1 2025:CGHC:19205-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1114 of 2015 {Arising out of judgment dated 25.08.2015 passed in Sessions Trial No.14/2012 by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon} Rajesh Verma, S/o. Shri Santram Verma, Aged About 30 Years, R/o. Village- Boirdih, Police Station- Khairagarh, Civil And Revenue District- Rajnandgaon, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The Police Station- Khairagarh, District- Rajnandgaon, Chhattisgarh. ... Respondent For Appellant : Mr. Siddharth Pandey, Advocate appeared on behalf of Mr. Mahesh Pandey, Advocate For Respondent : Mr. Afroz Khan, 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: 2025.04.30 10:34:16 +0530 2 Judgment on Board (29.04.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 25.08.2015, passed by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon, in Sessions Trial No.14/2012, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine amount, 15 days additional imprisonment. 2. Case of the prosecution, in brief, is that, on 03.03.2012 at 10:30 P.M. at village Boirdih, Police Station- Khairagarh, District Rajnandgaon, the appellant herein along-with juvenile co-accused Son Bai assaulted Vishnu Verma (now deceased) by wooden stick, by which he suffered grievous injuries and died; thereby, the offence has been committed. Khemin Bai (PW-1) reported the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-6 and dead body of deceased Vishnu Verma was subjected to post- 3 mortem, which was conducted by Dr. Ashish Rocky (PW-12), who proved the post-mortem report vide Ex.P-19, according to which, cause of death was stated to be syncope due to shock as a result of severe hemorrhage from ruptured spleen caused by a powerful blow to abdomen by a hard and blunt object and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-10), wooden stick was seized vide Ex.P-11, which was sent for chemical examination to FSL, but no FSL report has been brought on record. After due investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 20 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the 4 offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Siddharth Pandey, learned counsel for the appellant, would submit that the death has occurred on account of rupture of spleen, therefore, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant and, as such, the conviction of appellant for the offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he was remained in jail for more than 5 years & 10 months and the appeal be allowed in part. 6. Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C.; therefore, the appeal deserves to be dismissed. 5 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 Vishnu Verma was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-19) proved by Dr. Ashish Rocky (PW-12), according to which, cause of death was stated to be syncope due to shock as a result of severe hemorrhage from ruptured spleen caused by a powerful blow to abdomen by a hard and blunt object 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. Now, the next question is, whether the appellant has caused the death of deceased Vishnu Verma? 10. In view of the statement of eye-witness Khemin Bai (PW-1), wife of deceased and Chintamani Verma (PW-8), son of deceased, the trial Court has held that these two witnesses have seen the incident by which the appellant along-with 6 minor juvenile accused have assaulted the deceased by wooden stick, by which he suffered grievous injuries and died. As such, the finding of the trial Court that it is the appellant who has caused the death of the deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. Now, the question is whether the offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C. as contended by learned counsel for the appellant ? 12. In the case of Ramakrishna Panichker Vs State of Kerala 1 , the victim was having a spleen of diseased condition which got ruptured and in the said fact situation it was held that when the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death even though death is caused. 13. A similar question arose before the Divisional Bench of Allahabad High Court in the case of Sri Prakash Vs. State 2 , wherein beating given by the accused to a child having 1 AIR 1959 Kerala 372 2 1990 CrLJ 486 7 enlarged spleen resulted into his death and evidence do not show that the accused had knowledge of enlarged spleen of the deceased. On the fact situation, the High Court held the accused guilty under Section 323 of IPC. 14. Following the above principles of law, Gujarat High Court in the matter of State of Gujarat Vs. Babu Kava 3 , held that as the accused persons were not aware of the enlarged spleen of the deceased while making assault, cannot be held guilty under Section 304 Part-Il but are liable to be convicted under Section 323 of IPC. 15. The Supreme Court in the matter of Kariman v. State of Chhattisgarh 4 has observed in para 17 as under: “17. Dr. R.K.Tripathi, Medical Jurist (PW-11) proved the post mortem report (Exhibit P-24) taking note of the presence of one bruise admeasuring 10 cm X 8 cm on the left side of the body of the deceased resulting into the fracture of one rib. The said fractured rib caused laceration of the spleen. The cause of death was opined as shock due to internal bleeding. Thus, by no stretch of imagination, can be it accepted that the accused had the intention to cause injury/injuries to the victim with the intention or knowledge that the same would result into her death.” 3 (2003) 4 GLR 892 4 2024 SCC OnLine SC 607 8 Thereafter, Their Lordships have converted the offence under Section 302 of I.P.C. to the offence under Section 304 Part-II of I.P.C. 16. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the deceased died due to rupture of spleen and the prosecution has failed to establish the fact that the appellant had knowledge that the deceased was suffering from abdomen disease and Dr. Ashish Rocky (PW-12) did not opine that the injury caused was sufficient in ordinary course of nature to cause death. As such, considering the situs and nature of injury and in absence of evidence elicited from Dr. Ashish Rocky (PW-12) that rupture of spleen was sufficient in the ordinary course of nature to cause death, we are of the considered view that it is a fit case where the conviction of the appellant under Section 302 of I.P.C. should be under Section 304 Part-II of I.P.C. 17. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is modified and altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he was remained in jail 9 from 04.03.2012 to 18.6.2012 and from 25.08.2015 to 26.03.2021 i.e. approximately 5 years, 10 months & 15 days. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 18. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 19. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok