K. Sahai, J.:— The Sessions Judge of Shahabad at Arrah has convicted the appellant under S. 302 of the Penal Code, and has sentenced him to undergo imprisonment for life.

2. In mahalla Abarpur of Arrah Town, there is a culvert called Abarpool across the road which comes from Arrah to Patna. Abid Raza (P.W 2) has a cycle repair shop at a short distance to the east of the culvert and on the southern side of the road. Deceased Muhammad Ismail of mahalla Kazi Tola of the same town was a partner of Abid Raza in the shop. There are other shops on both sides of the road near about that shop. The prosecution case is that, on 29-5-1955, at about 2-30 P.M, Ismail was coming on the road from the east towards his shop, and lie bad a mirror in his hand. The sun's ray was reflected from the mirror to the face of the appellant, a resident of the same town, who was proceeding on the road from the west to the east. The appellant protested, and a quarrel developed between him and Ismail. They grappled with each other and began to scuffle. Some persons intervened and succeeded in separating them.

3. Ismail then began walking towards his shop. When he had gone only a few steps, the appellant suddenly whipped out a knife and struck Ismail on the left side of the chest, causing a penetrating wound ½″ × ¼″ chest cavity which pierced the left pleura ½″ × ¼″, the pericardium ½″ × ¼″ and the heart ½″ × ¼″. Both the left and right ventricles of the heart were penetrated. Ismail immediately pressed the wound with his hand and cried out that Sarjug had assaulted him. Mumtaz Ahmad (P.W 1) was then driving a rickshaw from the west to the east.

4. As soon as he saw the appellant striking Ismail, he got down from his rickshaw and caught hold of the appellant, asking him to throw the knife away. Appellant Sarjug told him to let him go as he would not assault Ismail any more. When Mumtaz saw that Ismail was about to fall, he left the appellant and rushed to Ismail to support him. By that time, Ismail had sat down on the side of the road leaning against a patra of his shop. Mumtaz brought his rickshaw near Ismail and placed him on it. Finding an opportunity, the appellant filed away. Ganauri (P.W 4) Sat in the same rickshaw, and Mumtaz drove it to the hospital.

Ismail's brother, Ghulam Rasul (P.W 3), who had come and seen a part of the occurrence, followed the rickshaw and arrived at the hospital soon after it arrived there. A telephone message was sent from the hospital to the Arrah Town Police Station at 2-45 P.M, and station diary entry (exhibit 5) was made on its basis. On being reported by the officer in charge (P.W 17), Assistant Sub-Inspector T.N Singh (P.W 13) went to the hospital, arriving there at 2.56 P.M By that time, Ismail was already dead. P.W 13 then recorded a fardbeyan on the statement of Ghulam Rasul (P.W 3) at 3 P.M This was later treated a the first information report in the case.

5. The appellant's case is that he is innocent, and that he has been falsely implicated in this case at the instance of Jagannath Prasad (P.W 8).

6. The main submission which Mr. Nageshwar Prasad, appearing on behalf of the appellant, has made before us is that, in the circumstances of this case, the punishment inflicted upon the appellant is much too severe. He has, however, also made an at tempt to challenge the truth of the prosecution case. I propose first to consider whether the prosecution has established its case beyond reasonable doubt.

7. A striking feature of this case is that, out of the nine witnesses alleged by the prosecution to have seen the whole or part or the occurrence, eight, including the partner (P.W 2) and the brother (P.W 3) of deceased Ismail, were declared hostile and cross-examined on behalf of the prosecution in the committing Magistrate's Court. Abid Kazu (P.W 2) and Ganauri (P.W 4) have not been declared hostile in the Court of Session; but a comparison of their evidence in that Court and their statements before the police shows that they have continued to lie somewhat hostile to the prosecution. Murntaz Ahmad (P.W 1) is the only witness who has remained consistent throughout.

8. There seems to be no doubt at all that a vigorous effort has been made on behalf of the appellant in this case to win over the prosecution witnesses by means of bribery or coercion. This is strongly indicated by the fact that so ??? witnesses have attempted to support the defence in spite of the fact that ??? earlier statements showed that they had seen whole or part of the occurrence. The statements of Ghalam Raza (P.W 8) and Nizamuddin (P.W 5) before the police and the statements of Paras (P.W 6), Sidhnath (P.W 7), Jagannath (P.W 8) and Nirsu Sah (P.W 9) before the police and also before Mr. A.C Mazumdar (P.W 12) recorded under Section 164 of the Cr PC have been placed on the record.

9. There is also the positive evidence of Mumtaz (P.W 1) and Ganauri (P.W 4) on this point. Mumtaz has said that he went away to Calcutta a few days after the occurrence and came back about a week before he was examined in the committing Magistrate's Court. He has further said that several persons, including two persons named Jawahir and Banarsi Sonars, used to approach his parents almost every day with a request to ask him to go back upon his statements on promise of payment of large sums of money, that he had to shift to the place of one Halim in another mahalla, and that he overheard people asking Halim to prevail upon him to go back upon his statements, saying that they would pay him Rs. 2,000 to Rs. 5,000 if he did.

10. He was to be examined in the committing Magistrate's Court on 6-10-1955, and, on that very day, at 10-40 A.M, station diary entry No. 197 (exhibit 5/1) was made on his statement to the effect that threat was being held out to him that he and his parents would be assaulted if he gave evidence in the murder case against the appellant. The Sub-Inspector (P.W 17) made this entry, and he has stated that he personally escorted Mumtaz to Court and back.

11. It further appears that, ??? the luncheon interval on the 6th October, when he was giving evidence in the committing ??? Court, he stayed with the Court Sub-Inspector in his room on account of fear. This has been elicited from him in a cross-examination. Ganauri has stated in the Court of Session that, after his examination by the police, some persons had threatened him and had asked him to go back upon his statements and not to give true evidence. Though he has admitted that he did not lodge any information at the police station relating to the throats held out to him, the circumstances show that his evidence on this point is true.

12. Mr. ??? Prasad has taken us through the evidence of the prosecution witnesses, including Mumtaz (P.W 1) and has argued that Mumtaz is not a reliable witness. He has made certain criticisms against his evidence in support of this argument. The first criticism is that Mumtaz claims to have been driving a rickshaw at the time of occurrence but that appears to be incorrect in support of this criticism, lie has first pointed out the admission of Mumtaz that he does not “remember the name of the owner of that rickshaw.” Mumtaz says that he had taken the rickshaw on hire for only half a day. He may have taken it from the owner or from another rickshaw driver, he is a young boy aged only about 17 year. It seems to me that no importance can be attached to his ignorance of the rickshaw owner's name.

13. Mr. Nageshwar Prasad has also pointed out that Ghuiam Rasul has not described Mumtaz as a rickshaw driver in his fard-beyan. This omission also does not appear to me to be of any importance.

14. Learned counsel has thirdly pointed out that Mumtaz cannot he a rickshaw driver because he says that he was working as a labourer in companies and mills during the time that he was in Calcutta after the occurrence. It is difficult to understand why a person cannot work sometimes as a labourer and sometimes as a rickshaw driver. Even Ganauri (P.W 4), who is a witness hostile to the prosecution, says that he went to the hospital in the rickshaw driven by Mumtaz. Another hostile witness, Jagannath (P.W 8), says that Mumtaz was the rickshaw-walla. In ray opinion, there is no reason to suspect the veracity of Mumtaz when he says that he was driving a rickshaw when he saw the occurrence.

15. The second argument which learned counsel has advanced against Mumtaz is that he is not the man named Mumtaz who saw the occurrence. He has relied upon two points in support of this argument. He has, firstly, pointed out that Mumtaz stated before the committing Magistrate that the Sub-Inspector recorded his statement on a paper which was white; whereas he has stated in the Court of Session that the paper on which the Sub-Inspector wrote his statement was brown. This is a very slender foundation for the argument.

16. It rather appears to me to be a case of failure of memory as Mumtaz cannot be expected to have particularly noticed the colour of the paper on which the Sub-Inspector recorded his statement. The second point is that the evidence of some of the witnesses shows that P.W 1 was not the man named Mumtaz who saw the occurrence. In this connection, Mr. Nageshwar Prasad has drawn cur attention to the evidence of Abid Raza (P.W 2) who has stated that Mumtaz and he placed injured Ismail on the rickshaw, but has added that the man Mumtaz referred to by him is Mumtaz son of Rahman, of his mahalla. This is obviously false because Mnmtaz (P.W 1) is a son of Afzal Hussain, and his father's name has been correctly given in the ??? of ??? Rasul Paras (P.W 6) and Sidhnath (P.W 7) have stated that they do not know Mumtaz (P.W 1).

17. The mere fact that they do not know P.W 1 is not material. Ghuiam Rasul (P.W 3) has stated that Mumtaz (P.W 1) also went to the hospital. Ganauri (P.W 4) has stated that Mumtaz (P.W 1) lifted Ismail and helped him to sit in the rickshaw. Nizamuddm (P.W 5) has stated that Mumtaz (P.W 1) was also present. P.W 8 has stated that Mumtaz (PW 1) was trying to catch appellant Sarjug. In this state of the evidence, it seems to me that Mumtaz (P.W 1) is the real witness of the occurrence.

18. The learned Sessions Judge has observed:

“P.W 1 Mumtaz Ahmad appeared to me quite a reliable and truthful witness. His demeanour in the witness box was very straightforward and he gave prompt answers, obviously indicating that he was not at all a tutored and a set up witness.”

19. After a careful consideration of the evidence, he has come to the conclusion that Mumtaz is a thoroughly reliable witness, and that his evidence is true. I do not see any good reason to differ from his estimate of the veracity of the witness and, after a careful consideration, I hold that Mumtaz (P.W 1) is a perfectly truthful and reliable witness. As stated by the learned Sessions Judge, the prosecution case can be held to have been established on the evidence of this witness alone. I may, however, refer to some other points which support the evidence of Mumtaz.

20. Gulam Rasul (P.W 3) has stated in the fard-beyan that, on being injured, Ismail cried out that he had been stabbed by Sarjug by a chhura. Mr. Nageshwar Prasad has argued that the fard-beyan cannot be considered to be evidence in the case because Ghulam Rasul has admitted his signature (exhibit 1) on it but has stated that the Assistant Sub-Inspector himself wrote out the entire fard-beyan. I am unable to agree with this argument. P.W 3 himself stated before the committing Magistrate that the Assistant Sub-Inspector recorded his fard-beyan in his presence, and that he then signed it.

21. The Assistant Sub-Inspector (P.W 13) has stated that he took down the fard-beyan of Ghulam Rasul verbatim according to Ghulam Rasul's statement. His evidence is supported by Biswanath Prasad Choudhuri (P.W 14) and Maksudan Singh (P.W 16) both of whom witnessed the fard-beyan being taken down by P.W 13. The fard-beyan has, therefore, been clearly proved to have been written on the statement of Ghulam Rasul, and there is no reason why it should not be treated as evidence in this case.

22. Apart from what has been mentioned in the fard-beyan. Mumtaz has stated that Ismail cried out, “Ah baap Sarjug ne mara”. Abid Raza (P.W 2) stated before the committing Magistrate that Muhammad Ismail said that Sarjug had stabbed him with a dagger. P.W 3 has stated that Ismail told him that Sarjug had stabbed him with his knife, P.W 4 has also made a similar statement. Mr. Nageshwar Prasad has contended that no part of the evidence of the witnesses who were declared hostile should be accepted because the prosecution itself obviously did not consider them reliable.

23. In my opinion, there is no substance in this contention. When a Public Prosecutor declared a prosecution witnesses to be hostile and cross-examines him after taking the Court's permission, it merely amounts to a declaration by him that the witness adverse or unfriendly to the prosecution and not that the witness is untruthful. Reference may be made in this connection to Emperor v. Haradhan…Accused., 14 Pat LT 494 : (AIR 1933 Pat 517). The true rule is that either party may rely upon the evidence of such a witness, and the Court can come to its own conclusion after a consideration of the whole of his evidence. In the present case. I find that the witnesses whom I have just referred to, have consistency supported the fact that Ismail cried out that appellant Sarjug had stabbed him with his knife. There seems to he no good reason to reject their testimony on this point, and I, therefore, accept it.

24. It appears from the fard-beyan and also from the evidence of Mumtaz (P.W 1), Abid Raza (P.W 2) and Jagannath (P.W 8) that the appellant was present at the place of occurrence, and has seen fleeing away. Jagannath has further said that Sarjug had a knife in his hand, and was at a distance of only three or four steps from Ismail who was pressing his left chest with his hand. That is another circumstance which supports the prosecution case.

25. The last circumstance which supports the prosecution case is that the appellant was absconding for several months, and it was only on 13-9-1955, that he surrendered in Court. He has given the explanation that he had gone away to a friend's place; but he could not have failed to know that he has wanted by the police because the Sub-Inspector (P.W 17) has stated that steps under Sections 87 and 88 of the Cr PC were taken against him. I do not consider the fact that the appellant was absconding for about four months to be a very strong circumstance; but it has certainly to be considered against him when he has failed to give a reasonable explanation.

26. I am satisfied, on a consideration of the evidence on record, that the prosecution case is true, and that the appellant caused the fatal injury to Ismail in the manner alleged by the prosecution. Mr. Nageshwar Prasad has appealed to us for clemency on the ground that the appellant is a young man aged only about 18 years, and has urged that a severe sentence like imprisonment for life should not be allowed to stand against him. It has, however, to be remembered that the deceased was also a young man of about the same age. His offence, if at all, was of a trifling character. It is a great pity that he lost his life on account of a petty quarrel. Besides, no reduction in the sentence is possible unless it can be legally held that the appellant is liable to be convicted under S. 304 and not under S. 302.

27. Mr. Nageshwar Prasad has contended that the size of thei injury shows that the appellant probably used a pen-knife, and hence he cannot be held to have intended to cause the death of Ismail. It is difficult to be quite sure about the kind of knife which the appellant used; but two things are perfectly clear, firstly, that he intended to strike, and actually struck, on a vital part of Ismail's body, and, secondly, that the blow which he struck was a powerful one because, otherwise, both ventricles of the heart could not have been pierced.

28. A man must be deemed to know the nature and consequences of his act. In inflicting a knife injury to Ismail in the region of the heart, the appellant must have intended to cause a bodily injury which was sufficient in the ordinary course of nature to cause death. Dr. L.S Prasad, who held post-mortem examination on Ismail's body, has given the opinion that the injury was of that nature. Mr. Nageshwar Prasad has referred to the decision of the Supreme Court in the case of Willie (William) Slaney v. The State Of Madhya Pradesh , AIR 1956 SC 116.

29. That case is, however, clearly distinguishable because the doctor who examined the injury gave the opinion that it was likely to cause death and not that it was sufficient in the ordinary course of nature to cause death. Their Lordships have proceeded in drat case upon the basis that the special knowledge of likelihood of death being caused could not be attributed to the appellant nor could the injury be held to be sufficient in the ordinary course of nature to cause death. Mr. Nageshwar Prasad has also drawn our attention to an unreported decision of a Bench of a (sic) this Court in Sant Singh v. The State, Criminal Appeal No. 223 of 1954 D/- 9-10-1956.

30. The decision must be confined to the facts of that case because Misra, J., who delivered the judgment of the Bench, did not lay down the circumstances in which a person could be held to be guilty under S. 304 and not under S. 302. Instead, he has observed as follows:

“In the peculiar circumstances of the case, the accused can be found guilty only under Part II of S. 304, Indian Penal Code, as, in any case, he must be deemed to have the knowledge, even if he had not the intention, that his act was so imminently dangerous as to bring about the death of the person assaulted by him.”

31. Each case depends upon its own facts. The facts of two cases are not exactly the same. I do not, therefore, think that the decision in that case can be applied to the facts of the present case.

32. Mr. Nageshwar Prasad has also contended that this case comes within exception 4 to S. 300, and hence the appellant's offence amounts to culpable homicide, and not to murder. The difficulty in his way, however, is that it cannot he said that the appellant did not take undue advantage of the deceased, nor that he did not act in an ??? manner. The evidence shows that the appellant had already been separated from Ismail and, obviously thinking that the fight was over, Ismail was proceeding towards his shop.

33. He was not armed, and he had no suspicion that the; appellant would make a ferocious attack upon him. Mr. Nageshwar Prasad has argued that the appellant could be said to have taken undue advantage of Ismail only if, before making the attack, he had, either alone or with the aid of others made him physically helpless to defend himself.

34. In my opinion, the expression “undue advantage” as used in exception 4 to S. 300 means “unfair advantage” and cannot be limited to a case where the victim is made physically incapable to defend himself. If he has no weapon, and if he does not get a chance even to attempt to run away or to defend himself with whatever he can pick up, he must be held to have been placed at a disadvantage. In other words, an assailant cannot but be said to have taken undue advantage of his victim if the latter is taken completely unawares and is struck when he does not even suspect that he is about to be struck.

35. Furthermore, no reasonable person can expect that a man would whip out a knife and strike, another on a vital part of the body with it on account of a petty quarrel of the kind which took place in this case. If the weapon or manner of attack by the ??? is out of all proportion to the offence given, that circumstance must be taken into consideration for deciding whether undue advantage has been taken. In such a case, the assailant must also be held to have acted in an unusual manner. I am, therefore, unable to hold that the case falls within exception 4.

36. Mr. Nageshwar Prasad had drawn our attention to the case of Chamru Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652. In that case, there was an exchange of abuses between the parties and they came out of their houses in anger. In the course of the quarrel, the appellant gave a fatal blow to the deceased on the head with his lathi. It does not appear that the deceased was unarmed, nor does it appear that he was taken unawares.

37. In fact, he advanced a step or two towards the appellant after being struck with a lathi by the appellant's brother, presumably with a view to attack him. I may also mention that a lathi is a weapon which a villager commonly has in his hand; but a knife is not ??? a weapon. In these circumstances, that case is also distinguishable from the present case. The learned Additional Standing Counsel has relied upon the decision of a Bench of the Court in Sunnumuduli v. King-Emperor*, AIR 1947 Pat 168. That decision supports, to some extent, the view which I have expressed.

38. My conclusion, on the facts and circumstances of this case, is that the offence under S. 302 has been established against the appellant beyond reasonable doubt, and there is no ground for altering his conviction to one under S. 304. It is not possible, therefore, to reduce his sentence. The appeal is, accordingly, dismissed.

39. H.K Choudhuri, J.:— I agree.

D.H.Z

40. Appeal dismissed.