M.A. Shahmiri, J.
1. This is an appeal against an order of the Additional Sessions Judge, Poonch, by which the two appellants have been convicted under Section 304, R.P.C. and sentenced to seven years rigorous imprisonment and a fine of Rs. 50/- each, or in default of payment of fine each of them to undergo a further rigorous imprisonment for one year.
2. The prosecution story, as disclosed by Alia, P.W. 10 the sole eye witness in the case, is that Rusmat appellant had agreed to give his daughter in marriage to him in Phagan, 2011, in consideration of Rs. 200/- in cash and three maunds of maize which had been delivered to Rusmat. In Katik 2012 Alia and his brother Aziza came to know that Rusmat had changed his mind and would marry his daughter to Abdulla appellant. Alia and Aziza wanted the money and maize back, but Rusmat did not return the consideration. The dispute between the parties continued. On the night intervening between 27 and 28-2-1956, Aziza and Alia, accompanied by Subhana, repaired to the house of Rusmat at his invitation to settle this dispute. They stayed in the house of Rusmat for some time talking over the matter when Rusmat went out of the house and brought in along with him Abdulla appellant and two others, Habib and Khizra, and they started abusing Alia and Aziza. Then Subhana and Khiza caught hold of Alia and Aziza was held by Rusmat and Habib. Abdulla appellant then took out a gupti, a kind of knife or a spear, Ex. P. 2, and dealt blows with it on Aziza's arms, thigh and stomach with the result that his intestines were thrown out of his stomach. Rusmat appellant then began to cut Aziza's throat with the knife, Ex. P. 1. Aziza then fell down and Abdulla appellant dealt a blow with the gupti on the stomach of Alia and thus tore open his coat and shirt. Alia tried to ward off the blow with his hand which was injured in this process. Abdulla then dealt another blow with the gupti on the left side of his waist. Subhana then dealt a blow with a sota or a handle of an axe or with some other heavy weapon on his head and he became unconscious. When he gained consciousness, he found himself and Aziza lying outside near the hay-stack of Qadira, father of Lala, P.W. 8. Aziza was unconscious and could not speak a word. In the meanwhile Lala happened to come over there and Alia told him that he was dying and that he should be taken inside his house. Thereupon Lala, P.W. 8, carried him as well as Aziza inside the house of his father Qadira. Then Sher Moh'd Khan, Numberdar, P.W. 9 and his brother Moh'd Iqbal Khan, P.W. 2, came there and Alia related the whole story to them.
3. Order 28-2-1956 at 2 P.M. Habib, the brother of Aziza and Alia, brought a report written by Moh'd Iqbal Khan, P.W. 2, to the Police Station, Mendhar which is at a distance Order 10 Order 11 miles from Bhata Dhurian, the scene of the occurrence. In this report it was stated
Last night Rusmat son of Lala of Bhata Dhurian sent for Aziza and Alia, the sons of Akla, to his house to settle the dispute about Nata (engagement of his daughter) and when the night was sufficiently advanced, Rusmat along with Abdulla and others inflicted injuries on them with burchi and churi and threw them out near the house of Qadira from where Lala son of Qadira brought them inside his house. Aziza is unconscious, unable to talk and dying. Alia is also seriously injured and he has narrated the whole story. Rusmat had engaged his daughter to Alia but now he wanted to marry his daughter to some one else. To this Aziza and Alia objected. The police should go to the spot at once and start investigation as Aziza's intestines and stomach have come Out of his trunk.
4. The police did not go to the spot at once. They reached the spot Order 29-2-1956. Aziza died during the night intervening between the 28th and 29th February in the house of Qadira. The police prepared the inquest report, Ex. P. J. and the statement of injuries, Ex. P. K. The statements of the main prosecution witnesses, namely, Sher Moh'd Khan, P. W. 9, Moh'd Iqbal Khan, P.W. 2 and Alia, P.W. 10 were recorded by the police Order 29th February but the statement of Lala, the other important witness, was recorded Order 2-3-1956. The dead y of Aziza was examined by Dr. Raj Nath Order 2nd March at 11 A.M. in the Poonch Hospital. The deceased had the following injuries on his person:
1. A wound on the scalp with a scab over it situated 3 inches above the medial angle of the left eyebrow. It is oval 1'x 1/2.' No bone injury was detected.
2. An incised wound on the left upper arm 2 inches below the point of the shoulder 3 1/2 inches long running along the length of the arm on the ante-rolateral aspect.
3. A stab wound 1/4' deep 3' above wrist near the medial border of the left arm 1/3' long.
4. An injury like No. 3 i.e. another stab wound near the ulner styloid process.
5. A stab wound on the dorsem of the 2nd meta-carpal bone 2' proximal to the knuckle of the index finger.
6. A stab wound 1' proximal to the knuckle of the index finger,
7. Small stab wound at the first interphalangeal joint of the index finger.
8. A stab wound 2' x 1', 1 1/2' deep on the left thigh situated 4' below and behind the anterior superior iliac spine.
9. Small stab wound 1' medial to injury No. 8, 1/3' long and 1/4' deep.
10. A long incised wound in the left supraglu-teal region 1' below the iliac crest. It was horizontal 3 1/2' long and was superficial.
11. An abrasion on the left thigh 2' long and 3' above the knee on the lateral- side.
12. A cut on the medial side of the left wrist 1/2' long running across on palmer side.
13. A stab wound 2' long and 1/2' broad in the epigastrium 4' above the umblicus 1' to the right of the middle line. It had penetrated the abdominal wall completely and had lacerated the liver. Stomach had ballooned out of it.
14. Right lobe of the liver was lacerated. It had a wound 1/2' x 1/3' x 1/4', peritoneal cavity was full of blood.'
All the injuries excepting injury No. 1, which was caused by a blunt weapon, were caused by a sharp weapon. The death of Aziza was due to the shock resulting from these injuries. The gupti & the knife, in the opinion of the doctor, could cause the injuries found on Aziza. Alia was also examined by the doctor Order 3rd March at 10 A.M. He had the following injuries on his person:
1. An incised wound of the right hand running parallel to the life line 2 1/2' long and 1/4' deep. Edges were retracted. There was some injury of the muscles of the thiner eminence also. There was slight infection of the wound. The injury had been cut edges. There was no bone injury detected clinically.
2. A superficial wound of the scalp at the highest point of the vertex. It was 1/2' x 1/3' covered with a scab. No bone injury was detected clinically.
3. An abrasion 2 1/2' long, 1/2' below the right external ear.
4. A superficial incised wound of the chest 1 1/2' verticle on the left side near costal margin in the anterior axillary line. It was covered with a scab. No bony injury was detected clinically.
5. An ecchymosis on the right thigh lateral aspect 3' above the knee. It was 1 1/2' x 1/2'. It was faintly greenish in colour. The injuries Nos. l and 3 and 4 were caused by a sharp weapon. Injuries Nos. 2 and 5 were caused by a blunt weapon. All the injuries were simple and were beyond 72 hours old.
Rusmat appellant was also examined by the doctor Order 1.0th March at 1 P.M. He had the following injuries on his person;
1. An incised wound or the right little finger palmer surface in the middle digit. It was 3/4' long 1/8' deep superficial.
2. An incised wound on the right palm on the mount of moon one inch long and 1/8' deep.
In the case of Alia the doctor stated that there was no injury on any of his vital parts and he could have walked and talked after the receipt of his injuries. It was possible, however, that injury No. 2 might have made him unconscious, but he could not say this with certainty. The doctor added that this unconsciousness could not have lasted more than an hour.
5. Roth the appellants have pleaded not guilty, Rusmat denies that ho had engaged his daughter to Alia. He, however, admits that Alia and Aziza had asked the hand of his daughter in marriage for Alia, but he had refused as Alia had already a wife. He also admits that Alia and Aziza were angry with him because of this refusal. He denies that on the night of the occurrence he sent for Alia and Aziza. His story is that Alia, Aziza along with a number of other persons including Lala, Habib, Mohammado, Dittu, Kala, Gulab Din and Kaka raided his house on the night in question with the object of carrying away Mst. Zoom, his daughter, by force. Mst. Zooni who was sleeping naked at the moment in the house was caught hold of by the raiders and they wanted to carry her away. Rusmat then took up a knife and dealt blows with it on Alia.
He also raised a hue and cry and some villagers came on the spot and thereupon the raiders decamped and they could not carry away Mst. Zooni with them. He also states that he narrated this story to Sher Moh'd Khan Numberdar, P.W. 9 and his brother Moh'd Iqbal Khan, P.W. 2. Sher Moh'd Khan told him to go to the police station and make a report to the police. Rusmat adds that he went to Thana Mendhar and there narrated the whole story to the Sub-Inspector. In his statement before the Committing Magistrate Rusmat appellant has practically narrated the same story with this difference that he had admitted that both Alia and Aziza must have received injuries from him during this scuffle. He had also stated therein that Aziza and Alia had also some weapons1 in their hands by which his hand was injured. Abdulla appellant has denied his presence on the scene of the occurrence! or any knowledge thereof. He admits that Mst. Zooni was engaged to him by Rusmat and, therefore, Alia and Aziza had turned against him.
6. We have heard counsel for the parties. Three other persons, Habib, Subhana and Khizra, whose names figure in the prosecution story (vide para 2 above) were tried along with the appellants by the Additional Sessions Judge. These three persons have been acquitted as their names do not find mention in the first information report written by Moh'd Iqbal Khan, P.W. 2. It was also found by the trial Judge that Alia had not mentioned these names to Sher Moh'd Khan, P.W. 9 and Moh'd Iqbal Khan P.W. 2 when he narrated his tale to them. The learned Additional Sessions Judge has also not accepted the evidence of Alia in so far as he had stated that he and Aziza had been invited by Rusmat to his house on the night of the occurrence for settling the engagement dispute. On the other hand he has partially accepted the defence version that Aziza and Alia, along with a large number of other persons, had raided the house of Rusmat and had committed house trespass at night.
He, however, takes the view that Rusmat had exceeded the right of private defence and, therefore, he has convicted the appellants under Section 304, R.P.C. We have considered the prosecution evidence with care. It would not be safe to act on the uncorroborated testimony of Alia, especially when his evidence has been rejected in the case of the three persons who were equally implicated by him and who have been acquitted by the trial Court. His evidence that Rusmat had started cutting the throat of Aziza with the knife does not receive any corroboration from the medical evidence. In fact no injury on the throat of the deceased was detected during the course of post mortem examination. With regard to Alia himself there was no serious injury on his head.
As already indicated the doctor has stated that there was no injury on any of his vital parts and he could have walked and talked after the receipt of the injuries. Yet Alia has stated that he was dealt a blow on his head with Sota or handle of an axe or some other heavy weapon which made him unconscious for a long time. Under these circumstances it is difficult to accept Alia as a witness of truth. (His Lordship reviewed the evidence further and continued). If we accept that the initial agression came from Alia and his party, as the Additional Sessions Judge has done, we have to pursue this theory to its logical conclusion and there are indications on the record to show that the object of this agression was to carry away Mst. Zooni from her paternal roof. The offence which could, therefore, be laid at the door of Alia; and his party at the time would be house trespass with the intention of abducting Mst. Zooni.
It seems that the party had raided Rusmat's house and assaulted the inmates thereof with the intention of abducting Mst Zooni. Under these circumstances Section 100, R.P.C, would come into operation and the right of private defence would extend even to the voluntary causing death. It may as well be stated here that the mention of the names of Rusmat and Ahdulla in the first information report loses a good deal of its value, when we consider the admission of Sher Moh'd Khan, P.W. 9 at the trial that in his statement before the police recorded Order 29th February he had not stated that these names had been given to him by Alia and that he also admits that in his statement under Section 164, Cr. P.C. before the Tehsildar Magistrate he had stated that Alia was unconscious when he saw him and that ho had not stated there that Alia had given him the names of any culprits.
In these circumstances the learned Advocate General has properly conceded that the prosecution story, as set out by Alia is not established, that the defence version may be correct and that in any case the appellants are entitled to the benefit of doubt. The three assessors were also unanimously of the view that the prosecution case was not proved.
7. For the foregoing reasons it is not possible to sustain the conviction of the appellants under Section 304, R. P. C. The appeal is accepted and the convictions and the sentences of the appellants are set aside and they are acquitted. They shall be set at liberty forthwith if not wanted in connection with some other case. Fine, if paid, shall be refunded.