-1- 2025:CGHC:49966 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 11.09.2025 Judgment Delivered on 07.10.2025 CRA No. 98 of 2025 Durgesh Pal S/o Hetram Pal Aged About 18 Years R/o Village Chmarguda, P.S. Bhatapara, Gramin, District Balodabazar-Bhatapara (C.G.). ... Appellant (s) versus State Of Chhattisgarh Through The Station House Officer, P.S. Bhatapara, Gramin, District Balodabazar - Bhatapara (C.G.). ... Respondent(s) ____________________________________________________________ For Appellant (s) : Mr. Shrestha Gupta, Advocate For State : Mr. K.K. Baharani, Panel Lawyer _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Judgment Heard. 1. This appeal is directed against the impugned judgment of conviction and Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.10.08 11:23:33 +0530 -2- order of sentence dated 26.11.2024 passed by learned Additional Sessions Judge, Bhatapara, District- Balodabazar-Bhatapar (CG) in S.T. No.01/2024 whereby appellant has been convicted for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo RI for 10 years and fine of Rs.1,000/- and in default of payment of fine, to further undergo RI for 3 months. 2. Case of the prosecution, in brief, is that one Dileshwar Yadav lodged a report in the concerned police station stating that on 9-11-2023, his cousin brother Chammanlal was celebrating his son's birth at home. At the same time, Durgesh Pal and Kamlesh Pal of the village started fighting and abusing each other on the concrete road in front of Radhe Ram's house. Having seen this, when Radhe Ram went with Sadharam to pacify them, Durgesh Pal (present appellant) along with co-accused Kamlesh Pal abused and pushed Sadharam on the concrete road, assaulted Sadhram with kick and fists, causing him to fall unconscious, and then fled away. Sadharam was taken to Adil Hospital, Bhatapara for treatment. Upon examination, the doctor declared him dead. Based on the report, inquest was made and thereafter First Information Report was registered and the case was taken up for investigation. During investigation, post-mortem examination was conducted. Statements of witnesses were recorded. After completion of investigation, charge sheet against the accused was presented before the Court of Judicial Magistrate First Class Bhatapara, from where the case was committed to the Court of Additional Sessions Judge, Bhatapara for trial. Charges were framed, read out and explained to accused persons who denied the same and demanded trial. -3- 3. In order to prove charge against the appellant, prosecution examined as many as 13 witnesses and exhibited 11 documents. His statement under Section 313 of the Cr.P.C. was recorded in which he denied the circumstances appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. In his defence, he examined two defence witnesses. 4. After considering the entire oral and documentary evidence led by the prosecution, learned trial Court has convicted and sentenced the appellant as mentioned in para-1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. All the witnesses examined by the prosecution are interested witnesses. No specific allegation is made by the eyewitness. In the postmortem report, doctor did not find any external injury over body of deceased. He opined that cause of death is due to cardio-respiratory failure and it is accidental in nature and it can be confirmed after the police investigation. From the case as projected by the prosecution, offence does not travel beyond the scope of Section 325 of IPC. There is no previous enmity. Incident occurred in a spur of moment without any premeditated mind. In support of his contention he places reliance upon the decision of Hon’ble Supreme Court in case of Parusuraman alias Velladurai and others Vs. State of Tamilnadu [1992 Supp (1) SCC 429 : AIR 1993 SC 14) ] and judgments passed by this Court in case of Deepnarayana Gond Vs. State of Chhattisgarh (2025 SCC -4- OnLine Chh 4567), Natai Vs State of Chhattisgarh (CRA 813 of 2003 decided on 08.01.2024) and Phaniram & Ors Vs. State of Chhattisgarh (CRA No. 1122 of 2003 decided on 09.07.2024). 6. On the other hand, learned counsel for the State opposed the submission of learned counsel for the appellant and submitted that the prosecution has proved its case beyond reasonable doubt. Minor discrepancies in the evidence of prosecution witness does not affect the credibility of the prosecution's case. There is no reason for the prosecution to falsely implicate the appellant . After considering the entire evidence available on record, learned trial Court has rightly come to conclusion that the appellant is guilty for the alleged offence and has convicted and sentenced the appellant which needs no interference. 7. I have heard rival submission of learned counsel for respective parties and perused the record of trial Court. 8. Report of the incident was lodged by Dileshwar Yadav who was examined as PW1. He is also an eyewitness to incident. In his deposition he stated that on 09.11.2023, there was a Chhatti (birth) function at his uncle Avadharam's house. Accused Kamlesh Pal and Durgesh Pal were arguing with other boys. When his uncle Sadharam and Rahul went to stop them, accused started abusing them, started shoving them, causing his uncle Sadharam to fall on the ground, who suffered head injury. He was then taken to Adil Hospital where doctor examined him and declared him dead. On deposing this statement when prosecution declared this witness hostile and cross-examined him, this witness admitted that accused had thrown his -5- uncle Sadhram on the side of CC road and beaten him with hands and fists. 9. Other eyewitness of incident namely Rahul Yadav (PW3), Budhelal Yadav (PW4), Ghanshyam (PW5), Loknath Yadav (PW6) in their testimony have also stated about the incident as to how Sadhram sustained injury and died. 10. Ishwar Toppo (PW-13) Investigating Officer of the case has proved lodging of report of the incident by Dileshwar Yadav (PW1). 11. Dr. Moumita Ghosh (PW-10) conducted post-mortem of the dead body of deceased. She in her testimony deposed that upon external examination of the dead body she found both eyes closed, arms and legs straight, stiffness throughout the body, tongue was under the teeth, and there were no visible injuries to the mouth. No immediate external injuries were found on the deceased's body. On internal examination, she did not found any visible injuries. Upon opening the chest, both lungs were pale and blood was clotted. Both chambers of the heart contained hemorrhages and blood clots. Upon making the incision, the peritoneal cavity which should contain fluid contained fluid along with clotted blood. The stomach contained undigested food and gastric juice. The small intestine and large intestine contained gas and fecal matter. The liver, spleen, and kidney were congested. The spleen was larger than normal, and the left kidney was ruptured, with a ruptured peritoneum and around it blood and fluid were present on the body. The bones were normal. According to her opinion, deceased died due to cardiac arrest caused by kidney rupture and lung injury caused by the injuries sustained. The nature of death appeared to her of accidental. -6- 12.Appellant has been convicted under Section 304 part -II of IPC. Section 304 Part II of IPC deals with punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death, but without the intention to cause death or such bodily injury as is likely to cause death. The punishment for this offense is imprisonment for up to ten years, or a fine, or both. 13. The participation of the appellant in crime in question has been proved by the witnesses. Although, the appellant was not having any weapon in his hands, but he assaulted the deceased by hand, fists and kicks. From close scrutiny of the evidence led by the prosecution witnesses it is not reflecting that there is any premeditation and knowledge present that it is likely to cause death or the appellant caused such bodily injury which is likely to cause death which may amount to culpable homicide not amounting to murder. The origin of the quarrel has not been stated by any of the witnesses. As deposed by Dr. Moumita Ghosh (PW-10) deceased had not received any external injuries. In the postmortem report prepared by her she opined that death occurred due to rupture of kidney and injuries on lung and the nature of death is accidental and final conclusion depends on final police investigation. 14.Hon'ble Supreme Court in the matter of Parusuraman (supra), has held as under:- “2. We have heard learned counsel for the parties. We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death -7- of Jawahar has been proved beyond doubt. We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, IPC. Thirteen external injuries were found on the dead body of Jawahar. Out of those 11 were on lower legs and arms. ………... 3. Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, IPC. We, therefore, set aside the conviction and sentence of the appellants under Section 304 Part I IPC read with Section 34, IPC and instead convict them under Section 325, IPC read with Section 34, IPC. We impose the sentence of imprisonment already undergone by the appellants.”…….. 15.Hon'ble Supreme Court in the matter of Khuman Singh and others Vs. State of MP (2005) 9 SCC 714, has held in para 10:- “10…….. It is, no doubt, true that they assaulted the deceased in such a manner that the deceased suffered several fractures, but the injury which caused the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental.”…………….. 16.In the case at hand, from the evidence available on record it is not reflecting that the appellant has done such act with the knowledge that it would likely -8- to cause death of deceased, there was no such intention of the appellant which could attract the ingredients of Section 304 Part-II of IPC and the act committed by the appellant would fall under Section 325 of I.P.C. causing grievous hurt and would not be culpable homicide not amounting to murder. Therefore, conviction of the appellant under section 304 Part-II of IPC is not sustainable and it is accordingly set aside and now the appellant is convicted for the offence under Section 325 of IPC. 17.Since the appellant has already completed almost 1 year and 10 months of jail sentence he is sentenced to the period already undergone by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. 18.The appeal is accordingly allowed. Appellant is directed to be released forthwith if not required in connection with any other case and his bail bond shall be discharged. 19. Let a copy of this judgment be sent to the concerned trial Court as well as to Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/--/-/---/-/- (Parth Prateem Sahu) 2. Judge Praveen