P (PLP)

ABDUL MAJID, C. J.--‑Two brothers, Amar Ali and Hidayat Ullah were prosecuted under section 304 A. P. C., for causing greivous injuries to fellow‑villager Ali Afsar on the 29th April last which resulted in his death two days later. The learned Session Judge considered that the 'injuries suffered by the deceased were such as to cause his death in the ordinary course of nature. The learned Sessions judge accordingly convicted both the accused under section 302 A. P. C., and sentenced each of them to death. The convicts have appealed. The record of the case is also before us for reporting to the Government for the confirmation of death sentence passed on the accused. The prosecution case stated briefly was that shortly before the occurrence the cattle of the accused trespassed into the garden of the deceased. The deceased drove out the cattle. Amar Ali accused abused the deceased and questioned the latter why he had driven out the cattle. Soon after Hidayat Ullah accused and the wives of the two accused 'came running towards the spot. The accused hurled stones at the deceased and beat him with stones after he had fallen down. The wives of the accused then gave kicks and fist blows to the deceased. The father of the deceased placed him on a charpoy and proceeded towards the police station. The accused party, however, beseeched the deceased's party not to report the matter to the police. The accused party accordingly brought the deceased's party back to the village. The condition of the deceased became somewhat precarious after a day or so. The deceased was then taken to the police station and a report was lodged there on the 1st May, 1948. 'The police got the deceased medically examined. The deceased who was unconscious when he was taken to the police station was admitted into the hospital. The deceased breathed his last on the 2nd May 1948 when an autopsy on the body was performed. The story about the attack on the deceased was supported by his father, Akbar sad brother, Ali Haider. Both these witnesses claimed to have witnessed the occurrence. They said that when the deceased drove the cattle out of the garden and cried loud to Amar Ali accused to take them away, Amar Ali accused him and then the accused and their wives ran towards him and beat him. The appellants denied that they had beaten the deceased. They pleaded that at the time of the occurrence they were not present near about the scene of offence. The accused examined one witness in support of their defence. The learned Sessions judge after weighing the evidence produced on both sides carefully concluded that the deceased received injuries at the hands of the appellants which resulted in his death. The learned Sessions judge accordingly convicted and sentenced the accused as stated‑ above. At the time of giving F. I. R. Muhammad Akbar P. W. did not state that any one of the accused was armed with a lathi and the deceased received any lathi blow. Muhammad Akbar also did not mention that the wives of the accused had thrown stones at the deceased. At the time of the trial Muham mad Akbar stated that Amar Ali accused had given a lathi blow to the deceased but he could not say on what part of the body deceased was hit with a lathi because he observed the beating from a distance. This witness also mentioned that wives of the accused had thrown stones at the deceased. The learned counsel for the appellants has urged that the improvement made by Muhammad Akbar in the original story at the time of the trial shows that he is not a truthful witness and consequently his statement should not be relied upon so far as the question of the complicity of the accused in the crime is concerned. The learned counsel for the appellants has also urged that there are material discrepancies in the statements of Muhammad Akbar and Ali, Haider P. Ws., and this fact indicates that they are not the eye‑witnesses of the incident. The learned counsel for the appellants has further urged that the alleged eye‑witnesses of the occurrence are blood relations of the deceased and their evidence consequently can not be accepted as correct. The learned counsel for the' appellants has lastly contended that the matter was not reported to the police promptly and this fact indicates that the assailants were some unknown persons and the accused were substituted for them subsequently. We have examined all the contentions of the learned counsel for the appellants thoroughly and we are of opinion that non of them is tenable. It is true that in the F. I. R. no mention of any stick used by the assailants‑ of the deceased in beating him was, made and it was also not stated that wives of .the accused had taken any part in the beating administered to the deceased. The improvement made by the eye‑witnesses in the original story at the time of the trial, however, is not such' as to reject their evidence altogether. It only shows that the witnesses attempted to exaggerate the actual incident of beating in order that the assailants might not be lightly treated. The discrepancies pointed out in the statement of the eyewitnesses are too meticulous to be taken into consideration, The incident happened in the garden of the deceased and could only by observed by his relations and not by any outsider. The delay in making the F. I. R. has been sufficiently explained. The accused have given no explanation why they were falsely implicated in the case. Had the assailants been other than the accused then, some strong motive was required for the relation of the deceased to substitute the accused for the real assailants. The occurrence hap pened in broad day light. It cannot be said that t e accused were victims of mistaken identity. The evidence led by the accused in defence is simply to be read in order to be rejected. We are, therefore, convicted that it was the accused and none else who caused injuries to the deceased which resulted in his death. It now remains to be seen whether the offence committed by the appellants fell under section 302 or 325 A. P. C. The medical evidence shows that the deceased suffered two injuries on the front portion of his head and one on the right shoulder. The last injury had dislocated the front side. Of the two other injuries one has caused the separation of the suture on the right side of the front portion of the head. The brain had also been injured and clots of blood were observed on it. The death according to the Doctor resulted from the injuries to the brain. The injuries were thus caused with sufficient force and death could result from them in the natural course of things. The attack on the deceased was, however, sudden and assailants would have armed themselves with deadly weapons before proceeding towards the deceased instead of picking up stones in the way and throwing them at the deceased. In the circumstances we are of opinion that the offence committed by the appellant could not be held to be more serious than one under section 325 A. P. C. The appellants picked up stones heavy enough td cause grievous injuries and they must, therefore, be held to have had at least the intention to cause grievous hurt. Accord ingly we alter the conviction of the appellants from under section 302 to one under section 325 A P. C. As regards the punishment we are of opinion that the appellants do not deserve to be lightly treated though the fight was apparently sudden and no previous enmity has been established. We accordingly set aside the sentence of death .passed on the appellants under section 302 A. P. C. and sentence each of them to five years' rigorous imprisonment under section 325 A. P. C. The appeal is accepted to this extent. K. M. A. Appeal accepted.