JUDGMENT Mehtab S. Gill, J. - We will be deciding (i) Criminal Appeal No. 228-SB of 1997 filed by appellants Jai Sham, Roop Singh, Saleem, Pappi alias Som Nath and Abdul Zafar, (ii) Criminal Appeal No. 275-SB of 1997 filed by appellant Rajinder and Criminal Appeal No. 526-DBA of 1998 filed by Union Territory, Chandigarh, by this common judgment, as they arise out of the same impugned judgment. 2. The learned Additional Sessions Judge, Chandigarh, vide his judgment dated 13.3.1997 convicted appellant Jai Sham under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 148 and 326 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years and three years respectively and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and one year respectively. Appellant Roop Singh was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Sections 148 and 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years and four years respectively and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and nine months respectively. Appellant Rajinder was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. Appellant Rajinder was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1-1/2 years. He was convicted under Section 326 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment for three years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was further convicted under Sections 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and nine months respectively. Appellant Saleem was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 324 and nine months under Section 323 of the Indian Penal Code. Appellant Pappi alias Som Nath was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1-1/2 years. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 326 of the Indian Penal Code and nine months under Section 323 of the Indian Penal Code. Appellant Abdul Zaffar @ Dokha was convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months. He was convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2-1/2 years. He was further convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 326 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default thereof, he was ordered to undergo rigorous imprisonment for three months, rigorous imprisonment for one year under Section 324 of the Indian Penal Code and nine months under Section 323 of the Indian Penal Code. All the substantive sentences awarded to each of the appellants by the trial Court were ordered to run concurrently. 3. Union Territory, Chandigarh has filed Criminal Appeal No. 526-DBA of 1998 against the judgment of conviction and sentence of the appellants. As per the appeal, appellants should have been convicted and sentenced under Section 302 of the Indian Penal Code. 4. The case of the prosecution is unfolded by the statement given by complainant Dilshad Ahmad to Karnail Singh, Sub Inspector, Police Station Mani Majra near the turning to the Police Station on 14.5.1994 at 9.45 P.M. Dilshad Ahmad stated that he is a resident of Indira Colony Mani Majra. He works as a Tailor Master in shop No. 8 in Indira Colony in the main market. He works as a Tailor Master in shop No. 8 in Indira Colony in the main market. Rakesh Sharma, a childhood friend of his, who studied with him till Matric, came in the evening to Indira Colony to have his clothes stitched. Satish son of Itwari Lal, a resident of Indira Colony, was already sitting in the shop. Complainant took the measurement of Rakesh Sharma. All three of them, went to a tea stall to take tea, after locking the shop. When Complainant Dilshad Ahmad along with his companions was coming out of the shop, he saw Roop Singh son of Ram Chander, resident of Indira Colony, staring at him. This was because that about 15 months prior to the present occurrence, a dispute had erupted between Roop Singh, Saleem and Abdul Zafar @ Dhokha etc. on the one side and complainant and Satish on the other side. A case was registered regarding that occurrence against the complainant and Satish, which is still pending in the Court. Complainant Dilshad Ahmad asked Roop Singh, as to why, he was staring at him, Roop Singh started abusing the complainant in the name of his sister and then gave a slap on his face. Complainant also got enraged and gave slaps on the face of Roop Singh. Rakesh Sharma intervened and separated the complainant and Roop Singh. Complainant Dilshad Ahmad along with Rakesh Sharma and Satish went to the house of Satish, where they took tea. Entire occurrence was narrated to the father of Satish. After taking tea, all three of them, then went to the side of railway line for strolling and also to ease themselves. Complainant and Rakesh Sharma sat on a heap of Bajri and were smoking Biris. Satish was sitting at some distance from them. After some time at about 8.30 P.M., 9 to 10 persons were seen coming from the side of the railway line towards them. They being Roop Singh, Saleem, Jai Sham, Abdul Jaffar @ Dhoka, Rajinder and Pappi and the others could not be recognised. Saleem, Jai Sham and Roop Singh were having guptis (sword sticks) in their hands. Abdul Jaffar @ Dhokha had a talwar in his hand. Rajinder and Pappi, on coming near them, raised a lalkara that today is the time of finish off the three of them, out of three, none should go away without being spared. Saleem, Jai Sham and Roop Singh were having guptis (sword sticks) in their hands. Abdul Jaffar @ Dhokha had a talwar in his hand. Rajinder and Pappi, on coming near them, raised a lalkara that today is the time of finish off the three of them, out of three, none should go away without being spared. On hearing the lalkara, Satish came towards the complaint and Rakesh Sharma. Rajinder and Pappi caught hold of Satish. Saleem gave a gupti blow on the stomach of Satish with the intention to kill him. Jai Sham gave several blows with sharp edged gupti to Rakesh Sharma on his hands and feet. Roop Singh gave a gupti blow with its sharp side on the abdomen of Rakesh Sharma with the intention to kill him. The other persons, who could not be recognised, ran towards the complainant to catch him. Complainant raised an alarm "Bachao Bachao" and succeeded in running away. Some persons, who were residing in the nearby localities, on hearing shouts, came there and saved them. Surinder Singh, brother of Satish, also reached and took Satish to the hospital for treatment. 5. FIR, Ex. PJ/2 was registered on 14.5.1994 at 9.50 P.M. on the basis of statement of complainant Dilshad Ahmad, Ex. PJ. 6. Prosecution, to prove its case, brought into the witness box Jaswant Singh (PW-1), Ranbir Singh (PW-2), Gurdial Singh (PW-3), Surinder Singh (PW-4), Ranbir Singh, Head Constable (PW-5), Dr. Savita Gulati (PW-6), Narinder Singh (PW-7), Dr. M.P. Singh (PW-8), Dr. N.K. Jha (PW-9), Balwant Singh (PW-10), Rakesh Sharma (PW-11), Dilshad Ahmad (PW-12), Varinder Singh (PW-13), Dr. Viney Goel (PW-14), Hawa Singh, Constable (PW-15), Nasib Singh, Constable (PW-16) and Partap Singh, Sub Inspector (PW-17). 7. Learned counsel for the appellants has argued that at the most an offence under Section 325 of the Indian Penal Code is made out against the appellants. The post mortem report, Ex. PQ, has not been proved by Dr. B. Suri. Dr. Viney Goel (PW-14) has not stated anything qua injuries inflicted on the deceased and injured Rakesh Sharma (PW-11), but he has only stated that the post mortem report, Ex. PQ, was prepared by Dr. B. Suri. It is not that Dr. B. Suri could not have been produced by the prosecution. He was working with the Punjab Government and his presence could have been easily procured through the process of the Court. PQ, was prepared by Dr. B. Suri. It is not that Dr. B. Suri could not have been produced by the prosecution. He was working with the Punjab Government and his presence could have been easily procured through the process of the Court. The cause of death cannot be ascertained, as to whether Satish died due to the injuries inflicted on him by the appellants or as reported in the process sheet of the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as "the PGI") that the condition of the patient continued to deteriorate and he suffered cardiac arrest, from which he could not be revived and was declared dead on 15.5.1994 at 3.55 A.M. Learned counsel has further argued that the learned trial Court has taken a view in favour of the appellants and convicted them under Section 304 Part-II of the Indian Penal Code. This view of the learned trial Court of convicting the appellants under Section 304 Part-II of the Indian Penal Code, after giving detailed reasons, cannot be reversed by the appellate Court. The reasoning of the trial Court, as given in paras 24 and 25 of its judgment, are not perverse. Though the appellants were armed with deadly weapons and had formed an unlawful assembly, but their intention was not to kill Satish and his companions Rakesh Sharma (PW-11) and Dilshad Ahmad (PW-12). 8. Finally, the learned counsel has placed reliance on a judgment of the Honble Supreme Court in Augustin alias Babu v. State of Kerala, 1994 Supreme Court Cases (Crl.) 1152 wherein the Honble Supreme Court had held that the appellant and the deceased though were at loggerheads and had quarrelled on a petty incident, in which the appellant, in the wordy altercation, drew out his knife from the waist and hit the deceased on the abdomen and thereafter ran away. The deceased was taken to the hospital, but he died on the next day. The doctor admitted in his cross-examination that after the treatment was given and operation was done, on the next day the deceased suffered a cardiac arrest. The Honble Apex Court held that it could not have definitely been said from the evidence that the death was due to injuries caused by the appellant alone, but may be due to subsequent supervening event, namely, cardiac arrest. 9. The Honble Apex Court held that it could not have definitely been said from the evidence that the death was due to injuries caused by the appellant alone, but may be due to subsequent supervening event, namely, cardiac arrest. 9. Shri R.S. Rai, Learned counsel for the Union Territory, Chandigarh, has argued that conviction of the appellants under Section 304 Part-II of the Indian Penal Code cannot be sustained, as the intention of the appellants was clear, when they attacked the deceased and his companions. Lalkara raised by appellants Rajinder and Pappi was of such a nature that it exhorted the other appellants to injure the deceased, so that all three are put to death. The argument put forward by the learned counsel for the appellants could have sustained, if the occurrence had taken place at the time when appellant Roop Singh and complainant Dilshad Ahmad had slapped each other at 6.00 P.M. The appellants attacked the deceased party, after forming an unlawful assembly. Their common object was to eliminate complainant Dilshad Ahmad, Rakesh Sharma (PW-11) and Satish. It is a pre-meditated murder. Rakesh Sharma (PW-11) and complainant Dilshad Ahmad had been lucky that they survived the attack. The argument put forward by the learned counsel for the appellants that the cause of death is cardiac arrest, as stated in the process sheet of the PGI, cannot be sustained. Dr. Viney Goel (PW-14), has identified the signature of Dr. B. Suri and has proved the post mortem report, Ex. PQ, wherein it has been opined that "in my opinion, the cause of death in this case is shock and haemorrhage due to stab injury. The injury is ante mortem and sufficient to cause death in the ordinary course of nature." 10. Learned counsel has further stated that the gravity of the offence has to be taken into consideration. Motive for the commission of the offence is very strong. Appellant Roop Singh was standing in front of the shop of the complainant and staring at him. The first occurrence took place at 6.00 P.M. On 14.5.1994 in front of the shop of Dilshad Ahmad, where complainant Dilshad Ahmad and appellant Roop Singh slapped each other. The grievance of the appellants was, that criminal cases were pending between both the parties in the Courts. The object of the appellants was clear. The first occurrence took place at 6.00 P.M. On 14.5.1994 in front of the shop of Dilshad Ahmad, where complainant Dilshad Ahmad and appellant Roop Singh slapped each other. The grievance of the appellants was, that criminal cases were pending between both the parties in the Courts. The object of the appellants was clear. They (appellants) being armed with deadly weapons attacked Satish, Dilshad Ahmad and Rakesh Sharma, so that they be finished. The second occurrence at 8.00 P.M. on the same day was pre-meditated, after the appellants had conspired with each other to eliminate the complainant party. Eight-ten persons attacked the complainant party. Rakesh Sharma (PW-11) is a stamped witness. Injury suffered by him on the abdomen, could not have been self-suffered or by given by a friendly hand. 11. The quarrel, which took place in the front of shop of Dilshad Ahmad at 6.00 P.M. on 14.5.1994, could be termed as a sudden fight. If this occurrence had developed into a full fledged fight, the benefit of conviction under Section 304 Part-II of the Indian Penal Code, could have been given to the appellants. 12. We have heard the learned counsel for the parties and perused the record with their assistance. 13. Learned counsel for the appellants, during the course of his arguments, has argued that he does not want to argue on the merits of the case qua the occurrence. We put it to Shri H.S. Bhullar, counsel for the appellants, that as to whether he concedes the occurrence. Mr. Bhullar clearly stated that he concedes the occurrence, but wants to argue only on the quantum of sentence awarded to the appellants. He stated that, at the most, an offence falling under Section 325 of the Indian Penal Code, could be made out, as the injuries on the person of deceased Satish and Rakesh Sharma (PW-11) are simple in nature. 14. Satish died on 15.5.1994 at 3.55 A.M. in the PGI, Chandigarh. The post mortem report, Ex. PQ, prepared by Dr. B. Suri on 15.5.1994 states that "the cause of death of Satish is due to shock and haemorrhage due to stab injury. The injury is ante-motem and sufficient to cause death in the ordinary course of nature". Dr. B. Suri, who conducted the post mortem, was not brought into the witness box. Dr. Viney Goel (PW-14) proved the post mortem report. The injury is ante-motem and sufficient to cause death in the ordinary course of nature". Dr. B. Suri, who conducted the post mortem, was not brought into the witness box. Dr. Viney Goel (PW-14) proved the post mortem report. Learned counsel for the appellants has laid much stress on this aspect, that Dr. B. Suri should have been brought into the witness box by the prosecution, so that he could be cross-examined. He was the best person, who could state, as to whether the heart attack suffered by Satish in the P.G.I., Chandigarh, where he had been shifted from the General Hospital, Sector-16, Chandigarh, was due to the stab injury or some other medical reason. We are in consonance with this view of the learned counsel for the appellants. To give a categoric finding, as to whether, Satish had died due to the stab injury or due to cardiac arrest, could only be ascertained from Dr. B. Suri, who performed the post mortem. The process sheet of PGI, Chandigarh states that an incised wound was present on the front of abdomen of deceased Satish. Satish suffered a cardiac arrest, from which he could not be revived and was declared dead on 15.5.1994 at 3.55 AM. 15. The case relied upon by the learned counsel for the appellants Augustin alias Babu v. State of Kerla (supra) covers the case in hand. Their Lordships of the Honble Supreme Court have held in para 3 of their judgment observed, which is reproduced as under :- "The only question is what offence the appellant had committed. The doctor-PW-21 has admitted in the cross-examination that after the treatment was given and operation was done, on the next day the deceased suffered a cardiac arrest. It was not elicited in re-examination whether cardiac arrest was due to injury caused by the appellant. It cannot, therefore, definitely be said from this evidence that the death was due to injury caused by the appellant alone, may be due to subsequent supervening event, namely, cardiac arrest occurred in the usual course in the morning on 13.3.1985. Under these circumstances, it cannot definitely be held that the offence is one of culpable homicide amounting to murder. It cannot, therefore, definitely be said from this evidence that the death was due to injury caused by the appellant alone, may be due to subsequent supervening event, namely, cardiac arrest occurred in the usual course in the morning on 13.3.1985. Under these circumstances, it cannot definitely be held that the offence is one of culpable homicide amounting to murder. Accordingly, the conviction for the offence under Section 302 Indian Penal Code is set aside and instead the appellant is convicted for an offence under Section 304 Part-II Indian Penal Code and he is directed to undergo imprisonment for a period of 5 years. Since the appellant has been in jail all through and completed 5 years, he shall be entitled to be released forthwith unless he is required in any other case." 16. The intention and pre-meditation of the appellants was clear from the actions of the appellants. Their common object was to inflict injuries on the person of complainant Dilshad Ahmad, deceased Satish and injured witness Rakesh Sharma (PW-11) was also clear. This would have been a case, where the conviction of the appellants would have come within the parameters of Section 302 of the Indian Penal Code, but for the laxity shown by the prosecution in not producing Dr. B. Suri, who, at that moment of time, was working with the Punjab Government, whose attendance could have been easily procured. He was the best person to put light on the medical situation, as to whether the deceased had suffered the heart attack due to injury No. 1 (i.e. stab injury, inflicted on his chest) or the hart attack was caused due to other medical circumstances. 17. We do not find any infirmity in the judgment dated 13.3.1997 rendered by Additional Sessions Judge, Chandigarh. Criminal Appeal No. 228-SB of 1997 is dismissed. Criminal Appeal No. 275-SB of 1997 filed by appellant Rajinder is also dismissed. Criminal Appeal No. 526-DB-A of 1998 filed by Union Territory, Chandigarh to convict the appellants under Section 302 of the Indian Penal Code instead of Section 304 Part-II together with the other various sections of the Indian Penal Code fails and it is also dismissed. 18. Appellants, if on bail, are directed to surrender before the Chief Judicial Magistrate, Chandigarh forthwith, if they have not undergone the remaining part of their sentence. Appeal dismissed.