Judgment

SIKRI, CJI.: 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:

(1) Laceration at the lower part of left shin, 1 x1/4 x 1/6.

(2) Swelling at the front part of the outer side of the dorsum of right foot, 1" x 1".

(3) Swelling at the back below the left shoulder blade, 1" x 1".

These injuries were, according to the doctor, all simple in nature and the age of the injuries, according to him was about six hours at the time of the examination.

4. The prosecution has not explained these injuries of the respondent and the defence version does not explain the fatal injury on the deceased.

5. The learned Sessions Judge held that "there is no evidence to corroborate the defence version that the accused received the injuries on account of assault on him by Hafiz and Hadis or by anybody else." He also held that "there is also no evidence or circumstance to corroborate that the occurrence as alleged by the accused took place at 11 or 11.30 A.M." He found corroboration of the prosecution story. He felt that D. W. 1 s evidence shows that the injuries were caused at about 2 p.m. and not at 11 or 11.30 A.M., as asserted by the respondent.

6. The High Court, however, found that there was a clash between the respondent on the one side and the deceased on the other near about the time and place of occurrence, as stated by the respondent in his statement under S. 342, Cr. P. C. The High