1 2025:CGHC:2759-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 1371 OF 2019 (Arising out of judgment dated 01.09.2017 passed in Sessions Trial No. 48/2016 by Sessions Judge, Balodabazar) • Roshanlal Verma S/o Atma Ram Verma aged about 70 years, R/o Village Barda Chaowki Lawan Thana Kasdol, District – Balodabazar, Chhattisgarh. ---- Appellant (In Jail) Versus • State of Chhattisgarh, Through: Thana Kasdol, District – Balodabazar, Chhattisgarh. ---- Respondent For Appellant :- Ashok Kumar Swarnakar, Advocate/Panel Lawyer appointed by C.G. High Court Legal Services Committee. For Respondent :- Mr. Sharad Mishra, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (16.01.2025) 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 dated 01.09.2017 passed in Sessions Trial No. 48/2016 by the Second Additional Sessions Judge, Digitally signed by HEERA LAL SAHU Date: 2025.01.17 17:24:27 +0530 2 Balodabazar (C.G.), by which, the appellant herein has been convicted for the offences punishable under Sections 302, 294 and 506 Part-II of IPC and sentenced as under with a direction to run all the sentences concurrently:- Conviction Sentence U/s 302 of IPC Life imprisonment with fine of Rs. 1000/-, in default of payment of fine amount additional R.I. for 2 months. U/s 294 of IPC Rigorous imprisonment for 3 months. U/s 506 Part II of IPC Rigorous imprisonment for 5 years. 2. The case of the prosecution, in brief, is that on 10.05.2016 at about 08:00 a.m., in village Barda, Police Station: Kasdol, the appellant herein abused and assaulted his cousin namely Shatrughan Prasad Sharma (now deceased) by means of iron arrow, by which, he suffered grievous injuries, and died during treatment on 24.05.2016 at 08:00 pm, thereby committed the aforesaid offences. 3. Further, the case of the prosecution, in a nutshell, is that on 10-05-2016, the complainant Iyasagar Verma (PW-1) lodged a report to the effect that on the date of offence i.e. 10.05.2016 at 08:00 am, he was standing in the street, at that time, appellant Roshan Lal Verma was using filthy language in the street, then his maternal uncle Shatrughan Prasad Verma (deceased) came out of his house and stopped him but he did not listen and who are you to stop 3 him, saying that, he entered the house and assaulted his maternal uncle on the stomach with a arrow-like weapon, due to which the weapon penetrated his (deceased) stomach and his maternal uncle fell unconscious. The above incident has been witnessed by Nitesh Verma (PW-2) and Anil Verma (PW-5). Therefore, on the basis of the above report of the complainant, a case was registered in the police post-Lavan under Section 294, 506, 307 IPC. The crime was registered at zero vide Ex.P-1. Thereafter, FIR No. 177/2016 was registered at police station Kasdol vide Ex.P-18. Merg intimation was registered vide Exs.P-15 & P- 19. Spot map was prepared vide Ex.P-9. Inquest proceeding was conducted vide Ex.P-04 and the dead body of the deceased was sent for postmortem examination. As per the postmortem report (Exs.P-10 & P-23), proved by Dr. M. Nirala (PW-17), the cause of death was cardio-respiratory arrest as a result of abdominal injuries and complications. Memorandum statement of the appellant/accused was recorded vide Ex.P-6, pursuant to which blood stained arrow-like rod was seized vide Ex.P-7 and other articles were seized vide Ex.P-8. The seized articles were sent for chemical examination to FSL. In the FSL report, blood was not found on arrow-like rod (Article A). 4 4. After completion of the investigation, the appellant was charge-sheeted and the case was committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant/accused person abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 24 documents. Statement of the appellant under Section 313 of Cr.P.C. was recorded wherein he denied guilt, however, 04 documents have been exhibited by the appellant in his defence. 6. After conclusion of the trial, the trial Court, by impugned judgment, on appreciation of oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 7. Learned counsel for the appellant submits that the learned trial Court is not justified in convicting the appellant for the offence under Section 302 of IPC. He further submits that even if the entire prosecution case is taken as it is, at best the offence under Section 304 Part-I or Part-II of IPC is made out against the appellant as the date of incident was 5 10.05.2016 at 08:00 am, whereas the deceased died on 24.05.2016 at 08:00 pm, and considering the statement of Dr. M. Nirala (PW-17) who did not say that the injuries caused to the deceased were sufficient to cause death in the ordinary course of nature. The case of the appellant would not fall under Section 300-Thirdly of IPC but it would fall under Section 304 Part-I or Part-II of IPC, in view of the decision of the Supreme Court in the matter of Nankaunoo v. State of Uttar Pradesh 1. Therefore, the conviction of the appellant under Section 302 of IPC be converted to Section 304 Part-I or Part-II of IPC. The appellant is in jail since 11.05.2016 i.e. more than 8 years, therefore, he may be sentenced to the period already undergone by him. 8. Learned State counsel would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for the offence punishable under Section 302 of IPC and considering the injuries suffered by the deceased, the conviction of the appellant cannot be converted, therefore, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 1 (2016) 3 SCC 317 6 10. The first question, as to whether the death of deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. M. Nirala (PW-17) who has conducted and proved the postmortem report (Exs. P-10 & P-23) in which the cause of death of deceased was cardio respiratory arrest as a result of abdominal injuries and their complications, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court holding that the death of the deceased was homicidal in nature. 11. Now, the next question is as to whether the appellant has assaulted the deceased? 12. The instant case is based on the direct evidence of Iyasagar (PW-1), Nitesh Kumar Verma (PW-2), Tilak Ram (PW-3) and Anil Verma (PW-5), who have clearly stated before the Court that the appellant assaulted Shatrughan (deceased) by an iron arrow by which he suffered grievous injury and ultimately died during treatment on 24.05.2016. Furthermore, pursuant to the memorandum statement (Ex.P-6) of the appellant, the seizure of the iron arrow has been made vide Ex.P-7. As such, the finding recorded by the trial Court that the appellant has caused the injuries 7 upon the deceased, due to which he died during treatment on 24.05.2016 is a correct finding based on the evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question. 13. The aforesaid finding brings us to the next question for consideration, whether the offence of the appellant be converted to Section 304 Part-I or Part II of IPC, in view of the decision of the Hon’ble Supreme Court in the matter of Nankaunoo (supra)? 14. The Supreme Court in the matter of Nankaunoo (supra), in paragraph 12 to 14, has held 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 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 8 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 under Section 302 IPC should be under Section 304 Part-1 of IPC. 14. In the result, the conviction of the appellant under Section 302 of 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.” 9 15. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matter of Nankaunoo (supra), it is quite vivid that the appellant caused an abdominal injury to Shatrughan (deceased) on 10.05.2016 and as per report Ex.P-14 (intimation regarding death) Shatrughan was admitted in the hospital on 10.05.2016 at 3:43 pm, and he ultimately died on 24.05.2016 at 08:00 am during course of treatment, and as per Dr. M. Nirala (PW-17) who has proved the postmortem report (Exs.P-10 & P-23) has only said that the deceased died on account of cardio- respiratory failure as a result of abdominal injuries and complications but did not say that the injury suffered by the deceased on his abdomen was sufficient in the ordinary course of nature to cause death. As such, considering the situs and nature of injuries and in absence of evidence elicited from the doctor that the sustained injuries 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 the IPC should be altered under Section 304 Part-I of the IPC and the prosecution has failed to establish that the nature of injuries suffered by the deceased were sufficient to cause 10 death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC. 16. Accordingly, the conviction of the appellant for the offence punishable under Section 302 of IPC is altered/modified to under Section 304 Part-I of IPC and the appellant is sentenced to 10 years’ rigorous imprisonment; however, the fine amount imposed by the trial Court shall remain intact. Further, the conviction and sentence of the appellant for the offences punishable under Sections 294 & 506 Part-II of IPC, as awarded by the learned Sessions Court, is hereby affirmed and remain as it is. 17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu