P L D 1958 (W (PLP)

(9) Bluish contusion mark on the breast bone, 1" x 1". The bone was fractured. (10) Bluish contusion mark above the right nipple directed downwards and outwards, 3" X 1". Second, third and fourth right ribs were fractured underneath. (11) Bluish contusion mark on the back of right shoulder, 1" x 1". (12) Transverse abrasion on the back in the middle line below the chest, 1" x ". Edges of all the bones were blood‑stained. In the opinion of the doctor, death was due to depressed fractures of the skull. The doctor was also of the opinion that injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death: The appellant made 'the following statement before the committing Magistrate:‑ "I was coming to my house after taking a bath at the well. On reaching my house, I heard the cries of Mst. Farzand Begum, wife of my brother Lal Hussain. On entering the house, I found Fazal Ilahi deceased criminally assaulting her. I tried to rescue her, at which Fazal Ilahi assaulted me. Thereupon, I took up a stick lying in the courtyard and gave him injuries. No occurrence took place outside my courtyard on the pathway and none of the other accused was with me". The appellant stated before the Sessions Judge:‑ "I did not state before the committing Magistrate that when I entered my house I had found Fazal Ilahi beating Mst. Farzand Begum. I had stated there that I found Fazal Ilahi deceased making an indecent assault on Mst. Farzand Begum". The learned Sessions judge has appended the following note to this statement:‑ "The statement of the accused was read out to him from the Urdu record where the word "mar" is used, but in the English record, the word "criminal assault" is used". It appears that the Reader translated the word "criminal assault" into "mar". The learned Sessions judge held that the eyewitnesses had not seen the occurrence and that the prosecution version that Fazal Ilahi's dead body was dragged from the lane into the appellant's courtyard was not supported by the medical evidence. The learned Sessions judge accepted the appellant's version as would appear from the following passage occurring in his judgment:‑ "In the circumstances of the case Fazal Hussain accused's version has to be accepted as correct. According to this version Munshi and Pehlwan accused had nothing to do with the crime and Fazal Hussain accused alone was res ponsible for the death of Fazal Ilahi deceased. According to this confessional statement his assault was in the exercise of right of private defence, and on grave and sudden pro vocation, but it appears to me that he exceeded the right of private defence, for such a serious assault on the deceased .was not necessary to prevent him from proceeding with the indecent assault. Whether his assault be regarded in the exercise of right of private defence or excited by grave and sudden provocation, the accused appears to me, in the circumstances of the case, 'to be guilty of an offence of culpable homicide not amounting to murder". The learned counsel argued that the onus of proving the guilt of an accused always lies on the prosecution. He further argued that once the prosecution evidence is rejected, the accused is entitled to acquittal in spite (if a qualified admission of guilt, as in the present case. He was, however, unable, to cite any direct authority on the point and relied on Safdar Ali v. The Crown (P L D 1953 F C 93). I have carefully gone through this judgment. In my opinion; the above case does not support the proposition put forward by the learned counsel. On the contrary, the following authorities, which were not cited at the bar, lay down that an accused can be convicted on his own statement, even if the prosecution evidence is rejected. In Bhola Nath v. Emperor (A I R 1929 All. 1), Mookerji, J. made the following observation:‑ "If, on the whole of the statement of the accused person, taken together, his guilt is established, and his plea, say, of acting in self‑defence or of the case falling within any of the general or special exceptions are not made out on the facts admitted, there cannot be any bar to a conviction, simply because the prosecution evidence, by itself, would not have secured a conviction. Let us take this example: A is charged with murder. The prosecution evidence is vague and not conclusive. A on being questioned makes the following statement "The deceased, two days before the murder, insulted me, in open market, by abusing me and by beating me with a shoe. .On the day of occurrence, I found him returning to his house alone and I struck him with a lathi, he fell from the high ground on which he stood and thereby broke his head". The medical evidence, let us suppose, points to only one lathi blow on the back of the deceased and is consistent with the accused's statement. Can the accused person be convicted of murder? Let us assume, there is no eye witness worthy of belief and the Court is bound to disbelieve the witnesses, I suppose it would be impossible to convict A of murder. But A may surely be held guilty of causing simple hurt, on his own statement. He has nothing to complain of, if his whole statement be accepted and he is convicted on it. He need not have made a statement, but having made one, he may be held guilty, on it". Similarly, a Bench of the Sind Chief Court held in Gul Muhammad v. The Emperor (A I R 1945 Sind 42) as follows:‑ "The statement of an accused recorded under section 342 can be treated as evidence. It has no less probative value than any other "matter", including sworn testimony, which may be taken into consideration against him within the contemplation of the definition of 'proved' in section 3, Evidence Act". A full Bench of the Calcutta High Court held in Crown v. Surjya Mumar Sen (147 I C 32):‑ "If a person voluntarily, elects to put on record a state ment of his criminal activities, and thereafter neither repudiates that statement nor offers a reasonable explana tion of it, he has no grievance whatever if the Court regards that statement as conclusive against him. In such circumstances there is no burden placed on the Crown of establishing the truth of the admissions of guilt aliunde". It will be seen from the above authorities that there is no l force in the argument of the learned counsel. The only limitation which the law places on the use of an accused's A admission or confessional statement is that it has to be taken as a whole. I have carefully considered the statement of the appellant before the learned Sessions judge in the light of this principle. The appellant stated that when he entered the house, he found the deceased making an indecent assault on Mst. Farzand Begum. This statement does not bring the case within "Thirdly" of section 100 of the P. P. C. In order to attract the provisions of section 100, "Thirdly", the assault must be with the intention of committing rape. It cannot, however, be denied that .the appellant must have received grave and sudden provocation on seeing the deceased com mitting indecent assault. on Mst. Farzand Begum. His case is, therefore, covered by Exception 1 to section 300 P. P. C. The learned counsel urged for the reduction of the sentence, In all the circumstances of the case, a sentence of three years' rigorous imprisonment will meet the ends of justice Accordingly I reduce the sentence imposed on him from five years to three years, Except for this modification of the sentence, the appeal is rejected. K. B. A. Appeal rejected. Sentence reduced.