Penal Code, 1860–Secs. 302 & 341 [Corresponding Sec. 103 & 126(2) of BNS, 2023]–Conviction–Proper sections–Assault was alleged to be caused by a stone–Very divergence between the initial version stated in FIR and the charge-sheet filed by the police–PW-6, who lodged the FIR, is an interested witness –It is doubtful that she witnessed the assault being perpetrated or merely reached the spot moments after the occurrence–There is nothing to suggest that the appellant harbored any deep rooted enmity against the deceased or the assault was premeditated–No external or superficial injuries apparent on the person of the deceased except swelling and neurological deficit suggestive of paralysis–Evidence indicates only a single blow with a stone of which no superficial signs were noticed in medical evidence–Clinical fitness certificate was not obtained before recording the dying declaration–Testimony of PW 7 suffers from embellishments and partisan coloring–Prosecution failed to establish with scientific certainty whether the dislocation was the direct result of the stone blow allegedly given by the appellant, or whether it was the consequence of the deceased having already fallen on the ground in intoxicated state–Evidence unerringly establish the appellant’s culpability for voluntarily causing hurt within the meaning of Sec. 323 and for wrongful restraint u/s. 341–Conviction deserves to be altered u/s. 323.
