STATE OF BIHAR Vs. MOHAMMAD KHURSHEED

JUDGEMENT

(1.) The respondent Mohammad Khursheed, was convicted by the learned Sessions Judge, Shahabad, under S. 302, I.P.C., and sentenced to death. The learned Sessions Judge made a reference for confirmation of the sentence of death and the respondent filed an appeal before the Patna High Court. The High Court altered the conviction of the respondent under S. 302 to one under Section 304 Part I, I.P.C., and altered the sentence of death to one of rigorous imprisonment for eight years. The State of Bihar having obtained special leave the appeal is now before us for disposal.

(2.) In order to appreciate the contention of the State it is necessary to state the relevant facts. Them were proceedings under S. 144 and then under S. 145, Cr. P. C., between the respondent and Mohd. Hafiz who died as a result of the blow inflicted by the respondent. About three months before the present occurrence, which occurred on August 3, 1965, at about 1.30 p.m., the proceeding under S. 145, Cr. P. C, was decided in favour of the deceased, Mohd. Hafiz. The respondent then filed a title suit in the Court of Munsif at Buxar and this suit was still pending at the time of the occurrence. Both the High Court and the Sessions Judge have found that on August 3, 1965, at about 1.30 p.m., the respondent inflicted a blow with a bhalla in the chest of the deceased when he after saying his prayers in a nearby mosque was in the sehan accompanied by three persons, namely, Jan Mohammad, P.W. 2, Mohammad Hadis, P. W. 5, nephew of the deceased, and Rahim Mian, P. W. 7. It was the prosecution case that the appellant came suddenly with the bhalla and gave a blow on the left side of the chest of Mohd. Hafiz; the blade portion of the bhalla pierced the chest; Hafiz Hadis caught hold of one end of the bhalla while the handle portion remained in the hand of the respondent; in course of snatching of the bhalla the handle portion came out of the blade portion and the respondent ran away with the handle.

(3.) The defence version was that on that day at about 11 or 11.30 a.m. the deceased, along with Mohd. Hadis and Jan Mohammad were digging the western compound wall of the Khandhar, which was the subject matter of the dispute between the parties, when the respondent came and protested and he was then assaulted with lathies by the deceased and Mohd. Hadis. The respondent filed a complaint before the S. D. O. regarding the above occurrence the next day, i.e. August 4, 1965. The defence" examined the doctor, D. W. '1, who had examined the injuries on the person of the respondent on August 3, 1965 at 8 p.m. He had found the following injuries on the person of the respondent: