P L D 1958 Azad J & K 30 (PLP)

This story of Mst. Makhni has been supported by Kalu P, W. brother of Lala, Mehr Din P. W. and Sattar Din P. W. the nephews of Lala and Sain P. W. who is not related to Lala. (Misri and Mst. Bhubti were not produced.) Apart from these five eye witnesses, Gulab Khan, Kamal Din, Karam Din and Attaullah prosecution witnesses were produced in support of Lala P. W's, version that he received Rs. 200 ; for compounding the felony: During the course of investiga tion, Lala produced Rs. 200 before the Sub‑Inspector in support of his assertion. Doctor M. A. Chaudry P. W. 11 performed the post-mortem examination on the body of Yousaf, aged two years, on 16th December 1955, and found an abrasion on the neck right and left side but he did not notice any ecchymosis on dissection. Of‑course, there was no rigor‑mortis and post-mortem staining were present on the back. He found the following injuries on the dead body :‑ (i) A contusion over the scalp left side opposite to right parital bone 2" x 1". No fracture under it. (ii) Contusion over the scalp left side opposite to left parital bone 1" x 1". There was no fracture underneath it. (iii) Multiple abrasions 10 in number over the front of chest of varying length and breath. (iv) A contusion over the cubital fossa on the left side " x 1". (v) A contusion over back left scalp 2" x 1". (vi) A contusion over the anteremedial aspect of upper 1/3rd of left thigh 3" X 1". However on dissection about injuries 1 and 2 he found the right parital bone to be fractured and there was a blood clot on the brain. In the Doctor's opinion, death was due to injuries No. 1 and 2 " which caused haemorrhage due to rapture of blood vessels and later on shock led to death". The Doctor also examined Mst. Makhni on the same date and found an abrasion 3" x 1" over back of leg upper 1/3rd side and another abruise 2" x 1" on the back of left leg. Injuries were simple. Sain accused denied guilt simpliciter stating that he was implicated because he was the brother of Gulab accused. Gulab Khan accused stated that there was litigation between him and Lala complainant in which the accused succeeded and on the 9th December 1955, he obtained possession of the land through the Patwari and on account of this grievance Lala made a dacoity report against him and the Police came to the spot and that he had heard that 1‑alas son had died due to a fall but Lala had involved them falsely and that originally Mst. Makhni had stated that the boy had died due to a fall accidentally which statement she had made before Attaullah Khan, Inayatullah Khan, Muhammad Zaman an‑i Mutwali Khan. He denied having made a‑promise of Rs. 40C The accused produced Inayat Khan, Mohammad Zaman and Nawab Khan D. Ws. who tried to support the story that actually the boy fell from a wall and died. But in view of the medical evidence, it is impossible to believe that the boy died due to a fall. Obviously the boy would have received the head injuries only, if he fell head‑wise and not the 10 abrasions on the chest and three contusions on the other part of his body. We are not at all impressed by this story of the accidental fall of the child from a wall. It may be remarked that in cross‑examination of Lala, a suggestion was made on behalf of the accused that really his wife had fallen down and the child had accidentally died. This suggestion is clearly not compatible with the defence story that the child had fallen from the wall. We, therefore, disregard the defence as a concoction. The learned Counsel for the accused, however, strenuously contended that it was in evidence that on the enquiries of Abdur Rashid constable, though Maklini, Kalu, Mehr Din, Sain and Sattar Din P. Ws. were present they kept mum and indeed Abdur Rashid constable prepared the inquest report and permitted the child to be burried and that no reliance could be placed on the statements of these eye witnesses. It is true that Makhni is the wife of Lala, Kalu is his brother, and Mehr Din and Sattar Muhammad are his nephews but Sain P. W. is without a doubt, a disinterested witness. This was conceded but it was urged that he having concealed the facts from the Police at the time of the inquest report his present statement was no better than an accomplice's statement. There is some force in the contention of the learned Counsel for the appellants and we are unable to place implicit reliance on the statement of this witness also unless we find it corroborated by independent evidence. According to Sain lie was standing at a distance of about 100 yards when he saw the occurrence and he noted that the child was in the left arm of Mst. Makhni when two injuries were inflicted on the child as also on Mst. Makhni by Gulab Khan and that Gulab Khan had caught hold of Yousaf deceased by the neck and was pulling it. The learned Counsel for the appellants urged that if the statement of Sain was to be believed then the prosecution had failed to account for the other injuries on the body of the deceased However, it is in the evidence of Sain P. W. that he saw the occurrence while he was climbing a tree from a distance of 100 yards and it is also in evidence that Sain accused also kicked and belaboured the mother of the child. In ;our opinion, therefore, there is no contradiction in the statements of Sain P. W., and the medical evidence. On the other hand, we find ample corroboration of the statement of Sain P. W. from the medical evidence, The Doctor found abrasioci,, both sides on the neck of the deceased and he also found two contused wounds on the head of the deceased The cause of the ten abrasions on the chest of the deceased must remain obscure unless of course they were received by the unfortunate child during the mother's scuffle with Sain accused. In this view of the matter, we are satisfied that the statement of Sain P. W., corroborated as it is by medical evidence is reliable and that the unfortunate child met with his death not as a result of a fall from a wall but as a result of two soti injuries on the v head received at the hands of Gulab Khan appellant and we hold accordingly. We also hold that Sain accused inflicted simple injuries to Makhni P. W., as also to the poor innocent deceased child. The question now is what offence, if any, has been committed by the appellants. There is ample evidence on the record to show that at the time of the occurrence the land was in possession of the appellants. Mst. Makhni was taking her cattle through that land. In his further cross -examination Sain P. W. stated that Makhni P. W. had told the appellants not to remove leaves from the trees as the land was her property and they had no connection with the trees and that first Gulab Khan had abused Makhni and that then Mst. Maklini had told the appellants to stop removing the leaves from the trees and Mst. Makhni had pelted stones towards the appellants at the time when Sain was coming down from the trees. It was urged by the learned Counsel for the appellants that in these circumstances Mst. Makhni was committing a criminal trespass into the land in possession of the appellants and that by virtue of section 104, A. P. C., the appellants had a right of private defence against such a trespasser. Ordinarily when villagers pass through the land in the possession of another they cannot be said to do so with the intent to insult or annoy the occupier or the land. However the moment the trespasser asserts a title to the land as in the present case when the land had been decreed only recently to the occupier of the land, it may properly be said that the trespasser is committing a criminal trespass. The learned Government Advocate did not seriously contend that the trespass of Mst, Makhni in these circumstances was not a criminal trespass. However he urged that Gulab Khan appellant had no business to abuse Mst. Makhni first and that in any case he had no business to straight away attack her and beat not only her but the innocent child on the head. He urged that although Gulab Khan could not be said to have intended the death of Mst. Makhni or the child yet he must in the circumstances of the case be fixed with the knowledge that he was likely to cause the death of the two years' child in the arms of Mst. Makhni, the object of his wrath. The learned Govern ment Advocate contended that even though the appellants may be said to have the right of private defence of property, they have exceeded it by killing the deceased and that in the circumstances Gulab Khan was guilty under section 304, Part II, A. P. C. The learned Counsel for the appellants, however, urged that at the most Gulab Khan appellant could be made liable for having caused death by a rash or negligent act not amounting to culpable homicide. Culpable homicide as defined in section 299, A. P. C., is : " 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". It is true that Gulab Khan appellant cannot be said to have malice against the child but malice is not an ingredient of the offence of culpable homicide under the A. P. C. If it can be held that Gulab Khan appellant had the knowledge" that he was likely by his act to cause the death of the child whose death he neither intended nor desired, none the less he will be guilty of culpable homicide as in our opinion, in the circumstances of the case, he must be fixed with the knowledge that he was likely to cause the death of the child which he did. We, therefore, hold that Gulab Khan accused exceeded the right of self‑defence and in any case is guilty under section 304, Part II, A. P. C. We are aware that there' are authorities that while exercising the right of private defence the accused is not expected to measure the intensity of the force in " golden scales". However, as in the present case, when the mother carrying a child is attacked, the accused cannot be heard to say that the measure of force used by him should be lightly regarded, Indeed, as against the child he had no right of private defence. The poor innocent child had not given any offence to Gulab Khan accused (He is on bail and is a hefty looking individual). Taking into consideration all the circumstances, we alter the conviction of Gulab Khan appellant from under section 304, Part I, to under section 304, Part 11, A. P. C., as we hold that the act was done not with the intention but with the knowledge that it was likely to cause death, and reduce his sentence from seven years' rigorous imprisonment to two years' rigorous imprisonment and a fine of Rs. 25 or in default of payment of fine to further two months' rigorous imprisonment. He is on bail and will be taken into custody to serve out his sentence. As regards Sain he also exceeded the right of private defence. When an occupier of land happens to find a trespasser on his land the occupier is not entitled by law straight away to use force against the trespasser as in the present case. What would be the justifiable reasonable self‑help permitted to the occupier would depend upon the circumstances of L each case. In the present case, the appellants should have notified Mst. Makhni to quit immediately and if she refused to do so they could use just enough force to put her out of their field. They, however, started to beat her and unintentionally killed an innocent baby in the bargain. We are unable to agree that even the act of Sain appellant was justifiable to the circumstances. He also exceeded the right of private defence and was properly convicted under section 323, A. P. C. He is on bail and we are not inclined to send him back to prison for a short term and considering also that the right of self‑defence of property is involved. Upholding his conviction under section 323, A. P. C., we reduce his sentence to the term already undergone and a fine of Rs. 30 or in default of payment of fine he will suffer three months' rigorous imprisonment. The appeal is accepted to the extent noted above. K.M.A. Sentences reduced.