1 CRA No. 1495 of 2019 2025:CGHC:8888-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1495 of 2019 (Ari sing out of judgment dated 11.09.2019 passed in Sessions Trial No.14/2019 by the Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh. ) 1. Mitori Korram S/o Dhanaru Korram, aged about 40 years; 2. Sukhman Korram S/o Dhansingh, aged about 21 years; Both are R/o Patelpara Arandwal P.S. Mardapal District Kondagaon, C.G. ... Appellants versus  State of Chhattisgarh through Police Station Mardapal District Kondagaon, Chhattisgarh. ... Respondent For Appellants :- Mr. Pravin Kumar Tulsyan, Advocate. For State-Respondent :- Mr. Arvind Dubey, Government Advocate. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (20.02.2025) Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.24 10:38:38 +0530 2 CRA No. 1495 of 2019 dated 11.09.2019 passed by the Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh in Sessions Trial No. 14/2019 by which the two appellants herein namely Mitori Korram (A-1) and Sukhman Korram (A-2) have been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 25,000/- each; in default of payment of ₹ fine to undergo additional rigorous imprisonment for six months. 2. Case of the prosecution in, nutshell, is that on 29.08.2018 at about 7:00 am at village Arandwal Police Station Mardapal District Kondagaon, Chhattisgarh, the appellants entered into the house of Durjan Korram armed with axe and started quarreling with him by saying that you had killed their brother and during that quarrel, A-2 Sukhman Korram assaulted Durjan Korram by axe which he brought himself and A-1 took the axe which from the spot/house and assasulted Durjan Korram by which he suffered greivous injuries and died. The said incident was witnessed by Manbati (PW-11), daughter of the deceased, who informed the said incident to Manmati Korram (PW-5), Village Kotwar. The said incident was reported by Manmati Korram (PW-5) to the police pursunat to which merg 3 CRA No. 1495 of 2019 intimation and FIR were registered vide Exs.P/3 & P/2, respectively. Crime detail form was prepared vide Ex.P/7. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/18) proved by Dr. H.K. Baghel (PW-3) cause of death was coma due to head injury and homicidal in nature. Pursuant to memorandum statements of A-1 and A-2 (Exs.P/10 & P/12, respectively) weapon of offence i.e. axes were seized vide Exs.P/11 & P/13, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/29) on the half shirt of the deceased (article E) & on the axe (article C) which was seized pursuant to memorandum statement of A-1, human blood was found and on the axe (article D) which was seized pursuant to memorandum statement of A-2 blood was found. 3. After due investigation, appellants herein were charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence. 4 CRA No. 1495 of 2019 4. In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 29 documents and defence in support of its case has neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. 6. Mr. Pravin Kumar Tulsyan, learned counsel for the appellants, submits that appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He also submits on the basis of statement of Dr. H.K. Baghel (PW-3), at best, the conviction for offence under Section 304 Part-I or Part-II would be made out. He further submits that the appellants are in jail since 29.08.2018 and, as such, it is a fit case where conviction of the appellants for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-I 5 CRA No. 1495 of 2019 or Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr. Arvind Dubey, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offences beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence. He also submits that it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-I or Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/18) proved by Dr. H.K. Baghel (PW-3), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse 6 CRA No. 1495 of 2019 nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellants have assaulted the deceased? 11. The trial Court has convicted the appellants basically on the statement of Manbati (PW-11) daughter of the deceased, who was present in the house on the date and time of offence. She (PW-11) in her statement before the Court has clearly implicated the appellants in crime in question by stating that on the date of offence i.e. 29.08.2018 in the morning Sukhman Korram (A-2) came to the house of her father Durjan Korram armed with axe along with Mitori Korram and thereafter, A-2 assaulted her father by axe which he brought himself and also Mitori Korram (A-1) took the axe from the spot/house and assasulted her father by which he suffered greivous injuries and died. Also the conviction of the appellants is based on the fact that pursuant to memorandum statements of the appellants weapon of offence i.e. axes were seized and on which in FSL report blood and human blood was found. Further, as per Dr. H. K. Baghel (PW-3) who conducted the postmortem of 7 CRA No. 1495 of 2019 the dceceased that on the right side of the head occipital bone was found fractured and on the back side 7th rib of right side was found fractured and cause of death was coma due to head injury. As such, the trial Court has rightly held that it the appellants who caused the injuries to the deceased and we hereby affirm the said findings of the trial Court. 12. Now, the question for consideration is whether the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-I or Part-II of IPC as contended by learned counsel for the appellant? 13. In the matter of Arjun v. State of Chhattisgarh1, the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC. 14. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgment, it is quite vivid from that A-2 Sukhman Korram went to the 1 (2017) 3 SCC 247 8 CRA No. 1495 of 2019 house of the deceased armed with axe and A-1 Mitori Korram took the axe from the house of the deceased and both assaulted the deceased by the axe. However, as per the statement of Dr. H. K. Baghel (PW-3) who conducted the postmortem the in injuries which were found over the body of the deceased could not be caused by the sharp edged weapon i.e. axes which were seized pursuant to memorandum statements of the appellants. As such, considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that there was no premeditation on the part of the appellants, but they must have had knowledge that such injury inflicted by them on the body of the deceased would likely to cause his death, as such, this is a case in which the conviction of the appellants for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-II of the IPC. 15. In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of 9 CRA No. 1495 of 2019 the appellants to cause death of Durjan Korram (deceased) and the injuries caused by them were not sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount imposed by the learned trial Court shall remain intact. 16. This criminal appeal is partly allowed. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit