The judgment establishes the importance of establishing intention and knowledge in determining the applicability of different sections of the Indian Penal Code, particularly in cases involving grievous hurt and murder.

Sanjiv Khanna, J.:—

The appellant-Satpal has been convicted under Section 302 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of Ayub by hitting him with a stone on 9th December, 1987. The impugned judgment passed by the learned Additional Session Judge dated 12th August 1998 and order of sentence dated 17th August, 1998, in S.C. No. 72/1996 arise out of FIR No. 238/1987, Police Station, Seema Puri.

2. The case of the prosecution in brief is that on 9th December, 1987 the deceased Ayub at 3.30 p.m. was at the water tap in the gali and had put his bucket under the tap for filling water. Ram Bharose, a co-accused, who used to reside nearby asked Ayub to remove his bucket. Ram Bharose threw the bucket of Ayub and put his own bucket under the tap. There was a fight between Ayub and Ram Bharose. On hearing noise, many persons from the public assembled. Habibullah, PW-5 and his wife Zarina Begum, PW-3 came forward to separate them. The deceased Ayub was living with them and Ayub was brother of Zarina. In the meanwhile, Satpal arrived at the spot and he threw a stone at the head of the Ayub. Ayub fell down unconscious and blood started oozing out from his head. Habibullah, PW5 took him to the hospital where he died on 10th December, 1987 at 10.20 p.m. 3. Homicidal death of Ayub stands proved and established by PW1, Dr. V.P. Arya. He opined that on 9th December, 1987 at around 4.50 p.m., Ayub, aged 27 years, was examined by him. He had sustained injury on left parietal region of the skull measuring 1x3 cm. The said injury was caused by a blunt weapon. The MLC has been proved and marked as Exhibit PW1/A. In his cross-examination, he had stated that the appellant Satpal was brought in an injured state and was examined by another doctor Dr. J.S. Purty. He had contusion on the forehead 1 ½ inches in size. The MLC of the appellant was exhibited as PW-1/DA. The post mortem of Ayub was conducted by Dr. George Paul, PW-2. He had stated that the head region of the Ayub was shaved on the left side and blood was coming out from the nostrils and mouth. The deceased had number of minor injuries and one stitched lacerated wound 3 cm with abrasion around in 4x2.5 cm present in the left temporo-parieital region of scalp. The cause of death was due to extensive cranio-cerebral damage as a result of the injury on the head by a blunt object.

4. Though not argued on behalf of the appellant, the Death Summary Report Ex.PW 18/C of Lok Nayak Jai Prakash hospital records that the patient i.e. the deceased was admitted to the said hospital on 9th December, 1987 at 6 p.m. and expired on 10th December, 1987 at 10.20 p.m. At the time of admission the patient was unconscious, but there was slight reaction to light. He expired due to sudden cardio respiratory arrest caused by head injury. Statement of PW-2 with regard to the cause of death as per the post mortem report conducted by him, however, remained unchallenged.

5. The next question and issue is whether the appellant is responsible and had caused the said injury. The prosecution in this regard relies upon statements of PW-3 Zarina Begum and PW-5 Habibullah. They claim that they were the eye witnesses. Ayub was the real brother of PW-3 and was residing with PW-3 and PW-5. As per their testimonies, Ayub used to work as a tailor with PW-5. They have affirmed that Ayub took a bucket and went to take water from the government tap at the corner of the street. PW-3 and PW-5 have stated that the tap was visible to them from the place where they were standing, i.e., outside the house, in the street. However, PW-14, SI Amrit Kumar, who was also the Investigating Officer of the case, in his cross-examination has accepted that the spot was not visible from the house of PW-3, Zarina Begum and PW 5 Habbibullah as there were various other houses in between. The learned trial court has negated and not accepted the testimony of PW-14 and treated it as a minor deviation and immaterial. This,