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Criminal Appeal No. 417 of 1965, decided on 18th December 1968.

Ss. 299, 302 & 304, Part II--- Accused assaulting his wife with wet rope knowing it to be so dangerous an act likely to cause death‑Such assault, however, not an act so "imminently dangerous" that it "must, in all probability" cause death or such bodily injury as to be likely to cause death‑Accused's offence, held, does not come within definition of "murder" but falls under third clause of S. 299 Accused punishable under second part of S. 304 and not under first part‑Conviction under S. 302 altered to that under S. 304 and sentence of transportation for life reduced to 4 years' R. I

Khan Bahadur Md. Ismail with A. T. M. Afzal for Appellants.

Abdur Rasheed for the State.

Date of hearing : 17th December 1968.

These two appellants were placed, before the Sessions Judge of Dinajpur who was assisted by 3 assessors to face a trial in connection with an incident that took place about sunset on Wednesday, the 13th May 1964. This incident, it is said resulted in the death of appellant Makbul Hossain's wife named Hafeza Khatun.

The allegation against appellant Makbul Hossain was that it was he who caused the death of Hafeza Khatun by assaulting her with a rope. The allegation against the other appellant, Sharifuddin alias Dengai Md., elder brother of Makbul Hossain, was that he abetted the assault on Hafeza Khatun, and further that subsequently he lodged a false F. I. R. in Pirganj Police Station stating that Hafeza Khatun com mitted suicide by hanging. Accordingly, a charge under section 302, P. P. C. was framed against appellant Makbul Hossain and two charges, one under section 302/109, P. P. C. and another under section 201, P. P. C. were framed against Sharifuddin alias Dongai Md.

In agreement with the unanimous opinion of the assessors, the learned Sessions Judge convicted Makbul and Dongai respectively under sections 302 and 201, P. P. C. and acquitted the latter of the charge under section 302/109, P. P. C. The learned Sessions Judge imposed a sentence of transportation for life on Makbul and a sentence of rigorous imprisonment for 5 years on Dongai. Hence this appeal by both.

There is only one eye‑witness in this case. She is P. W. 1 Mohsena Khatun, younger sister of the deceased Hafeza. She is 14 years of age. Admittedly she was in the house of Makbul on the date of occurrence.

P. W. 1 Mohsena, who claimed to have seen the occurrence from the beginning to the end, gave the prosecution case in detail. Her evidence is that at about sunset time on Wednesday, the 30th Balshak, 1371 B. S. corresponding to 13‑5‑64, Hafeza was cleansing the utensils near the well situated in the outer yard of her husband's house. The witness was standing near her. Appellant Makbul came and asked Hafeza to get him water from the well for bathing. Hafeza requested Makbul to wait for sometime, and hastily went inside the house with the utensils. As she came out, Makbul asked her whether she would at all give him water for bathing. Hafeza replied saying "Can't you draw the water yourself". At this, Makbul took the rope tied to the bucket, and upon folding it four times began to assault Hafeza with it on her cheeks, chest, back etc. Hafeza fell down and. asked the witness to send for their father and brothers, saying that she would not survive. Just then appellant Dongai, the elder brother, came there and shouted saying: "Hit the shali, I will spend whatever money is needed." Thereupon, appellant Makbul kicked, slapped and fisted Hafeza. Hafeza died then and there. The appellants' mother came there and exclaimed that Hafeza was killed. The appellants removed Hafeza's body to the southern verandah of the north bhiti hut. The witness was crying. Makbul then removed the necklace and ear‑rings from Hafeza's neck and ears and offered them to the witness. The witness refused to accept these, saying that Makbul had murdered her sister. At this, appellant Dongai said that she should be removed from the house, else the appellants would not at all be safe. Dongai's wife detained her at night. On the following day, at dawn, Makbul's nephew Bhatu Mahmud took her to his sister's house situated close to the other side of Indo‑Pak border, which is at a distance of a quarter of a mile from Makbul's house. By noon however, Makbul went to that house and got back the witness to his house. On the way she met her uncle, P. W. 7, and brother, P. W. 6, Abdul Quddus. She narrated the entire occurrence to them in naming the appellants. She also narrated the occurrence to her father and others, on reaching Makbul's house.

The defence did not challenge Mohsena's evidence relating to the assault on the deceased by Makbul. It did not also dispute that the deceased was assaulted with the wet rope of the bucket meant for lifting water from the well. The defence case was that the appellant Dongai came to the house sometime after Hafeza had died, so that Dongai had nothing to do with the assault on Hafeza; and further that Hafeza committed suicide by hanging after the assault, so that she did not die as a result of the assault on her by Makbul.

Altogether 7 witnesses were examined by the prosecution, including two Sub‑Inspectors of Police, the doctor who held the autopsy and the Constable who escorted the dead body to the morgue and identified it before the doctor. The other three were P. W. 5 Hashimuddin and P. W. 6A. Quddus, father and brother respectively of the deceased and P. W. 1 Mohsena, the solitary eye‑witness in this case. Three witnesses, including Mohsena's uncle, P. W. 7 Tasiruddin, were tendered for cross‑examination. The defence declined to cross‑examine the tendered witnesses. The defence examined two witnesses who deposed claiming that appellant Dongai accompanied them from a Hat situated at a distance of one mile from Makbul's house, and that together all the three heard a rumour that Hafeza had committed suicide. They also stated that on reaching Makbul's house, they saw the dead body covered with a sheet on the floor of the north bhiti but and a rope hanging from a bamboo in the ceiling.

The present case was started by the police on a written report of P. W. 5 Hashimuddin submitted to P. W. 10 Sub Inspector Md. Ferozzaman when the latter came to appellant Makbul's house in connection with the First Information Report lodged by appellant Dongai in the police station, alleging that Hafeza had committed suicide. This report of P. W. 5 Hashimud din has been treated as the first information report in the present case.

It appears from the evidence of P. W. 5 Hashimuddin P. W. 6 Abdul Quddus, respectively father and brother of the deceased Hafeza and P. W. 1 Mohsena, that on getting an information that Hafeza had committed suicide, along with their relatives (such P. W. 7 Tasiruddin, Mafizuddin and Abdul Karim) who were tendered for cross‑examination, they came to the house of appellant Makbul at about 9 in the morning following the day of occurrence. They found Hafeza's dead body lying on the floor of the eastern room of the north bhiti but covered with a sheet. Upon removing the sheet, they saw marks of injuries on the body. They did not find P. W. 1 Mohsena there. All this raised their suspicion, which was deepened when their enquiries about Mohsena met with no satisfactory response. P. W. 6 stated that after such enquiries made about Mohsena, he and the tendered witness Tasiruddin, his uncle, approached the nearest E. P. R. camp. The E. P. R. personnel insisted on the appellants bringing out P. W. 1 Mohsena. Appellant Makbul then led this witness and P. W. 7 Tasiruddin towards the border. Makbul went beyond the border and brought P. W. 1 Mohsena, who, on seeing him and P. W. 7 narrated the entire occurrence to them, naming the appellants. On reaching the house of Makbul, Mohsena narrated the occurrence to her father P. W. 5 Hashimuddin and others present in that house. P. W. 5 Hashi muddin, the father, stated that as P. W. 1 Mohsena was brought back from India, she narrated the occurrence to him and all others present, naming the appellants. Thus P. W. 5 Hashimuddin and P. W. 6 Abdul Quddus corroborated the evidence of P. W. 1 Mohsena to the effect that on way to the house of Makbul from beyond the border she narrated to P. W. 6 Abdul Quddus the entire occurrence and also to others, including her father P. W. 5, on reaching Makbul's house. P. W. 4 Sub‑Inspector Majibur Rahman, Officer‑in‑Charge of Pirganj P. S., proved the F. I. R. lodged by appellant Dongai alleging that Hafeza had committed suicide. Sub‑Inspector Ferozzaman, who investigated the present case, stated that the unnatural death case started on the F. I. R. lodged by appellant Dongai having been endorsed to him by the Officer‑in‑Charge, of Pirganj police station, he reached the locality on the same date and held the inquest on the dead body of Hafeza on the identification of her father P. W. 5 Hashimuddin. In cross‑examination, this witness stated that he noticed a "slight mark of rope below the neck." He also stated that he found the colour of the face of the dead body pale and a saliva mark on the right side of her mouth.

We have referred in detail to the evidence of P. W. 1 Mohsena, the sole eye‑witness in the case. We have noticed that the presence of Mohsena in the house of Makbul on the date of occurrence was not disputed by the defence. We have also mentioned above that the assault on Hafeza by Makbul by a wet rope was not in dispute. What was disputed on behalf of both the appellants was the story that Hafeza died on the spot as a result of the assault. The defence further disputed Dongai's presence at the time of the assault and so also the prosecution story that together with Makbul he removed the dead body from near the well to the verandah of the north bhiti hut. As already noticed, the defence examined two witnesses whom the learned Sessions Judge could not believe because of certain discrepancies in their evidence and their relationship with the accused. We have also perused the evidence of these witnesses. Their evidence has not inspired confidence in us. Let us at this stage refer to the medical evidence. P. W. 2 Dr. Siddiqur Rahman, who was then Medical Officer of Noakhali Sub‑Divisional Hospital, held the autopsy on 15‑5‑64, at 4 p. m. He found as many as 9 injuries on the dead body, each being an ecchymosis with a width of one inch. The injuries found by the doctor are set down below :‑

"(1) One ecchymosis on the left side of the face 1" anterior to the left ear x 3" x 1".

(2) One ecchymosis on the right side of the face 1 " away from the right wall of the nose 2 "x 1".

(3) One ecchymosis on the right shoulder 3" above the right anterior axillary fold 3 " x 1".

(4) One ecchymosis on the left shoulder 1" away from the lateral and of the left clavicle 3" x 1".

(5) One ecchymosis on the middle part of the left side of the back 1" away towards the left from the vertical column 3" x 1".

(6) One ecchymosis on the posterior aspect of the right elbow 3" x 1".

(7) One ecchymosis on the medial side of the right thigh at its lower part 4 " x 1".

(8) One ecchymosis on the medial side of the left thigh at its lower part 3 " x 1".

(9) One ecchymosis on the posterior aspect of the left knee 2 " x 1".

On dissection of all the injuries, extravasation of blood was found under their seats. No mark of ligature was present. The doctor found all other organs healthy. The doctor was of the opinion that death was due to "collective effect" of all the 9 injuries and that the injuries were ante mortem and homicidal in mature. In cross‑examination, the defence obtained from the doctor that all the injuries were slight, and that none was on any vital organ.

Since the internal organs were not affected, the doctor's opinion that Hafeza's death was due to the "collective effect" of the injuries can only mean that in his opinion Hafeza died of the shock resulting from the ligature mark present. The doctor thus supported Mohsena's evidence that Hafeza was beaten to death with the wet rope of the bucket, and that it was not a case of suicide by hanging.

Mr. Md. Ismail, who appeared in support of the appeal referred us to the evidence of P. W. 10 Ferozzaman, the Investi gating Officer, who as already noticed stated that during inquest he found the mark of a rope below the neck and also a salive mark on the right side of the mouth of the deceased, and further that the colour of the face was pale. Mr. Ismail contended that these clearly supported the defence case that Hafeza died of suicide by hanging. It is true that the Investigating Officer who went to the spot at about 11 in the morning following the evening of occurrence made such statements. But the doctor who held the autopsy at 4 p.m. on 15‑5‑64, i. e. about 30 hours after the inquest did not find any mark on the neck, nor did he speak of saliva by the side of the mouth. As to the mark on the neck, the Investigating Officer's evidence is that it was of a slight nature. It must have disappeared therefore, when the doctor held the autopsy. Such a slight mark on the neck obviously does not suggest a case of suicide by hanging. The doctor was specific as to the absence of any ligature mark. This clean, negatives the hypothesis of suicide by hanging. It is not unlikely that the rope by which Hafeza was assaulted also fell on the neck, affecting the wind pipe. The evidence of the Investigating Officer, in our view, is not in conflict with the medical evidence. In any event, there is absolutely no material on record to contradict the categorical statement of P. W. 1 Mohsena that the deceased fell down and died near the well, and further that the dead body was removed by the appellants to the north bhiti hut.

We have perused the evidence of P. W. 1 with great care. We have found nothing in her evidence to discredit her. Our attention was drawn to certain omissions in her statement to the police. She did not tell the Investigating Officer (1) that appellant Dongai instigated Makbul, (2) that appellant Dongai had suggested her removal from the house on the ground that the appellants would not be safe, (3) that appellant Makbul folded the rope four times before beating Hafeza and (4) that she had narrated the occurrence to her brother P. W. 6 and uncle P.W. 7 on way back from beyond the border to the house of Makbul.

It is because of Mohsena's failure to tell the Investigating Officer that appellant Dongai instigated Makbul to assault Hafeza. that the learned Sessions Judge acquitted the said appellant of' the charge under section 302,/109, P. P. C. It seems to us that it was a very unfair question put to the Investigating Officer, since it was not stated in Court by P. W. 1 that appellant Dongai instigated Makbul. The word instigation' was not used by Mohsena in her evidence. Naturally, the Investigating Officer's answer was that she did not tell her that Dongai instigated the assault. As there is no appeal before us against Dongai's acquittal we need not go into the question in detail. We agree with Mr. Abdur Rasheed, the learned Advocate for the State, that the other omissions in P. W. 1 Mohsena's statement before the police are of no consequence. Assault on Hafeza with a wet rope, as already noticed, was not disputed. If P. W. 1 did not mention before the Investigating Officer that prior to the assault the rope was folded four times, that can hardly be a reason to think that she did not see the occurrence. Nor could Mr. Ismaif seriously. contend that Mohsena's failure to tell the Investigating Officer that appellant Dongai suggested her removal from the house and that she narrated the occurrence to P. W. 6, her brother, on way back from the border were material omissions. It was but natural for P. W. 1 Mohsena to narrate the occurrence to her brother and father, P. Ws. 5 and 6, as soon as she met them. It was argued that the evidence of P. Ws. 5 and 6 was not admissible. The fact remains, however, that the evidence of P. Ws. 5 and 6 is that Mohsena disclosed the story to them at the earliest opportunity on being rescued from detention. But leaving the evidence of corroboration apart, we find nothing in the evidence of P. W. 1 Mohsena to throw doubt on her veracity.

Both according to the prosecution and the defence P. W. 1 Mohsena was in the house of Makbul throughout the night following the occurrence. She denied the defence suggestion that after the assault on Hafeza, the latter went to the north bhiti but and committed suicide by hanging. The evidence is that Hafeza was but 17 years of age. It is inconceivable that after having been mercilessly assaulted with a wet rope, a teen aged girl would be able to go by herself from scar the well to the but and then manage to Throw a rope over the bamboo in the ceiling and make a noose of it, and thus hang herself. There is again the evidence of the doctor who was specific as to absence of any ligature mark and also denied the suggestion that the death was due to suicide by hanging. We have no hesita tion, therefore, in accepting the evidence of P. W. 1 Mohsena that Hafeza died immediately after the assault as a result of the injuries sustained by her, and that the appellants carried the dead body from near the well to the north bhiti hut. We have already rejected the evidence of the defence witnesses who deposed to have reached Makbul's house after the occurrence together, with appellant Dongai.

Having held that Hafeza died as a result of the assault on her by appellant Makbul, the next question that falls for consideration in relation to Makbul is if the learned Sessions Judge was right in convicting this appellant under section 302, P. P. C.

Mr. Ismail faintly submitted that Makbul could be convicted under section 334, P. P. C., since Hafeza invited the assault on her by provoking Makbul who was her husband, by asking him if he could not himself lift water from the well. Mr. Ismail on a second thought did not press this submission, since obviously it was not worthy of serious consideration. Mr. Ismail, however, strenuously contended that in view of the nature of the injuries found on the dead body and the categorical statement of the doctor that the organs were all unaffected by the assault, Makbul could only be convicted under section 323, P. P. C. Mr. Abdur Rasheed, the learned Advocate for the State, frankly submitted that he was not in a position to support the conviction under section 302, P. P. C. Mr. Abdul Rasheed, however, contended that Makbul's offence fell under the first part of section 304, P. P. C. We are unable to accept either of these contentions. Neither section 323, P. P. C., nor the first part of section 304, P. P. C. is, in our view, attracted to the facts of the present case.

We have already held that Hafeza died as a result of the injuries sustained by her at the hands of appellant Makbul. Mr. Ismail's contention cannot be accepted, since it overlooks the nature of the material used, namely, a wet rope of a considerable diameter, the merciless manner of the assault and the tender age of the victim. These factors naturally raise a presumption that Makbul had the knowledge that the assault was likely to cause Hafeza's death, bringing his act within the ambit of the last clause of section 299, P. P. C. which defines culpable homicide in the following manner :‑

"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injuries 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."

We will presently revert to Mr. Abdur Rasheed's contention that Makbul's offence falls under the first part of section 304, P. P. C. Let us first examine whether Makbul's act which undoub tedly falls within the definition of culpable homicide is punishable as murder under section 302, P. P. C. This takes us to section 300, P. P. C. which contains four clauses, and also mentions five exceptions. The section provides that an act of homicide falling under any one of its four clauses is murder, unless it attracts one of the said exceptions. The exceptions, it is not disputed, are not attracted to the facts of the present case. Omitting, therefore, the exceptions, we quote below section 300, P. P. C. that runs as follows :‑

"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or‑

Secondly.‑If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or‑

Thirdly.‑If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or‑

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 of such injury as aforesaid."

The first clause of section 300, is obviously relatable to the first clause of section 299, its second and third clauses to the second clause of section 299, and its fourth clause to the last clause of section 299. It is also evident that simply by reason of an offence being covered by any of the clauses of section 299, which would no doubt make it culpable homicide, the offence will not be murder' unless the ingredients of one of the four clauses of section 300, be attracted. If the offence does not attract the ingredients of one of the four clauses of section 300, it would not be murder' and will remain culpable homicide not amounting to murder. In view again of the opening words of section 300 an offence of culpable homicide will also not amount to murder if any of the five exceptions mentioned in the section be attracted to the facts of the case.

In support of his contention that appellant Makbul's offence fell under the first part of section 304, P. P. C. Mr. Abdur Rasheed referred to the fourth clause of section 300, P. P. C. which has been quoted above, and is relatable to the third and last clause of section 299, P. P. C. The fourth clause of section 300, provides that an offence of culpable homicide will be murder if the offender knows that it is so "imminently "dangerous", that it must, in all probability" cause death or such bodily injury as likely to cause death. The last part of this clause is not relevant for the purpose of this case. Mr. Ismail, the learned Advocate for the appellants, did not claim that any of the five exceptions mentioned in section 300, P. P. C. was attracted to the facts of the present case, nor do we find any thing in the evidence that might justify such a claim. If, there fore, the offence of Makbul fell under the fourth clause of section 300, P. P. C. then it would be murder punishable under section 302, P. P. C. and not under any of the two paragraphs of section 304, P. P. C. which provides punishment for culpable homicide not amounting to murder. We quote below section 304, P. P. C. which runs as follows :‑

"Whoever commites culpable homicide not amounting to murder, shall be punished with transportation for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death. but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

It will appear that the first two clauses of section 299, P. P. C. are mentioned in the first paragraph, i. e. in the first part of section 304, P. P. C. whereas its third clause finds mention in the second part of section 304, P. P. C. It follows that an offence of culpable homicide when it does not amount to murder and falls under any one of the first two clauses of section 299, P. P. C. is punishable under the first part of section 304, P. P. C. and that such an offence falling under the third clause of section 299, P. P. C. is punishable under the second part of section 304, P. P. C.

Upon the evidence on record we are unable to hold that the assault on Hafeza with the wet rope was an act so "imminently dangerous" that it "must, in all probability" cause death or such bodily injury as was likely to cause death, though it is certain that he knew that the assault was so dangerous an act as to be likely to cause the death of Hafeza, a girl of tender age. Makbul's offence thus falls under the third clause of section 299, P. P. C. but it does not come within the definition of murder. He must, therefore, be punished under the second part of section 304, P. P. C. and not under its first part as suggested by Mr. Abdur Rasheed. This appellant was in judicial custody for more than 13 months till his conviction by the learned Sessions Judge. In the circumstances of the case, we think that the ends of justice will be adequately met if he is made to undergo rigorous imprisonment for 4 years only.

As to the other appellant, namely, Dongai his conviction under section 201, P. P. C. is for lodging a false information at Pirganj P. S. alleging that Hafeza committed suicide. P. W. 4 Sub‑Inspector Mujibur Rahman who proved the F. I. R. (Exh. 1) alleging suicide by Hafeza stated that it was this appellant on whose statement the said F. I. R. was recorded by the witness. The witness further stated that he read it over to appellant Dongai. who signed the same, admitting its correctness. We have already held that the story that Hafeza committed suicide is false. Appellant Dongai's conviction must, therefore, be upheld. 1n view, however, of the proposed alteration of Makbul's. conviction from one under section 302, P. P. C. to one under the second part of section 304, P. P. C. and consequent reduction. of his sentence, we think that the sentence imposed on this appellant under section 201, P. P. C. should also be considerably reduced.

The appeal is accordingly dismissed. Appellant Makbul Hossain's conviction under section 302, P. P. C. and the sentence of transportation for life imposed thereunder are, however, set aside. He is convicted and sentenced instead, to rigorous imprisonment for 4 years under the second part of section 304, P. P. C. The conviction of Sharifuddin Alias Dongai Md. under section 201, P. P. C. is maintained, but the sentence of rigorous imprisonment for five years imposed on him thereunder is reduced to rigorous imprisonment for 9 (nine) months. The latter appellant is on bail. He will now surrender to his bail and serve out the remainder of the sentence now imposed on him.

Order accordingly.

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