1. In this case the accused Keamatali Sheikh has been convicted on the unanimous verdict of the jury under Section 302, Penal Code, and has been sentenced to death by the Additional Sessions Judge of Mymensingh who has referred his case for confirmation to this Court under Section 374, Criminal P.C. The accused has also appealed. Three other accused, Isof Ali, Sabed Ali and Samar Ali were tried along with Keamatali Sheikh on a charge under Section 302/109, Penal Code, and have been convicted on the unanimous verdict of the jury under Section 324/109 of the Code and have been sentenced to three years' rigorous imprisonment each. These have also appealed. Keamatali Sheikh was also charged and tried under Section 324, Penal Code, but no verdict was taken from the jury on this charge. The prosecution case was that on 24th August 1941 two cattle of the accused Keamatali Sheikh damaged the crops of one Keamat Akanda who was taking them to the pound when the four accused together with another named Hasen Ali came to rescue the cattle; The accused Isof Ali pushed Keamat Akanda down into a field by the aide of the road and Sabed Ali and Samar Ali held him down when Keamatali Sheikh took out a pocket knife from his waist, Opened the blade with his teeth and stabbed Keamat Akanda with it into the Btomach just above the navel. The medical evidence is that death would be the natural consequence of the injury caused. Ahed Ali Akanda, P.W. 1, attacked Keamatali Sheikh with a stick and was in turn caught hold of by the accused Samar Ali. Keamat Ali Sheikh then struck Ahed Ali with a knife causing a out wound. P.W. 9 Shahed Ali Akanda then came up and hit Keamat Ali Sheikh with a wooden club knocking the knife out of his hand.
2. The occurrence had taken place just before noon. The witnesses carried Keamat Akanda home and later took him to the Dhalla Charitable Dispensary. From there they set out to take him by train to Mymensingh but missed the train and so brought him back to the dispensary. At about 4 O'clook witness Habibulla Akanda, P.W. 10, left the place for the Thana which he reached at 8-35 P.M. and there he lodged the first information. In the mean time as the condition of Keamat Akanda became precarious, the doctor Paramesh Chandra Majumdar, P.W. 8, recorded his dying declaration. The deceased died at 8-30 P.M. that night. In his dying declaration he stated:
My name is Keamat Ali Akanda. My father's name is Akbar Akanda deceased. My home is at Bharbhara. Keamat Sheikh son of Doli Sheikh of Bharbhara gave me thrust with a knife on my abdomen. His brothers Isof, Samar and Sabed Ali held me.
3. The first information does not mention the names of the three accused Isof, Sabed Ali and Samar Ali who, as stated in the dying declaration are brothers of Keamat Sheikh. The version there given is that Keamat Sheikh's cow came to damage the paddy of the deceased Keamat Akanda who drove the cow away. At that time Keamat Sheikh came and abused Keamat Akanda and there was an altercation between the two in course of which Keamat Sheikh caused a serious injury with a knife on the left side of the abdomen about the navel of Keamat Akanda. The first information also mentions that the informant Habibulla, P.W. 10, and others had taken the deceased to Dhalla for treatment. Keamat Sheikh was charged under Section 302, Penal Code for causing death of Keamat Akanda and under Section 324 in respect of the injury inflicted on Ahedali. The other accused were charged with abetting the offence of murder committed by Keamat Sheikh.
4. The evidence of the eye-witnesses in the case supports the version as given in the dying declaration and as stated above, which makes out that the accused party were the aggressors as the deceased was taking the cattle along the road. Ahed Ali Akanda, P.W. 1, is a nephew of the deceased who says that he went to his uncle when the cattle were being taken to the pound and supports the case that he himself was injured when he attacked Keamat Sheikh. Medical evidence is given to show that he himself had an injury, an incised wound, which was slight, on the right side of his body. This was seen by the doctor, P.W. 8, on the same afternoon when the deceased had been brought to the dispensary at about 4 P.M. No mention of this injury is, however, made in the first information, nor of the fact that this witness had any part in the occurrence. [After referring to the evidence of the witnesses for the prosecution his Lordship proceeded.] The four accused in their statements all merely pleaded not guilty, but Keamat Sheikh submitted in the trial Court a written statement. His story is that Keamat Akanda came with a scythe, the witness Ahed Ali with a stout lathi, and the witness Sahed Ali with a club, to the accused's field and abused him because one of his cattle had damaged the paddy. He denied it whereupon Keamat Akanda said that he himself had driven the cattle away and then while there was an altercation going on between the acoused and Keamat Akanda, Abed All suddenly struck the accused on the head with a lathi and Keamat Akanda struck the accused on the back with his scythe. Then, he turned towards Keamat Akanda who dealt him another blow with the scythe and warding off another blow he received a cut on his right thumb. Sahed Ali then hit him on the knee with the club.
Thereupon I being not in my sense brought out a pen knife which I had in the folds of my cloth and began to use it against the assailants in self-defence and for fear of life. I cannot say who has been injured and where and what the nature of the injuries is. Thereafter I ran away with my knife.
5. He denies however that the knife exhibited in the case was his and further that the articles exhibited as the implements used by Ahed Ali and Sahed Ali were the real implements used by them. Thus the first information version is that Keamat Akanda drove away the accused's cow from his own paddy field when the accused came and abused him, the evidence given by the witnesses is that Keamat Akanda was taking the cattle along the road when he was attacked by the accused while the accused Keamat Sheikh's version is that the deceased Keamat Akanda with Ahed Ali and Sahed Ali came to the accused's field and attacked him.
6. The difference between the first information story and that now given is not, as appears to us, very great. The main difference is the absence of mention of the names of the three accused Isof, Sabedali and Samarali and there is also the absence of mention of an attack and an injury caused to Ahed Ali. [After discussing the evidence his Lordship prooeeded.] We therefore are of opinion that the prosecution version of the occurrence is substantially correct and it therefore remains only to discuss what offences have been established by that evidence. A point that has been brought out in the cross-examination of more than one witness is that the whole incident of the stabbing took place very suddenly. It would appear that it arose spontaneously because Keamat Sheikh happened to remember when this quarrel was developed that be had a knife in his waist which he pulled out, opened with his teeth and used to make a sudden attack on Keamat Akanda. It is obvious that there was no previous premeditation about the matter and that the party did not go to the attack armed in any way, the attack itself on Keamat Akanda apart from the scuffle between Isofali, Sabedali and Samarali on the one hand and the deceased on the other amounted to one sudden blow inflicted by Keamat Sheikh. In the circumstances we do not think that the facts establish as against the accused other than Keamat Sheikh more than an offenoe under Section 323, Penal Code. It does not appear that at any stage before the incident happened that they were aware that there was any likelihood of Keamat Akanda receiving any stab wound. We do not think therefore that the conviction under, Section 324/109, Penal Code, in respect of these three accused can be sustained, but we find that the evidence establishes a charge under Section S23 of the Code against these three accused.
7. As regards the accused Keamat Sheikh for similar reasons arising out of the sudden and special nature of the incident of stabbing we find it a little difficult to be satisfied beyond reasonable doubt that any of the intentions or requisite knowledge necessary to support a charge of murder under Section 302 of the Code have been made out. It is clear that grievous hurt endangering life was caused to the deceased and there can be no doubt that the accused voluntarily caused hurt to him and intended or knew himself likely to cause hurt endangering life. It can therefore be safely said in the circumstances that he was clearly guilty of an offence under Section 326, Penal Code, while there is room for doubt as regards the charge under, Section 302 of the Code. The appeal and the reference of the Additional Sessions Judge of Mymensingh are therefore disposed of as follows. The convictions of accused Isofali, Sabedali and Samarli under Section 324/109, Penal Code, are set aside and they are convicted under Section 323 of the Code and sentenced each to undergorigorous imprisonment for the period already undergone with the consequence that they will be directed to be set at liberty forthwith. The conviction of the accused Keamat Sheikh under Section 302 of the Code and the sentence of death are set aside and he is convicted under Section 326, Penal Code, and sentenced to undergo rigorous imprisonment for seven years.
Mohamad Akram, J.
8. I agree.