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Criminal Appeal No. 431 of 1965, decided on 13th November 1968.

Ss. 323 & 325‑Accused beating wife for disobedience, with a stick as thick as little finger and also dealing kicks and fist blows resulting in her death‑Medical report indicating no grievous hurt and attributing death to shock produced by exhaustion resulting from cumulative effect of several injuries‑Evidence raising doubt whether accused either intended or knew it to be likely that he would cause grievous hurt‑Offence of accused, held, on border line between Ss. 323 & 325‑Conviction under S. 325, in circumstances, altered to that under S. 323.

Bai Jiba v. Emperor A I R 1917 Bom. 251; Emperor v. Chanda and another A I R 1925 All. 126; Emperor v. Saberali Sarkar 57 I C 826 and In re: Marana Goundan A I R 1941 Mad. 560 rel.

S. M. Almas Ali for Appellant.

A. S. Hashmi for the State.

Date of hearing : 13th November 1968.

Klauda Bakhsh (29/30) son of Ali Muhammad, caste Sindhar, resident of Chak No. 139‑A/TDA, was tried by Sh. Masud Hussain, Additional Sessions Judge, Muzaffargarh. He was con victed under section 325, P. P. C. and sentenced to seven years' R. I. with a fine of Rs. 300 or in default to suffer six months' R. I. further, on the 5th of April 1965. Khuda 3akhsh has preferred an appeal to this Court.

2. Mst. Saddan, daughter of Allah Bakhsh (P. W. 5) was married to the appellant 4/5 years prior to the occurrence. They lived amicably, but about six months prior to the occurrence their relations became strained. Mst. Saddan had come to her parents' house but she was taken back by her husband to his house. On the 21st of February 1964, at about digar time, Mst. Saddan was grinding gram. Her son, Farid aged about two years, who was circumsized, started weeping, but the mother did not attend to him. In the meantime the appellant came to the house and asked Mst. Saddan to attend to the child. Mst. Saddan did not obey this. The accused became infurious and started beating 31st. Saddan with a stick of shrin branch (Exh. P. 3) which was as thick as a little finger. The appellant is also alleged to have dealt kick and fist blows to Mst. Saddan. Daring this beating, it is alleged that Peer Bakhsh (P. W. 6) and Allah Bakhsh Bhatti (P. W. 7) arrived at the house of the appellant and witnessed the occurrence. Later on, at about sun‑set time Pir Bakhsh (P. W. 6) and Allah Bakhsh Bhatti (P. W. 7) came to the house of Allah Bakhsh (P. W. 5) father of Mst. Saddan, in Chak ho. 125/TDA and informed him about the occurrence. Some time later, Wazir Bakhsh (P. W. 8), a step‑brother of Mst. Saddan, also came there and narrated the occurrence to his father. On receipt of this information, Allah Bakhsh (P. W. 5) asked his brother, Muhammad Nawaz alias Naza (P. W. 9) and Amir alias Meero (P. W. 10) to go to the house of Khuda Bakhsh appellant and find out the matter. These two accordingly went to Khuda Bakhsh appellant and returned with the information that lust. Saddan had died. These two witnesses also informed Allah Bakhsh (P. W. 5) that when they went to the house of Khuda Bakhsh appellant, Mst. Saddan was in possession of her senses and she narrated the circumstances leading to her boating by the accused. Allah Bakhsh (P. W. 5) then himself came to the house of Mst. Saddan and found her lying dead in the kotha. Allah Bakhsh, in company of Ramzan and Haji Allah Bakhsh, members of the Union Council, went to the police station where Allah Bakhsh lodged the report (Exh. P. A.) to Sub‑Inspector Ghulam Ahmad.

3. The Sub‑Inspector, alongwith Allah Bakhsh (P. W. 5), came to the spot and found the dead body of Mst. Saddan in the house. He prepared the injury sheet (Exh. P. E.) and the inquest report (Exh. P. F.) and despatched the dead body of Mst. Saddan to the mortuary in the escort of Foot‑Constable Allah Yar. The Sub‑Inspector took into possession the round corn (Exh. P. 1) and the container (Exh. P. 2), vide memo (Exh. P. B). He arrested Khuda Bakhsh appellant, who produce) the broken stick (Exh. P. 3) which was taken into possession vide memo. (Exh. P. C.). The Sub‑Inspector also got prepared the site‑plan (Exh. P. H.).

4. Doctor Mahmood Ahmad, Medical Officer, Civil Hospital, Leiah, performed the post‑mortem examination on the dead body of Mst. Saddan on the 22nd of February 1964, and found the following :‑

(1) A big contusion with blacking of right upper eye‑lid about 1" x 2" on right side of forehead.

(2) An abrasion 2" x 1" on left jaw and upper part of throat.

(3) An abrasion 2" x 1" on right clavicle.

(4) An abrasion 1" x 2" on left side of forehead.

(5) An abrasion 5" x 1" on the back.

(6) An abrasion 2" x 1" on left hand.

(7) An abrasion 2" x 1" on left forearm.

(8) An abrasion 2" x 1" on right elbow.

(9) An abrasion 3" x 1" on left buttock outside.

(10) A contusion 3" x 2" on left buttock outside.

(11) Looking from back almost all the gluteal region on both the sides were swollen and blackened, due to extensive con tusion. This contused area extended up to the lateral aspects of both the thighs. On giving incisions on this area fluid black and coagulated blood was found in the deeper tissues. On minute examination the contused area was also found abraided.

(12) A contusion 2" x 1" below right ear.

(13) A contusion 1" x 1" on back of neck left side.

All the vital organs were found healthy. Blood clots were present in the heart. Stomach contained eight ounces of fluid, and liver showed some suspicious contusions on the surface. All the injuries were the nature of a blunt‑edged object.

In the opinion of the doctor, the cause of death was shock which was produced due to exhaustion resulting from several injuries combined together inflicted on the deceased.

The interval between death and injuries was four to six hours and interval between death and post‑mortem examination was twenty hours. In the opinion of the doctor, the injuries found on the deceased were sufficient to cause death of a healthy woman in ordinary course of nature, due to the cumulative effect.

5. At the trial, Allah Bakhsh (P. W. 5), father of Mst. Saddan deceased, Pir Bakhsh (P. W. 6), Allah Bakhsh son of Musa (P. W. 7), Wazir Bakhsh alias Wazira (P. W. 8), a step brother of the deceased, Muhammad Nawaz alias Naza (P. W. 9), a brother of Allah Bakhsh (P. W. 5) and Amir alias Ameero (P. W. 10), brother of the deceased, supported the prosecution story, as described above. Sub‑Inspector Ghulam Ahmad (P. W. 11), investigated the case.

6. The accused in his statement at the trial stated :‑----

"Sometime after my marriage with Mst. Saddan deceased she developed illicit intimacy with Illahi Bakhsh Chauhan a servant of my father‑in‑law Allah Bakhsh, Sindhar. I asked Mst. Saddan deceased to sever her relations with the said Illahi Bakhsh and I gave her beating once or twice earlier by way of correcting her immorality. On the day of the occurrence I went to my fields in order to work there and I returned to my house at about sun‑set time. I found that my wife Mst. Saddan was missing from the house and my son aged about 2/3 y ears was weeping alone in the house. None of the other members of the family was present in the house. I set out in search of Mst. Saddan and called her out. On hearing my voice Illahi Bakhsh Chohan who was inside the cattle‑shed which adjoins my house with Mst. Saddan emerged from that place and ran away. I ran in pursuit of the said Illahi Bakhsh Chohan, but I could not catch hold of him. I picked up the stick Exh. P. 3 from my house and in a state of rage I started beating Mst. Saddan. I had no intention of killing her. After the death of Mst. Saddan I went to P. S. Leiah to report the matter but the S. I. did not enter my report."

7. Learned counsel was reluctant to controvert the fact of the commission of the crime. He, however, vehemently argued that the learned trial Court, having held that the accused appel lant had no intention to cause the death or even no knowing that this act of his would cause the death of Mst. Saddan was erroneous in holding that the offence committed by the appellant was covered by section 325, P. P. C. He argued that the offence of the appellant fell under section 323, P. P. C. The learned trial Court has held the accused guilty under section 325, P. P. C., because he had the knowledge and intention of causing such injuries which could be in the nature of grievous hurt.

8. The intention of the appellant or his knowledge that this stick of shirin branch (Exh. P. 3), which was as thick as a little finger, would result in the death of Mst. Saddan, has to be gathered from the ocular evidence, medical evidence and other circumstances of the case. The plea of the accused that he beat Mst. Saddan because he had seen her and Illahi Bakhsh Chohan coming out of the cattle‑shed, is incredible. Had the accused seen Mst. Saddan and Ilahi Bakhsh in such circumstances, he would have taken a more serious view of the matter than beating her with a small stick (Exh. P. 3). The prosecution evidence coupled with circumstances of the recovery of ground corn (Exh. P. 1) and container having corn (Exh. P. 2) supported the suggestion that before the occurrence Mst. Saddan was grinding gram and that her beating took place on account of her dis obedience. Allah Bakhsh Bhatti (P. W. 7) has stated in cross examination: ‑

"On hearing that shrieks Pir Bakhsh P. W. and I rushed to the spot. Mst. Saddan deceased was lying with her face down ward when we reached the spot and the accused was beating her giving blows on her back. On our asking the accused told us that he was teaching a lesson to his wife."

Wazir Bakhsh alias Wazira (P. W. 8), a step‑brother of the deceased, stated in examination‑in‑chief :‑

"When I asked the accused as to why he was beating her he started abusing me. He further said to me that it was leis private affair and I had no business to interfere."

This evidence of the two witnesses goes a long way to show that the accused was intending to teach a lesson to Mst. Saddan by his beating rather than intending to kill her or having knowledge that she would die of the beating. This evidence also proves that at the time of the beating the accused did not charge Mst. Saddan for having a liaison with Illahi Bakhsh Chauhan, an alleged servant of her father Allah Bakhsh. Moreover, the medical evidence shows that the lady died from the shock which was produced due to exhaustion resulting from several injuries combined together inflicted on the deceased and that she died as a result of the commulative effect of the injuries. There is no apparent grievous hurt caused to any organ of the deceased and the doctor has declared that all her vital organs ware healthy. The learned counsel retied on several authorities in support of the proposition that the offence of the appellant would, at the most, fall under section 323, P. P. C. In Bai Jiba v. Emperor (A I R 1917 Bom. 259) the facts of the case were that :‑

"In a sudden quarrel with the deceased, the accused seized him by the testicles and squeezed them with considerable force and for a considerable time. The former, who was in a very unsound bodily condition, did not recover from the shock of the pain and died soon after. The medical evidence showed that the injury inflicted by the accused upon the deceased would not in normal conditions have endangered his life."

It was held that the accused was guilty of causing simple hurt. It was further observed :‑

"Phrases such as hurt which endangers life' in section 320, I. P. C., and injury which is likely to cause death' in section 299, must be applied with reference to normal condition: and any hurt which endangers human life must also be likely to cause death. Where however death is caused as the result of an injury which is not intended to cause death and was not in normal conditions likely to cause death, the offence can neither be grievous hurt nor culpable homicide not amounting to murder. It must then be a case of simple hurt."

In Emperor v. Chanda and another (A I R 1925 All. 126) :‑

"On the day before the death the deceased spilt some oil and her mother‑in‑law, the accused gave her a beating. The thing was done openly at 8 a. m. in the view of a number of neighbours. The evidence did not show that the accused either intended or contemplated the death of the deceased as a result of the beating which was inflicted on her. It was clear tha t the accused had taken a dislike to her daughter‑in‑law, that she underfed her, kept her short of clothes, and used at times to beat her. The circumstances in which the beating took place formed the strongest evidence that the accused did not realise that it was anything out of the ordinary or might produce serious consequences. There was no evidence, medical or other, to support the view that ill‑treatment by the accused would certainly have terminated in her death from natural causes if the accused had not accelerated it by beating her. The lack of nutrition had not reached a point which was in itself dangerous or which suggested a deliberate attempt to starve the girl."

It was held :‑‑

"That the evidence did not establish an offence under section 304, still less under section 302, against the accused. But that the offence under section 323 of the Indian Penal Code had been committed and the maximum penalty under that section must be imposed."

In Emperor v. Saberali Sarkar (57 I C 826) the facts of the case are stated to be that :‑

"The accused, having found that a young man had approached his kept mistress for the purpose of having sexual intercourse with her, thought that be would be justified in teaching him a lesson by giving him a good thrashing. He accordingly sent for the brother of the young man and in the presence of the villagers gave him a good beating by kicks and blows, which resulted in his death. The deceased was of a weak constitution and had an enlarged spleen and it appeared that when the villagers told the accused that he was about to kill the young man by his kicks and blows, he observed that the deceased was merely pretending and gave him some more strokes with a cane. The accused was thereupon charged with an offence under section 304, Indian Penal Code. The Jury found him guilty under section 323, Indian Penal Code. The Sessions Judge disagreed with the Jury and being of opinion that the accused was guilty under section 325, Indian Penal Code, referred the matter to the High Court under section 307, Criminal Procedure Code."

It was held :‑

"That in the circumstances of the case it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt and as the case seemed to be on the border line between sections 323 and 325, Indian Penal Code, the accused might be given the benefit of the doubt and should be convicted of an offence under section 323, Indian Penal Code.

In re : Marana Goundan (A I R 1941 Mad. 569) :‑

"The deceased owed one anna to the accused and the latter demanded repayment. The deceased promised to pay later and the accused kicked him twice on the abdomen remarking how long am I to wait. The deceased collapsed and died soon after. The cause of death was shock due to the kicking and there was no mark of injury external or internal."

It was observed:-----

"That it could not be held that accused intended or knew that by kicking on the abdomen, as he did, he was likely to endanger life. He therefore could be convicted only under section 323, and not under section 304(2)."

9. The upshot of the above discussion of evidence; direct medical and circumstantial and the authorities, is that it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt. The case appeared to be on the border line between sections 323 and 325, P. P. C. The accused is, therefore, entitled to the benefit of doubt and he should be convicted of an offence under section 323, P. P. C. Consequently, I hold that the offence committed by the appellant A falls under section 323, P. P. C. I, therefore, alter the conviction of the appellant from section 325, P. P. C. to section 323, P. P. C. and sentence him to one year's R. I. The appellant was convicted on the 5th of April 1965, and by this day he has suffered more than three years and seven months' imprisonment. I, therefore, order that he should be released forthwith, if not required in any other case.

Conviction altered.

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