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2025 DIGILAW 666 (HP)

Kulwant Singh v. State of Himachal Pradesh

2025-04-07

RAKESH KAINTHLA

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JUDGMENT : (Rakesh Kainthla, J.) The present appeal is directed against the judgment of conviction and order of sentence dated 29.03.2008 passed by learned Sessions Judge, Kangra at Dharamshala, H.P. (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 304-Part II of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for 3 years, pay a fine of Rs.10,000/- and, in default of payment of the fine, to undergo further simple imprisonment for five months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 304 of the IPC. It was asserted that Ranjeet Kumar, Up Pardahan Kalhoa (PW-8), informed the police on 10.11.2005 that Amar Singh (since deceased) was beaten by Hardev Singh and Kulwant Singh. He was taken to Jalandhar Hospital, where he succumbed to his injuries. The police recorded the entry in the daily diary (Ext. PW-12/A). SI Ranjeet Singh (PW-14) went to the spot for verification. He recorded the statement of Sunil Kumar (Ext.PW-3/A) and sent it to the Police, where F.I.R. (Ext. PW-11/A) was registered. Avinash Sharma (PW-10) took photographs of the spot (Ext.PW-10/A-1 and A-2), and the dead body (Ext.PW-10/A-3 to Ext.PW-10/A-5), whose negatives are Ext.PW-10/A-6 to A-10. SI Ranjit Singh (PW-14) inspected the dead body and prepared the inquest reports(Ext.PW2/B and Ext.PW-2/C). He filed an application (Ext.PW-2/A) for an autopsy of the dead body. Dr Suman Dhiman (PW-2) conducted the post-mortem examination of the deceased,and she issued her report (Ext.PW-2/D) stating that the injury sustained by the deceased could have been sustained by falling on a metalled road. The injury was sufficient to cause death in the ordinary course. Ranjit Singh (PW-14) prepared the spot map(Ext.PW-14/A). Babu Ram (PW-7) produced a blood-stained shirt(Ext.P-5) and pants(Ext.P-6) of the deceased. These were seized vide memo (Ext.PW-7/A). Ranjit Singh obtained the prescription slip (Ext.PW-14/B) and the treatment summaries(Ext.PW-15/A and Ext.PW-15/B). He filed an application (Ext.PW-2/E)to obtain the final opinion of Dr. Suman Dhiman. She issued the final report (Ext.PW-2/F). Ranjit Singh (PW-14) prepared the spot map(Ext.PW-14/A). Babu Ram (PW-7) produced a blood-stained shirt(Ext.P-5) and pants(Ext.P-6) of the deceased. These were seized vide memo (Ext.PW-7/A). Ranjit Singh obtained the prescription slip (Ext.PW-14/B) and the treatment summaries(Ext.PW-15/A and Ext.PW-15/B). He filed an application (Ext.PW-2/E)to obtain the final opinion of Dr. Suman Dhiman. She issued the final report (Ext.PW-2/F). The case property was sent to SFSL Junga for analysis, and reports (Ext.PW-14/D and Ext.PW- 14/E) were issued stating that no poison/alcohol was found in the viscera, and human blood was found on the shirt and pants of the deceased. After the completion of the investigation, the challan was presented before the learned Judicial Magistrate First Class, Dehra, who committed it to the learned Sessions Judge, Kangra at Dharamshala (learned Trial Court) for trial. 3. The Learned Trial Court charged the accused with the commission of an offence punishable under Section 304 of the IPC, to which the accused pleaded not guilty and claimed to be tried. 4. The prosecution examined 15 witnesses to prove its case. Dr Jitender Sandhu (PW-1) initially examined victim Amar Singh. Dr Suman Dhiman (PW-2) conducted the post-mortem of the deceased. Sunil Kumar (PW-3), Ajeet Singh (PW-4), Raj Kumar (PW-5) and Rajinder Kumar (PW-6) are the witnesses to the incident. Babu Ram (PW-7) accompanied the deceased to Jalandhar. Ranjit Kumar (PW-8) informed the police about the death. Kanta Devi (PW-9), wife of the deceased, was told about the incident. Avinash Sharma (PW-10) took the photographs.ASI Sansar Chand (PW-11) signed the F.I.R. Thakru Ram (PW-12) was working as MHC, with whom the case property was deposited. Pardeep Kumar (PW-13) carried the case property to SFSL Junga. Ranjit Singh (PW-14) conducted the investigation. Dr Sandeep Goel (PW-15) examined the deceased at Jalandhar. 5. The accused in his statement recorded under Section 313 of Cr.P.C. stated that the deceased was under the influence of liquor and he fell on the metalled portion of the road. He could not control himself and sustained an injury on his head. He and other persons lifted the deceased and kept him on Chabutra. He also provided water to the deceased. He was falsely implicated due to the enmity. The statement of Subhash Chand (DW-1) was recorded in defence. 6. The learned Trial Court held that the testimonies of the witnesses corroborated each other on material particulars. He and other persons lifted the deceased and kept him on Chabutra. He also provided water to the deceased. He was falsely implicated due to the enmity. The statement of Subhash Chand (DW-1) was recorded in defence. 6. The learned Trial Court held that the testimonies of the witnesses corroborated each other on material particulars. The medical evidence also corroborated the testimonies of prosecution witnesses. The defence version that the deceased fell on the metalled portion of the road in a state of intoxication, and a false case was made against the accused due to the enmity was not probable. Minor contradictions in the prosecution witnesses were not sufficient to discard them. Hence, the learned Trial Court convicted and sentenced the accused as aforesaid. 7. Being aggrieved by the judgment and order passed by learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. The incident is stated to have taken place on 07.11.2005 at 6:00 p.m., and F.I.R. was lodged on 10.11.2005. No reason was assigned by Sunil Kumar (PW-3) for not reporting the matter to the police. The delay in reporting the matter to the police made the prosecution’s case highly suspect. The prosecution’s witnesses contradicted each other on material aspects. Learned Trial Court erred in convicting and sentencing the accused, therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8 I have heard Mr.Rajesh Mandhotra, learned counsel for the appellant/accused, and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State. 9. Mr. Rajesh Mandhotra, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The testimonies of the prosecution’s witnesses contradicted each other. The defence version that the deceased fell in a state of intoxication was highly probable. The matter was not reported to the police immediately, and this casts doubt on the prosecution's case. In any case, the learned Trial Court erred in convicting the accused for the commission of an offence punishable under Section 304 Part II of the IPC. Assuming the prosecution's case to be correct,the accused had only pushed the victim, and he died due to a fall. In any case, the learned Trial Court erred in convicting the accused for the commission of an offence punishable under Section 304 Part II of the IPC. Assuming the prosecution's case to be correct,the accused had only pushed the victim, and he died due to a fall. This was a case of a simple hurt and learned Trial Court erred in convicting the accused for the commission of an offence punishable under Section 304 Part II of the IPC. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the judgment in Jani Gulab Shaikh v. State of Maharashtra, 1970 SCC (Cri) 532, in support of his submission. 10. Mr. Jitender K. Sharma, learned Additional Advocate General, submitted that the prosecution witnesses consistently deposed about the quarrel and the accused pushing the deceased to the ground. Their testimonies were corroborated by the medical evidence. Learned Trial Court had rightly convicted the accused for the commission of an offence punishable under Section 304Part-II of IPC. No interference is required with the judgment and order passed by the learned Trial Court. Hence, he prayed that the appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. It was submitted that there was a delay in reporting the matter to the police. The incident had taken place on 08.11.2005 and the report/FIR was lodged on 10.11.2005. No explanation has been provided for the delay,which is fatal to the prosecution's case. This submission cannot be accepted. Sunil Kumar (PW-3) stated that Amar Singh fell on the metalled road and his head struck against the road. The blood started oozing out of the head. He was taken to his home. His condition deteriorated and he was taken to the Government Hospital, Garli, and thereafter to Dehra and Jalandhar. He died inJalandhar. Thus, the family of the deceased thought initially that the injury was not serious,but when the condition worsened, he was taken to the hospital. The family was concerned about the treatment being given to the deceased and cannot be faulted for not reporting the matter to the police. He died inJalandhar. Thus, the family of the deceased thought initially that the injury was not serious,but when the condition worsened, he was taken to the hospital. The family was concerned about the treatment being given to the deceased and cannot be faulted for not reporting the matter to the police. It was laid down by the Hon’ble Supreme Court in Ravi Kumar v. State of Punjab , (2005) 9 SCC 315 : (2006) 1 SCC (Cri) 738: 2005 SCC OnLine SC 491 that the delay caused by taking the injured to the hospital is not sufficient to doubt the prosecution case. It was observed at page 319: “11. As the evidence on record shows, the occurrence took place around 7 a.m. on 30-5-1996. In the said occurrence the deceased was seriously injured. Therefore, the first priority of his brothers i.e. Mohan Lal (PW 3) and Ram Lubhaya was to provide immediate medical aid so that his life could be saved. He was immediately taken to Primary Health Centre, Jadla and thereafter was taken to Civil Hospital, Nawanshahr. There the doctor after examining him found the condition to be serious and referred the patient to PGI at Chandigarh where he ultimately died at 1.15 p.m. After his death, PW 3 lodged the first information report at Police Station Nawan- shahr shortly thereafter, after making arrangements for his funeral. The distance between the hospital and the police sta- tion is a few kilometres. The special report was received by the Illaqa Magistrate shortly after midnight. The sequence of events as is evident from the record shows that there was no unreasonable delay in lodging the FIR as the first effort of his brothers was to take the deceased to different hospitals for medical aid. As has been rightly observed by the courts below the first priority of the family members was to save the life of the deceased. Similarly, there was no unexplained delay in sending the special report to the Special Magistrate, as the distance between the police station and the place where the Illaqa Magistrate was stationed was not small. 12. As has been rightly observed by the courts below the first priority of the family members was to save the life of the deceased. Similarly, there was no unexplained delay in sending the special report to the Special Magistrate, as the distance between the police station and the place where the Illaqa Magistrate was stationed was not small. 12. In Ram Jag v. State of U.P. [ (1974) 4 SCC 201 : 1974 SCC (Cri) 370: AIR 1974 SC 606 ] it was observed as follows : (SCC p. 208, para 16) Whether the delay is so long as to throw a cloud of suspi- cion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be con- doned if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. It is true that witnesses cannot be called upon to explain every hour's delay in filing information and a common-sense view has to be taken in ascertaining whether the first infor- mation report was lodged after an undue delay so as to afford enough scope for manipulating evidence.” 13. It was laid down in Ramdas v. State of Maharashtra (2007) 2 SCC 170 : (2007) 1 SCC (Cri) 546: 2006 SCC OnLine SC 1167 that the delay in lodging the FIR has to be seen in the light of the circumstances of the case. It was observed at page 179: “24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that a mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circum- stances of the case, and in a given case the court may be sat- isfied that the delay in lodging the report has been suffi- ciently explained. This fact has to be considered in the light of other facts and circum- stances of the case, and in a given case the court may be sat- isfied that the delay in lodging the report has been suffi- ciently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of a direct explanation, there may be circum- stances appearing on record which provide a reasonable ex- planation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the po- lice station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sex- ual offences, there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only af- ter considerable persuasion, the prosecutrix may be per- suaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ulti- mate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in an-other. (See Pandurang v. State of Hyderabad [ (1955) 1 SCR 1083 : AIR 1955 SC 216 ] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.” 14. Sunil Kumar (PW-3) stated that Amar Singh was his uncle. On 08.11.2005 (sic) at about 6:00 p.m., he (Sunil Kumar)went to purchase vegetables from the Bus Stand Kaloha. Amar Singh came from the upper side. His foot struck against the earth, and he fell on the counter of the shop of the accused. The accused had kept Ladoos in a big plate. The Ladoos fell because of the fall of Amar Singh. Accused Kulwant and his father were sitting in the shop. They got angry.They came out of the shop and started beating Amar Singh with fist and kick blows The accused also pushed Amar Singh, and Amar Singh fell on the metalled portion of the road. His head struck against the road, and he suffered injuries. He denied in his cross-examination that his uncle had consumed liquor on the date of the incident. 15. His head struck against the road, and he suffered injuries. He denied in his cross-examination that his uncle had consumed liquor on the date of the incident. 15. The defence version that the deceased had consumed liquor is not supported by Dr Jitender Sandhu (PW-1), who stated that he had treated the deceased and prepared the prescription slip. He has nowhere stated that the deceased had consumed alcohol or that his breath smelled of alcohol. Thus, the defence version that the deceased was intoxicated is not acceptable. 16. Dr Jitender Sandhu (PW-1) admitted in his cross- examination that he was not told about the giving of beating by someone. It was submitted that failure to give a history of beating to the doctor shows that the prosecution's version regarding the beating is an afterthought. This submission cannot be accepted. The concern of the attendants would have been to get the treatment to the deceased and not disclose how the incident had taken place. Further, it is not known whether the attendants were present on the spot and were aware of the fact that the deceased was beaten and had fallen on the metalled road; therefore, they cannot be blamed for not disclosing to the doctor regarding the beating. 17. Dr. Sandeep Goel (PW-15) stated in his cross- examination that, as per history, Amar Singh was a chronic alcoholic. It was submitted that the history given to Dr. Sandeep Goel (PW-15) shows that the deceased was an alcoholic. This admission will not make any difference because the question involved in the present case is whether the accused had beaten the deceased and not whether the deceased was an alcoholic or not. The statement of Sunil Kumar (PW-3) is quite specific that the accused had beaten the deceased after the deceased had fallen on the plate containing Ladoos. 18. Ajeet Singh (PW-4) stated that he had visited the Bus Stand on 08.11.2005 to send his son to Solan. He was standing on the roadside in front of the shop of Hardev Singh, father of the accused Kulwant. Amar Singh came from the upper side towards the shop. He stumbled and fell on the counter of the shop. The accused had kept sweets on a big plate on the counter. The plate fell due to the fall of Amar Singh. Amar Singh came from the upper side towards the shop. He stumbled and fell on the counter of the shop. The accused had kept sweets on a big plate on the counter. The plate fell due to the fall of Amar Singh. The accused came out of the shop and slapped Amar Singh, who fell on the metalled portion of the road. He sustained injuries on the rear side of the head. The blood started coming out. The accused threw 2 to 3 containers of water on Amar Singh’s face. Amar Singh was kept on Chabutra and was unconscious. Sunil and other villagers were present on the spot. He stated in his cross-examination that he had not reported the matter to the Panchayat or the police. He was not aware that Amar Singh consumed alcohol, and he fell on the counter and thereafter on the road in a state of intoxication. He saw the accused slapping the deceased. He denied that he was not present on the spot and that he was making false statement. 19. There is nothing in the cross-examination of this witness to show that he was making a false statement. He has given a valid explanation regarding his presence on the spot. It was suggested to him that Amar Singh fell on the counter and thereafter on the road in a state of intoxication, which shows that his version that Amar Singh fell on the counter is not disputed. Since there is nothing inherently improbable in his testimony, therefore learned Trial Court had rightly relied upon the same. 20. Raj Kumar (PW-5) stated that he was present in his shop on 07.11.2005 at 6:00-6:30 p.m. Amar Singh came from the upper side. His foot slipped and he fell on the counter where a big plate containing Ladoos was kept. Ladoos scattered. The accused came out of the shop and slapped Amar Singh, due to which Amar Singh fell on the metalled portion of the road. He was permitted to be cross-examined. He stated that the incident had taken place 2-3 days before 10.11.2005. He denied that he had told the police that the incident had taken place on 08.11.2005. He stated in his cross- examination by learned defence counsel that Amar Singh used to consume liquor, but he never consumed any liquor in his presence. He denied that Amar Singh fell on the road. He denied that he had told the police that the incident had taken place on 08.11.2005. He stated in his cross- examination by learned defence counsel that Amar Singh used to consume liquor, but he never consumed any liquor in his presence. He denied that Amar Singh fell on the road. He could not say whether Amar Singh was intoxicated or not. He admitted that Kulwant Singh was inimical to Amar Singh. He admitted that he had not reported the matter to the police. 21. It was submitted that this witness had mentioned the date of the incident as 07.11.2005, however, that is not material. He was making the statement before the Court on 15.05.2007, two years after the incident. Hence, the discrepancy was bound to come in his testimony. Further, the defence has not disputed that Amar Singh had fallen on the road. The only dispute is whether he was pushed or fell by himself. Therefore, the discrepancy in the date mentioned by this witness will not make his testimony suspect. 22. Rajinder Kumar (PW-6) corroborated the prosecution version. He stated that he was present at Kaloha on 08.11.2005 at 6:15 p.m. He and his nephew were waiting for the bus. Amar Singh came from the upper side of the road. His foot slipped. He fell on the counter where the accused had kept Ladoos on a big plate. The plate fell and Ladoos scattered. The accused came out of his shop and slapped Amar Singh. Amar Singh fell on the metalled road and sustained injuries on the back of his head. He stated in his cross- examination that Sunil, Ajeet Singh, Raj Kumar, Jodha Ram and Ranjit have the same caste. He admitted that the accused belonged to a different caste. He returned from Solan after 5-6 days. He did not remember the date because he wasnot good at remembering dates. He noticed that blood was oozing out of the back of the head and ear of the deceased. The date was told by Ajeet Singh (PW-4). He denied that he was making a false statement regarding the accused slapping the deceased. 23. There is nothing in his cross-examination to suggest that he was making a false statement. It was suggested to him that he belonged to the same caste as the informant, deceased and other witnesses, but that is hardly any reason to make any false statement. 23. There is nothing in his cross-examination to suggest that he was making a false statement. It was suggested to him that he belonged to the same caste as the informant, deceased and other witnesses, but that is hardly any reason to make any false statement. Thus, the learned Trial Court had rightly relied upon his testimony. 24. Dr Suman Dhiman (PW-2) conducted the post-mortem examination of the deceased. She found that the meninges were torn in the right temporoparietal region, and the subarachnoid space contained blood. There was clotted blood in the right ear. The deceased died due to a head injury (subarachnoid haemorrhage). In her opinion, the injury could have been caused by way of fall. She admitted that injury is possible by falling while intoxicated. Her cross-examination shows that the defence has not disputed that the injury could be caused by a fall. Her testimony corroborates the statements of the prosecution witnesses that the deceased had sustained the injury by a fall. 25. It was submitted that the witnesses had not reported the matter to the police or the Panchayat. However, the mere failure to report the matter to the police or Panchayat will not make any difference. It was a case of 2-3 slaps and the person falling, which would not be considered important by any person; hence, failure to report the matter to the police will not be significant. 26. It was submitted that there are discrepancies in the testimonies of eyewitnesses and they had materially improved upon their version, which would make the prosecution's case suspect. The omissions brought out in the cross-examination are not significant. There was a discrepancy in the date in the statement of Sunil Kumar (PW-3), which is not significant. He had not told the police that blood was coming out of the ear, which is a minor omission to notice and will not affect his testimony. 27. Subash Chand (DW-1) stated that Amar Singh was a habitual drunkard. He was present in his shop on 07.11.2005 at 6:00p.m. Amar Singh came to the Bazar in a state of intoxication. He stumbled and fell on the road under the influence of liquor. He was given water and was kept on Tiala. Raj Kumar, Duni Chand, Sandeep Kumar and 4-5 other persons were present. 28. The statement of this witness establishes the presence of Raj Kumar, Duni Chand and Sandeep Kumar. He stumbled and fell on the road under the influence of liquor. He was given water and was kept on Tiala. Raj Kumar, Duni Chand, Sandeep Kumar and 4-5 other persons were present. 28. The statement of this witness establishes the presence of Raj Kumar, Duni Chand and Sandeep Kumar. His version was that Amar Singh stumbled and fell on the road is not acceptable because the injury was sustained by Amar Singh on the rear side of the head and not on the front side. A person stumbling would have fallen with the head down and not with the face up, therefore, the learned Trial Court had rightly discarded his version. 29. Therefore, it was duly proved that the accused had slapped and pushed the deceased, due to which he fell and sustained injury on his head. 30. The learned Trial Court convicted the accused of the commission of an offence punishable under Section 304 PartII of the IPC. This was not correct. In Jani Gulab Shaikh (supra), the accused abused the deceased, who was intoxicated. The deceased fell with his face towards the sky. He became unconscious and subsequently died. It was laid down by the Hon’ble Supreme Court that the accused cannot be posted with the knowledge that death was likely to result in the circumstances because it is very rare that a person falling on the road dies. It was observed at page 535: “6. We are unable to agree with the High Court that the ac- cused must be posted with the knowledge that death was likely to result in the circumstances the injuries were caused by him to the deceased. It is very rare that if a man is pushed and he falls on the road the occipital bone gets fractured. Here it is perhaps due to the drunken condition of the de- ceased that while falling he could not avoid his skull falling on the road. At any rate, in our opinion, it is difficult to im- pute knowledge to the accused that death was likely to result from the push he is alleged to have given. 7. If he is not guilty under Section 304, Part II, he cannot be convicted under Section 325, because no grievous injury has been inflicted by the accused. There is no evidence to show that Injury (iii) in Column 19 was grievous.” 31. 7. If he is not guilty under Section 304, Part II, he cannot be convicted under Section 325, because no grievous injury has been inflicted by the accused. There is no evidence to show that Injury (iii) in Column 19 was grievous.” 31. In the present case, no fracture was noticed by the Medical Officer, who conducted the post-mortem of the deceased. She only noticed that the meninges were torn in the right temporoparietal region and the subarachnoid space contained blood. Hence, in the present case, there is no evidence of any fracture and the accused cannot be convicted of the commission of an offence punishable under Section 325 of IPC but of the commission of an offence punishable under Section 323 of IPC. Hence, the conviction recorded by the learned Trial Court of the commission of an offence punishable under Section 304 Part-II of IPC is not sustainable. 32. In view of the above, the present appeal is partly allowed, judgment and order passed by the learned Trial Court are modified, and the accused is ordered to be convicted for the commission of an offence punishable under Section 323 of IPC. He is sentenced to undergo simple imprisonment for six months and pay a fine of Rs.1000/- and default on payment of the fine to further undergo simple imprisonment for one month for the commission of an offence punishable under Section 323 of IPC. He will be entitled to set off for the period spent by him as an undertrial prisoner. The modified warrant of sentence be issued accordingly. 33. The record of the learned Trial Court be returned with a copy of this judgment for the information of the learned Trial Court. 34. Appeal stands disposed of alongwith pending miscellaneous application(s), if any.