[^y HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 29 of 1994 Bhupendra Singh Vs. State of M.P. (Now State of Chhattisgarh) JUDGMENT For consideration HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Sunil Kumar Sinha Judge 3 ^^ry^^ Sd/- Chief Justice PostforJudgment :2A/02/2011 Sd/- Sunil Kumar Sinha Judge /fx* /^"'l. i ^. ^ fc HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT Criminal Appeal No. 29 of 1994 Bhupendra Singh S/o Pooran Singh Bhandari, Caste Halwa, aged 20 years, R/o Duganpal, Police Station Kudnar, District Baster, M.P. (Now Chhattisgarh) Versus StateofM.P. (Now State of Chhattisgarh), Through The Station House Officer, Frejerpur, District Baster (Jagdalpur) (Criminal Appeal under Section 374 (21 ofThe Code of Criminal Procedure. 19731 RESPONDENT Appearance: None for the appellant. Mlr. Kishore Bhaduri,Additional Advocate General forthe State. JUDGMENT (2.402.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 28th of December, 1993 passed in Sessions Trial No.67/93 by the First Additional Sessions Judge, Jagdalpur (Baster). By the impugned judgment, the appellant has been convictedu/s 302 IPC and sentenced to undergo imprisonmentfor life. (2) The facts, briefly stated, are as under:- On 9.11.92 at about 11.00 p.m., deceased- Bhelkuram and his 3 friends namely Dhanurjay (PW-1), Guddiram (PW-2) and Govind Ram (PW-8), had gone to see mela in village Parpa. They ~"^^ %.'^ 1 '^.. ^ -^' Criminal Anueal No. 29 of 1994 were standing at the door of a temple before a devi-deity. There was a big crowd. The appellant came there pushing everybody. When he pushed the deceased, a quarrel begun between them. They started scuffling with each other. The allegations are that all of a sudden the appellant took out his gupti and gave gupti blow on the chest ofthe deceased. The deceased became unconscious. He was taken to Tokapal Hospital, from where he was referred to Maharani Hospital, Jagd^lpur. A Jeep was arranged and the deceased was shifted to Jagdalpur. But by that time, the deceased had died. A First Information Report (Ex.-P/1) waslodged by Dhanurjay (PW-1). A merg intimation was also lodged. The Investigating Officer reached to the hospital, gave notice (Ex.-P/S) to the Panchas andprepared inquest (Ex.-P/9) on the dead body of the deceased. The dead body of the deceased was sent for post- mortem to Maharani Hospital, Jagdalpur vide memo Ex.-P/10. The post-mortem examination was conducted by Dr. Pradeep Pandey (PW-4), who noticed an incised wound of2 cm x 1 cm on the left portion of the chest of the deceased. On internal examination, he found that there was injury on the heart and there was also perforation of 2 cm in the liver. He opined that the injuries were caused by sharp edged weapon and were sufficient to cause death in ordinary course of nature. Thecause of death was haemorrhage and shock due to above injuries andthe death was homicidal in nature. The post-mortem report is Ex.-P/4. (3) The case of the prosecution was based on eye-witness account of Dhanurjay (PW-1), Guddiram (PW-2) and Govind Ram (PW-8). The learned Sessions Judgerelied on the testimonies ofthese witnesses and held that the appellant inflicted the above injuries to the deceased and he was liable for punishment u/s 302 IPC. (4) Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, supporting the judgment of the Sessions '"'^. ^i^ss^ "•'•^ Criminal Appeal No. 29 of 1994 Court, argued that the involvement of the appellant was proved by 3 eye- witnesses which cannot be assailed. The appellant gave gupti blow on the chest of the deceased. Therefore, his intention to cause death was also proved and the Sessions Judge has rightly convicted the appellant u/s 302 IPC. (5) We have heard Mr. Bhaduri atlengthand have also perused the records of the sessions case. (6) So far as involvement of the appellant in crime in question is concerned, the same has been proved by 3 witnesses namely Dhanurjay (PW-1), Guddiram (PW-2) and Govind Ram (PW-8). These are the eye- witnesses to the incident. They have stated about the involvement of the appellant. Not only this, the appellant was caught at the place of occurrence. Therefore, we confirm the above finding recorded by the Sessions Court. It can also not be disputed that the death of the deceased occurred on account of injury caused by the appellant and the same was homicidal in nature. (7) Now the question arises as to which offence the appellant, in fact, had committed and he was liable for punishment under which provisions ofthe IPC? (8) In Virsa Sinah -Vs- State of Puniab. AIR 1958 SC 465, it was held that the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, "•"^.. '!'^^^^ -^ Criminal Appeal No. 29 of 1994 it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds furtherand, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury ofa kind that is sufficient to cause death in the ordinary course of nature, or even that there is no knowledge that anact of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. (9) Therefore, if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause thirdly of Section 300 of the IPC and that, therefore, its author would be liable to punishment u/s 302 IPC. The question thus arises whether the particular injuries which were %£<££&., ^s^/ y^ Criminal Appeal No. 29 of 1994 L found to be sufficient in ordinary course of nature to cause death in the present case were the injuries intended by the appellant? We find that in the present case, there was only one stab wound on the chest of the deceased. Dr. Pradeep Pandey (PW-4) also deposed that the article had pierced in the chest which has caused damage to the heart and it has also caused damage to the liver. That means the appellant used the gupti for making an assault on the chest of the deceased which pierced inside the thoracic cavity and incidentally it damaged the above organs of the deceased. According to the eye-witnesses, a big crowd was present in mela and the persons including the deceased were standing in front of the deity. The appellant came there from the back side pushing everybody. In fact, the appellant wanted to come to the deity. When he pushed the deceased a quarrel begun between them, in which, firstly they scuffled with eachother and thereafter the appellant gave single blow by gupti to the chest of the deceased which unfortunately proved fatal on account of damage to the heart and liver. In the facts and circumstances ofthe case, we find that there was no prior enmity; a sudden quarrel took place between the appellant and the deceased; they scuffled for a long time; thereafter all of a sudden in heat of passion, the appellant took out gupti and assaulted the deceased on his chest. From the above act, it cannot be inferred that, in fact, there was a preparation or premeditation and also that the appellant had knowledge that by theinjury which he is going to inflictthe above vital organ of the deceased would be damaged. Therefore, at least the injury of the heart and liver can be said to be the non-intentional injury in the facts and circumstances of the case. T ' -:3^ w^--^ lvt'<...J'"^^. """-^ ^c Criminal Appeal No. 29 of 1994 (10) For the foregoing reasons, we partly allow this appeal and set- aside the conviction and sentence awarded to theappellant u/s 302 IPC. The appellant is convicted u/s 304 Part-11 IPC and sentenced to undergo R.l. for 5 years. The appellant was arrested on 14.1 1.92 and was directed to be released on bail on 28.11.97. Therefore, he has already undergone for a period of more than 5 years and thus he need not to surrender in this matter. Hisbail bonds are cancelled andsurety stands discharged. Sd/- > ChiefJustice Sd/- Sunil Kumar Sinha Judge vatti