P L D 1950 Lahore 90 (PLP)

(b) Evidence Eye‑witnesses‑Confused statement in post -mortem report as to time of death‑Conflict‑Whether eye‑wit ness account could be rejected. The evidence of eye‑witnesses could not be rejected merely on the strength of some confused statements in the post‑mortem report about which the doctor was not questioned at all in Court. G. H. Lodhi and Chiragh Din, for Appellant. Ch. Muhammad Sharif, Assistant to the Advocate‑General, for Respondent. This is an appeal by one Ghulam who has been convicted by the Additional Sessions Judge of Lahore at Sheikhu pura under section 302 of the Indian Penal Code and sentenced to transportation for life. The person murdered was Mst. Akbari, appellant's own wife. The evidence is that on the morning of 15th October, 1948 while Daulu (P. W. 1), Jalla, son of Amir (P. W. 2) Jalla, son of Sajawal (P. W. 3) and Maulu (P. W. 4) were going, each on a different errand, on a path which passes by the house of the appellant in village Chajkegil, they saw the appellant engag ed in a quarrel with his wife Mst. Akbari in his house which abuts on the road. An infant son of the appellant was crying and the appellant was asking Mst. Akbari to cover him with some cloth. Suddenly they saw the appellant pick up a hatchet with which he struck Mst. Akbari on the head. The woman received a severe injury and died within a few minutes. Ac cording to the medical, evidence, Mst. Akbari had one contused wound, scalp deep, 1 " x ", in the right temple region and another contused wound, also scalp deep, 1" x ", above the interior‑ margin of the right pinna. On opening the skull the doctor found a blood clot beneath the scalp, and the frontal bone, the right parietal and right temporal bones fractured into twelve pieces, the pieces of the right temporal bone having gone into the brain matter. There was also a blood clot under and above the duramater and the right temporal bone was lacerat ed. Death was due to shock and haemorrhage caused by the two injuries which were necessarily fatal. The appellant denied that he caused the injuries and pleaded that he was not present in the house when Mst. Akbari was injured. He, however, produced no evidence in defence. The case against the appellant is perfectly simple. Each of the four eye‑witnesses has deposed that it was the appellant who struck Mst. Akbari on the temple with the wrong side of the head of a hatchet, killing her almost instantly. The only complication in the case is introduced by the post‑mortem report according to which the time that elapsed between the injury and death was eleven hours. Learned Counsel for the appellant naturally argues that the evidence of the eye‑witnesses must be held to be false if the woman died eleven hours after she was wounded. If the premise of the argument is correct, the conclusion sought to be drawn by the Learned Counsel for, the defence would also be correct. We are, however, quite sure that the statement in the post‑mortem report that the woman died eleven hours after the receipt of injuries is wrong. The doctor who performed the post‑mortem was not questioned in Court as to the lapse of time between the injuries and the death: nor was he questioned as to how he happened to mention the time of the death as 4 P. M. in the post‑mortem report. That he was mistaken in his calculations seems to be clear from the fact that while in the post‑mortem report he described the time that elapsed between death and his examination of the body as nine hours, he must have examined the body about twenty‑one hours after the death, assuming that death occurred at 4 P. M. as stated in the post‑mortem report. The time of examination of the body is stated in the post‑mortem report to be 1 P. M. on 16th October, 1948 and the time of death as 4 P. M. on 15th October, 1948 there being thus an interval of twenty‑one hours between the two events. At the end of the post‑mortem report, however, the doctor states the interval between the death and the examination as nine hours which is obviously incorrect. It is, therefore, evident that the doctor was confused about the intervals between the death and examina tion and the receipt of injuries and the death. The evidence is definite that the woman died shortly after she was beaten and we cannot reject this evidence merely on the strength of some confused stat‑mews in the post‑mortem report about which the doctor was not questioned at all in Court and to which no importance seems to have been attached by anyone in the course of the trial. Another point taken by the learned Counsel for the appellant is that while, according to the eye‑witnesses, the deceas ed woman was given only one blow, the doctor who examined her body found two distinct injuries on her head. We do not see any force in this contention because both the injuries, one of which was on the right temporal region and the other above the inner region of the right pinna, were near each other and might have been caused with a single blow, one with the head of the hatchet and the other with the handle. In any case this circumstance is not sufficient to cast any doubt on the unanimous assertion of the four eye witnesses, none of whom is proved to be in any way connected with the deceased woman or inimical to the appellant. After considering the whole evidence we are satisfied that the appellant caused the injury on the head of Mst. Akbari in consequence of which she died a few minutes afterwards. Learned Counsel contends that even if the appellant be found to have beaten the woman on the lead with a hatchet, the offence committed is not murder but only culpable homicide not amounting to murder, and in this connection he relies on Rehmat v. The Emperor of India (30 P. R. 1902 (Criminal)). In that case the prisoner quarrelled with his wife who was dilatory in the performance of her household duties and after the ex change of some abuse with her, gave her a blow on the side of the head with a heavy hammer which he picked up on the spur of the moment. The woman died from the effect of the injury but Reid, C. J. and Anderson, J. declined to convict the prisoner of murder on the ground that although a blow on the head with a weapon like a heavy hammer delivered with violence might, if the striker realised the nature of the weapon, ordinarily he held to be delivered with the intention of causing death, the fact that the hammer was picked up on the spur of the moment went far to destroy the presumption raised by the nature of the weapon. In taking this view they followed the earlier decision in Karm v. Queen Empress (5 P. R. 1893 (Criminal)) where the prisoner who had caused the death of his wife by striking her on the head with a wooden kharwanji in the course of a sudden quarrel was not held to be guilty of murder but oily of culpable homicide not amounting to murder. There is an obvious dis tinction between the facts of that case and the one with which we are concerned or the case in Karm v. Queen‑Empress. A single blow on the head with a kharwanji is not likely to cause the death of 61e person struck; nor can it be said that a person who strikes another on the head with such a weapon intends to cause death or SUCH bodily injury as is sufficient in the ordinary course of nature to cause death. If in such a case death does occur as a result of the injury caused, the offence committed is not murder because none of the clauses to section 300 of the Indian Penal Code is applicable. If, however, a man, even in' the course of a sudden quarrel, gives a terrific blow on the head of another with a weapon like a heavy hammer or a heavy hatchet and the result is that the head bones are smashed to pieces, it must on the principle that a man intends the natural conse quences of his act be held that he intended to cause such bodily injury as he knew was likely to cause death or that the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. The offence thus committed is, therefore, murder both under clauses Secondly and Thirdly to section 300 of the Indian Penal Code unless some exception to that section reduces it from murder to culpable homicide. The mere fact that the blow was caused in the course of a sudden quarrel does not negative this intention although if the quarrel amounted to a sudden quarrel leading to a sudden fight or con stituted grave and sudden provocation, it would have the effect of reducing the offence from murder to culpable homicide. We do not, therefore, agree with the decision in Rahmatt v. The Emperor of India and consider that there was a fundamental distinction between the facts of that case and the facts in Karam v. Queen Empress. It is seldom that a blow on the head with a kharwanji causes death as it is too awkward and unfamiliar a weapon to be effectively handled but every one knows that a well aimed violent blow on the head with a heavy hammer or with a heavy hatchet, even with its wrong side, does generally cause death In the present case in view of the damage caused to the head of the deceased we cannot but come to the conclusion that the appellant intended to cause the injury that he actually caused, that that injury was known by the appellant to be likely to cause the death of the woman and that it was sufficient in the ordinary course of nature to cause death In that view of the matter the offence committed is murder and not only culpable homicide not amounting to murder. The appeal is accordingly dismissed. A. H. Appeal dismissed.