G. M. KOUREJO, J.-The appellant Darshan Mal son of Pirbhumal was convicted by the learned Sessions Judge, Sukkur for offences under sections 302 and 323, P. P. C. For an offence under section 302, P. P. C. He was sentenced to death and for an offence under section 323, P. P. C, he was sentenced to R. I. For a period of six months. He was further directed to pay compensation under section 344, Cr. P. C. Of Rs. 2,000 to the complainant or in default to undergo R. I. For a period of one year. He was also directed to pay compensation of Rs. 500 to Shrimati Jumri Bai or in default to suffer R. I. For a period of three months. He has preferred this appeal against the conviction and sentences. There is also reference for confirmation of the death sentence. This judgment will dispose of both the appeal as well as the reference.
2. The facts of the prosecution case briefly stated are, that the complainant Sajumal had got his sister Jumri Bai married with the appellant Darshanmal resident of Chak about 3 years prior to the lodging of the First Information Report. On the day of the incident viz. 4th December, 1979 she was staying with the complainant Sajumal in his house at Ghotki as she had come to visit her parents.
On that day, at about 3 p. m. Sajumal went to his house to have his lunch. When he came near his house he found Darshanmal coming running out of his house. He had khurpi (Tifni) in his hands and when he went inside the house he saw his mother Sadori Bai and his sister Jumri Bai lying injured. Sadori was unconscious. Their cries also attracted Mehromal, Pariomal and others from the neighbourhood. On inquiry Jumri Bai told them that she alongwith her mother Sadori Bai was sitting in the house when all of a sudden appellant appeared in the house. He told her to accompany him to his house. She and her mother told the appellant that Sajoomal was not present in the house and that Jumri Bai will go with him after he had come and they had consulted with him. Thereupon Darshanmal appellant got annoyed. He picked up khurpi (Tifni) and caused injuries to her with it. Her mother Sadoribai intervened, whereupon he inflicted injuries to her also.
He then removed the two injured to the hospital, where ultimately Sadori Bai succumbed to the injuries at about 7.25 p. m. The complainant Sajoomal after leaving the injured in the hospital went and lodged first information report at about 4 30 p. m. On the same day at Ghotki Police Station.
3. Sardar Khan A. S. I. P. Gbotki Police Station recorded the first information report lodged by the complainant Sajoomal at about 4-30 p. m. On 4th December, 1979. He then went to the hospital and examined the injuries on the person of the two injured. Sadori Bai was unconscious, whereas Jumri Bai was in senses and he recorded her statement and prepared mashirnama of injuries on the person of both the injured in presence of mashirs Juriomal and Sajhoomal vide mashirnama Exh.
15. He then recorded the statement of Pariomal and Mebromal and proceeded to the scene of offence which was pointed out to him by complainant Sajoomal. There was blood lying on the wardat situated in the house of Sa,oomal. He secured the blood-stained earth and prepared it into sealed parcel, vide mashirnama Exh.
17. He then went to the Police Station where he received information that Sadori Bai had succumbed to the injuries in the hospital. He went to the hospital and prepared inquest report on the dead body in presence of the same mashirs vide Exh.
16. He handed over the dead body to the Medical Officer for post-mortem examination. On the same night he proceeded to Chak for the arrest of the appellant. On 5th December, 1979, he arrested the appellant from Bus Stand Chak in presence of the same mashirs, vide mashirnama Exh.
19. He interrogated the appellant and took him to Ghotki Police Station. On 8th December, 1979 the appellant volunteered to produce the crime weapon viz. Khurpi (Tifni) and led him in presence of the same mashirs to the graveyard of Khakan Shah. He produced the blood-stained Khurpi (Tifni) from sugar cane cultivation near Khakan Shah graveyard. He secured the same and prepared it into sealed parcel in presence of the same mashirs, vide Exh.
20. The Khurpi (Tifni) bad blood- stains on its blade. On 9th December, 1979 he got the state--ments of Pariomal and Mehromal recorded under section 164, Cr. P. C. The Chemical Analyser's report was received which he produced, vide Exh. 29/A. On 13th December, 1979, he handed over the investigation papers to S. H.
O. Ghotki P. S. Who challaned the appellant in Court.
4. Dr. Inder Dev examined the injuries on the person of Sadori Bai when she was brought to the hospital on 4th December, 1979 in injured condition. He found the following injuries.
(1) Inverted by shape lacerated wound on left fronto parietal region 2" x 1 /5" bone deep.
(2) Lacerated wound .3/4" x 1/8`' skirl deep just lateral side of injury No. 1.
(3) Lacerated wound right hand index finger, and middle finger 1" x 1/4" bone deep, with fracture bone.
(4) Contusion 1" x 1" on dorsum of right forearm.
On the same day she was admitted in the hospital viz. 4th December, 1979 where at 7.25 p. m. She expired and whereafter he conducted the post-mortem examination on the dead-body on 5th December, 1979 at 8.00 a. m. And finished it at 9.00 a. m. On external examination he found the same injuries as detailed above. On internal examination he found fracture of the skull, conjested brain, membrance under injury No. I with baemotoma formation. From the external as well as internal examination he was of the opinion that the death was due to comma, seribral haemorrhage and shock and due to excessive loss. Of blood. The injuries were antemortem in nature. Injury No. 1 was individually sufficient to cause death in the ordinary course of nature. The time between the injuries and death was within five hours. He produced the post-mortem notes vide Exh. 9.
On the same date viz. 4th December, 1979, he examined the injuries on the person of Jumri Bait wife of the appellant. He found the following injures
(1) Lacerated wound 1/5" x 1/3" skin deep on the dorsum of the right forearm.
(2) Lacerated wound 1" x 1/5" top of the perietal region muscle deep. (3) Lacerated wound on occipital region 1" x 1/5" muscle deep.
(4) Crusade injury, lacerated wound on upper part of occipital region 1" x 1" muscle deep.
The injuries appeared to have been caused by hard and blunt substance. She was admitted in the hospital on the same day, but left against the medical advice after few days and did not turn up.
All the injuries were simple in nature.
5. The appellant has denied all the allegations against him and has claimed to have been falsely implicated. According to him his wife Jumri Bai was first betrothed to one Nanak but he had married her, and therefore, Nanak was annoyed with him and his in laws. According to him further on 5th December, 1979 when he was in his house, Chak Police came there and took him to Ghotki where he was informed that his mother-in-law had been murdered and he was required in that case. He has further stated that be had love for his wife Jumri Bai and that she also loved him. He examined no evidence in his defence.
6. There is no dispute that Sudori Bai mother-in-law and Jumri Bai wife of the appellant were caused injuries with Khurpi (Tifni) resulting in the death of the former and simple injuries to the latter, on the day of the incident viz. 4tb December, 1979 at about 3 p. m. The only dispute is as to whether the present appellant committed murder of the deceased Sadori Bai by intentionally causing her death as a result of grievous hurt caused to her and that he voluntarily caused simple hurt to his wife Jumri Bai. The prosecution version in that respect hinges on the ocular testimony of complainant Sajoomal, Jumri Bai, Mehromal and Pariomal coupled with the recovery of the blood- stained Khurpi (Tifni) from the appellant as produced by him.
7. Mr. Azizullah Shaikb the learned counsel for the appellant, has raised two-fold contention Firstly, he has challenged the merits of the case against the appellant, and, secondly, that in any case, the offence against the appellant would fall under section 325, P. P. C. And not under section 302, P. P. C.
For the alleged injuries caused to Sadori Bait resulting in her death.
8. As regards the merits of the case, the prosecution has adduced ocular evidence coupled with that of recovery of blood-stained khurpi (Tifni) from the appellant after his arrest. On the admitted facts of the prosecution case there is no dispute that Jumri Bai sister of the complainant Sajoomal and wife of appellant Darshanmal on the day of the incident was staying in the house of her brother complainant Sajoomal where she had come to visit her parents. There is no dispute that her stay was prolonged for the reason that a son had born to her brother Sajoomal and that it was since three months that she was staying there prior to the incident took place. The complainant Sajoomal has deposed that on the day of incident at about 3.00 p. m. He went to his house from his shop to take his lunch and when he reached near the house he saw the appellant Darshanmal running out of his house having a khurpi in his hands. In the first instance, he did not suspect anything, but when he went inside his house, he saw his mother Sadori Bai and his sister Jumri Bai lying injured. Sadori Bai was unconscious. On their cries Mehromal and Pariomal were also attracted from the neighbourhood and that on inquiry Jumri Bai told him, Pariomal and Mehromal that the appellant suddenly appeared in the house and asked her to go with him whereupon she replied that she will consult Sajoomal his brother on his return and then she will go. Thereupon the appellant got annoyed and he picked up khurpi (Tifni) and caused her injuries and that on interven--tion of her mother Sadori Bai he caused injuries to her also with the khurpi and then ran away Jumri Bai has been examined and she has admitted the entire prosecution version except that she would not say as to who caused injuries to her and her mother. In the face of the version of her brother Sajoomal she appears to have made an obliging statement in favour of her husband, the appellant, obviously on account of her love for him, otherwise admittedly there was nobody else in the house at the time of the incident who possibly may have been responsible for the injuries inflicted on the two ladies. As regards the version of Maproomal and Pariomal who were attracted on cries from the neighbour--hood. Mahroomal has supported the prosecution version partially as he has deposed that Jumri Bai was also unconscious but on regaining her consciousness after about 2 or 3 hours she told him Pariomal and her brother complainant Sajoomal that her husband Darshanmal caused injuries to her and her mother, whereas Pariomal has not supported the prosecution version at-all. Both of them are Hindus and are obviously connected with the parties who seem to have patched up their differences being closely related to each other and obviously have made an obliging statement in favour of the appellant. However, the ocular testimony of complainant Sajoomal to the effect that he saw the appellant actually running out of his house with a khurpi coupled with the version of Mehroomal to the effect that Jumri Bai informed them that the appellant had caused injuries to her and her mother on account of her refusal to go with him until she was permitted by her brother Sajoomal who was not present in the house at that time, would clearly prove the prosecution version to the effect that the appellant Darshanmal alone for the motive stated above caused injuries to Sadori Bai and Jumri Bai. This ocular version is further corroborated by the recovery of the blood-stained khurpi (Tifni) from the appellant who after his arrest produced the same on 8th December, 1979 from sugarcane cultivation near the graveyard of Khakan Shah in presence of mashirs in whose presence it was prepared into sealed parcels and was sent to the Chemical Analyser for examination and report.
The mashir of the production Pariomal has been examined and he has fully supported the prosecution version in that respect. The Chemical Analyser's report vide Exh. 29-A was received which is to the effect that the khurpi was stained with human blood. The version of the Investigation Officer and mashir Pariomal has not been substantially challenged and it has been fully proved that the appellant produced the khurpi. Which was ultimately certified by the Chemical Analyser to be stained with human blood. It was sent to the Chemical Analyser on 13th December, 1979 only after about five days after its recovery was effected, i.e. 8th December, 1979 and this is hardly a delay in the circum--stances of the present case to raise an inference that there was possibility of any manipulation before it was sent to the Chemical Analyser. Accordingly, there is nothing available in the evidence on the record to suggest that the recovery of the blood-stained khurpi (Tifni) from the appellant was not effected. The ocular evidence abovementioned, there--fore, is supported by this piece of corroborative evidence and in our view the prosecution has fully proved its case against the appellant to the effect that he was guilty for having caused injuries to his mother-in-law Sadori Bai and wife Jumri Bai in the manner and circumstances alleged by the prosecution. We, therefore, find no force in the first contention raised on behalf of the appellant by his learned counsel.
9. So far the second contention is concerned, the parties are close relatives and there is nothing in the evidence on the record that there was any previous dispute between them. It is in the evidence that the appel--lant picked up khurpi (Tifni) which is usually used for preparing meals in the houses in mufassal from the house itself and is alleged to have caused injuries to the two ladies with it, and that he bad not come armed with it from outside. It is further admitted in the evidence as deposed by Dr. Inder Dev that the khurpi which was shown to him in Court while his evidence was being recorded might be of two chhatanks in weight. We have seen the khurpi in Court and we believe that his statement in that respect is correct. What is further evident from the evidence on the record that the appellant seems to have lost his temper on the refusal of his wife to go with him unless her brother was available to be consulted in the matter and that he picked up khurpi and caused injuries to her. According to the medical evidence Sadori Bai was an old lady of an age of 60 years and her death was due to comma and seribral haemorrhage, shock and due to excessive loss of blood. She died after about 4 hours and 25 minutes after the incident in which she received injuries. The circumstances of the case, therefore, very clearly suggest that the appellant had neither an intention to kill her nor" he could have realised that he was likely to cause her death by the nature of the injuries which he inflicted with khurpi (Tifni) on her in the manner and the circumstances abovementioned. The appellant at the most intended to cause grievous hurt to the deceased. The case against him, therefore, for having caused injuries to Sadori Bai would fall under section 325, P. P. C. And not under section 302, P. P. C. The learned counsel for the appellant in that respect has placed reliance on the cases reported in Devraj v. The ,State (PLD 1980 Kar. 246) and Laung and others v. The State (1981 P Cr. L J 498) which authorities clearly support his contention raised by him on behalf of the appellant.
10. We, therefore, alter the conviction and sentence passed against the appellant by the learned Sessions Judge, Sukkur, from section 302, c P. P. C. To section 325, P. P. C. For having voluntarily caused grievous hurt to Sadori Bdi and. Sentence him to R. I. For a period of five years subject to the adjustment of the period already undergone by him during the trial as provided by section 382-B, Cr: P. C. We maintain his conviction and sentence passed under section 323, P. P. C. For having caused simple hurt to Jumri Bai. We also maintain that the amounts of compen--sation as ordered by the learned Sessions Judge shall be paid as directed by him in his judgment.
11. With the above modification the appeal is dismissed and the reference for confirmation of death sentence is rejected.