MAHAMMAD HUSSAIN Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal from the order of the Deputy Commissioner, Sibsagar dated 9th August, 1953 by which the appellant was found guilty and convicted under section 304 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years.

(2.) THE prosecution case was that on 11th May, 1952 at about 2 p.m. the accused went to the house of Ataur Rahman (deceased) who was his brother -in -law. He had ascertained before going that Ataur Rahman himself was not at home. It is said that he intended to commit rape on Ataur Rahman's wife. On arrival there he asked Musst, Bibijan, wife of the deceased as to where Ataur Rahman had gone. She told him that he had gone to Bolhepar. He then seized her and wanted to drag her inside the house with intent to commit rape on her. He was trying to throw her down on a 'Khatia' when she raised the alarm. Ataur Rahman, deceased, appeared on the scene at that moment. A struggle followed between the deceased and the accused in the course of which the accused stabbed the deceased on different parts of the body with a dagger (Ext. I) which he had brought with him. The deceased went out and dropped down dead almost instantaneously. In the course of this struggle Musst. Bibijan caused injuries on the back of the accused with a knife (Ex. II) in order to save her husband.

(3.) The accused pleaded not guilty. His defence was that Ataur Rahman, deceased, was killed by Bibijan, his wife, in the course of a quarrel. He was trying to rescue Ataur Rahman, when injuries were caused to him. also by Bibijan. (His Lordship then examined the evidence and stated). The circumstances make out a case of murder against him. The learned trial Judge convicted him under section 304 Indian Penal Code. He did not state which part of section 304, I. P. C. was applicable. The learned Counsel for the appellant has not challenged the validity of conviction under section 304, Indian Penal Code. But considering that the learned judge found that there was no deliberate intention to kill, it appears that he probably had Section 304, Part 2 in mind. In this respect the view taken by the learned trial judge is most favourable to the accused. His conviction on facts is not assailable and the sentence passed on him errs on the side of leniency.