POONMOON @ PONIO Versus STATE

Appellant above‑named being aggrieved by judgment dated 25th July, 1978 of the learned Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No. 144 of 1.976, by which the appellant has been convicted under section 302, P. P. C. and sentenced to imprisonment for life and under section 324, P. p. C, and sentenced to suffer R. I. for one year and has further been directed to pay compensation of Rs. 4,000 under section 544‑A, CP‑ C., to the persons named in the impugned judgment or in default to suffer R. I. for six months, has preferred the above appeal, on the following facts and grounds.

2. Prosecution story in brief is, that appellant Poonmo was married to deceased Mst. Manna daughter of Ajio brother of Somji. After the marriage both of them lived in the village known as Ladhram's Otak. On the evening preceding tile day, of incident, appellant Poonmo had gone to participate in a feast and stayed there for the whole night. Next day the appellant asked Mst. Manna to accompany him to their house, On this Somji and his wife Mst. Lachhmi told the appellant, that Mst. Manna had complained to them, that the appellant used to maltreat her and, therefore they would not allow the appellant to take away Mst. Manna until and unless he brought some body to stand as surety for him against future maltreatment. This annoyed the appellant. He, however, went away at that time. In the evening at about 6‑00 p.m. while Mst. Lachmi and Mst. Manna were there in the house, appellant Poonmo again came. The appellant asked Asst. Manna to bring water for him. She went inside the room to bring water. The appellant followed her. After a little while Mst. Marina came out of the room followed by the appellant, who was giving her knife blows. Mst. Lachhmi tried to rescue Mst. Manna and in that process she also received knife injuries, at the hands of the appellant. On the cries of Mst. Lachhmi and Mst. Manna P. Ws. Tejo, Versi and Ali Muhammad, who were reaping grass in the nearby lands came running. They overpowered the appellant and caught hold of him and snatched the blood‑stained knife from him. Mst. Manna expired due to injuries. P. W. Tejo went to Digri Police Station and lodged the F. I. R., which was taken down by A. S. I. Zaffar Hussain, who was incharge Digri Police Station at that time. The appellant was also brought by the complainant and P. S. Rano and Ramji with themselves. They produced him before the Police, alongwith blood‑stained knife, which they had snatched from him. The A. S. I. inspected the clothes of the appellant, which were soiled with blood. He secured the blood‑stained clothes of the appellant and the blood‑stained knife. He also inspected the person of the appellant and found an incised injury on his index finger. The A. S. I. then interrogated the appellant and arrested him. He made enquiries from Rano and Ramji. He then repaired to the scene of offence and inspected the same next morning. He also prepared inquest report. He noted blood inside the room as well as on the platform, where the dead body was lying and snatched and secured the same. He then sent the dead body for post‑mortem examination. He then inspected the injuries of Mst. Lachhmi and made enquiries from her and sent her to the Hospital. He then made enquiries from Versi and Ali Muhammad. Thereafter he got judicial confession of the appellant recorded on 5‑4‑1975 by Mukhtiarkar and F. C. M., Digri. On 7‑4‑1975 he got 154, Cr. P. C. statement of the witnesses recorded by the same Magistrate. He has also produced the report of the Chemical Analyser. The case was then challaned by S. H. O. Talib Hussain Shah after he verified the investigation, before Civil Judge and F. C. M., Samono at Jamesabad as shown above. The leaned Magistrate had committed the case to trial Court, after holding committal enquiry on a charge under sections 323, 324 and 302, P. P. C. The charge was, however, defective and therefore it was amended. The amended charge was under sections 302 and 324, P. P. C.

3. The appellant had pleaded not guilty to the charge and stated that he had seen his wife in objectionable position with Somji and therefore killed her due to Ghairat. In his statement under section 342, Cr. P. C. recorded in the committal Court the appellant completely denied all the prosecution allegations. He denied to have killed Mst. Manna or to have paused injuries to Mst. Lachhmi. He also denied, that he was apprehended by P. Ws. Tejo and others and was produced before the police alongwith blood‑stained knife. He denied that his blood‑stained clothes were secured by the S. H. O. He also retracted from the judicial confession made by him before the Magistrate and alleged that it was neither voluntarily nor its contentions were true.

4. In his statement before the Sessions Court, however, the appellant has admitted to have killed Mst. Manna and to have caused injuries to Mst. Lachhmi. He also admitted, that he was caught by Tejo and others and blood‑stained knife was snatched from him. He further admitted, that be was produced by the witnesses before the police, who secured the blood stained knife as well as the blood‑stained clothes, which the appellant was wearing. He also admitted that he had given confession before the Mukhtiarkar and F. C. M. and that it was voluntary and true. He has stated that on the day of incident, he returned from his village in the evening and went to the house of Somji and found Somji having sexual intercourse with his wife inside the room of his house. Mst. Lachhmi was not present there. The appellant was provoked on this sight. Somji ran away, while the appellant gave knife blows to Mst. Manna on grave and sudden provocation due to which she died. He has also admitted to have given knife injuries to Mst. Lachhmi, while she tried to rescue Mst. Manna. He has stated, that he had made similar statement before police immediately after his arrest.

5. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above‑named as hereinbefore mentioned and consequently the appellant had filed the Jail appeal originally, on the grounds mentioned in the memo. of appeal.

6. The learned Advocate appearing for the appellant before this Court in support of the above appeal submitted that he was not challenging judgment of the learned trial Court on merits, but in his opinion the offence committed by the appellant would fall under section 3040), P. P. C. and not under section 302, P. P. C. in view of grave and sudden provocation, which is fully supported by the confession of the appellant as well as his statement under section 342, Cr. P. C. The learned Advocate for the appellant further submitted, that the motive was not proved by the prosecution as mentioned in the F. I. R., Somji was not examined, as prosecution witness. In support of the above contentions the learned Advocate for the appellant relied upon cases reported in 1981 P Cr. L J 308, 1969 P Cr. L J 1908.

7. The learned Advocate for the State was absent at the time of hearing of above appeal. However, he has submitted his written arguments, in which he has supported the impugned judgment, on the basis of the confession of the appellant and the prosecution witnesses examined before the learned trial Court.

8. I have carefully considered the above submissions made by the learned Advocate for the appellant and have also taken‑into consideration the arguments submitted in writing by the learned Advocate for the State and have gone through the R. & P. of the learned trial Court and the cases cited by the learned Advocate for the appellant.

9. The learned Advocate for the appellant at the outset submitted, that he was not pressing above appeal on merits, but in view of judicial confession of the appellant and his 342, Cr. P. C. statement before the learned trial Court, offence committed by appellant would fall under section 304(1).

10. I see great force in the above contention of the learned Advocate for the appellant, as I find that learned trial Court has disbelieved portion of judicial confession and appellant's statement on presumptions, which in my opinion were not at all warranted.

11. It may be noted, soon after his arrest by police, appellant vide his statement Exh. 27, narrated grave and sudden provocation, on account of which he gave knife injuries to his wife. He repeated the same story in big judicial confession recorded on the next day as well as before the trial Court. It may further be noted that in F. I. R. Exh. 9, which was filed by P. W. 2 Tejo, complainant has mentioned presence of Somji in the evening of the day of the incident in his house, when appellant returned back before the incident and is alleged to have seen Somji and, his wife in compromising position. Somji was examined by police, but was not produced as P. W. to prove the motive as suggested by prosecution against the appellant, that on account of refusal of Somji to leave Mst. Mans, without surety, incident took place. Keeping in view all these facts on record, I am of the opinion, that appellant's contention that he found his wife in compromising position and as such gave, her knife injuries, while Somji managed to escape, cannot be overlooked, as no complete reliance can be placed on the statement of P. W. Lachhmi, for purposes of conviction of appellant, without independent corroboration, which is not at all available in the present case. Presence of P. W. Lachhmi in the house, when all other people in village were busy with harvest seems to be not probable.

12. Therefore in my opinion, prosecution has established its case against the appellant, beyond reasonable doubt, on the basis of judicial confession and 342, Cr. P. C. statement of the appellant, before learned trial Court, as statement of P. W. Lachhmi does not inspire confidence, that she was present in the house alone with the deceased, when appellant returned in the evening, in the face of F. I. R. Exh. 9, in which it is clearly mentioned by P. W. Tejo, that Somji was present in the house at 4‑00 p.m. before appellant returned in the evening at 6‑00 p.m.

13. Therefore I uphold the conviction of the appellant on the basis of his judicial confession and his statement under section 342, Cr. P. C. recorded before the learned trial Court and consequently alter his conviction under section 302, P. P. C. to one under section 304(1), P. P. C. and reduce the sentence awarded to the appellant from life imprisonment to R. I. for 5 years only and to pay fine of Rs. 1,000 or in default to suffer further R. I. for six months and also reduce the compensation amount payable from Rs. 4,000 to Rs. 1,000 only, which shall be paid to the father of the deceased only and in default of such payment to suffer further R. I. for six months. I further direct that benefit of the provisions of section 382‑B, Cr. P. C. be given to the appellant in respect of his period of detention as under trial prisoner towards his substantive sentence, after due verification in addition to all other remissions to which appellant may be entitled in accordance with rules.

14. The above appeal stands disposed off in terms of the above judgment order accordingly.