1980 P Cr (PLP)

In the opinion of the doctor death occurred due to shock and haemor rhage as a result of the injuries to the internal visceras of abdominal cav ity and left testis. These injuries were ante‑mortem and sufficient to cause death in the ordinary course of nature. Death occurred instantaneously on receipt of the injuries and post‑mortem examination was carried out within a day of the death.

7. At the trial, the two acquitted co‑accused pleaded innocence and denied their participation in the occurrence while the present appellant admitted his presence, giving his own version of the occurrence. He denied if arty dispute, over theft of fodder was ever referred to the Pan chayat. He stated ;‑‑ I am innocent. It is a sudden dispute between the deceased and myself over the trespass by the buffalo into the fields of tire deceased which resulted into the exchange of abuses, scuffle and I never intended to kill the deceased or to cause any bodily injury. The two co‑accused were not present there and they have been involved so that they may not be able to help me in this case. to reply to a question he stated :-- "It is incorrect but I was alone in the field and my buffalo went into the field of the deceased on which he quarrelled with me and during scuffling, in the beat of passions, I gave kicks to the deceased who was ailing with certain ailments and was bodily weak, fell down and died. My brother and maternal uncle co‑accused were not present there." No evidence was produced in defence.

8. Prosecution at the trial relied on the ocular evidence given by Mit. Rashida Bibi P. W. 5, Muhammad Rafi P. W. 6 and Muhammad Ashiq P.. W. 7 ; the motive and the medical evidence.

9. Learned trial Judge has accepted the prosecution story with some reservations.. He is of the view that appellant Amir Ali alone had motive against the deceased. ‑ He is in doubt about participation of the two acquitted co‑accused and arrives at an ultimate finding: "In the light of direct evidence and the evidence of Dr. Muhammad Hanif, I find that Amir Ali accused had not come prepared to murder Muhammad Amin the deceased on the fateful day as alleged by the prosecution. The case of Amir Ali accused that he was alone in his field and his buffalo went into the field of the deceased on which he quarrelled with him and during scuffling in the heat of passions he gave kicks to the deceased who was lean with certain ailments and was bodily weak, fell down and died, does not find support from the record. Even none of the eye‑witnesses was suggested this version at trial. He is even not supported in his case that it. was a sudden dis pute between him and the deceased, over the trespass of his buffalo in the field of the deceased which resulted in the ex change, of abuses and scuffling and that he never intended to kill the deceased or cause any bodily injury. This was even not proposed to any one out of the witnesses at the trial. The defence is thus rejected. In my view Amir Ali accused is liable under section 304, Part I, P. P.‑ C. for killing the deceased and the charge for the murder of Muhammad Amin deceased under section 302, P.P:C. is not proved and accordingly he is convicted and sentenced under section 304‑Part I, P. P. C. and is awarded life imprisonment."

10. Learned counsel for the appellant in view of the independent direct evidence and position taken up by the appellant has not seriously questioned the finding of the learned trial Judge on the merits. He con tended that the learned trial Judge after having held that the appellant had not come prepared to commit this murder has gone wrong in convict ing the appellant under First Part of section 304, P. P. C. It was at best a case for conviction under Second Part of section 304, P. P. C. In the end he submitted that the sentence awarded is excessive and the trial Judge while awarding the maximum sentence under section 304, P. P. C. has not kept in view the provisions of section 382(A), Cr. P. C.

11. Contentions raised need to be noticed. Circumstances that the appellant came unarmed and gave only fist blows and kicks though ex pectedly, he could .make use of any tool of husbandary as a weapon ; the motive even if accepted was over a trifle, lead to a safe inference that it was an act without preparation and element of intention bringing the offence within the pail of murder is missing. So, also, is the finding of the learned trial Judge and I find no difficulty in concurring with his views in this regard. It is therefore, a case of culpable homicide not amounting to murder or borrowing the term of English Law, one of man‑slaughter punishable under section 304, P. P. C. The offence of culpable homicide not amounting to murder is a highly. technical offence. Before it is puni shable under section 304, P. P. C. to begin with, it must fall under sec tion 299, P.P.C. Under section 299, P.P.C. whoever causes death by doing an act : (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death ; (iii,) or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is murder punishable under section 302, P. P. C. if it falls under any of the four clauses mentioned in section 300, P. P. C. and does not fall under any of the exceptions to this section. Culpable homicide which is not murder .is man‑slaughter. Then if death was caused by doing an act with intention of causing death or such bodily injury as was likely to cause death, graver sentence prescribed in the first paragraph of section 304, P. P. C. applies and calls for a lesser sentence prescribed in second paragraph of this section if the same was caused by doing an act with knowledge that it is likely .to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death. Cases in which death is caused intentionally and still the offence does not fall within the definition of murder are generally, those in which offence is really murder, but it is mitigated by the presence of circum stances recognized in the exceptions to section 300, P. P.. C. Masti (1911 P R 3), Khurkuhar Lohar (A ‑I R 1929 Pat. 518), are referred with advantage. Words "or of causing such bodily injury as is likely to cause death" in first para of section 304, P.P.C. and similarly the words, "if the act is done with the knowledge that is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death" in second para of the section, have often been subject of discussion before the Courts. In some older cases it has been held that the words "knowledge that it is likely to cause death" ordinarily imply that the offender had no intention of injuring any one in particular. See Shwe Ein (3 L B R 122), Nga Tun (35 1 C 511). I venture to say that it cannot be accepted as an absolute rule. Words, " ‑or of causing such bodily injury as is likely to cause death" used in section 304, P. P. C. and also in section 299, P. P. C. can be compared with clause 'thirdly' to section 300, P. P. C. which embodies "if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death", or .." The question therefore, whether the causing of certain injury is culpable homicide or murder, depends upon this degree of the likelihood of death, in consequence of the injury. It is a question of fact ; if it is established that the injury responsible for causing the death was sufficient in the ordinary course of nature the offence would fall under the definition of murder and if the same was likely to cause death, offence would be one of man‑slaughter punishable under para.1 of section 304, P. P. C. An offender doing an act, as provided in the 3rd part of section 299, with the knowledge that he is likely by such act to cause death, commits the offence of murder if as given in clause fourthly of section 300, P.P.C., while committing the act he knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse or incurring the risk of causing death or injury and in other cases man‑slaughter punishable under para. two of section 304, P. P. C. :In the instant case deceased was given fist blows and kicks in the abdominal region causing severe damage to the internal organs. Even if it may be said that appellant did not intend to cause injuries likely to cause death, he can notwithstanding be fixed with the knowledge that his act was likely to cause death. I, therefore, alter his conviction from First Part of section 304, P. P. C. to one under II Part of the section and sentence him to ten years' R. I. The sentence of fine and sentence awarded in default of the same are however, maintained. As directed by the learned trial Judge, one half of the amount of fine, if realized, will be paid to the heirs of the deceased. This appeal stands disposed of in the above terms. Order accordingly.