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2005 DIGILAW 335 (UTT)

Gopal Singh v. State

2005-08-08

IRSHAD HUSSAIN, PRAFULLA C.PANT

body2005
Judgement Irshad Hussain. J. Accused Gopal Singh preferred this appeal from his conviction and sentence to imprisonment for life under Section 302 I.P.C. per judgment dated 27-7-1987 passed by the then Sessions Judge Almora in session trial No. 30 of 1987. 2. The prosecution case as emerged from the F.I.R. and the evidence of the prosecution was as under :- The accused Gopal Singh was residing in village Toli, Patwari Circle Thatmatena of District Almora with his wife Smt. Parwati Devi. He owned a small plot of land in the village. Jaint Singh deceased was also resident of this village and he was forest chaukidar of the village. According to the prosecution there was some dispute between them over boundary pillars of the field. On 13-1-1987 at about 4-5 P.M. Jaint Singh while on his patroi duty as chaukidar happened to reach near the house of accused Gopal.singh and finding the accused there, warned him not to remove the boundary pillars of the field. At that time Jaint Singh's wife Smt. Devki Devi was following him while collecting pine-leaves. Accused Gopal Singh on being warned got annoyed and pushed Jaint Singh from the road resulting which Jaint Singh fell down in the field. Smt. Parwati Devi wife of the accused Gopal Singh was also there and she gave Lathi blow to Jaint Singh. Accused Gopal Singh and his wife then pelted stones on Jaint Singh who sustained injuries on his person. Jaint Singh's wife raised an alarm whereby co-villagers Gopal Singh and Gopal Ram also reached there and rebuked the accused and his wife. Injured Jaint Singh was thereafter brought to the house of his parents, by his wife, who were then residing in a separate house in the village. Jaint Singh's wife also told about the incident to other villagers namely Sher Singh, Man Singh, Bhupal Singh and others and with their help injured Jaint Singh was taken to hospital at Lambgarha in a Doli Jaint Singh was given first aid there by the Pharmacist who was there in the hospital in the evening of 13-1-1987. After first aid injured Jaint Singh returned to his house but he kept crying due to injuries and remained restless. His condition further deteriorated and next day on 14-1-1987 he was again taken to the hospital by the villagers and his wife. He was examined by Dr. After first aid injured Jaint Singh returned to his house but he kept crying due to injuries and remained restless. His condition further deteriorated and next day on 14-1-1987 he was again taken to the hospital by the villagers and his wife. He was examined by Dr. K. Chandra (P. W.8) at about 4.30 P.M. The condition of Jaint Singh was serious and the medical officer advised him to be taken to District Hospital, Almora for better treatment. Injured Jaint Singh however succumbed to his injuries while he was being taken from Lambgarha and his dead body was then brought to Jalana near veterinary hospital. Since it was night hours and the circle patwari could not be located, the dead body was kept there in Jalana throughout the night. 3. On the next day, that is, 15-1-1987, Smt. Devki Devi got scribed the written report, Ext. Ka.1 and delivered it to the circle patwari at 8 P.M. and on its basis F.I.R., Ext.Ka.3 was drawn by the circle patwari. A case under Section 302 I.P.C. was registered against the accused Gopal Singh and his wife Smt. Parwati Devi. Investigation of the case was taken up by circle patwari Bhupal Singh Bisht, who held inquest on the dead body and prepared the inquest report, Ext. KaA and relevant documents of the inquest. He then packed and sealed the dead body of Jaint Singh and sent it for post mortem which was conducted by Dr. J.C. Durgapal at 2 P.M. on 16-1-1987. The Investigating Officer completed other formalities of the investigation and also recorded the statements of the witnesses. On 18-1-1987 the investigation was entrusted to circle patwari Ramesh Chandra Tiwari who had completed the investigation and submitted charge sheet, Ext.Ka.20 against the above accused and his wife on 5-4-1987. II 4. Accused Gopal Singh and his wife Smt. Parwati Devi were committed to the court of Sessions on 5-5-1987 by the then C.J.M. Almora and charge under Section 302 read with Section 34 I.P.C. was framed against both of them on 28-51987 by the Sessions Judge, Almora. The prosecution in order to bring home guilt to the accused examined eight witnesses. They are P. W.1, Smt., Devki Devi an eye witness of the incident. P.W.2, Gopal Singh and P.W.S Gopal Ram were also examined as eye witnesses, but they did not support the prosecution case and were declared hostile. The prosecution in order to bring home guilt to the accused examined eight witnesses. They are P. W.1, Smt., Devki Devi an eye witness of the incident. P.W.2, Gopal Singh and P.W.S Gopal Ram were also examined as eye witnesses, but they did not support the prosecution case and were declared hostile. P. WA, Bhupal Singh and P. W.6, Sher Singh were informed about the incident by the daughter of Jaint Singh deceased and they assisted in taking Jaint Singh to Lambgarha hospital for medical aid and treatment. P. W.8, Dr. K. Chandra medically examined Jaint Singh on 14-1-1987 at 4.30 P.M. in Lambgarha hospital. He proved the injury report, Ext.Ka.21. P.W.7, Bhupal Singh Bisht the circle patwari investigated the case as stated above. He proved relevant documents pertaining to the various steps taken during the investigation and also the charge sheet which was filed by the second Investigating Officer. P.W.S, Dr. J.C. Durgapal conducted post mortem examination of the dead body of Jaint Singh deceased at 2 P.M. on 16-1-1987 and prepared post mortem report, Ext.Ka.2. The following ante-mortem injuries were detected on the person of the deceased :- 1- Contusion 13cm x 8cm on the left side of chest, 2.S cm lateral to mid line and 2 cm below the iower margin of clavicle (chest stamped by leucoplast). . 2 - Stitched wound 5cm long on the left side of forehead, 2cm above the left eye brow in the middle. 3- Abrasion 3cm x lcm, over the right ring finger in lateral aspect. 4- Contusion 4cm x 3cm over the left side of neck. On internal examination subcutaneous haematoma under injury No.2 was found though the scalp bones were normal. Pleura was congested and under injury No.1, 3'" and 4th ribs were found fractured left lung was also found ruptured left chamber of the heart was empty and whereas the right chamber was full of blood. In the opinion of the medical officer the death was caused due to shock and haemorrhage as a result of ante-mortem injuries about two days ago and probably at about 7 P.M. on 14-1-1987. 5. This all was the evidence of the prosecution. The accused pleaded not guilty and claimed trial. Accused Gopal Singh stated that the villagers told him that Jaint Singh deceased had fallen from a tree. In defence written information sent by Dr. 5. This all was the evidence of the prosecution. The accused pleaded not guilty and claimed trial. Accused Gopal Singh stated that the villagers told him that Jaint Singh deceased had fallen from a tree. In defence written information sent by Dr. K. Chandra to circle patwari lambgarha (Almora) on 14-1-1987 from the hospital about Jaint Singh examined by him in the hospital at 4.30 P.M. on that day was proved and was got exhibited as Ext. Kha.2. 6. learned Sessions Judge on appraisal of the evidence on' record accepted the evidence of Smt. Devki Devi (P.W.l) as reliable and sufficient towards the proof of the prosecution allegation as against the accused Gopal Singh, particularly in view of witness Gopal Singh (P.W.2) stating that injured Jaint Singh told him that accused Gopal Singh alone had assaulted him and in view thereof the accused Gopal Singh alone was held guilty and convicted as aforesaid whereas his wife Smt. Parwati Devi was acquitted of the charge levelled against her. 7. learned counsel appearing on behalf of the accused submitted that the learned Sessions Judge fell in error in accepting the evidence of Smt. Devki Devi because her evidence was not wholly reliable and the same was not even corroborated by the belated F.I.R. and also the medical evidence in the case and therefore the accused Gopal Singh was also not liable to be held guilty of committing the murder of Jaint Singh. Ultimately it was argued that at the most it was a case of culpable homicide not amounting to murder and the accused could have only been convicted under Section 304 Part-II of the Indian Penal Code. As against this, learned G.A. made submissions to support the propriety of the findings recorded by the learned Sessions Judge and urged that the evidence of Smt. Devki Devi was wholly reliable and the same was also supported by the evidence of witness Gopal Singh, who though turned hostile, but at the same time affirmed that injured Jaint Singh told him that he was assaulted by accused Gopal Singh and that in the totality of the circumstances of the case it was established that this accused had intended to commit the murder of Jaint Singh deceased. 8. 8. We have mainly the evidence of Smt. Devki Devi (P.W.l) regarding the occurrence and the involvement of the accused in the commission of the crime because out of the two other witnesses of the fact only Gopal Singh (P.W.2) partly corroborated her evidence and whereas witness Gopal Ram (P.W.3) said nothing about the involvement of the accused in the commission of the crime. The evidence of Smt. Devki Devi pertain to the facts of the occurrence and also the manner in which her husband was assaulted by accused. The case of the prosecution with reference to her evidence was mentioned in the earlier part of the judgment. Learned counsel for the appellant argued that when the learned Sessions Judge has not found her evidence reliable in regard to the involvement of Smt. Parwati Devi in the assault on her husband the learned Sessions Judge was not justified to believe the evidence of the witness in regard to the role assigned to accused Gopal Singh and that the approach of the learned Sessions Judge was thus not legally justified. Learned counsel thus urged that the entire evidence of this witness was liable to be rejected and no part of it could have been taken to establish the allegation of fatal assault against the accused Gopal Singh. We see no merit in this argument because the principle 'Falsus in Uno, Falsus in Omnibus' is not applicable in India as the principle is only a rule of caution. Even if no reliance is placed on any portion of the evidence of a witness the remaining part of the evidence if inspires confidence and is sufficient to prove the guilt of the accused, conviction can be based on such evidence of the witness. It is well settled that the court has to separate the chaff from grain and to find in each case as to what extent the evidence is acceptable. Having carefully considered the evidence of Smt. Devki Devi we may state, at the out-set, that the learned Sessions Judge has carefully analyzed the evidence of this witness and in our view has rightly placed reliance on her evidence in regard to the essential particulars of the occurrence and Involvement of the accused Gopal Singh in the commission of the crime. 9. 9. The reason being that the evidence of Smt. Devki Devi on being considered and judged by the yardstick of probabilities and its intrinsic worth appear clear, cogent and unimpeachable as regards the time and place of the occurrence, the manner In which the incident took place and the author of the assault which proved fatal for her husband Jaint Singh, who succumbed, to the injuries sustained, at about 7 P.M. on 14-1-1987 while in the process of being shifted from Lambgarha hospital after medical examination and medical aid provided there by Dr. K. Chandra (P.W.8). 10. An attempt was made to show that there was no occasion for Smt. Devki Devi to be there at the scene of the occurrence while her husband Jaint Singh was on patrol in the jungle in connection with his duty as chaukidar and then happened to be near the house of accused Gopal Singh. Smt. Devki Devi categorically stated that she was then following her husband while collecting pine-leaves which are used to spread on the floor of the cattle enclosure. There is nothing in her cross-examination as may in any way dispute her claim in that regard and therefore she was the most natural and probable witness of the occurrence and was thus the right person to have stated about the incident in which her husband was assaulted. She made definite statement that accused Gopal Singh got angry when her husband told the accused not to dismantle or remove boundary pillar of the field and who then gave a push to her husband resulting which her husband fell down from the road and thereafter stones were pelted on her husband by the accused assisted by accused's wife. No doubt she made some embellishment In her evidence while alleging that accused's wife had bitten by teeth the finger of her husband Jaint Singh and also wielded a log of wood but this portion could not have been taken to reject the entire evidence of the witness and in our view the learned counsel for the accused was not justified to make a mountain out of the mole hill by referring to this embellishment. 11. Learned counsel for the accused then drew attention to the another part of the statement in the cross-examination of the witness. 11. Learned counsel for the accused then drew attention to the another part of the statement in the cross-examination of the witness. She stated that her husband was saying that accused Gopal Singh assisted by his wife assaulted him and that he should be taken to the hospital otherwise he is going to die. Referring to this learned counsel submitted that the evidence of the witness indicate that she was no-where near the scene of the incident and that she named the accused and his wife as the assailants only because her husband had told her so. We see no substance in this argument also because when the injured Jaint Singh was claiming like this it would not mean that the Incident was not seen by his wife herself. Jaint Singh was made to fight for his life for about two days on account of the Injuries and out of pain and suffering he could have reported that he was assaulted by Gopal Singh and his wife and was thus clamouring for medical aid to be provided to him. It was the natural conduct expected of such an injured person and when the witness said about it she was definitely referring to the post incident conduct of her husband injured Jaint Singh. In other words the evidence of the witness could not be assailed by referring to the above assertion appearing in her evidence. 12. The witness was also cross-examined in regard to the actual blows of pelted stones received and also number of Lathi blows sustained by her husband in the incident. Smt. Devki Devi stated that her husband was assaulted by log of wood on the upper ridge of the road and thereafter was pushed downwards where-after five or six lathi blows were given by the accused Gopal Singh and stones were also pelted by the accused on her husband. Such number of injuries were however not found to have been sustained by the victim as is evident from the medical evidence referred above. No doubt there was some exaggeration regarding the number of blows of lathi etc. given by the accused to the victim Jaint Singh but this instance also could not be taken to disbelieve the otherwise reliable ,evidence of the witness and who in fact has fully proved and supported the all essential particulars of the incident. No doubt there was some exaggeration regarding the number of blows of lathi etc. given by the accused to the victim Jaint Singh but this instance also could not be taken to disbelieve the otherwise reliable ,evidence of the witness and who in fact has fully proved and supported the all essential particulars of the incident. When such an occurrence took place within a short span of period and the witness having been following her husband from a distance of about 20-30 yards, she was not expected to count the number of blows and also the number of stones pelted on her husband and if above statement was given by her in regard to the number of blows etc the same would not adversely tell upon her credibility and her basic version in regard to the incident. We also can not lose sight of the fact that the witness is an illiterate village lady and she has stood the test of piercing cross- examination to prove her reliability and therefore she could safely be said to be a wholly reliable witness. The learned Sessions Judge was also justified in placing implicit reliance on her evidence about the involvement of the accused Gopal Singh in the assault on her husband. 13. The evidence of witness Gopal Singh (P. W.2) can also be taken to amply support the prosecution case and to corroborate the evidence of Smt. Devki Devi. It was not in dispute that this witness has his house near the scene of the incident as has also been shown by letter 'B' in the site-plan, Ext.Ka.17 prepared by the Investigating Officer. On the day of the occurrence when Jaint Singh was assaulted by the accused the witness was in his house and his claim in that regard was not assailed in the cross-examination. Witness gave out that accused Gopal Singh was erecting a wall in his plot adjoining the plot which belong to Sher Singh, the brother of Jaint Singh. According to the witness some quarrel has also taken place earlier between accused Gopal Singh and Jaint Singh and on the day of the occurrence also they were quarrelling at the place of the occurrence. The witness had seen these two quarrelling and exchanging uncomplimentary remarks. The witness thereafter went away from there in order to visit Jalana village. According to the witness some quarrel has also taken place earlier between accused Gopal Singh and Jaint Singh and on the day of the occurrence also they were quarrelling at the place of the occurrence. The witness had seen these two quarrelling and exchanging uncomplimentary remarks. The witness thereafter went away from there in order to visit Jalana village. He had not seen the actual assault being made by the accused on Jaint Singh but at any rate his evidence amply support that there was some quarrel between accused Gopal Singh and Jaint Singh deceased about the boundary pillar. The evidence of the witness thus fully support the prosecution case about the time and place of the occurrence as well as the presence of the accused and the victim there at that time. It also appear that the witness for some reason or to help the accused, resiled from his earlier version as given to the Investigating Officer about the actual assault by the accused on the victim but at any rate his evidence corroborate the prosecution version to the above extent. Not only this he also gave out that later on injured Jaint Singh told him that assault on him was made by accused Gopal Singh. Learned Sessions Judge also accepted this part of the evidence of the witness and rightly so. The reason being that Jaint Singh despite having sustained injuries remained alive till next day and the witness being a co-villager was expected to have inquired about the welfare of the victim. If on such an occasion the witness was told by Jaint Singh as to who assaulted him and caused him injuries there was nothing unusual in it and the evidence of Gopal Singh was thus cogent and reliable in that regard arid the same amply corroborated the prosecution version and the evidence of Smt. Devki Devi. The witness was confronted with his earlier statement under Section 161 Cr.P.C. In which the witness has not made such an assertion. However considering the fact that the witness had seen quarrel between the accused and Jaint Singh and later on having found Jaint Singh in injured state it was natural for him to have inquired about the welfare of the injured to be told that the injuries were caused by accused Gopal Singh .. However considering the fact that the witness had seen quarrel between the accused and Jaint Singh and later on having found Jaint Singh in injured state it was natural for him to have inquired about the welfare of the injured to be told that the injuries were caused by accused Gopal Singh .. Therefore despite above omission in his statement, the same could safely be relied upon in the face of the above factors and also in view of the fact that he was not in any way inimical towards the accused and rather tried to help him by resiling from his earlier statement about the actual assault. 14. The learned counsel for the accused also urged that the F.I.R. of the case was not a genuine document and that the same having not been lodged by informant Smt. Devki Devi, the very substratum of the prosecution story itself stand washed off to discredit the story as set up in the evidence of the prosecution. The learned counsel picked up a sentence from the statement in the cross-examination of the informant Smt. Devki Devi to bring home his point of view. Smt. Devki Devi stated that she had told about the incident to his co-villagers who have lodged the report. As stated earlier informant being an illiterate village lady got confused on being subjected to searching cross-examination and the result was that she gave such statement. In our view there was even otherwise nothing unusual in it because the first information report was not lodged soon after the incident and the informant Smt. Devki Devi being engaged in looking after her injured husband Jaint Singh and also worried about the condition of the husband she must have told her co-villagers to report the matter to the authorities concerned and remembering this if she gave the above statement the same would not have been taken to assail the genuineness of the written F.I.R., Ext.Ka.l. In this connection it is also of significance that in the beginning of her cross-examination the witness also gave out that since she was nervous and upset on the day of the incident she did not lodge the report of the incident. She also stated that she had asked Sher Singh and others of her village to lodge the report. She also stated that she had asked Sher Singh and others of her village to lodge the report. Further in her examination-in-chief she also categorically stated that she had lodged the report which was prepared before her and she had appended her thumb impression on it. In view of the entire evidence of the witness it could not be said that the F.I.R. was not lodged by her although It was lodged belatedly for which the explanation has been put forward not only by her evidence but also by the circumstances of the case itself. It has come in the evidence of the witness that the parents of her husband are very old, sick and weak. It has not come in the evidence that there was any other male member in the family who could have then visited the patwari circle to report the matter. The co-villagers must have shown apathy in view of the quarrel having taken place between two of the co-villagers and the F.I.R. got to be lodged by the informant Smt. Devki Devi when her husband ultimately died of the injuries sustained in the occurrence. The co-villagers were indifferent, is also exhibited by the fact that the two witnesses of the locality Gopal Singh (P.W.2) and Gopal Ram (P.W.3) were declared hostile although P.W.2, as stated above partly supported the prosecution version and the evidence of informant Smt. Devki Devi. In other words the statement of Smt. Devki Devi and the above circumstances provide plausible explanation about the delay in lodging the F.I.R. and In view of it the veracity of the F.I.R. can safely be taken to have remained intact to corroborate the evidence of Smt. Devki Devi. 15. The written F.I.R., Ext.Ka.1 contain the essential particulars of the occurrence which is legally required of such a document and this could not also be assailed on the ground that it does not contain a detailed version of the prosecution story and also the names of the witnesses Gopal Singh (P.W.2) and Gopal Ram (P. W.3) examined by the prosecution in the case. In short on this account the veracity of the F.I.R. could not have been adversely commented upon to seek rejection of its evidentiary value. At any rate the F.I. R. of the case corroborate the evidence of informant Smt. Devki Devi (P.W.1). 16. In short on this account the veracity of the F.I.R. could not have been adversely commented upon to seek rejection of its evidentiary value. At any rate the F.I. R. of the case corroborate the evidence of informant Smt. Devki Devi (P.W.1). 16. As regards the medical evidence of the case is concerned it also support the prosecution version and corroborate the evidence of the Informant Smt. Devki Devi. P.W.S, Dr. J.e. Durgapal, the Autopsy Surgeon gave out that ante-mortem injury No.2 was probably sustained by a stone hurled on the person of the victim with force and further that injury Nos. 3 and 4 were probably sustained by blows given by some wooden log or Danda and that Injury No.3 could have also been sustained by a fall from a sloppy plot on a higher plane. It wooden log and was pushed downwards where after stones were pelted on her husband by the accused. Investigating Officer, Bhupal Singh (P. W. 7) has even attached a blood-stained wooden log vide memo, Ext. Ka.14 and blood-stained stones vide memos, Ext.Ka.15 and Ka.16 respectively from the scene of the incident and this piece of the evidence also support the evidence of the said witness and also connect it to the medical evidence referred above. It is immaterial if the serologist report about the blood is not on the record although the attached items were sent to the expert for confirmation of the blood. In any case the seizure of stones and wooden log from the scene of the incident also support the claim of the prosecution and the evidence of the prosecution. 17. To discredit the evidence of Smt. Devki Devi and the prosecution version learned counsel for the accused then referred to the statement of P. W.8, Dr. K. Chandra who medically examined injured Jaint Singh on 14-1-1987 at Lambgarha hospital and entered the injuries in the register, copy of which was proved as Ext.Ka.21. He also sent information about the medical examination of injured Jaint Singh to the circle patwari and the same was got exhibited as Ext. Kha.2 by the defence while the medical officer was cross-examined. He also sent information about the medical examination of injured Jaint Singh to the circle patwari and the same was got exhibited as Ext. Kha.2 by the defence while the medical officer was cross-examined. He stated that when Jaint Singh was brought to the hospital for medical examination the wife of the injured told him that her husband (Jaint Singh) had fallen from the periphery (mend) of the field and nothing else was then disclosed to him about the incident. At that time the wife of the injured Jaint Singh was not supposed to tell all about the occurrence to the medical officer and the said statement of the witness can not, in any case, be taken to discredit the prosecution version and the evidence of Smt. Devki Devi. The information sent by the medical officer vide, Ext.Kha.2 was also be of no help to the defence because the medical officer was not supposed to give the essential particulars of the incident in which the injured was assaulted. Therefore an attempt by the defence to make a dent in the prosecution evidence by referring to the above statement of the medical officer also fail to bring any fruitful result and in the totality of the circumstances of the case we are convinced that the medical evidence of the case fully supported the prosecution version and corroborated the evidence of eye witness Smt. Devki Devi. 18. No irregularity or illegality, as may have the effect of discarding the evidence of the prosecution, could be pointed out in the investigation of the case and the learned Sessions Judge also rightly found that the investigation of the case was properly conducted and this aspect of the matter also supported the prosecution case in regard to the place of the occurrence and recoveries made from there. 19. Upon consideration of the evidence on record, the facts and circumstances of the case, we are convinced that Jaint Singh deceased was assaulted by accused Gopal Singh at the place and time of the occurrence as alleged by the prosecution and that the injuries sustained by the said victim later on proved fatal for the victim. 20. 19. Upon consideration of the evidence on record, the facts and circumstances of the case, we are convinced that Jaint Singh deceased was assaulted by accused Gopal Singh at the place and time of the occurrence as alleged by the prosecution and that the injuries sustained by the said victim later on proved fatal for the victim. 20. Learned counsel for the accused persuasively argued that the evidence however does not establish that the accused pushed Jaint Singh downwards from above and gave blow of wooden log and pelted stones with the intention of causing the murder of the deceased and therefore the learned Sessions Judge was not justified to hold the accused guilty of an offence of murder punishable under Section 302 I.P.C. According to learned counsel there was no material to hold that the accused assaulted the deceased either with the intention of causing the murder of the deceased or he can be said to have the requisite knowledge that the death would otherwise be the inevitable result and in such a situation the accused did not commit the offence under Section 302 I.P.C. but under part-II of Section 304 I.P.C. Considering the totality of the circumstances of the case the submission of the learned counsel can not be said to be without force. The reason being that the incident took place when Jaint Singh deceased happened to reach the field where accused Gopal Singh was already present there from before and some quarrel took place between them after the warning was given by the deceased for not removing the boundary pillar by the accused from his field. Further the accused has had no lathi with him and it is evident that some wooden log lying there was picked up to give a blow not with intention to commit the murder of the victim. The victim was also pushed there resulting which the victim fell down and where after stones were hurled at him. The medical officer stated that ante mortem injury No.1 could have probably been sustained by friction. Injury No.2 was a wound which according to him was sustained by a stone and it is of significance that no scalp bone, underneath this injury got fractured but all the bones were normal. However under this injury subcutaneous haematoma was detected. The medical officer stated that ante mortem injury No.1 could have probably been sustained by friction. Injury No.2 was a wound which according to him was sustained by a stone and it is of significance that no scalp bone, underneath this injury got fractured but all the bones were normal. However under this injury subcutaneous haematoma was detected. Under injury No.1, 3"' and 4th ribs were found fractured resulting which left lung was found ruptured. It is of significance that the injured Jaint Singh was taken to Lambgarha hospital on 13-1-1987 itself and according to the evidence of P. W.1 her husband was then given some medical aid on that day also. P.W.8, Dr. K. Chandra also gave evidence that on that day the injured was attended by Pharmacist Diwan Singh who on that day had given stitches to the ruptured wound of the injured and the same was dressed after applying medicine. The evidence of P. W.1 and her co-villagers Bhupal Singh (P.W.4) and Sher Singh (P.W.6) is also to the effect that injured Jaint Singh was taken to the hospital on .the day of the occurrence itself and also on the second day, that is, 14-1-1987 when the injured was examined by the medical officer and it was advised that the injured should be taken immediately to District Hospital, Almora and that when the injured was being taken from there, he breathed his last. P. W.4 and P. W.6 also stated that on the first day the injured Jaint Singh was able to walk himself but his condition got deteriorated next day. This give an indication that perhaps the injured Jaint Singh could not get proper medical aid on the first day of the incident and taking in to account this aspect and the factors that there was no premeditation in the assault and that it was a sudden fight and the accused has not taken any undue advantage or acted in a cruel and unusual manner in the sense that there was neither intention to cause the death nor the assault appear to have been made with the knowledge that the death would otherwise be the inevitable result, and therefore, the accused could not have been held guilty of committing the murder punishable under Section 302 I.P.C. but it would have been appropriate to convict him under Section 304 part-III. P.C for committing an offence of culpable homicide not amounting to murder. 21. For the reasons aforesaid the appeal succeed partly and the accused need to be convicted for an offence under Section 304 part-II I.P.C. instead of section 302 I.P.C. Considering the totality of the circumstances of the case sentence of seven years R.L to the accused would be sufficient to meet the ends of justice. 22. The appeal is partly allowed. The conviction of the accused Gopal Singh under Section 302 LP.C. per judgment dated 27-7-1987 passed be the then Sessions Judge, Almora in sessions trial No. 30/1987 is set aside. The accused is held guilty and convicted under Section 304 part-II I.P.C. and is hereby sentenced to seven years R.I. The accused is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken in to custody forthwith to suffer the sentence so awarded. 23. Let the record be sent back to the court concerned for compliance to be reported to the court in two month.