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Damisetti Subbanna Vs. the State of A.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ1242
AppellantDamisetti Subbanna
RespondentThe State of A.P.
Excerpt:
.....well settled that when an accused intentionally causes an injury which results in the death of the deceased, the action of the accused amounts to murder if the intentionally inflicted injury is sufficient in the ordinary course of nature to cause death......where an accused persons is being tried for causing the death, of a deceased by causing an injury sufficient in the ordinary course of nature to cause death it is but proper and fair for the public prosecutor to elicit from the medical witness whether or not the injury in question is sufficient in the ordinary course of nature to cause death. further whenever all the facts necessary for a proper determination of the points in issue have not been elicited inadvertently or otherwise by the public prosecutor or the defence counsel, it behoves the judge to exercise his power under section 165 of the indian evidence act and get elucidated what is left obscure or unintelligible.15. in the result, the conviction and sentence awarded to the appellant by the lower court are confirmed and.....
Judgment:

S. Madhusudan Rao, J.

1. This appeal is by the sole accused in Sessions Case No. 83 of 1973 on the file of the Sessions Division Cuddapah against his conviction Under Section 302, Indian Penal Code and sentence of imprisonment for life. The deceased in the case is one Balisetti Pullayya of Sarvayapalle Kothapalle village in Prodduturu taluk of Cuddapah District. The accused also is a resident of the same village,

2. The case of the prosecution is: 'The accused was now and then being employed by the deceased for cooly work. The deceased was obliging the accused sometimes by supplying him grains in advance whenever the accused was in need and adjusting the advance towards the subsequent wages of the accused, On 25-8-1973 the accused approached the deceased at about 10 a.m. and requested him to advance him a measure of sojja. The deceased gave a currency note of Rs. 10/- to the accused and asked him to bring change for the same. The accused went to the arrack shop of P.W. 9 and exchange the ten rupee note for two currency notes of Rs. 5/- each. As one of the two notes was soiled, the deceased gave it to the accused and asked him to get a good one. The accused thereupon went with the soiled note to the shop of P.W. 9 and requested him for a good note. P.W. 9 did not have another five rupees note with him. He had only two currency notes of Re, l/_ each. The accused gave the soiled note to P.W. 9 and consumed arrack costing Rs. 3/-. Taking the balance of Rs. 2/- from P.W. 9 he went away to his house. As the accused did not return even by 4 P. M. the deceased went to the house of the accused and called him to his (deceased's) house. On enquiry by the deceased about the exchange of the soiled five rupee note, the accused stated that he spent Rs. 3/- and that he was having only Rs. 2/- with him. Receiving the amount of Rs. 2/- the deceased detained the accused in his house saying that he would not release him unless the balance amount of Rs. 3/- was paid. While the accused was thus detained at the house of the deceased P.W. 10 and two others interested in the accused came to the place and paid to the deceased the required amount of Rs. 3/-. The accused was thereupon released by the deceased.

3. On the next day i.e., on 26-8-1975 the deceased left his house at about 10 a. m. for Mydukur to get oil-cake. He took with him some ghee in an alluminium cup (M. O. 2) for presentation to his doctor (P.W. 8). He had also taken with him the bag (M. O. 1) for the oil-cake and the head of an axe (M, O. 3) for getting its blade sharpened. Reaching Mydukur at obout 11 a. m. he met his doctor (P.W. 8) and gave him the ghee contained in (M. O. 2). Later by about 12 noon he went to a backsmith (P.W. 1) and got M. O. 3 sharpened. By about 2 p. m. the deceased went to the shop of P.W. 1 for purchasing oil-cake. The clerk of P.W. 1 (P.W. 2) was also in the shop at that time. The deceased requested P.W. 1 to give him 5 kgs. of ground-nut oilcake on credit promising to pay the amount the next day. P.W. 1 instructed his clerk (P.W. 2) to supply the cake to the deceased. P.W. 2 weighed the cake and give the same to the deceased who collected the cake into his bag (M. O. 1), When the deceased bent down to pick up to bag of oil-cake, the accused suddenly came there and stabbed the deceased with a dagger (M. O. 4) on the back. Soon after stabbing, the accused removed the dagger and ran along the Cuddapah-Nandyal road towards Nandyal. The deceased chased the accused raising cries for a short distance but collapsed after crossing the traffic point near the shop of Kota Ellalu. P.Ws. 1 and 2 rushed to the place where the deceased fell down. The deceased was gasping for breath. One G. Subbarayudu (P.W. 3) who has his house close to the traffic point and who saw the accused running away with a dagger in his hand, rushed to the deceased. Finding the deceased gasping for breath, he brought water and gave the same to the deceased. After drinking some water, the deceased died.

4. P.W. 4 who is working as a writer in the office of the Inspector of Police, Mydukur and P.W. 5 who is working as a Typist in the same office left their office at about 2-30 p.m. for their lunch. When they reached the traffic point near the Nandyal road, they found the accused running away with a blood-stained dagger (M. O. 4). They chased the accused and caught him near the rice mill of Chandrayudu Setti. They took the accused to the police station and handed him over to the head-constable (P.W. 15). By this time i.e., at about 2-49 p. m. P.W. 1 already came to the police station with P.W. 2 and gave a report under Ex. P-1 to P.W. 16, the officer-in-charge of the police station. On the instructions of P.W. 16 the head-constable (P.W. 15) seized the dagger (M. O. 4). He has also seized the bloodstained dhoti of the accused (M.O. 5). After registering a case, P.W. 16 investigated into the case. Inspecting the scene of occurrence, he found blood on the stone slabs (M. O. 12) in front of the shop of P.W. 1. He held inquest over the dead body of the deceased from 4-30 p. m. to 7 p. m. During the inquest he examined P.Ws. 1 to 5 and the widow of the deceased (P.W. 6). After the inquest he sent the dead body for postmortem examination.

5. The Medical Officer, Proddutur hospital (P.W. 11) who conducted the autopsy found the following injuries on the dead body.

(1) An incised injury on the right infra scapular region 4' from the midline of 2' X 1/2' X chest cavity, On dis-section the injury was coursing forwards fractured the 7th rib entered the chest cavity penetrated right lower of lung through and through of 2' X 1/2' . Right plueral cavity contained 4 Ozs. of free blood and blood clots.

(2) An abrasion on the lateral aspect of right loin transversely present of size 6' X 1/4'.

He pointed that the deceased died of shock and haemorrhage due to the injury to the lung and that the injury No. 1 might have been caused with a weapon like M, O. 4. The Inspector of Police, Mydukur (P.W. 17) took over investigation from P.W. 16 and after completing the investigation, filed a charge sheet against the accused.

6. The accused admitted the incident said to have taken place on the day before the date of occurrence. He pleaded that on the date of occurrence at about the time alleged by the prosecution he was proceeding to the shop of P.W. 1 and when he reached the canal in front of P.W. 1's shop the deceased saw him and started shouting at him. The deceased rushed towards him whipping out a dagger from his waist and tried to stab him. He struggled with the deceased and during the course of struggle, the dagger fell down. When the deceased bent down to pick up the dagger, he kicked away the dagger to a side, The deceased thereupon caught hold of his testicles. Apprehending that he might be killed, the accused picked up the dagger and stabbed the deceased once. The incident was witnessed by some of the customers at P.W. 1's shop. After stabbing the deceased he ran to the police station and reported the matter to the police. The accused did not examine any witnesses on his behalf.

7. On a consideration of the entire evidence and the contentions raised on behalf of the prosecution and the accused, the learned Additional Sessions Judge, disbelieved the plea of the accused and accepting the case of the prosecution, convicted and sentenced the accused for the murder of the deceased.

8. In this appeal, Sri N. Hari-seshareddi, the learned Counsel for the appellant contends that the evidence adduced by the prosecution does not preclude the possibility of the plea of the accused being true and that even if the case of the prosecution is accepted the conviction of the accused under Section. 302, Indian Penal Code is unsustainable.

9. It is not denied that the accused stabbed the deceased with the dagger (M. O. 4) at about 2-15 P. M. on 26-8-1973 at the shop of P.W. 1. According to the accused, the dagger belonged to the deceased and he stabbed the deceased in the exercise of right of private defence while the deceased was squeezing his testicles and thus caused apprehension of death. There is not even a fraction or farthing of evidence in support of the accused's plea of private defence. In the light of the admission of the accused as also the bloodstains on the stone slabs: (M. O. 12) in front of the shop of P.W. 1 there cannot be any doubt that P.W. 1 the owner of the shop and P.W. 2, the salesman at the shop, are the most natural witnesses to the incident. Neither of them is interested in the deceased nor has any ill-will or animosity towards the accused. The evidence of both these witnesses clearly shows that the plea of the accused is a belated afterthought invented only after all the witnesses for the prosecution have been examined before the Sessions Court. It was not even suggested to P.W. 1 or P.W. 2 that the deceased attempted to stab the accused or that he squeezed the testicles of the accused and that thereupon the accused stabbed the deceased. It is clear from the evidence of the deceased's widow (P.W. 6) the shop owner (P.W. 1) the salesman (P.W. 2) the blacksmith (P.W. 7) and the head-constables (P. Ws. 15 and 16) as also its seizure soon after the occurrence, that the deceased took with him the axe (M. O. 3) from his village to Mydukur and actually got it sharpened by P.W. 7 before he went to the shop of P.W. 1. Being in possession of a sharpened axe-head, there was no need for the deceased to be further armed with the dagger (M. O. 4), No doubt as contended by Sri Hari Seshareddi, it is not necessary for an accused to prove by positive evidence that he acted in the exercise of right of private defence but an accused cannot escape the liability for his assault merely by asserting that he exercised right of private defence. There should be some evidence direct or indirect, indicating either positively or showing at least the reasonable possibility of right of private defence having been exercised by the accused. A bald assertion of the exercise of right of private defence without anything more cannot deflect the scale against the prosecution if the evidence adduced by the prosecution satisfactorily establishes that the accused has deliberately and wilfully caused injuries without any excuse. The direct evidence of P.Ws. 1 and 2 is corroborated by P.Ws. 3, 4 and 5 who speak to the running away of the accused from the scene of occurrence with the dagger in his hand. P.W. 3 is a student of the 9th class. He has his house close to the traffic point on the Nandyal road. He says that about 2-30 P. M. on hearing the cries 'catch, catch', he came out of his house and saw the accused running with a dagger in his hand and the deceased chasing the accused. P.Ws. 4 and 5 stated that they caught the accused while he was running away with the blood-stained dagger (M. O. 4) in his hand and that they straightway took the accused to the police station which was nearby and handed him over to the station House Officer (P.W. 16). The theory of the accused that after stabbing the deceased in self-defence, he himself went to the police station and gave a report about the occurrence is given a lie direct by the evidence of P.Ws. 3, 4 and 5 who are admittedly disinterested.

10. The occurrence in this case took place at about 2-15 P. M. at a place about 70 yards from the Mydukur police station. The accused was caught red-handed and was produced with the weapon of offence at the police station by about 2-45 P. M. and the report of the occurrence was also given immediately. The report was given by the owner of the shop in front of whose shop the occurrence took place. Investigation was taken up by the police soon thereafter. The evidence of P.Ws. 6, 9 and 10 shows that there was sufficient motive for the accused to stab the deceased. Under the circumstances we do not have any hesitation to accept the evidence of P.Ws. 1 to 5 who were examined by the police soon after the occurrence and agree with the conclusion of the learned trial Judge that the accused stabbed the deceased with the dagger (M. O. 4) intentionally and without any justification whatever.

11. It has now to be seen whether the action of the accused is murder or merely culpable homicide not amounting to murder.

12. Sri Hari Seshareddi, contends that in so far as the accused dealt a single blow and ran away even while the deceased was alive and as the doctor (P.W. 11) simply stated that 'injury No. 1 is sufficient to cause death' but did not state that 'the injury is sufficient in the ordinary course of nature to cause death,' the accused cannot be held liable for murder but only for culpable homicide not amounting to murder. We are unable to agree with this contention. It is not the case of the accused that he generally carries with him the dagger (M. O. 4) which is 9,' long with a wooden handle of 3 1/2' and curved iron blade of 5 1/2'. Besides the possession of the weapon, there is also no other ostensible purpose for the accused to visit the shop of P.W. 1 except to attack the deceased. Having been taken to task by the deceased in the evening of the 25th August, the accused was evidently tracking the movements of the deceased on the 26th after arming himself with the dagger (M. O. 4). According to the evidence of P.Ws. 1 and 2, the accused deliberately stabbed the deceased on the back when the deceased bent down to pick up the bag of oil-cake. He stabbed the deceased on a vital part of the body like the back while the deceased was unguarded, P.W. 11 states that the injury sustained by the deceased is 'an incised injury on the right infra scapular region 4' from the midline of 2' X 1/2' chest cavity.' On dissection he found that the injury resulted in a fracture of the 7th rib and entering into the chest cavity penetrated the right lower lung through and through. Within minutes after receipt of the injury, the deceased died of shock and haemorrhage. The solitariness of the blow does not in any way militate against the gravity of the crime. Considering the deadly nature of the weapon, the vital part of the body where the injury was inflicted, the ferocity with which the blow was dealt, the nature of the injury actually caused and the immediate death of the deceased, as also the fact that the accused deliberately armed himself with the weapon, we are of the view that the accused intended to kill the deceased and in pursuance to the intention, inflicted the injury. In this view of the matter the action of the accused is attracted by Clause (1) of Section 300, Indian Penal Code. Even if the argument of Sri Hari Seshareddi that, in so far as the accused gave just one blow and ran away from the scene even while the deceased was alive it cannot be pronounced with any degree of certainty that it was the intention of the accused to cause the death of the deceased, is accepted, there can be little doubt that the action of the accused is squarely covered by Clause (3) of Section 300, Indian Penal Code. There is no evidence nor is there any room to think that the injury was caused by the accused unintentionally or accidentally. The accused intentionally caused the injury which resulted in the deceased's death. It is now well settled that when an accused intentionally causes an injury which results in the death of the deceased, the action of the accused amounts to murder if the intentionally inflicted injury is sufficient in the ordinary course of nature to cause death. No doubt P.W. 11 did not state in so many words that the injury of the deceased is 'sufficient in the ordinary course of nature to cause death.' The doctor expressed his opinion in regard to the nature of the injury by using the word 'sufficient' in its ordinary etymological sense. The opinion of the doctor that the injury is 'sufficient to cause death' plainly connotes that the injury is enough or adequate to cause death in the usual or ordinary course. The omission on the part of the doctor to use the words of the Code 'in the ordinary course of nature' does not alter the normal meaning of the word 'sufficient'. By no stretch of imagination can it be construed that when the doctor stated that the injury is 'sufficient to cause death', he meant that the injury is 'sufficient to cause death under peculiar or extraordinary circumstances and insufficient to cause death in the ordinary course of nature'. As pointed out by the Supreme Court in Virsa Singh v. State of Punjab : 1958CriLJ818 the enquiry in regard to the question whether the injury is sufficient in the ordinary course of nature to cause death, is purely objective and inferential and the matter has to be decided by the court as a question of fact. Even where the medical witness does not say anything about the sufficiency or otherwise of an injury to cause death in the ordinary course of nature or where the medical witness makes a positive assertion one way or the other, the court cannot be relieved of its duty in deciding for itself the nature of the injury. A medical witness who conducts the post-mortem examination is one of the witnesses in the case and assessing the evidence of the witnesses including the evidence of the medical witness, is the duty of the court. In Criminal Appeals Nos. 367 and 674 of 1972 (Andh Pra), one of us (Madhava Reddy, J.) speaking for the Bench pointed out as follows:

In our view the opinion expressed by the doctor on conducting the autopsy is not by itself conclusive or binding on the court in this behalf. Though of a great value, it is still opinion evidence. It has to be taken into account and while, giving such weight as is due to it, the court has to base its conclusions having regard to the nature of the injuries and the entire evidence on record.

Even without any reference to the opinion P.W. 11 on a consideration of the injury sustained by the deceased we have no hesitation to hold that it is sufficient in the ordinary course of nature to cause death. We are arriving at this conclusion in regard to the nature of the injury not merely because the deceased died soon after the receipt of the injury but because the injury inflicted resulted in a fracture of the rib and damage to the lung and the deceased died due to the injury soon after its receipt and there is nothing to show that any other cause else than the injury contributed to the death.

13. Sri Hari Seshareddi, has drawn our attention to Public Prosecutor v. Abdul Rahim : AIR1968AP231 and Sanga Po-chaiah v. State Criminal Appeal No. 636 of 1973 (Andh Pra). In Abdul Rahim's case the State Appeal for convicting the accused for murder, was not allowed, as the court felt a doubt with regard to the nature of the injury for want of the necessary evidence in the case. The accused in that case stabbed the deceased in the chest and caused an internal injury of 1/2' X 1/2' X 1/2' in the middle and front back of the heart. Soon after causing the injury, the accused took steps to save the life of the deceased by immediately removing him to the hospital on his back. When he found that the doctor was not there, he took the deceased to his house and keeping him there, rushed for another doctor and got medical aid given to the deceased. The Court held that the conduct of the accused in that case negatived an intention to cause any injury with intent to cause death. In Sanga Pochaiah's case, the doctor who conducted the post-mortem examination did not state whether the injuries were sufficient in the ordinary course of nature to cause death. Further, the deceased lived for a period of six days after receipt of the injuries. In the light of the evidence available in that case the court took the view that the injuries caused by the accused were likely to cause death and accordingly convicted the accused under Section 304, Part I, Indian Penal Code. There was no evidence in that case that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The facts of the two cases relied on, are entirely different from the facts of the instant case. Under the circumstances, we find that the accused has been rightly convicted by the trial court under Section 302, Indian Penal Code.

14. Before parting with this case we wish to point out that in some of the cases coming up before the High Court it is noticed that it was not being elicited from the medical witnesses as to whether the injury or injuries which resulted in the death of the deceased are sufficient or are not sufficient in the ordinary course of nature to cause death. The Public Prosecutors in charge of the prosecution should realise that it is their bounden duty to elicit from the witnesses all the relevant facts necessary for a just and proper decision of the charges against the accused persons. Where an accused persons is being tried for causing the death, of a deceased by causing an injury sufficient in the ordinary course of nature to cause death it is but proper and fair for the Public Prosecutor to elicit from the medical witness whether or not the injury in question is sufficient in the ordinary course of nature to cause death. Further whenever all the facts necessary for a proper determination of the points in issue have not been elicited inadvertently or otherwise by the Public Prosecutor or the defence counsel, it behoves the Judge to exercise his power under Section 165 of the Indian Evidence Act and get elucidated what is left obscure or unintelligible.

15. In the result, the conviction and sentence awarded to the appellant by the lower court are confirmed and the appeal is dismissed.


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