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In Re: Shamarao Bhairu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1961CriLJ253
AppellantIn Re: Shamarao Bhairu
Excerpt:
.....issued to achieve a perspective distributive strategy. - 2 went back to the house and complained to her father-in-law, the deceased; at best, exhibit 10-a is only a counter-complaint and that it gives the accused's version of the incident. we see no good reason why it cannot be admitted in evidence to show the conduct of the i accused. again the statement of an accused person is at best a self-serving one; the case is quite different when a weapon like a sword is used in order to chop off or to hack at a limb. the offence is clearly one of murder. in the opinion of their lordships, in order to find out the intention of the accused what is material is not merely the seat of the injury but also the weapon used, as well as the actual injury caused......case, the accused in the course of his statement under section 342 cri. p.c. has treated his complaint exhibit 10-a as a part of his statement. therefore, it is unnecessary to consider the admissibility of exhibit 10-a. but sri motiah says that if, we are taking into consideration the statement of the accused made under section 342 cr. p.c., we must take the statement as a whole and not merely refer to the portion relating to exhibit 10-a.as an abstract proposition of law this contention is unexceptionable. but that statement it-self shows that at the earliest stage the accused did not put forward the present version. in other words. it shows that his present version is an afterthought. the versions are available from his statement in court. again the statement of an accused person.....
Judgment:

K.S. Hegde, J.

1. The appellant Shyama Rao was convicted under Section 302, I, P. G. for the murder of his father Ghairu on the morning of 13-1-1959 at Khemanna's land, in Sessions Case No. 24 of 1959 on the file of the learned Sessions Judge, Belgaum, and sentenced to suffer imprisonment for life. Aggrieved by that order, he has come up in appeal to this Court.

2. Briefly stated, the prosecution case is that there was enmity between the appellant and his father Khairu; the appellant was the eldest son of deceased Bhairu, who had two other sons named Devappa and Parashuram; about three years prior to the 00-currence there was a partition in the family of deceased Bhairu; thereafter, the appellant and Devappa lived together in a separate house while the deceased and his youngest son Parashuram lived together in another house; Devappa died several months before the occurrence; thereafter, his wife P. W. 3 Gangubai was unable to live with the appellant due to constant quarrels between the two; she left the appellant and began to live in the Rouse of deceased Bhairu.

Some time before this occurrence, it is said that Parashuram had cut the leg of the appellant and in that connection there was a case pending against Parashuram. It is unnecessary to dwell at length on the several episodes evidencing the strained relationship between the appellant on one side and the deceased, P. W. 2 and Parashuram on the other. Enmity between them is admitted. The further case of the Prosecution is that on the early morning of 13-1-1959, P. W. 2 Gangubai had been to her field known as 'Sunagar Set' to harvest the pea crop; very soon after, the appellant, his wife and some coolies came to that field; the appellant obstructed P. W. 2 from harvesting the crop.

He claimed the same as his; in that connection there was exchange of abuses between the appellant and P. W. 2; then the appellant assaulted P. W. 2; therefore, P. W. 2 went back to the house and complained to her father-in-law, the deceased; thereafter, the deceased and P, W, 2 proceeded to the field in question; when they were going in the pathway known as 'Mullyachi Wat' in Khemanna's land they found the appellant coming from the opposite direction; at that time, the deceased questioned the appellant about his misbehaviour towards P. W. 2; irritated by the intervention of the deceased, the appellant first assaulted the deceased with a stick which was in his hand; on receiving those blows the deceased fell down and cried out that he was dead; the appellant then told the deceased that he was not still dead and so saying cut him on the muscles of the left leg, as a result of which the deceased instantaneouslyy died. This in short is the prosecution case,

3. There is no dispute that the deceased sustained injuries at the place and at the time mentioned in the charge and that he died instantaneously after receiving the injuries in question. The version of the accused meets the prosecution case ha way. Therefore, we may notice the same at the stage itself. But before doing so one more face needs to be mentioned. Immediately after the oc current which took place at about 8 or 8-30 a. m the appellant had proceeded to Wadagaon Police Station and laid a complaint which is marked a Exhibit 10-A in this case. There is some control versy about the admissibility of this complaint which we shall refer a little later. We may now proceed to notice the version of the accused a mentioned by him during his statement under Section lion 342 Cr. P.C. This is what he says:

On that day morning I had gone to Sunga Shet after ray wife and two-three women had gone there for removing pea crop. Gangubai P W. 2 was also present inSunagar Shet, She had brought four women from Macche which is her Parents place for removing pea crop. While the peacrol was being removed, Gangubai drove Out our women Gangubai abused our women who had been brought there for removing Pea crop and said that the lane was of her husband Devappa. I did not abuse Gangubai, nor did I beat her with a stick.

My father and Gangubai. came from the side of the village in Khemanna's land. I was proceeding towards the village from Sunagar-Sheet. We all met on the foot-Path in the Gada of Khemanna. My father abused me and said:

'You Bhadya, although your leg is broken, your arrogance has not yet vanished.' So saving he gave me a blow on my head with his stick. Thereupon I fell on the ground unconscious. After I fell on the ground Gangubai gave me two blows with a stick on my left wrist. My father covered my body. Gangubai had a scythe and she wanted to strike me with it. The blow missed me and fell on the leg of my father. I had a crutch with me.I picked it up and proceeded towards the village fearing that I would be beaten further. Subsequently I went to Wadgaon Police Station and lodged my complaint Ex. 10-A. I have read Exhibit 10-A in Court. It is correct. It bears my signature. The Police took another signature of mine. But they did not tell me to approach the concerned Magistrate.

4. From this statement it is clear that even according to the accused the occurrence took place at about 8 or 8-30 a. m. in Khemanna's land. He also admits that the deceased died as a result of the cut injuries received by him. Hence, the only question that falls for determination is as to who cut him? In view of the narrow compass within which the controversy lay in this case it was wholly unnecessary for the trial Court to have gone into the question about the truth of the partition alleged to have taken place between the deceased and his sons and the further question whether P. W. 2 was the wedded wife of Devappa or not. The only relevant point as mentioned above it whether the prosecution has satisfactorily proved that the accused caused the injuries which resulted in the death of the deceased.

5. Before we consider the evidence relating to the occurrence we may deal with the question of law raised by SriCB. Motiah, the learned Counsel for the appellant as regards the admissibility of Exhibit 10-A. His contention is that Exhibit 10-A was the first information given in the Case by the accused, and he having been subsequently treated as the accused in the case, the information given by him has become inadmissible in law. In support of this contention, he relies on the decision of the Supreme Court in Nisar Ali v. State of Uttar Pradesh, (S) : 1957CriLJ550 ,

In that case, their Lordships laid down that the first information given in a case is not substantive piece of evidence and can be only used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under Section 145 of that Act; it cannot be used as evidence against the maker at the trial if he him-self becomes an accused in order to corroborate or contradict other witnesses.

The decision, as we understand it, lays down that if an investigation starts on the basis of the complaint given by a person who later becomes the accused in the case, that information cannot be used for any purpose. We do not think that the rule laid therein has any application to the facts of the present case. In the instant case, the accused did not lay any complaint in connection with the murder of the deceased. In fact, Exhibit 10-A does not mention that the deceased was even injured. That complaint relates to the alleged beating given to the accused by the deceased and P. W. 2.

The Police did not take cognizance of that complaint as it disclosed only a non-cognizable offence. The investigation in the present case did not and in fact, could not, commence on the basis of Exhibit 10-A. At best, Exhibit 10-A is only a counter-complaint and that it gives the accused's version of the incident. To such a case, the rule I laid down in Nisar Ali's case (S) : 1957CriLJ550 , in our opinion, is wholly inapplicable. The statement in Exhibit 10-A is not hit by Section 24 of the Evidence Act nor can it be brought, as shown above, under Section 154 Cr. P.C. for the purpose of the present case.

We see no good reason why it cannot be admitted in evidence to show the conduct of the I accused. Further in this Particular case, the accused in the course of his statement under Section 342 Cri. P.C. has treated his complaint exhibit 10-A as a part of his statement. Therefore, it is unnecessary to consider the admissibility of Exhibit 10-A. But Sri Motiah says that if, we are taking into consideration the statement of the accused made under Section 342 Cr. P.C., we must take the statement as a whole and not merely refer to the portion relating to Exhibit 10-A.

As an abstract proposition of law this contention is unexceptionable. But that statement it-self shows that at the earliest stage the accused did not put forward the present version. In other words. It shows that his present version is an afterthought. The versions are available from his statement in Court. Again the statement of an accused person is at best a self-serving one; it cannot have the same value as the evidence adduced in Court and subjected to cross-examination, It may be that in some circumstances it will assume importance because of the Probabilities of the case or because of other admitted or proved circumstances in the case. Such is not the case here. His Lordship then discussed the evidence and came to the conclusion that the accused cut the deceased as the probabilities of the case were strongly in favour of that conclusion.

6. The last point urged is the one relating to the true nature of the offence committed. It was urged by Mr. Motiah that on the proved facts in this case, the offence committed by the accused, if any, either falls under Section 326 I.P.C., or, at the most under the second part of Section 304 I.P.C. In support of that contention, he laid stress on the fact that the P. Ws. have spoken to only one cut, though according to medical evidence there were two injuries.

He also relied on the further fact that the-injuries in question were caused on the calf-muscle of the leg which, according to him, is not a vital part. In this connection he sought support from the decision of the Madras High Court in Re: Kottemgodan Alavi AIR 1939 Mad 269. It is the decision of a single Judge. The learned Judge held that the forearm not being a vital part, a stab with, a knife on the fore-arm which results in the death of the victim by haemorrhage does not amount to murder or culpable homicide not amounting 'to murder, but amounts to causing grievous, hurt with a deadly weapon.

From the discussion in the judgment we are not able to find out the ratio of that decision. Even the full facts of that case are not available. On the other hand, Sri Keshava Iyengar, the learned Government Pleader, has brought to our notice the the decision of the same High Court in Public Prosecutor v. Ramaswami Nadar AIR 1940 Mad 745. We may incidentally mention that the decision in Kottengodan Alavi'scase AIR 1939 Mad 269, was given by Lakshmana Rao, J., and the same learned Judge was a party to the decision in Ramaswamy Nadar's case. AIR 1940 Mad 745. In that case, the Bench laid down that:

An ordinary Person is not presumed to know the precise location of the arteries: in the human: limbs, if a stab with a knife or a dagger, aimed at an arm or a leg, severs an artery and the injured man dies as a result, it may be quite reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be Presumed to have intended to cause hurt, or grievous hurt. with a dangerous weapon. The case is quite different when a weapon like a sword is used in order to chop off or to hack at a limb. The person who uses a sword or arrival, chopping at an arm or a leg and by so doing severs the arteries of the arm or the leg, must know that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death. The offence is clearly one of murder.

In the opinion of their Lordships, in order to find out the intention of the accused what is material is not merely the seat of the injury but also the weapon used, as well as the actual injury caused. We do not think we need go deeper into-that controversy in view of the decision of the Supreme Court in Virsa Singh v. State of Punjab : 1958CriLJ818 .

That decision lays down that if it is Proved that a particular injury was deliberately caused and that injury is sufficient in the ordinary course of nature to cause death, then the accused must be presumed to have in tended, to cause such injury as is sufficient to cause death. Applying these principles to the facts of the present case, the accused must be Presumed to have intended to cause the injuries which, in fact, he had caused. According to medical opinion, those injuries were sufficient in the ordinary course of nature to cause death. Hence, he must be held to be guilty of murder.

7. In the result, the appeal fails and the same is dismissed.


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