P L D 1970 Dacca 790 (PLP)

P. W. 2 Mafiz Ali, P. W. 3 Rahmat Ali, P. W. 10 Sharafat .All and P. W. 11 Samru deposed having seen the occurrence, as did P. W. 1 Babru Mia, P. Ws. 4, 5, 6 and 7 deposed having seen the appellants fleeing to the west immediately after they heard outcries raised by the deceased and. P. W. 1 Babru Mia. P. Ws. 4 and 5 deposed having noticed the pen‑knife in the hand of appellant Abul Lais. These four witnesses, namely, P. Ws. 4 to 7 further stated that on reaching the spot they heard from the deceased that appellant Cherag Ali held his loin and Abut Lais dealt the knife blow on him. The doctor, P. W. 13; found one punctured wound on the 3rd intercostal space 2 " from the mid‑sternal line " X " x cavity. On dissection he found congested and clotted ante- mortem blood in and around the injury. Pleura and pericardium were injured at the site of the injury. Right ventricle of the heart was also found punctured. The death, in the opinion of the doctor, was due to shock and haemorrhage resulting from this injury which was ante‑mortem and homicidal in nature. According to the doctor, the injury was sufficient to cause death fn the ordinary and usual course of nature and further that it was caused by a sharp‑pointed weapon such as a pen‑knife. The doctor opined further that after sustaining the injury, the victim could be alive for at least 30 to 60 minutes and would also be able to talk for sometime. In view of certain omissions in the statements of P. Ws. 3 and 10 under section 101, Cr. P. C. and also an admission by P. W. 3 that he was fined in a case brought by appellant Abut Lais's mother's sister's husband, the learned Sessions Judge considered it safer not to rely upon these two witnesses. He, however, found no reason to disbelieve the other three eye‑witnesses, namely, P. Ws, 1, 2 and

11. He also found no reason to disbelieve P . W s. 4, 5, 6 and 7 who deposed to have seen the appellants fleeing westward immediately after hearing outcries from the place of occurrence, two of whom again stated having noticed a pen‑knife in the hand of Abut Lais. The learned Sessions Judge also accepted the doctor's opinion that the deceased could talk for sometime. Accordingly, he rejected Cherag Ali's plea of alibi as he rejected Abut Lais's plea of right of private defence of person. He was of the view, however, that in the absence of any evidence as to when the alleged original `ail' was removed inside the deceased's plot, it could be said that the deceased had no right to place earth by the west of the existing `ail' with a view to taking it to its alleged original site. Nevertheless, he thought that section 103, P. P. C. would stand in the way of any claim by Abul Lais to right of private defence of property, inasmuch as the deceased was not committing robbery, house breaking by night, mischief by fire; nor was he committing theft, mischief or house trespass under such circumstances as might reasonably cause apprehension that death or grievous hurt should be the consequence if the right of private defence was not exercised. After thus rejecting Abut Lais's plea of right of private defence, the learned Sessions Judge expressed himself thus "So, considering the evidence and also the materials and circumstances of the case, I find that the prosecution has proved beyond reasonable doubt that in course of the alter cation between Rajjab Ali on the one hand and the two accused on the other, accused Cherag Ali suddenly caught hold of Rajjab Ali from behind and accused Abut Lais by means of a pen‑knife dealt a fatal blow on the left side of the chest of Rajjab Ali." In the above view of the evidence, the learned Sessions Judge accepted the unanimous opinion of the assessors who found appellant Abul Lais guilty under section 302, P. P. C. He rejected the opinion of three assessors who found appellant Cherag Ali not guilty and agreed with the opinion of the fourth assessor who found this appellant guilty under section 302/109. P. P. C. He sentenced both the appellants to transportation for life, convicting Abul Lais under section 302, P. P. C. and Cherag Ali under section 302/109, P. P. C. Mr. B. N. Choudhury who appeared on the first day of the hearing, took us through a considerable portion of the evidence in an attempt to show that the witnesses were all unreliable and that the defence case was likely to be true. On the second day of the hearing, however, Mr. Sekandar appeared before us and did not contest the learned Sessions Judge's finding that both the appellants took part in the occurrence, as alleged by the prosecution. He did not consider it necessary to invoke the right of private defence, either of person or property on behalf of appellant Abul Lais. He submitted that there was no evidence suggesting, far less proving, that Cherag Ali was aware that Abul Lais had a pen knife with him or that the latter would cause any injury on the deceased. He contended that if his submission was correct then Cherag Ali could not be held guilty of abetment. Secondly he contended that Abul Lais's offence fell within the mischief of the second part of section 304, P. P. C. and not even under the first part of that section, far less under section 302, P. P. C. Indeed, the evidence is that as Cherag Ali caught hold of the loin of the deceased from behind, Abul Lais who was in front facing the deceased suddenly whipped out the knife from his pocket and dealt the blow on the chest of the deceased. We have perused the entire evidence. There is nothing to suggest that Cherag Ali knew that Abul Lais had a knife inside his pocket. Nor is there any material to suggest that either by any utterance, or even by a gesture Cherag Ali instigated Abul Lais to inflict the injury on the deceased. This aspect evidence does not appear to have engaged the attention of learned Sessions Judge who found Cherag Ali guilty of abetment, upon a mere finding that his holding of the deceased from behind facilitated infliction of the fatal knife injury by Abul Lais. In the absence of any evidence to suggest that Cherag Ali knew that Abul Lais would cause an injury on the deceased, there can be no question of Cherag Ali instigating Abul Lais to inflict the knife injury on the deceased or in engaging in a conspiracy with him for causing the injury on the deceased or in aiding him in causing the said injury, as might bring Cherag Ali's act within the mischief of section 107, P. P. C. which defines abetment. Nor can section 108, P. P. C. which defines an abettor can apply to him, since by no stretch of imagination Abul Lais's intention or knowledge could be said to have been the same as that of his. Obviously, Cherag Ali's intention was only to prevent the deceased from removing the existing `ail' to different site. Besides, the plot of land which was going to affected by the removal of the `ail' by the deceased was not There is also nothing to show that he was particularly interested in Abul Lais. His only aim appears to have been to prevent the deceased from illegally encroaching upon the land in Abul Lais's possession. We are accordingly unable to uphold Cherag Ali's conviction. Let us now examine the evidence against appellant Abul Lais. We have already noticed that the learned Sessions Judge found no reason to disbelieve three of the eye‑witnesses namely, P. W. 1 Babru Mia, P. W. 2 Mofiz Ali and P. W. 11 Samru, as he found no reason also to disbelieve P. Ws. 4 to 7 who stated having seen the accused fleeing westward immediately after they heard outcries from the place of occurrence and also having heard from deceased Rajjab Ali that Cherag Ali caught hold of him and Abul Lais dealt the knife blow on his chest. Two of these witnesses again, namely, P. Ws. 4 and 5 stated having noticed a pen‑knife in the hand of appellant Abul Lais. Mr. Sekendar frankly submitted that he was not in a position to assail the credibility of these servant witnesses. We, for ourselves, have carefully perused their evidence. In agreement with the learned Sessions Judge, we have no hesitation in holding that Abul Lais inflicted the pen‑knife injury on Rajjab Ali's chest not because the latter attempted to throttle him but he did so during an altercation over removal of the `ail'. There is nothing on record in support of Abul Lais's plea that the deceased felled him on the ground and upon sitting on his chest tried to throttle him. The injury on the chest resulted in Rajjab Ali's dearth. Abul Lais's act in inflicting the knife injury, Mr. Sekendar did not dispute, amounted to culpable homicide falling within the mischief of section 299, P. P. C. which runs as follows "

299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." The explanations appended to the section are not relevant for the purpose of the present case. It will appear that there are three clauses of section 299, P. P. C., the first two clauses referring to the intention motivating an act which results in death and the third does not refer to any such intention but to knowledge that one's act is likely to result in death. An act of homicide will thus fall within the mischief of the first clause if the act is motivated by an intention of causing death, and so such an act will fall under the second clause if the bodily injury intended is likely to cause death. On the other hand, an act of homicide without any intention indicated either in the first or in the second clause is can attract only the third clause which speaks of a mere knowledge that the act is likely to cause death. Mr. Sekendar submitted that it would not be fair, in the circumstances established in the evidence to hold that appellant Abut Lais had any intention either of causing Rajjab Ali's death or of causing such bodily injury on him as was likely to cause his death. Mr. Sekendar maintained that it was the third clause of section 299 which would be attracted to Abut Lais's act of dealing the knife injury on Rajjab Ali which unfortunately resulted in the latter's death, and that accordingly, he could be sentenced to a term of imprisonment only or fine or both under the second part of section 304, P. P. C. We have given our anxious consideration to Mr. Sekendar's submissions in the light of the circumstances under which appellant Abul Lais inflicted the injury on Rajjab Ali which proved fatal. It is not always easy to distinguish a case of death motivated by one or other of the intentions indicated in the first two clauses of section 299 and such a case attended with the, mere knowledge that an act is likely to cause death.1 In the present case the prosecution did not allege enmity. Nod malice was suggested. The knife blow was sudden. The injury was but one; and no m6re. It was inflicted in the midst of a quarrel over an `ail' which, in our view, could hardly furnish a motive to cause the victim's death: The weapon used was only a pen‑knife. We are unable in the circumstances to arrive at a firm finding as to if Abut Lais aimed the knife blow on Rajjab Ali with intention either to cause his death or to cause such bodily injury on him as was likely to result in his death. It appears to us problematic in the circumstances if Abut Lais inflicted the injury on Rajjab Ali being motivated by any of the intentions indicated in the first two clauses of section 299, P. P. C. It is true that the injury was inflicted on the chest, a vital part of the body. It is also true that the injury affected the pleura and the pericardiam puncturing also the right ventricle of the heart. But the tensity of the moment cannot be overlooked. This excess, by itself can hardly furnish proof of any such intention as indicated in the first two clauses of section

299. We are accordingly of the view that making concessions to which appellant Abut Lais is entitled in the peculiar facts and circumstances of the case, his act of inflicting the fatal injury on the deceased falls within the mischief of the third and last clause of section

299. P. P. C. since he must be presumed to have had the knowledge that he was likely by such act to cause Rajjab Ali's death. That is also the contention of Mr. Sekendar, who frankly conceded that appellant Abut Lais's act constituted culpable homicide falling within the mischief of the third clause of section

299. The question, however, remains whether his act amounted to murder punishable under section

302. P. P. C. Murder is defined in section 300, P.P.C. It provides that except in cases excepted in the section culpable homicide would be murder if the act by which the death is caused is motivated by any of the intentions mentioned in its first three clauses that are referable to the first two clauses of section

299. Section 300 also provides by its 4th clause, with which we are instantly concerned, that such an act when attended by knowledge referable to the third clause of section 299 will be murder in certain circumstances specified in the clause. For a proper appreciation of the point we quote below the relevant provision of section 300 containing the 4th clause :‑ "

300. Except in the cases hereinafter excepted, culpable homicide is murder Fourthly.‑If the person committing the act 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 for incurring the risk of causing death or such injury as aforesaid." It will be evident from the 4th clause of section 300 that culpable homicide of the nature falling under the third clause of section 299 will be murder in the event only of the assailant knowing that his act is so "imminently" dangerous that it "must" in "all probability" cause death or such bodily injury as is likely to cause death. And not only that; the act must be done without any excuse for incurring the risk of causing death or such injury as is likely to cause death. Although we have held that appellant Abut Lais had the knowledge that he was likely by inflicting the injury on Rajjab Ali to cause his death, in view specially of the weapon used being only a pen‑knife we are unable to infer from the circumstances that he knew that his act was so imminently dangerous that it could not but in all probability cause Rajjab Ali's death or such bodily injury as was likely to cause his death. Yet again, it cannot be said that he inflicted the injury on Raj jab Ali without any excuse for incurring the risk as indicated in the clause since upon the finding of the learned Sessions Judge, with which we are in complete agreement, Abut Lais inflicted the injury on Rajjab Ali when he was being dispossessed by Rajjab Ali of a portion of land on which even according to P. W. 1 Babru Mia, the complainant, he had grown paddy. He had thus an excuse for inflicting the injury on Rajjab Ali, which, no doubt, proved fatal. The 4th clause or section 300 cannot accordingly be pressed in aid of the prosecution. Hence he cannot be held guilty of murder, though ha is undoubtedly guilty of culpable homicide. He can only be convicted under section 304, P. P. C. which provides punishment for culpable homicide not amounting to murder. This section has two parts, the 'first being relatable to the first two clauses of section 299 and the second to its third clause under which, we have already held, Abul Lais's offence falls. He is liable, therefore, to be sentenced under the second part of section 304 which provides for imprisonment of either description extending to 10 years, or with fine, or with both. In the circumstances of the case, we think that a sentence of rigorous imprisonment for 5 years will meet the ends of justice. For the foregoing reasons the appeal of Cherag Ali is allowed, and he is acquitted of the charge framed against him. He is directed to be set at liberty forthwith. The appeal of Abul Lais is dismissed but his conviction under section 302, P. P. C. and the sentence thereunder of transportation for life are altered to a conviction under the second part of section 304, P. P. C. and a sentence of rigorous imprisonment for 5 years. AHSANUDDIN CHOUDHURY, J.‑I agree. S.Q. Order accordingly.