Judgment P.N. Goel, J. 1. LILADHAR appellant, resident of village Raipur-Ka-Mazra, police station Shahabad, district Rampur has been convicted and sentenced under Sees. 304 and 323 of the Indian Penal Code to suffer R. I. for 5 years and pay a fine of Rs. 400/- and R. I. for 3 months; respectively. 2. GHASI, Tara and Jhanjan, real brothers inter se, nephews of Liladhar appellant were acquitted. The occurrence took place on 26-5-1976 at about 3'30 P. M. in the market of village Saifni, police station Shahabad, district Rampur. Bhoore (P. W. 1) and his brother Banne deceased had placed their shop of water melons in the market. Dilshad, nephew of Bhoore, was having a shop of Banyans in front of the shop of Bhoore. A person with a cycle was standing at the shop of Dilshad A cart of Liladhar loaded with water melons driven by hands came in the Rasta between the shop of Bhoora and Dilshad. The cart happened to dash against the bicycle which fell down upon Dilshad. Dilshad asked Liladhar as to why he was not carrying the cart cautiously. Liladhar gave 3 or 4 slaps to Dilshad. Thereupon Bhoore and Barane came up and asked Liladhar as to why he had slapped Dilshad. Liladhar then picked up a lathi from his cart and gave a blow to Banne. It is said that Ghasi, Tara and Jhanjan also assaulted Banne and Bhoore with lathis. On account of the injury received Banne fell down and ultimately died on 27-5-1976 al 6 45 A.M. 3. ON the date of occurrence at 4:30 P. M. Bhoore lodged verbal report of the occurrence at the police station about 3 furlongs from, the scene of occurrence. Thereafter Banne and Bhoore were examined by Dr. S. K. Sharma, Medical Officer, Primary Health Centre Shahabad, Rampur between 5:15 and 5:45 P. M. ON the person of Banne following injuries were found :- (1) Lacerated wound 2 cm x 1/4 cm x muscle deep on the scalp right side 8 cm. above the mid of right eye brow. (2) Contusion 8 cm x 6 cm on the scalp left side just above the root of the left ear. (3) Lacerated wound 1-1/2 cm x 1/4 cm muscle deep on the scalp right side 8 cm above the outer end of right eye-brow. above the mid of right eye brow. (2) Contusion 8 cm x 6 cm on the scalp left side just above the root of the left ear. (3) Lacerated wound 1-1/2 cm x 1/4 cm muscle deep on the scalp right side 8 cm above the outer end of right eye-brow. (4) Contusion 4 cm x 2 cm on lower eye lid of right eye. Banne was unconscious. His pupils had dilated. Dr. Sharma felt that there was fracture of the skull bones. Therefore, he advised that his skull be X-rayed. He referred Banne to the District Hospital. ON the person of Bhoore following injuries were found : (1) Lacerated wound 2 cm x 1/2 cm x skin deep on left side face just in front of left pinna. (2) Contusion 6 cm x 2 cm on left side scapular region. 4. THE autopsy conducted on the dead body of Banne on 27-5-1976 at 4:50 P. M. revealed communited fracture of valut of skull in an area 31 cm x 21 cm on frontal both parietals, temporals and occipital bones. On account of this fracture there was extravasation of blood in the scalp and membranes had lacerated as well as the brain was contused. Dr. Misra expressed the opinion that Banne died of head injury. The case was investigated into by Virendra Kumar Singh S. I. (P. W. 5). 5. LILADHAR appellant showed complete ignorance about the occurrence. He pleaded alibi and asserted that on the date of occurrence he had carried water melons to the market of Bilari and that an octroi receipt was issued to him. He further asserted that one Triloki Singh had falsely implicated him in this case. 6. It may be indicated here that Ghasi, Tara and Jhanjan denied the allegations of the prosecution. Ghasi asserted that on the date of occurrence he was at his fields of water melons in his village. Tara and Jhanjan asserted that they had gone to join a Bhamdara in Sahayalpur, police station Dulari, district Moradabad. The defence counsel admitted the genuineness of the injury reports and the postmortem certificate therefore, they were admitted in evidence under Sec. 294 of the Code of Criminal Procedure, 1973. 7. THE prosecution relied on the testimony of Bhoore, Dilshad and Abdul Hamid (P. ws 1 to 3) to prove its case. The defence counsel admitted the genuineness of the injury reports and the postmortem certificate therefore, they were admitted in evidence under Sec. 294 of the Code of Criminal Procedure, 1973. 7. THE prosecution relied on the testimony of Bhoore, Dilshad and Abdul Hamid (P. ws 1 to 3) to prove its case. On the other side Ashok Kumar Saxena and Badam Giri (D. Ws. 1 and 2) were examined. Ashok Kumar Saxena is a clerk of Nagar Palika Biilari. He brought "Aayat Pustak" of Nagar Palika. Its receipt no. 014 is in the name of Liladhar s/o Jisukh. THE village of Liladhar is not decipherable. Badam Giri (D. W. 2) is resident of Sahayalpur (Sahapur). He stated that he had held a Bhandara in which Tara Chand and Jhanjan had come. 8. THE learned II Additional Sessions Judge Rampur believed the version of the prosecution. He entertained considerable doubt about the complicity of Ghasi, Tara and Jhanjan. He had toot the least doubt about the complicity of Liladhar appellant. He did not believe the plea of alibi of Liladhar. Therefore. Liladhar was convicted as mentioned above. The learned counsel for the parties were heard at length and the entire record was examined with their assistance. 9. THE appellant's counsel contended that the injury reports and the postmortem report could not be read in evidence under Sec. 294 Cr. P.C. This section lays down that where any document is filed before any Court by the prosecution or the accused, the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. This section further provides that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed. This provision is subject to a proviso that the Court may, in its discretion, require such signature to be proved. It clearly follows from this section that the formal proof of a document has been done away with. This provision is subject to a proviso that the Court may, in its discretion, require such signature to be proved. It clearly follows from this section that the formal proof of a document has been done away with. It means that the party concerned is not required to produce the maker of the document if the opposite party accepts or does not dispute the genuineness of any document and that the Court has discretion to take the document as a piece of evidence. 10. THE appellant's counsel referred to the case of Jagdeo Singh v. State, 1979 Cr. L.J. 236 (Allahabad): In this case the Division Bench expressed the opinion that a document, the genuineness of which was admitted could not be read in evidence as a substantive piece. THE Division Bench further expressed the opinion that a postmortem report by itself proved nothing because it was not a substantive piece of evidence. This view was considered by a Full Bench of this Court vide Cr. A. No. 192 of 1976 Siddiq v. State- 1981 AWC 80 . THE Full Bench decided the matter on 3-10-1980 and clearly held a view that if the genuineness of a document was admitted or not disputed by the opposite party, the Court could take into evidence. In other words the Full Bench overruled the decision in the case of Jagdeo Siragh cited just above. In view of the above it is not correct to urge that the injury reports and postmortem report could not be read in evidence by the trial Judge. Whenever, a doctor comes into the witness box he simply repeats the injuries etc. in his statement on oath and then pro/es his signatures on the injury reports. This formality has actually been done away with by sub-section (3) of Sec. 294. This sub-section clearly says that the document may be read in evidence in any inquiry, trial or other proceedings. This clearly means that the contents of the document can be read. The words of sub-section (3) are wholly unqualified and as such it is not correct to say that without producing the doctor, an injury report recorded by him, cannot be looked into. 11. THE appellant's counsel next pointed out that Liladhar was charged of the offences punishable under Secs. The words of sub-section (3) are wholly unqualified and as such it is not correct to say that without producing the doctor, an injury report recorded by him, cannot be looked into. 11. THE appellant's counsel next pointed out that Liladhar was charged of the offences punishable under Secs. 304 and 323 IPC with the aid of Sec. 34 and that as Ghasi, Tara and Jhanjan were acquitted, Liladhar could not appropriately be convicted under Secs. 304 and 323 IPC simpliciter. Reliance was placed on the case of Krishna Govind Patil v. State of Maharashtra, AIR 1963 Supreme Court 1413. In this case 11 persons were prosecuted for committing the murder of two persons. Out of them 8 accused including one Deoram Maruti Patil were acquitted, Vishwanath, uncle of Deorara helped him in the conduct of his defence. On this account 4 accused persons of this case felt malice against Vishwanath. On the date of occurrence (19-8-1960) Vishwanath along with Mahadeo Pandu Patil were going from their village to another village. THE four accused persons assaulted Vishwanath in the way and caused his death. THE trial judge acquitted all the 4 accused. On an appeal preferred by the State, the High Court dismissed the appeal against 3 accused persons but allowed the appeal against Krishna Govind Patil holding that he was one of the participants in the assault and there was no basis for his plea of private defence. Consequently, Krishna Govind Patil was convicted under Sec. 302 read with Sec. 34. It was contended before the Supreme Court that because 3 of the 4 named accused were acquitted of the charge under Sec. 302/34 IPC the 4th accused could not be convicted on the basis of constructive liability. THE Supreme Court observed : "THE High Court gave conflicting findings. While it acquitted accused 1, 3 and 4 under Sec. 302 read with Sec. 34 of the IPO, it convicted accused 2 under Sec. 302 read with Sec. 34, of the said code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence. THE effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2, accused 2 could not have acted conjointly with them." 12. THE learned counsel for the State urged that in the present case Liladhar had not been convicted by the trial Judge with the aid of Sec. 34, that the trial Judge had convicted Liladhar under Sees. 304 and 323 simpliciter because it found that Liladhar had caused fatal blow to Banne and had also assaulted Bhoore and that on this finding the trial Judge could convict Liladhar for assaulting Banne and Bhoore without the help of Sec. 34. He relied on the case of Baul v. State of U. P., AIR 1968 SC 728 . In this case Baul had instigated and his son Sadhai and one Ramdeo assaulted Ramdular. There were 2 fatal blows on the head of Ramdular. On account of these blows the skull was fractured extensively. There were 2 other blows on the head which caused simple injuries. Sadhai and Ramdeo both were convicted by the trial Judge. In appeal Ramdeo was acquitted by the High Court and the High Court converted the conviction of Sadhai from Sec. 302/34 to 302 simpliciter because it held that Sadhai was responsible for all the injuries caused to the deceased. It was contended before the Supreme Court that as Sadhai was charged of the commission of murder in furtherance of the common intention of 2 persons i.e. Sadhai and Ramdeo, Sadhai could not be convicted in view of the acquittal of Ramdeo. THE Supreme Court observed : "No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathis. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. THE Supreme Court observed : "No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathis. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove' which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which will bring his case within section 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under section 325 of the IPC but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that ware caused to the deceased. We convict him instead of section 302 for an offence under section 325 IPO." It may be indicated here that the case of Krishna Govind Patil relied on by the appellant's counsel does not lay down that if 3 accused persons are acquitted the 4th accused whose complicity is not doubted cannot be convicted for the offence (of causing injury) simpliciter. This case lays down that the 4th one cannot be convicted with the help of section 34. If in the present case the trial Judge concluded that Liladhar had actually assaulted Banne and Bhoore, he could undoubtedly convict Liladhar without the help of section 34 IPC. 13. This case lays down that the 4th one cannot be convicted with the help of section 34. If in the present case the trial Judge concluded that Liladhar had actually assaulted Banne and Bhoore, he could undoubtedly convict Liladhar without the help of section 34 IPC. 13. IN view of what has been discussed above, it is not correct to say that because Ghasi, Tara and Jhanjan wens acquitted Liladhar could not be convicted for the offence punishable under sections 304 and 323 IPC simpliciter. It is a matter of evidence whether Liladhar had actually assaulted Banne and Bhoore. 14. BEFORE dealing with the evidence of the prosecution witnesses whether Liladhar had actually assaulted Banne and Bhoore his plea of alibi may be disposed of. Liladhar has asserted that on the date of occurrence he had carried a cart of water melons to the market of Bilari and had obtained octroi-receipt (Rawanna). He did not produce the original octroi receipt given to him. He summoned Ashok Kumar Saxena, a clerk of Nagar Palika who produced counterfoils dated 25-5-76 and 26-5-76 Exs. Kha. 2 and Kha 1. These counter foils are not in his hand writing. In these counter fails name of Liladhar Jisukh appears in column no. 2. The name of the village of (this Liladhar is not decipherable. There is no evidence worth the name to connect Liladhar appellant with these counter foils. Liladhar did not examine any person of the market of Bilari to depose that Liladhar in fact, was present in the market of Bilari on the date of occurrence. The appellant did not examine the octroi clerk who actually wrote counter-foils Exs. Kha 2 and Kha 1. According to Ashok Kumar Saxena, on the dates in question one Munna was the octroi clerk. The appellant should have examined Munna who could depose that the counter-foils Exs. Kha 2 and Kha 1 related to the appellant. In this connection it will be noticed that the occurrence took place in broad day light and Liladhar appellant was known to the prosecution witnesses from before the date of occurrence. The prosecution witnesses could not have made any mistake as to his identity. Kha 2 and Kha 1 related to the appellant. In this connection it will be noticed that the occurrence took place in broad day light and Liladhar appellant was known to the prosecution witnesses from before the date of occurrence. The prosecution witnesses could not have made any mistake as to his identity. Taking into consideration the evidence of Ashok Kumar Saxena and the prosecution witnesses together, it cannot be held that Liladhar was in the market of Bilari on the date of occurrence and as such his plea of alibi was not substantiated. It is now to be considered whether Liladhar had assaulted Banne and Bhoore. Bhoore stated that the cart of Liladhar having water melons was driven by Liladhar, Ghasi, Jhanjan and Tara, that this cart came in the Rasta between his shop and that of Oilshad, that the cart dashed against a bicycle standing at the shop of Dilshad, that therefore, the bicycle fell upon Dilshad, that Dilshad asked Liladhar as to why he was not carefully driving the cart, that thereupon Liladhar gave 3-4 slaps to Dilshad, that then he and his brother Banne reached there and asked Liladhar as to why he had assaulted Dilshad, that Liladhar immediately gave a lathi blow to Banne who fell down on the ground, that thereafter Liladhar, Ghasi, Jhanjan and Tara assaulted him and Banne who was lying on the ground. In cross-examination he maintained that as soon as he asked Liladhar as to why he had slapped his nephew he immediately lifted a lathi from his cart and gave a severe blow to Banne and that on receiving the lathi blow Banne fell down an the ground. In the first information report Bhoore clearly mentioned that Liladhar gave the first lathi blow on the head of Banne on account of which he fell down. Thereafter he mentioned that Liladhar, Ghasi, Tara and Jhanjan assaulted him and Banne. 15. DILSHAD is son of Banne. He has fully corroborated the testimony of Bhoore. In cross-examination he maintained that on receiving first lathi blow on his head his father had fallen down. 16. ABDUL Hamid was having a shop in the market. He has deposed about the wordy quarrel between Banne and Bhoore on one side and the 4 accused persons on the other side. He has fully corroborated the testimony of Bhoore. In cross-examination he maintained that on receiving first lathi blow on his head his father had fallen down. 16. ABDUL Hamid was having a shop in the market. He has deposed about the wordy quarrel between Banne and Bhoore on one side and the 4 accused persons on the other side. He clearly stated that Banne asked Liladhar as to what he was doing and that then Liladhar assaulted Banne with a lathi on account of which Banne fell down. In cross-examination he stated that only one lathi blow fell on the head of Banne and that on receiving lathi blow on the head Banne had fallen down. It is thus evident that the prosecution fully proves that it was Liladhar who had given first lathi blow on the head of Banne. It is further evident that Liladhar had also assulted Bhoore. In (these circumstances Liladhar can easily be convicted for having assaulted Banne and Bhoore. 17. IT will be noticed that there was no enmity whatsoever between Bhoore and Dilshad with Liladhar from before the occurrence. Therefore, Bhoore and Dilshad will not falsely implicate the appellant. 18. THE question now is whether the appellant can be convicted under Sec. 304 IPC or he should be convicted under Sec. 325 IPC. It is apparent that the occurrence took place suddently and in the heat of the moment Liladhar picked up a lathi from his cart and gave its blow on the head of Banne. Unfortunately the blow fell very severe causing fractures of the skull bones and thereby bringing an end to the life of Banne. Taking into consideration the manner of occurrence it cannot be said that Liladhar had an intention to cause the death of Banne or to cause such injury as was likely to cause his death. THE lathi could fall on any other part of the body but in the present case it happened to fall on the head. In these circumstances it is apparent that the appellant is guilty of causing grievous hurt to Banne: and as such he can more appropriately be convicted under Sec. 325 IPC. THE lathi could fall on any other part of the body but in the present case it happened to fall on the head. In these circumstances it is apparent that the appellant is guilty of causing grievous hurt to Banne: and as such he can more appropriately be convicted under Sec. 325 IPC. The appellant's counsel has pointed out that Liladhar is an old man, that he has remained in jail for some months and that the sentence awarded by the Additional Sessions Judge be reduced to the period already undergone and some fine be imposed upon him. In May 1977 Liladhar gave out his age as 55 years. He will now be aged about 58 years. He cannot be considered so old as not to suffer imprisonment. In the present case his action was wholly unjustified. Dilshad was not in the wrong in asking him to drive his cart carefully. There was no justification for the appellant to have given slaps to Dilshad. Banne and Bhoore were justified in questioning the appellant for wrongly slapping Dilshad. The appellant was wholly unjustified in immediately picking up a lathi and causing a very severe blow on the head of Banne aged about 40 years. All the bones of the skull were fractured into pieces. In these circumstances the appellant does not deserve any leniency in the matter of sentence. He deserves to be severely punished. Therefore, in the present case the ends of justice require that for an offence under Sec. 325 IPO he must surfer five years R. 1. There does not appear any justification to impose fine. 19. IN the result, the appeal is partly dismissed and partly allowed in this way that the conviction and sentence of the appellant under Sec. 304 IPC is dropped and instead he is convicted under Sec. 325 IPC and sentenced to undergo R. I. for five years. The conviction and sentence of the appellant under Sec. 323 IPC are affirmed. The sentences of the imprisonment will run concurrently. 20. THE appellant is on bail. He shall be taken into custody to serve out the sentence. Appeal partly allowed.