Muhammad Haleem, J.--Appellants Muhammad Bux, Abdul Haq, Abdul Ghafoor, Abdul Karim, Abdul Majid, Jehan Khan, Saleh, Dilijan and Yaqub were tried for the murders of Muhammad Siddiq, Ayub and Kewro and were convicted under section 302 read with section 149, P. P. C. and section 148, P. P. C., on the first count each of them was sentenced to death and on the second to two years' rigorous imprisonment by the learned Sessions Judge, Larkana vide judgment dated 13th June 1970. They have appealed against their convictions while the learned Sessions Judge has referred the case for the confirmation of their death sentences. This judgment will dispose of both the appeal and the reference.
2. The prosecution case is that a little before sunset on 21st November 1968 while Gulab was standing in front of his house he heard gun-report coming from the site of "Qureshi water course" followed by cries upon which he ran in that direction. Ali Bux also followed him and on reaching there, they saw the appellants and out of them Abdul Ghafoor, Abdul Majid and Abdul Haq were engaged in causing hatchet blows to Muhammad Siddiq while Dilijan, Abdul Karim and Jehan Khan were belabouring Ayub with their hatchets and Saleh and Yaqub inflicting hatchet blows on deceased Kewro who had run for some distance but was overtaken. Appellant Muhammad Bux, who was armed with a gun, challenged them not to come near them otherwise they would also be killed. Out of fear they remained behind till the appellants left the place of incident. In the meantime Wasayo had also come. They saw Muhammad Siddiq lying dead with gunshot injuries on his stomach and hatchet injuries on his head and other parts of the body. Ayub and Kewro were still alive and had hatchet injuries on them. Ayub and Kewro then told them that :-- "All the three of them had gone to Shahbeg's village for purchase of a bullock. While they were returning that Muhammad Bux, Abdul Ghafoor, Dilijan, Abdul Majid, Abdul Haq, Abdul Karim, Jehan Khan, Saleh and Yuqub came out from the 'lai* jungle, Muhammad Bux being armed with a gun while others had hatchets. Abdul Haq shouted at them that as they had gone back upon their promise, they would not go back alive. Muhammad. Bux thereupon fired at Siddiq who was injured while the rest of the accused attacked them in our presence with hatchets."
The two injured were taken to outpost Sujawal, which is 7 miles away while Wasayo stayed at the place of incident. Gulab lodged the F. I. R. which was recorded in the station diary by Muhammad Amir A. S. I, the same day at 11-45 p.'m. He also recorded the statement of Aynb and Kewro and sent them for examination and treatment to the hospital. He also recorded the Statement of Ali Bux and sent a copy of this report to Police Station Mirokhan for being transcribed in the 154 book and himself proceeded to the place of incident and from there secured blood- stained earth from three places and then recorded the Statement of Wasayo and sent the dead body of Muhammad Siddiq for post-mortem examination. Farzand Ali S. H. O. Mirokhan, arrived there and he handed over to him the investiga tion of the case.
3, Appellants Abdul Flaq, Abdul Majid, Abdul Ghafoor and Abdul Karim were arrested on 25th November 1968. From the person of Abdul Haq and Abdul Ghafoor one shirt each was seized. The one in the wearing of Abdul Haq was white while that of Abdul Ghafoor was black. Both these shirts were' blood stained. Appellant Abdul Haq volunteered to produce his hatchet and led the investigating officer and Mdshir Khan Muhammad to a partial burnt 'dera' and from there he produced a blood-stain ed hatchet. Appellant Abdul Karim volunteered to produce his hatchet and from the wheat cliafT lying in his house he took out the blood-stained hatchet. Abdul Majid also volunteered to produce his hatchet and from the roof of his otak he took out the blood-stained hatchet. All these'hatchets were secured under separate Mashirnamas (Exhs. 30, 32 and 33 respectively). Appellants Muhammad Bux and Saleh were arrested on 24th November 1968 and Muhammad Bux produced his licensed gun with seven cartridges which were secured under Mashirnama. (Ixh. M). The hatchets, the shirt and the blood-stained earth were sent for chemical analysis and the white shirt of Abdul Haq and the three hatchets were found to be stained with human blood while blood on the black shirt of Abdul Ghafoor had distintegrated vide chemical analyser's report (Exit. 40).
4. Kewro expired in the hospital on 23rd November 1968 while Muhammad Ayub died on 29th January 1969. The autopsy on the dead bodies of the three deceased was performed by Dr. Rafiq Ahmad. On Muhammad Ayuh he noticed the following injuries "(1) Curved incised wound 2'xl'x bone deep over front of right leg above the ankle-joint with complete fracture of leg bone.
(2) Incised wound f x Y x ]* over medial surface of right leg.
(3) Incised wound 4*xll'x. bone deep over outer surface of left ankle cutting the underlying bone completely.
(4) Tncised wound 2f" x }" x muscle deep over left lateral wall of chest.
(5) Tncised wound 6" x 21" x. cutting the left scapular spine completely. * V . *
(6) Incised wound f'x. skin.deep oyerlower part of back inmidline." ......... ' '
In his opinion injuries 2, 4 and 6 were simple in nature while the others were grievous and the cause of his death was anemia, hypopretinemia and dehydration consequent upon the injuries received by him and they were caused by a weapon such as hatchet. On Kewro he observed the following injuries :-- "(1) Incised wound 5'x 11'x brain deep over right parietal region.
(2) Incised wound 5" x H" x bone deep front of left leg cutting both bones completely.
(3) Incised wound 2J* x " x bone deep over back of left forearm cutting both bones completely."
According to him, all of them were grievous and caused by a sharp cutting weapon such as hatchet and death resulted from shock and haemorrhage due to the injuries received by him. j Injury No. 1 individually and ail collectively were opined to be ! sufficient in the ordinary course of nature to cause death. On Mohammad Siddiq he found the following injuries "(1) A gun shot wound entry 3'x 2'x cavity deep over left part of epigastric region with charring of edges and intestines coming out of the wound.
(2) An incised wound 7" x 1" x brain deep over left side of midline of skull covering left parietal and occipital bones.
(3) Two incised wounds 3" a f" x 5" x J" both muscle deep merging into each other over back of right upper arm.
(4) Incised wound 2" x 1" x bone deep over front of right leg just above ankle joint.
(5) Incised wound 2*xYx 1" over right heel.
(6) Incised wound 2"x|'x" over inner side of right sole near big toe.
(7) Incised wound It" x 3/4"x bone deep over back of right ' foot.
(8) Incised .wound 3" x U'xbone deep over outer side of left ankle-joint."
In his opinion injury No. 1 was caused by the discharge of a firearm such as a shot-gun and the others by a weapon such as hatchet. Injuries Nos. 1 and 2 were opined to be individually and all collectively sufficient in the ordinary course of nature to cause death.
5. The appellants denied the prosecution case and alleged enmity against the prosecution witnesses. Muhammad Bux stated that he was implicated at the instance of Laldino as his nephew, Hussain Bux, was implicated for the murder of Laldino's father Muhammad Hashim some 4 or 5 years back. He also stated that he was not closely connected with Abdul Haq nor interested in the land and since he was the only person having the licensed gun, hence the part of shooting was falsely assigned to him. Abdul Haq denied, the recovery of the shirt and the hatchet and alleged dispute with Kambar Khan over the forcible occupation of his land about a year and "a half back who' was still in possession of his land and that the prosecution witnesses were his men. . It was, therefore, that they bad deposed against him. Abdul Ghafoor denied the recovery of tire shirt and adopted the defence of Abdul Haq. Abdul Karim denied the recovery of the hatchet and adopted the same defence. Abdul Majid denied the recovery of the hatchet and took the same plea. Jehan Khan alleged his implication at the instance of Laldino without disclos- ! ing the nature of enmity and stated that he was not connected with ! appellant Muhammad Bux. Saleb adopted the defence of i Muhammad Bux, his uncle. EHiijan alleged enmity against l Kambar Khan and adopted the deforce of Abdul Haq. Yaqub i alleged his implication at the instance of Laldino for the reason that he was closely connected with the other appellants.
6. The' conviction'of the appellants rests on the ocular testimony of Gulab and Alibux and on the circumstantial evidence of Wasayo. Coupled with it is the corroborative evidence of the recovery of blood-stained shirt against Abdul Ghafoor, blood stained hatchets against Abdul Karim and Abdul Majid. However, tbe licensed gun of Muhammad Bux is not established to be the crime weapon in the absence of its being matched with any crime empty since none was found at the place of incident.
7. From the sketch it is clear that the village from where Gulab aud Alibux had conic was barely 129 feet away from the place of incident, it is not disputed that Gulab resided in that village and Alibux in another village at a call's distance. It cannot also be doubted that not only tbe guu-report but also the cries can be heard from such a short distance. The blood was found at three places, one where Muhammad Siddiq lay and at two others where deceased Ayub and Kcwro were found lying injured. The second place was 31 paces away from the first and the third was 150 paces away from the lirst. The transaction must have taken some time particularly when Alibux and Kcwro had also run for some distance and the 3 deceased had suffered numerous injuries. In the circumstances these two witnesses could have reached from the village to at least witness a part of the transaction. Their testimony is consistent in all essential respects aud wc have found no doubtful feature in their evidence. Both these witnesses arc cousins inter sc and arc also related to the three deceased who were their cousins and resided together in another village a mile away. All the appellants arc also related inter se. Out of them Abdul Haq, Abdul Ghafoor, Dilijan, Abdul Majid and Abdul Karim are brothers while Jehan Khan is tbeir maternal uncle. Muhammad Bux, Saleh and Yaqub arc cousins of Abdul Haq. Deceased Ayub and Siddiq were brothers inter se while deceased Kewro was their cousin. Deceased Ayub and Siddiq were also cousins of appellant Abdul Haq and appellant Saleh's sister was married to deceased Siddiq. Deceased Ayub was married to a cousin of Saleh. Appellant Abdul Haq and his brothers arc cousins of Gulab and the other appellants are also related to him. No enmity was brought out either in the testimony of Gulab or Alibux. In this context it is not possible to view their evidence upon the premise that they were interested in the deceased. Equally, no. reason appears to us why these two witnesses would falsely implicate anyone of their relations, against whom they had no bias, Gulab has ascribed hatchet blows on deceased Muhammad Siddiq to appcjlants Abdul Hat], Abdul Cihafoor and Abdul Majid and on deceased Ayub to Jehan Khan, Dilijan and Abdul Karim and on deceased Kewro to appellants Saleh and Ayub. According to his testimony lie reached the place of incident after deceased Muhammad Siddiq had sullcrcd the gunshot injury. ,tlc has also stated that deceased Ayub and Kewro were alive and conscious and each of them disclosed to him the particulars of, the transaction aud implicated the appellants as their assailants. Alibux's testimony is also on the same footing except in one respect. Both these witnesses have spoken of one gun-report and it was after hearing the gun-report that both of them had gone together, but Alibux for the lirst time in the trial Court also spoke of having seen Muhammad Bux firing at the deceased. He was duly confronted with his police statement, 164 statement and the statement before the committal Court to disprove this fact. At no time earlier had he said so and in the circumstances xvc arc inclined to view that it was doubtful whether he had actually seen Muhammad Bux firing at the deceased, but this feature alone will not atl'cct the weight of his evidence on the unco ntroverted aspects of the ease as his presence is not only established by Gulab, but also by the two deceased who have in their dying declarations (Exits. 36 and 37) stated about his arrival alongwith Gulab and his name transpires in the F.
1. R. The version of these eye-witnesses finds support from the nature of the injuries on the three deceased. Muhammad Ayub had six incised injuries while Kewro three, and Muhammad Siddiq had nine such injuries apart from a gunshot injury. They are consistent with the participation of the number of the appellants in the crime. These witnesses have been cross- examined at great length but nothing has emerged in their cross-examination to create any doubt either on the probability of the version or the participation of any one of the appellants.' The learned counsel for the appellants liad criticised the evidence of Gulab upon the ground that his presence in the village was a coincidence as he had only fallen ill that day and had not gone to work. There is nothing on record to doubt the explanation of this witness and even otherwise it is hot unlikely for a man to get unwell and remain at home! His evidence cannot be looked with suspicion for this reason. Alibux is a labourer and in those days worked under Gulab who is a mason and was engaged by one Ali Muhammad Gurgejo to raise the mudwalls of his house. Since Gulab had not gone to work that day Alibux had also remained in his village for he could not have worked without him. The learned counsel for the appellants attacked his evidence upon the ground that there is nothing in his evidence to show as to who gave him the information about the illness of Gulab and how he happended to come to the village of Gulab? It was for the defence to probe into this question in cross-examination which was not done. If a question had been put this witness would have certainly explained how he came to know about the illness of Gulab. Moreover, they lived closely and it is reasonable to infer that Gulab would have communicated with him. lie has given an explanation that he went to him to collect his wages and this feature is also not an uulikely one, for a man of his means would be interested in collecting his wages. In the circumstances there is no reason to doubt his presence when otherwise it is established by the evidence on record.
8. Next is the evidence of Wasayo. lie resided in village Lakhdino Khan Jatoi where Alibux also resided and according to him it was 80 paces away from the place of incident. He claims to have come on hearing the "gun-fire" while he was grazing his cattle a mile away from the place of incident and had seen the appellants going towards the north. Out of them Muhammad Bux was armed with a gun and the others with hatchets. He also saw Muhammad Siddiq lying dead while Ayub and Kewro injured but conscious. He also saw Gulab and Alibux. Each of the two injured then disclosed to him as to what had happened. He is related to deceased Ayub as his maternal uncle is married to his sister. In his cross-examination, however, he has stated that he was returning along with the cattle when he heard the gun- report. It will be more consistent with the possibility that he would return with his cattle at late evening time yet in the context of what he stated in the examination-m-chief, we feel doubtful whether he could be in a position to have come from a distance of a mile in such time as to see the appellants escaping from the place of incident. Our conclusion also finds support from the statements of the two deceased (Exhs. 36 and 37) in which they have slated that after the appellants had run away Wasayo and others had come.
9. The learned counsel lor the appellants emphasised that even though other persons had come at the place of incident yet the name of Wasayo only transpires in the F. I. R. and this was not without a purpose for he was a relation of deceased Ayub and was likely to support the prosecution case.
Admittedly, other persons had come but it is not clear whether they had also seen the incident or the appellants escaping from there. No question was put to these witnesses to elicit their names or the point of time at which they had come. Even Muhammad Amir A. S. I. was not cross-examined on the question whether other persons were present at the place of incident and if so whether he had recorded their statements? In the circumstances it is not possible for us to draw an inference as suggested by the learned counsel for the appellants.
10. The next piece of evidence is the dying declarations, Each of these three witnesses, namely Gulab, Ali Bux and Wasayo have spoken that the two deceased Ayub and Kewro were conscious and had told them what had happened. Nothing was suggested to these witnesses to doubt the making of the oral dying declarations. Even the doctor has stated that the two deceased could have spoken after suffering the injuries. There is, therefore, nothing to conclude that the two deceased could not have been in a position to make their statement after having suffered serious injuries. There are also two written dying ... ^vnuic ut me Diooo-stained white shirt and the production of blood-stained hatchet against Abdul Han hlnrs/Ucf-oina/'l _ declarations recorded by Muhammad Amir, A. S. I. soon after they were brought to the police station in a bullock cart. They arc Exhs. 36 and 37. The learned counsel for the appellants again took exception to this piece of evidence upon the ground that the two deceased could not have given detailed statements in the context of the injuries suffered by them. There is nothing on record to say that they were not in senses and on the contrary Muhammad Amir has clearly stated that they were in full senses. Accordingly the contentions remains without any support and it is thus not possible to conclude as contended by him. We have examined these two dying declarations and though they substantially consistent with each other yet there is difference in the construction of the sentences and in the sequence of the narration of events. They thus give an impression that they were recorded separately and not that one was a carbon copy of the other as contended by the learned counsel for the appellants. These declarations are duly corroborated by the ocular testimony of Gulab and Alibux and wc would accordingly accepted them as an incriminating piece of evidence against the appellants. Wc have, however, observed that they do not bear either the signatures of the thumb-impressions of the two deceased. This was so because the investigating officer had recorded their statements in the diary and under the law such statements arc not required to be signed. Muhammad Amir has in his cross-examination stated that he did not realise that they would succumb to the injuries and it was, therefore, that he had recorded their statements. No exception can thus be taken to the manner in which these state ments were recorded.
11. The learned counsel for the appellants also emphasised that no attempt was made to get the dying declarations of the two deceased recorded before a Magistrate in the hospital although Kewro died on the next day while Ayub lived until 29th January 1969 and the indication appears to be that this was not done because they were not in their senses. However, nothing appears on record as to their condition in the hospital since no question was put to the doctor in this behalf.
The investigating officers were also not questioned on this aspect of the case. In the circumstances, it is not possible to conclude in favour of this plea in the absence of any material on record.
12. Coming now to the recoveries the Mashir, Khan Muhammad, has not supported them as he was won over. There is only then the evidence of Farzand Ali S. H. O. who has testified to the recoveries of the incriminating articles. Nothing was suggested to him to show that they were planted and no bias was pleaded against him. He had seized the incriminating articles in the discharge of his statutory duty and he was competent to testify about them. The learned counsel for the appellants conceded that even if the mashir had not supported the recoveries that will only affect the weight of the evidence. However, nothing was suggested why the evidence of the investigating officer should not be accepted. It is only because of the long practice that recoveries are made in the presence of mnshiry Annrt Pakistan Criminal Law Journal [Vol. V father, is not appellant Yaqub but another Yaqub son of Malook. There is also nothing to show that the F. I. R. was lodged with the prior consultation of Laldino. P. W. Wasayo has admitted that Ata Muhammad, brother of Laldino, had come to the place (b) Criminal trial--Benefit of doubt--Can be extended even to cases where question whether accused exceeded right of private defence is involved, [p. 210]S Appellant through Jail.
A. W. Butt for A.-G. for the State.
Date of hearing : 31stMayl971.
Shahab Din aged 65 years and his son Kaki aged 15 years were tried by the learned Additional Sessions Judge, Lahore for an offence'' under section 302/34, P. P. C., for the murder of Kaka, their co-villager. Vide his judgment, dated 1-11-1967, Jhe learned Judge acquitted Shahab Din as according to him he had committed no offence and convicted Kaki appellant under section "304- B" (to be read as 304, Part If, P. P. C.) and sentenced him to 4 years' R. I, The convict has filed this appeal through jail against his conviction and sentence.
2. The facts of the prosecution case as disclosed in the state ment of Mai, P. W. 8 are as follows On the day of occurrence which took place on 24-7-66 at about noon-time Kaka deceased, after ploughing his land at Chah Phalu-wala, placed his yoke in the /d/Kt-field of Shahab Din, accused.
Shahab Din who was present there objected to this act of the deceased and abused him. Both of them started grappling with each other. In the meanwhile Kaki appellant who had a sota with him came there and gave a blow on the head of the deceased, who fell down. He gave two more blows on the back of the deceased. The occurrence was also witnessed by Qutab Din, P. W.
9. Mai P. W. went to the village and brought some people with him. Kaka was still in his senses. Muhammad Raft P. W. 7, who is a brother of the deceased, inquired front the deceased about the occurrence, who also narrated the same facts as have been noted above. Mai P. W. further stated that three days before the occurrence both the parties had a quarrel on the turn of water and he separated them. Kaki appellant, at that time, had held out a threat that he would deal with the deceased.
3. The F. I. R. was recorded on the statement Exh. P. A. of Muhammad Raft, P. W. 7, who narrated the occurrence as was narrated to him by the eye-witnesses and the deceased. It was recorded at 1-15 in'the night following the day of occur rence. The formal F. I. R. Exh. P. A./l was registered at 2-15 a.m. on 25-7-1966, Sota Pel which was not found to be blood stained was recovered from Kaki appellant.
PunjaliV. 2 belong ing to Kaka deceased was taken into possession from the place of occurrence i.e., the field of the accused; 1
4. Kaka died in the hospital. The post-mortem examina tion revealed the following injuries
(1) Contusion mark l"x|"over the right parietal region, running obliquely 2Y x 2" x above right ear.
(2) A contusion 2" x 1/10" over right shoulder tip.
3. A contusion mark 6' x over the right shoulder blade and back running obliquely."
There was a fracture of right parietal bone extending up to temporal bone and going into middle craniel Fossa. There was haemorrhage underneath this injury and also from the middle meniningal artery. There was a clot of blood pressing brain substance over the right temporal lobe and parietal lobe. The brain was lacerated over parietal region. Lungs, spleen and kidneys tvere congested. The death was due to shock and haemorrhage. The injury on the head was sufficient in ordinary course of nature to cause death. The other two injuries were simple.
5. At the trial the prosecution case was supported by the ocular account given by Mai and Qutab Din P. Ws. and the oral dying declaration deposed to by both these witnesses and Muhammad Rafi, P. W.
7. When examined, Kaki appellant explained that on the day of occurrence, he saw his father having been over-powered by the deceased, who was sitting on him and was beating him. He reached the spot and rescued his father by giving some sola blows to the deceased. He further stated that he did so in order to save the life of his father and thus exercised the right of private defence. He also stated that his father was old man and that the deceased was a young man and was stronger than his father, it may be mentioned that the age of the deceased, as is recorded by the doctor, was 35 years. Shahab Din, when examined, supported his son and stated that he (Kaki) inflicted injuries on the deceased in order to rescue him (Shahah Din). No evidence was produced in defence.
6. The learned trial Judge gave the following findings about what actually happened :-- "The deceased placed his yoke in his phut-crop to which Shahab Din objected and then they grappled with each other. It is not in evidence that the accused had previously deliberated to murder the deceased. The fight took place all of a sudden and the deceased in a way was himself responsible for it. It is not in evidence that Shahab Din inflicted any injury to the deceased. It is also not in evidence that what was the position of the deceased and the accused when they were grappling. Only this much is there that they were grappling. So it is not proved at all that Shahab Din and Kaki accused had any common intention to kill the deceased and that they murdered him in furtherance of their common intention.............. The deceased went there in the fields of Shahab Din uninvited ; placed his yoke there inspite of the objection of Shahab Din and thus they abused each other. Grappling was the natural consequence of the conduct of the deceased. Shahab Din never called out to his son Kaki nor lie uttered to him a word to do anything during the occurrence. It is also not in evidence that at the time of grappling whether Shahab Din knew that his son Kaki had arrived there or not."
On the basis of these findings, Shahab Din accused was found not guilty. In respect of Kaki appellant, the learned trial Judge observed as follows :-- "It is admitted that Shahab Din and the deceased wctc grappling with each other. It is not at all in evidence that Shahab Din was over-powered by the deceased or that he was being subjected to beating by the deceased. It is also not in evidence that life of Shahab Din was in danger at the time of grappling. Kaki accused has claimed the right of private defence and it is his job to prove it. He has led no evidence to prove his plea of self-defence. Only the evidence of the prosecution is there.
From the prosecution evidence only this much is proved that Shahab Din and the deceased were grappling. He could intervene to save his father but in the instant ease he exceeded Itis right of self-defence. Shahab Din had no injury on his person. The deceased was not armed with any weapon. Shahab Din was not being subjected to any beating. So the occasion was not such that Kaki accused should have lost self-control or should have become so confused seeing his father in that position as to inflict iujuries on the deceased indiscriminately. The light between Shahab Din and the deceased was not a serious one and Kaki could have separated them by intervening or even if he was of the view that he could use force he could have used force without injuring the deceased to such an extent to cause his death. Fie could give him injuries on his legs or over non- vital parts of the body of the deceased. He came to the scene of the occurrence and gave a strong blow on his head which fractured the skull of the deceased and caused his death. On receiving the first blow the deceased fell down and he (Kaki accused) gave two more blows to the deceased which struck him at his shoulder and back. The circumstances of the ease clearly show that he exceeded the right of self- defence."
It is significant to note that the learned Judge did nol slop at the above finding with regard to the intention of Kaki appellant, but also observed as follows :-- "The nature of injury shows that Kaki accused had the knowledge that that injury was likely to cause the death of the deceased. Fie did not intend to kill the deceased. The other two injuries he did not inflict on the vital parts of the body of the deceased. So the only knowledge that his act was likely to cause death can be attributed to him and this offence falls under section 304 (B), P. P. C.
The learned trial Judge did not believe the prosecution version with regard to the threat said to have been hurled by Kaki appellant to the deceased in the previous incident of the turn of water.
On the other hand, he held that the said dispute had been patched up before the occurrence. He therefore, disbelieved this part of the prosecution story and held that (lie act of. Kaki appellant was not pre meditated. In this regard lie observed : 'The evidence shows that he saw his father and the deceased quarrelling ; he was present nearby with a sola and attacked the deceased'. While discussing the question of sentence, he further commented, that, 'The light took place all of a sudden. The accused saw his father grappling with the deceased and rushed to the spot to help his father'."
7. The occurrence and the part played by the appellant are admitted by both the parties. The iindings of the learned Additional Sessions Judge about the occurrence have not been challenged by the State or front the accused side. In view of the plea of the appellant, 1 do not think it necessary to examine the prosecution evidence in any detail, in so far as the actual occurrence is concerned.
8. The only question to be resolved is whether in fact the appellant acted in the exercise of right of defence of his father and has not exceeded his right ; and even if he has been unable to prove his plea, whether still he is entitled to acquittal on the basis of benefit of doubt in this behalf.
9. It is not denied that at the time the appellant was examined before the trial Court, he was 15 years of age. Thus on the day of occurrence, he was hardly a lad of less than 14 years. It has been found as a fact that there was no exist ing previous enmity and that the act of the appellant was not premeditated. There is also evidence to the elfcct that he caused only one blow on the head of the deceased and that the other two injuries on the deceased on the other parts of the body were simple. It is also a fact that when the attention of the appellant was diverted towards the incident his father and the deceased were grappling with each other and there is no evidence that it was due to fault of his father ; rather the finding of the learned Additional Sessions Judge is that the deceased had placed the yoke in the held of Shuliab Din in spite of lus objection and that this led to the abuse and grappling. Therefore, it is legitimate to presume that when the appellant was attracted to the spot, he must have realized that his father was the victim of the aggression by the deceased. There is also no doubt about the fact that the father of the appellant being an old man of about 65 years was at that time the victim of aggression by the deceased, a young man of about 35 years. One obvious inference that can be drawn from the above facts is that the appellant must have apprehended danger to the person of his father from the deceased, therefore, he caused injuries to him. This leads to the question, as to what was the position of the deceased qua the father of the appellant when he gave him blows. According to the appellant, the deceased floored his father and was sitting on him and was giving him beating when he resorted to the use of force in order to save his father. The learned trial Judge has given a vague finding in this connection and did not give due advantage to the appellant with regard to certain admissions made by the eye witnesses. Qutab Din P. W., who is not shown to have 1972] any soft comer for the appellant, admitted before the C. M. that "Kaka deceased and Shahab Din accused grappled with each other ; Kaka deceased floored Shahab Din accused. On seeing this Kaki accused came running from a distance of two killas". He also stated before the C. M. that the witnesses reached the spot "only when Kaki had separated Kaka and Shahab Din by giving sola blows on the body of Kaka deceased". The witness denied to have made this statement before the C. M. but when confronted with specific part of his earlier statement, he did not offer any explanation. The learned trial Judge failed to give due importance to the above-noted statement made before the C. M. by one of the eye-witnesses. He on the other hand thought that this admission might be due to the mal-observa- tion of the witness. This with respect to the learned trial Judge, amounts to a conjecture in favour of the prosecution. The fact that the deceased had floored the father of the appellant in the act of grappling is significant. Similarly, the fact as to who separated the two grappling men ; the appellant or the witnesses, was also significant. Therefore, the statement made by Qutab Din before the C. M. in my view, does not appear to be the result of mal-observation. That statement appears to bs true, but at the trial he wanted to resile from it. It also appears to ms to be quite natural that in the grappling the young man (deceased) must have floored the old man. The statement of the appellant that after having floored him, the deceased was sitting on the body of his father and was giving beating, also appears to be true, because according to Qutab Din P. W. (before the C. M.) the appellant separated the deceased from his father. The question of separation would arise only if the deceased was still in the act of doing some harm to the old man. A reasonable possibility, therefore, cannot be excluded that when the appellant reached the spot, the deceased having floored the old man was above him and he might be giving him beating.
10. The next question arises whether in these circumstances the appellant by causing the death of Kaka, who undoubtedly was the aggressor, exceeded the right of private defence. In my vieyv the answer to this, in the circumstances of this case should be in the negative. The learned Judge has given a clear finding, with which 1 entirely agree, that Kaki had no intention of killing the deceased while giving the blow on his head. That is why probably the 'learned trial Judge convicted the appellant under Part II of section 304, P. P. C. This shows the mental attitude of the appellant, in exercise of right of private defence, that he did not intend to cause the death of the deceased. As to whether he, in the circumstances, had the knowledge that he was likely to cause the death of the deceased, is also doubtful. If the question of exercise of right of private defence were not there, the conviction might have been under section 325, P. P. C. Thus his father having been assaulted by the deceased, the appellant had the right of defence of his father to the extent of causing grievous hurt to the deceased. Even if it be assumed that he had the knowledge that the death was the likely result, one cannot assume that he had enough time that he could think as to what was the proper method to save his father. The knowledge, in these circumstances, is only inferential and presumptive. One cannot hold with any certainty that if the presumption is removed, whether in reality, the appellant had the knowledge that Kaka would die. Therefore, when looked at from this angle, the appellant does not appear to have used more force than was necessary in order to save his father.
11. There is yet another aspect of the matter. If a young man like the deceased floored an old person and was in the act of giving him some beating, an apprehension could be enter tained by a person in the position of the appellant that unless he intervened with sufficient force, the victim was likely to suffer some grievous injury like the dislocation of a joint or fracture of bones (which become brittle in old age) and in any case there was the possibility that the old man might be throttled to death. In these circumstances the absence of physical injuries on the victim of aggression does not make much difference. Therefore, the appellant had the right to kill the deceased, because he could genuinely apprehend grievous hurt to his father. Considering all these possibilities, which are not only reasonable but highly probable, I hold that the petitioner acting in the exercise of the right of private defence has not exceeded that right. I also hold that the circumstances are such that even if I had not come to the above conclusion, the appellant would have been entitled to benefit of reasonable doubt ; because in my view benefit of doubt can be extended even where the question is whether the accused had exceeded the right of private defence. The appellant, therefore, has not committed any offence. His appeal is accepted and his conviction and sentence are set aside. .