1. Z. C. VALIANI, J. --We have heard the learned counsel for the State as well as complainant's side and the learned counsel for the respondent. We have gone through the record and proceedings of the learned trial Court, as well as impugned judgment.
2. The learned counsel for the State as well as complainant's side sub--mitted, that the learned trial Court has misread the evidence on record and consequently acquitted the respondent, although from the evidence on record a clear case of culpable homicide amounting to murder has been made out, even if recovery of the knife is not believed.
3. The learned counsel for the respondent on the other hand submitted, that the learned trial Court has given cogent reasons for disbelieving certain prosecution witnesses and. Came to the conclusion, that there was no evidence on record that the respondent actually caused injuries in question, to the deceased. In view of this it cannot be said, that the learned trial Court has not appraised the prosecution evidence properly and correctly. However, the learned counsel for the respondent submitted, that the respondent remained in custody from 21st November, 1974 upto 17th July, 1975 and as such if this Court comes to the conclusion, that he has been wrongly acquitted, then the imprisonment already undergone by him may be considered as sufficient punishment in view of the fact, that the reason--dent has remained on bail right from 17th July, 1975 till today and as such to remand him back to jail custody after the lapse of nearly 8 years would not be justified in the circumstances of this case.
4. We have carefully considered the above submissions made by the learned counsel before us and are of the opinion that the learned trial Court has not correctly appraised the prosecution evidence on record. In our opinion from the prosecution evidence on record, the case under section 304 (1I), P. P. C. Has been made out against the respondent.
5. Therefore for the reasons to be recorded separately we allow the above appeal and set aside the impugned judgment dated 23rd July. 1981 of the learned Ist Additional Sessions Judge, Hyderabad in Sessions Case No. 336 of 1976 and convict the respondent under section 304 (1I), P. P. C. And keeping in view the facts and circumstances of the case, we sentence the respondent to 7 months'
6. R.I. And impose a fine of Rs. 10,000. In default of payment of said fine to suffer further R. I. For one year. In case the respondent pays fine, a sum of Rs. 9,000 out of the said fine be paid to the legal heirs of the deceased, as compensation under section 544-A, Cr. P. C. However, we grant benefit of section 382-B. Cr. P. C. To respondent in respect of the period of detention as under-trial prisoner which period is more than 7 months' R. I. Awarded to him by this judgment.
7. The respondent is granted 2 months time to pay fine imposed on him, failing which his bail bonds shall stand cancelled and the learned trial Court is directed to issue non-bailable warrants for his arrest and on his arrest to remand him back to jail custody to undergo imprisonment in lieu of fine imposed by this judgment.
8. The above appeal stands disposed of in terms of the above judgment.
9. FINAL JUDGMENT The State being aggrieved by judgment dated 23rd July, 1981 passed by the learned Ist Additional Sessions Judge, Hyderabad, in Sessions Case No. 336/76, whereby respondent has been acquitted in case under section 302 P. P. C. Has preferred the above acquittal appeal, on the following facts and grounds: - The brief facts of the prosecution case as disclosed in the F. I. R. Exh. 6/A are, that the complainant Abdul Razzak, who was Assistant in Irri--gation Department, has stated that on 11th November, 1974, he was pre--sent in the office, when at about 2.30 p. m. The Office Suptt. Mr. Abdul Karim Turk had given some files to Aijaz Hussain to hand it over to respondent Ahmad Khan. Deceased Aijaz Hussain had taken those files to respondent Ahmed Khan, but respondent Ahmed Khan had refused to take those files and told him to give them to Typist, on which deceased Aijaz Hussain and respondent Ahmed Khan exchanged harsh words: On this account, they fought with each other. The complainant has stated, that during the said fight, respondent Ahmed Khan-caused knife injuries to deceased Aijaz Hussain, who raised cries of save save. On the cries, P. Ws. Ghulam Nabi, Shamsuddin and other people.' who were sitting in the office, came there and separated the respondent and the deceased, After that, deceased Aijaz Hussain was brought outside the office and was made to sit on a bench. He was bleeding from the injuries on the abdomen and on the back. After that, the complainant and Nisar Ahmed took injured to Civil Hospital. The complainant went to police station and lodged the report.
10. The Police recorded the F. I. R. Under section 324, P. P. C. The police went to the injured who was in the Hospital and prepared the mashirnama of injuries on this person. The S. H. O. Bad recorded the statements of P. Ws. And arrested the respondent and secured one Knife from his possession. The S. H. O. Had also visited the wardat and prepared the mashirnama of the wardat. On 15th November, 1974, the injured Aijaz Hussain died in the hospital The S.H.O. Went to Hospital and prepared the Inquest report and the Medical Officer conducted the post-mortem examination on the dead body of deceased Aijaz Hussain After com--pleting the investigation, the present respondent was challaned in the Court of law under section 302, P. N. C. From where he was sent up to the Court of Sessions for trial.
11. A charge under section 302, P. P. C. Had been framed, to which the respondent had pleaded not guilty. In support of the case, the prosecu--tion had examined the complainant Abdul Razzaq as Exh. 6, who had produced the F. I. R. As Exh. 6/A, P. W. Abdul Karim Turk as Exh. 7 P. W. Ghulam Nabi as Exh. 8 mashir of the wardat, Ghulam Ali Shah as Exh, 9 who had produced the mashirnama of the wardat as Exh, 10, P. W. Saleem as Exh. 11, who had examined the dead body of Aijaz Hussain and produced the said mashirnama as Exh. 12 and the Inquest Report as Exh.
13. P. W. Safdar Khan as Exh. 14, who had produced the mashirnama of securing of the blood-stained clothes of the deceased as Exh. 15, P. W. Nisar Ahmed as Exh. 16 who had produced the mashirnama of the injuries on the person of deceased Aijaz Hussain as Exh. 17, P. W Muhammad Ayoob as Exh. 19, who bad produced the summons as Exhs 19/A and 19/8 and the statements of Riaz Ahmed and Chunu and Exhs. 19/C and 19/D Mashir Jaffer Ali as Exh. 20, who had produced the mashirnama of recovery of knife as Exhs. 21, S. I. P. Raja Muhammad Anwar as Exh. 22, who had produced the Chemical Analyser's Report as Exh. 23, Tapedar Pir Tai Muhammad Shah as Exh. 24, who had produced the sketch of the wardat as Exh.
25. The learned A. P. P. Had made an application under section 509, Cr.
12. P. C. For bringing the evidence of the Medical officer recorded in the lower Court and consequently the same had been brought on the record of the trial Court as Exh. 29, post-mortem notes as Exh.
13. 29/A, medical slips as Exh. 29/B, and an X-Ray Report as Exh. 29/13. The learned A. P. P. Had closed the prosecution case vide Exh. 30.
14. The respondent in his statement under section 342, Cr. P. C. Had denied all the allegations of the prosecution and had stated that he is innocent. He had admitted that a fight had taken place, in which the deceased had beaten him and he and the deceased had fallen down on the ground, when the P. Ws. Had separated them. The respondent had led no evidence in his defence.
15. The learned trial Court taking into consideration the evidence adduced before it, acquitted the respondent by impugned judgment dated 23 July, 1981 and consequently the State has filed the above acquittal appeal, on the grounds mentioned in the Memo. Of Appeal.
16. The learned counsel for the State as well as complainant's side sub--mitted, that the learned trial Court has misread the evidence on record and consequently acquitted the respondent, although from the evidence on record a clear case of culpable homicide not amounting to murder has been made out, even if recovery of the knife is not believed.
17. The learned counsel for the respondent on the other hand submitted, that the learned trial Court has given cogent reasons for disbelieving certain prosecution witnesses and came to the conclusion, that there was no evidence on record, that the respondent actually caused injuries in question, to the deceased. In view of this it cannot be said, that the learned trial Court has not appraised the prosecution evidence properly and correctly. However the learned counsel for the respondent submitted, that the respondent remained in custody from 21st November, 1974 upto 17th July, 1975 and as such if this Court comes to the conclusion, that he has been wrongly acquitted, then the imprisonment already undergone by him may be considered as sufficient punishment in view of the fact, that the respondent has remained on bail right from 17th July, 1975 till today and as such to remand him back to jail custody after the lapse of nearly 8 years would not be justified in the circumstances of this case.
18. We have carefully considered the above submissions made by the learned Advocates before us and have gone through the Record and Pro--ceedings of the learned trial Court as well as the impugned judgment.
19. We have carefully gone through the statements of P. W. 1 Abdul Razak (Complainant) and F. I. R. Exh.
20. 6-A, P. W. 2 Abdul Karim, P. W. 3 Ghulam Nabi and P. W. 7 Nasir Ahmed. P. Ws. 1, 2 and 3 are the eye- witnesses of the actual quarrel and ultimate grappling between respondent and deceased Aijaz Hussain. P. W. 1 was declared hostile, as he tried to change the version of the incident as given by him in F. I. R. Exh. 6/A. However, it is clear from his statement recorded before the learned trial Court, that actual quarrel took place between deceased and respondent as well as grappling and on separation of deceased and reason--dent, he saw that deceased had received three injuries, from which he was bleeding. Although this P. W. As well as P. Ws. 2 and 3 have denied, that they saw respondent giving knife injuries to deceased, but P. Ws. 2 and 3 have categorically stated beforerd the trial Court, that before last grappling, respondent had taken out knife and soon thereafter deceased jumped on him. These three P. Ws. Have tried to state, that deceased was aggressor.
21. However, from medical evidence on record it is clear, that deceased received three injuries and one on chest, which was sufficient in ordinary course of nature to cause death. None of the P. Ws.
22. Have stated, that knife belonged to deceased and/or it was in the hands of the deceased, before grappling. In view of this it is clear from the evidence, that deceased -received injuries from the knife, which was seen by P. Ws. In the hands of respondent, before actual fight. Respondent has also not den;, grappling between him and deceased, but has denied, that he caused at, knife injuries to the deceased. In view of this admitted position, that n, third person was involved in the fight between respondent and decease; and deceased received injuries in this fight, it is clear that these injuries were caused by the knife, which was seen in the hand of the respondent before fight and since there were three injuries on person of the deceased at three different places, it cannot be said, that deceased received the said injuries by his alleged jump on the respondent, on account of open knife which was in the hand of respondent. Keeping in view these observations and conclusion arrived at by bus and statements of P. Ws. 1, 2, and 3 as well as P. W. 7 and contents of F. I. R. Exh. 6-A, we have no hesitation., coming to conclusion, that deceased received the injuries in question at the hands of respondent, in the fight in question. It is an admitted position, that deceased was unarmed and as such taking out of knife by responders, and using the same for alleged self-defence, as urged by learned counsel' for respondent, in our opinion, does not arise at all. In any case then; were three injuries on person of deceased and as such right of private defence, if any, was also exceeded by respondent, in our opinion.
23. It is an admitted position, that there was sudden quarrel between deceased and respondent, in which respondent without premeditation and without intention to cause death of the deceased, gave three injuries to deceased in course of grappling between both of them by small pen knife, out of which unfortunately injury on chest proved to be fatal and deceased died 4/5 days after the incident in hospital. In view of this, the offence committed by respondent, in our opinion, would fall under section 304 (11), P. P. C. Only, as rightly urged by learned Advocate for State as well as complainant's side.
24. However, as far as sentence to be awarded to respondent is concerned, we cannot overlook the facts and circumstances of the present case as discussed by us in preceding para and the fact, that respondent has been on bail since July, 1975 and had remained in judicial custody as under-- trial prisoner from 21st November, 1974 till 17th July, 1975. We have also come to conclusion, that respondent had no intention to cause murder of the deceased nor he could have been aware of the fact, that injuries caused by him would be sufficient in ordinary course of nature to cause his death, as even fatal injury on the face of it is not very deep, which is clear from the post-mortem report.
25. Therefore, while allowing the above appeal, we set aside impugned judgment dated 23rd July, 1981 of the learned Ist Additional Sessions Judge, Hyderabad and convict the respondent for culpable homicide not amounting to murder, for having caused the death of Aijaz Hussain in sudden quarrel and sentence him to suffer R. I. For 7 months and to pays fine of Rs. 10,000 or in default to suffer further. R. I. For one year.
26. However, we allow benefit of section 382-B, Cr. P. C: to respondent in respect of his period of detention as under-trial prisoner as respect of substantive sentence of imprisonment awarded to him by this judgment and consequently since respondent remained in custody as under-trial prisoner from 21st November, 1974 till 17th July, 1975, as confirmed by the learned State counsel, it is not necessary to remand him back to judicial custody to serve out substantive sentence awarded to him by this judgment. However we give two months time from today to respondent to deposit fine of Rs. 10,000 imposed on him, in the Court of the learned trial Court, failing which his bail bonds shall stand cancelled and the learned trial Court is directed to issue non-bailable warrants for his arrest and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine imposed by this judgment. We further direct that in case respondent deposits the fine imposed on him, a sum of Rs. 9,000 out of the said fine be paid to legal heirs of deceased Aijaz Hussain as compensation under section 544-A, Cr. P. C. And in said case, on such deposit of fine, his bail bonds shall stand discharged automatically.