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2003 DIGILAW 42 (ALL)

BABU LAL v. STATE OF U P

2003-01-08

KHEM KARAN, R.C.PANDEY

body2003
KHEM KARAN, J. This jail appeal, by sole appellant Babu Lal, is directed against his conviction under Section 302 of Indian Penal Code and the sentence of life imprisonment thereunder, recorded by the learned IV Addl. Sessions Judge, Sultanpur in S. T. No. 318 of 1996. 2. The occurrence is of 16-7-1996 at about 12. 00 in the noon. The deceased Ram Dular was son-in-law of First Informant Murli (now dead) and the appellant Babu Lal is son-in-law of Mani Ram, real brother of Murli. It has been hinted that the appellant was suspecting illicit sexual relationship between his wife and deceased. At the relevant time, Ram Dular was sleeping on a cot, in osra (outer space of the house) of Murli. The First Informant Murli also lay near to him, on a different cot. It is said that the appellant, who was also in the village on that day, reached there and gave knife blow to Ram Dular and on the alarm raised by him and his father-in-law Murli, Sri Ram (PW. 2), Goli (PW. 3) and others rushed to the spot and all of them succeeded in arresting the appellant, while attempting to run away. The weapon of offence, namely knife (Ext. 1) was recovered from him. 3. It is said that Murli got a FIR (Ext. Ka-1) prepared with the help of scribe Hirday Ram (PW. 1) and rushed to the police station Motigarpur, alongwith arrested appellant and the injured. It is claimed that this FIR was lodged with the police on the same day at 2. 10 p. m. , on the basis of which crime No. 133 of 1996, under Section 324 of IPC was registered and the appellant and the knife, recovered from him, were handed over to the police. The injured Ram Dular was sent to District Government Hospital, Sultanpur, where his injuries were examined at 4. 00 p. m. by Dr. Rajiv Srivastava, who found one incised wound on abdomen. The general condition of the injured was not good. He remained under treatment from 16-7-1996 to 21-7-1996, when he died at 5. 45 a. m. Dr. C. B. Tripathi, who performed autopsy on the dead body, reported three ante-mortem injuries and in his opinion, the cause of death was septicemia, resulting from ante- mortem injuries. The general condition of the injured was not good. He remained under treatment from 16-7-1996 to 21-7-1996, when he died at 5. 45 a. m. Dr. C. B. Tripathi, who performed autopsy on the dead body, reported three ante-mortem injuries and in his opinion, the cause of death was septicemia, resulting from ante- mortem injuries. Sub-Inspector Dhanpal Singh, who investigated the crime, found no blood stains at the alleged place of occurrence or on the cot, on which the victim Ram Dular was allegedly sleeping, at the time of assault. 4. The record received from the trial Court, reveals that the appellant was in jail throughout the investigation and the trial. Order dated 22-2-1999 of the learned Addl. Session Judge, speaks about the poverty of the appellant. As he had no means to engage a Counsel of his choice, so the learned Addl. Sessions Judge, appointed Sri Hari Narain Srivastava, Advocate, as amicus curiae, to defend him in the case. 5. The accused pleaded not guilty to the charge under Section 302 of IPC, so the prosecutor adduced oral as well as documentary evidence to prove the same. There was no evidence in defence. The First Informant, Murli could not be examined as he died, before the recording of prosecution evidence could commence. 6. The finding of guilt recorded by the learned Additional Sessions Judge, rests on the eye account, given by Sri Ram (PW. 2) and Goli (PW. 3 ). The rest of the witnesses including Hirday Ram (PW. 1), are formal witnesses, just to assist the Court, in appreciating the ocular version. 7. Here in appeal also, the appellant has been provided the services of Sri R. K. Dwivedi, Advocate, on State expenses. 8. We heard Sri R. K. Dwivedi, the learned amicus curiae appearing for the appellant, Sri Umesh Verma, the learned Counsel for the State and have also carefully perused the entire record received from the trial Court and the Case Dairy of the case. 9. The attack of Sri Dwivedi against FIR is fourfold. He says that there was inordinate delay in lodging the same. His second contention, in the context of FIR is that it was prepared at the police station in consultation with the police. 9. The attack of Sri Dwivedi against FIR is fourfold. He says that there was inordinate delay in lodging the same. His second contention, in the context of FIR is that it was prepared at the police station in consultation with the police. He had also tried to say that there is overwriting in the date of occurrence, in the body of FIR Sri Dwivedi also contends that since there was delay in submitting a report under Section 157 of the Code of Criminal Procedure, so a legitimate inference can be drawn that FIR was ante-dated and ante-timed. 10. There can be no debate on the point that in a criminal case and especially in a murder case, prompt FIR has its own value and any unexplained delay, often gives an occasion to suspect the genuineness of the version contained therein. The delay provides a chance for embellishment, improvements, concoction etc. [see Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501 ; L/n. K. Mehraj Singh v. State of U. P. , 1995 (1) JIC 457 (SC) : 1994 ACC 437 (SC); Satya Pal Sharma v. State of U. P. , 1988 ACC 393 and Sita Ram and another v. State of U. P. , 1989 JIC 392 (All) : 1989 ACC 321]. But it is always a question of fact, whether there was delay, if so, whether the same stands explained or unexplained and even if the delay, if any, is not explained, whether the prosecution evidence deserves to be disbelieved on that ground alone. It all depends on the facts and circumstances of a particular case, as to whether unexplained delay is sufficient enough to doubt the prosecution case or to disbelieve the prosecution evidence. 11. Written FIR (Ext. Ka. 1) was allegedly lodged on the same day at 2. 10 p. m. , on the basis of which, chick FIR (Ext. Ka-3) was prepared by the then Head Moharrir, Munni Lal Sharma (PW. 5 ). The distance between the village of occurrence and the police station was 2 kms. In case, it is accepted that FIR was lodged at the time alleged by prosecution, it will be difficult to say that there was any delay. But Sri Dwivedi says that there is overwriting on the date of occurrence which we have not been able to find either in written FIR Ext. In case, it is accepted that FIR was lodged at the time alleged by prosecution, it will be difficult to say that there was any delay. But Sri Dwivedi says that there is overwriting on the date of occurrence which we have not been able to find either in written FIR Ext. Ka-1 or in Chik FIR Ext. Ka- 3. It has also been contended by Sri Dwivedi that since a report under Section 157 of the Code was not promptly sent to the Magistrate concerned, so it can be said that FIR was not in existence on that date. Reliance has been placed on Ishwar Singh v. State of U. P. , AIR 1976 SC 2423 and Om Prakash v. State, AIR 1974 SC 1983 : 1974 Cr. L. J. 1383. 12. It is true that the prosecution has not attempted to prove as to when this report under Section 157 of the Code was forwarded to the Magistrate concerned. A bare perusal of Chick FIR Ext-Ka.-3 reveals that it was seen by the Magistrate concerned on 19-7- 1996. Even if it is assumed that there was some delay in sending the report under Section 157 of the Code, no inference can necessarily be drawn that FIR was ante-dated on ante-timed. [see Mahavir v. State, 1979 Cr. L. J. 1159 (All); Babu Ram v. State (Delhi Admn.), 1998 (1) JIC 471 (SC) : 1998 SC Cr. R 733 and All China Appa and others v. State of Andhra Pradesh, 2003 (1) JIC 101 (SC) : JT 2002 (8) SC 167]. Hirday Ram (PW. 1) appears to be wholly independent and reliable witness. There is nothing on record to say as to why he would depose against the appellant. Further more, it is never the case that Murli and his brother Mani Ram were not on good terms. The medical examination of Ram Dular took place on the same day at 4 p. m. The First Informant and others would not have wasted time in taking the injured to doctor. If Hirday Ram (PW. 1) says that FIR Ext. Ka-1 was prepared by him in the village on the dictation of Murli, soon after the occurrence and if other evidence on record, says that the same was lodged by Murli, on the same day at 2. If Hirday Ram (PW. 1) says that FIR Ext. Ka-1 was prepared by him in the village on the dictation of Murli, soon after the occurrence and if other evidence on record, says that the same was lodged by Murli, on the same day at 2. 10 p. m. , it is difficult to disbelieve the same, merely on the ground that report under Section 157 of the Code, is not proved to have been sent forthwith. 13. At one place, Goli (PW. 3) has stated that Hirday Ram had written FIR at Thana and this has encouraged Sri Dwivedi to argue that FIR was lodged after consultation with police. We have carefully perused the testimony of Goli (PW. 3) and we think that it was due to slip of tongue that Goli said so and he corrected the same in the same breath. There is no basis for saying that FIR Ext. Ka-1 was prepared after consultation with the police. 14. Thus, we find that Murli lodged FIR Ext. Ka-1, on the same date, at 2. 10 p. m. on the basis of which, Chik FIR Ext. Ka-3 was prepared and necessary entries were made in the General Diary by Head Moharrir, Munni Lal Sharma (PW. 5 ). It is not correct to say that FIR Ext. Ka-1 was ante-dated or ante- timed, or was prepared at Thana, in consultation with the police. We also find that it was prompt FIR and there was no delay. 15. It is next argued by Sri Dwivedi that no motive of the crime is mentioned in FIR and the subsequent introduction of the story that the appellant was suspecting unfair relationship between his wife and the appellant, is nothing but an afterthought. Firstly, the delicate relationship between Murli and the wife of appellant, must have persuaded Murli not to make mention of the motive. Any mention of such fact, must have defamed the daughter of his real brother. Secondly, evidence on the point of motive, cannot be impeached by what has or has not been said in FIR, lodged by another person. Thirdly, in a case like this where the prosecution claims direct account of the incident, motive pales into insignificance. The direct evidence of Shri Ram (PW. 2) and Goli (PW. 3) cannot be rejected, merely on the ground that motive was not mentioned in FIR Ext. Ka. 1. 16. Thirdly, in a case like this where the prosecution claims direct account of the incident, motive pales into insignificance. The direct evidence of Shri Ram (PW. 2) and Goli (PW. 3) cannot be rejected, merely on the ground that motive was not mentioned in FIR Ext. Ka. 1. 16. The next submission of Sri Dwivedi that absence of blood on the spot or on the cot, on which Ram Dular was sleeping or on the cot by which he was taken to the police station, creates a reasonable doubt as to whether the occurrence took place at the place and in the manner alleged. He argues that absence of blood on the spot or on the cot is sufficient enough to reject the prosecution story and in this connection he has referred to Laxmi Singh and others v. State of Bihar, AIR 1976 SC 2223 and Nawazis Ali and others v. State of U. P. , 2000 (2) JIC 565 (All) : 2000 (2) ACC 181. 17. It is clearly stated by I. O. Dhanpal Singh on page 8, that he found no blood on the cot on which the injured was allegedly sleeping at the time of assault. He further stated that he found no blood on the ground beneath or near the said cot. He further stated on page 9 that no blood was found in front of the house of Murli. The question is whether the absence of blood on the cot or on the ground near or beneath the cot or in front of the house of Murli, is a circumstance which creates doubt about the place of occurrence and the manner of assault. 18. It is unfortunate that no query was made from the two alleged eye-witnesses as to whether the blood has oozed out from the injury and had fallen on the cot or on the ground. It is further to be noted that neither the prosecution nor the defence tried to know from these witnesses or from the Investigating Officer as to whether cot was having any bedding also and whether that bedding was intact when the police visited the spot on that day. No specific question was put to the Doctor as to whether possibility of sufficient blood oozing out from the wound, was there or internal bleeding was more probable. 19. No specific question was put to the Doctor as to whether possibility of sufficient blood oozing out from the wound, was there or internal bleeding was more probable. 19. Even if we assume that blood must have oozed out from the wound and must have fallen on the cot or on the ground, we should not forget the circumstance that a number of villagers had come to the place of occurrence and it was also natural. Whenever such an occurrence takes place in the village, the villagers normally come to the spot in a large number. The possibility of the bloodstains, having been removed from the ground by the footsteps of such villagers, cannot be ruled out. If the cot was having no bedding, blood would have fallen down on the ground and the bloodstains were likely to be removed by the footsteps. So, we are of the view that absence of blood stains on the cot or on the ground is not fatal to the prosecution case. 20. The absence of report from chemical examiner or the serologist does not matter in this case because no blood-stained earth was taken or no part of the cot having blood-stains was allegedly taken. 21. Sri Dwivedi also contends that the statement of PWs. 2 and 3 that the appellant was over-powered and knife was snatched from him, is not believable at all. He says that had the knife been snatched, some of the witnesses engaged in the task of snatching the knife from the appellant, ought to have received some injuries and had the appellant been arrested soon after the incident in the manner alleged, he would have been beaten bitterly. We are of the view that evidence of the two eye- witnesses cannot be rejected on such hypothetical points. It was not necessary for the witnesses to receive injuries in the process of snatching of the knife and it was also not necessary for the villagers to beat the appellant bitterly. After all, the appellant was son-in-law of the real brother of Murli. He was not alien so as to be given a thrashing by the public. 22. Sri Dwivedi has argued that evidence of Goli PW. After all, the appellant was son-in-law of the real brother of Murli. He was not alien so as to be given a thrashing by the public. 22. Sri Dwivedi has argued that evidence of Goli PW. 3, on the point that Ram Dular raised alarm to the effect that he was being attacked by the present appellant is not believable because the same does not find mention in the FIR and because the same is not supported by Shriram PW. 2. In other words, he says that the alleged oral dying declaration of Ram Dular should not have been accepted by the trial Judge. He has referred to Ramesh Prasad v. State of Bihar, 2000 (1) JIC 41 (SC) : 2000 Lucknow Criminal Reports 32 (SC ). 23. It is well settled prosecution of law as held in Ajmer Singh v. State of Punjab, 1976 SCC (Crl) 140, that the testimony of a witness cannot be impeached by what is stated in the FIR, lodged by another person. In other words, the statement of Goli that he heard Ram Dular crying that he was being assaulted by the appellant, cannot be disbelieved on the ground that there is no specific mention of this dying declaration in the FIR Ext. Ka-1, lodged by Murli. Secondly, the evidence of Goli on this point can also not be discarded on the ground that other witness Sri Ram PW. 2 has not stated the same in so many words. 24. Shriram PW. 2 states in his examination-in-chief that at the relevant time he and Jhapsu were sitting in a near by grove when he heard the cries of Ram Dular that he was being attacked by knife. Goli PW. 3 however, states that while he, his brother Moti Lal and Hira Lal were sitting under a Neem tree, in front of his door that he heard the cries from the side of the house of Murli and Ram Dular was saying that Babu Lal was giving him knife blows. 25. No doubt, the nature of the specific cries or alarm of Ram Dular do not find place in the FIR Ext. Ka. 1, lodged by Murli, but in the circumstances of the case we are not prepared to reject the evidence of Goli PW. 25. No doubt, the nature of the specific cries or alarm of Ram Dular do not find place in the FIR Ext. Ka. 1, lodged by Murli, but in the circumstances of the case we are not prepared to reject the evidence of Goli PW. 3 on the point that Ram Dular was raising alarm to the effect that he was being attacked with knife by the appellant. The reason is that both the witnesses stated about raising of the alarm by the injured Ram Dular. Goli is specific on the point that alarm was also raised to the effect that the appellant was giving knife blows to Ram Dular. Various persons react differently in similar circumstances. It is just possible that Sriram might not have reproduced exactly what was the actual nature and effect of the alarm raised by the injured, but he does not say that Ram Dular did not raise any alarm that he was being attacked with knife. After having gone through the evidence of Goli PW. 3 on the point of oral dying declaration, we are of the view that his evidence is trustworthy and free from embellishment or infirmity. 26. The circumstances that dying declaration of Ram Dular was not recorded by any Magistrate though he survived for six days, does not help the defence for the simple reason that Ram Dular was in a critical condition as stated by the Investigating Officer. The submission of Sri Dwivedi that even injured person can speak does not impress us at all. He has referred to Akbar and others v. State of U. P. , 1990 ACC 62 (Hindi version) (Allahabad), so as to highlight his point of argument. Each case has to be seen in the light of its own facts and circumstances. The facts in hand do not provide a good ground for argument that injured Ram Dular was in a position to give the statement. The evidence is there on record to the effect that the injured was not in a position to give statement on 17-7-1996 when the Investigating Officer visited the hospital with a view to record his statement. 27. Sri Dwivedi has also contended that there are various contradictions and inconsistencies in the evidence of the PWs. 2 and 3. He says that according to Shriram PW. 27. Sri Dwivedi has also contended that there are various contradictions and inconsistencies in the evidence of the PWs. 2 and 3. He says that according to Shriram PW. 2 he worked in the field upto 12 in the noon and thereafter went to the grove and spent five or ten minutes in the grove that the occurrence took place. Sri Dwivedi submits that if the evidence of Shriram on this point is to be believed the time of occurrence comes to 1 p. m. while the case of the prosecution is that the occurrence took place at 12 in the noon. He has also submitted that it was not natural on the part of Shriram to sit in the grove and talk to his brother Jhapsu, who was admittedly seperate to him. 28. The learned Counsel has also submitted that according to Shriram, Babu Lal was arrested at a distance of 15 paces from osara, whereas according to Goli PW-3, he was arrested at some other distance. He has also tried to say that the two witnesses are not unanimous on the point as to in what manner the appellant was arrested and the knife taken from him. He says that both the witnesses are contradicting each other on the point whether Ram Dular had come on the same day or a day before. He says that both are also contradicting each other as regards the length of the blade of the knife. 29. In view of the law laid down in series of case (see Bankim Chander v. Malagiri, AIR 1919, Privy Council 157; Ugar Ahir v. State of Bihar, AIR 1965 SC 277 and Gangadhar Bahera v. State of Orissa, Judgment Today 2002 (8) 135) only material contradictions have to be seen and their effect considered. 30. In State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390 , the Apex Court has said that normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time due to mental disposition such as shock and horror at the time of occurrence and those are always there howsoever honest and truthful witness may be and material discrepancies are those which are not normal and not expected of a normal person. It has also been observed that the Courts have to decide the category of the discrepancies and while normal discrepancies do not eorrode the credibility of the parties case, material discrepancies do so. The Apex Court has reiterated the same in Krishna Moti and others v. State of Bihar, Judgment Today, 2002 (4) SC 186. 31. In Leela Ram v. State of Haryana , 1999 (2) JIC 632 (SC) : 2000 SCC (Crl.) 222, it has been said that there are bound to be some discrepancies between narration of different witnesses, when they speak on details and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye-witnesses unbelievable. So minor and trivial discrepancies ought not to obliterate and otherwise acceptable evidence because different persons react differently in the same situation. 32. Shriram and Goli PWs-2 and 3 are illiterate persons as they have conceded in their evidence. They come from rural area. There is nothing on record to suggest that they ever appeared as witnesses or party in any case, earlier to their examination in the case. It would be appropriate to recall the following observations of the Apex Court made in Shivaji Saheb Rao Bobade v. State of Maharashtra, AIR 1973 SC 2622 : "the sluggish chronometric sense of the country-side community in India is notorious, since time is hardly of the essence of their slow life; and urban folk make mistakes about time. When no particular reason to observe and remember the hour of minor event like taking of morning meal existed 10. 30 a. m. could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal. . . " 33. So any discrepancy in their evidence on the point as to who reached first, amongst the witnesses or who caught which limb of the appellant or who took knife from his hand or for how long one or the other was sitting in a grove or under a Neem tree before the occurrence took place or at what distance the appellant was caught etc. , are natural discrepancies and it is difficult to say that the same can be characterized as martial contradictions or material discrepancies. We should not forget that there is nothing against these two witnesses to show as to why they would speak a lie so as to falsely implicate the present appellant. 34. There is no suggestion that the occurrence took place outside the village abadi or at some other point of time. If the incident took place in Osara of the First Informant Murli at about 12 in the day, it is but natural that persons like Shriram and Goli would rush to the spot, on hearing the cries. The circumstances that Babu Lal was caught read handed alongwith the knife and was taken to the police station along with the injured, cannot be disbelieved. After all, why villagers would falsely implicate the appellant in the murder of Ram Dular, Murli would have been the last person to falsely implicate son-in- law of his own real brother. The trial Judge has believed these two witnesses and we think that no different view can be taken. 35. We are of the view that the two eye-witnesses are unanimous on all material points i. e. Ram Dular was sleeping in osara of Murli at about 12 in the noon; that there were cots of Ram Dular and his father- in-law Murli, that they and others rushed and saw Babu Ram coming out of osara with a knife, that they caught him alongwith the knife, the Ram Dular was found injured in osara. 36. The argument of Sri Dwivedi that the accused had no benefit of cross-examining Murli because of his death, should enure to the benefit of the appellant in view of the law laid down in Ajit Singh v. State, 2000 (1) JIC 507 (All) : 2000 (1) ACC 628. We are of the view that the death of Murli before the trial commenced, is not a circumstance to affect the credibility of the witnesses Shriram and Goli. The case cited by Sri Dwivedi had its own facts and circumstances. 37. Sri Dwivedi has also tried to say that according to Dr. Rajiv Srivastava PW-4, the injury found on the person of the victim, was possible by sharp pointed weapon like knife, but injury report Ext. Ka-2 reveals that it was not a punctured or stab wound. The case cited by Sri Dwivedi had its own facts and circumstances. 37. Sri Dwivedi has also tried to say that according to Dr. Rajiv Srivastava PW-4, the injury found on the person of the victim, was possible by sharp pointed weapon like knife, but injury report Ext. Ka-2 reveals that it was not a punctured or stab wound. He says that injury might not have been caused with a knife. We are of the view that there is no contradiction in between medical and oral evidence. It is never the statement of Dr. Rajiv Srivastava or Dr. B. N. Nigam that injuries were not possible with a knife. It all depends upon the manner of using the knife or Chhuree, as to whether it would cause incised wound or punctured wounds or stab wound. No such attempt was made by the defence Counsel to know from the witnesses as to in what manner the knife was used and perhaps they were not in aposition to tell the same as they reached the place at the moment the appellant was trying to run away, after causing injuries to Ram Dular. 38. It is true that no finding of guilt can be recorded on the basis of the statement under Section 161 as that statement is not admissible in evidence and is not a substantive piece of evidence. (See Baldev Singh v. State of Punjab, 1991 ACC 87 (SC) ). The trial Judge has referred to the statement of Murli recorded under Section 161 and perhaps it has prompted Sri Dwivedi to argue that no finding of guilt can be recorded on the basis of the statement under Section 161. The trial Judge ought not have referred to the statements of Murli and his wife, recorded under Section 161. This has been done in the context of illicit relations between Ram Dular and the wife of the appellant. We have already stated above that in such a case where the prosecution claims to have direct evidence on the point of assault, motive is irrelevant. So it cannot be said that the finding of guilt is based on the statement recorded under Section 161 of Cr. P. C. 39. So, the learned Additional Sessions Judge was right in concluding that the appellant intentionally caused the knife injury on the abdomen of Ram Dular, on 16-7-1996 at about 12. So it cannot be said that the finding of guilt is based on the statement recorded under Section 161 of Cr. P. C. 39. So, the learned Additional Sessions Judge was right in concluding that the appellant intentionally caused the knife injury on the abdomen of Ram Dular, on 16-7-1996 at about 12. 00 in the noon, while the latter was lying on a cot, in Osara of his father-in-law, Murli. The question is as to what offence, if any, the appellant committed. 40. Dr. Rajiv Srivastava (PW-4) found only one injury (incised wound) on the abdomen of the victim. Dr. C. B. N. Tripathi (PW-6), who conducted post-mortem examination, found three ante-mortem injuries. He has indicated the site of these injuries, in his post-mortem report Ext. Ka-6. One main injury was stitched wound. Although Dr. Tripathi, has stated nothing in his deposition, whether the patient was operated and whether two side healed injuries were surgical injuries, but it transpires, from the case diary that Ram Dular was operated and side healed injuries were surgical one. As the patient remained under treatment for 5-6 days and main injury was stitched one, so it can be safely said that there was surgical operation of the injury, caused earlier on 16-7-1996 at about 12 in the noon. A perusal of the evidence of Sri Ram (PW-2) and Goli (PW-3) makes it clear that none of them could see the actual assault and when they reached, appellant was seen running out with a knife and Ram Dular was found injured on the cot. So, there was only one knife injury on the person of Ram Dular, as found by Dr. Srivastava (PW- 4 ). 41. Dr. Tripathi (PW-6) has stated that cause of the death was septicemia, resulting from ante-mortem injuries. Both the lungs were found flooded with pus. So was the abdomen, having clots of blood. It can be said that some factors, other than the injury caused by the appellant, were responsible for the death or which accelerated the same. While saying so, we are conscious of Explanation-II to Section 299 of the Indian Penal Code. We are of the view that direct relationship in between the act of the appellant and the death is not established, beyond all reasonable doubts, so he cannot be held responsible for death. Since the injury caused by the appellant and noted by Dr. While saying so, we are conscious of Explanation-II to Section 299 of the Indian Penal Code. We are of the view that direct relationship in between the act of the appellant and the death is not established, beyond all reasonable doubts, so he cannot be held responsible for death. Since the injury caused by the appellant and noted by Dr. Srivastava (PW-4) endangered the life of Ram Dular and was therefore grievous, under Clause eightly of 320 of the Indian Penal Code and since it was voluntarily caused by knife, an instrument of stabbing or cutting, so according to us, the act of the appellant is punishable under Section 326 of the Indian Penal Code. His conviction under Section 302 IPC is wrong. 42. In the result this appeal is partly allowed. We acquit the appellant Babu Lal for the offence punishable under Section 302 of IPC and instead find him guilty for the offence punishable under Section 326 of IPC. 43. As regards the sentence under Section 326 of IPC we find that the appellant has all along been in Jail, since July, 1996 and has already spent more than 6-1/2 years in Jail. The extreme poverty, referred to in the order dated 22-2-1999 of the trial Judge, perhaps prevented him from making all genuine efforts to get out on bail and also to engage a Counsel of his choice. Perhaps, he could not tolerate the indiscrete conduct of Ram Dular. So, considering all the facts and circumstances of the case, we take the view that no further incarceration in Jail is needed and the period already undergone, will meet the ends of justice. 44. Accordingly appellant is hereby convicted under Section 326 of IPC and sentenced to the period already undergone. If the fine as imposed by the trial Judge, has been deposited or recovered, the same, shall be refunded to the appellant. The appellant is in Jail. He shall be released forthwith, if not wanted in any other case. 45. We appreciate the pains, taken by Sri Dwivedi in preparing and arguing the appeal and in rendering assistance to us. Let the lower Court record be sent to it, together with the copy of this judgment, for necessary action and compliance. Appeal partly allowed. .