JUDGMENT

DESAI, J.:— Appellant Randhir Singh alias Dhire has been convicted for having committed an offence under S. 302. Indian Penal Code in that on July 4, 1979. he gave a blow with a Kassi on the head of Mohan Singh who under the impact of the blow fell down on the ground. He was removed to the hospital where he died on July 10, 1979. Autopsy on the dead body of Mohan Singh was conducted by P. W. 1 Dr. S. C. Garg on the very day. He noticed the following injuries :

1. A stitched wound on the right frontal parietal region 2" in length. It was approximately bone deep.

2. A surgical wound on the right temporal region for burr (sic) hole.

3. There was bruising of the right eye with ecchymosis of the bulbar conjunctive.

On internal examination the autopsy surgeon found under the seat of injury No. 1 a fissured fracture extending from the side of the wound to the base of the skull covering the middle cranial fossa.

2. The appellant and his father Shamsher Singh were tried by the learned Sessions Judge for having committed an offence under Sec. 302, I. P.C. and Sec. 302 read with Sec. 34. I. P. C. respectively. The learned Sessions Judge convicted both of them for the offence with which each of them was charged and sentenced each of them to suffer imprisonment for life. Shamsher Singh, the second accused was also directed to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for one year.

3. In the appeal preferred by both the accused a Division Bench of the High Court of Punjab & Haryana held that the charge against Shamsher Singh was not brought home and he was given benefit of doubt and acquitted. Conviction of the appellant and the sentence imposed upon him were confirmed.

4. When the special leave petition came up before this Court, a notice was issued limited to the nature of offence and sentence only and special leave was also limited to the same.

5. Appellant was aged about 18 1/2 years on the date of occurrence being July 4, 1979. According to the prosecution he gave one blow with kassi. This blow was given on July 4. 1979, at about 12 noon. Victim Mohan Singh died in the hospital on July 10, 1979. In the opinion of the medical officer who carried out the autopsy death occurred on account of intra-cranial haemorrhage as a result of injury No, 1. In the opinion of medical officer this injury was sufficient in the ordinary course of nature to cause death. In the background of these facts. the question arises, as to what is the offence committed by the present appellant. Unfortunately the High Court has not dealt with this aspect. The High Court took into consideration the fact that there were three injuries on the dead body and that injury no. 1 is attributed to the present appellant. Thereafter there is an observation which is contrary to record. It reads as under :

"Other two injuries are just bruises and simple in nature."

This is factually incorrect because injury No. 2 is not an injury caused by anyone but was a surgical wound caused for the purpose of performance of an operation on the deceased. Injury No. 3 is a bruise and is an injury of a trivial character. It is not even the prosecution case that the present appellant gave more than one blow with kassi or with any other weapon.

6. It is at this stage necessary to recall the circumstances under which the appellant is alleged to have given one blow with kassi. Facts alleged and held proved are that deceased Mohan Singh had constructed a house in the phirni (outer circuitous road) of village Khasi Khurd. He had installed a water pump near his house. Appellant and his father belonged to village Khasi Kalam and they had purchased agricultural land adjacent to the Phirni of village Khasi Khurd. On the date of the occurrence Smt. Amar Kaur widow of the deceased was cleaning utensils at the water Pump and the deceased was washing his hands and face. Appellant started digging earth from village Phirni and started throwing it towards the water pump. Mohan Singh ask