Reserved on : 27/01/ 2025 Delivered on : 25/04/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 735 of 2004 1. Bhaiyaram Nishad (Deleted At Abated) As Per Honble Court Order Dated- 02- 12-2024. 2. Santosh Nishad, S/o Puluram Nishad, aged about 40 Years, R/o Village-Nagar Gaon Police Station - Dharsinwa, District-Raipur (C.G.) 3. Mahavir @ Motu, S/o Bhaiyaram Nishad, aged about 22 Years, R/o Village- Nagar Gaon Police Station-Dharsinwa, District-Raipur (C.G.) ---- Appellants Versus State of Chhattisgarh Through- Police Station, Dharsinwa, District Raipur (C.G.) --- Respondent ______________________________________________________________ For the Appellants :Shri Divyanand Patel, Advocate For State / Respondent :Shri Aman Tamboli, P.L. ____________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput C.A.V. Judgment 1. Challenge in this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC), is to the judgment dated 23/08/2004 passed by the XI Additional Session Judge (F.T.C.), District–Raipur (C.G.) in Session trial No. 80/2004 by which the appellants have been convicted and sentenced in the following manner :- Conviction Sentence Under Section 304 (II)/34 of I.P.C R.I. for 05 years and fine of Rs. 2000/- to each appellant in default of payment of fine amount further R.I. for 06 months to each appellants -2- Under Section 323/34 of I.P.C R.I. for 06 months to each appellants. Both the sentence to run concurrently. 2. Initially three appellants had filed the appeal. During the pendency of this appeal, appellant No.1 - Bhaiyaram Nishad passed away and his appeal stood abated. 3. Case of the prosecution, in brief, is that on the date of incident in between 12.10.2003 at about 07:30PM to 13/10/2003 at about 02:30PM, at Village– Nagargaon, Bhaiyaram Nishad was abusing after consuming liquor. At that time accused/appellants came and assaulted him by hands and fists, kicking him, dragged him to the lane. On account of which Mayaram Nishad fell down and injured internally, he died on the same day of the incident. Report was lodged by the son of the deceased at Police Station–Dharsiwa, upon which FIR was registered under section 302 and 323, 34 of the IPC and investigation was set on motion. During the course of investigation statement of the witnesses were record and after due investigation, the charge sheet was filed against the appellants in the competent Court. After committal, the case was made over to the trial Court for trial. 4. The appellant were charged for offence punishable under sections 302 and 323/34 of the IPC. They denied the charges and claimed to be tried. 5. In order prove its case, prosecution has examined as many as 09 witnesses and exhibited as many as 20 documents. The statement of the appellants under 313 of the Cr.P.C. was recorded in which they claimed false implication. 6. The learned trial court on appreciation of material available on record, convicted and sentenced the appellants as stated above by the judgment impugned which is assailed before this Court. 7. Learned Counsel for the appellants submits that the conviction of the appellants is bad in law contrary to evidence on record and cannot stand the scrutiny of this Court. He submits that the death of the deceased is not homicidal in nature. Dr. Rajkumar Singh (PW-4) opined that death of the deceased was on account of cardio-respiratory failure. He further submitted -3- that the injuries sustained was not sufficient to cause death and was simple in nature. He further submits that there is no intention or knowledge on the part of the appellants to convict them under Section 304 Part-II of the IPC. He submits that at the most, the conviction of the appellants can sustain under Sections 323/34 of the IPC. He submits that as the death of the deceased was not homicidal, no conviction under Section 304-II/34 of IPC can sustain. He placed reliance upon the judgment passed by this Court in case of Balram Sahu Vs. State of Chhattisgarh in Cr.A.No.1378/2015 judgment dated 16/02/2018. 8. Per contra, learned Counsel for the State submits that the evidence brought on record clearly establishes the guilt against the appellants. The statement of eye-witnesses PW-2 and PW-5 clearly establish that the deceased was assaulted by the present appellants and deceased appellant. There is no illegality or irregularity in impugned judgment and well merited finding cannot be discarded. 9. Heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 10. The first question which comes for determination before this Court is whether the appellants are the author of the crime. Fekan Bai (PW2) was examined who happens to be injured witness and has seen the incident. In her deposition before the learned trial Court, she has stated that she knows the appellants. On the date of incident she was at her home and was cooking in the evening. Her husband (deceased) was sitting in the veranda. One of the appellant dragged him to the courtyard and all the appellants started started assaulting her husband by hands and kicks. Seeing this she went to intervene she also sustained injuries on her chest and hands. However she is not able to tell which appellant has caused the injuries. She was subjected to lengthy cross examination however, on material particulars with regard to happening of incident, this witness remained firm. She was medically examined by Dr. Rupak Purohit (PW3) and gave the medical report ExP/7. He stated that she was complaining of pain above the left elbow and chest. He did not find any bony injuries. Injuries were caused by hard and blunt object. Smt. Lakshmi -4- Bai (PW-5) corroborates the statement of Fekan Bai (PW2). She also witnessed the happening of incident and saw the appellants assaulting the deceased. She also deposed that Fekan Bai (PW2) also sustained injuries in the incident. This Court does not find any reason to disbelieve the statement of these witnesses. FIR (Ex-P/1) is also lodged naming the appellants. Hence, it can safely be gathered that the appellants are the perpetrators of crime. Therefore, the finding of conviction recorded by the learned trial Court is based on proper appreciation of evidence and requires no interference by this Court. 11. Now second question which comes for determination as to whether the conviction of the appellants under Section 304-II / 34 of IPC can sustain the scrutiny of this Court or the appellants could be convicted for lesser sentence. 12. Now referring to Section 299, 300 & 304, it would be relevant to quote the Section for the purpose. 299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 304. 304. Punishment for culpable homicide not amounting to murder— Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is -5- likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 13. As has been laid down in State Through Police Station, Lodhi Colony, New Delhi v. Sanjeev Nanda, AIR 2012 SC 3104, Section 292 of I.P.C. defines as under : “Section 299 of the Indian Penal Code defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death; and (iii) with the knowledge that such act is likely to cause death. The first and second clauses of the section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention. “Intention” and “Knowledge” postulates the existence of positive mental attitude. The expression 'knowledge' referred to in Section 299 and Section 300 is the personal knowledge of the person who does the act. To make out an offence punishable under Section 304(II) of the Indian Penal Code, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death.” 16. The Supreme Court in Jagriti Devi v. State of Himachal Pradesh, (2009) 14 SCC 771 held that Section 304 Part-II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. 17. In case of Andhra Pradesh v. Rayavarapu Punnayya & Another, (1976) 4 SCC 382, the Court succinctly examined the distinction between Section 299 and Section 300 of the Indian Penal Code and in para 12 of the judgment held as under: “In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is culpable homicide' but not vice- versa. Speaking generally, 'culpable homicide' sans' special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The -6- second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304.” 18. It was further held that the difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. The word “likely” in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words “bodily injury is sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury having regard to the ordinary course of nature. 19. In this context, whether injuries caused by the appellants to the deceased was with knowledge that such injury would likely to cause death, it would be relevant to reproduce the injuries sustained by the deceased which are as follows - External examination - The dead body was of a tall man who was wearing a black colored underwear and a lungi. There was stiffness on the entire body which was in strong state on the legs and in a less strong state on the other parts of the body. The Post mardum stani was in a purple blue colored state on the back of the body. Eyes were slightly opened and membranes were pale or lightly spotted. The following injuries were found on the body of the deceased - a. Blue colored scratch marks (Nilgu chot) was present on the right side of the back on the base of the panda bone measuring 3 × 2.5 cm. b. In the left eye lid, blue bruising was present. Ecynosis was present. In the left bone of ribs of the chest, Ecymosis was present. This Ecymosis were red in color. The above injuries were caused by some hard and sharp object within 24 hours prior to the death of the deceased and were not sufficient to cause death in the normal course of nature. Internal examination- -7- There was a lot of edema in the brain, and on cutting it, brain fluid started flowing out. Due to this, the ventricles of the brain had become swollen. The membrane above the left ventricle had become thick and was stuck to the chest wall. The left ventricle was also stuck to the chest wall. There was redness in both the sides and bone particles were present in the form of spots at some places. There was edema in the right ventricle. There was about 1006 ml of blood in the cavities of the right side of the heart and about 20 ml of blood in the cavities of the left side, in which some blood clots were also stuck. The arteries of the heart had become thick, which was difficult to cut. The left coronary artery had a narrowing of 0.5 cm from the main track of the artery and about 2.5 cm from the anterior descending branch of the same coronary artery due to Thiroclorosis disease ranging from 50% to 60%. The left circumflex coronary artery had a narrowing of about 30 to 50% and the right coronary artery had a narrowing of about 40 to 50%. The thickness of the left ventricle wall of the heart was 1.6 cm. There was white mucus-pure fluid in the gastric duct and this duct was tissueless. About 100 ml of brown colored fluid was present in the stomach. It had a slightly sweet smell. And its membrane was reddish. There was brown coloured fluid present in the small intestine which had a sweet smell and its membrane was reddish. The liver, spleen and both kidneys were red and healthy. The remaining organs of the body which are not described above were healthy.” It was opined by the doctor that the injuries sustained by the deceased was not sufficient to cause death. 20. From the statement of the injured witness and the eye witness, it is quite vivid that the deceased was assaulted by hands, fists and kicks. It is not a case of the prosecution that any weapon was used. From the medical evidence gathered particularly looking to the statement of Dr. Rajkumar Singh who has categorically deposed that injuries sustained by the deceased was not sufficient to cause death. He further deposed that the injuries sustained by the deceased was not sufficient to cause death in normal course. The deceased died on account of cardio respiratory failure. Blockage was found in the heart arteries. The deceased was assaulted with hands and kicks, it cannot be said that they had planned to assault the deceased and it does not appear that they were having knowledge that such assault would cause death of the deceased. Therefore, on analysis of the oral and medical evidence it would lead to show -8- that that the intention and the knowledge on the part of appellants to cause death with the act which may cause death has not been established by the prosecution. 21. As a result, the conviction of the appellants under section 304 II/34 IPC can not stand and is hereby set aside. However, their conviction under Section 323/34 IPC is maintained and their sentence is reduced to the period already undergone by them. 22. Thus, appeal allowed in part as indicated above. Consequence to follow. The appellants are on bail. Their bail bonds will remain in force for a period of 6 months in view of provisions of 481 of BNSS, 2023. The copy of this judgment with record be sent back to trial Court for information and necessary compliance. Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish / Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.04.26 11:21:58 +0530