1968 P Cr (PLP)

P. W. 6 is Tarikullah. He came after the occurrence and on his enquiry Latif stated that Bhulu hit him with a dagger at the abdomen and Muklis hit him at the right thigh with dagger. On the witness's asking as to why they did it, Latif stated that it was on account of money due to him from Bhulu. The witness also stated that P. Ws. 1 and 3 stated that they saw the two accused assaulting Latif. The witness also stated that P. Ws. 4 and 5, namely, Safiullah and Ayash Ali respectively stated that they saw two persons running away and guessed that those two could be Bhulu and Muklis. Mr. Muntaquim has argued that this "guessing" is indicative of the fact that the two witnesses P. Ws. 4 and 5 have not actually seen the assailants running away. We have not placed much importance to the evidence of P. Ws. 4 and 5 in the matter of their seeing the two accused running away but there is no reason to disbelieve them so far as they heard the names of the assailants from the mouth of the dying man as well as from the two eye‑witnesses P. Ws. 1 and

3. There was also an infructuous suggestion to P. W. 6 to the effect that the accused had set up another bazar and on account of that the Chairman and others bore ill‑feelings towards the accused persons. The witness P. W. 6 in cross exanimation also stated that he did not remember if he stated to the I. O. that Arju and Jamshed stated that they caw the accused assaulting and that Safiullah and Ayash Ali stated that they saw two persons running away. The I. O. was confronted on this question in a rather clumsy way and he stated that P. W. 6 did not tell him that Arju, Jamshed, Safiullah and Ayash Ali told him that they recognised the accused. What was asked to the witness was as to whether he stated to the I. O. that P. Ws. 1 and 3 stated that they saw the accused assaulting and that Safiullah and Ayash Ali stated that they saw two persons running away and what the I. O. was asked was in a very general fashion on the point of these witnesses speaking about recognition. So what was elicited from the I. O. does not in any way help the defence. P. W. 7 is Raquibun Raza, the doctor who held the post mortem examination on the dead body of Latif on 26th of September 1966, at 12‑30 p. m. He found the following injuries on the dead body :‑ "(1) One penetrating wound 1" x " x 1 " directed upward and backward on the upper third of the anteriomedial aspect of the right thigh. Dissection of this injury No. 1, I found the right phemoral artery injured and perforated along with soft tissues in the course of the wound. One penetrating wound 2 " x " abdominal cavity on the another aspect of the right lumber region. Soils of the small intestines were seen protruded out of the wound. On dissection of the wound No. 2 the small intestine was found perforated in addition to the peritonium and anterior abdominal wall. There was collection of blood inside the abdominal cavity. The stomach was healthy, contained one ounce of juicy material, the urinary bladder was healthy and full. Other organs were healthy." In the doctor's opinion death was due to the injuries as above and those were anti‑mortem and homicidal injuries. The doctor was also of the opinion that both the injuries were grievous in nature and could have been caused by sharp weapon like dagger and that both the injuries could independently cause death in the ordinary course of nature. In cross‑examination the witness stated that the nature of the injuries of the deceased would permit him to be in sense in the absence of first aid up to around half an hour in spite of bleeding but if the bleeding could be prevented by pressure the injuries of this nature would permit the injured to continue to be in sense and the injured may even never loose sense In that case. The injuries as above were without doubt homicidal injuries but the doctor's opinion with regard to the state of sense of the dying man as elicited in cross‑examination as above has been sought to be made much of by the learned counsel about which we have given some hint before. Mr. Muntaquim wants to say that the story of bandage was invented for the purpose of making it feasible for the dying man to name the assailants. We will examine this question later in detail. P. W. 8 Md. Bakhsh is the constable who was deputed to bring over the injured. He found the injured bandaged in the abdomen with a Gamchha round about 10‑30 p. m. This witness also stated that on the way near Akhalia the deceased wanted water and there they stopped the taxi and brought water for him The witness in cross‑examination stated that no intestine came out under the bandage. So that bandage or no bandage, here is some evidence that the dying man was in a position to speak even after 10‑30 p.m., and the clear evidence of this witness is that he saw the bandage on the abdomen with Gamchha. P. W. 9 is Abdur Rahim. He is a cousin of Latif and he identified the dead body to P. W. 2 Aminul Islam who held the inquest and also identified the dead body to the doctor who held the post‑mortem examination. P. W. 10 Abbas Ali, P. W. 11 Asadullah and P. W. 14 Arched Ali have also stated having seen the bandage on the abdomen and thigh of Latif. Therefore, there is clear evidence that bandage was there and it is not a subsequent creation to fit in with the doctor's evidence. So far as P. Ws. 1, 3, 4‑and 5 go they have not been brought from any distance to hear from the mouth of the dying man; they were there very close-by and even assuming that Latif could speak only half an hour without bandage, they were there within that half an hour to hear him. It is only P. Ws. 10, 11 and 14 who had to come from some distance and might therefore be late for hearing the dying man after the lapse of half an hour. The bandage having been there these questions are more or less academic. There is also no reason to disbelieve P. Ws. 10, 11 and 14 on the point. P. W. 10 is Abbas Ali. He stated that he heard from Latif that Muklis hit him at the thigh and Bhulu hit at the abdomen with daggers as Latif demanded money due to him. There was no confrontation of this witness with regard to his previous statement to the I. O. and we see no reason to disbelieve him. P. W. 11 is Asadullah. He also claims to have heard from Latif that Muklis hit him on the thigh and Bhulu on the abdomen with daggers as Latif demanded money. In cross‑examination he stated that he did not remember if he stated to the I. O. that Latif stated to him that the occurrence took place on his demand ing money. It appears that to the I. O. P. W. 11 did not state that the occurrence was over a claim of money but that is a very insignificant omission. P. W. 12 is Abdul Hamid constable who escorted the dead body. P. W. 13 is Abdul Matlib who stated that Bhulu took Rs. 18 on the first week of Sraban 1373 B. S., and the accused took the money on condition of giving a Pali of paddy. The accused did neither pay the paddy nor returned the money. He also stated that on the 8th of Aswin Latif went to Kaligonj bazar and that while going told him that Bhulu would pay the money that day. This witness P. W. 13 is a full brother of deceased Latif. In cross‑examination the witness stated that his brother Latif went to the bazar, that day only for realising the money. Mr. Muntaquim, the learned counsel has argued in the light of this evidence of this witness P. W. 13 that there is no evidence that either the accused or the deceased Latif was seen in the bazar that day. What the witness stated was that the deceased while leaving the house told him that he was going to the bazar for realising money and that Bhulu would be giving him the money that day. What P. W. 13 stated does not amount to saying that the deceased actually reached the bazar that day. The place of occurrence was very close to the bazar. There is, therefore, no question of his being actually seen in the bazar with the accused. P. W. 14 is Arshed Ali‑the person in front of whose shop the body of Latif was placed. He saw that the wounds in the thigh and abdomen were bandaged as stated above. P. W. 15 is Syed Ali who was tendered for cross‑examination but it was declined. P. W. 16 is the I. O. Nasiruddin Ahmed who visited the locality on the 26th of September 1966, and saw the place of occurrence as pointed out by P. Ws. 6, 1 and 3 ; he prepared a sketch map wherein he placed the place of occurrence as "D". The distance as given by him between Kaligonj bazar and the place of occurrence is less than a mile. But this evidence, namely, less than a mile means no thing. It may be 400 or 500 cubits and in any event it is evasive evidence. We accept the distance as given by P. Ws. 1 and

3. The two defence witnesses are D. Ws. 1 and

2. D. W. 1 Fazlu was a boy of 12 years whose intelligence it seems was not even tested. D. W. 2 Rifatullah is in the opposite direction in age; he is 75 years. The names of these two witnesses were not mentioned earlier the defence did not file any list of defence witnesses but on special prayer two days previous to the trial, they were brought forward for deposing in favour of the defence. D. W. 1 stated that accused Muklis and Bhulu went to his house on the 8th of Aswin. In the evening they started from their Bari and when they reached near the house of Tarikullah at about 7 or 8 p. m., they saw 10/12 persons among whom were P. Ws. 1, 3, Latif, P. W. 14 and others. They were standing on the pathway near the house of Tarikullah. As soon as the witness's party reached near them Arju caught hold of the witness and tried to snatch him away ; then he caught hold of his brother Bhulu by the waist and deceased Latif then caught his brother from behind by the waist. From a pull D. W. 1 fell down and screamed out. At once other persons came and caught his brother and began to assault him and the head of his brother was fractured. In the meantime he got free and ran away. In cross‑examination the witness stated that Bhulu's head was fractured in two places‑one at the front and another at the back and the back injury was a depressed one going about four finger deep and that Bhulu and Muklis went to their Bari that day to attend Aklka. Now it is strange that with such injury Bhulu was not examined by any doctor. The imagination of the witness also seems to be very fertile having regard to the exaggeration of the injury sustained by Bhulu, if any. His story of Aklka has not found any support from the other D. W., in the case. This witness D. W. 1 stated in examination‑in‑chief that Arju, Jamshed, Latif and others were standing on the pathway near the house of Tarikullah while in cross‑examination he stated that they were sitting on the bank of the river. His evidence, therefore, seems defective inherently also. D. W. 2 also stated that them was an incident over Fazlu who was held up but he disclaimed any knowledge that Fazlu was a Ghatu boy. The defence case being that Fazlu was a Ghatu boy and over him the fight took place it was essential for them to substantiate that Fazlu was a Ghatu boy first before proving that the incident was over him. There is no sense in the scuffle over Fazlu until it is made out that he was a Ghatu boy. It is strange that this witness D. W. 2 though he learnt that Fazlu was held up, he did not enquire as to who held him up. The witness has given a good conduct certificate to Latif, thus to a great extent reducing the strength of the defence case that the incident was over a Ghatu boy. The defence case as a whole was also that Bhulu and Muklis sustained injuries. This could not be proved by any medical evidence. Having regard to the circumstances as above we hold that the prosecution case has been proved beyond reasonable doubt and the defence suggestion of the incident over a Ghatu boy remains a mere suggestion only. Mr. Muntaqium, learned counsel has next argued that the circumstances of the case are such that Exception 4 to section 300 of the Penal Code may be attracted to this case. Exception 4 reads as under :‑ "Culpable homicide is, not murder if it is committed without premeditation in a sudden fight in the heat of passion upon, a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." Here the deceased Latif was alone while the assailants were two in number and both of them were armed at that. Latif had no arms with him. There is no scratch even on the accused party. It seems that the injuries were also inflicted in cruel manner. The application of Exception 4 to section 300 of the Penal Code therefore, is ruled out. This view of ours finds support in the case of Sikandar v. The State (PLD 1966 SC 555). Reliance has also been placed on the decision of this Court in the case of Ekram Hossain and others v. The State (13 D L R 431). The clear evidence of so many witnesses however being that there was heated exchange of words and altercation and even threat of force, we may take those circumstances as an extenuating s factor for justifying the lesser sentence of transportation for life and in that view of the matter, we set aside the sentence of death as passed upon the appellants Bhulu and Muklis reducing it to transportation for life. The appeal is, therefore, dismissed and the reference is thus rejected. ABDUL HAKIM, J.‑I agree. Appeal dismissed.