This appeal from the judgment of the learned Additional Sessions Judge, Hyderabad, convicting the appellant for an offence under section 326, P. P. C. And sentencing him to R. I. For three years and a fine of Rs. 500 in default whereof he was to suffer further R. I. For one year, has arisen in the following circumstances.
1. The prosecution story in brief is that on the 20th June 1970, at about 10 a.m., the appellant was seen standing before the house of Fida Hussain, and making gestures to the women folk inside. A.I Murad, who was the hari of Fida Hussain, had remonstrated. The appellant is alleged to have been infuriated on the protest and had caused hatchet injuries to A.I Murad on his arm. Karim Bux, the brother of A.I Murad had proceeded to the Police Station Badin and lodged the report. The case was registered under section 324, P. P. C. Which subsequently came to be converted for an offence under section 326, P. P. C. After due investigation, the case came to be sent up in the Court of the Civil Judge & F. C. M., Badin.
2. The appellant in his statement at the Court of Inquiry as well as at the trial maintained that he was the hari of certain pieces of land which belonged to Dhani Bux, and the same had been purchased by Fida Hussain. Fida Hussain wanted to oust hire from the land, and as he (the appellant) had refused to comply with the demand, he had been attacked by A.I Murad, Karim Bux and Wahid A.I, and had sustained a number of injuries. The injuries to A.I Murad had been given by him just to ward off the peril to his life. He also examined D. W. Bhambo in his defence.
3. The F. I. R. Lodged by Karim Bux, clearly shows that the incident had gone un-witnessed and it was only on the cries of A.I Murad that he, Allah Bachio, Allah Warayo and Khano son of Saleh had found A.I Murad lying with injuries on the left arm which was cut at the wrist, and the appellant standing with a hatchet in his hand. On seeing them, the appellant took to his heels, and they did not make any bid to shadow him as he was armed with a hatchet. Khano has not been examined, however, at the trial, Karim Bux, Allah Bachio and Allah Warayo professed to be the witnesses of the incident. It is not necessary to dilate on their versions as the same had been belied in categorical terms by A.I Murad. The latter has stated that nobody was present at the time of the incident. He has further stated that after the receipt of the injuries, he had fallen unconscious and therefore could not know as to who had responded to his cries. On his own showing, he had regained his conscious at the hospital. He has also admitted that he was an accused in the counter-case. The position therefore that clearly emerges is that there is only the evidence of A.I Murad as against the appellant, and even A.I Murad has remained absolutely reticent in regard to the injuries on the person of the appellant. . That itself is a circumstance not to put any trust in his version. Otherwise too, according to the Medical Officer, the appellant also had four injuries on his person out of which one was incised in nature. The injury on A.I Murad was also only one, that is on the left arm which has however been found by the Medical Officer to be grievous in nature. Even in regard to the events culminating in the fight, the version of the appellant seemingly approximates with the truth because it appears that the lands, formerly on lease with Dhani Bux of which he is alleged to have been a hari, had been purchased by Fida Hussain. The story in regard to the improper behaviour of the appellant making gestures to the women-folk of Fida Hussain seems to have been spun out. It cannot, in the circumstances disclosed, be said as to how the trouble had originated. The fact also remains, that there were injuries on person of the appellant which have been suppressed by A.I Murad. The inference therefore to be drawn has to be against the version put forward by A.I Murad, and it cannot be said that the injury given by the appellant to ward off the danger to his own life which has got to be accepted in view, of the reticence of A.I Murad on the subject was in excess of the right of private defence. In this view of the matter, the conviction and the sentence awarded to the appellant cannot be sustained.
4. In the result, the conviction and sentence are set aside and the appeal is allowed. The appellant is on bail, and the bail bond furnished by him stands cancelled.