Criminal Appeal No. 208 of 2019 · Nafr High Court
Case Details
1 2025:CGHC:3633-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 208 OF 2019 (Arising out of judgment dated 09.01.2019 passed in Sessions Trial No. 62/2017 by Sessions Judge, Saraipali) • Narendra Kumar Bhoi S/o Shri Abhilal Bhoi aged about 44 years, R/o Village Kutela, P.S. Saraipali, District – Mahasamund, Chhattisgarh. Versus ---- Appellant (In Jail) • State of Chhattisgarh, Through: the PS – Saraipali, District – Mahasamund, Chhattisgarh. ---- Respondent For Appellant :- Mr. Ashok Verma, Advocate/Panel Lawyer appointed by C.G. High Court
Legal Reasoning
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.
Arguments
Legal Services Committee and Mr. Gajendra Sahu, Advocate. For Respondent :- Mr. Amit Buxy, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (21.01.2025) 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 09.01.2019 passed in Sessions Trial No. 62/2017 by the learned Additional Sessions Judge, Digitally signed by HEERA LAL SAHU Date: 2025.01.22 17:02:51 +0530 2 Saraipali, District - Mahasamund (C.G.), by which, the appellant herein has been convicted for the offence punishable under Section 302/34 of IPC and sentenced to undergo life imprisonment with fine of Rs.2000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for six months. 2. The case of the prosecution, in brief, is that on 03.06.2017 at about 10:00 p.m., in village Kutela, Police Station: Saraipali, District - Mahasamund, the appellant and one another co-accused Sunil Bhoi in furtherance of their common intention, assaulted Gautam Bhoi by means of wooden stick (lathi), by which, he suffered grievous injuries, and died, thereby committed the aforesaid offence. 3. Further, the case of the prosecution, in a nutshell, is that on 04.06.2017 at about 09:15 am, Jeevardhan Bhoi (PW-1) informed the police that on 03.06.2017 at 10:00 pm, he, his wife Guruvari (PW-2), granddaughter Jharna (PW-11) and son Gautam Bhoi were at home, at that time, neighbour Narendra Bhoi (appellant) and his son Sunil Bhoi came there and told Gautam Bhoi that “you always drink alcohol and mumbling today I will kill you”, they started assaulting him with the stick they were carrying and when he (PW-1) tried to intervene, they threatened him for life and Narendra Bhoi (appellant) and Sunil Bhoi killed his son by assaulting him with sticks. On the said 3 information of Jeevardhan Bhoi (PW-1), Merg Intimation was lodged vide Ex.P-2 and FIR was registered vide Ex.P-1. Spot map was prepared vide Ex.P-6. Inquest proceeding was conducted vide Ex.P-4 and the dead body of the deceased was sent for postmortem examination. As per the postmortem report (Ex.P-9) and query report (Ex.P-11), proved by Dr. B.B. Kosariya (PW-6), the cause of death was hemorrhagic shock due to rupture of heart, rupture of left lob of liver and rupture of left lungs and the death of the deceased was homicidal in nature. Memorandum statement of the appellant/accused was recorded vide Ex.P-13, pursuant to which a bamboo stick was seized vide Ex.P-14. 4. After completion of 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 has examined as many as 13 witnesses and exhibited 18 documents. Statement of the appellant under Section 313 of Cr.P.C. was recorded wherein he denied guilt, however, 05 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 4 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 302/34 of IPC, he is entitled for acquittal. In the alternative, he submits that the injuries caused by the appellant to the deceased were not sufficient to cause the death of the deceased in the ordinary course of nature as Dr. B.B. Kosariya (PW-6) who examined the deceased 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 Pradesh1. 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 04.06.2017 i.e. more than 7 years, therefore, he may be sentenced to the period already undergone by him. 1 (2016) 3 SCC 317 8. Learned State counsel would submit that prosecution has 5 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 302/34 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. 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. B.B. Kosariya (PW-6) who has conducted and proved the postmortem report (Ex.P-9) in which the cause of death was hemorrhagic shock due to rupture of heart, rupture of left lob of liver and rupture of left lungs, 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. In the instant case, considering the testimony of two 6 eyewitnesses namely Jeevardhan Bhoi (PW-1) and Jharna Bhoi (PW-11), the trial Court has recorded a finding that the appellant along with another co-accused in furtherance of their common intention, the deceased by means of stick, by which he suffered grievous injuries and died. Furthermore, pursuant to the memorandum statement (Ex.P-13) of the appellant, the seizure of the bamboo stick has been made vide Ex.P-14. As such, the finding recorded by the trial Court that the appellant has caused injuries upon the deceased, due to which he died 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 7 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 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 8
Decision
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.” 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), taking into consideration the statement of Dr. B.B. Kosariya (PW-6) who has conducted postmortem of the deceased it is quite vivid that on account of injuries caused by the appellant ribs No. 5, 6 and 7 were found fractured and this witness has clearly deposed in para 10 that heart, liver and lungs were also damaged/ruptured due to the fracture of ribs, but he did not say that the injuries suffered by the deceased were 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, 9 we are of the considered view that it is a fit case where the conviction of the appellant under Section 302/34 of the IPC should be altered to offence under Section 304 Part-I read with Section 34 of IPC and the prosecution has failed to establish that the nature of injuries suffered by the deceased were sufficient to cause 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 302/34 of IPC is altered/modified to under Section 304 Part-I read with Section 34 of IPC and the appellant is sentenced to 10 years’ rigorous imprisonment; however, the fine amount imposed by the trial Court shall remain intact. 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/- (Sanjay K. Agrawal) Judge Sd/- (Sanjay Kumar Jaiswal) Judge H.L. Sahu