1 HIOH COURTQF CHHATTI8GARH AT BILASPUR (Division Beachl CORAM '. Hx>u?bte Slffi Vijay Kumaa 8h3(ivasta<»a,86 Hon!'Me8Iu'i DIifa-eadra Mishra, JJ. Criminal Aooeal No. 2342/1999 ^ Aoseltaat Madkami Hidmo @ Hidnxa, s/o. Shri Mangdu, aged 30 3)rears, r/o, viUage CliiteAviY (Kocl-iaip-ara), RS, aad Dist Daatewara (CG). Versus Respos&desat State of Chhattisgai'h TlirovLgli fhe Potice StatioriL, Dantewara, Dist Dantewajt^CG. Present Mr. Ranbir Siagh Marhas with Mr. Sourabh Dangi, leamed couiisel for the appellant Mr. M.P.S. Bhatia, Paael Lawyer forthe State. JUDGMBNT (Dated 09/05/2006) Per VijaT Kumar Shrivastava. J. This appeal under Section 374 of fhe Code of Criminal Procedure is directed agaio.st the judgmeat of conviction and order of sentence dated 15/07/1999 passed by II Additional Sessions Judge, Jagdalpur, m Sessions Trial ^Io. 507/93, whereby leanied '^. Additional Sessions Judge, after holdiag fhe appeUmit guUty for committing the offence ofniiirder pumshable under Section 302 of the IPC, sentenced hioi to undergo imprisonment for Ufe aad to pay a fine of Rs,500/-, m default of payment of fine to furfher uudergo RJ, for one year. 2) Briefly stated fhe prosecution case is fhat on 15/08/1993 at about 2.00 p.m. appellasit was present ia the house of Madkami Mangtu, carrs^iag an arrow aad bow, at fhat tioie when fhe deceased Madkami Kaoialu came fherc appeUaiit shot him with aii arrow which pierced iaside his stomach. AppeUaat after shootmg him wifh an. arrow fled away froia the scene of occun-ence. Madkami Kamalii was taken to Goveniment Hospital, Dante^ada for treatment. Madkami Magtu gave iiiformation to PoUce Station, Dantewada, On his report first mforaiation for aa offence punishable under Section 307 of the I.P,C., was rcgistered, Deceased Madkami Kamalii was exammed by the Medical Officer Dr, R.N, Aiya who found severe mjiiries on his body caiised by au arrow, The iajuries were grievous iii nature, Dr, R.N. Arya referred hioi to District Hospital, Jagdalpur for fdrfher medical treataient. Dying declaration of Madkami Kamalu was recorded on fhe sanie date in Goveninient hospital aad thereafter Injured Madkaaii Kamlu was taken to Jagdalpur where he was admitted ia Maharaai Hospital for treatinent. Wituesses were examiaed iinder Section 161 offhe Cr.P,C, After beirig ciired he was discharged from the hospital by Dr. K.R. Mouiya on 01/09/1993. In the meantime, durmg mvestigation one bow was seized from fhe appeUao.t ou 16/08/1993 aad on the ^y same day appellao.t was arrested. Deceased after being discharged from tfae hospital caoie to his village. 3] Deceased Madkaoii Kam.alu was adniitted in Govemment Hospital, Daiitewada on 02/09/1993 where during treatment he died on 12/09/ 1993, An intimation was given by Madkaoii Htrma to PoUce, On his report merg mtimation was recorded, R.K. Shukla Assistaiit Siib-Inspector ofPoUce held fhe inquest^ prepared iiiqnest report aad sent fhe dead body for postmorteni. Dr, R,N. Aiya conducted azitopsy who described all the details ia his report and opiaed fhat fhe death is cazised by septiceinia electrolytic disturibances due to peritonitis resiilted from post operative, adhesion^ gangrenous chaages m gut aad wound dehiscence of gut which have been previously closed. Offence registered under Section 307 of fhe IPC against fhe appeUaat was converted io.to offence iinder Section 302 offhe IPC, Furfher in.vestigation was done ao.d after conipletiou of mvestigation Pollce led charge sheet against fhe appellaat in fhe Court of J,M.F,C,, Dajitewada who coniniitted fhe case to the Court of Sessious for trial. 4] Charge under Section 302 of fhe I,P,C, was frasned against the appellaat, which was read over and explamed to hmi who abjured the gailt and his defence was that he was msaiie at that Juncturc. Leanied trial Court after apprcciation of fhe evidence held ttie appellant guUty for committiiig the offence of murder aad flierefore convicted aa.d senteiiced hioi, ^ r^' 5) AppeBant did not dispute fhe mjuries found on the body ofthe deceased, his death aad cause ofhis death. Dr. R,N. Arya (PW/6) has deposed that on 15/08/1993 he examined uijured Kaaialu aiid found fhe followio.g injuries. If A penetraiing injury entf9y wound present over left Hypochondrium at level of yh & l(yh ribs. Afrow was inside the body. 2) Exit zuound ako present at right Hypochondrium just beloiu inferoQstal margin^ bleeding present in exit wound. He furfher deposed that m his opmion mjuries are grievous io. nature caused by sharp aiid poiated arrow aad injury is life flircatenmg m absence oftreatment. He referred fhe patient for furfh.er niaaa^ement to Maharani Hospital at Jagdalpur. His rcportisEx.P/9. 6) Hefurtherdeposed thaton 12/09/1993heconducted fhe autopsy on fhe dead body ofdeceased Kamalu. He found pus aear peritoueal cavity, Pus was also preseiit over mtestme aiid there was a hole in small mtestine. In his opinion fhe deceased died as a result of shock from septicemia and imbalanc'e of electrolytic distiirbarices due to peritonitis. His report is Ex,P/ 11. 7) Nothiag ha^ been brought m his cross examiaation so as to disbeUeve his version, fherefore^ froni oral evideuce of Dr. R.N. Aiya (PW/6), aad his report Ex.P/9 and P; 11, it was established that fhe deceased Kamahi was shot by arrow which { {f' /^T^) ^. caused penetrating injuries io. tiie level of 9th aud 10th ribs^ entiy and exit wound were present m his body. He died as a result of septicemia aiid electrolytic disturbaiices due to peritonitis resulted from post operative, adhesion, gmigrenous changes in gtit and woiuid dehiscence of gut which have been closed previously. 8] Madkaaii Hidma (PW/1) in his state.ment deposed fh.at the appellao.t shot with arrow to Kamsdu. The arrow pierced his stomach, Appellant after shootmg Kamalu fled away from the scene ofoccuiTeiice, Maiigtoo(PW/2) has deposed fhat at about 2.00 p,Bi, Madkaaii Kainalu came to his house aad at fhe sanie time appeUant also caoie who shot witii arrow to Madkami Kainalu. The arrow was pierced the chest of Kaisialu, Madkanii Kosi (PW/3) wtfe of deceased Madkai3ii Kejnalu ia her statement has deposed that ofter bemg injured, her husbaad caoie ninnmg from fhe spot and tolcl that appeUaiit shot him with arrow. The evidence of aU fhese witnesses also finds sup^K>rt froni fhe first infoniiation report Le^ Ex.P/5 duly proved by fhe witaess H.P. Shiikla (PW/5) and medical report Ex.P/9 duly proved by Dr. R.N. Aiya (PW/6). On close scnitiny of fhe evidence^ we coiild not find anyfhing siibstaatial to discredit it fhercfore., from fhe above evidence it is established fhat Kamalu was shot wifh aa arrow by fhe appellaat aiid as a result offhat he was mjurcd. 9} Leamed counsel for fhe appeUaiit contended fhat at the time of incident the appeUant was iasane aiid iinable to iiiiderstao.d the result ofliis act^ fherefore^ he is entifled for benefit of Section 84 of fhe IPC. Per contra^ leamed couusel for fhe State Y^^ ^^ has opposed it. If appellmit is taking shelter of Section 84 of the I,P.C,, fhe burden Ues on him to estabUsh that as a rcsult of unsoundness ofmiad, he, at fhe time ofincideiitwas mcapable of kuowiag fhe natare of the act, Alfhough in. cross-exasiimation of Madkai Hidma (PW/1) & Mangtu (PW/2), it has been broiight that the appeUaat in. vfflage was aiinouiicin.g fhat he is m.sane. Sonie tinie he was found peltmg stones, on his wife and ofh.ers, Only fhese sparse mcidents fhat too were not the conduct of an iasane person cannot estabUsh the appellant uisaiie or a inan of unsound mmd, Therc is nofhmg on record to establish that on fhe date of uicident his conduct was such which m.ay cause reasonable apprehension that he shot arrow because of his unsoundiiess of mind. Even from the evidence, it is clear that after shooting he fled away from the spot which itself iadicates that fhe appeUant was kaowmg fhe consequences of his act^ fherefore^ he fled away from the spot. There is no medical evidence to estabUsh tliat prior to mcident or at fhe time of iiicident or soon after fhe mcident flie appeUaiit was found msaiie or ofunsound mind. The behaviour of appeUant was not such from which it niay be infen'ed tiiat at the tinie of uicident appeUaat was niseoie or a niao. of unsound miad, fherefore, fhe conteation raised by fhe appellmit has no force aiid appellaat does uot deserve the benefit of Section 84 ofthe IPC. 10) Leanied counsel for the appeUaiit furfher contended fhat even if the appeUant was not uisane, he can.not be held guilty for committiiig fhe offence of mzinler because neifher he intende.d to kffl the deceased nor he was knowing that by his act deceased 7 s^ Kajiialu would die. Per contra, leaaied couusel for fhe State submits that Kam'alu died due to septicemia as a result ofmjuries caused to hmi, fh.erefore, appellmit is gtiilty under Section 302 of the IPC. 11) Dr. K.R. Mourya (PW/7) in his statement deposed that Kamaiu was treated in Maharani Hospital, Jagdalpur from 15/08/1993 to 01/09/1993 and after his recoveiy he was discharged on 01/09/1993. As per prosecution case., he was admitted ia Primaiy Health Centa-e, Dantewada on 02/09/1993 where he was under treatment aad durmg toreatment he died on 11/09/1993. It is manifest from postmortem report Ex.P/ 11 that peritoneal cavity fiUed with pus plagues, loops of gut were mflamed, adhered to each ofher^ covered with pus plaques., mesentiy congested aad mflamed covered with piis plaques^ loop of gut were dif&cult to separate, Peribration seen m small gut,. stomach filled with browuish fluid. Couclusion arrived was that of post operative adhesion with peritonitis, The above findiugs are su^esti^e of peritonitis resulted from wouud of gut which had been closed diiring Exploratory Laprotomy, Peritonitis have also developed due to gaiigrenous changes in gut. The above facts clearly uiweil that fh-e caiise of deatii was not the direct result of mjuiy, but was fhe rcsult ofhis post operative negligence, 12) Therc is no evidence regardiiig his intention to kffl or knowledge fhat he was knowiag that his act would ioiminently cause fhe death of deceased, but it is estabUshed that appellaat voluntarily caused by meaas of aii arrow a sharp poiiited weapon 8 ?-^ grievous iajunes to Madkami Kaoialu (deceased) which were daiigerous to life, Therefore, appeUant was not gaUty of ojffence of murder but was guflty of ofFence of voluntanly causing grievous hurt to Kanialu by nieans ofsharp pouited dangerous weapou ie,, arrow. Rufu 8) In the result, the appeal is partly allowed, The conviction awarded under Section 302 of the IPC aad sentence imposed on fhe appeUant by the tdal Coiul are set aside aad iastead appeUant is convicted under Section 326 of the IPC aad sentenced to undergo rigorous im.prisouiaent for 10 (ten) years aiid to pay a fine of Rs.500/", m de.fault of payment of fme to further undergo RI for five monfhs. Sd/- V.K. Shrivatava Judge Sd/- Dhirendra Mishra Judge