased her to the place of occurrence where the deceased had fallen down and thereafter the accused inflicted three injuries and out of which, injury no. l is fatal, which resulted in the death of the deceased even before she was admitted in a hospital by her mother and brother. though the occurrence is at 8.15 p.m. on 2.11.1999, within half-an-hour i.e. at 8.45 p.m. p.w.1 has lodged ex. p-1 complaint with p.w.13-sub-inspector of police, who in turn registered a case in crime no. 8 of 1999 and printed fir reached the court next day morning at about 6.15 a.m. the distance between the police station and the magistrate court is about 35 kilometres. therefore, we do not find that there is any delay either in lodging the complaint or the first information report reaching the court.8. the contention of the learned counsel for the appellant is that the deceased was deserted by her husband, who was living elsewhere and the occurrence has taken place about a furlong away from the place of occurrence in the night time and hence the husband might have committed the offence, but unfortunately p.w.1 has fixed this appellant due to previous enmity. in fact, during the cross examination, such a story was put-forth on behalf of the accused to p.w.1, but she has consistently denied this theory of the accused. according to p.w.1, the deceased was living separately with her for more than one yea. the husband of the deceased was working at pondicherry as a mechanic in tvs company and he has left the deceased in the house of p.w.1 one year earlier. there is no evidence to show that there were frequent quarrels between the deceased and her husband or the husband ever threatened to kill the deceased. if really the husband of the deceased caused injury on the deceased on the fateful night, p.w.1, the mother of the deceased, will not leave the real assailant and fix this accused falsely. on the other hand, she has categorically asserted that the husband of the deceased, who went to work at pondicherry, never returned. therefore, the contention of the learned counsel for the appellant that it was the husband of the deceased who caused the injury on the deceased is not sustainable.9. another important evidence is the circumstantial evidence. within ten hours from the time occurrence, the accused was arrested and at the time of arrest itself, the accused himself produced m.o.l-knife used for the commission of the offence and ex. p-4 -chemical analysis report and ex. p-5 serologist's report would show that m.o.1-knife contained human 'a' group blood, which tallied with the blood group of the deceased as seen from m.o.2-sari, m.o.3-blouse, m.o.4-petticoat, where the same group of blood was found. this important circumstantial evidence corroborates the ocular testimony of p.ws.l and 2.10. coming to the next contention of the learned counsel for the appellant that there are contradictions between the evidence of p.ws.l and 2 with that of complaint-1-complaint, in our opinion, they are minor in nature and do not in any way shake or cut through the root of the case of the prosecution that it was the accused who caused fatal injuries on the deceased on the fateful night and caused her death. therefore, this contention is also falls to ground.11. the learned counsel for the appellant lastly contended that the accused is only 24 years old and due to quarrel between the two families he got provoked, which resulted in the incident in which the deceased sustained' injuries. but, in our opinion, no case is made out to show that there was sudden provocation at the time of occurrence or sustained provocation for the occurrence. the frequent wordy quarrels over the land dispute are said to be the motive for the occurrence if such a frequent quarrels or motives are to be taken as a ground for sustained provocation, then in all cases such motives will have to be taken as a cause for sustained provocation and the sentences imposed have to be modified. hence, we do not find any reason to modify the offence from section 302, i.p.c. to any other offence.12. for all the reasons stated above, we are of the view that the trial court has correctly come to the conclusion that it is the appellant who committed the offence and it rightly convicted him under sections 341 and 302, i.p.c. and imposed the sentences thereunder. there is no reason at all to interfere with the conviction and sentence imposed by the trial court on the appellant. there are no merits in the appeal and it is liable to be dismissed.13. accordingly, this appeal is dismissed.

Judgment:
ORDER

S. Ashok Kumar, J.

1. The appellant, who is the sole accused in Sessions Case No. 468 of 2000 on the file of learned IV-Additional Sessions Judge, Madurai, has filed this appeal against the judgment, dated 26.9.2001, convicting him under Section 341 and 302, I. P. C. and sentencing him to undergo one year rigorous imprisonment for the offence under Section 341, IPC and also to undergo life imprisonment and to pay a fine of Rs. 1000, in default to undergo rigorous imprisonment for one year for the offence under Section 302, I. P. C.

2. The brief facts of the prosecution case are as follows:

(a) P.W.1 Lakshmi is the mother of the deceased Chandra and P.W.2 Sasikumar is her brother. The deceased was deserted by her husband and living in the house of her mother P.W.1. The house of accused Bass alias Jayabaskaran is 100 ft. away from the house of P.W.1. There was a vacant sight between these two houses, which was used by the family of P.W.1. This has given rise to frequent quarrels between the family of the deceased and the accused.

(b) On 2.11.1999, at about 8.00 p.m., P.W.1 asked the deceased to go to shop and purchase groundnut cakes for the cattle, for which she gave Rs. 100 to her. P.W.2 was also present at that time. The deceased wanted to answer the call of nature (urinate) and thereafter to go to purchase groundnut cakes for the cattle. At that time, the accused went towards the site where the deceased was proceeding to answer the call of nature. Both P.Ws. l and 2 seen this. When Chandra was coming near the house of the accused, the accused prevented her from moving further attempted to attack Chandra, and she escaped and rushed towards the house of one Sarala, to which place the accused chased her and when she fell down near the foot-steps of the house of Sarala, the accused stabbed Chandra with M.O.1, knife. The entire occurrence was witnessed by P.Ws. l and 2. After the occurrence, the accused ran away from the scene of occurrence.

(c) P.Ws. l and 2 and some other persons took the injured Chandra to 'akunthala Clinic' and after examination, the Doctor pronounced her as dead. Thereafter, P.Ws. l and 2 went to Palamedu Police Station at about 8,45 p.m., where P.W.1 lodged Ex. P-1 complaint with P.W. 13-Sub-Inspector of Police. P.W. 13-Sub-Inspector of Police, on the strength of Ex. P-1 complaint, registered a case in Crime No. 8 of 1999 and prepared Ex. P-6 First Information Report and despatched the same to Court. He also sent the copies of Ex. P-6-FIR to higher authorities.

(d) P.W. 14-Inspector of Police, on receipt of copy of Ex. P-6 FIR, took up the investigation, visited the occurrence place at 10.00 p.m., made an observation and prepared Ex. P-7 observation mahazar. He also drew Ex. P-8 rough sketch. At 11.15 p.m., P.W.14 recovered M.0.6-bloodstained cement plaster and M.0. 7-sample cement plaster from the scene of occurrence under the cover of Mahazar-9-mahazar. From 11.30 p.m. to next day morning 2.00 a.m., P.W.14 conducted inquest on the body of deceased Chandra in the presence of Panchayatdars and witnesses and prepared Mahazar-10 Inquest Report. During the inquest, P.W.14 examined P.Ws.l & 2, P.W.3-Mohanraj, P.W.4 another Mohanraj, P.W. 6-Krishnamoorthy, P.W. 8-Venkatesan and P.W.9-Rajasekaran and recorded their statements. P.W.14 also recovered M.O.8 hundred rupee currency note from the her hip of the deceased, which, was kept by her putting a knot, under Mahazar-11-mahazar in the presence of witnesses. Thereafter, P.W.14 sent the body of the deceased for postmortem through P.W. 11-Police Constable 882 Arumugam.

(f) On 3.11.1999 at about 5.30 a.m., P.W. 14-Inspector of Police arrested the accused near Pathirakaliamman Theatre and recorded his statement and at 6.15 a.m., the accused voluntarily produced M.O.l-knife used by him at the time of occurrence from his waist and the same was recovered by P.W. 14 under Ex. P-2 in the presence of witnesses.

(g) P.W.15-Dr.Thiyagarajan, attached to Madurai Medical College Hospital, on receipt of the request from P.W.14 for conducting postmortem on the body of deceased Chandra, conducted autopsy on the body of the deceased at 10.45 a.m. on 03.11.1999 and found the following injuries on the body.

'1. An transversely oblique stab wound at the back of left chest 10 cms. lateral to the midline at the 9th intercostal level measuring 4.5 x 3 cms. entering the abdominal cavity. Both ends pointed. Margins regular. On Diossection, the wound passes obliquely upwards, forwards and medially piercing the underlying inter costal muscles, vessels, nerves 4.5 x 0.5 cm x through and through and entering into the left pleural cavity 150 ml of blood clots. Peritoneal cavity contains 1200 ml of blood with clots.

2. A transversely oblique incised wound 18 cms above the elbow joint on the inner aspect of the left upper arm 5 x 0.25 cm x skin deep with tailing of 1 cm outwards.

3. A transversely oblique incised wound 10 cms. below the elbow joint 6 x 0.25 cm x skin deep with tailing of 1.25 cm outwards.

4. A transversely oblique incised wound in the dorsal aspect of the base of middle of ring finger 3.5 cm x 0.25 cm x skin deep with tailing of 0.5 cm outwards.'

On completion of the postmortem, P.W.15 opined in his Ex. P-12 postmortem certificate that the deceased would appear to have died of shock and haemorrhage, due to external stab injury No. l and the corresponding internal injuries, 12-16 hours prior to postmortem. After postmortem, P.W. 11-Constable Arumugam recovered M.O.2-Sari, M.O.3-green colour blouse and M.O.4-petticoat and M.O.5-nose stud from the body of the deceased and handed over the same to P.W. 14 Inspector of Police.

(h) P.W.16-Subbaraj, Inspector of Police, took up the further investigation. He examined P.W.7-Vasantha and other witnesses and recorded their statements. He also examined P.W.15 postmortem doctor and recorded his statement. He completed the investigation and filed final report against the accused under Sections 341 and 302, I.P.C.

3. In the trial, P.Ws.l to 16 were examined on behalf of the prosecution and Exs. P-1 to P-12 as well as M.O.s.1 to 8 were marked on the side of the prosecution. Exs. D-1 to D-7 were marked on the side of the accused and no witness was examined on behalf of him. When the accused was questioned under Section 313 of Criminal Procedure Code with regard to the incriminating circumstances, appearing in the evidence of prosecution witnesses, the accused has denied the same stating either as false or does not know. On considering oral and documentary evidence produced by the prosecution and as well as on the side of the defence, the learned trial judge found this, appellant guilty under. Sections 341 and 302, I.P.C, convicted him thereunder and sentenced him to undergo the maximum punishment of life imprisonment. Aggrieved over the. said conviction and sentence, this appeal has been filed by the sole accused.

4. Before this Court, Mr. A. R. L. Sundaresan, learned counsel appearing for the appellant, would contend there is contradiction between the evidence of P. Ws. l and 2 with that of Ex. P-l -complaint and that the real culprit is the husband of the deceased, who deserted her wife but, unfortunately this innocent appellant has been fixed by the mother of the deceased. He further contended that P.Ws.l and 2 could not have been the eye witnesses to the occurrence. Per contra Mr. K. Radhakrishnan, learned Additional Public Prosecutor, contended that P.Ws.l and 2 are natural eye-witnesses, being the mother and brother of the deceased residing very near, to the place of the, occurrence and further the accused was arrested within ten hours from the time of occurrence and at the time of his arrest itself he has produced M.O. 1-knife used at the time of commission of the offence and Ex. P-4-chemical examiner's report would show that the blood was found in M.O. 1 -knife and the group of blood found in M.O. 1 tallied with the blood group of the deceased as seen from Ex. P.6 -serologist's report.

5. We have given our anxious consideration to the contentions of the learned counsel for the appellant and the rival contentions put-forth by the learned Additional Public Prosecutor for the State.

6. The motive for the occurrence is said to be the dispute with regard to the use of a vacant site found in between the house of the accused and the deceased and because of that there were frequent quarrels between the two families. This motive for the occurrence has been mentioned in Ex. P-1 complaint itself by P.W.1. Apart from that, the accused is said to have mentioned at the time of occurrence 'unless you die, the quarrel will subsist ever between the two families'. There is no serious dispute on the part of the appellant with regard to the motive.

7. P.W.1 is the mother of the deceased and P.W.2 is her brother. Their house is nearer to the house of the accused and the occurrence had taken place just on the western side of the accused house, near the door steps of one Sarala's house. According to P.W.1, she gave Rs. 100 to the deceased to purchase groundnut cakes for the cattle and when the deceased went to answer the call of nature (urinate) before going to the shop, the accused followed her, prevented her from proceeding further, picked up a quarrel, chased her to the place of occurrence where the deceased had fallen down and thereafter the accused inflicted three injuries and out of which, injury No. l is fatal, which resulted in the death of the deceased even before she was admitted in a hospital by her mother and brother. Though the occurrence is at 8.15 p.m. on 2.11.1999, within half-an-hour i.e. at 8.45 p.m. P.W.1 has lodged Ex. P-1 complaint with P.W.13-Sub-Inspector of Police, who in turn registered a case in Crime No. 8 of 1999 and printed FIR reached the Court next day morning at about 6.15 a.m. The distance between the police station and the Magistrate Court is about 35 kilometres. Therefore, we do not find that there is any delay either in lodging the complaint or the First Information Report reaching the Court.

8. The contention of the learned counsel for the appellant is that the deceased was deserted by her husband, who was living elsewhere and the occurrence has taken place about a furlong away from the place of occurrence in the night time and hence the husband might have committed the offence, but unfortunately P.W.1 has fixed this appellant due to previous enmity. In fact, during the cross examination, such a story was put-forth on behalf of the accused to P.W.1, but she has consistently denied this theory of the accused. According to P.W.1, the deceased was living separately with her for more than one yea. The husband of the deceased was working at Pondicherry as a Mechanic in TVS Company and he has left the deceased in the house of P.W.1 one year earlier. There is no evidence to show that there were frequent quarrels between the deceased and her husband or the husband ever threatened to kill the deceased. If really the husband of the deceased caused injury on the deceased on the fateful night, P.W.1, the mother of the deceased, will not leave the real assailant and fix this accused falsely. On the other hand, she has categorically asserted that the husband of the deceased, who went to work at Pondicherry, never returned. Therefore, the contention of the learned counsel for the appellant that it was the husband of the deceased who caused the injury on the deceased is not sustainable.

9. Another important evidence is the circumstantial evidence. Within ten hours from the time occurrence, the accused was arrested and at the time of arrest itself, the accused himself produced M.O.l-knife used for the commission of the offence and Ex. P-4 -Chemical Analysis Report and Ex. P-5 Serologist's report would show that M.O.1-knife contained Human 'A' Group Blood, which tallied with the blood group of the deceased as seen from M.O.2-Sari, M.O.3-blouse, M.O.4-petticoat, where the same group of blood was found. This important circumstantial evidence corroborates the ocular testimony of P.Ws.l and 2.

10. Coming to the next contention of the learned counsel for the appellant that there are contradictions between the evidence of P.Ws.l and 2 with that of Complaint-1-Complaint, in our opinion, they are minor in nature and do not in any way shake or cut through the root of the case of the prosecution that it was the accused who caused fatal injuries on the deceased on the fateful night and caused her death. Therefore, this contention is also falls to ground.

11. The learned counsel for the appellant lastly contended that the accused is only 24 years old and due to quarrel between the two families he got provoked, which resulted in the incident in which the deceased sustained' injuries. But, in our opinion, no case is made out to show that there was sudden provocation at the time of occurrence or sustained provocation for the occurrence. The frequent wordy quarrels over the land dispute are said to be the motive for the occurrence if such a frequent quarrels or motives are to be taken as a ground for sustained provocation, then in all cases such motives will have to be taken as a cause for sustained provocation and the sentences imposed have to be modified. Hence, we do not find any reason to modify the offence from Section 302, I.P.C. to any other offence.

12. For all the reasons stated above, we are of the view that the trial Court has correctly come to the conclusion that it is the appellant who committed the offence and it rightly convicted him under Sections 341 and 302, I.P.C. and imposed the sentences thereunder. There is no reason at all to interfere with the conviction and sentence imposed by the trial Court on the appellant. There are no merits in the appeal and it is liable to be dismissed.

13. Accordingly, this appeal is dismissed.