R.J. Bahadur, J.
1. This is a reference by the. Sessions Judge of Shahabad at Arrah for confirmation of the sentence of death passed on Mohammad Khursheed, who has also preferred two appeals against his conviction under Section 302, Penal Code, one being a presented appeal through, an advocate, which is criminal appeal No. 601 of 1966; and the other being criminal Appeal No. 588 of 1966 preferred from jail. This judgment will govern the reference and the two appeals, as they have been heard together. Hereinafter the-condemned prisoner will be referred to as the appellant.
2. The occurrence, which resulted in the death of one Ma. Hafiz a co-villager of the appellant of village Bhariar within police station Brahampur in the district of Shababad, took place at about 1.30 P.M. on the 3rd August, 1965, and reported at the said police station by the deceased at 4.30 P.M., who expired later, the next day (4th August, 1961) at 6.30 A.M.
3. It appears from the evidence of the various prosecution witnesses that in village Bhariar there are about 150 to 200 houses. It is inhabited by about 20 families of Muslims. Six or seven years before the occurrence a mosque was built in the village, which is the solitary mosque. There is a village road, which runs from north to south, adjacent west of the mosque. A lane proceeds from this road towards east and passes by the side of the mosque to its south and the door of the said mosque is towards south. There is a Sahan land adjacent south of the mosque, which is about 30′ from east to west and 18′ north to south. The Sahan land is parti and is used for passage. There is a khandahar, bearing plot No. 223, adjacent south of the Sahan land with boundary wall on the north, south and the west, id being open on the east. The residential house of the appellant is to the east of the khandahar and is adjacent south of the said lane from east to west. The appellant has also another house to the north of the lane, being in front of his other house. It is not in dispute that there was trouble between the appellant and the deceased over the possession of the khandahar, which led to a proceeding under Section 144 of the Criminal P. C, and was subsequently converted into a proceeding under Section 145 of the Code. About three months before the occurrence, the said proceeding under Section 145 of the Code was decided in favour of the deceased. Thereafter, the appellant filed a title suit in the Court of the Munsif at Buxar, which was pending at the time of occurrence, though it appears from the certified copy of the order sheet of the suit (Ext. 10) that the suit was dismissed for default later after the occurrence, namely, on the 12th May, 1966.
4. The prosecution case, shortly stated, as appears from the first information report given by the deceased and from the evidence of the prosecution, led in the case, is that on the day in question Hafiz and three other persons, namely, Jan Mohammed (P.W. 2), Mohammad Hadis (P.W. 5), nephew of the deceased, and Rahim Mian (P.W. 7) had gone to the mosque to offer mid day prayer, At about 1.30 P.M. they came out of the mosque after finishing their prayer. When Hafiz was in front of the other three persons and had reached about 4 or 5 steps south west of the door of the mosque and was in the sahan land, the appellant came suddenly with a bhala and gave a blow with it on the left side of the chest of Hafiz. The blade portion of the bhala pierced into the chest. Of the three persons, who were at that time behind Hafiz, Hadis (his nephew) ran up to the place and caught hold of one end of the bhala, while the handle portion remained in the hand of the appellant. In course of snatching of the bhala, the handle portion came out of the blade portion and the appellant fled away with the handle. As a result of the blow on the chest, Hafiz fell down and a local homeopath doctor, Dr. Jainuddin, (P.W. 12) came to the place and gave him first aid by applying medicine and bandaging the wound. Hafiz was then carried in a doli to the police station where on his statement, as already stated, first information report was recorded by Assistant Sub-Inspector of police, Bam Saran Singh (P.W. 13), in absence of the officer-in-charge. P.W. 13 further examined Hafiz and his statement is marked Ex. 4.
5. Thereafter, Hafiz was carried to the State-Dispensary at Raghunathpur, where he was> examined by the medical officer the same night at 7.30 P.M. He found one penetrating wound l¼” × ¼” x 1½” obliquely on the left aide of the-chest in the anterior axillary line 1½” upwards and outwards from the left mamma. The margins of the wound were parallel and clean-out. The general condition of the patient was low, pulse was feeble and low and the respiration was hurried. The injury was dangerous to life and appeared to have been caused by aom& sharp pointed instrument, might be a bhala. Hafiz was kept under his treatment in the hospital. At 10.30 P.M. the same night the doctor (P.W. 14) recorded a dying declaration (Ext. 8) of Hafiz in his dispensary, as his condition appeared to be serious, in presence of his compounder Rajeshwar Prasad, and dresser Harihar Lal. He then sent a report (Ext. 9) about it to the police.
6. The investigating officer (P.W. 13) went to Brahampur Bazar, which was at a short distance from the police station, and met the witnesses, who had accompanied Hafiz. He examined P.Ws. 2, 5 and 7. He reached village Bhariar along with P.W. 2 rather late at 8.30 P.M. on account of heavy rain on that date. He inspected the place of occurrence with the aid of lights and found it to be the Sahan in front of the door of the mosque and south of it. The land was wet on account of rainfall and there was also mark of flow of rain water at that place. He found the Sahan to be 18′ from north to south and 30′ from east to west. He saw a khand south of the Sohan surrounded by wall. He searched the house of the appellant, which was 12′ from the door of the mosque. He examined other witnesses. He searched for the accused and as he did not find him, he deputed a chaukidar and a dafadar to guard the house. The next morning (4th August, 1965) at about 8 A.M. he reached the house of the appellant and found a lathi in that house which he seized. He found blood like stains at two places in the lathi and the portion of the lathi, which contained blood stains, was sent to the chemical examiner, who, in due course sent his report that blood was detected on both the articles, namely, the blade of the bhala and the cut pieces of the lathi. These articles were, however, not forwarded to the serologist for report.
7. He got some information at about 11 A.M. that the accused had gone to Buxar, so he went there and arrested him in the Court premises and forwarded him in custody for taking his statement. He again returned to Bhariar on the 5th August, 1965, for further investigation. In the compound of the khand south of the Sahan he found digging mark and the dug out portion was dry indicating that there was no rain fall on that portion. He found top portion of the compound wall thatched with tiles and at places in the thatch on the compound wall, the tiles were removed hut below those places in the ground there was no fall of rain water. In the evening he returned to the police station and made over charge of the case to Sub-Inspector Ram Prakash Singh (P.W. 15) in the morning of the 6th August, 1965. He submitted charge-sheet against the appellant, who was committed to the Court of Session in due course and tried with the result mentioned above.
8. The defence of the appellant at the trial, as appears from his statement under Section 342 of the Criminal P.C. and the trend of cross-examination of the prosecution witnesses and from the evidence of a witness examined on his behalf, is that he was not guilty, as he bad not assaulted Hafiz on his chest with a bhala, which he had never seen. His plea was that the place and the manner of occurrence, as alleged by the prosecution, were incorrect. His further plea was that on the day in question Hafiz, along with Jan “Mohammad and Hadis were armed with bhala, lathi and spade and were breaking the western compound wall of the khandahar in question in order to assert their possession over the same, on which the appellant protested and he was assaulted with lathi. He then went to Buxar, got his injuries examined by a private medical practitioner, namely. Dr. Nawal Kishore Prasad, (D.W. 1) and the next day on the 4th August, 1965 he filed a complaint before the Sub-divisional Officer against Hafiz, Hadis and Jan Mohammad. The petition of complaint was referred to the police for investigation along with the case instituted by Hafiz, which is the basis of the present occurrence. It appears that the police after investigation submitted final report with respect to the case filed by the appellant. It further appears that the appellant’s case was that while he was fleeing away, Jan Mohammad threw his bhala at him, which did not hit him and he is not able to say where it fell.
9. The learned Judge has accepted the prosecution case to be true in substance and has also accepted the motive suggested by the prosecution that the feeling between the appellant and Hafiz was running high on account of the cases, already stated above, at the time when the occurrence took place and this was the cause for which the appellant had assaulted Hafiz. He has not accepted the defence version.
10. The prosecution examined a number of witnesses in support of its case. It is unnecessary for me to refer in detail the evidence relating to the injuries caused to Hafiz, which resulted in his death later, at the hands of some assailant or assailant, which, apart from the evidence of the eye-witnesses, P.Ws. 2, 5, 7 and 8, is established by the evidence of the two doctors, P.Ws. 12 and 14. The Dost mortem examination was held by Dr. M.N. Misra (P.W. 9), Civil Assistant Surgeon of Buxar, on the 5th August, 1965, at 9 A.M. He found one penetrating wound, stitched with clean cut margin ½ × ¼” going into the left pleural cavity on the left side of chest 1½” lateral to the left nipple in between 5th and 6th rib. On dissection, the tissue around the said injury was infiltrated with blood dot in an area of 2″ in diameter. The left pleural cavity contained 14 ounces of blood and blood clot. The left lung was pierced through its whole width corresponding to the site of the wound. In the opinion of the doctor, death was due to shook and haemorrhage as a result of the aforesaid chest injury, which appeared to have been caused by some sharp piercing substance, such as Bhala. The death was caused within 48 hours of his examination. The injury was sufficient in the ordinary course of nature to have caused death. He further found that the injury bled internally.
11. The learned Judge also considered the matter in detail and came to the finding that Hafiz was assaulted in consequence of which be died subsequently. That finding has not been questioned before us. It is, not, therefore, necessary to dilate on this part of the prosecution story.
12. Learned Counsel, appearing on behalf of the appellant, has, ho sever, contended that the genesis and the manner of the occurrence must be held to be different from what has been given out on behalf of the prosecution and it must be held that the version given by the appellant was the real fact, namely, the occurrence took piece over the digging of the khandahar by Hafiz and his associates. In order to appreciate the submission, it may be stated that some bind of occurrence on the day in question is practically admitted, as also the enmity between the parties. The question that really arises for consideration in this case is, which version is probable and, therefore, acceptable. It will, therefore, be necessary to examine the evidence of the witnesses in support of the prosecution case.
13-14. After discussing the evidence of prosecution witnesses his Lordship continued as under. The comments against P. Ws. 2, 5 and 7 are that they are partisan witnesses, being associates of the deceased, and have set up a false case in that, they had all gone to the mosque for offering prayer and the assault took place while they were returning. In support of this contention it has been urged that it is improbable that the appellant would have chosen such a time to inflict a blow on Hifiz when he himself was alone, while Hafiz was accompanied by three other persona. There appeare to be some force in this contention. The fact remains, however, that there was a clash between the appellant on one side and the deceased on the other near about the time and the place of occurrence, as has been admitted by the appellant in his statement under Section 342 of the Code of Criminal Procedure. The presence of Hafiz (P.W. 5) and Jan Mohammad (P.W. 2) at the time of the occurrence is admitted by him. The only point for consideration is whether Hafiz was given the Bhala blow all of a sudden, while going oat of the mosque or that he received the injury during the course of a scuffle or exchange of blows, as alleged by the appellant. Regard being had to the injuries on the person of the appellant, it is reasonable to suppose that the occurrence took place while the deceased and his men were trying to dig the wall of the khandabar. There is no manner of doubt, however, that the fatal and the only blow to the deceased was given by no person other than the appellant. Evidently, he had so justification to do so especially after the termination of the proceeding under Section 145 of the Code of Criminal Procedure against him.
15. The question is what offence the appellant committed in such a circumstance. Mr. Gorakh Nath Singh’s contention is that the appellant can at best be held guilty of the offence under Section 304, Part I, or Section 326 of the Indian Penal Code for the reason that the attack by the appellant was in a sudden quarrel in the heat of passion without any premeditation. According to Mr. Singh, on the basis of the testimony of Borne of the witnesses for the prosecution, it may even be held that the appellant caused only a simple injury by piercing a bhala in the cheat of the deceased, but, in the process of pulling and pushing of the weapon between Md. Hadis (P.W. 5) and the appellant a grievous injury was caused. It is too much to suppose that the appellant meant to cause a simple injury only and the death of the deceased was caused due to unforeseen factors.
16. Having regard to the evidence, as adduced I by the parties, and keeping in view the attendant circumstances, it is reasonable to hold that the appellant intentionally caused a bodily injury to the deceased and this injury was found sufficient in the ordinary course of nature to cause death. But this injury was caused without premeditation in a sudden fight, in the heat of passion, upon a sudden quarrel and without the appellant’s having taken undue advantage. Evidently, therefore, this case comes within the scope of Section 304 Part 1 of the Indian Penal Code. I would, accordingly, alter the conviction of the appellant under Section 302, Indian Penal Code, to one under Section 304, Part I of the Code, and alter the sentence of death to one of rigorous imprisonment for eight years.
17. The reference is, accordingly discharged and subject to the alteration in the conviction and the sentence, the appeal is dismissed.
S.P. Singh, J.
18. I agree.