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Criminal Appeal No. 847 of 1967, decided on 23rd July, 1983.

---S. 302 read with Ss. 325 & 323--Murder--Offence, alteration of--Both accused and deceased, school-mates, suddenly quarrelling on their way to school and accused giving deceased jerk by catching hold of his neck, resulting in dislocation of his cervical vertebrae and damage to spinal cord, proving fatal--Facts, held, not suggestive of any intent to cause grievous hurt muchless death--Conviction of accused under S. 325, P.P.C. altered to offence under S. 323 P.P.C., in circumstances.

A I R 1960 Kerala 197 ref.

M. Mahmood ul Hassan for Appellant.

Hafiz Ghulam Bari for A.G. for the State.

This judgment will also dispose of Criminal Revision No. 200/68, as it was directed against the judgment which is subject-matter of the present appeal. It sought enhancement of the sentence passed upon the appellant. 2. The appeal is by one of the two convicts, namely, Faqir Hussain, against his conviction under section 325, P.P.C. recorded by Qazi Muhammad Dastgir, Additional sessions Judge, Layallpur, vide his judgment, dated 23rd November, 1967, awarding him R.I. for four years plus a fine of Rs. 509. His younger brother Shabbir Hussain too was convicted by the same judgment but was sentence only to a fine of Rs. 1,000 under section 323, P.P.C. He, however, did not prefer any appeal.

3. The charge against the convicts was under section 302/34, P.P.C. for having allegedly killed Mushtaq Ahmad deceased on 16th November, 1966 in his house. Shabbir Hussain convict and the deceased both respec tively being students of 9th and 8th quarrelled with each other on their way to school and as a result, the deceased came back home to tell his mother Roshan Bibi that a button of his shirt had fallen off. She was stitching one on his shirt in her courtyard where her daughter Mst. Sughran, Dewar Din Muhammad and his wife Sharifan were present. The appellant and Faqir Hussain both suddenly entered the deceased's Haveli fretting and fuming, Faqir Hussain gave him a jerk by catching hold of his neck, whereas Shabbir Hussain dealt fist-blows and kicks on his chest resulting in his immediate death. The report was lodged the same day by Din Muhammad P.W.

4. The post-mortem examination conducted next day showed that the deceased had suffered among the five contusion marks by blunt weapon dislocation of his four cervical vertebrae and damage to his spinal cord proving fatal.

5. The convict Shabbir Hussain was as well medically examined on 14th June, 1966 showing a contused wound of 3 to 4 days duration, simple in nature caused by blunt weapon on his head.

6. The appellant pleaded bare denial explaining that he had been involved as a double with his brother Shabbir Hussain who quarrelled with the deceased. Shabbir Hussain's own version was that in a sudden quarrel on their way to school, the deceased gave him a Danda blow on his head and as reprisal he being weaker in physique clung to his throat till he slumped down dead.

7. Counsel did not much impugn the prosecution case, and instead argued that on their own showing, it was a sudden quarrel between school-mates who used nothing but their empty-hands to cause deceased's death. He canvassed that mens rea of taking his life totally absent and that at best it was a case falling under section 323 P.P.C. He placed reliance on A I R 1960 Kerala 197 which was almost all fours with the case in hand inasmuch as there too by a blow with empty hand, vertebrae were fractured resulting in death. In the alterna tive, it was urged that since this appeal was being taken up after sixteen years, an expectancy as to liberty had arisen, and therefore, the sentence undergone was enough. For this view 1976 P Cr. L J 623 was relied upon.

8. Counsel for State, however, maintained that holding the deceased, even with one hand, from the neck and then giving him jerk, was an act sufficient to impute knowledge that likely result was death. The Criminal Revision to enhance the sentence was pressed hard.

9. Facts found do not suggest any intent to cause grievous hurt, muchless death. It was all sudden, unpremeditated with an obvious intention to rebuke or castigate the deceased. Applying one hand to cause hurt could not in any way be more than an offence under section 323, P.P.C. The Kerala ruling aptly applies for there too, the result was homicide. The conviction under section 325, P.P.C. was not justified. It is altered into one under section 323, P.P.C.

10. There is no much merit in the Revision Petition and it stands dismissed.

11. The appeal is partially accepted. The conviction of the appellant is altered into one under section 323, P.P.C. Since the appeal is taken up after sixteen years the imprisonment already undergone is quite sufficient. The fine is remitted.

S. G. D. Appeal partly accepted.

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