P L D 1953 Lahore 300 (PLP)

(10) An incised punctured wound 1" x " x " on the back of the 1st phalanx of the left middle finger. (11) An oblique incised punctured wound " x " skin deep on the lower and outer aspect of the right leg. (12) A contusion in an area 4" x 3" with four abrasions 2" x 2", 1" x 2", 1" x 1" x 1/2" and " x " x ", apart from each other over the contusion on the outside and upper part of the right thigh. (13) A transverse contusion 6 " x 1 " on the outer side anti back of the lower part of the right side of the chest. (14) An incised wound " x " skin deep on the left parietal region. (15) A vertical contusion 11" x 2" On the back of the chest and lumber region. (16) A transverse contusion 6" x 1 " on the back left side scapular region joining the upper end of injury No.

15. Though the doctor stated that the number of injuries was sixteen yet as injuries Nos. 4 and 12 consisted of four injuries each, the deceased received 22 injuries. Of these some were caused with a sharp‑cutting weapon, some with a pointed weapon and some with a blunt weapon. The injuries lend a good deal of corroboration to the depositions of the eye‑witnesses produced by the prosecu tion that the number of assailants was four and they carried the weapons mentioned by the prosecution witnesses. The prosecution alleged that the deceased had made a dying declaration implicating the four appellants as the culprits and Abdul Shakoor (P. W. 2). Amin Khan (P. W. 3), Nut Khan (P. W. 4) and Umaid Ali (P. W. 10) deposed about the dying declaration. However, as the first information report made by P. W. 2 did not even hint that the information he imparted to the police bad been given to him by Shah Muhammad, the victim, I consider it safer to keep the evidence about the dying declaration out of consideration. When questioned in the Court of the Committing Magistrate and that of Session to explain the evidence against them, all the appellants denied that they had caused injuries to Shah Muhammad deceased and of them Rehmat pleaded an alibi. No counter version was given, nor was any evidence produced in defence. Learned counsel for the appellants urged that it could not be said with certainty that all the four appellants had taken part in the attack on Shah Muhammad deceased, and as there was a possibility that one or more of the appellants had been falsely implicated and it was not possible to say which of them was so implicated, all of them were entitled to the benefit of the doubt, but in my view this argument has no force. As mentioned already, the deceased received a large number of injuries and those injuries were caused with weapons of three kind. This circumstantial evidence, coupled with the direct evidence given by the three eye‑witnesses produced by the prosecution, is sufficient to establish that all the four appellants attacked the deceased and caused him injuries at the time, at the place, in the manner and for the reason alleged by the prosecution. The question to decide now is what offence the appellants have committed. The charge that the Committing Magistrate framed against the appellants was one under section 304 read with section 34, P. P. C., without it being specified which part of section 304 was considered applicable. Section 304 has two distinct parts and it is the duty of a Court framing a charge against are accused person under that section to specify which part is considered applicable to the case, and if that is not done it may, is some cases, he a serious omission. When the matter came up before the learned Sessions Judge, the learned Additional Public Prosecutor, who represented the Crown, raised the question that the charge should be amended to one under section 302 of the P. P. C., but his request was repelled by the learned Session Judge. It appears to have escaped the learned Judge's notice that the charge, as framed, suffered from the defect that it did not specify which part of section 304, P. P. C. was meant to b applicable. The finding of the learned Sessions Judge, as given in the penultimate paragraph of his judgment, is that the appellant had the knowledge that the injury they caused was most likely to result in the death of Shah Muhammad deceased. On this finding the conviction of the appellants could not have been under section 304, Part I, because that part of the section is applicable only if death is intentionally caused, but the case is taken out of the purview of section 302, P. P. C., because of one of the exceptions to section 300 being applicable. At another place in this judgment, the learned Sessions Judge remarked that in the case before him the intention and knowledge contemplated by section 304, Part I existed, but this remark was evidently based on a misreading of Pat t I of section 314 in which nowhere is mention made of knowledge. The doctor who conducted post‑mortem examination de posed that the death of the deceased was due to a rupture of the spleen. On dissection, the spleen showed a tear 2" x 1" on the outer aspect of upper surface from which had come out two hydatid cysts which contained several daughter cysts. This state ment was made by the doctor in the Court of the Committing Magistrate, and when summoned in the trial Court, he was asked a number of questions by the learned trial Judge, the Crown counsel and the defence counsel. The gist of the statement of the doctor in the trial Court was that the spleen of the deceased weighed 24 ounces, while the maximum weight of a healthy spleen is 10 ounces and that death of the deceased was not the result of shock but of internal haemorrhage due to the rupture of the spleen, sufficient in the ordinary course of nature to cause death. In the doctor's opinion all the other injuries on the person of the deceased were simple in character and the rupture of the spleen had pro bably resulted from the injury mentioned at No. 15 by him in hi de position before the Committing Magistrate. The statement of the doctor who conducted the post‑mortem examination on the deceased would show that death would tot have resulted had it not been for the fact that his spleen, which was abnormally enlarged, had not got ruptured. In a case in which a person who has an enlarged spleen dies because of an injury to it, the offence committed may amount to one of murder if the assailant aware of the infirmity of the victim gives him a severe blow in the region of the spleen, because in such a case clauses 1 and 4 to section 300 of the P. P. C. may have application. If in the above case the assailant could suc cessfully invoke one of the exceptions mentioned in section 300, the case would be taken out of the purview of murder and be only of culpable homicide not amounting to murder. If, however, there is nothing to show that the assailant knew about the infirmity of the victim, the case cannot fall under section 302 or section 304, Part I, P. P. C. It may, however, still fall under second part of section 304 if the assailant could be attributed the knowledge that his act was likely to cause death. Learned counsel for the Crown contended that though the present case may trot fall under section 304, Part I. P. P. C., it clearly falls under section 304, Part II, but I do not agree with this contention. There would have been force in the contention were it possible to fold that every blow on the region of the spleen, even though on the back side, was likely to cause death. It is rarely that a healthy spleen gets ruptured and it would, therefore, be unduly stretching a point in favour of the prosecution to hold that a person who gives a blow to another on the region of the spleen on the back knows that he was likely to cause the death of the victim. I would, therefore, old that the case falls neither under the first nor under the second part of section 304, P. P. C. There have been some decided cases which have considered the question as to what offence is committed if the victim of a heating dies of a ruptured spleen. The first of these cases that I could find is the decision of the Calcutta High Court in Queen v. Megha Meeah ((1865) 2 Sutherland's Weekly Reporter 39). In this case Mr. Justice Glover, with whom Mr. Justice Kemp concurred, held that the case fell under section 32 and not under section 302 or under section 304, Part I of the Penal Code. The next case in order of time, which I could my hands on, is The Crown v. Jai Dyal (21 P R 1876 (Cr.)). In this case, in a judgment consisting of not more than ten lines, a Division Bench of the Punjab Chief Court held that in the absence of any knowledge on the part of the assailant of the diseased condi tion of the spleen of the deceased, the offence was only of using criminal force dealt with in section 352 of the Penal Code. I cannot bring myself to agree with this decision as I do not see why the offence was not of causing at least simple hurt, because even if the blow given was light and the spleen got ruptured it was very highly diseased and enlarged, the case would clearly fall within the definition of simple hurt given in section 319 of the Penal Code. I might mention that this is the only case that I have come across in which the view was taken that the offence was not more serious than one of using criminal force punishable under section 353, the maximum sentence for which Offence is three months' imprisonment of either description or fine which may extend to Rs. 500 or both. The next case in chronological order is Empress of India v. O'Brien ((1880) 2 All. 766). In this case O'Brien had killed one Nathu by causing him injuries which resulted in the rupture of spleen. The trial Judge con victed O'Brien under section 304‑A, but it was held by the two Learned Judges, who heard the case in the High Court, that the offence under section 325 of the Penal Code had been com mitted. The next case of this kind is a decision of the Allahabad High Court in Empress of India v. Idu Beg ((1881) 3 All. 776). In this case also the offence of a person who caused the death of the victim because of rupture of a diseased spleen was held to fall under section 325 of the Penal Code. In Emperor v. Lal Bakhsh (A I R 1945 Lah. 43) a Division Bench of this Court following I L R 2 All. 766 and I L R 3 All. 776 held that when death occurs because of a rupture of a diseased spleen which infirmity of the victim was not known to the assailant, the case is one of causing grievous hurt. In that case the conviction was recorded under section 335 of the Penal Code, as it was held that it was under grave and sudden provocation that the assailant had caused the injury which ruptured the spleen. In Bhajan Das v. Emperor (A I R 1924 Lah. 218), a learned Single Judge of this Court altered the conviction from section 325 to 323 where death had resulted because of an injury to a diseased spleen, of which tile accused had no knowledge. Another case which may be noticed in this connection is a decision of the Allahabad High Court in Munni Lal v. Emperor (A I R 1943 All. 344), in which a learned Single Judge held that where death results from injury to an enlarged spleen, tile case falls under section 304, Part II. It would appear that earlier decisions of that Court in I L R 2 All. 766 and I L R 3 All. 776, the former of which is a decision by a Division Bench were not brought to the notice of the learned Judge who decided the case. If the learned Judges who have held that the offence of a person who causes death on account of injury to a diseased spleen of the victim which the assailant did not know to be diseased falls under section 325 of the Penal Code, intended to lay that down as the rule, I would most respectfully express my disagreement with them. A case can fall under section 325 of the Penal Code only if grievous hurt is voluntarily caused. Sec tions 321 and 322 of the Penal Code, which explain what voluntarily causing hurt and voluntarily causing grievous hurt mean, read as follows:‑ 321. "Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said `voluntarily to cause hurt'." 322. "Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said `voluntarily to cause grievous hurt". Explanation.‑A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if in tending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind." Now if the above definitions are kept in view, causing death by rupture of the spleen can amount to grievous hurt only if the assailant intended to cause the rupture or a hurt which will fall within section 320, P. P. C., wherein grievous hurt is defined, on if the assailant has the knowledge that he was likely to causes rupture of the spleen or a hurt falling under section 320, P. P. C. A rupture of the spleen being almost necessarily fatal, it would follow that a person who causes it can be guilty of an offence of c voluntarily causing grievous hurt and not of a more serious offence, only if he did not intend to cause the rupture nor knew it likely to result but happened to cause it when intending to cause grievous hurt of another kind covered by section 320, P. P. C., because if it were held that the assailant intended to cause rupture of the spleen or knew that such a rupture was likely, I fail to sec why the offence would not be culpable homicide amounting or not amounting to murder according to the circumstances of the case. On the other hand if a person not knowing of the infirmity of the victim causes the rupture of the victim's spleen by causing him a minor hurt, it is difficult to see how hey can be held to have voluntarily caused grievous hurt within the purview of section 322, P. P. C., so as to be punishable under, section 325 or section 326, P. P. C. In this view of the matter, I am not prepared to agree with the contention of the learned counsel for the Crown that every case of death due to rupture of the spleen which was not known to the assailant to be diseased, must be held to be a case of voluntarily causing grievous hurt and cannot be one voluntarily causing simple hurt. In view of what I have said above, I would hold that the nature of the offence in each case of death due to the rupture of the spleen must depend on the particular facts of that case. In the present case the injury that caused the rupture was given not on the region of the spleen but on the back, and as it cannot be held that the intention of Chakar appellant, who caused that injury, was to cause a grievous hurt to the deceased by breaking a bone or knowing himself to be likely to break a bone, I do not think that his act amounted to an offence made punishable by section 325, P. P. C. In view of this finding, the other appellants cannot vicariously be held to be guilty of voluntarily causing grievous hurt for the injuries caused .by Chakar appel lant. Though the injury caused by Chakar appellant would not bring the case within section 322, P. P. C., yet the injuries caused with a sharp‑edged weapon on the head of the deceased would do so, as they certainly endangered the life of the victim and would be covered by the 8th clause of section 320, P. P. C. According to the evidence, these injuries were caused by Rehmat appellant, who carried a hatchet, and he would, therefore, be clearly guilty under section 326, P. P. C. The other appellants will be liable for the offence under section 326, P. P. C., if it can be held that the common intention of all the appellants was to cause those injuries. It is rarely that direct‑evidence regarding the common intention of the accused persons is available and such intention is, almost always to be inferred from the circumstances of the case. The weapons car ried by the assailants and the motive which impelled the attack are, in my view, sufficient for holding that all the four assailants were actuated by the common intention of causing grievous injuries to the deceased. I would, therefore, hold that while Rehmat appel lant was guilty under section 326, the other three appellants were guilty under section 326/34, P. P. C., and I would alter the con viction of the appellants accordingly. The question of sentence presents some difficulty. On the one hand, there is the fact that the four appellants attacked an unarmed man and, on the other, there is the circumstance that the womenfolk of the appellants had been abused by the deceased, Considering al' the circumstances of the case, I would sentence each of the appellants to four years' rigorous imprisonment for the offence of which he has been convicted. A. MUHAMMAD JAN, --‑I agree. A. R. Conviction altered.