Delhi High Court

Raju vs State on 11 October, 2013

Author: V.P.Vaish

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on: 25th September, 2013
%                                  Date of Decision: 11th October, 2013

+                       CRIMINAL APPEAL No.1221/2012

RAJU                                                       ..... Appellant
                         Through:      Mr.Avninder Singh, Advocate.

                         versus


STATE                                                       ..... Respondent

                         Through:      Mr.Sanjay Lao, APP for the State.

CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. This appeal is directed against judgment dated 16th July, 2012

passed by the learned Additional Sessions Judge-03 (NE),

Karkardooma Courts, Delhi whereby the appellant has been convicted

for the offence punishable under Section 304 Part I of the Indian Penal

Code (hereinafter referred to as „IPC‟). Vide order on sentence dated

17.07.2012, he has been sentenced to undergo rigorous imprisonment

for life and also to pay a fine of Rs.10,000/- and in default of payment

of fine to further undergo six months rigorous imprisonment.

2. Briefly stated, the case of the prosecution is that on 29.02.2008

on receipt of DD No.11A at 10.52 a.m., ASI Rajeshwar along with

Constable Brij Pal reached the spot near B-Block, Gali No.10, House

of Kallu, Siri Ram Colony and observed that a lot of blood was lying

on the floor. A piece of stone and a blood stained wooden thapki were

also lying on the spot. On enquires, it was revealed that injured had

already been removed to GTB Hospital. ASI Rajeshwar, after leaving

Constable Brij Pal at the spot went to hospital and collected MLC of

Javitri (deceased) who was declared „brought dead‟ by the doctor at

GTB Hospital. ASI Rajeshwar (IO) returned to the spot and recorded

statement of Mahender Singh, an eye-witness. In his statement to the

police, Mahender Singh, s/o Ram Chander Singh stated that he was

going to the house of Bechhe Singh at Gali No.10, Siri Ram Colony,

for collecting money as Bechhe Singh owed money to him. At about

10.30 a.m., when he was outside the house of Bechhe Singh, he saw

that a lady was washing clothes in the house in front of the house of

Bechhe Singh and her Jeth-Raju (appellant) was asking her to wash his

clothes in a raised voice. The said lady replied „kal dho dunge‟ (would

wash his clothes tomorrow). The appellant-Raju got enraged and lifted

a stone which was lying near and hit the lady on her head and at other

places on her body, as a result of which, she fell on the floor and was

bleeding profusely from her head. Later on, the name of said lady was

revealed as Javitri. He tried to apprehend the appellant but he pushed

him and fled away from the spot. Somebody called at number 100.

PCR van came at the spot and removed Javitri at the hospital. On the

basis of rukka, FIR was got registered under Section 304 IPC.

Inspector Ajmer Singh also reached at the spot. Crime team inspected

the spot. Photographs were taken. The stone, wooden thapki, blood

stained earth control, blood stained earth and blood sample were

seized. Site plan was prepared. On 29.09.2008, the appellant was

apprehended at about 10.30 p.m. His blood stained jeans pant and shirt

were seized. Post mortem was got conducted on the body. Clothes of

the deceased and scalp hair were also seized. After post mortem, the

dead body was handed over to her father Ram Veer Singh. Scaled site

plan was got prepared. On completion of investigation, charge-sheet

was filed and the trial was conducted. The prosecution produced

various witnesses and their statements were recorded, leading finally to

the passing of the impugned judgment and order on sentence.

3. Learned counsel for the appellant contended that the judgment

of learned trial Court is erroneous and is based on conjectures and

surmises. The trial Court has failed to take into consideration that

there are material contradictions in the testimonies of prosecution

witnesses Mahender Singh (PW-1), Ram Veer Singh (PW-4) and IO

ASI Rajeshwar Singh (PW-18). Ram Veer Singh (PW-4) and Satya

Wati (PW-5) are hearsay witnesses and their testimonies cannot be

relied upon as they were not present on the spot when the incident had

occurred. The blood stained clothes were alleged to have been

recovered by Inspector Ajmer Singh (PW-16) from the appellant,

however, there is nothing on record to suggest that the clothes were

that of the appellant/accused and these clothes have been thrusted upon

him to strengthen the case of prosecution. The deceased was at the

time of incident, washing clothes, however, no soap or detergent have

been seized and no hand pump is shown in any of the photographs.

Otherwise also, Dr. Sumit Tellewar (PW-17) has not given an

observation with respect to the fact that soap was detected on the finger

tip of the deceased.

4. It was further contended that the appellant has been falsely

implicated at the instance of Mahender Singh (PW-1) who was a local

leader and had an altercation with the appellant, a day prior to the

incident and also on one occasion, appellant had slapped him. Puneet

Kumar (PW-13) has stated that on the date of incident, the appellant-

Raju and he had left for the work at about 9.00 a.m. His brother was

working with him. In such a case, the possibility of the appellant being

the perpetrator of the crime is totally ruled out.

5. It was lastly contended that Mahender Singh (PW-1) has stated

that the appellant had hit the deceased with a stone, however, as per

post mortem report, nine injuries were found on the body of the

deceased which are not explained by the prosecution. Without

prejudice to his contentions, even if it is presumed that the death was

caused by him, the case at best falls under Section 304 Part II IPC and

not under Section 304 Part I IPC.

6. Per contra, learned APP contended that the contradictions as

pointed out by the learned counsel for the appellant are not material so

as to rule out completely their evidentiary value. Statement of

Mahender Singh (PW-1) under Section 161 Cr.P.C., his statement

before the Court and his cross-examination are not contradictory rather

consistent throughout. In such a case, minor contradictions which are

not material in nature are not sufficient to wipe away his statement

completely and rule out its evidentiary value. The recovery of blood

stained clothes from the appellant stands proved from the testimonies

of Inspector Ajmer Singh (PW-16), HC Brij Pal (PW-11) and HC

Pramod Kumar (PW-12) which are consistent and corroborated in

material parts with each other.

7. Learned APP for the State further contended that a mere non-

seizure of soap, detergent etc. cannot be considered a material defect at

the best, a case of faulty investigation which does not dent the case of

prosecution when it is otherwise well established from other counts.

The statement of Puneet Kumar (PW-13) also does not help the

appellant, as the presence of the appellant with the said witness at the

time of incident or in being such a state as in all circumstances rule out

the possibility of his not being the perpetrator of crime is not made out.

The onus was on the appellant to clearly take the plea of defence of

alibi and prove it, which he has failed to discharge. It was lastly

contended that as per the post mortem report, the case of appellant, as

per nature of injuries described therein and their sufficiency to cause

death clearly brings the case of the appellant under Section 304 Part I

IPC and not under Section 304 Part II IPC.

8. We have carefully considered the submissions made by learned

counsel for the appellant and learned APP for the State and have

carefully gone through the material available on record.

I Sole eye-witness

9. Mahender Singh (PW-1) who is the sole eye-witness to the

incident has stated in his testimony that on 29.02.2008, he had gone to

Siri Ram Colony, Delhi to the house of Bechhe Singh, whose house is

situated in front of the place of occurrence. He reached the house of

Bechhe Singh at about 10/10.30 a.m. He heard some voice from the

house situated in front of house of Bechhe Singh. He saw that

appellant-Raju was beating to the wife of his younger brother with

stone. He rushed there and tried to apprehend the appellant-Raju, but

he pushed him and ran away from the spot. He came to know the

name of the injured woman as Javitri. He informed the police at 100

number but the police did not reach there. He again called the police

on 100 number, thereafter the police gypsy reached there and injured

was removed to the hospital. His statement was recorded by the police

which is Ex.PW1/A and bears his signature. The police lifted some

blood from the spot vide seizure memo Ex.PW1/B, some blood stained

earth was also lifted from the spot and taken into possession vide

seizure memo Ex.PW1/C, earth control vide seizure memo Ex.PW1/D,

stone by which the appellant inflicted injuries was also taken into

possession vide seizure memo Ex.PW1/E and one wooden thapki was

seized vide seizure memo Ex.PW1/F and all the memos bear his

signature.

10. It is a well settled law that the Court can and may act on the

testimony of a single witness provided he is wholly reliable. There is

no impediment in convicting a person on the sole testimony of a single

witness. That is the logic of Section 134 of Indian Evidence Act, 1872,

but if there are doubts about the testimony, the court will insist on

corroboration. In fact, it is not the number, the quantity, but the quality

that is material. The time-honoured principle is that evidence has to be

weighed and not counted. The test is whether the evidence has a ring of

truth, is cogent, credible and trustworthy or otherwise. The legal

system has laid emphasis on value, weight and quality of evidence

rather than on quantity, multiplicity or plurality of witnesses. It is,

therefore, open to a competent court to fully and completely rely on a

solitary witness and record conviction. Conversely, it may acquit the

accused in spite of testimony of several witnesses if it is not satisfied

about the quality of evidence.

11. As regards the contradictions in the testimony of eye-witness

Mahender Singh it was contended that Mahender Singh (PW-1) has

stated in his testimony that he made a call to police at number 100 and

when police did not reach there, he again called at 100 number. In his

cross-examination, he had stated that he made a call to the police on

100 number and some other person had also made another call on 100

number, hence, there were two calls to 100 number. Also, it was

further pointed out by learned counsel for the appellant that PW-1 has

testified that his statement was recorded by IO ASI Ajmer Singh IO

though the statement of PW-1 was recorded by the first IO namely,

ASI Rajeshwar Singh (PW-18) who stated in his testimony that he

recorded the statement of eye-witness which is Ex.PW1/A and put his

endorsement on the same. Further, PW-1 has stated that he was called

by the police in the evening from his house and he remained there for

15-20 minutes at the time when the statement of father of the deceased

was recorded though Ram Veer Singh (PW-4) has deposed that his

statement was recorded by the police at the police station at about

12.30 p.m. These contradictions, in our opinion, are not material. It is

no longer res integra that while appreciating the evidence, the Court

has to take into consideration whether the contradictions, omissions,

improvements, embellishments etc. had been of such magnitude that

they may materially affect the trial. Minor contradictions,

inconsistencies, omissions or improvements on trivial matters without

affecting the case of the prosecution, should not be made a ground for

the Court to reject the evidence in its entirety. The Court, after going

through the entire evidence must form an opinion about the credibility

of the witnesses. Otherwise also, in all criminal cases, normal

discrepancies are bound to occur in the depositions of the witnesses

due to normal errors of observation, namely, error of memory due to

lapse of time or due to mental disposition such as shock and horror at

the time of occurrence.

12. With regards the plea of false implication of the appellant at the

instance of Mahender Singh (PW-1), who was the local leader, we

observe that it is merely a blatant allegation against PW-1 and is not by

in itself sufficient to vitiate the veracity and authenticity of the

statement of the said witness. The appellant has not produced any

evidence or witness in support of his contention. On the contrary,

when the question regarding this was put to PW-1 in his cross-

examination, he has denied being the leader of the area and also denied

of an altercation having taken place with the appellant one day prior to

the incident in relation to one drain. He also denied the suggestion

regarding the fact that the appellant had slapped him once. He

affirmed that no incident of quarrel ever took place with the appellant.

II. Seizure of clothes from the appellant

13. Inspector Ajmer Singh (PW-16) has stated in his testimony that

he searched for the appellant and at the pointing out of secret informer,

the appellant was apprehended from main market Khajuri. HC Pramod

Kumar and Constable Brij Pal (PW-11) had also joined the arrest of

appellant. The appellant was wearing pant and shirt which were blood

stained and the same were taken into possession vide seizure memo

Ex.PW11/C. HC Pramod Kumar (PW-12) has deposed on the same

lines that on the request of SI Ajmer Singh, he joined the investigation.

They went to Siri Ram Colony, Main Road and at the pointing out of a

secret informer, the appellant-Raju was apprehended by the IO. He

was wearing pant shirt and it was having blood stains. The pant and

shirt were taken into possession by the police after converting the same

into a parcel with the seal of AS. In his cross-examination also, he

reiterated that the appellant was wearing a blue colour jeans and

angoori colour stripe shirt and also that he observed blood stains on the

front portion of the pant and shirt. On the same lines, Constable Brij

Pal (PW-11) has deposed that at the instance of a secret informer from

B-C Block on the road, the appellant was apprehended and also that he

had observed blood marks on pant/shirt worn by him. One blue

coloured jeans pant and light greenish (halki angoori) lining shirt

which appellant was wearing at the time of his apprehension were

taken into possession and covered into a parcel sealed with a seal of

AS was affixed and seized vide seizure vide Ex.PW11/C.

14. The purpose of putting the incriminating material to the accused

under Section 313 Cr.P.C. is to afford an opportunity to explain the

facts and circumstances and explaining these incriminating

circumstances. It is the duty of the accused to explain incriminating

circumstances proved against him while making a statement under

Section 313 Cr. P.C. Keeping silent or not furnishing any explanation

of such circumstances is an additional link in the chain of

circumstances to sustain charge against him. In the present case, the

statement of PW-16, PW-12 and PW-11 consistently point out that the

said blood stained clothes were recovered from the appellant on his

apprehension. A question was even put to the appellant under Section

313 Cr. P.C. to the effect that he was wearing blood stained jeans pant

Ex.PW11/1 and shirt Ex.PW11/2 at the time of his arrest and the same

were taken into possession and seized vide seizure memo Ex.PW11/C

to which he replied the same as incorrect. However, he never stated

that these clothes did not belong to him, nor was any suggestion given

by him to the witness that the said clothes were planted. Also,

PW-11 has denied the suggestion in his cross-examination that the

appellant has been falsely implicated in this case and also denied the

suggestion that the deceased fell down from a height and had sustained

injuries. Also, he denied that the blood which has been found on the

clothes of the appellant was his own blood which has come out from

the injuries caused to him by some persons with knife. The statement

of PW-11, PW-12 and PW-16 regarding recovery of clothes cannot be

effaced simply for the reason of they being police officials. Once from

their statement, it is made out consistently that the said clothes were

recovered from the appellant, it was his duty to explain and deny the

said allegations which he has failed to discharge.

III Non recovery of washing soap or washing powder

15. Learned counsel for the appellant has relied upon the statement

of Mahender Singh (PW-1) made to the police officer where he has

stated that the deceased was washing clothes at the time of incident,

however, according to the admission of PW-16, no soap or washing

powder was recovered from the spot nor was there any photograph

showing any water tap to contend that in such circumstances a doubt is

created regarding the prosecution story. This, however, according to

us, cannot be considered a material irregularity rather at best the case

of defective investigation. The law with regard to defective

investigation is well settled that the defect in the investigation by itself

cannot be a ground for acquittal. If primacy is given to such designed

or negligent investigations or to the omissions or lapses by perfunctory

investigation, the faith and confidence of the people in criminal justice

administration would be eroded. Where there has been negligence on

the part of the investigating agency or omissions, etc. which resulted in

defective investigation, there is a legal obligation on the part of the

Court to examine the prosecution evidence dehors such lapses,

carefully, to find out whether the said evidence is reliable or not and to

what extent it is reliable and as to whether such lapses affected the

object of finding out the truth.

16. The Supreme Court in State of West Bengal vs. Mir

Mohammad Omar and Ors. (2000) 8 SCC 382 observed:-

"41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, ill- equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above."

17. The accused cannot take advantage out of faulty investigation

where otherwise his guilt is made out from the statement of other

circumstances and statement of the witnesses looked at as a whole. In

the present case, although the washing powder and washing soap were

not recovered nor any photographs showing hand pump were taken, the

photograph placed on record Ex.PW8/A4 clearly show washing clothes

kept in a tub. Only due to the fact that the detergent and soap were not

seized, does not create a doubt in the prosecution story. The case of

prosecution is fully supported by the statement of Mahender Singh

(PW-1) who is the eye-witness to the entire incident.

IV Plea of alibi

18. Learned counsel for the appellant has relied upon the statement

of PW-13, who has stated in his cross-examination that he and his

brother Raju (appellant) had left for their work on the day of incident at

about 9.00 a.m and also that his brother was working with him to

contend that at the time of incident, the appellant was present with his

brother and not at the scene of the incident.

19. The Supreme Court in Jayantibhai Bhenkarbhai vs. State of

Gujarat, (2002) 8 SCC 165 has held that:

"19. The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). Sarkar on Evidence

(15th Edn., p. 258) states the word "alibi" is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts

in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court."

20. This, as we observe from the observations made by the Supreme

Court in the aforesaid judgment that it is a basic law of prosecution to

prove that the accused was present at the scene of crime and had

participated in the crime. The plea of accused in such cases need be

considered only when the burden has been discharged by the

prosecution satisfactorily. However, once the prosecution succeeds in

discharging its burden, it is incumbent on the accused, who adopts the

plea of alibi, to prove it with certainty so as to exclude the possibility

of his presence at the place of occurrence. It is also settled that when

the presence of the accused at the scene of occurrence has been

established satisfactorily by the prosecution through reliable evidence,

normally the Court would be slow to believe any counter-evidence to

the effect that he was elsewhere when the occurrence happened.

21. In the case at hand the statement of PW-1 clearly point out

towards the presence of the appellant at the spot of incident and he

being perpetrator of the crime. It is also worthwhile to mention here

that also PW-13 has nowhere in his examination-in-chief on

20.05.2011 stated that his brother was present with him when the

incident had occurred and it was only on 05.11.2011 that the said

witness had in his cross-examination stated that his brother and he

himself had gone to work on the day of incident at about 9.00 a.m. and

that his brother was working with him. A perusal of this statement too

shows that PW-13 has not stated that the appellant was with him

throughout or that he had no opportunity to part with him. He has only

stated that they had left for work at 9.00 a.m. on that day and that they

were working together. In such a case, it is not proved with certainty

the presence of the appellant at the place of incident at the time of

occurrence. On the other hand, from the statement of Mahender Singh

(PW-1), the presence of appellant at the spot of incident is established.

22. Even if it is presumed that the appellant had left for work on that

day, it is not proved that there was no occasion for him to not to return

to his home where the incident took place nor has he proved that the

situation so existed that his presence at the scene of crime can totally

be ruled out. In the light of the judgment of Supreme Court in

Jayantibhai Bhenkarbhai (supra), the onus was clearly on him which

he has failed to discharge.

V Post mortem and nature of injuries

23. Much emphasis is laid by learned counsel for the appellant to

contend that although according to the post mortem report, 9 injuries

were found on the body of the deceased whereas according to PW-1

the appellant took up the stone and hit the deceased on her head and in

such a case the prosecution has failed to explain all the injuries caused

to her on her person. In this respect, it would be pertinent to note that

the said witness PW-1 has stated in his statement to the police under

Section 161 Cr. P.C. that the appellant, on the date of incident, got

enraged listening to the statement of the deceased that she would be

washing his clothes the next day and lifted a stone which was lying

near and hit the lady on her head and at other places on her body, as a

result of which, she fell on the floor and was bleeding profusely from

her head. In his first statement on 09.09.2008 before a trial Court, he

again stated that he saw that the appellant-Raju beating the wife of his

younger brother with stone. It was only in his further examination on

20.08.2008, he stated that the appellant got agitated and picked up a

stone lying nearby and hit the lady on her head. This statement,

however, cannot be read in an isolation from the previous statement

made by the said witness on 09.09.2008 where he had revealed the

factum of appellant beating the wife of his brother with a stone and

also his statement made under Section 161 Cr. P.C. wherein he had

stated that the appellant had hit the deceased with stone on a head and

various parts of the body. Although, the prosecution is required to

prove the factum of injuries caused on the body of the deceased,

however, it is not required to prove each and every injury so caused

with absolute precision. In the case where the witness has deposed

about the factum of injuries and the appellant beating the deceased, he

was not required to explain each and every injury with utmost details.

24. Now coming to the plea of learned counsel for the appellant that

at best, the case of the prosecution, even if made out would fall under

Section 304 Part II and not under Section 304 Part I IPC, it may be

mentioned that the intention is a question of fact which is to be

gathered from the acts of the parties. The law looks as regards

intention to the natural result of a man‟s act and not to the condition of

his mind. So, when a normal man does an act, he should be credited

with the intention of doing that which is inevitable consequence of his

act. Further, the nature of intention has to be gathered from various

circumstances, for instance, the kind of weapon used, the part of body

hit, the amount of force employed and the circumstances attending

upon death. The practical difference between two phrases, „intention

of causing such bodily injury as is likely to cause death‟ and „a

knowledge that he is likely by such act to cause death‟ is expressed in

the punishment provided under Section 304 IPC. But, the phrase „with

the knowledge that he is likely by such act to cause death‟ includes all

cases of rash act by which death is caused, for rashness imports a

knowledge of the likely result of an act which the actor does in spite of

the risk. When no injury was inflicted on the vital organ of the

deceased, the case falls under Part II of Section 304 IPC because the

act was done with the knowledge that it was likely to cause death but

without any intention to cause death or to cause injury as was likely to

cause death.

25. In the instant case, according to the post mortem report

Ex.PW17/A, the following injuries were observed:-

"(1) Lacerated wound measuring 4.2 cm x 0.5 cm x bone deep, present horizontally over the left side of vertex of skull, 0.2 cm from mid line and 10.5 cm above left ear.

(2) Lacerated wound having an abraded boarder measuring 3 cm x 0.5 cm x bone deep present on the left temple region of face extending upto the left outer canthus of the eye with fracture of underneath frontal and orbital bones.

(3) Reddish abrasion contusion measuring 5 cm x 9.5 cm present on the left side of face extending from left ear laterally to left forehead region and left side of face below left eye medially.

(4) Lacerated wounds with abraded boarder measuring 4 cm x 1.5 cm x bone deep present over right side of forehead 3 cm from mid line and 0.1 cm above right eyebrow.

(5) Reddish abrasion contusion measuring 6 cm x 5 cm present on the right side of face extending from 2.2 cm in

front of right ear laterally till 0.5 cm lateral to outer canthus of right eye medially.

(6) Reddish abrasion contusion measuring 2 cm x 2 cm on the bridge of nose with underneath fracture of nasal bones.

(7) Lacerated wounds measuring 1.5 cm x 0.5 cm x bone deep present on the root of nose with underneath fracture of frontal and nasal bones.

(8) Lacerated wounds with abraded boarder measuring 2.9 cm x 0.6 cm x bone deep present over left side of chin with laceration and bruising of underneath mucosa of lower lip with fracture of left ramus of mandible.

(9) Reddish abrasion contusion measuring 3.5 cm x 8.5 cm present on right side of face, 2.5 cm below injury No.5 and 1.5 cm above left ramus of mandible."

26. A perusal of the post mortem report shows that the cause of

death was opined as, "shock as a result of antemortem head injury

produced by blunt force impact, injuries no.1, 2, 4 and 7 are

antemortem in nature and sufficient to cause death individually and

collectively". The injuries so inflicted are 9 in number and that too

directed on the vital part of the body i.e. the head, skull, face, eyes,

nasal bones, ramus of mandible etc. of the deceased. These injuries in

their nature show that the intention of the appellant was to actually

cause them. Further, it is proved from the post mortem report in which

injuries No.1, 2, 4 & 7 were opined individually and collectively

sufficient to cause death. In such a case, Section 304 Part II is ruled

out and the case squarely falls under Section 304 Part I IPC.