1 2025:CGHC:2547-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1235 of 2019 {Arising out of judgment dated 16.07.2019 passed in Sessions Trial No. 44/2018 by the learned Third Additional Sessions Judge, Surajpur} 1 - Thakur Ram, S/o. Baldev Ram, Aged About 33 Years, R/o. Village Raghunathpur, Police Station Premnagar, District Surajpur, Chhattisgarh. 2 - Dev Sai, S/o. Baldev Ram, Aged About 25 Years, R/o. Village Raghunathpur, Police Station Premnagar, District Surajpur Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through The Police Station Premnagar, District Surajpur, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellants : Mr. Shahid Ahmed Ansari, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.16 10:34:00 +0530 2 Judgment On Board (15.01.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the two appellants under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 16.07.2019, passed by the learned Third Additional Sessions Judge, Surajpur, in Sessions Trial No.44/2018, by which the two appellants (both brothers) have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 read with Section 34 of I.P.C. : Life imprisonment with fine of Rs. 1000/- each, in default of payment of fine, 6 months' additional rigorous imprison- ment. U/s. 506 Part-II of I.P.C. : Rigorous imprisonment for 2 years with fine of Rs.1000/- each, in default of payment of fine, 6 months' additional rigorous imprisonment. U/s. 456 of I.P.C : Rigorous imprisonment for 2 years with fine of Rs.1000/- each, in default of payment of fine, 6 months' additional rigorous imprisonment. All the sentences to run concurrently. 2. Case of the prosecution, in brief, is that on 12.02.2018, at about 1:00 A.M., near River Atem at Hotel Dhaba, 3 Raghunathpur, Premnagar, Police Station Premnagar, the two appellants herein assaulted Prem Mishra (now deceased) by wooden stick and axe, by which, he suffered grievous injuries and died in the hospital during treatment on 13.02.2018 at 11:30 P.M.; thereby the offence has been committed. The matter was reported to the police, pursuant to which, FIR was registered vide Ex.P-1, Merg Intimation was registered vide Ex.P-12, Inquest was conducted vide Ex. P-11 and dead body of deceased Prem Mishra was subjected to post-mortem, which was conducted by Dr. B.C. Paikra (PW-13), who proved the post-mortem report vide Ex.P-15, in which cause of death was stated to be head injury, mode of death was subdural haemorrhage due to injury No.1 and 13 and death was homicidal in nature. Pursuant to memorandum statement of the appellant No.1 vide Ex.P-4, iron axe was seized vide Ex.P-6 and on the memorandum statement of appellant No.2 vide Ex.P-5, wooden stick was seized vide Ex.P-7, which were sent for examination to FSL along-with other seized articles and as per the FSL report Ex.P-26, no blood was found on the seized weapon of offence i.e. axe & wooden stick. After due investigation, appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions 4 for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 28 documents and the appellants-accused in support of their defence have not examined any witness but have exhibited the documents Ex.D-1 & Ex.D-2. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants herein for the aforesaid offences as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 5. Mr. Shahid Ahmed Ansari, learned counsel for the appellants, would submit that there was no internal fracture and injuries were caused over the non-vital part of the body. He further submits that as per the statement of Dr. B.C.Paikra (PW-13), who proved the post-mortem report Ex.P-15, the injuries caused by the appellants were not sufficient to cause death in the ordinary course of nature and therefore, clause Thirdly of Section 300 of I.P.C. would not attract and the case of the appellants would fall under 5 Section 304 Part-I of I.P.C. in view of the decision of the Supreme Court in the matter of Nankaunoo v. State of Uttar Pradesh1. Therefore, the conviction of the appellants under Section 302 of I.P.C. be converted to Section 304 Part-I of I.P.C. and the appellants be sentenced for the period already undergone, as they are in jail since 17.02.2018. 6. Mr. Vivek Mishra, learned State counsel would submit that considering the medical evidence available on record, the trial Court has rightly convicted the two appellants for the offence under Sections 302/34, 506 Part-II & 456 of I.P.C. He further submits that it is not the case where the sentence of the appellants can be converted to Part-I of Section 304 of I.P.C. and, as such, the instant appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Prem Mishra was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-15 proved by Dr. 1 (2016) 3 SCC 317 6 B.C.Paikra (PW-13), according to which, cause of death was stated to be head injury, mode of death was subdural haemorrhage due to injury No.1 and 13 and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The conviction of the appellants is based on the statement of Vindeshwar (PW-1) and Bhanu Pratap (PW-2). Vindeshwar (PW-1), who was co-worker working in the Dhaba where the incident took place, has stated the manner in which the incident took place that two appellants came in the hotel on account of previous enmity, as earlier the brother of appellants' father came in the hotel and asked for liquor, on account of which, deceased Prem Mishra had slapped him. As such, Vindeshwar (PW-1) has clearly supported the case of the prosecution. He was subjected to cross-examination, but nothing has been extracted to hold that he had not seen the incident. The statement of Vindeshwar (PW-1) has been further supported by the statement of Bhanu Pratap (PW-2), who is son-in-law of the deceased, who reached to the spot immediately thereafter and seen the incident. He was also subjected to some extent of cross-examination, but nothing 7 could be extracted from his evidence to hold that the appellants have not committed the offence. As such, from the statement of PW-1 & PW-2, it has been clearly established that it is the appellants who have assaulted the deceased by wooden stick and axe, by which he suffered grievous injuries and died during the course of treatment after 22 hours and therefore, the finding recorded by the trial Court that it is the appellants who have caused the death of deceased is correct finding of fact based on evidence available on record and accordingly, we hereby affirm the said finding. 10. 10. Now, the question is whether the offence under Section 302 of I.P.C. can be converted to Section 304 Part-I of I.P.C. in light of the decision of the Supreme Court in the matter of Nankaunoo (supra). 11. In this regard, in the matter of Nankaunoo (supra), their Lordships of the Supreme Court have held the ingredients of clause Thirdly of Section 300 of I.P.C. and held in paragraph 12, 13 & 14 as under : "12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such 8 offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. 13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1½” x 1½” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause the death. We find substance in the contention of the learned counsel for the appellant the injury was on the inner part of left thigh, which is the non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the conviction of the appellant 9 under Section 302 IPC should be under Section 304 Part 1 IPC. 14. In the result, the conviction of the appellant under Section 302 IPC is modified as conviction under Section 304 Part I IPC and the appellant is sentenced to undergo ten years' rigorous imprisonment and the appeal is partly allowed." 12. Reverting to the facts of the case in light of the principles of law laid down in the matter of Nankaunoo (supra), it is quite vivid that as per the statement of Dr. B.C.Paikra (PW-13), thirteen injuries were found in the body of the deceased and death occurred on account of subdural haemorrhage due to injury No.1 & 13. However, Dr. B.C. Paikra (PW-13) has clearly admitted that left ribs of chest 3, 4, 5, 6 & 8 were found ruptured and left tibia fibula bone was fractured. He also admitted that there was no internal fracture on the head and, as such, Dr. B.C.Paikra did not say that the injuries caused by the appellants were sufficient in the ordinary course of nature to cause death. Keeping in view the situs and nature of injuries in absence of evidence elicited from the Doctor B.C.Paikra (PW-13) that the injuries caused by the appellants were sufficient in the ordinary course of nature to cause death, we are of the considered opinion that it is a fit case where the conviction of the appellants under Section 302 of I.P.C. should be under Section 304 Part I of I.P.C. 10 13. In view of the above, the conviction of appellants for offence under Section 302 read with Section 34 of I.P.C. is modified as conviction under Section 304 Part-I of I.P.C. and the appellants are sentenced to 10 years’ rigorous imprisonment. However, the conviction & sentence of the appellants for the offences under Sections 506 Part-II and 456 of I.P.C. are maintained and the direction to run all the sentences concurrently as stated by the trial Court shall also remain as it is. 14. In view of the above, this criminal appeal is partly allowed to the extent indicated herein-above. 15. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Ashok Judge Judge