g?) HIGH COURT OF CHHATTISGARH, BILASPUR , CORAM: Hon’ble Shri Rajeev Gupta, C.J. 85 ' Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 879 of 2001 ‘ Budhuram u f Vs. State of Chattisgarh (((= JUDGMENT For consideration A Sdl- Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA (I C ’ Sd/- Chief Justice A» y Post for Judgment : 3 0/06/2009 Sdl- ‘\‘ Sunil Kumar Sinha Judge (‘1- ‘ @ HIGH COURT OF CHHATTISGARH BILASPUR H CORAM: Hon’ble Shri Ra'eev Gu ta C.J. 8n Hdn’ble Shri Sunil Kumar Sinha J., w Criminal Appeal No.879 of 2004 APPELLANT Budhuram, son of Asadu Telga, ’ aged abput 51 years, Occupation Cultivator, Resident of village Satspur, P.S. Mardum, Distt. Bastar (C.G) Versus RESPONDENT State of C.G. Through Police i t Station Mardum, Distt. Bastar (Jagdalpur), ~(.C.G.) ‘ (Agpeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Smt. Kiran Jain, Counsel for the appellant Shri Ravindra Agrawal, Panel La'Wyer, for the State. JUDGMENT ‘ (3.. .06.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (11’ The appellant stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Bastar, Jagdalpur in Sessions. Trial No.63/2004 on rr\7\\r 22nd of September, 2004. 2 @ Cr.A.N0.879/2004 (2) The facts, brief1y stated, are as under: Deceased Sitai‘am was the nephew bf the appellant. l‘ They were residing in the same locality of the village. ;There were sonie trees of custard—apple on their land. The allegations are that the appellant had plucked the f fruits of ten trees and kept them in his house, on which, a deceased Sitaram went ‘to his house and asked for i parting the fruits, due to which, a quarrel began and the “appellant shot an arrow which hit the abdomen of the deceased.‘ The matter was reported to the concerned ‘E i Police Station by the deceased himself, on which, a First Information« Report (EX.P.11) was recorded and the offence u/s 324 IPC was registered. The deceased was taken to the Primary Health Center, Lohandiguda Where he was treated by Dr.(Smt.) Ritaram Theke (P.W.2), who prepared the M.L.C. report (EX.P.3) and referred him to Maharani Hospital, Jagdalpur for. further treatment. The deceased was admitted in the hospital. The incident took place on 25.10.2003, the deceased was admitted in the hospital on 26.10.2003 and was treated by Dr. V.K. Jha (P.W.3). The deceased died during the course of his treatment on 04.11.2003. The report of his death was sent to the concerned Police Station Where merg (EX.P. 10) was registered. The dead—body was sent for its postmortem examination, which was also conducted by Dr.V.K. Jha (P.W.3), who prepared his report, Ex.P.5. The medical report as also the bed head ticket (EX.P.7—C) and the postmortem report (EX.P.5) would show that there was an incised wound of 1" X 1/2" X 2" on the front of the abdominal wall. The deceased was operated for the said wound as there was perforation in the intestine. The treating surgeon Dr.Vivek Joshi (P.W.1 1) stated that Tress after the operation, the deceased was normal but he died 7"; I \ j “\, a; a...\ @ on 04.11.2003. The autopsy surgeon Dr. V.K. Jha (P.W.3) noticed that the deceased has develop peritonitis and about 250 m1. of pus was present inthe I peritoneal cavity and foul smell was coming out from the pus . Some portion of small and large intestines had become highly decayed having blackish colour. He ' opined-that the cause of death was shock as a esult of septicemia and the death was homicidal in nature. ‘ r After completion of the usual investigation, the sharge sheet was filed in the Court of Judicial Magistrate, First Class, Jagdalpur, who in turn committed the matter to the Sessions Court, Jagdalpur i, where the trial was conducted and the appellant was convicted and sentenced as aforementioned. 1' 7/ w (3) I The conviction of the appellant is based upon the eyewitness account of Rukhnath (P.W.5) and Sushila (P.W.6). Ruknath is the brother of the deceased and Sushila is the wife of Ruknath. (4) Smt. Kiran Jain, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of the deceased. More over, it comes in the evidence of P.W.5 Ruknath and P.W.6 Sushila that the deceased was shot by an arrow by the appellant, which hit on his abdomen; he was sent to the Primary Health Center and thereafter, was admitted in Maharani Hospital, Jagdalpur, where he died on 04.11.2003. The autopsy surgeon also opined that the cause of death was shock as a result of septicemia and it was homicidal in nature. Cr.A.No.879/2004 ed . f r i j{* 4 Cr.A.No.879/2004 Therefore, it was established that the death of deceased was homicidal in nature. r (5) A Smt. Jain has also not disputed the complicity of the i appellant in crime in question. she only argued that on . l accoiint of petty matter, a quarrel began between the appellant and the deceased and the appellant out of anger shot an arrow which unfortunately hit the abdomen of the deceased who diéd on 11th day of the incident during the course of treatment in the hospital. The death was on account of ‘ A septicemia developed in the wound of the deceased. Therefore, the offence would be lesser than One punishable u/s 302 preferably Part-II of Section 304 IPC. (6) On the other hand, Shri 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 of the Sessions Court. (8) Section 304 provides for punishment for culpable homicide not amount to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300, and cases in which the crime is culpable .m". 5 Cr.A.No.879/2004 homicide not amounting to murder, that means, Where there is knovziledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is abséjnt. The first part of section 304 applies where there is interition, Whereas the second part applies where there is l knovrledge. ‘ (9) If we examine the case on h to determine the liability 1 and of tlappellant for the t committed by him, it would appear he ac that on a petty matter; that is o account of plucking fruits of A 10 trees of custard-aple by the appellant, the deceased who p was he real ephew of the appellant ‘Went to the house of the t n , appellant for demanding his share and a quarrel . began between them. The facts and circumstances of the case would show that in a sdden quarrel in heat of passion without any u premeditatin or preparation, the appellant shot an arrow n o o the deceased ho received single injury on the abdomen. w According to the eyitnesses and the Doctor, he was immediately admitted to the hospital ahd was operated for the said injury. The treating doctor has deposed that the deceased was alright but ultimately he died on 04.11.2003 i.e. on 11th day from the date of incident. It would further appear from the evidence of the autopsy surgeon that Septicemia has developed in the operated wound and about 250 ml. of pus was found in the peritoneal cavity and foul smell was emanating on account of decay of the intestines. The doctors have not stated that rxwwkw gthe injury was sufficient to cause death in the ordinary course “NMW W Mk...“ i n ew 6 Cr.A.No.879/200 of nature. Therefore, we are of the considered View that in fact an intention to cause death or bodily injury likely to cause death was not present in this case. However, there is ample evidence to show that there would have been knowledge that death will be a likely result on account of the act committed by the appellant. W (10) 1 In the facts and circumstances of the case, we are of the considered View that the act of the appellant would fall under i Exception 4 of Section 300 and he shall be liable for a a punishment u/s 304 Part-II IPC. (11) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part—II IPC and sentenced to undergo R.I. for 7 years. The sentence awarded to the appellant was suspended and he was directed to be'released on bail vide order dated 02.09.2008, but, the; ‘appellant could not furnish thei'bail bonds and he is continuously in jail since 12.11.2003. He shall be entitled to set off the period already undergone by him. / Sd/- / SC"- Chief Justice ‘ sun“ Kumar Sinha j‘ " *7 Judge ..\.¥ ‘.‘wh Rao 4