BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/02/2005 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR CRIMINAL APPEAL No.109 of 2002 Bass alias Jayabaskaran, S/o.Ganesan. ... Appellant/ Accused vs. The State of Tamilnadu, Rep.by Inspector of Police, Alanganallur Police Station, Madurai District. Crime No.8 of 1999 ... Respondent/ Respondent Appeal under Section 374(2) of Criminal Procedure Code against the judgment of the IV-Additional District and Sessions Judge (PCR), Madurai, made in S.C.No.468 of 2000, dated 26.09.2001. !For Appellant .. Mr.AR.L.Sundaresan ^For Respondent .. Mr.K.Radhakrishnan, Additional Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by S.ASHOK KUMAR,J)
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 26.09.2001, 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 02.11.1999, 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.1 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.1 and 2. After
the occurrence, the accused ran away from the scene of occurrence.
(c)P.Ws.1 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.1 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.O.6 bloodstained cement plaster
and M.O.7 sample cement plaster from the scene of occurrence under the cover of
Ex.P-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 Ex.P-10 Inquest Report. During the
inquest, P.W.14 examined P.Ws.1 & 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 Ex.P-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 03.11.1999 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.1 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 l8 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 1.25cm 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.1 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.1 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.AR.L.Sundaresan, learned counsel appearing
for the appellant, would contend there is contradiction between the evidence of
P.Ws.1 and 2 with that of Ex.P-1 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.1 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.1 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.1 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 02.11.1999,
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
unfortunatelyP.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 Pondincherry 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.1 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.1 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.1 and 2
with that of Ex.P-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.
To:
1.The IV-Additional Sessions Judge,
Madurai.
2.The Inspector of Police,
Alanganallur Police Station,
Madurai District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.