s^^^ ;8a7, HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha SB Hon'ble Shri Radhe Shyain Sharina, J J. Criminal Appeal No. 1074 of 1995 Tulsa Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT _Fr)T consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHR!_JUSTICE RADHE SHYAM SHARMA 3 ^Qs -iL Sd/- Radhe Shyam Sharma Judge Post for Judgment Sd/- Judge '3,0/^/2011 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hpn'ble ShrLSunil Kumar Sinha Ss Hon'ble Shri Radhe Shyani Sharina, J J. APPELLANT RESPONDENT Criminal Appeal No. 1074 of 1995 Tulsa S/o Sukhu, Caste- Kumhar, aged 20 years, R/o Musaloor, P.S. Bijapur, District Baster, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through Station House Officer, Bijapur (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. R.K. Jain, Advocate for the appellant. Mr. Ravindra Agrawal, Panel Lawyer for the State. JUDGMENT ( 1.07.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 29th of April, 1995 passed in Sessions Trial No. 445/93 by the First Additional Sessions Judge, Jagdalpur (Baster). By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. i5 Criminal Appeal No. 1074 of 1995 The facts, briefly stated, are as under:- On 27.6.93 at about 5.00 p.m., the appellant took the deceased to his house for drinking liquor. At about 10.00 p.m., Jaggu (son of the deceased) heard commotion in the house of the appellant. He went to the house of the appeUant along with his sister- Laxmi Bai (PW-2). They saw that the appellant was quarrelling with their father. On this they took their father (deceased) frora the house of the appellant. The allegations are that on the way, the appellant carae with a bow SB arrow and shot an arrow frora some distance on the deceased which hit on his abdomen. The deceased died out of the injury sustained by him. The First Information Report (Ex.-P/l) and merg intimation (Ex.-P/2) were lodged by Jaggu (PW-1). The Investigation OfGcer reached to the place where the dead body was kept, gave notices (Ex.-P/3 8s P/4) to the Panchas and prepared inquest on the dead body of the deceased. The dead body of the deceased was sent for post- mortem to Primary Health Center, Bijapur vide requisition Ex.-P/S. The post-mortem examination was conducted by Dr. A.R. Gota (PW-5), who noticed single injury of ^A inch x 1/4 inch x 9 inch on the left abdominal region of the deceased. On internal examination, he found that portions of intestine coming on the track of the injury were punctured and peritoneal cavity was full of dark blood. The Autopsy Surgeon opined that the cause of death was syncope due to excessive internal haemorrhage on account of above injury and the death was homicidal in nature. The post-mortem report is Ex.-P/lO. (3) The learned Sessions Judge relied on the testimonies of the above witnesses and recorded the conviction u/s 302 IPC and sentenced the appellant as aforementioned. Criminal Aprieal No. 1074 of 1995 (4) We have perused the records ofthe Sessions Court. We have no doubt the involvement of the appellant in the above incident. On the basis of material available on record, it was established that the appellant shot an arrow to the deceased, which resulted into his death. The question which requires consideration is as to whether the act of the appellant was punishable u/s 302 IPC or the appellant would be liable for punishment under some lesser Section. (5) Mr. R.K. Jain, learned counsel appearing on behalf of the appellant, argued that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment under Section 304 Part-I IPC. (6) Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) In Virsa Sinah -Vs- State ofPuniab, 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, it must be proved that -.UaAt-a_aaa_anJ_ntention to inflict that particular bodily injury, that t? Criminal Appeal No. 1074 of 1995 is tb 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 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 sufBcient 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 of a kind that is sufficient to cause death in the ordinary course of nature, or even that there is no knowledge that an act of that klnd will be Ukely 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. In Lcixminath -Vs- State of Chhattisgarh, (2009) 3 SCC 529, the appellant shot one arrow which hit on the arm of the ^^ Criminal Auoeal No. 1074 of 1995 victim. Thereafter he shot another arrow on his mother-in-law (deceased) which hit on her chest. The Supreme Court, relying on the judgment of Virsa Singh (supra) held that in the factual scenario and fact that one arrow was shot, the offence would be covered by Section 304 Part-I 85 not Section 302 IPC and conviction awarded to the appellant u/s 302 IPC was altered under Section 304 Part-I IPC with custodial sentence of eight years. If we examine the case on hand on the principles laid down in Virsa Singh's case, it does not appear that the appellant had an intention to cause such bodily injury (i.e. injury to the intestine) to the deceased and for the said reason, his act would not be punishable u/s 302 IPC and he would be liable for punishment under Part-I of Section 304 IPC. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant is convicted u/s 304 Part-I IPC and sentenced to the period already undergone. We gather from the record that the appellant was arrested on 29.6.93 and was released on bail on 8.7.2002 thereby he has already undergone for a period of more than 9 years. Presently he is on bail. His bail. bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- Radhe Shyam Sharma Judee vatti