Where eye witnesses were consistent and there was no material contradictions
in their Evidence s to disbelieve them ,the mere non examination of the doctor
who treated the deceased did not adversely effect the prosecution case. Since
both the accused participated in their criminal act of assaulting the deceased
with lathis with the knowledge that their action was likely to cause death of
the deceased, the conviction of the accused under Sections 304, Part - II/34 of
IPC could not be interfered with.
Where in a case accused fave blow by a broken bottle and his intention was not
to kill the deceased but the the accused died in the absence of proper medical
help, conviction of the accused was held to be as justified.
Where in a case assault was made , with spade, on the hand and when the deceased
fell down on his neck, and there was no pre- mediation and occurance took place
within a spur of the moment, and during quarrel the injuries were caused, it was
held that conviction under section 304, Part II was justified.
The Evidence discloses that there was prior quarrel before the incident between
the family members of the accused and the deceased and the throwing of brickbat
was a result of the said quarrel, not with any prior motive either for
assaulting or for killing the deceased, the accused cannot be convicted under
section 302 IPC.
But it can be held that the accused was not aware about the cause of his act and
there might not be any intention to kill the deceased but it was very much
within his knowledge that throwing brickbat on the vital part of the body of the
deceased i.e on head was likely to cause the death and therefore, held , that he
was liable to be convicted under section 304-Part II of IPC