/:^. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE Mr. JUSTICE SUNIL KUIVIAR SINHA & HON'BLE IVIr. JUSTICE RADHE SHYAM SHARMA CRIMINALAPPEAL N0.279/1995 APPELLANT RESPONfiiMT Gadeshram, aged about 24 years, son of Shri Awadhram Suryawanshi, R/o Janna Basti Akaitara, District Bilaspur Versus State of Madhya Pradesh (Now State of Chhattisgarh) APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIIVIINAL PROCEDURE Appearance: Mr. Yogeshwar Sharma, Counsej forthe appejfant. Mr. U.K.S. Chandel, Panel Lawyerforthe State. ORAL JUDGMENT (11.05.2011) The following judgment of the Court was passed by Sunil Kumar Sinha. J. (1) This appeai is directed against the judgment dated 25th of January, 1995 passed in S.T.No.151/91 by the Seventh Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted under Sections 302 and 324 IPC and sentenced to undergo imprisonment for life and R.l. for 2 years with a further direction to run the sentences concurrentiy. (2) The facts, briefly stated, are as under: CRIIVUNALAPPEAL N0,279/1^^^^ ^ INI»» t^ Five accused persons were put to trial for the offence punishabie under Sections 302/149 and 324/149 IPC. The case of the prosecution was that on 01.09.1991, the appellant assaulted Santosh Kumar (RA/-1) by a knife. Thereafter, Santosh Kumar (PW-1) went to his house, the appellant also went there ahd as soon as the door of the house was opened by father of Santosh Kumar (PW-1) nameiy Malikram (since deceased), the appellant gave a knife blow on the thigh of the deceased. It was also alieged by the prosecution that the above acts were done by the appeliant in furtherance of the common object of unlawful assembly, which was formed by the 5 accused persons. On trial, the learned Sessions Judge recorded a finding that it was not established by the prosecution that the above acts of the appeliant were done in furtherance of the common object of unlawful assembly allegedly formed by the 5 accused persons. Therefore, 4 accused persons namely Bhakla @ Ganeshram, Munna @ Rajkumar, Mulchand and Awadhram, were acquitted of the charges framed against them. However, the appellant was convicted under the aforementioned SectionsoftheiPC. (3) Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellant, has not disputed that the appeliant voluntarily caused hurt by a knife to Santosh Kumar (PW-1), therefore, he was tiable for punishment under Section 324 IPC. He has aiso not disputed the homicidal death of deceased- Malikram. He argued that looking to the facts and circumstances of the case and further looking to the nature of /p^ S fc^^lS^. % g i %. S M %. .'^te^. "^teS^ CRJMINALAPPEALN0.279/199S (^ ^ G. injury caused by the appellant to the deceased, the act of the appellant would not be punishable under Section 302 IPCand the appellant would be tiable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (4) On the other hand, Mr. U.K.S. Chandel, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard learned counsel for the parties at iength and have also perused the records of the Sessions Case. (6) The case of the prosecution is that on account of drinking of liquor, firstly, a quarrei took place between the appellant and Santosh Kumar (PW-1) - son of the deceased, on which, the appellant gave a knife blow to Santosh Kumar. Thereafter, when Santosh Kumar (PW-1) went to his house, the appellant went behind him and as soon as the door of the house was opened by father of Santosh Kumar - Malikram (deceased), the appellant, all of a sudden, gave a knife blow on the left thigh of the deceased. Dr. P.Mahajan (PW-9) conducted the autopsy on the body ofthe deceased. He found one piercedwound of2 %x 1 x6 cm on the left thigh of the deceased. This was the only external injury found on the body of the deceased. He noticed that the above injury was deep and the femorai artery running through the thigh was cut, as a result of which, there was heavy bSeeding and the deceased -l.s^ .^•^^ lt -^' .^" .'"- "- .-.•v j , '•^^/' CRIMINAL APPEAL N0.279/1995 Ir: died on account of the above injury caused to him. According to him, the cause of death was haemorrhage because of the said injury. The postmortem report is Ex.P/10. (7) In Virsa Sincih -Vs- State of Puniab. AIR 19S8 SC 465, the Supreme Court heid that "the prosecution must prove the following facts before it can bring a case under Section 300 "thirdiy"; First, it must establish, quite objectiveiy, that a bodiiy injury is present; Secondly, the nature ofthe injury must be proved. There are pureiy objective investigations. Thirdly, it must be proved that there was an intention to inftict that particular bodily injury, that is to say, that it was not accidental or unintentionai, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and 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." (8) In the present case, on the evidence of injured eye- witness Santosh Kumar (PW-1) and other eye-witnesses namely Radhabai (PW-6) - daughter-in-law of the deceased, Sant Kumar (PW-7)-son of the deceased and Bhagwat (PW-10), it was established that when the appeilantwent to the house ofthe deceased along with Santosh Kumar (PW-1), 1 / ..„.. i-e-^, --^^^ CRIMINAL APPEAL N0.279/199S the deceased opened the door and the appellant, all of a sudden, jnflicted single knife blow on the thigh of the deceased. Unfortunately, the knife blow pierced inside the thigh and the femorai artery was cut. (9) In the facts and circumstances of the case, it appears that there was no intention of the appellant to inflict that particular bodily injury, i.e. to cut the femoral artery, which the deceased by chahce sustained. The act of the appeilant was unintentionai andthere was hardly an element of intention either to commit murder of the deceased or to inflict the above bodily injury to the deceased. If we apply the principles !aid down in Virsa S'mfsh fSupra), it wouid appear that the particular injury sustained by the deceased was unintentional. However, the manner in which the injury was infticted to the deceased and the weapon used by the appellant to inflict the said injury would show that the appellant was having knowledge that his such act was likely to cause death or it was likely to cause such bodiiy injury as is tikely to cause death. (10) For the foregoing reasons, we are of the view that an offence under Section 302 IPC would not be made out against the appellant and he would be liable for punishment under Part-11 of Section304 IPC. (11) Accordingly, the appea! is partly allowed. While confirming the conviction and sentence awarded to the appellant under Section 324 iPC, we set aside his conviction y'^:' :^.^!"- ^ •^'-^^•''- 6 CRIMINAL APPEAL N0.279/1995 and sentence awarded under Section 302 IPC. Instead thereof, he is convicted under Section 304 Part-il IPC and sentenced to undergo R.l. for 5 years. The directjon to run the sentences concurrentiy is maintained. The appeilant wouid be entitled to set offthe period already undergone by him. Sd/- Sunil KumarSinha Judge Sd/- R.S. Sharma Judge shyna