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2010 DIGILAW 316 (JK)

Alam Din v. State Of J&K

2010-05-26

Hakim Imtiyaz Hussain, Hasnain Massodi

body2010
Per H. Imtiyaz Hussain, J. 1. Appellant Alam Din S/o Abduliah, R/o Nagsari, Kalaroos, District Kupwara has been convicted in FIR No. 108/91 Police Station, Kupwara under section 302 RPC and by the Court of Principal Sessions Judge, Kupwara vide judgment dated 15.4.2008 and sentenced to undergo imprisonment for life and a fine of Rs. 5000/- vide order dated 19.4.2008. The present appeal has been filed against the said conviction and sentence. The learned Sessions Judge, Kupwara has also made reference (Reference No. 4/08) for confirmation of the conviction and sentence. 2. The facts of the case disclose that on 16.8.1991 complainant Darya Khan S/o Salamdin R/o Nagsare lodged a report with Police Station Kalaroos against Baju, Bagoo, Alamdin sons of Abdullah, Mirzaman and Shafi sons of Faizullah R/o Nagsare Kalaroos. It was stated by him in the report that on 15.8.1991 accused named in the report attacked one Alamdin S/o Faqir Mohd. Khatana, Baju sons of Abdullah Mir inflicted blow on the head of said Alamdin due to which he fell down on the ground. The Complainant requested the police to initiate legal proceedings in the matter. On receiving this report police initiated action in the matter. They got a case FIR No 108/99 registered under Sections 147, 149 and 325 RPC, investigation of the case was entrusted to PW Sonaullah, ASI. Injured Alamdin was referred to hospital after completing necessary formalities. The injured was later shifted to SDH Kupwara wherefrom he was referred to Medical institute, Soura for further treatment. On 22.8.1991 injured Alamdin succumbed to the injuries, accordingly the offence was converted to Section 302 RPC and the investigation of the case was taken over by PW Gh. Ahmed Shah Inspector. On completion of the investigation the investigating officer found that an offence U/s 302 RPC is made out against Alamdin S/o Abdullah Nagsare, Kalaroos, Kupwara (the appellant). Accordingly a charge sheet was filed in the Court which was committed to the Court of Sessions, Kupwara. 3. Before the trial Court the appellant was charge sheeted under action 302 RPC on 1.10.1992 but he pleaded not guilty to it. 4. Prosecution examined witnesses namely Durayamn, Kalamdin, Hakimdin, Manna, Saifudin, Neek Alam, Mohd. Yaseen, Dr. Mohd. Saleem, Sonaullah ASI, Inspector Gh. Ahmed Shah and Inspector Ab. Rahim. 5. Statement of the appellant under section 342 Cr.P.C. was recorded on 15.7.1997. 4. Prosecution examined witnesses namely Durayamn, Kalamdin, Hakimdin, Manna, Saifudin, Neek Alam, Mohd. Yaseen, Dr. Mohd. Saleem, Sonaullah ASI, Inspector Gh. Ahmed Shah and Inspector Ab. Rahim. 5. Statement of the appellant under section 342 Cr.P.C. was recorded on 15.7.1997. He denied to have committed any offence and produced two witnesses namely Baju Gojar and Ab. Rashid in defence. 6. After hearing the prosecution and the defence and going through the evidence led by the prosecution, the learned trial Court found that the offence under section 302 RPC stands proved against the appellant. The Court accordingly convicted the appellant under the said section and sentenced him to life imprisonment. The trial Court has in this behalf observed as under: - "In the backdrop of the above discussion it is clear that the prosecution has been able to bring home guilt under section 302 RPC to the accused who is accordingly convicted under section 302 RPC. His bail bonds are hereby cancelled and is ordered to be taken into custody forthwith." 7. Thereafter the appellant was heard on the sentence and the court while finding that the case does not fall within the rarest of rare cases sentenced the appellant as under: - "On the other hand the learned PP has vehemently resisted the arguments put forth by learned defence counsel stating that court has to follow the mandate of law as enshrined under Criminal law and there is no question of reducing the sentence as there are only two punishments for section 302 RPC either death punishment or life imprisonment. So the court has no power to go beyond the point of maximum punishment. He has admitted that the present case does not fall within the rare of rare cases, so there is no question of inflicting death punishment on the convict. But it is a fit case where the court has power to infict life imprisonment on the convict. Considered the arguments advanced by the learned defence counsel and the learned PP on behalf of the State. In the given circumstances of the case the convict is sentenced under section 302 RPC to undergo simple life imprisonment and a fine of Rs. 5000/-." 8. The appellant has assailed the conviction and the sentence various grounds contained in the memorandum of appeal. 9. In the given circumstances of the case the convict is sentenced under section 302 RPC to undergo simple life imprisonment and a fine of Rs. 5000/-." 8. The appellant has assailed the conviction and the sentence various grounds contained in the memorandum of appeal. 9. Before considering the grounds taken by the appellant to assail the conviction and sentence, we may consider the prosecution evidence to see whether the findings of the learned trial Court regarding the guilt of appellant are correct. As noticed above the prosecution has examined 11 witnesses. Out of these 7 witnesses namely Durayman, Kalamdin, Hakimdin, Manna, Saifudin, Neek Alam and Mohd. Yaseen have been cited as witnesses to the occurrence but out of these PW Duryaman has not narrated anything about the occurrence as according to his own statement he has reached the spot after the occurrence was over. 10. PW Kalamdin has stated that about 3 years back Neek Alam, Akbar, Hakimdin and Saifdin were doing work on their land meanwhile Baju came and told Neek Alam that the land belongs to them and that they should not built a Khota on it. Deceased Alamdin came there Baju’s wife namely Kali became unconscious, deceased Alamdin took her in his lap, the Appellant came and inflicted a blow with a wooden log on the head of the deceased due to which he fell on the ground unconscious. The injured was taken to hospital wherefrom he was referred to Srinagar hospital but he died in the hospital. A similar statement has been made by PW Hakimdin Manna, Saifdin, Neekalam and Mohd. Yasin. All these witnesses have in one voice narrated the same occurrence and have stated that the deceased was present on spot when the appellant came and inflicted a blow on his head with a wooden log (Cherki) due to which the deceased received injuries, he fell down unconscious and was taken to a local hospital wherefrom was referred to Kupwara hospital and was later taken to Srinagar hospital but the deceased died at Srinagar hospital. 11. PW Dr. Mohd. Saleem, has conducted post mortem of the body of the deceased and examination he has besides incision found extra dural haemotoma, sub dural haemotoma and brain contusion left temporal parietal region. In his opinion the deceased has died of cardio pulmonary arrest following cranio cerebral trauma. 12. 11. PW Dr. Mohd. Saleem, has conducted post mortem of the body of the deceased and examination he has besides incision found extra dural haemotoma, sub dural haemotoma and brain contusion left temporal parietal region. In his opinion the deceased has died of cardio pulmonary arrest following cranio cerebral trauma. 12. We have minutely gone through the statements of all these witnesses and heard learned counsel for the appellant on the question of trustfulness of the evidence of these witnesses. We find that these witnesses have fully supported the prosecution case and with their evidence it stands established, beyond any shadow of doubt, that the appellant went to the spot and on reaching the spot inflicted a severe blow on the head of the deceased with a wooden log as a result of which he fell down. Such was the force used by the appellant while inflicting the blow, that the wooden log with which the act was committed broke into two parts. On getting this blow the deceased fell down on spot unconscious. Though there was no bodily injury but the blow caused grievous head injury on the deceased. He became unconscious and remained coma for about five days when he expired at Medical Institute, Soura due to the injury. The medical evidence also shows that the deceased had an injury on his head with this the ocular evidence gets corroboration. It is difficult to appreciate how this evidence can be said to be inconsistent as is suggested by Mr. Qayoom. 13. Though Mr. Qayoom has read the evidence of the prosecution witnesses and offered some criticism thereof, however, in spite of giving our anxious consideration to the submissions made by the learned counsel we are satisfied that no fault can be found with the finding arrived at by the learned trial Court in this behalf. 14. Mr. Qayoom, learned counsel for the appellant submits that the prosecution case suffers from various legal defects which create a doubt on the truthfulness of the prosecution case. 14. Mr. Qayoom, learned counsel for the appellant submits that the prosecution case suffers from various legal defects which create a doubt on the truthfulness of the prosecution case. It was urged by the learned counsel that there is inordinate delay in sending occurrence report to the Magistrate, that there is no motive shown by the prosecution for the offence, the medical opinion does not show that the injury was sufficient in the ordinary course of nature to cause death, that the nature of injuries was such that an offence of murder cannot be said to have been committed. The learned counsel further submits that there is a procedural defect in the prosecution case which has caused serious prejudice to the appellant as the incriminating circumstances, on the basis of which trial court has based its decision to convict the appellant have not been put to the appellant while examining him under Section 342 Cr.P.C. 15. It is submitted by Mr. Qayoom that the whole prosecution case is doubtful and no reliance can be placed on it as the FIR contains entirely a different version than the one given by the witnesses, he further submits that there is an inordinate delay in submitting the occurrence report to the nearest Magistrate. The occurrence has taken place on 15th August, 1991 when the case has been registered by the police on 17.8.1991 at 1430 hours but the occurrence report has been sent to the local Magistrate after a delay of about six days i.e. 21.8.1991. The learned counsel submits that this delay in sending the occurrence report to the nearest Magistrate has not been satisfactorily explained by the prosecution, the effect is that a serious doubt is caused in the truthfulness of the prosecution case particularly when the FIR lodged in the police shows the names of the certain persons as accused who as per the report have committed the act while as on investigation it has been found by the police that the act has allegedly been committed by the appellant only. In support of his contentions the Id. Counsel has referred to Arjun Marik v. State of Bihar 1994 supp.(2) SCC 372, Bijoy singh v. State of Bihar AIR 2002 SC 1949 , Amar Singh v. Balwinder Singh AIR 2003 SC 1164 and Rajeevan v. State of Kerala AIR 2003 SC 1813 . 16. In support of his contentions the Id. Counsel has referred to Arjun Marik v. State of Bihar 1994 supp.(2) SCC 372, Bijoy singh v. State of Bihar AIR 2002 SC 1949 , Amar Singh v. Balwinder Singh AIR 2003 SC 1164 and Rajeevan v. State of Kerala AIR 2003 SC 1813 . 16. On going through the contents of FIR, we find the names of accused person given in it have not been found involved in the occurrence at all but this in our view would not effect the prosecution case as firstly the complainant who has lodged the report is not himself witness to the occurrence and secondly the eye witnesses have in one voice stated that it was the appellant who has committed the act. In Dharma Rama Bhagare v. State of Maharashtra AIR 1973 SC 476 , the Apex Court has held that the first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. The FIR can only discredit the testimony of the maker thereof. It can by no means be utilized for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent person. Prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version was given by the informer. 17. On consideration of the matter we find that it is not established that the occurrence report has been sent to Magistrate on 21.8.1991. No doubt the occurrence report is signed by the Magistrate which bears the date as 21.8.1991 but it only gives the date the occurrence report was seen and filed by the Magistrate. When the report was received by the Magistrate is not clear from the report. The appellant if Wants to take advantage of the delay if any in this behalf, should have established such a delay from the record or at least put a question regarding it to the Investigating Officer or the Station House Officer. Had this been done, the investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn against the prosecution in the present case. Had this been done, the investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn against the prosecution in the present case. Even if we accept the plea of delay in sending the copy of the FIR to the nearest Magistrate, this in view of the facts and circumstances of the case will not discard the prosecution case in its entirety. Learned trial court has dealt with this issue. The relevant portion of the judgment read as under: - "The next point raised by the learned defence counsel is that in ordinate delay has been caused by prosecution for sending the copy of the FIR to the nearest Magistrate. It has been observed by Hon’ble Supreme Court in an authority reported in AIR 2006 SC page 887 wherein it was observed that mere delay in recording of FIR and sending the same to Magistrate cannot be permitted to discard prosecution case in its entirety. It is profitable to reproduce the relevant para of this authority which reads as under: "In the matter of Suresh Chaudhary ( supra) this court in para 9 (bottom) has held that: ".......That apart, the express message with PW-13 sent to the jurisdictional Magistrate reached the said Magistrate at his place only on 12-10-92 nearly 11/2 days after the said complaint was registered and we find no explanation from PW-13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case." There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvements in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused person. The provisions of Section 157, Cr.P.C are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The provisions of Section 157, Cr.P.C are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned counsel for the appellants do not lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decisions rendered by this Court and relied upon by the learned counsel for the appellant would only show that this will be a material circumstance which will be taken into consideration while appreciating the evidence on record. After going through the material on record, we are of the view that the prosecution had led reliable evidence the veracity of which is not dislodged by delay in recording of the FIR and delay in sending the same to the Magistrate in the facts and circumstances of this case. At best it can be taken to be an infirmity in investigation I am also fortified by an authority of Hon’ble Supreme Court reported as AIR 2006 SC page 1410, para 11 of which reads as under: "In the present case, the occurrence is said to have taken place on 23rd July, 1985 at 6 p.m., the first information report was lodge at 7.20 p.m and a copy of the same was received by the Magistrate on the next day i.e 24th July, 1985 at 12.45 p.m. The High Court was of the view that there was inordinate delay in sending the copy of the first information to the Magistrate the same was not sent to the Magistrate during the night between 23/24th July, 1985. In relation to this, the prosecution has taken a definite stand that as there was no practice prevalent in the area for sending the report to the residence of Magistrate, as such no adverse inference should have been drawn by the High Court for not sending the report at the residence of Magistrate. In our view, copy of the first information report was sent to the Magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the Magistrate. In our view, copy of the first information report was sent to the Magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the Magistrate. In any view of the matter, it is well settled that mere delay in sending the first information report to a Magistrate cannot be a ground to throw out the prosecution case if the evidence adduced is otherwise found to be credible and trustworthy." So in the light of the above authorities it is empathically clear that there is lapse on the part of the prosecution in sending the copy of the FIR to the concerned Magistrate but the same cannot be termed as a major lacuna to discard the statements of the witnesses who saw the accused giving blow of danda on the head of the deceased who fell to the ground and later died in the hospital. Although there are discrepancies in the statements of PWs but these discrepancies are of minor nature and cannot come to any help to the accused." 18. On going through the reasons recorded by the trial court we find the Court has on the basis of case law i.e Rabindra Mahto v. State of Jhadrkhand AIR 2006 SC 887 and State of J&K v. Mohan Singh AIR 2006 SC 1410 rightly come to the conclusion that since there is sufficient evidence on file about the guilt of the appellant, mere delay in recording of FIR and sending the same to the Magistrate cannot be made a basis to disbelieve prosecution case in its entirety. The Apex Court has in a catena of authorities held that delay in sending copy of FIR to the local Magistrate is not in all cases material. Reference in this behalf may be made to Anil Rai v. State of Bihar (2001)7 SCC 318 , State of Punjab v. Hakeem Singh (2005) 7 SCC 408 and Sunil Kumar v. State of Rajasthan AIR 2005 SC 1096 . The Supreme Court has in Sunil Kumar’s case (supra) held that it cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate concerned, the prosecution version becomes unreliable. It would depend upon the facts of each case. In Bijoy Singh’s case relied upon by the Ld. The Supreme Court has in Sunil Kumar’s case (supra) held that it cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate concerned, the prosecution version becomes unreliable. It would depend upon the facts of each case. In Bijoy Singh’s case relied upon by the Ld. Counsel for the appellant it was held that delay in sending copy of report to Magistrate by itself, does not render whole of prosecution case doubtful. In Amar Singh v. Balwinder Singh AIR 2003 SC 1164 it was held that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. In Arjun Marik’s case object of forwarding of the report to Magistrate was given. It was held by the Apex Court that:- "The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial Court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22.7.1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that that if from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, Cr.P.C thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 Cr.P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or deplute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. it has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation. But in the present case, admittedly, the report as alleged is said to have been despatched to the Magistrate concerned on 22-7-1985 by a special messenger, vide Ext, 2. It is, thus, clear that the report was not sent forthwith, in other words immediately and without delay as the incident had occurred in the intervening night of 19/20-7-1985 and according to Doman, PW 10 the officer in charge of the police station, the FIR was already recorded in the morning of 20-7-1985. If in fact the FIR was already recorded in the morning of 20-7-1985 there was no reason not to dispatch the same to the Magistrate concerned till 22-7-1985. Though there is no material on record to show as to why delayed report was sent to the Magistrate on 22-7-1985 but the learned counsel appearing for the respondent-State submitted at the Bar that the investigating officer remained busy in the investigation on 20-7-1985 which was Saturday and since 21-7-1985 was Sunday the report was sent on Monday, 22-7-1985. He submitted that in Bihar State even in murder cases FIR is never sent to the residence of a Magistrate on Sundays and holidays. If that be so, we are afraid such a practice can never be said to be healthy practice which renders the mandatory provision nugatory. If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should wake up and see that the provisions of Section 157 Cr. P.C. are complied with in letter and spirit. 19. Thus mere pointing out to the delay is not sufficient, the accused has to show the effect of such a delay on the prosecution case. 20. P.C. are complied with in letter and spirit. 19. Thus mere pointing out to the delay is not sufficient, the accused has to show the effect of such a delay on the prosecution case. 20. In the present case the appellant has not shown how the delay has effected the truthfulness of the prosecution case and the witnesses of the prosecution. We, therefore, find no force in the submissions of learned counsel for the appellant on this issue. 21. We, therefore, fully agree with the reasons given by the trial court in this behalf and find no force in the submissions of learned counsel for the appellant on this issue. 22. There is evidence of about 5 eye witnesses who have, as noticed above, in one voice supported the prosecution case and stated that it was the appellant who inflicted a blow on a vital part of the decead’s body causing injury on his head which later proved fatal and became cause of his death. In view of this cogent and reliable evidence there was no need for the prosecution to establish motive for the offence. In State of U.P. v. Samman Dass AIR 1972 SC 677 it was held that motive is not very material when the other evidence clearly points to the guilt of the accused. This apart we find that the motive for the crime is provided by the circumstances of the case itself. It has come in evidence as is stated by all these witnesses, that the complainant party was engaged in work on their land and were raising a khota when Baju came and objected to it. The appellant has meanwhile reached on spot and inflicted a blow on the head of the deceased which would show that the bone of contention was construction of a Khota by the complainant party. In the facts and circumstances of the case we do not find there was absence of motive or if it was so the same was fatal and could cause any doubt in the prosecution case. 23. We also find no force in the submissions of Mr. In the facts and circumstances of the case we do not find there was absence of motive or if it was so the same was fatal and could cause any doubt in the prosecution case. 23. We also find no force in the submissions of Mr. Qayoom that the material and incriminating circumstances have not been put to the appellant during examination under section 342 Cr.P.C. We have minutely gone through the statements of the appellant and find that all the material facts, on the basis of which the trial Court has recorded its findings and based conviction of the appellant have been put to him. The appellant has replied all these questions and we do not find that if any further details have not been give it has caused any prejudice to the appellant in this behalf. Learned counsel has while referring to the statement of the respondents under section 342 Cr.P.C argued that each and every circumstance has to be put to the accused, what is not put to the accused has to be virtually excluded from consideration. In this behalf learned counsel has referred to Vikramjit Singh v. State of Punjab 2006(12) SCC 306 , B. Parichhat v. State of M.P., AIR 1972 SC 535 , Sharad Birdhi Chand Surda v. State of Maharashtra AIR 1984 SC 1622 , State of H.P. v. Wazir Chand AIR 1978 SC 315 and State of Maharashtra v. Sukhdeo Singh AIR 1992 SC 2100 . 24. The authorities lay down that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination. These cases further provide that a duty is cast upon the courts, to question the accused properly and fairly so that the exact case that the accused will have to meet is brought home to the accused in clear words and thereby an opportunity is given to the accused to explain any such point. Where a circumstance is not put to the accused it cannot be used against him. In Sukhdeo Singh’s case (supra) the Court observed:- "S. 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. Where a circumstance is not put to the accused it cannot be used against him. In Sukhdeo Singh’s case (supra) the Court observed:- "S. 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heave duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and case an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under S. 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under Cl.(b) of Sub-Sec. (1) of S. 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under Ss. 313, the learned Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the S. 313 state is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial Judge is not expected before he examines the accused under S. 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under S.314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. To do so would be to pre-judge the evidence without hearing the prosecution under S.314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under S. 313 of the Code. If there is material against the accused he must be examined. In this instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and hence the learned trial Judge was no justified in examining the accused under S. 313 of the Code." 25. As noticed above on consideration of the matter we do not find that any prejudice has been caused to the appellant as all the relevant questions have been put by the trial court to him and sufficient opportunity has been provided to the appellant to explain the circumstances against him appearing in the prosecution evidence. 26. It was submitted by the learned counsel for appellant that the deceased has died after 5 days of the alleged occurrence in the hospital which in itself is sufficient to show that even if the prosecution case is admitted as correct, there was no intention or knowledge on the part of the appellant to cause his death; in this behalf he has referred to Balaur Singh v. State of Punjab AIR 1995 SC 1956 and Addha v. State of M.P AIR 2001 SC 3973 . 27. On considering the facts of the case we find the trial court has come to a correct conclusion that with the inflicting a blow on the head of the deceased, the appellant knew that his act was likely to cause death to him. 28. In State of Rajasthan v. Dhool Singh AIR 2004 SC 1264 it was held by the Supreme Court that the number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. 28. In State of Rajasthan v. Dhool Singh AIR 2004 SC 1264 it was held by the Supreme Court that the number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. 29. It is well settled law now that if a man even in the course of a sudden quarrel gives a terrific blow on the head of another with a weapon like heavy hammer, and the result is that the victim gets grievous injury and fells down unconscious, it must, on the principle that a man intends the natural consequence of his act, be held that he intends to cause such bodily injury as he knew was likely to cause death of the person. The mere fact that the blow was caused in the course of a quarrel does not negative this intention. In a murder case as in other cases, man’s intention is to be gathered by his own act in relation to the surrounding circumstances. 30. In the present case the appellant has caused death of the deceased by hitting him with a heavy force on vital part of his body by a wooden log (cherki) as to cause an extensive and grievous injury. The act itself shows that the appellant intended to inflict the injury which he actually inflicted; and he must have known that such an injury is sufficient in the ordinary course of nature to cause death. From the act of the appellant, therefore, we find that the deceased had the knowledge that his act was likely to cause such bodily injury on the deceased which was likely to cause death. In view of these facts we find the case law cited by learned counsel for the appellant is not applicable. 31. From the act of the appellant, therefore, we find that the deceased had the knowledge that his act was likely to cause such bodily injury on the deceased which was likely to cause death. In view of these facts we find the case law cited by learned counsel for the appellant is not applicable. 31. It is next submitted by the learned counsel for the appellant that the doctor has not in the post mortem report stated that the injury found on the body of the deceased was sufficient in the ordinary course of nature to cause death, as is the requirement in such cases and in absence of such an opinion it cannot be said that the appellant intended to cause death of the deceased. In support he has placed reliance on Akbar Dar & Ors. v. State 1980 SLJ 664. 32. We do not find any merit in these submission for the reason that though such a opinion is not found in the report but the doctor has in reply to the questions put by the Investigating officer vide form EXPW10 opined vide report EXPW MC/3 that the injury found on the head of the deceased can be caused with the seized danda, that a blow with it can cause death and the deceased has died as a result of the blow inflicted with it. 33. Other defects in the investigation like seized of one part of the cherki only etc as pointed out by Mr. Qayoom does not persuade us to disbelieve the case in view of the cogent evidence produced by the prosecution. 34. Relying on Balaur Singh v. State of Punjab AIR 1995 SC 1956 and Addha v. State of M.P., Mr. Qayoom submits that the deceased has died after seven days of the occurrence is a mitigating circumstances in favour of the appellant. But this circumstance in our view cannot be accepted in favour of the appellant as the deceased fell down unconscious immediately on sustaining injury inflicted by the appellant. He continued to remain unconscious till his death in the SKIMS, Srinagar and this fact would show that he had received a severe blow on his head which resulted in his death. Time gap between the occurrence and the death of the deceased will not absolve the appellant from the liability or mitigate it. 35. He continued to remain unconscious till his death in the SKIMS, Srinagar and this fact would show that he had received a severe blow on his head which resulted in his death. Time gap between the occurrence and the death of the deceased will not absolve the appellant from the liability or mitigate it. 35. In these circumstances we find the conclusions arrived at by the trial court about the guilt of the appellant are fully justified on the basis of evidence led by the prosecution in the case. We find that due reasons have been recorded by the trial Court after properly appreciating the evidence of the prosecution. We do not find that the grounds raised in the memorandum of appeal or taken during arguments on behalf of the appellant are sufficient to persuade us to take a different view from the one taken by the trial Court. 36. In the totality of the circumstances we find no ground is made out to interfere with the judgment impugned in the present appeal. While maintaining conviction recorded by the trial Court and sentence passed by it on the appellant, we confirm the same and dismiss the present appeal.