R. K. GAUBA, J:

1. The appellant Naik Satya Narain was held guilty and convicted by the court of Additional Sessions Judge by judgment dated 15.05.1999 on the charge for an offence punishable under Section 304 Part-II of Indian Penal Code, 1860 (IPC) for causing death of Balbir Singh son of Ramji Lal (“the victim”) on 01.07.1992 as a result of injuries allegedly suffered in an incident that had occurred on 28.06.1992. Naik Satya Narain challenges the said judgment through criminal appeal number 50/2000.

2. By order dated 17.05.1999, the convicted appellant was sentenced to fine of Rs.5000/- in default Rigorous imprisonment for six months. Feeling dissatisfied with the said order, criminal revision petition no. 310/1999 has been preferred by Om Prakash son of Mahabir Singh (PW-1), nephew of the victim, praying that the conviction to be converted into one for offence under Section 304 Part-I IPC and punishment commensurate therewith to be awarded.

3. Since the appeal and the revision petition arise out of the same judgment and order, they have been heard together and are being decided through this common judgment.

4. On 28.06.1992, Balbir Singh son of Ramji Lal aged about 33 years resident of house no. 1167, Ishwar Colony, Bawana, Delhi suffered injuries which included fissured fracture of the left parietal bone radiating to the left temporal wound and of the middle cranial fossa alongwith the contusion of right temporal lobe of brain. He was first taken to a private clinic of Dr. Rajiv Aggarwal (PW-13) and administered first aid (vide OPD slip Ex.PW-13/A) and then to Hindu Rao Hospital by his brother Mahabir Singh (PW-12). At the time of arrival in Hindu Rao Hospital at 1:30 PM, he was found by the examining medical officer, per medico legal report (Ex.PW-15/A), to be conscious and oriented though with history of unconsciousness and vomiting after assault. The MLC (Ex.PW-15/A) took note of the following injuries revealed by the external examination:

“1. CLW left temporal region of scalp 1” long, stitched. 2. Swelling left side of forehead. 3. CLW ½ long right ear lobule 4. Contusion 2” long over left lower abdomen 5. Multiple abrasion left arm and right lower leg.”

5. It must be added here that history of the injuries as given to the examining medical officer at the time of the MLC was noted as “assaulted by unknown persons”. Since the victim was conscious and oriented and because his brother Mahabir Singh (PW-12) did not say otherwise, it has to be assumed that the history was given to the medical officer by the victim himself.

6. It is pertinent to further note here that MLC (Ex.PW-15/A) bears two endorsements one dated 28.06.1992 and the other dated 01.07.1992, both purportedly recorded by the medical officer(s) attending on the victim in the hospital stating that he was “unfit for statement”. The exact time of the first certification (28.06.1992) is not spelt out whereas there is reference to 8:30 PM in relation to the second one (01.07.1992). There is, however, an unexplained gap/space between the noting about the time and the certification as to fitness. For the record, it must be added that no witness was adduced to formally prove any of the said two endorsements.

7. The clinical notes, in the form of death summary (Ex.PW-15/B), in the hand of Dr. Ajit Deshmukh, duly proved (in his absence and non-availability since he had left the service of the hospital) by Mr. K.B. Singh (PW-15), the medical record clerk, are of crucial import and need to be quoted verbatim as under:-

“Pt. was admitted with h/o assault by unknown person with h/o unconsciousness & vomiting. There was no vomiting & no bleeding ENT. Pt. was conscious when seen in casualty co-operative & well oriented. Vital signs were stable. There were multiple small injuries.

Pt. was alright on 29.06.92 with c/o headache, was conscious and well oriented. Pt. was responding to painful stimuli but not responding to oral commands on 30.06.92.

On 01.07.92 Pt was refe