Crl.A. 112/2004 BEFORE THE HON’BLE MR JUSTICE IA ANSARI :: O R D E R :: [ ORAL ] By judgment and order, dated 25-03-2004, passed, in Sessions Case No. 33 of 2000, by the learned Sessions Judge, Nagaon, the present accused-appellant w as convicted under Section 304 Part-II IPC and Section 323 IPC and sentenced to suffer rigorous imprisonment for a period of 3 (three) years, for his conviction under Section 304 Part-II IPC, and to pay a fine of Rs. 1,000/- and, in default of fine, suffer rigorous imprisonment for another period of three months and al so to undergo, for his conviction under Section 323 IPC, to suffer rigorous impr isonment for a period of 1 (one) month and pay a fine of Rs. 1,000/- and, in def ault, to suffer rigorous imprisonment for a further period of 15 days, both the sentences having been run concurrently. 2. Aggrieved by his conviction and the sentences passed against him, the ap pellant has preferred this appeal. 3. The prosecution’s case may, in brief, be described thus: Vijoy Rabi Das was assaulted by the accused, on 18-09-1998, at 9 PM and on witnessing the assau lt on Vijoy Rabi Das, Shyam Badan Rabi Das (since deceased) and Nandalal Rabi Da s intervened and they too were assaulted by Ismail Seikh by a bamboo lathi. With the injuries sustained on his stomach by a lathi Shyam Badan Rabi Das was admit ted to the civil hospital, Nagaon, where he died after four days. An FIR having been registered, in this regard, on the basis of the information lodged by Vijoy Rabi Das, a case under Section 341/323/325/302 IPC was registered. During the c ourse of investigation, inquest was held over the dead body of Shyam Badan Rabi Das, the lathi, by which the assault was allegedly came to be caused, seized, po st mortem examination was conducted on the said dead body and, on completion of investigation, a charge sheet was laid under Sections 341/323/325/302 IPC. 4. During trial, charges under Sections 323 and 302 IPC were framed against the accused-appellant. To the charges, so framed, the accused pleaded not guilt y. In support of their case, prosecution examined as many as 9 (nine) witnesses including the doctor. In his examination under Section 313 Cr.P.C., the accused denied that he had committed the offences alleged to have been committed by him, his case being that of total denial. No evidence was, however, adduced by the d efence. On conclusion of the trial, the learned trial Court, having found the ac cused-appellant guilty under Sections 323 and 304 Part-II of the IPC, convicted the accused accordingly and passed sentences against him as mentioned above. Agg rieved by his conviction and the sentences passed against him, the accused has p referred this appeal. 5. I have heard Mr. P Kataki, learned counsel for the accused-appellant, an d Mr. K Munir, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, what needs to be noted is that tho ugh attempt had been made on behalf of the accused-appellant to show that the ev idence given by PW 1 and PW2 ought not to have been relied upon by the learned t rial Court a close scrutiny of the evidence of these two witnesses clearly bring out that the accused-appellant had assaulted PW2, namely, Vijoy Rabi Das, and o n witnessing the assault on PW2, Shyam Badan Rabi Das, (i.e., the deceased) and PW6, namely, Nandalal Rabi Das, intervened. The accused picked up a lathi, which was lying nearby, and pushed the lathi into the stomach of Shyam Badan Rabi Das , who, having sustained injury on his stomach, was admitted into the civil hospi tal, where he died after four days. 7. The assault on PW2, namely, Vijoy Rabi Das, at the hands of the accused is well proved. Similarly the assault at the hand of the accused of Shyam Badan Rabi Das is also well proven inasmuch as the defence could not elicit anything f rom the cross-examination of the prosecution witness to show that their evidence given to the effect that the accused-appellant had pushed a lathi into the stom ach of the said deceased is incorrect or untrue. 8. What is, now, pertinent to note is that according to the medical evidenc e on record, as revealed from the evidence of the doctor (PW7), on conducting ex amination of the abdomen, he found that peritoneum cavity contained dark coloure d fluid. There was no external injury anywhere on the dead body. The doctor has opined that the cause of death was due to shock as a result of the injury to the stomach resulting into septic peritonitis. 9. A bare scrutiny of the findings of the doctor and the opinion given by h im clearly show that the death of Shyam Badan Rabi Das was not due to injury cau sed by the accused-appellant, but due to septic peritonitis. It is, thus, as a r esult of infection, which had developed subsequent to the causing of the injurie s, which led to the death of the deceased. In such circumstances, the injury, by itself, cannot be said to have caused the death of the said deceased. This aspe ct of the case appears to have not been taken note of by the learned trial Court . 10. In order to attract conviction of a person under Section 304 Part-II IPC , an injury has to cause death and the accused must be proved to have had, at le ast, the knowledge that the injury was likely to cause death. In the present cas e, the death was, in the light of the medical evidence on record, as a result of infection from the wound developed, the wound having been caused by the assault at the hands of the accused as described above. While, therefore, the accused c ould not have been convicted under Section 304 Part-II IPC, he could have been c onvicted under Section 324 IPC inasmuch as Section 324 IPC lays down, inter alia , that whoever, except in the case provided for by Section 334, voluntarily caus es hurt by means of any instrument for shooting, stabbing or cutting, or any ins trument, which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term, which may extend to three years, or with fine, or with both. In the facts and attending circumstanc es of the present case, the accused ought to have been convicted not under Secti on 304 Part-II IPC, but under Section 324 IPC inasmuch as he has voluntarily cau sed hurt to the deceased by a lathi, which was used as a weapon of offence, is l ikely to cause death. As far as the conviction of the accused-appellant, under S ection 323 IPC, for assault on PW2 (Vijoy Rabi Das) is concerned, the evidence o n record clearly makes out a case against the accused for his conviction under S ection 323 IPC. 11. Thus, while the accused-appellant’s conviction under Section 323 IPC, ca nnot be interfered with, conviction under Section 304 Part-II IPC, cannot be sus tained and must, therefore, be set aside. 12. Because of what have been discussed and pointed out above, the convictio n of the accused-appellant under Section 304 Part-II is hereby set aside; he is hereby convicted under Section 324 IPC. This apart, conviction under Section 323 IPC is hereby maintained. 13. Considering the fact that the accused-appellant had not, in the light of the evidence on record, assaulted the deceased with pre-determined mind nor was the accused carrying any weapon from before, this Court is of the view that a s entence of rigorous imprisonment of 4 (four) months with a fine of Rs. 500/- wou ld meet the ends of justice and, in default of payment of fine suffer rigorous i mprisonment for another period of 15 days. 14. In the result and for the foregoing reasons, this appeal partly succeeds . While the conviction of the accused-appellant under Section 323 IPC and the se ntence passed against him, in this regard, as mentioned above is maintained, the conviction and sentence of the accused-appellant under Section 304 Part-II IPC is, as mentioned above, set aside, he is convicted under Section 324 IPC and he is sentenced, for his conviction under Section 324 IPC, to suffer rigorous impri sonment for a period of four months with a fine of Rs. 500/- and, in default, su ffer rigorous imprisonment for another period of 15 days. The sentences passed a gainst the accused-appellant, for his conviction under Sections 323 and 324 IPC of the IPC, shall run concurrently. 15. The period of imprisonment, already undergone by the accused-appellant, shall be set off in terms of the provisions of Section 428 Cr.P.C. 16. The accused-appellant is hereby directed to surrender, forthwith, in the Court of learned Chief Judicial Magistrate, Nagaon, in order to undergo the sen tences of imprisonment passed against him for his conviction under Section 324 I PC and Section 323 IPC. 17. With the above observations and directions, this appeal is disposed of . 18. Send back the LCR.