DASHRATH SINGHversusSTATE OF U.P.

                         DASHRATH SINGH                                   A
                               v.
                          STATE OF U.P.

                          AUGUST 13, 2004
                                                                          B
         [P. VENKATARAMA REDD! AND B.P. SINGH, JJ.]

     Criminal Trial :

     Investigation-Defective investigation-IO omitted to make certain
important points in the site plan-Effect of-Held: Though the investigation C
was perfunctory yet it did not materially affect the substratum of the
prosecution case which stood established by cogent and reliable evidence.

     Injuries on the accused-Non-mention of the same in FIR-Effect
of-Held: Non-mention of injuries in FIR not a ground to discard the D
explanation of injuries given at the trial.,

      Injuries on the accused-Non-explanation-Effect of-Held: The
weight to be given to non-explanation of injuries on the accused depends
upon the quality of the prosecution evidence-Non-explanation of the E
injuries is one of the factors that could be taken in!o account in evaluating
the prosecution evidence and the intrinsic worth of the defence version.

    Injury-On the occipital region/skull-Weapon causing it-Held:
Could be caused by a lathi or stick.
                                                                          F
     Code of Criminal Procedure, 1973: Section 154.

      Cognizable cases-Investigation in-Omissions in FIR-Informant
failed to mention in FIR that his associates tried to resist the attack and
that there was a fight-Effect of-Held: Such an omission should not be G
given undue importance in view of reliable prosecution evidence and
unreliable defence version.

     Penal Code, 1860: Sections 300 thirdly, 302, 304 and 326 read with
S.149.                                                                    H
                                  561
    562                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A       Murder-Intention TO kill-Absence of-Effect-Accused inflicted an
   injury on the head of the deceased by a single blow-Deceased survived
  for 38 days after the injury-Trial court convicted the accused under S.
  302-High Court affirmed the conviction-Correctness of-Held: Both the
  Court's found that the common object was not to kill the deceased-
B Moreoever, after inflicting a single blow on the deceased the accused made
  no further move to attack him-This shows that the accused had no
   intention to kill the deceased-Further no report or case-sheet filed to
   indicate condition of deceased after surgery who survived for 23 days
  thereafter-Therefore, the scope of any intervening ailment unconnected
C with the surgery is not ruled out-Prosecution has, therefore, ftiiled to
  establish beyond a reasonable doubt that the eventual cause of death was
  only the injury inflicted by the accused and nothing else-Hence, accused
  cannot be convicted under S. 302 or 304-Conviction altered to oni? under
  s. 326.
D      According to the prosecution, when P brought his cattle and tied
  them up at a small parcel of land, the appellant R and one G objected
  to the same and threatened him with dire consequences. After a few
  minutes, the appellant R armed with kanta, the other appellant D
  armed with a country-made pistol, G armed with lathis came to the
E house of the informant and started inserting some pegs in front of his
  house. At that time, the informant was sitting near the well. The
  accused R, using abusive honguage against P, shouted that he should
  come out of the house. A few minutes later, as P came out of the room,
  D aimed a shot at him with the pistol. As it did not hit him, )} once
F again fired; again, it missed the target. When P tried to run away, R
  stopped him and inflicted an injury on his head with kanta as a result
  of which P fell down. The nephew of the informant and his brother,
  in a bid to defend them, picked up the bamboos which were lying
  nearby and inflicted injuries on some of the accused persons. P was
  taken to a nearby hospital where he died after 38 days and his dying
G declaration was recorded. No postmortem of the dead body was
  conducted.

         The trial court believed the eyewitnesses' account and the dying
    declaration. The trial court disbelieved the defence version that the
H   accused acted in self-defence. However, the trial court was of the view
                           DASHRATH SINGH v. STATE                       563

       that the common object of the unlawful assembly was not to commit A
       the murder of P and the common object could only be to cause hurt
       or use criminal force against the prosecution party with a view to
       refraining P from asserting his rights over the disputed site. Therefore,
       the trial court held that the other members of the unlawful assembly
       could not be held vicariously liable for the acts of R and D, the B
       appellants.

            The trial court convicted R under Sections 302, 323 .and 324 read
       with Section 149 of the Penal Code, 1860. D was convicted under
       Section 302 read with Section 34 IPC and Sections 148, 323 and 324 C
       read with Section 149 IPC. The High Court upheld the conviction and
       sentence of R. The conviction of D under Section 302 read with Section
       34 IPC was altered to one under Section 307 and he was sentenced to
       five years' RI. Hence the appeal.

            On behalf of the appellants, it was contended that the injuries on D
       the accused were not explained; that there was no disclosure of the
       injuries inflicted on the accused in the FIR; that the heap of bamboos
       which provided the means of counter-attack was not noted by the
       Investigating Officer (IO) in the site plan and, therefore, there was a
       lapse in the investigation on the part of the IO.                       E

             Partly allowing the appeal filed by R and dismissing the appeal
       filed by D, the Court

            HELD: 1. The appellant's contention that the lapses or omissions F
       on the part of the Investigating Officer in not noting certain important
       points in the site plan is untenable. Though the investigation appears
       to be perfunctory, that should not materially affect the substratum of
       the prosecution case which stands established by cogent and reliable
       evidence. (572-E-G]
                                                                               G
            2. 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 PW 2 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 H
    564                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A by the accused is not a ground to discard the explanation giveD at the
    trial. There may be initial reluctance on the part of the informant to
    disclose that the prosecution party made a counter attack <:ausing
    injuries to some of the accused. The High Court was of the vi1~w that
    in the face of the clear and consistent evidence of independent and
B   natural witnesses supported by the dying declaration, all of which
    revealed that the accused party was the aggressor and initia1ted the
    attack on the deceased in front of his house, the non-explanation of the
    injuries at the earliest point of time cannot be put against the
    prosecution. Broadly speaking, the approach of the High Court seems
C   to be correct and in conformity with the legal position clarifi,ed and
    explained by this Court in a series cf decisions. [573-A-Dl

         Bhaba Nanda v. State of Assam, AIR (1977) SC 2252 and Takhaji
    Hiraji v. Thakore Kubersing Chamansingh, 12001) 6 SCC 145, relied on.

D      3. The injuries of a serious nature received by the accuse~! 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 import~mce in
E reaching the ultimate decbion. It is here the need to explain the injuries
  of a serious nature received by the accused in the course of the same
  occurrence arises. When explanation is given, the correctness of the
  explanation is liable to be tested. If there is an omission to exp•lain, it
  may lead to the inference that the prosecution has suppressed some of
F the relevant details concerning the incident. The Court has then to
  consider whether such an omission casts a reasonable doubt on the
  entire prosecution story or it will have any effect on the other reliable
  evidence available having a bearing on the origin of the incident.
  Ultimately, the factum of non-explanation ofinjuries is one circumstance
  which has to be kept in view while appreciating the evidence of
G 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 iis true,
H then, the factum of non-explanation of the injuries assumes 1:reater          -
                    DASHRATH SINGH v. STATE                        565

importance. Much depends on the quality of the evidence adduced by A
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.
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 B
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. [574-E-H; 575-A-D]

     Bhaba Nanda v. State of Assam, AIR (1977) SC 2252 and Takhaji
Hiraji v. Thakore Kubersing Chamansingh, [2001] 6 SCC 145, relied on.    C

      4. The informant could have mentioned broadly in the FIR that
his associates tried to resist the attack and that there was a fight. The
High Court found the prosecution evidence reliable and held that the
defence version did not inspire confidence. Therefore, the omission to D
state so in the FIR should not be given undue importance. [575-H, E]

     5. The injury found on the occipital region/skull could have been
caused by a lathi or stick. Cox H.W.V.: Medical Jurisprudence and
Toxicology (7th Edn.), edited by Dr. P.C. Dikshit and Modi's Medical E
Jurisprudence & Toxicology (22nd Edn.), edited by B. V Subrahmanyam,
pp. 342 and 404, referred to. (577-F-G]

     6.1. The prosecution case as regards the head injury inflicted by
the appellant Ron the deceased with kanta by resorting to firing having F
been established beyond a reasonable doubt, the next question is as to
the nature of offence committed by R. [577-G-H; 578-A]

     6.2. Apart from the finding of both the Courts below that the
common object of the unlawful assembly was not to kill the deceased,
one more circumstance that rules out the intention on the part of any G
of the accused to kill the deceased is that after the single blow inflicted
on the victim with the kanta, there was no further move to attack him.
From the medical evidence of PWs 6 & 8 coupled with the magnitude
of the injury caused on the head with a dangerous weapon, it can be
presumed that the injury which was inflicted and intended to be inflicted H
    566                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A is sufficient in the ordinary course of nature to cause death. [578-A-E]
        6.3. The medical evidence, however, does not establish beyond a
  reasonable doubt that the ultimate cause of death was the aforesaid
  head injury. From the date of the surgery, the victim was alive for 23
B 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 patienit after
  the surgery. No doubt, there was no cross-examination of the doctor
  (PW 8) on this aspect. Yet, it was the primary duty of the prosecution
  to adduce evidence in regard to the post-operative condition of the
C 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 postmortem. Appa,rently,
  there was a callous indifference or lack of vigilance on the part of the
  Investigating Officer in failing to ensure the postmortem examination
D in a case of this nature. PW 8 came forward with the explanation that
  the postmortem is not absolutely necessary to ascertain the cause of
  death. But, then, the prosecution has to establish beyond a 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. [579-A-D]

E        Therefore, appellant R cannot be held guilty of an offence under
    Section 302 or 304 IPC. He must be held guilty under Section 326 for
    voluntarily causing a grievous hurt by means of a dangerous weapon.
                                                                [5791-D-E]

p       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    909 of 2001.

         From the Judgment and Order dated 16th February, 200 I of the
    Allahabad High Court in Crl. A.No. 727/81.

G       R.D. Mehra, Deepak Dhingra and Pradeep Kumar Bakshi for the
    Appellant.

        Pramod Swamp, Ms. Pareena Swamp, Praveen Swamp and A.S.
    Pundir (NP) for the Respondent.

H         The Judgment of the Court was delivered by
               DASHRATH SINGH v. STATE [REDDI, J.]                   567

     P. VENKATARAMA REDDI, J.: The appellants Dashrath Singh A
and Raja Ram in these two appeals along with nine others stood trial in
S.T.No. 495of1978 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 ofGajraj Singh (PW 4) B
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.                                                 C
      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 D
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.
                                                                           E
      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
!PC as well as under other Sections was upheld. The conviction of the F
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 was upheld.

     The members of the prosecution party and the accused are related to G
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 H
    568                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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.

B        PW-4 the informant and father of the deceased, PW 2 the daughter-
    in-law of PW-4; PW-I closely related to PW-4 and has an interest in the
    Khajiha and PW 3 a neighbour are the eye-witnesses in this case. PWs I
    & 2 received simple injuries in the course of altercation. Narender Singh,
    brother of PWI who received an incised wound over the chest was not
    examined.
c
        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
D 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
E 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
F 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-I and nephew of PW-4) and his brother Narender
  Singh intervened, they were attacked b~ the accused with barchchi and
G 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
H police station and the FIR was recorded at 11.30 a.m. Accompanied by a
               DASHRATH SINGH v. STATE [REDDI, J.]                      569

Police Constable, Pratap Singh was taken to the Primary Health Centre at A
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
                                                                              B
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 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., C
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 D
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. I an incised wound found on the left side of chest of
Narender Singh.
                                                                              E
      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 F
Magistrate recorded the dying declaration of Pratap Singh. On 7.8.1977 he
was shifted to Medical College Hospital, Lucknow. PW-8 a 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.                                 G
      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
I & 4 came armed with lath is, spear and paretha, picked up a quarrel and H
    570                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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.

B     ' 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
C contusion on the dorsum of left hand. The X-ray taken by PW-5 revealed
  that there was fracture of little finger. PW-6 stated that it was a grievous
  injury. The accused Ram Narain had a lacerated wound 6 cm x I 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
D 5 cm x I cm x scalp deep exposing skull bone on the occipital region. The
  accused Ram Roop had a lacerated wound 8 cm x I 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
E 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.

F       The investigation was done by PW-9 the Sub-Inspector of Police,
    Akbarpur. Much has been commented 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
G 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.
H Therefore, they cannot be held vicariously liable for the acts of Raja Ram
               DASHRATH SINGH v. STATE [REDD!, J.]                   571

and Dashrath - the present appellants.                                     A
      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 B
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 C
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 PW-
1 and his brother Narender Singh picked up the bamboos lying over there
and started attacking the accused to protect themselves. PW-1 and Narender D
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 E
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 the Medical Officer F
working in UHM Hospital, Kanpur testified that the dying declaration was
recorded by PW- I 0 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 G
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 H
    572                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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.

B       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
  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
C 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 PW s I & 2 was not noted by the Investigating Officer in the
  site plan nor any pegs said to have been planted, were noted. The blood-
D 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 ifreally 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
E who wa5 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
F 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 J..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
G the bundle of bamboos, he stated that he could not recollect whether
   PW-I 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.
H
               DASHRATH SINGH v. STATE [REDDI, J.)                  573

      We have given our anxious consideration to the aspect of non- A
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 B
up by PW-2 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 C
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 D
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 v. State of Assam, AIR (1977) SC 2252, a three
Judge Bench of this Court made the following pertinent observations: E
        " .. The prosecution is not obliged to explain the 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 F
        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 three of whom
        were wholly independent witnesses. Gopi Nath was surely ;>resent
        on the scene of the occurrence as he himself had received the
        injuries in the same transaction. The High Court has rightly G
        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 v.
Thakore Kubersing Chamansingh, (2001) 6 sec 145. After referring to H
    574                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A the three Judge Bench decisions of this Court, it was observed:
             " .. 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
B            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
c            (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
D
             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.
E
             The High Court was therefore not right in overthrowing the entire
             prosecution case for non-explanation of the injuries sustained by
             the accused persons."

F        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
G 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 to consider whether such omission casts a reasonable doubt
H on the entire prosecution story or it will have any effect on the other reliable
               DASHRATH SINGH v. STATE [REDDI, J.]                     575

evic!ence available having bearing on the origin of the incident. Ultimately, A
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 primafacie make a dent on the credibility of their evidence. So also B
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 th~ aspect of non-explanation of the
injuries should be considered. The decisions above cited would make it C
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 D
version.

    By this explanatory note, we are only elucidating what has been laid
down in a catena of decisions on this aspect.
                                                                             E
      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 F
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 the
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 G
melee that followed the aggressive attack of the accused party. So also, the
injuries on the other accused might not have been noticed by PW-4 the
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. H
    576                   SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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
B   were put to the 1.0. 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 - one 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
C   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. PW-6 noted incised wound of 5 cm. x I cm. x
    scalp deep on the occipital region, with the exposure of skull bone. PW-
D   I 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
E   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
F            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."
G
          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
H            application of blunt force on areas where the skin is closely
              DASHRATH SINGH v. STATE [REDDI, J.]                     577

        applied to the bone and sub-cutaneous tissue is scanty, the wounds A
        are produced by linear splitting of the skin. The common areas
        are scalp, eyebrows and hibones. They.can be differentiated by
        eiqunining 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 B
heiid 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 C
        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 & Toxico,logy (Twenty-Second D
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, E
        eyebrow, iliac crest, skin, perineum etc ..."

        It is further clarified at Page 404-

        " ... A scalp wound by a blunt weapon may resemble an incised
        wound, hence the edges and ends of the wound must be carefully F
        seen to make out a tom edge from a cut and also to distinguish
        a crushed hair bulb from one cut or tom ......"

Therefore, the evidence of the Medical Officer does not necessarily lead
to the conclusion that the injury found on the occipital region/skull could G
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 H
    578                    SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A resonmg 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
·B 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 assening 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 funher move to
 C attack him. PW-I 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-
D edged weapon the appellant was carrying cannot be denied in view of the
   sequence of events deposed to by PWs I 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
 E 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."
F
        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 PW-8 leaves no doubt that the skull and brain
G injury caused to the victim was sufficient in the ordinary course of nature
  to cause death. PW-6 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 i.njury must have been inflicted by a sharp-edged
H object thrust with sufficient force.
                   DASHRATH SINGH v. STATE [REDDI, J.]                   579

          The medical evidence however, does not establish beyond reasonable A
    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, B
    there was no cross examination of the Doctor (PW-8) on this aspect. Yet,
    it was the primary 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 indifferenre or lack of C
    vigilance on the part of the Investigating Officer in failing to ensure the
    post-mortem examination in a case of this nature. PW-8 came forward with
    the explanation that the postcmortem 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 D
    injury inflicted by the appellant and nothiqg 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 E
    held guilty under Section 326 for voluntarily causing a grievous hurt by
    means ofa 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 F
    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 of2000 filed by Raja Ram
    is allowed partly. The Criminal Appeal No. 909 of2000 filed by Dashrath
    Singh is dismissed.                                                        G
    v.s.s.                       Criminal Appeal No. 90912000 dismissed.
                             Criminal Appeal No. 910/2000 partly allowed.