1. A. M. SAYEM, J.-This Appeal is by Abul Lais and Cherag A.I. They were placed before the Sessions Judge of Sylhet, who was assisted by four assessors, to face a trial in connection with the death of one Rajjab A.I of Parkitta within Chhatak P. S. Resulting from a single pen-knife injury on the chest.
2. The charge framed against Abul Lais was one under section 302, P. P. C: The other appellant was charged under section 302/ 109, P. P. C.
3. It was not disputed at the trial that Rajjab A.I owned two plots in the village in one block, one being situated op the contiguous north of the other; nor was it in dispute that the plot on the contiguous west of Rajjab A.I's southern plot belonged to appellant Abut Lais, and that the plot on the contiguous west of his northern plot belonged to appellant Cherag A.I. P. W. 1 Babru Mia, a cousin of the deceased Rajjab A.I, gave the prosecution case in detail. The substance of his evidence is as follows. On way back home from the bazar in the company of P. W. 11 Samru at about 5 or 5-30 ]p.m. On the 23rd Jaistha, 1372 B. S., corresponding to the 6th June 1965, he saw from a distance the appellants and Rajjab A.I quarrelling over the `ail' between the plot of Rajjab A.I and Abut Lais. He hurried to the spot. Rajjab A.I was accusing Abul Lais of having removed the `ail' by about 9 to the east. P. W. 1 asked them not to quarrel. At this, Rajjab A.I began removing earth from his plot and placing the same by the west of the existing `ail' with a view to restoring the `ail' to its alleged original site. Appellant Cherag A.I,. Thereupon, held Rajjab A.I's loin with both hands from behind and other appellant, namely, Abut Lais who was in front, facing Rajjab A.I, suddenly whipped out a knife from his pocket and dealt a blow on the latter's chest. Rajjab A.I fell down raising a cry. P. W. 1 also raised a cry. Rajjab A.I told those who came upon hearing the outcries raised by Rajjab A.I and P. W. 1 that Cherag A.I held him and Abut Lais dealt the knife blow on him. He was then removed to his house where he died soon thereafter.
4. The defence did not dispute the occurrence. Nor did it dispute that Rajjab A.I died of a pen-knife injury on the chest at the time and place alleged by the prosecution.
5. Appellant Abut Lais's plea was that deceased Rajjab A.I's accusation that he had removed the `ail' between his and Rajjab A.I's plots was false and that in course of a mutual fight between deceased Rajjab A.I and appellant Abut Lais, the former pushed the latter down on the ground and sat on his chest and also tried to throttle him. Appellant Abut Lais thus pleaded fight of private defence.
6. Appellant Cherag A.I pleaded alibi. It was also claimed by the defence that Rajjab A.I lost power, of speech immediately after he sustained the injury on the chest, so that he had no occasion to make any statement to the witnesses who came after the occurrence.
7. Apart from P. W. 1 the substance of whose evidence we have set out above while stating the prosecution case, the prosecution examined 11 other witnesses, including the Investigating Officer and a Constable who escorted the dead body to the morgue and identified the same before the doctor who held the autopsy. This doctor is P. W.
13. The remaining are local witnesses. In addition, the prosecution tendered two witnesses (P. Ws. 8 and 9) whom the defence declined to cross- examine. No evidence was led by the defence.
8. P. W. 2 Mafiz A.I, P. W. 3 Rahmat A.I, P. W. 10 Sharafat .All and P. W. 11 Samru deposed having seen the occurrence, as did P. W. 1 Babru Mia, P. Ws. 4, 5, 6 and 7 deposed having seen the appellants fleeing to the west immediately after they heard outcries raised by the deceased and. P. W. 1 Babru Mia. P.
9. Ws. 4 and 5 deposed having noticed the pen-knife in the hand of appellant Abul Lais. These four witnesses, namely, P. Ws. 4 to 7 further stated that on reaching the spot they heard from the deceased that appellant Cherag A.I held his loin and Abut Lais dealt the knife blow on him.
10. The doctor, P. W. 13; found one punctured wound on the 3rd intercostal space 2-- " from the mid- sternal line --" X --" x cavity. On dissection he found congested and clottedante---mortem blood in and around the injury. Pleura and pericardium were injured at the site of the injury. Right ventricle of the heart was also found punctured. The death, in the opinion of the doctor, was due to shock and haemorrhage resulting from this injury which was ante-mortem and homicidal in nature.
11. According to the doctor, the injury was sufficient to cause death fn the ordinary and usual course of nature and further that it was caused by a sharp-pointed weapon such as a pen-knife. The doctor opined further that after sustaining the injury, the victim could be alive for at least 30 to 60 minutes and would also be able to talk for sometime.
12. "So, considering the evidence and also the materials and circumstances of the case, I find that the prosecution has proved beyond reasonable doubt that in course of the alter--cation between Rajjab A.I on the one hand and the two accused on the other, accused Cherag A.I suddenly caught hold of Rajjab A.I from behind and accused Abut Lais by means of a pen-knife dealt a fatal blow on the left side of the chest of Rajjab A.I."
13. Mr. B. N. Choudhury who appeared on the first day of the hearing, took us through a considerable portion of the evidence in an attempt to show that the witnesses were all unreliable and that the defence case was likely to be true. On the second day of the hearing, however, Mr. Sekandar appeared before us and did not contest the learned Sessions Judge's finding that both the appellants took part in the occurrence, as alleged by the prosecution. He did not consider it necessary to invoke the right of private defence, either of person or property on behalf of appellant Abul Lais. He submitted that there was no evidence suggesting, far less proving, that Cherag A.I was aware that Abul Lais had a pen--knife with him or that the latter would cause any injury on the deceased. He contended that if his submission was correct then Cherag A.I could not be held guilty of abetment. Secondly he contended that Abul Lais's offence fell within the mischief of the second part of section 304, P. P. C. And not even under the first part of that section, far less under section 302, P. P. C.
14. Indeed, the evidence is that as Cherag A.I caught hold of the loin of the deceased from behind, Abul Lais who was in front facing the deceased suddenly whipped out the knife from his pocket and dealt the blow on the chest of the deceased. We have perused the entire evidence. There is nothing to suggest that Cherag A.I knew that Abul Lais had a knife inside his pocket. Nor is there any material to suggest that either by any utterance, or even by a gesture Cherag A.I instigated Abul Lais to inflict the injury on the deceased. This aspect evidence does not appear to have engaged the attention of learned Sessions Judge who found Cherag A.I guilty of abetment, upon a mere finding that his holding of the deceased from behind facilitated infliction of the fatal knife injury by Abul Lais. In the absence of any evidence to suggest that Cherag A.I knew that Abul Lais would cause an injury on the deceased, there can be no question of Cherag A.I instigating Abul Lais to inflict the knife injury on the deceased or in engaging in a conspiracy with him for causing the injury on the deceased or in aiding him in causing the said injury, as might bring Cherag A.I's act within the mischief of section 107, P. P. C. Which defines abetment. Nor can section 108, P. P. C. Which defines an abettor can apply to him, since by no stretch of imagination Abul Lais's intention or knowledge could be said to have been the same as that of his. Obviously, Cherag A.I's intention was only to prevent the deceased from removing the existing `ail' to different site. Besides, the plot of land which was going toaffected by the removal of the `ail' by the deceased was not There is also nothing to show that he was particularly interested in Abul Lais. His only aim appears to have been to prevent the deceased from illegally encroaching upon the land in Abul Lais's possession.
15. We are accordingly unable to uphold Cherag A.I's conviction.
16. Let us now examine the evidence against appellant Abul Lais. We have already noticed that the learned Sessions Judge found no reason to disbelieve three of the eye-witnesses namely, P. W. 1 Babru Mia, P. W. 2 Mofiz A.I and P. W. 11 Samru, as he found no reason also to disbelieve P. Ws. 4 to 7 who stated having seen the accused fleeing westward immediately after they heard outcries from the place of occurrence and also having heard from deceased Rajjab A.I that Cherag A.I caught hold of him and Abul Lais dealt the knife blow on his chest. Two of these witnesses again, namely, P.
17. Ws. 4 and 5 stated having noticed a pen-knife in the hand of appellant Abul Lais. Mr. Sekendar frankly submitted that he was not in a position to assail the credibility of these servant witnesses.
18. We, for ourselves, have carefully perused their evidence. In agreement with the learned Sessions Judge, we have no hesitation in holding that Abul Lais inflicted the pen-knife injury on Rajjab A.I's chest not because the latter attempted to throttle him but he did so during an altercation over removal of the `ail'. There is nothing on record in support of Abul Lais's plea that the deceased felled him on the ground and upon sitting on his chest tried to throttle him.
19. The injury on the chest resulted in Rajjab A.I's dearth. Abul Lais's act in inflicting the knife injury, Mr. Sekendar did not dispute, amounted to culpable homicide falling within the mischief of section 299, P. P. C. Which runs as follows "299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
20. The explanations appended to the section are not relevant for the purpose of the present case.
21. It will appear that there are three clauses of section 299, P. P. C., the first two clauses referring to the intention motivating an act which results in death and the third does not refer to any such intention but to knowledge that one's act is likely to result in death. An act of homicide will thus fall within the mischief of the first clause if the act is motivated by an intention of causing death, and so such an act will fall under the second clause if the bodily injury intended is likely to cause death. On the other hand, an act of homicide without any intention indicated either in the first or in the second clause is can attract only the third clause which speaks of a mere knowledge that the act is likely to cause death.
22. Mr. Sekendar submitted that it would not be fair, in the circumstances established in the evidence to hold that appellant Abut Lais had any intention either of causing Rajjab A.I's death or of causing such bodily injury on him as was likely to cause his death. Mr. Sekendar maintained that it was the third clause of section 299 which would be attracted to Abut Lais's act of dealing the knife injury on Rajjab A.I which unfortunately resulted in the latter's death, and that accordingly, he could be sentenced to a term of imprisonment only or fine or both under the second part of section 304, P. P.
23. C.
24. We have given our anxious consideration to Mr. Sekendar's submissions in the light of the circumstances under which appellant Abul Lais inflicted the injury on Rajjab A.I which proved fatal.
25. It is not always easy to distinguish a case of death motivated by one or other of the intentions indicated in the first two clauses of section 299 and such a case attended with the, mere knowledge that an act is likely to cause death.1 In the present case the prosecution did not allege enmity. Nod malice was suggested. The knife blow was sudden. The injury was but one; and no m6re. It was inflicted in the midst of a quarrel over an `ail' which, in our view, could hardly furnish a motive to cause the victim's death: The weapon used was only a pen-knife. We are unable in the circumstances to arrive at a firm finding as to if Abut Lais aimed the knife blow on Rajjab A.I with intention either to cause his death or to cause such bodily injury on him as was likely to result in his death. It appears to us problematic in the circumstances if Abut Lais inflicted the injury on Rajjab A.I being motivated by any of the intentions indicated in the first two clauses of section 299, P. P. C. It is true that the injury was inflicted on the chest, a vital part of the body. It is also true that the injury affected the pleura and the pericardiam puncturing also the right ventricle of the heart. But the tensity of the moment cannot be overlooked. This excess, by itself can hardly furnish proof of any such intention as indicated in the first two clauses of section 299. We are accordingly of the view that making concessions to which appellant Abut Lais is entitled in the peculiar facts and circumstances of the case, his act of inflicting the fatal injury on the deceased falls within the mischief of the third and last clause of section 299. P. P. C. Since he must be presumed to have had the knowledge that he was likely by such act to cause Rajjab A.I's death. That is also the contention of Mr. Sekendar, who frankly conceded that appellant Abut Lais's act constituted culpable homicide falling within the mischief of the third clause of section 299. The question, however, remains whether his act amounted to murder punishable under section 302. P. P. C.
26. Murder is defined in section 300, P.P.C. It provides that except in cases excepted in the section culpable homicide would be murder if the act by which the death is caused is motivated by any of the intentions mentioned in its first three clauses that are referable to the first two clauses of section 299. Section 300 also provides by its 4th clause, with which we are instantly concerned, that such an act when attended by knowledge referable to the third clause of section 299 will be murder in certain circumstances specified in the clause. For a proper appreciation of the point we quote below the relevant provision of section 300 containing the 4th clause :- "300. Except in the cases hereinafter excepted, culpable homicide is murder Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
27. It will be evident from the 4th clause of section 300 that culpable homicide of the nature falling under the third clause of section 299 will be murder in the event only of the assailant knowing that his act is so "imminently" dangerous that it "must" in "all probability" cause death or such bodily injury as is likely to cause death. And not only that; the act must be done without any excuse for incurring the risk of causing death or such injury as is likely to cause death. Although we have held that appellant Abut Lais had the knowledge that he was likely by inflicting the injury on Rajjab A.I to cause his death, in view specially of the weapon used being only a pen-knife we are unable to infer from the circumstances that he knew that his act was so imminently dangerous that it could not but in all probability cause Rajjab A.I's death or such bodily injury as was likely to cause his death.
28. Yet again, it cannot be said that he inflicted the injury on Raj jab A.I without any excuse for incurring the risk as indicated in the clause since upon the finding of the learned Sessions Judge, with which we are in complete agreement, Abut Lais inflicted the injury on Rajjab A.I when he was being dispossessed by Rajjab A.I of a portion of land on which even according to P. W. 1 Babru Mia, the complainant, he had grown paddy. He had thus an excuse for inflicting the injury on Rajjab A.I, which, no doubt, proved fatal. The 4th clause or section 300 cannot accordingly be pressed in aid of the prosecution. Hence he cannot be held guilty of murder, though ha is undoubtedly guilty of culpable homicide. He can only be convicted under section 304, P. P. C. Which provides punishment for culpable homicide not amounting to murder. This section has two parts, the 'first being relatable to the first two clauses of section 299 and the second to its third clause under which, we have already held, Abul Lais's offence falls. He is liable, therefore, to be sentenced under the second part of section 304 which provides for imprisonment of either description extending to 10 years, or with fine, or with both. In the circumstances of the case, we think that a sentence of rigorous imprisonment for 5 years will meet the ends of justice.
29. For the foregoing reasons the appeal of Cherag A.I is allowed, and he is acquitted of the charge framed against him. He is directed to be set at liberty forthwith. The appeal of Abul Lais is dismissed but his conviction under section 302, P. P. C. And the sentence thereunder of transportation for life are altered to a conviction under the second part of section 304, P. P. C. And a sentence of rigorous imprisonment for 5 years.
30. AHSANUDDIN CHOUDHURY, J.-I agree.