' Z. A. CHANNA , J.-Appellant Muhammad, a young man of about 22 years of age, was tried by the learned Sessions Judge, Dade, in respect of an offence under section 302, P. P. C. For causing the death of one Muhammad All son of Kbair Muhammad, and the learned Sessions Judge by his judgment delivered on 10-6-1975 convicted the appellant of the said offence and sentenced him to imprisonment for life. The learned Sessions Judge did not award the appellant the sentence of death because, in his view, the appellant had not come prepared to commit murder of the deceased and the situation appeared to have been trast upon the appellant.
2. The prosecution version, shortly stated, is that the appellant had Illicit connections with Mst. Soni, the wife of the deceased, and to pursue his illicit Mir the appellant came to the house of the deceased on the night of the incident, when the deceased had gone to his fields for rotation of water. The deceased, who was not feeling well on that night, however returned to his house at about 10-00 p.m. And finding the appellant In his house chastised him for daring to come to his house in spite of the fact that he had previously warned him not to enter his house. An altercation ensued bete een the deceased and the appellant which led to their grappling and giving fists and blows to each other. The appellant, who was a younger and apparently a more powerful person, felled down the deceased and started throttling him, whereupon Ali Soni and the children of the deceased started raising cries. On the cries, witnesses Esso, his brother Moos and Allah Rakhio, who reside in the adjoining houses, as well as some other villagers, rushed to the scene of offence and saw the appellant throttling the deceased. On seeing the witnesses, the appellant ran away. It was, however, found that the deceased was dead. Imo thereupon rode on his bicycle to Hatim Jatoi village, about 16 miles away, to inform Allah Ditto, the brother of the demand of the incident. Allan ditto rode back with Isso on the latter's bicycle to the scene of offence and after seeing the dead body of his brother, Muhammad Ali, he repaired to the !Obi Police Station, one mile away from the scene of offense, where he lodged his first information report the next morning at 6-30 a.m.
3. The first information report was recorded by S. H.
0. Muhammad Hassan who accompanied complainant Allanditto to the scene of offence which was in the courtyard of the house of the deceased where the dead body of the deceased was lying on a cot under a shed adjoining the main house of the deceased. There was blood on the ground near the dead body as well as on the pillar of the shed. The S. H.
0. Secured the blood.. Stained earth in the presence of Mashirs. After girding the body of the deceased to the Medical Officer, Johi, for post-mortem examination, the S. H.
0. Recorded the statements of witnesses Mat. Soni, Allah Rakhio, MOOF0 and Isso. On the same day, at 3-00 p.m. The S. H.
0. Arrested the appellant from his house. The appellant was found to have a number of injuries on his person and further his shirt, banyan, loin cloth and ansocisha were found to be blood-stained.
The S. H.
0. Secured the same in the presence of Mashirs Ghulam Muhammad and Mien Bun. The blood, stained clothes of the accused and the earth secured from the scene of offence wore sent to the Chemical Analyser to the Government, who has reported that the clothes and one parcel of earth were found stained with blood of human origin, but the blood in the other parcel of earth was found disintegrated and its origin could not be determined.
4. The autopsy on the deceased was conducted by Dr. S. M. Hashim, who was then Medical Officer, Johi, and who had also examined the injuries on the person of the appellant. The Medical Officer found the following injuries on the person of the deceased:- "The face of the deceased synosed and slightly swollen. White froth was present at the mouth. Red froth at the nostrils. The upper lip was swollen and bruised. Marks of slivalon from the angle of the mouth towards the angle of mandible from each side was present. The eyes were closed. Upper and lower eye-lids of right eye were bruised. Conjuctives were conjested. Pupils were dilated.
Cornea was dull. Tongue was in the oral cavity. After opening the mouth white forth and red forth came from it.
(1) One brawn dry parchment like mark lr x r from the upper part of the left side neck, and four such marks r x r below that. One such mark r x f' on the upper part of right side neck, and four such marks r so r below that,
(2) One bruise 1/3' n r on the left side of the nose.
(3) One brifse le X on the left side chin.
(4) One abrasion 11' x II" on the upper lateral part of the left arm, near shoulder-joint.
(5) One abrasion se 4" on the ventromedial side of the left fore-arm
(6) One abrasion X 4' on the right shoulder-joint.
(7) One lacerated wound 4' x on the index thaw of right hand.
(8) One bruise 4' X fr on the dorsurrt on the root of the penis."
5. In the opinion of the Medical Officer, all the above injuries were a, ntiemortem, and while injury No, I appeared to have been caused throttling with the fingers of the hands, the other injuries appeared to have been caused by fists and kicks and in the course of a struggle. According to him, injury No, 1 was sufficient to cause death of the deceased.
6. The Medical Officer, who had examined the appellant on 18-12-1973, at about 3-30 p.m., found the following injuries on his person:- "(1) One lacerated wound 1/3' x x in-between thumb and index finger of the right hand.
(2) One lacerated wound r n x on the medial side of the middle finger of the left hench
(3) One abrasion ig 4" on the right elbow-joint.
(4) One bruise 3' x on the posterior side of the right shoulder- joint.
(5) One bruise 2' x on the left scapular region.
(6) One abrasion I' x on the posterior aspect of the left arm just above elbow-joint.
(7) One abrasion 1' x 4' on the left knee-joint."
7. The above injuries in the opinion of the Medical Officer were caused by fists and kicks and were about 12 to 24 hours old when he examind the appellant.
8. The defence of the appellant is one of complete denial. He denied that be bad gone to the house of the deceased or was maintaining an illicit affair with the wife of the deceased or that he had killed him or caused any injuries to him. He explained that the injuries on his person were the resuk of the beating given to him by the police and not in the struggle with the deceased. He further stated that the prosecution witnesses have falsely implicated him due to enmity. According to him, Mat. Soni was first married to P. W. Allah Rakhio but the deceased enticed her away and then settled in their village, whereafter, Allah Rakhio began visiting their village, at which he prevented Allah Rakhio from visiting the village but the latter did not heed his advice and on the contrary threatened him with con.. Sequences.
9. There are four pieces of evidence against the appellant, namely, ocular evidence, medical evidence showing that he had injuries on his person, evidence of recovery of blood-stsind clothes from his possession and finally evidence of strong motive for the corarniseion of the crime.
10. The direct evidence in the case is provided by (1) Isso, cousin of the deoeasedi (2) Mat. Soni, wife of the deceased, and (3) Allah Rakhio cousin of P. W. Isso. The sketch of the scene of offence prepared by the Tapedar shows that the house of Isso was nearest house to the house of the deceased except the house of Mien Bux Lund and that the houses of witnesses Moosa and Allah Rakhio practically adjoin the house of P. W. Isso. According to the Tapedar the house of Isso was 115 feet away from the scene of offence while the house of Allah Rakhio was 250 feet towards the south-west of the scene of offence. Looking to the short distances intervening between the scene of offence and the houses of P. Ws. Isso and Allah Rakhio, there would appear to be no reason to doubt their testimony that they came running on hearing the cries and saw the fatal assault on the deceased. Of these two witnesses, P. W. Allah Rakhio, while testifying that be had seen the deceased lying on the ground with another person sitting over him, who ran away on their approach, had admitted that he did not identify that person, but Mst Soni, on his enquiries, there and then informed him that the culprit was the present appellant, whom the deceased found in his house when he returned from rotation of water and that both the deceased and the appellant had grappled with each other but the appellant had finally overpowered the deceased and throttled him.
11. So far as Mst. Soni is concerned, she has not implicated the appellant in her evidence in the Sessions Court and stated that it was a dark night and that a culprit, whom she could not identify, bad come and fought with her husband and both the culprit and the deceased had beaten each other with fists and kicks. She further deposed that on her cries, witness 480, Allah Rakhio and Mooso had turned up. She also denied in her evidence in the Sessions Court that the appellant was maintaining illicit relations with her or that her husband suspected the appellant of such an outrage. In view of the fact that she had liven substantially different evidence in the committal Court, and further had immediately given the name of the appellant as the culprit to the complainant and P. We. Isso, Allah Rakhio and Moose, her statement in the lower Court was brought on the record of the Sessions Court under the provisions of section 288, Cr. P. C. In that statement she has fully implicated the appellant and has further stated that her husband suspected the appellant of having illicit relations with her and therefore had forbidden him from visiting their house. The learned Sessions Judge has taken the view that Mst. Soni, by reason of the fact that she had illicit relations with the appellant, therefore, must have been very much in love with him and further by reason of the fact that she had left the house of her husband and is no longer on talking terms with complainant Allanditto, bas tried to give evidence in favour of the appellant at the trial and hence he considered that her evidence in the committal Court where she has fully implicated the appellant, and which is supported by other evidence on the record, is reliable and is to be preferred. We are inclined to agree with his assessment of her evidence.
12. So far as P. W. Isso is concerned, whose house, as already indicated, is almost adjacent to the house of the appellant, he has fully implicated the appellant and has deposed that he had seen the appellant, whom he identified, sitting upon the deceased, when he went to the latter's house on hearing an outcry, and also saw the appellant giving fist blows to the deceased and throttling him.
P. W. Isso is an independent and natural witness who is not related to the deceased. He has admitted that he is a caste-fellow of the deceased but this would not make him an intereAed witness. We see no reason to disbelieve the testimony of this natural witness, who, in our opinion, was rightly believed by the learned Sessions Judge. One of the circumstances which has weighed with us in relying upon the testimony of this witness is that he has frankly admitted the fact that prior to her marriage with the deceased Man Soni was married to his cousin, P. W. Allah Rakhio, and after Allah Rakhio had divorced her she had married the deceased. A suggestion was made to this witness and the other eye-witnesses that it was in fact P. W. Allah Rakhio who had killed the deceased and the witnesses. Because of the relationship with Allah Rakhio, had shielded him and falsely implicated the appellant. This contention, in our view, is entirely devoid of substance. Not only has it been strongly repudiated by the witnesses but further there was no reason for complainant Allanditto, who is not related to P. W. Allah Rakbio or even P. W. Ism, to have exonerated Allah Rakbio and instead to have falsely implicated the appellant.
13. Mr. Muhammad shraf Nazi, the learned counsel for the appellant also assailed the prosecution case against the appellant and specially the ocular evidence on the ground that there was an abnormal delay in the lodging of the first information report and that this delay was utilised its concocting a false case against the appellant. It is true that the first information report was lodged about 8} hours after the incident, though the police station is only one mile from the scene of offence, but in our opinion, the delay has been satisfactorily explained and was due to the fact that it was thought necessary, before lodging the first information report, to inform complainant Allanditto, the brother of the deceased, who was putting up 16 miles away from the scene of offence, and on being informed, Allanditto accompanied Isso to the scene of offence and after actually finding that his brother Muhammad Ali was dead, he repaired to the police station.
14. In additen to the ocular evidence discussed by us above, there is evidence that at the time of his arrest the appellant had a number of injuries on his person, which injuries we have already detailed in an earlier part of our judgment. An examination of these injuries shows that they were mainly on the fingers and the hands and were of such a nature as to have been caused in a band to hand fight or struggle. These injuries, in the opinion of the Medical Officer, who examined the appellant, were caused 12 to 24 hours previous to the examination of the appellant, which took place at 3-30 p.m. The age of the injuries thus appears to be near about the time of the Incident. The appellant, while admitting the presence of these injuries on his person has tried to explain them away by orating that they were the result of the beating given to him by the police. This allegation, in our view, was rightly disbelieved by the learned Sessions Judge. Not only did the C. H.
0. Muhammad Hassan, deny that any beating was given to the appellant by the police, but the nature of the injuries on the appellant clearly belies such an allegation. Furthermore, the age of the injuries, as given by the Medical Officer, is quite inconsistent with the contention of the beating by the police, since the police arrived at the scene of offence on the next day of the incident and arrested him at 3-00 p.m as shown in the Mashirnama of his arrest. No doubt, P. W. Gbulam Muhammad, who has signed the Mashimama of the arrest of the appellant and the injuries on the latter, has denied that the appellant was either arrested in his presence or that the police had prepared any Mashimarna regarding injuries on the person of the appellant or the recovery of any blood-stained clothes from his possession, but we are not prepared to place any reliance on his denial as he obviously h As given obliging evidence in favour of the appellant who is admittedly vitiated to him.
15. The other piece of evidence against the appellant is the recovery of blood-stained clothes from the person of the appellant, which fact has been deposed to by S. H, 0. Muhammad Hassan. The securing of the blood-stained clothes has been admitted by the appellant in his statement in Court and hence the denial of Menhir Muhammad Bux that the appellant's clothes were not secured by the police in his presence is of no significance. The appellant has tried to explain that his clothes gat blood-stained due to the injuries caused to him by the police, but since, we have disbelieved, for cogent reasons, this allegation, the presence of human blood on the clothes of the appellant is strong corroborative circumstance against him.
16. Finally, there is the evidence of motive. P. W. Allanditto has testified that when he was brought to the scene of offence by P. W. Isso, Mst. Soni informed h;rn that the deceased had prevented the appellant from visiting their house as he suspected him of maintaining illicit relations with her. This fact is also stated in the F. I. R. Though, Ms:. Soni, in her evidence in the Sessions Court, has denied making such a statement either to P. W. Allanditto or the other witnesses, in her statement in the lower Court, which has been admitted in evidence under section 288, Cr. P. C., she has testified about this suspicion of her husband. It would be quite unusual for a woman to make such a statement unless it is true. P. W. Isso and Allah Rakhio have also deposed that Mst, Soni had informed them, when they went to the varfat, about the suspicions which her husband entertained towards the appellant in roped of her. We are, therefore, of the view that the deceased, who according to the evidence on record suddenly returned to his house from rotation of water on hie field, must have been greatly annoyed at seeing the appellant in his house. Under such circumstances, there was bound to be an altercation and a struggle between the appellant and the deceased.
17. Although we are tisfiel on the evidence on record that it was the appellant who killed the deceased by throttling him, the important question which fails for consideration is whether the appellant had the requisite intention of killing the deceased, and consequently his act would amount to murder.
18. The appellant had admittedly come unarmed to the house of the deceased. Had it been his intention to kill the deceased or even to cause him any injury, it would not have been difficult for him to have armed himself with a suitable weapon. His object in coming to the house of the deceased was clearly to pursue an illicit love affair with the wife of th deceased taking advantage of the aksence of the deceased from the house. It was the sudden return of the deceased to his house which posed a proble for the appellant and in the words of the learned Sessions Judge '"the situation appeared to have been thrust on him". The primary object of the appellant on finding that the deceased had returned to his house, quite obviously, must have been to escape from the house, and he was likely to use force only if his escape was obstructed or prevented. Mst. Soni, who is the only witness w!o has seen the entire incident from the beginning, informed witnesses Isso and Allah Rakhio, as soon as they came to the scene of offence on hearing the turmoil, that when her husband found the appellant in their house, on the former returning to his house, he remonstrated with the appellant and thereafter both of them had fought and ultimately the appellant overpowered the deceased and throttled him. A practically similar version of the incident has been given by Mst. Soni in her statement in the lower Court which as already stated, has been admitted in evidence under section 288, Cr. P. C. In that statement she has stated that the deceased grappled with the appellant and thereafter both started giving fist blows to each other, but the deceased fell down and the appellant killed him by throttling. It would thus appear that the aim of the appellant originally was merely to escape and for this purpose merely to overpower the deceased by giving him fist blows and kicks. It was presumably in the heat of the passion and without premeditation, when the appellant found that he was not able to free himself from the restraint and clutches of the deceased, that he throttled the deceased in a final attempt to escape.
According to Taylor on Principles and Practice of Medical Jurisprudence, Volume I : "Strangling (called throttling, when effected by the hands) is asphyxiation by mechanical construction of, pressure upon, the neck by some means other than the weight of the victim's body." The learned author further goes on to state that "certain special features of this form of death require further attention bore when it is remembered that a person can voluntarily hold his breath for, say, at least 30 seconds without distress, it is very remarkable that a sudden and violent compression of a windpipe should so often render a person powerless to call for assistance or to give alarm, cause almost immediate insensibility and death."
' Modi, in his Medical Jurisprudence and Toxicology, Thirteenth Edition, states that strangulation may also be brought about by compressing the throat with a foot, knee, elbow or some other solid substance. Instances of killing by throttling are by no means very uncommon but in most such cases either the victim is a child or a woman and in the case of adults either the assailants are more than one in number or the victim has been denied the use of his strength and limbs, either because he is in a drunken state, asleep or his hands and feet have been tied. Both Taylor and Modi have reported very few instances where it has been possible for one person to throttle with his bare hands an adult person to death. It would appear to be somewhat difficult and uncommon for one adult person to strangulate another adult person, who is in full possession of his senses and strength, in a hand to hand fight. It seems to us that the deceased was not only much weaker to the appellant in physical strength but further his strength and stamina had been undermined because he did not happen to be we on that night. In view of these circumstances, and the rarity of the occasions on which it may be possible for one adult person to throttle to death another adult person of almost equal strength in a hand to hand fight, we do not think that it can saftly be presumed that the appellant had the requisite intention to 1611 the deceased. The circumstances in the case would seem to saddle the appellant or ly with the knowledge that his act of throttling the appellant, for howsoever short a period, was likely to result in sudden and vie lent death.
19. We are fortified in our opinion by the decision of the Lahore High Court in Jahara V. Emperor (). In that ease, the accused was found to have killed his wife by throttling her. It was held that the murder was not premeditated and that possibly the accused wanted to satisfyhis sexual desire but the deceased was young and seems to have resisted. In that case it was held as follows:- "The question remains what is the nature of the crime, if any, which the circilmst,nces of the case establish. Notwithstanding the guarded
(1) A I P. 1933 Lab. 511 opinion of the medical witness I think that death by strangulationis established; the deceased died an unnatural death and the only signs of violence are those on the neck. Knowledge that pressure applied to the neck is likely to cause death must be attributed, at least to every adult-the accused a man of thirty could not plead ignorance on the ground of youth or inexperience and it remains then to determine whether the circumstances show that the accused intended to cause death. He had so far as the record shows no motive for murdering his wife. I cannot see why he should have tried to kill her even if full weight is given to the evidence that she was unhappy with him and the theory of the assessor that she refused him his marital rights be adopted. A dispute, about this or of some other nature, must have taken place before the accused became violent and though it is evident that the accused was violent and intended to be so, a doubt must remain whether so far as his intention went the deceased's death was not accidental; of this doubt, he is entitled to the benefit. I would hold, therefore, that the accused caused the death of the deceased with the knowledge that his act, applying pressure to her neck, was likely to cause death, but without any intention to cause death or such bodily injury as was likely to cause death."
20. In another Lahore case, reported as Nanak v. Emperor (0, it was found that the deceased who was grazing his sheep hit the dog of the accused with a stick for having molested his sheep, whereupon the accused seised hold of the deceased in a sudden temper and took the turban of the deceased from his head and strangled him. There was no enmity between the two and it was found that it was a sudden and unpremeditated attack. It was held that it may be more probable that the accused only meant to teach the deceased a lesson and had no intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death and accordingly the conviction of the accused was altered from one under section 302, to section 304, Part II, P. P. C.
21. On a careful appraisal of all the evidence in the case we are of the opinion that the appellant can only be saddled with the liability that be possessed the knowledge that he was likely to kill the deceased, since his intention merely appeared to have been to escape from the house of the deceased and possibly also to teach him a lesson. The two Lahore authorities referred to by us above would also seem to support this view. In the circumstances, we hold that the appellant was guilty of an offence under section 304, Part II, P. P. C. And we would alter his conviction accordingly and sentence him for the said offence to R. I. For 7 years.
(1) AIR 1931 Lab. 189