1984 P Cr (PLP)

S. 302-Murder-Evidence, appreciation of--Ocular testimony receiving substantial corroboration from apprehension of accused on spot, recovery of blood-stained churri, report of Chemical Examiner and medical report--Conviction maintained in circumstances.

S. 302 read with Ss. 300, Exceptions 4 & 304, Part II-Murder --Offence, alteration of-Incident preceded by altercation between deceased and accused in morning in which deceased rebuking accused-Accused inflicting injuries on deceased without premedita tion and at spur of moment-Accused, held, not having requisite intention to commit murder-Conviction under S. 302, P. P. C. altered to one under S. 304, Part II, in circumstances. Muhammad Nazir Alam for the State. HAIDER ALI PIRZADA, J.-The appellant who has been sentenced by the learned IIIrd Additional Sessions Judge, Haiderabad to death for the murder of one Abdul Waheed and has also been ordered to pay a fine of Rs. 5,000 in default to undergo R. I. for six months more out of amount of fine realised Rs. 2,000 shall be paid to the heirs of the deceased as compensation as provided under section 544-A, Cr. P. C. has come up in appeal against his conviction and the fine imposed upon him. We have also a reference from the learned IIIrd Additional District Judge for confir mation of the death sentence awarded by him to the appellant. This judgment will dispose of both the appeal preferred by the appellant and the reference made by the HIM Additional District Judge for confirmation of death sentence. The prosecution case, shortly stated, is that Alamgir complainant lodged F. I. R. at Police Station Tando Muhammad Khan, stating therein that, he is mason, his brother Abdul Waheed was also working as mason in Fauji Sugar Mills, Tando Muhammad Khan. As usual on 8th May, 1981 his brother left for duty. At about 10 a. m. the complainant and Muhammad Shoaib left for meeting the deceased at Fauji Sugar Mills, for consultation of some domestic work. At 11-30 when they reached near pond within Fauji Sugar Mills area, they saw one person inflicting churri injuries to Abdul Waheed on his stomach, who was raising cries. Abdul Waheed after sustaining injuries fell down. The other labourers namely Ismail, Abdul Ghafoor and Singhar were standing there, in their presence accused after inflicting two churri blows tried to escape but accused was apprehended on the spot with blood-stained churri by complainant Muhammad Shoaib, Muhammad Ismail, Abdul Ghafoor and Singhar. The injured Abdul Waheed told them that the appellant had taken leave for half an hour from him at 7 a. m. thereafter went to his house but he returned after sufficient long time on which he (Abdul Waheed) asked the appellant as to why did he not return earlier because in case of checking by General Manager of the Mills, he would have not able to make proper reply because of which the appellant was annoyed. Abdul Waheed rebuked the appellant as a result of which he went away and came after some time with churri and inflicted injuries to him. Security Officer and other persons had also collected there the complainant leaving behind the appellant in their custody removed the injured in Ambulance of Mills, for hospital and after reaching hospital within five to ten minutes died. The complainant Alamgir went towards Police Station which is one and half miles from scene of offence and lodged the above F. I. R. Additional S. H. O. Karim Bux, after recording the F. I. R. proceeded to scene of offence where he saw the appellant who was apprehended by P. Ws. Sanghir Khan, Muhammad Ismail, Abdul Ghafoor and Muhammad Shoaib. He arrested the appellant who was apprehended by P. W. Sanghir Khan, Muhammad Ismail, Abdul Ghafoor and Muhammad Shoaib. He arrested the appellant and prepared mashirnama. P. W. Sanghir Khan produced blood-stained chhurri which was secured and sealed by him. According to Sanghir Khan the blood-stained churri was snatched by him from the appellant. He prepared mashirnama of arrest and recovered blood-stained churri and obtained signature of Muhammad Shoaib and Abdul Aziz. He thereafter visited the scene of offence. He secured blood-stained earth from the scene of offence and also secured one chappal of deceased, prepared mashirnama and obtained signatures of mashirs. He went to the hospital and found that injured lying dead. He prepared mashirnama of dead body of Abdul Waheed in presence of Sanghir Khan and Bashir. He prepared the inquest report of the dead body. He handed over dead body to the doctor for post-mortem examina tion in same condition. He produced P. Ws. Sanghir Khan, Muhammad Shoaib, Muhammad Ismail and Abdul Ghafoor before the Magistrate (Mukhtiarkar and F. C. M.) Tando Muhammad Khan for their statements under section 164, Cr. P. C. He also gave letter to mukhtiarkar in order to depute Tapedar for preparation of sketch of scene of offence. He sent the case property including crime weapon for report of Chemical Analyser. The report of the Chemical Analyser was produced as Exh. 25. "(1) A stab (penetrating wound 2.3 cm. x cm. deep in organs underlying on the mid-line of epigastrium 13 cm. above umblicus. (2) A stab wound (penetrating wound 2-5 x 4 c.m. x deep to organs on right lumber region on front-cum-right and slight above umbicus. Shirt over-line also cut corresponding to injuries." `Abdominal wall was cut by injuries mentioned peritoneum also cut corresponding to injuries stomach was empty contain ing gases. Small intestine and large intestine cut by injuries." From the external and internal examination of dead body Medical Officer was of the opinion that death is due to shock and haemorrhage as a result of injuries which seems to have been caused by sharp-pointed weapon as knife. The Medical Officer estimated the time between the injuries and death as between 40 and 50 minutes. It is pertinent to note that the Medical Officer has not expressed arty opinion that injury 1 or 2 was sufficient to cause death. The defence of the appellant was that Abdul Ghafoor and other witnesses suspected that he was on illicit terms with the wife of Abdul Ghafoor whose house he used to visit for purchasing milk for selling. Further according to him he was arrested from his house and not from the place of vardat and that on the day of incident he was not on duty. In support of their case against the appellant, the prosecution have examined as many as three eye-witnesses namely P. W. Alamgir Exh. 8, P. W. 4, Muhammad Shoaib Exh. 15 and P. W. 5 Singbar Khan Exh. 19. From the deposition of P. W. No. 8 Muhammad Aslam overseer in Fauji Sugar Mills, it is clear that Chowkidars are posted on every gate of the mills. An outsider had to enter in the Mill area, from the main gate after getting a gate-pass from the gate-keeper. As such it is doubtful that P. W. 2 Alamgir and P. W. Muhammad Shoaib entered the Mill area at 11 a. m. and witnessed the incident. The reason for their visiting the mill namely, to have consultation about domestic matter about which talk was going on for about a month prior to the incident seems to be highly improbable, particularly with P. W. Muhammad Shoaib who was not related to the complainant and the deceased: It is possible that they might have come after the incident. The exclusion of the testimony of P. W. 2 Alamgir and P. W. 4 Muhammad Shoaib does not in any way impair the prosecution case as the remaining one eye-witness has fully supported the prosecution case who had no motive to falsely implicate the appellant. Singhar Khan is an independent and disinterested witness. He has stated that in the morning he had found Abdul Waheed and the appellant having altercation between them. They were also abusing to each other. He was working on fitter machine alongwith others. He came out from the room and heard commotion. He saw Abdul Waheed having injuries which were bleeding and he found appellant running and apprehen ded him. He caught held of appellant and snatched the blood-stained churri from him. He witnessed the incident cannot be doubted. The sketch of scene prepared by the Tapedar clearly establishes that he had witnessed the incident. The learned IIIrd Additional District Judge inspec ted the place of vardat on 22nd July, 1983 in the presence Mr. Abdul Majeed A. P. P. and Mr. Allauddin defence counsel which clearly states that sketch prepared by the Tapedar Exh. 7 shows correctly the points and distances including the place where P. W. 5 Singhar Khan is said to be standing. The P. W. 5 Singhar. Khan has been subjected to lengthy cross-examination but nothing has been brought out which would make us disbelieve or doubt his evidence. The ocular testimony receives substantial corroboration from 4 separate circumstances, namely the apprehension of the appellant on the spot, the recovery from him of a blood-stained churri, according to the Chemical Analyser it was stained with human blood and finally the medical report. The P. W. Singhar has deposed that he chased the appellant and apprehended him and snatched the blood-stained churri from him. We are_ not impressed with the story of the appellant that he did not attend duties on 8th July, 1981 and was arrested from his house. It is worthwhile to mention here that the appellant in his statement under section 342, Cr. P. C. has stated that he was suspected of having illicit relations with wife of Abdul Ghafoor. It is significant to note that the defence counsel has failed to put even a single question to the complainant Alamgir, Muhammad Shoaib and Singhar Khan. We are, therefore, convinced that the appellant inflicted two injuries to Abdul Waheed. The medical evidence further leads support to the ocular evidence. We have already referred to the motive in the F. I. R. which impelled the appellant to inflict above injuries with kitchen churri. There remains for consideration the important question as to what offence has been committed by the appellant. It is an admitted position that in the morning there was an altercation between the deceased and the appellant. The deceased rebuked the appellant, which infuriated him resulting in causing above two injuries. The appellant had no motive to commit a premidated murder. It seems that the appellant at the spur of the moment inflicted the above injuries on the deceased. P. W. Ghansham Das, the Medical Officer, why had carried out the post-mortem has not deposed that the above two injuries could have caused death in ordinary course of life. In view of the circum stances that the blows were given without any premeditation, in the heat of moment and for the purposes of deterring the deceased and consequently it is not possible to hold that the appellant had the requisite intention to commit murder but could only be saddled with the knowledge that the injuries which he was causing were likely to result in death, we would alter the conviction from 302, P. P. C. into section 304, Part II, P. P. C. and substitute the death sentence with 7 years, but maintained the sentence of fine of Rs. 5,000 or in default of payment 6 months' R. I. out of the above fine Rs. 2,000 are to be paid :o the legal heirs of the deceased. The appel lant will be entitled to the benefit of section 382-B, Cr. P. C. while computing the sentence. The reference for confirmation of the death sentence stands rejected. These are the reasons for the short order, dated 17th April, 1984. S. G. D. Order accordingly.