Surjan And Ors. vs State Of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 1 November, 1955

Coram: Jagannadhadas

In this matter the Supreme Court considered an appeal filed by way of special leave against a judgment rendered by the High Court of Rajasthan. The High Court had reversed the decision of the Sessions Judge, who at trial had acquitted several accused persons, and on appeal had convicted and sentenced those persons. Moreover, the High Court had affirmed the conviction of a further accused identified as Surjan under Section 323 of the Indian Penal Code and, in addition, had found him guilty of an offence punishable under Section 304 of the Penal Code. Consequently, Surjan was sentenced to ten years’ rigorous imprisonment. The appeal therefore raised the question of whether the High Court’s findings and the imposed sentences were proper in law and fact, and whether the conviction of the accused who had originally been acquitted should be set aside.

The factual backdrop of the case involved an incident that occurred in the village of Dadoosan at approximately ten o’clock in the morning on 15 March 1949. Dadoosan was a Jagir village under the ownership of a Jagirdar named Thakore Bakhat Singh. The agrarian community of the village primarily comprised members of the Bisnoi caste, who were divided into two rival factions because of a dispute concerning the Jagirdar’s demand that the tenants pay a levy known as the “hasal of Guar.” Twenty Bisnoi families supported the payment to the Jagirdar, while seven families opposed it. The persons accused of the offences were drawn partly from the seven families that resisted the levy and partly from neighboring villages. The prosecution’s witnesses were largely members of the twenty families that favored the Jagirdar’s demand, indicating the communal polarization that framed the subsequent events. On the day preceding the Hindu festival of Holi, known locally as Dulehandi, the Bisnoi customarily performed a religious ceremony called Pal, during which all members gathered to receive “charanamrut” from a priest termed Sad who conducted the rites. Because of the existing split, the two groups each conducted their own separate Pal ceremonies on that day. The trouble that precipitated the criminal incidents arose around the participation in the Pal ceremony of a villager named Dhonkala, identified in the trial record as Plaintiff-Witness 4. Dhonkala had taken part in the Pal organized by the twenty families and was reportedly related to members of the opposing seven-family group, which allegedly sought to persuade him to join their side. Testimony of Plaintiff-Witness 18 recorded that an accused named Peka, a member of the seven-family faction and brother of Dhonkala, instructed Dhonkala to abandon the twenty-family group and join them. Dhonkala himself affirmed that after completing the Pal with the twenty-family participants he began his journey home, at which point another accused, Lachha, also belonging to the seven-family group, urged him to attend the Pal with their party; Dhonkala declined. Whether it was Peka or Lachha who made the request, the evidence showed that a member of the seven-family faction attempted to secure Dhonkala’s participation, and upon his refusal a verbal altercation ensued. According to the prosecution’s case, this confrontation led to a number of the accused pursuing Dhonkala, setting the stage for the subsequent violent acts that formed the basis of the charges.

According to the prosecution, the purpose of the attack on P.W. 4 was to beat him. When the attempt was made, P.W. 4 fled into his dhani, a small hut. At that moment, two of the accused, Ramchand and Peka, allegedly ignited the dhani by using a match-stick to set it on fire. The flames that arose quickly attracted the attention of other villagers, and a number of prosecution witnesses ran to the scene. Some of those villagers tried to put out the fire, but the accused stopped them from doing so. One of the more prominent intervenors was Abhey Singh, a distant relative of the Jagirdar, who tried to stop the accused. The accused resented his interference and three of them are said to have struck Abhey Singh on the head with lathis that they were carrying. It was part of the prosecution case that, except for Ramchand, all of the accused had arrived at the Pal with lathis in their hands, while Ramchand himself was alleged to have been armed with an axe. The blows delivered to Abhey Singh caused a marpeet, a chaotic melee during which several individuals on the prosecution side—namely Rama (P.W. 13), Sawai (P.W. 14), Ridmal (P.W. 15), Chaina (P.W. 16) and Pusia (P.W. 18)—also sustained injuries. After the assault, the accused dispersed and returned to their respective places.

Devi Singh, identified as P.W. 8 and the son of the Jagirdar, allegedly noticed the smoke rising from Dhonkala’s dhani and rushed to the spot as an eyewitness. He collected the injured persons and conveyed them to the Sanchore dispensary. Abhey Singh’s injuries proved to be fatal; he died while being taken to the hospital. A post-mortem examination was conducted by Dr. P.W. 10, who also examined the injuries of the other victims. Dr. P.W. 10 reported that Sawai (P.W. 14) sustained thirteen separate injuries, Rama (P.W. 13) suffered one injury, Ridmal (P.W. 15) had three injuries, Chaina (P.W. 16) sustained three injuries, and Pusia (P.W. 18) received two injuries. All of these wounds were described as simple contusions, abrasions, swellings, or similar blunt-force injuries, except for one fracture in Sawai’s left radius, which was characterized as a simple fracture at the junction of the upper one-fourth and lower three-fourths of the bone. The doctor further noted that all injuries were caused by blunt weapons, with the sole exception of an incised wound on Pusia (P.W. 18), which he said was inflicted by a sharp weapon. The prosecution attributed that particular incised wound to Ramchand, who was alleged to have been carrying an axe. The first information report regarding the incident was lodged with the Circle Inspector of Police at Sanchore on 15-03-1949 by Devi Singh (P.W. 8). Subsequently, a challan was presented against seventeen persons. After a preliminary enquiry, the First Class Magistrate of Bhinmal committed the case to the Court of Session by order dated 24-12-1949. The accused were charged under Section 148 of the Penal Code for participating in an unlawful assembly with a common object, among other charges.

The prosecution alleged that the common object of the assembly was to set the dhani of Dhonkala on fire. Accordingly, the accused Surjan was separately charged under Section 302 of the Penal Code for causing the death of Abhey Singh. Accused Ramchand and Peka were charged under Section 436 for allegedly setting fire to the dhani of Dhonkala, identified as P.W. 4, while Ramchand also faced a separate charge under Section 324 for an alleged assault with an axe in his hand. In addition, all the accused were charged under Section 302 taken with Section 149, under Section 325 taken with Section 149, and under Section 436 taken with Section 149. At the Sessions trial, additional individual charges under Section 323 were framed against eight of the accused. After hearing the evidence, the learned Sessions Judge concluded that the prosecution had failed to establish the existence of an unlawful assembly with a common object. He was not satisfied that Ramchand and Peka had set fire to the dhani or that Surjan had delivered the fatal blow to Abhey Singh. Consequently, he acquitted Ramchand, Peka and Surjan of the individual charges levied against them. Because the alleged unlawful assembly was found to be non-existent, the judge also acquitted all the accused of the various charges under Sections 302/149, 325/149 and 436/149. The judge held that each accused could be convicted only for the individual part they might have played. On that basis, he was not persuaded by the evidence against any of the accused except four persons: Surjan, Bhagchand son of Hamira, another individual named Dhonkala (different from P.W. 4), and Kana son of Hanuta. The judge found that Surjan, Bhagchand and the second Dhonkala had assaulted the deceased Abhey Singh, and that Kana had assaulted Sawai, P.W. 14. Accordingly, the Sessions Court convicted Surjan, Bhagchand and Dhonkala under Section 323 and Kana under Section 325, sentencing each to one year of rigorous imprisonment. The remaining accused were acquitted. Thus, thirteen persons were fully acquitted, while the four mentioned above were acquitted of the major charges and convicted only of the minor offences specified as Sections 823 and 325 of the Penal Code.

The State appealed against the Sessions Court’s judgment, challenging the correctness of the acquittals except for the acquittal of Ramchand. Simultaneously, the four convicted persons appealed the convictions and sentences imposed on them. The High Court considered both sets of appeals together. It described the Sessions Judge’s decision as a very weak judgment and therefore undertook a fresh examination of the entire evidence. The High Court affirmed two findings of the lower court: that no unlawful assembly was proved and that the prosecution had failed to provide adequate proof of who set fire to the dhani of P.W. 4. However, the High Court held that a case under Section 304 of the Penal Code had been satisfactorily established against Surjan for the death of Abhey Singh. Accordingly, it upheld the acquittals of Ramchand and Peka with respect to Section 436, the acquittal of Surjan under Section 302, and the acquittals of all the accused on the charges framed under Section 149. The High Court also agreed with the view that each accused could be held liable only for the individual part they played in the incident. It concluded that Surjan had delivered the fatal blow to the head of Abhey Singh and therefore found him guilty under Section 304. Regarding the other accused, the High Court disagreed with the Sessions Judge’s limited finding of individual participation and held that the evidence against the remaining accused was sufficient to sustain convictions, modifying the lower court’s conclusions.

The High Court held that the evidence was sufficient to establish a case under Section 304 of the Penal Code against the accused Surjan for the death of Abhey Singh. Accordingly, the Court preserved the acquittal of Ramchand and Peka concerning the charge under Section 436 of the Penal Code, as well as the acquittal of Surjan on the charge under Section 302, and it also upheld the acquittal of all the accused with respect to the charge under Section 149 of the Penal Code. The Court further reasoned that each accused could be convicted only for the specific role he played in the incident. In the case of Surjan, the Court concluded that he delivered the fatal blow to the head of Abhey Singh and therefore found him guilty under Section 304 of the Penal Code. Regarding the other accused, the Court disagreed with the learned Sessions Judge who had found that the individual participation was proved only for three persons—Bhagchand, Dhonkala and Kana. The Court determined that the evidence sufficiently demonstrated the individual part played by a number of additional accused. Consequently, the High Court affirmed the total acquittal only of Ramchand and Peka, while convicting the remaining fourteen persons. Surjan’s conviction was altered to Section 304 of the Penal Code, attracting a sentence of ten years of rigorous imprisonment. The other thirteen convicted individuals were found guilty under Section 323 of the Penal Code and were sentenced to one year of rigorous imprisonment each. The appeal before this Court was filed by fourteen of the original seventeen accused; Ramchand and Peka were excluded because they had been fully acquitted, and Rama was omitted from the State’s appeal to the High Court for reasons not recorded. Among the fourteen appellants, the name of Lachha, son of Arjun, who appears to have died while the appeal was pending, was removed from the proceedings by order dated 13-12-1954. The primary argument presented by counsel for the appellant is that the High Court, in overturning the acquittals, departed from the standards set by this Court in the decisions of Surajpal Singh v. State, Ajmer Singh v. State of Punjab, Puran v. State of Punjab, Ittiravi Nambudiri v. State of Travancore-Cochin, Prandas v. State and Bansidhar Mohanty v. State of Orissa. Those precedents establish that while a High Court may independently assess evidence and differ from a trial Court’s view, it should do so cautiously and reverse an acquittal only when there are strong and compelling reasons.

In this case, the Court observed that the principles requiring compelling reasons for overturning an acquittal are now firmly established and not contested. To determine whether the High Court’s judgment complied with those standards, the Court listened to the arguments at length and examined the material carefully. It concluded that the judgment of the learned Sessions Judge and the consequent acquittals were of a nature that warranted interference by the State on appeal. The learned Sessions Judge had held that no unlawful assembly existed and then turned to the issue of each accused person’s criminal liability by assessing the role each allegedly played. However, the manner in which the Sessions Judge evaluated the evidence was described as curious. One would have expected the Judge to examine the cases of each accused individually, to identify which witnesses testified against each accused, and to assess the reliability of each eyewitness’s testimony with respect to that accused. Instead, the Judge did not follow this approach. He presented only a brief summary of the testimony of those prosecution witnesses who themselves had suffered injuries—specifically witnesses numbered 13, 14, 15, 16 and 18—and adopted an artificial view that guilt could be established solely on the basis of those five witnesses, each identifying the assailants who had attacked him. Testimony of several other witnesses, which indicated that the injuries sustained by the injured witnesses could have been inflicted by many additional persons, was entirely ignored. For example, witness 14, identified as Sawai, sustained thirteen injuries and identified only accused Kana, son of Hanuta, as having struck his left forearm with a lathi, breaking the bone. Other witnesses, such as Dhonkala (witness 4), attributed assaults on Sawai to Hanuta; Hema; witness 6 linked Phagloo; witness 8 linked Devi Singh, Lachha and Hanuta as assailants of Sawai. Yet none of these additional statements were considered, apparently based on the mistaken assumption that only the victim can identify his own attackers. Moreover, the Sessions Judge appeared to abandon this assumption when dealing with the injuries of witness 15, identified as Ridmal, who suffered lacerations on both parietal regions and named Phagloo and Surjan as his assailants. The Judge chose not to convict those accused for the injuries because, according to him, no other

In the case of Ridmal, the Sessions Judge noted that an eye-witness had identified certain accused persons as the assailants, yet the Judge did not rely on that identification to convict them. The Judge then examined the testimony of Chaina, identified as PW-16, who had suffered a contusion on the left parietal region together with a swelling and abrasion on the right forearm and an additional swelling on the left forearm. Chaina declared that Baga had struck him, but he also expressed uncertainty about the identity of the other attackers, initially stating that the assailant was Ramchand and subsequently correcting himself to say that it was Lakha. On the basis of this apparent confusion, the Judge concluded that it was difficult to determine precisely who had inflicted the injuries and therefore refrained from convicting even Baga, for whom there was no dispute. This approach, as observed, led to the acquittal of all accused persons except the four against whom conviction was recorded, and the Judge’s method appeared inconsistent and unsound because it did not involve a genuine assessment of the credibility of the various eye-witnesses’ accounts with respect to each individual accused.

Counsel for the appellant sought to justify these acquittals by portraying the incident as a chaotic melee involving two hostile groups, each comprising a sizable number of participants, as alleged in the FIR. Counsel argued that in such a confused fray it would be practically impossible for any single witness to identify the specific assailant responsible for each injury sustained by the prosecution witnesses. To support this contention, counsel relied on evidence that both groups had assembled at the location for the routine and legitimate purpose of performing Pal, and therefore asserted that the claim that all the accused were present with lathis in hand could not be true. It was highlighted that the disturbance occurred after the prosecution group had completed the Pal ceremony and before the accused arrived to perform it. Moreover, the FIR filed by PW-8, an alleged eye-witness, made no specific reference to the role of each accused in relation to each injured person; instead, it presented a vague summary stating: “Forty or forty-five persons in all (including the seventeen accused whose names were specified) attacked the dhani of Dhonkala son of Hamira and set fire to it and beat Abhey Singh, Sawai, Ridmal, Chaina, Rama, Pusia, from among those who went to extinguish the fire with lathies.” This is considered noteworthy because PW-8, the original informant, reported that he was accompanied by several eye-witnesses when he lodged the FIR, placing him in a position to obtain a comprehensive picture of the events. It was further pointed out that most of the eye-witnesses belonged to the rival Bisnoi group and were tenants of the Jagirdar, whose relative Abhey Singh was the murder victim, and that cross-examination revealed personal animosity of certain eye-witnesses toward some of the accused. It is necessary,

However, it must be observed that the acquittals granted by the Sessions Judge to the various accused were not founded upon any of the grounds suggested by the appellant’s counsel. In a matter of this nature, the criticisms raised by that counsel can be adequately addressed, and the mere absence of explicit discussion of those criticisms in the judgments does not demonstrate that they were ignored. Neither the trial court nor the appellate court adopted a position that the incident amounted to a confused melee in which the witnesses were unable to identify any assailant. Likewise, the trial court’s acquittals were not predicated on a belief that any of the eye-witnesses were absent from the scene or that they possessed motives to falsely implicate the accused. In fact, the defence presented by six of the accused—namely Peka Panna, Dhonkala, Ramchand, Kachhaba and Baga—acknowledges the presence of seven prosecution witnesses, identified as PW 6, PW 8, PW 12, PW 13, PW 14, PW 16 and PW 18, and attributes to those witnesses aggressive actions directed against the defendants, which the defence admits form the basis of a counter-case. Moreover, the alibi defence raised by some of the accused was rejected by the trial court in respect of each individual. In light of these circumstances and the markedly unsatisfactory appreciation of oral evidence by the Sessions Judge as previously highlighted, it cannot be said that there is no justification for the appellate court to scrutinise closely the correctness of the acquittals. Accordingly, the Court is not merely entitled but compelled to form its own independent conclusion on the evidence, weighing all relevant circumstances that ordinarily must be considered in cases of this type. Consequently, the Court is of the clear opinion that there was ample justification for the High Court to interfere with the acquittals issued by the Sessions Judge. The appellant’s counsel subsequently argued that, assuming the Sessions Judge’s judgment was unsatisfactory, the High Court’s reversal of the acquittals was also improper. He contended that the judges had not applied a judicial mind to the appreciation of evidence, but had merely set out the examination-in-chief testimony of each prosecution witness without taking into account the material disclosed in cross-examination that sought to discredit that testimony. He further observed that the individual guilt of each accused was determined merely by counting how many eye-witnesses spoke against each person. A careful reading of the High Court’s judgment suggests that there is room for such criticism, though this observation does not imply that the learned judges failed to examine and appreciate the evidence.

The Court observed that the judges of the High Court did examine and evaluate the material evidence, but it emphasized that when a judgment reverses earlier acquittals the court must present its analysis of the eye-witness testimony in a clear, concise and definitive manner. Rather than merely providing a tabular summary of each prosecution witness and listing every person who testified against the accused, the judgment should set out and discuss the credibility and relevance of the eye-witness statements as they pertain to each individual defendant. The Court then turned to the arguments advanced by the learned Advocate-General for Rajasthan, who appeared on behalf of the State. He contended vigorously that the finding of both the trial court and the High Court that no unlawful assembly existed was mistaken. He pointed out the unusual nature of a case arising out of a clash between two hostile groups that resulted in one death and several injuries, yet both courts concluded that there was no unlawful assembly. The Court listened to this submission and did not dismiss it as unfounded, but it held that the argument could not be given effect because both courts had jointly acquitted all the accused of the offences charged under Section 148 of the Penal Code and the various offences under Section 149 of the Penal Code. The State had not obtained permission from this Court to appeal those acquittals, and consequently those acquittals must stand. The Advocate-General further explained that his challenge to the finding of no unlawful assembly was not intended to overturn the acquittals under Sections 148 and 149, nor to seek harsher sentences for the convictions affirmed by the High Court, but merely to preserve those convictions and the sentences imposed. The Court found this line of reasoning untenable. It held that the legitimacy of the convictions must rest on the overall merits of the case, and that the accused are entitled to the benefit of the judgments that found no unlawful assembly under Section 148 and no constructive liability under Section 149 of the Penal Code.

Having dealt with the issue of unlawful assembly, the Court proceeded to consider the remaining question of whether sufficient evidence existed to sustain the convictions of those accused of specific offences based on their individual acts. Apart from two particular matters that the Court would address later, the determination of whether the evidence meets the required standard is ultimately a matter for the first appellate court. The Court noted that, with respect to the appellants who were not among the four individuals convicted by the trial court, there is no concurrent factual finding by both lower courts against them. Consequently, it may be argued that the general principle the Court follows in exercising special leave – namely, that it does not entertain a re-examination of the evidence to challenge concurrent factual findings of lower courts – does not apply in this situation. Nonetheless, the Court reiterated its established practice that it will not, except in very exceptional circumstances, transform itself into a regular appellate forum for re-trying evidence in matters that come before it under special leave. If the Court were to discover that the appellate court had entirely failed to apply its judicial mind to the evidence, resulting in a grave injustice, it could remand the case to the first appellate court for fresh consideration. In the present case, the Court permitted a broad-outline canvassing of the evidence without delving into meticulous detail and concluded that a detailed re-appraisal of the evidence or a fresh assessment by the High Court was unnecessary. Accordingly, the Court declined to set aside any of the convictions on the ground of insufficient reliable evidence.

The Court observed that the rule which prevents the canvassing of evidence in order to challenge concurrent findings of fact does not apply to the present matter. It further explained that, except in extremely rare situations, this Court will not transform itself into an ordinary appellate court for the purpose of re-examining evidence when dealing with matters that have arisen through a special leave petition. The Court noted, however, that if it discovers that the lower appellate tribunal has failed to apply its judicial mind to the evidence and that such failure has caused a grave injustice, it possesses the authority to remand the case to that appellate court for a fresh consideration of the material. Keeping this principle in mind, the Court permitted the evidence to be presented before it in a broad outline, deliberately avoiding a meticulous, line-by-line analysis. After careful consideration of this outline, the Court was satisfied that the case did not warrant a detailed re-examination of the evidence by the Court itself, nor did it require the High Court to reassess the evidence again. Consequently, the Court stated that it was not prepared to set aside any of the convictions on the basis that reliable evidence against the individual appellants was lacking, given that each conviction was based on the specific role attributed to each accused. At this stage, only two additional questions raised before the Court remained to be addressed.

Regarding the fourteenth appellants, the Court noted that out of the fourteen individuals before it, only nine faced specific charges: eight were charged under Section 323 of the Penal Code and one, namely Surjan, was charged under Section 302 of the Penal Code. The petitioners contended that the convictions of the remaining five appellants, who were charged solely under Section 149 of the Penal Code, could not be sustained because there were no separate charges against them under Section 323. The Court, however, referred to Section 535 of the Criminal Procedure Code, which requires that any prejudice arising from such an omission must be clearly demonstrated before a court can interfere with the convictions. After reviewing the record, the Court found no evidence of any prejudice or grave injustice in the cases of these five accused. Accordingly, the Court concluded that there was no ground to interfere with their convictions on this basis.

The Court then turned to the situation of the accused Surjan, whose case it described as standing on a different footing. Surjan was specifically charged under Section 302 of the Penal Code for the murder of Abhey Singh. The evidence presented by all eyewitnesses indicated that three individuals—Surjan, Bhagchand, and Dhonkala, the son of Samaratha—had inflicted injuries on the deceased. While every eyewitness except Dhonkala (identified as P.W. 4) attributed the fatal head injury to Surjan, P.W. 4 of Dhonkala attributed the fatal blow to Bhagchand. In light of this conflicting testimony, the trial judge was unwilling to accept the evidence that specifically assigned the fatal blow to Surjan, concluding that the evidence did not enable a definitive identification of the person who delivered the fatal injury. Having acquitted all the accused under Section 149 of the Penal Code, the trial judge held the view that each of the three persons, including Surjan, could only be convicted under Section 323 of the Penal Code for causing hurt. However, on appeal, the learned judges...

The High Court, in its judgment, gave little weight to the testimony of P W 4. Considering the statements of all other eyewitnesses, the Court concluded that Surjan had delivered the fatal blow. Nonetheless, the Court determined that Surjan’s liability fell under Section 304 of the Penal Code rather than Section 302. Accordingly, Surjan was convicted of the offence under Section 304 and sentenced to ten years of rigorous imprisonment. Subsequently, it was brought to the Court’s attention that medical evidence indicated the presence of more than one blow to the deceased’s head. The argument raised was that the evidence of P W 4 might not be inconsistent with that of the remaining witnesses regarding the assault on the head. It was suggested that both Bhagchand and Surjan could have struck the deceased, Abhey Singh, on the head, resulting in two separate head injuries. If this contention were accepted, it would become difficult to rely on the eyewitness testimony to identify which accused inflicted the fatal blow. Consequently, the Court observed that the medical evidence required careful consideration.

P W 10, who performed the post-mortem examination of Abhey Singh, documented several injuries in his report. He listed the following ante-mortem injuries: (1) a lacerated wound measuring two-and-one-half inches by one-half inch, extending to the bone, located on the left parietal region; (2) a contusion measuring seven inches by three inches on the front of the right arm; (3) a contused wound measuring one-half inch by one-quarter inch on the medial aspect of the first phalanx of the right middle finger; (4) a contusion measuring thirteen inches by three inches on the right half of the back; (5) a contusion measuring six inches by two inches on the right shoulder and arm; (6) bleeding from the nostrils near the left ear; (7) a depression measuring six inches by two inches on both the right and left parietal regions; and (8) a depressed fracture measuring eight inches by one inch involving the right and left parietal bones, with blood clots deposited beneath the meninges and within the brain substance, which was noted to be decomposed. The cause of death was recorded as coma resulting from compression of the brain due to the head injury. In his testimony before the Court, P W 10 added a separate item numbered 8, describing the same depressed fracture of the right and left parietal bones with deposition of blood beneath the meninges and within the brain substance, and stated that this injury alone was sufficient, in the ordinary course, to cause death. It is apparent that injuries 7 and 8 refer to the same wound, with injury 7 describing the external manifestation and injury 8 the internal findings. Importantly, the evidence demonstrates the existence of two distinct injuries on the head: (i) the lacerated wound on the left parietal region, and (ii) the depressed fracture of both parietal bones. This raised the question of whether a single blow could produce both injuries or whether two separate blows were necessary. When questioned during cross-examination, the doctor initially suggested that the head injury could have resulted from either one blow or multiple blows. Upon further questioning, he clarified that the two injuries must have been caused by two separate blows, acknowledging that his earlier statement to the contrary was erroneous. If this medical testimony is accepted, it follows that two blows were indeed inflicted on the deceased’s head, a point that the High Court had not specifically addressed in its findings.

The evidence showed that the deceased had suffered two distinct head injuries: a lacerated wound on the left parietal region and a depressed fracture involving both the right and left parietal bones. Because the presence of two separate injuries raised the question of whether they could have arisen from a single blow or required two separate blows, the medical expert identified as P-W 10 was examined on this point. In his cross-examination the doctor initially responded that the head injury might have been caused by one blow or by more than one blow. After this ambiguous reply, the Court questioned him further, and he then affirmed that the two injuries could only be explained by two blows and that his earlier suggestion that a single blow might have produced both was erroneous. Accepting this unequivocal medical testimony, it follows that the deceased must have received two blows to the head.

Nevertheless, the High Court judges did not give specific attention to the doctor’s clarified answers. Instead, they treated the matter as if the injuries were produced by a single blow, as reflected in a passage of their judgment that listed eight injuries, described the lacerated wound as the sole head injury, and considered the depressed fracture and internal fracture to be merely the consequences of that same wound. The High Court further relied on an inquest report (Ex P-16) that mentioned only one head injury described as “an injury inflicted by a lathi near the top of the head,” suggesting a single blow. However, the inquest report itself does not constitute substantive evidence and cannot be set against the explicit medical evidence presented before the Court.

There is no material in the record that discredits or negates the medical expert’s categorical finding that two distinct head injuries existed and that they could not have resulted from a single blow. By concluding that the deceased received only one blow without addressing the expert’s definitive testimony, the High Court acted on conjecture rather than on the evidence. Consequently, any finding of guilt based on the assumption of a single blow must be reconsidered in light of the proven existence of two separate blows.

The Court explained that the determination of guilt for the accused Surjan had to be based on the medical finding that the deceased sustained two separate injuries on the head and that the expert testimony established that these injuries were produced by two distinct blows. Because the record contained no evidence identifying the person who delivered the fatal blow, the Court held that Surjan was entitled to the benefit of that lack of proof. Consequently, the Court found that there was no sufficient ground for the High Court to set aside the acquittal of Surjan with respect to the alleged murderous assault attributed to him. In view of this, the conviction of Surjan under Section 304 of the Penal Code and the accompanying sentence of ten years’ rigorous imprisonment could not be sustained. However, the Court affirmed that the conviction recorded by the Sessions Judge for the offence under Section 323 of the Penal Code, together with the sentence of one year’s rigorous imprisonment, as confirmed by the High Court, remained valid. Accordingly, the appeal was dismissed except for the portion relating to the appellant Surjan. Regarding Surjan, his conviction under Section 304 of the Penal Code and the sentence imposed thereunder were set aside, whereas his conviction under Section 323 of the Penal Code and the one-year rigorous imprisonment were upheld.