P L D 1961 (W (PLP)

MUNSHI, J.‑Agreeing with two assessors and disagreeing with the third, the learned Sessions Judge. Tharparkar, has con victed Ramzan, son of Tamachi of the offence punishable under section 302, P. P. C., and sentenced him to transportation for life. This appeal is directed against this judgment. There was a plot near that of deceased Allabachayo and the prosecution witnesses, which was formerly occupied by some Menghwars. On their migration, the appeAant and his relations came and settled there. This was about 8 to 12 months before this incident. As the hedge between the houses of the prosecution party and that of the appellant was low, he latter wanted to raise a reed wall for the purpose of privacy. He along with others was busy at it on 26‑12‑58. when at 10 p.m. complainant Sawan came after closing his shop. On seeing the appellant on this side of the wall, he raised objection and charged the appellant with having committed trespass. On t1fis there was an altercation which attracted Allahbachayo, Mst. Sabo and Sawan son of Yar Mohd. Allahbachayo also objected to the appellant having trespassed upon their land. Then, it is the case of the prosecution, that the appellant who had a hatchet in his hand dealt a blow to Allah bachayo on his head as a result of which he fell to the ground. Mst Sabo and Sawan were also dealt blows with lathis and stones. Leaving Allahbachavo there, Sawan went and lodged a report with the police. The police, after completing the investigation chal laned the appellant and his two brothers Ali Muhammad and Saboo and one Ishaq son of Yousuf. The learned Judge convicted and sentenced Ramzan as indicated above and the rest under section 323, P. P. C. The last three have not preferred an appeal. This judgment will therefore deal with the case of Ramzan alone. Ramzan, in his statement has denied the allegation. His case is that the complainant wanted to evict him and his party in order to gag hold of the plot on which they had settled. He denied the recovery of any hatchet or shirt from his possession. In the Sessions Court, he stated that there was a lane 5 or 6 ft. stated that there was a lane 5 or 6 ft. wide close to their house. They were asked by Tharo Sawan and Moto to close tip the lane for the sake of privacy, and as during day time they had to earn their livelihood they were erecting the wall at night, and that while they were doing so, some women and men armed with lathis and hatchet came and started abusing them. On account of fear, he scaled the wall and went over to his side. Ire denied having given any hatchet blow to Allahbachayo. His case is that the prosecution party attacked them with stones and brick‑bats and he also threw stones at them. There is no doubt that Allahbachayo died of the injuries he had received. This point is not in dispute. The main question is whether the prosecution version that the appellant dealt hatchet blow to the deceased is true or the defence version that the injury was caused with a stone hurled at him is true. The decision whether the version given by the prosecution is true or that of the appellant, in our opinion depends mostly on the appreciation of the evidence of the medical officer who had con ducted post‑mortem examination on the body of the deceased. The medical officer observed two injuries on the body of the deceased. They were :‑ (1) One incised wound on the left parietal bone near, the centre cutting the bone below and fracturing all the left temporal into 2 pieces upto the ear 4" x 1" bone deep. (2) One contusion on the left eye‑brow above and lower lid with a haematoma around." According to his statement in the earlier part of the examination -in‑chief, injury No. 1 appeared to him to have been used by a sharp cutting weapon, while No. 2 appeared to have been caused by a blunt weapon such as a brick‑bat. In his opinion "it was not possible that the second injury could be the result of the first injury." Later, during the course of the same examination‑in -chief he, however, stated "I have again carefully considered and feel that external injury No. 2 was result of injury No. 1." The perusal of his evidence would also show that it was not improbable that injury No. 1 was caused with a stone having a sharp‑edge. This is clear from his statement made when questioned in respect of injuries on the person of witness Sawan. He noticed two injuries on his person, one of which was an incised wound, which, in his view, was caused by a sharp cutting weapon. He has further stated that this injury could also be caused by a brick‑bat if its edge was sharp. Similarly in the case of Sabu, he observed one incised wound on the left parietal bone, which, according to him, was caused by a sharp cutting weapon such as "hatchet or a brick‑bat having a sharp‑edge," He has further stated that if the edge of a blunt substance is sharp, it is likely to leave an incised injury on the body of the person. Down below in cross‑exami nation, the medical officer has stated that a sharp instrument can also cause wide fracture. So, this evidence, to a great extent, lends support to the version given by the appellant that there was an exchange of stones. Even the mashirnama shows that there were piece of pucca bricks lying at the scene of offence. Besides, the admission on the part of one of the prosecution witnesses that they had permitted the appellant to raise the wall, also lends support to the defence version. The admission is also inconsistent with the prosecution theory that the appellant had a hatchet in his hand at the time when he and his men were busy erecting the wall. There was no point in carrying a hatchet at that hour of the night, when what they were doing, was being done in pursuance of an agreement. The judgment itself shows that the wall being raised in pursuance of an agreement. Besides, even according to the prosecution all that the deceased did out arrival, was to object to the raising of the wall. Surely this could no be the reason for a deadly attack on him with a hatchet on the part of the appellant. The hatchet said to have been recovered from the possession of the appellant and the shirt which he was wearing were, on analysis, found to have been stained with no blood. All these facts and circumstances have therefore led us to the conclusion that the injury of which the deceased died was caused with a brick‑bat hurled at him. It was night time and hence it cannot be said that the appellant aimed at the head of the deceased when he threw the stone at him. The stone might as well have fallen on some less vital part of the body. * There is nothing on record to show that the appellant when he threw the brick‑bat at the deceased, did so with an intention to cause his death. There .is admission on the part of a witness that therefore this incident, the parties were on good terms. The appellant therefore had no reason to cause the dearth of Allahbachayo. The offence of which the appellant can be held guilty would therefore be at the most one under section 304 (2), P. P. C. Vie therefore alter the conviction of the appellant from one under section 302, P. P. C. to that under section 304 P. P. C. and reduce the sentence of transportation for life to R. I. for 5 years. With this modification in the judgment we dismiss the appeal. S.B. Sentence modified.