http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

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"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

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.