"11 / ^i^ ^''^^l& v ^.-'tJr- ^^' HIOH COURT OF CHHATTISGARH AT BILASPUR DB: HQn^blehflr. Sunil Kumar Sinha & Hon'ble hfir. Radhe Shvam Sharma, JJ. Cnminat Appeal No. 1061/1995 ApRellant Vs. Respondent Orrsa Bujja S/o. Borsa, Caste Ghadva, Aged about 30 years, Viliage Padmur, Patelpara, Poiice Station Bijapur, Distt. Bastar (M.P.) (Now State of Chhattisgarh) State of M.P. (Now State of Chhattisgarh) (Criminal Appeal under Section 374 Cr.P.C.) Present: Smt. Kiran Jain, counsel for the appellant. Shri Ashish Shukla, Govt. Advocate for the State. ORAL JUDGMENT (27.08.2011) The foilowinn iudament of the Court was oassed bv Sunil Kumar Sinha. J. This appeal is directed against the judgment dated 19 April, 1995 in Session Trial No.208/91 by the Third Additional Session Judge, Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted under Section. 302 IPC and sentenced to undergo imprisonment for life. 2. The Tacts, briefly stated, are as under:- Case of the prosecution is that on account of some previous animosity, the appellant assaulted the deceased by a bow and arrow. On 24.4.91, the deceased was called by the appellant for discussing about the compromise in a criminal case registered under Sections 341 and A Vs I Criminal AppealNo. 1061/1995 323 of Indian Penal Code and was pending before the concerned Court. When the deceased was coming to the house of the appellant, the appellant shot an arrow, which hit on the chest of the deceased. The arrow in fact, pierced into the thoracic cavity and damaged one of the lungs of the deceased. The incident was witnessed by Ursa Lakhmi (PW-4), who lodged the First Information Report (Ex-P/3). The investigating officer reached to the place of occurrence, gave notice (Ex-P/9) to the Panchas and prepared inquests (Ex-P/10) on the dead body of the deceased. Dead body of the deceased was sent for post mortem to Primary Health Centre (PHC), Bijapur vide requisition P/11 . Post mortem examination was conducted by Dr. A.R. Gota (PW-6), who found a penetrating wound on the chest below the right nippte. There was a puncture wound on the corresponding lung also. The autopsy surgeon opined that cause of death was syncope due to intemal hemorrhage caused by the above injury and death was homicidal in nature. In further investigation, the appellant was taken into custody, his memorandum statement (Ex.P/12) under Section 27 of the Evidence Act, was recorded and bow and arrows were seized at the instance of the appeiiant vide seizure memo Ex.P/13. 3. The learned Sessions Judge, relied on the testimony of Ursa Lakhmi (PW-4) and held that the appellant shot an arrow on the deceased from some distance, which caused the above injuries, therefore, the appellant was liable for punishment under Section 302 of the IPC. 4. Smt. Kiran Jain, learned counsel appearing for the appellant, has not argued on the merits of the matter. She has also not disputed the homicidal \ieath of the deceased. She argued that in the above facts and / _.J^. i.diBi-w^.u&B^aKWi.jrei.iu*>-ju»<riiinjunH.a*iu-yuil^ —~s w/ Crimmal Appeal No. 1061/1995 circumstances of the case, offence under Section 302 IPC would not be made out and the appellant would not be liable for punishment under the said Section of the IPC. Her argument is that in the above facts and circumstances of the case, the appellant would be liable for punishment under some tesser Section, preferably Part-1 of Section 304 of IPC. 5. On the other hand, Shri Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, argued that the appellant shot an arrow on the deceased with an intention to cause his death, therefore, he was rightly punished under Section 302 IPC and there is hardly any scope for interference in this matter. 6. In Virsa Sinah - Vs- State of Puniab. AIR 1958 SC 46S. 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 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 threes 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 pure!y 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 €) 1^<?-<;^^'^^ 4 Cmninal Appeal No.1061/1995 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 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. 7. tn Laxminath - Vs- State of Chhattisaarh. (2009) 3 SCC 519. the appellant shot one arrow which hit on the arm of the 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-! & not Section 302 IPC and conviction awarded to the appellant u/s 302 IPC was altered under Section 304 Part-1 IPC with custodial sentence of eight years. 8. 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 on the lung) to the deceased and for the said reason, his act would not be punishable under Section 302 IPC and he would be liable for punishment under Part-1 of Section 304 IPC. 9. !n the result, the appeal is partly atlowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant •--^_^._ _.. TT ^) Criminal AppealNo. 1061/1995 is convicted u/s 304 Part-1 IPC and sentenced to undergo R.l. for 10 years. We gathered from the record that the appellant was arrested on 26.4.91 and was released on bail on 5.4.2003, hence, he has already served more than the sentence awarded to him. Therefore, he is not required to surrender. He is on bail. His bail bonds are cancelled and surety stands discharged. 3iil: Sd/- Sunil Kumar Sinha Judge Sd/- Radhe Shyam Sharma S^: •^p *£ .'. :<T ^'