The intention to kill is a necessary element for a conviction under Section 325 IPC for causing grievous hurt resulting in death. In the absence of such intention, the offense may be reduced to simple hurt under Section 323 IPC.

N.S.Rao, J.

1. Bashisht Singh appellant stands convicted under Sec.325 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years.

2. The appellants father Sabhapati Singh was a brother of Gopal Singh, father of Ram Jan am Singh deceased. Rampati Singh PW is also a brother of Sabhapati Singh. Ram Babu Singh and Bishram Singh, the appellants co-accused (since acquitted) are his brother. Ram Sukh Singh PW is the brother of the deceased and Chandra Mohan Singh and Chandra Bhanu Singh PWs are the hitters sons. Anirudh Singh PW is the first cousin of the appellant, being son of Ram Pati Singh PW.

3. The prosecution version, in brief, is that although no regular partition of the ancestral properties of the parties had taken place, they are cultivating some lands separately for convenience, and the other lands Mill remain Joint. The deceased had settled some of the joint land on cash rent to one Lakhshmi Turha for growing Kharbuza. The deceased had given the share of cash rent collected from Lakshmi Turha to the appellant, but the appellant was of the view that he had been paid less. On 17-6-1979 at about 7.00 P.M. when the deceased and Rampati Singh PW were sitting on the same cot in the latters bathan, the appellant and his brothers Ram Babu Singh and Bishram Singh had arrived there. They had demanded extra amount from the deceased as the share of Kharbuza crop. The deceased had replied that whatever was due to them had already been paid. Thereupon, the parties had exchanged hot words and during the course of the same, the appellant had given one fast blow to Ram Jan-am Singh at the back of his neck and on the chest. Apart from Rampati Singh PW, the occurrence was also witnessed by Chandra Mohan Singh, Chandra Bhauu Singh and Ram Sukh Singh PWs as they were nearby. After committing the crime, and appellant and his brothers had fled away. Ram Janam Singh was found to have become unconscious. Therefore, he was removed and then got admitted as an indoor patient in the State Dispensary at Raghunath Pur.

4. Intimation regarding admission of Ram Janam Singh in the Dispensary at Raghunathpur was sent to Police Station Raghunathpur. Thereupon, Sub-Inspector G. Anthony PW had arrived. He could not record the statement of Ram Janam Singh during that night as he was still unconscious. S.I. Anthony PW had again arrived in the Dispensary at about 8.00 A.M. on 8-6-1987 and found Ram Janam Singh to be in a fit condition to make his statement Accordingly, statement Ext. 7 of Ram Janam Singh was recorded. For better treatment, Ram Janam Singh was being removed to Sadar Hospital at Siwan when he had died in the way. The case was registered and investigations were carried out. Statements of PWs were recorded and the appellant as also his co-accused arrested. After completion of the investigations, charge-sheets against them were submitted by S. I. Nagendra Kumar PW.

5. For proving its case, the prosecution had examined Chandra Mohan Singh PW1, Raghav Singh PW2, Chandra Bhanu Singh PW3, Rampati Singh PW4, Dr. Ram Subhag Singh PW5, S.I. Nagendra Kumar Singh PW6, Anirudh Singh PW7, Ramsukh Singh PW8, Dr. Sri Ram Singh PW9, Gama Dusadh PW 10 and S.I.G. Anthony PW11. Out of these witnesses, PW10 has only been tendered for cross-examination. Evidence of PWs 2 to 7 is to the effect that they had reached the spot shortly after the crime and learnt about the occurrence from the witnesses present.

6. The appellant, in his examination, had denied the prosecution allegations, and stated that he was innocent. He had not examined any witnessin his defence.

7. The success of prosecution in the case rests on the dying declaration Ext. 7 of Ram Janam Singh deceased as also on the ocular evidence of PWs 1, 3, 4 and 8. As was mentioned in Ext. 7, these PWs had unanimously sworn at trial that at the instance of his co-accused (since acquitted), the appellant had given fist blows to the deceased on his neck end chest, and that had resulted