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CASE NO.:

Appeal (crl.) 909 of 2001

PETITIONER:

DASHRATH SINGH

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT: 13/08/2004

BENCH:

P. VENKATARAMA REDDI & B.P. SINGH

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO. 910 OF 2001

P. VENKATARAMA REDDI, J.

The appellants Dashrath Singh and Raja Ram in these

two appeals along with nine others stood trial in S.T.No.495

of 1978 in the Court of the VIII Additional Sessions Judge,

Kanpur. The incident giving rise to the prosecution, took

place on 31.7.1977 at about 9 a.m. in the Village of Daya Ka

Purwa within the limits of Akbarpur police station. One

Pratap Singh son of Gajraj Singh (PW 4) was attacked with a

Kanta (a fork like pointed weapon with a wooden handle),

inflicting injury on his head. After a surgery and prolonged

treatment, he died on 6.9.1977 at the hospital. Three other

persons on the prosecution side also received simple injuries

in the course of the same incident. There were also injuries

to five accused persons including one of the appellants

Dashrath.

The learned Sessions Judge convicted the appellant

Raja Ram for the offence under Section 302 on the finding

that he caused the fatal head injury resulting in the death of

Pratap Singh. Raja Ram was also convicted under Sections

148, 323 & 324 read with Section 149 IPC. The appellant

Dashrath was convicted under Section 302 read with Section

34 IPC. He was also convicted for the offences under

Sections 148, 323 & 324 read with Section 149. Other

accused (who are not appellants before us) were convicted

for various lesser offences. The two appellants were

sentenced to life imprisonment in view of their conviction

under Section 302.

On an appeal filed by all the convicted accused, the

High Court at Allahabad, by the impugned Judgment dated

16.2.2001 partly allowed the appeal. Four persons, who

were not named in the FIR, were acquitted. The conviction

of Raja Ram, one of the appellants herein, under Section

302 IPC as well as under other Sections was upheld. The

conviction of the appellant Dashrath under Section 302 read

with Section 34 was set aside. However, the High Court

convicted him under Section 307 and sentenced him to five

years R.I. for making an attempt on the life of Pratap Singh

by firing from a pistol. His conviction under other Sections

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was upheld.

The members of the prosecution party and the accused

are related to each other, they being the descendants of a

common ancestor. The dispute over the rights on a small

parcel of joint land known as Khajiha close to the house of

the deceased and some of the accused, has triggered off the

incident on the crucial day. There was a case and a counter-

case. In the counter case filed at the instance of the accused

Raja Ram, nine persons including the father of the deceased

were charged for the offences under Sections 147, 307, 323

& 325 IPC. By the judgment delivered on the same day, the

members of the prosecution party in the present case were

acquitted.

PW 4\027the informant and father of the deceased,

PW 2\027the daughter-in-law of PW 4, PW 1\027closely related to

PW 4 and has an interest in the Khajiha and PW 3\027

a neighbour are the eye-witnesses in this case. PWs 1 & 2

received simple injuries in the course of altercation.

Narender Singh, brother of PW1 who received an incised

wound over the chest was not examined.

According to the prosecution case, on 31.7.1977 at

about 9.00 a.m. when Pratap Singh brought his cattle and

tied them up at Khajiha, the appellant Raja Ram and Gyan

Singh (not appellant before us) objected to the same and

threatened Pratap Singh with dire consequences. After a few

minutes, the appellant Raja Ram armed with kanta, the

other appellant Dashrath armed with a country-made pistol,

Gyan Singh armed with a barchchi and eight other persons

armed with lathis came to the house of the informant and

started inserting some pegs in front of the house of PW 4

and the deceased. At that time, PW 4 was sitting near the

well. The accused Raja Ram using abusive language against

Pratap Singh shouted that he should come out of the house.

A few minutes later, as Pratap Singh came out of the room,

Dashrath aimed a shot at him with pistol. As it did not hit

him, Dashrath once again fired; again, it missed the target.

At that stage, Pratap jumped over the platform and tried to

run away. Raja Ram stopped him and inflicted an injury on

his head with kanta as a result of which Pratap fell down at

the spot between the platform and the well. The sister-in-

law of Pratap who is PW 2 also came out of the house and

when she tried to go close to Pratap, one Ram Narain hit her

with a lathi. When Surinder Singh (PW 1 and nephew of

PW 4) and his brother Narender Singh intervened, they were

attacked by the accused with barchchi and lathis. Narender

and Surinder then picked up the bamboos which were lying

nearby and in a bid to defend themselves, inflicted injuries

on some of the accused persons. The victim Pratap was

brought to the verandah and he was taken in a bullock cart

to the police station. After getting a report scribed by one

Mishra, the report signed by PW 4 was handed over at the

police station and the FIR was recorded at 11.30 a.m.

Accompanied by a Police Constable, Pratap Singh was taken

to the Primary Health Centre at Akbarpur. Other injured

were also sent to the same hospital for medical examination.

PW 6 who is the Medical Officer attached to the Primary

Health Centre examined Pratap Singh at 12.15 p.m. and

noted the injuries and the condition of the patient as

follows:

Incised wound 15 cm x 5 cm. x brain tissue deep,

cutting all structures in between i.e., layers and scalp bones

and dura matter i.e., (brain covering). Brain tissues were

protruding out of the wound. Wound was profusely bleeding

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continuously. Injury was kept under observation and X-ray

was advised and patient was referred to U.M.H. Hospital,

Kanpur. Condition of patient: low pulse, was 110/mt. blood

pressure was 100/mm., temperature was normal. Pupils

were slightly reacting to light. Patient was in semi coma

state.

At the trial, PW 6 deposed that the injury on Pratap

could be inflicted by a sharp edged weapon such as kanta

and that the said injury was sufficient to cause death in the

ordinary course of nature. PW 6 also examined the other

three injured persons and it is not necessary to set out the

details of the injuries. Suffice it to state that they were

simple in nature except injury No.1\027an incised wound found

on the left side of chest of Narender Singh.

The victim Pratap Singh was referred to U.M.H.

Hospital, Kanpur. He was admitted on 1.8.1977. PW 5, the

Radiologist, took the X-Ray of the skull of Pratap Singh the

next day. He found that there was a fracture on the right

side of parietal region and on the same day, pursuant to the

letter addressed by the Medical Officer of U.M.H. Hospital

(PW 7), the Magistrate recorded the dying declaration of

Pratap Singh. On 7.8.1977 he was shifted to Medical College

Hospital, Lucknow. PW 8\027a Neuro-Surgeon, performed an

emergency operation on 13.8.1977 and Pratap remained in

that hospital upto the date of his death i.e., 6.9.1977. No

postmortem of the dead body was conducted.

In the evening of 31.7.1977, at about 3.00 p.m., the

appellant Raja Ram lodged a complaint to the police giving a

different version of the incident. He stated that in the

morning when he was fixing pegs on the joint site (khajiha)

in front of his house, Pratap Singh and others including PWs

1 & 4 came armed with lathis, spear and paretha, picked up

a quarrel and launched attack on five of his companions

including Dashrath Singh. The FIR was recorded and as

already stated, the charge-sheet was filed against the

members of the prosecution party in the present case. The

case ended in acquittal.

The appellants and some other accused, in the course

of the examination under Section 313 Cr.P.C. took the plea

that they attacked the deceased and his associates in self-

defence, when they started assaulting them at the khajiha.

Thus, the presence of the appellants at the time of the

incident cannot be disputed. On the side of the accused, four

persons were injured. Amongst them was the appellant

Dashrath Singh who had an abraded contusion on the

dorsum of left hand. The X-ray taken by PW5 revealed that

there was fracture of little finger. PW6 stated that it was a

grievous injury. The accused Ram Narain had a lacerated

wound 6 cm x 1 cm x scalp deep exposing skull bone over

the right side of the forehead. The accused Hari Lal had

three injuries out of which one was an incised wound 5 cm x

1 cm x scalp deep exposing skull bone on the occipital

region. The accused Ram Roop had a lacerated wound 8 cm

x 1 cm x scalp deep over right side of the head. The accused

Ranjit Singh had three injuries one of which was crushed

lacerated wound 6 cm x 2 cm x scalp deep with swelling all

around the wound. There was also an incised wound 2 cm x

5 cm x cutting pinna and cartilage. PW 6, the Medical Officer

in-charge of P.H.C., Akbarpur examined the injuries and

prepared the reports. He deposed that the incised injuries

could have been caused by sharp-edged weapon and the

other injuries by a blunt weapon like lathi.

The investigation was done by PW 9\027the Sub-

Inspector of Police, Akbarpur. Much has been commented

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upon by the trial Court against the manner in which the

investigation was conducted by him.

The learned Sessions Judge believed the eye-witnesses'

account and the dying declaration. The learned Judge

disbelieved the defence version that the accused acted in

self-defence. However, the learned trial Judge was of the

view that the common object of the unlawful assembly was

not to commit the murder of Pratap Singh and the common

object could only be to cause hurt or use criminal force

against the prosecution party with a view to refrain Pratap

Singh from asserting rights over the disputed site.

Therefore, they cannot be held vicariously liable for the acts

of Raja Ram and Dashrath\027the present appellants.

The High Court rightly focused its attention on the

questions as to who were the aggressors and which was the

scene of offence. The High Court immensely relied on the

evidence of PW 3 who is a neighbour and who is

undoubtedly an independent witness. He categorically stated

that when he reached the house of deceased on hearing the

commotion, he noticed the accused fixing the pegs on the

open space between the well and 'chabutra' and PW 4

(father of deceased) was sitting close to the well. When

Pratap Singh came out of his room, Dashrath Singh made

unsuccessful attempts to fire at him. He then jumped over

the platform and started running away. At that stage, the

appellant Raja Ram hit Pratap Singh on the head with kanta.

Pratap Singh fell down then and there between the well and

the platform. PW 2 ran towards Pratap Singh and one of the

accused inflicted lathi blows on her. Then she fell down and

thereafter PW1 and his brother Narender Singh picked up

the bamboos lying over there and started attacking the

accused to protect themselves. PW 1 and Narender Singh

also sustained injuries. Thereafter, Pratap Singh was carried

to the verandah.

The High Court observed that the most important

evidence to fix the place of occurrence is that of PW 3 who is

an independent witness and whose presence was natural

and probable. He had no axe to grind against the accused.

The High Court also drew support from the evidence of two

injured witnesses. The High Court then dealt with the dying

declaration recorded by PW 10, the Executive Magistrate, at

the hospital on 1.8.1977. The High Court observed that the

dying declaration lends ample support to the evidence of

prosecution witnesses. PW 7\027the Medical Officer working in

UHM Hospital, Kanpur testified that the dying declaration

was recorded by PW 10 in his presence after he gave the

opinion that the injured was in a position to give the

statement. PW 7 deposed that the patient (deceased)

remained in good senses when he gave the statement to the

Magistrate. It may be noticed at this stage that the trial

Court did not accept the argument that Pratap Singh could

have been tutored by his father (PW 4) and other relatives

to implicate the accused. The presence of PW 4 and other

relatives at the hospital was not considered to be a factor

that goes against the veracity of the dying declaration.

These findings of the High Court and of the trial Court based

on the analysis and appreciation of evidence furnished by

the eye-witnesses' account as well as the dying declaration

cannot be faulted on the ground of perversity or non-

consideration of any material circumstances or any other

legal grounds.

The learned senior counsel for the appellant

strenuously urged that the High Court was not justified in

coming to the conclusion that the appellants acted as

aggressors in the absence of explanation for the injuries

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received by five of the accused. It is pointed out that there

was no disclosure of injuries inflicted on the accused in the

FIR or in the course of investigation. There was no scope to

cause such injuries if a sudden attack was launched by the

accused with arms. According to the learned counsel, the

prosecution has suppressed the real happenings. The alleged

heap of bamboos which provided the means of counter-

attack against the accused by PWs 1 & 2 was not noted by

the Investigating Officer in the site plan nor any pegs said to

have been planted, were noted. The blood-stained earth was

not sent to the Chemical Examiner. No lead or empties

traceable to pistol shots were recovered nor attempted to be

recovered. It is also stressed that if really the appellants and

their companions trespassed into the house of the deceased

in the background of the dispute over the khajiha, they

would not have spared the father of the deceased Gajraj

Singh who was sitting outside, near the well. The last

argument does not deserve serious consideration for the

reason that the immediate provocation was the quarrel that

took place minutes earlier between Pratap Singh and the

appellant Raja Ram. There is nothing unnatural in choosing

Pratap Singh as the target of their attack. Equally untenable

is the contention that the lapses or omissions on the part of

the Investigating Officer in not noting certain important

points in the site plan and in not obtaining the report of the

Chemical Examiner weakens the prosecution case to such an

extent as to cast a doubt on the version of the direct

witnesses. In fact, the I.O. stated in his deposition that he

found certain pegs fixed near the well but he did not

consider it necessary to show them in the site plan. As

regards the bundle of bamboos, he stated that he could not

recollect whether PW 1 had shown them to him. Though the

investigation appears to be perfunctory, that should not, in

our view, materially affect the substratum of the prosecution

case which stands established by cogent and reliable

evidence.

We have given our anxious consideration to the aspect

of non-explanation of injuries at the earliest opportunity by

the prosecution party keeping in view the fact that some of

the accused received fairly severe injuries. This aspect has

also engaged the attention of the High Court. The High Court

took note of the fact that the prosecution witnesses did

explain that the injuries came to be inflicted on the accused

with bamboos picked up by PW2 and his brother in order to

repel the further attack by the accused. The High Court

observed that the mere fact that the FIR was silent

regarding the injuries received by the accused is not a

ground to discard the explanation given at the trial. There

may be initial reluctance on the part of the informant to

disclose that the prosecution party made a counter attack

causing injuries to some of the accused. The High Court was

of the view that in the face of the clear and consistent

evidence of independent and natural witnesses supported by

the dying declaration, all of which revealed that the accused

party was the aggressor and initiated the attack on Pratap

Singh in front of his house, the non-explanation of injuries at

the earliest point of time cannot be put against the

prosecution. Broadly speaking, the approach of the High

Court seems to be correct and in conformity with the legal

position clarified and explained by this Court in a series of

decisions.

In Bhaba Nanda Vs. State of Assam [AIR 1977 SC

2252], a three Judge Bench of this Court made the

following pertinent observations:

"\005..The prosecution is not obliged to explain the

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injuries on the person of an accused in all cases

and in all circumstances. This is not the law. It all

depends upon the facts and circumstances of each

case whether the prosecution case becomes

reasonably doubtful for its failure to explain the

injuries on the accused. In the instant case, the

Sessions Judge was not justified in doubting the

truth of the version given by the eye-witnesses\027

three of whom were wholly independent

witnesses. Gopi Nath was surely present on the

scene of the occurrence as he himself had

received the injuries in the same transaction. The

High Court has rightly believed the testimony of

the eye-witnesses."

The law on the subject has been succinctly clarified by

R.C. Lahoti, J. (as he then was) speaking for a three Judge

Bench in Takhaji Hiraji Vs. Thakore Kubersing

Chamansingh [(2001) 6 SCC 145]. After referring to the

three Judge Bench decisions of this Court, it was observed:

"\005..the view taken consistently is that it cannot

be held as a matter of law or invariably a rule that

whenever the accused sustained an injury in the

same occurrence, the prosecution is obliged to

explain the injury and on the failure of the

prosecution to do so the prosecution case should

be disbelieved. Before non-explanation of the

injuries on the persons of the accused persons by

the prosecution witnesses may affect the

prosecution case, the Court has to be satisfied of

the existence of two conditions: (i) that the injury

on the person of the accused was of a serious

nature; and (ii) that such injuries must have been

caused at the time of the occurrence in question.

Non-explanation of injuries assumes greater

significance when the evidence consists of

interested or partisan witnesses or where the

defence gives a version which competes in

probability with that of the prosecution. Where the

evidence is clear, cogent and creditworthy and

where the Court can distinguish the truth from

falsehood the mere fact that the injuries on the

side of the accused persons are not explained by

the prosecution cannot by itself be a sole basis to

reject the testimony of the prosecution witnesses

and consequently the whole of the prosecution

case.

The High Court was therefore not right in

overthrowing the entire prosecution case for non-

explanation of the injuries sustained by the

accused persons."

The injuries of serious nature received by the accused

in the course of the same occurrence would indicate that

there was a fight between both the parties. In such a

situation, the question as to the genesis of the fight, that is

to say, the events leading to the fight and which party

initiated the first attack assumes great importance in

reaching the ultimate decision. It is here the need to explain

the injuries of serious nature received by the accused in the

course of same occurrence arises. When explanation is

given, the correctness of the explanation is liable to be

tested. If there is an omission to explain, it may lead to the

inference that the prosecution has suppressed some of the

relevant details concerning the incident. The Court has then

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to consider whether such omission casts a reasonable doubt

on the entire prosecution story or it will have any effect on

the other reliable evidence available having bearing on the

origin of the incident. Ultimately, the factum of non-

explanation of injuries is one circumstance which has to be

kept in view while appreciating the evidence of prosecution

witnesses. In case the prosecution version is sought to be

proved by partisan or interested witnesses, the non-

explanation of serious injuries may prima facie make a dent

on the credibility of their evidence. So also where the

defence version accords with probabilities to such an extent

that it is difficult to predicate which version is true, then, the

factum of non-explanation of the injuries assumes greater

importance. Much depends on the quality of the evidence

adduced by the prosecution and it is from that angle, the

weight to be attached to the aspect of non-explanation of

the injuries should be considered. The decisions above cited

would make it clear that there cannot be a mechanical or

isolated approach in examining the question whether the

prosecution case is vitiated by reason of non-explanation of

injuries. In other words, the non-explanation of injuries of

the accused is one of the factors that could be taken into

account in evaluating the prosecution evidence and the

intrinsic worth of the defence version.

By this explanatory note, we are only elucidating what

has been laid down in a catena of decisions on this aspect.

Coming back to the situation in the present case, the

High Court found that independent and reliable evidence

including dying declaration of the victim is available. The

defence version does not inspire confidence in the

estimation of the Court and does not compete in probability

with that of the prosecution. That is how the High Court has

approached the matter and we cannot find fault with the

same. To add to what the High Court has said, we may point

out that there is every possibility that PW 4\027the informant,

would not have been in a position to notice that some of the

accused received severe injuries. It is true that one of the

appellants Dashrath had a facture of the little finger which is

described as a grievous injury but there could hardly be any

occasion to observe such injury in the melee that followed

the aggressive attack of the accused party. So also, the

injuries on the other accused might not have been noticed

by PW4\027the informant. Still, he could have mentioned

broadly that his associates tried to resist the attack and

there was a fight. The omission to state so in the FIR should

not be given undue importance, as held by the High Court.

Coming to the investigation stage, by the time the

investigation was taken up, a clear picture had emerged.

The counter-complaint of Raja Ram given a few hours later

was on record. The investigation into these two FIRs would

have proceeded simultaneously. There could not have been

any suppression of the other part of the incident at that

stage. No such questions were put to the I.O. in order to

elicit whether there was such suppression. However, there is

one aspect which remained unexplained even at the trial i.e,

the incised wounds\027one each on Ranjit Singh and Hari Lal

which, according to the medical evidence, could have been

caused by a sharp-edged weapon. As far as Ranjit Singh is

concerned, the question of explaining the injury caused to

him does not arise as he was acquitted for the reason that

his presence was doubted. In fact Ranjit Singh himself in the

course of Section 313 examination denied the knowledge of

the incident. There remains the incised injury caused to Hari

lal which at first blush seems unexplained. PW6 noted

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incised wound of 5 cm. x 1 cm. x scalp deep on the occipital

region, with the exposure of skull bone. PW1 and his brother

were supposed to have wielded bamboo sticks. If we go

strictly by medical evidence, this injury might have been

caused by a sharp-edged weapon but not a lathi. But, we

get it from the text books on Medical Jurisprudence that

some of the lacerations caused by a blunt instrument could

look like incised wounds if the blunt force is applied on the

areas such as scalp. The following passages from Medical

Jurisprudence and Toxicology (Seventh Edition) authored

by HWV Cox and edited by Dr. P.C. Dikshit would clarify the

position:

"The most common place for serious lacerations to

be found, especially in forensic practice, is the

scalp which is often the target for homicidal

attack. As mentioned above, the hard underlying

skull forms an unyielding base upon which the

skin and soft tissues can be crushed, so that many

blunt injuries of the scalp are indistinguishable at

first sight from a laceration caused by a knife,

sharp axe or any other cutting instrument."

Under the head Split Laceration, it is explained:

"Splitting occurs by crushing the skin between two

hard objects. They are also called incised looking

wounds. When there is application of blunt force

on areas where the skin is closely applied to the

bone and sub-cutaneous tissue is scanty, the

wounds are produced by linear splitting of the

skin. The common areas are scalp, eyebrows and

hibones. They can be differentiated by examining

the margins by magnifying glass and in these

cases the roots of hair are crushed."

Again, at the beginning of the Chapter V dealing with

wounds of the head it is explained:

"Blunt injuries to the scalp are classically confused

with knife slashes, due to the splitting of the

tissues because of the firm underlying cranial

bones beneath the aponeurosis. This has been

described in the last chapter, but it should be

repeated that the distinction between blunt splits

and knife cuts may be difficult, but usually

possible by a minute examination of the wound

margins."

In Modi's Medical Jurisprudence & Toxicology

(Twenty-Second edition) edited by B V Subrahmanyam, it is

explained at page 342:

"Occasionally, on wounds produced by a blunt

weapon or by a fall, the skin splits and may look

like incised wounds when inflicted on tense

structures covering the bones, such as the scalp,

eyebrow, iliac crest, skin, perineum etc. \005\005"

It is further clarified at Page 404\027

"\005A scalp wound by a blunt weapon may resemble

an incised wound, hence the edges and ends of

the wound must be carefully seen to make out a

torn edge from a cut and also to distinguish a

crushed hair bulb from one cut or torn. \005\005"

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Therefore, the evidence of the Medical Officer does not

necessarily lead to the conclusion that the injury found on

the occipital region/skull could not have been caused by a

lathi or stick. Even if there is some doubt on this aspect,

taking an overall view, we do not consider it a legitimate

ground to reject the prosecution case lock, stock and barrel.

The prosecution case as regards the head injury

inflicted by Raja Ram on Pratap Singh with kanta and

the attempt on his life by Dashrath by resorting to firing

having been established beyond reasonable doubt, the

next question is as to the nature of offence committed by

Raja Ram.

Firstly, it must be noted that the intention to cause the

death of Pratap Singh cannot be imputed to the accused

Raja Ram. Apart from the finding of both the Courts that the

common object of the unlawful assembly was not to kill

Pratap Singh or any other member of his family but only to

cause hurt or apply criminal force in order to desist them

from asserting the rights over the disputed site, one more

circumstance that rules out the intention on the part of any

of the accused to kill Pratap Singh is that after the single

blow inflicted on the victim with the kanta, there was no

further move to attack him. PW1 made this clear in his

deposition. If Raja Ram intended to kill him, he would not

have stopped at injuring him once only. Still, the question

remains whether the offensive act done by the appellant

Raja Ram falls within clause thirdly of Section 300. That the

appellant intended to cause bodily injury to the victim by

striking him on his head with a sharp-edged weapon the

appellant was carrying cannot be denied in view of the

sequence of events deposed to by PWs 1 to 4. From the

medical evidence of PWs 6 & 8 coupled with the magnitude

of the injury caused on head with a dangerous weapon, it

can be presumed that the injury which was inflicted and

intended to be inflicted is sufficient in the ordinary course of

nature to cause death. PW 8 who performed the surgery on

13.8.1977 noted the pre-operative diagnosis on Exhibit ka-9

as follows:

"Right fronto-parietal infected compound

communated fracture of skull with brain

heriniates, underneath: brain abscess and

cerebratis with heriniation."

He prescribed post-operative treatment. PW 8 stated

that the death was on account of the head injury which

caused brain abscess and such injury could lead to the

occurrence of death in the ordinary course of nature. The

evidence of PW8 leaves no doubt that the skull and brain

injury caused to the victim was sufficient in the ordinary

course of nature to cause death. PW6 who attended on the

victim on the day of occurrence itself noticed the incised

wound of 15 cm x 5 cm x brain tissue deep found on the

head of the patient. He stated that the injury was appearing

to be dangerous to life and the injury must have been

inflicted by a sharp-edged object thrust with sufficient force.

The medical evidence however does not establish

beyond reasonable doubt that the ultimate cause of death

was the aforesaid injury. From the date of the surgery, the

victim was alive for 23 days and undergoing treatment in

the hospital. He survived for 38 days after the injury was

received. Not a word has been said and no report or case-

sheet has been filed to indicate the condition of the patient

after the surgery. No doubt, there was no cross examination

of the Doctor (PW8) on this aspect. Yet, it was the primary

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duty of the prosecution to adduce evidence in regard to the

post-operative condition of the patient so that the scope for

any intervening ailment unconnected with the injury is ruled

out. This becomes all the more important because of the

long time lag and the omission to hold post-mortem.

Apparently, there was a callous indifference or lack of

vigilance on the part of the Investigating Officer in failing to

ensure the post-mortem examination in a case of this

nature. PW8 came forward with the explanation that the

post-mortem is not absolutely necessary to ascertain the

cause of death. But, then, the prosecution has to establish

beyond reasonable doubt that the eventual cause of death

was only the injury inflicted by the appellant and nothing

else, but it has failed to do so.

We are therefore of the view that the appellant Raja

Ram cannot be held guilty of an offence under Section 302

or Section 304. He must be held guilty under Section 326 for

voluntarily causing a grievous hurt by means of a dangerous

weapon. Accordingly, his conviction is modified to Section

326 and he is sentenced to undergo rigorous imprisonment

for six years and to pay the fine of Rs.1,000. In default of

payment of fine, he shall undergo further imprisonment for

four months. The accused will have the benefit of set off of

the period of imprisonment undergone in terms of Section

428 Cr.P.C.

In the result, the Criminal Appeal No. 910 of 2000 filed

by Raja Ram is allowed partly. The Criminal Appeal No. 909

of 2000 filed by Dashrath Singh is dismissed.