Deepnarayana Gond Vs The State Of Chhattisgarh

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Page No.1 of 9 IN CRA-555-2016

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AFR

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.04.21 10:16:48 +0530

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2025:CGHC:17180-DB

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 555 of 2016

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[Arising out of judgment dated 23.02.2016, passed in Sessions Case No.106 of 2014 (State of Chhattisgarh v. Deepnarayan Gond) by the 1^st Additional Sessions Judge, Manendragarh, District Koriya (CG)]

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Deepnarayana Gond, S/o Baban Singh Gond, aged about 50 years, R/o Tarabahara, Thana Kelhari, District Koriya, (Chhattisgarh)

... Appellant

(On Bail)

Versus

The State of Chhattisgarh, through Police Station Kelhari, District Koriya, (Chhattisgarh)

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... Respondent [Cause-title taken from Case Information System (CIS)] -------------------------------------------------------------------------------------------- For Appellant : Mr. Parag Kotecha and Mr. Alok Tiwari, Advs. For Respondent: Mr. Arvind Dubey and Mr. Rahul Tamaskar, Government Advocates

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari

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Judgment on Board (15.04.2025)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed by the appellant-accused herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 23.02.2016, passed in Sessions Case No.106 of 2014 (State of Chhattisgarh v. Deepnarayan Gond) by the 1^st Additional Sessions Judge,

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Page No.2 of 9 IN CRA-555-2016

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Manendragarh, District Koriya (CG), whereby he has been convicted for offence under Section 304 (Part-I) of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine amount, sentenced to undergo additional simple imprisonment for 06 months.

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(2) The case of the prosecution, in short, is that on 26.06.2014, at about 03:30 PM, at Village Tarabahara, which comes within the ambit of Police Station Kelhari, behind the house of Rakesh Cherva, the accused-appellant herein assaulted Ram Kishnu (hereinafter referred to as the “deceased”) by means of wooden club, due to which he suffered grievance injury and died later on during the course of his treatment in the hospital on 04.07.2014 and, thereby, said to have committed offence under Section 302 of IPC.

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(3) It is further case of the prosecution that after the incident, the deceased was admitted to the Mission Hospital, Ambikapur, wherein he succumbed to the injuries and died on 04.07.2014, upon which, information with regard to sudden and unnatural death was sent by the hospital to the police vide Ex.P/14 and, pursuant to which, marg intimation (Ex.P/15) and FIR (Ex.P/16) were registered and wheels of investigation started running, in which, nazari naksha and panchnama were prepared vide Ex.P/02 & Ex.P/03 respectively. Summons under Section 175 of CrPC were issued vide Ex.P/08 and inquest proceedings were conducted vide Ex.P/07. The dead-body of deceased was sent for postmortem examination and in

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Page No.3 of 9 IN CRA-555-2016

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the postmortem report (Ex.P/12), conducted by Dr. Vivek Bhatnagar (PW-12), it was opined that the cause of death of deceased is peritomites and shock due to duodenal ulcer perforation and its complication. Thereafter, the appellant was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/04. Pursuant to the memorandum statement of the appellant, one wooden club (stick) and one motor-cycle were seized vide Ex.P/05. However, the said seized articles were not sent for chemical examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 18 documents, whereas the appellant in support of his defence, though examined 01 witness, but not exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, hold that the appellant has caused abdominal injury to the deceased by wooden stick (club), which was witnessed by Shankar Lal (PW-01) and Sonkali

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Page No.4 of 9 IN CRA-555-2016

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(PW-04) and, due to such assault, the deceased died on account of peritonitis, therefore, proceeded to convict the appellant for offence under Section 304 (Part-I) of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Parag Kotecha, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 304 (Part-I) of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at best offence under Section 325 of IPC would be made out against the appellant herein because the appellant had no intention and knowledge that the injuries inflicted by him over the body of the would likely to cause death. Even otherwise, the date of incident is 26.06.2014 and the deceased died on 04.07.2014 i.e. after 8-9 days during the course of his treatment at Mission Hospital, Ambikapur and he was already suffering from duodenal ulcer and, as such, it is a fit case where the conviction of the appellant for offence under Section 304 (Part-I) of IPC can be converted/altered to an offence under Section 325 of IPC and, since the appellant remained in jail from 07.07.2014 to 02.02.2017 i.e. for a period of about 02 years 06 month, therefore, he be sentenced to the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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Page No.5 of 9 IN CRA-555-2016

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(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 304 (Part-I) of IPC. It is also submitted that it is not the case where conviction of the appellant for offence under Section 304 (Part-I) of IPC requires to be altered to Section 325 of IPC. Thus, the present appeal deserves to be dismissed.

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(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(9) In the case at hand, the learned trial Court has held that the appellant had intention to cause death of the deceased, therefore, Section 304 (Part-I) of IPC is attracted in the present case and, when the incident took place, Shankar Lal (PW-01) and Sonkali (PW-04) and witnessed the same. Further, cause of death of the deceased has been opined to be shock and Peritonitis [i.e. a redness and swelling (inflammation) of the lining on the belly or abdomen] due to duodenal ulcer perforation and its compilations, which is duly proved by the statement of Dr. Vivek Bhatnagar (PW-12), who conducted postmortem of the dead-body of the deceased and gave PM report (Ex.P/12) & Query Report (Ex.P/13).

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Page No.6 of 9 IN CRA-555-2016

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(10) The meaning of ‘perforation’ given in Black’s Medical Dictionary (41^st Edition) is as follows:

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“ Perforation

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The perforation of one of the hollow organs of the abdomen or major blood vessels may occur spontaneously in the case of an ulcer or an advanced tumour, or may be secondary to trauma such as a knife wound or penetrating injury from a traffic or industrial accident. Whatever the cause, perforation is a surgical emergency. The intestinal contents, which contain large numbers of bacteria, pass freely out into the abdominal cavity and cause a severe chemical or bacterial PERITONITIS . This is usually accompanied by severe abdominal pain, collapse or even death. There may also be evidence of free fluid or gas within the abdominal cavity. Surgical intervention, to the repair the leak and wash is often necessary. out contamination, Perforation or rupture of major blood vessels, whether from disease or injury, is an acute emergency for which urgent surgical repair is usually necessary. Perforation of hollow structures elsewhere than in the abdomen for example, the heart or oesophagus may be caused by congenital weaknesses, disease or injury. Treatment is usually surgical but depends on the cause."

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(11) There is no evidence on record or even it is not suggested to any prosecution witnesses that before the incident the deceased was suffering from any severe disease and no external/internal injury was found over the body of the deceased and moreover, it is also not the case of the prosecution that the appellant knew that the deceased was suffering from duodenal ulcer .

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1 (12) In the case of Ramakrishna Panichker Vs State of Kerala ,

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the victim was having a spleen of diseased condition which got

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1 AIR 1959 Kerala 372

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Page No.7 of 9 IN CRA-555-2016

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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.

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(13) A similar question arose before the Divisional Bench of 2 Allahabad High Court in the case of Sri Prakash Vs. State , wherein beating given by the accused to a child having 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.

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(14) Following the above principles of law, Gujarat High Court in the matter of State of Gujarat Vs. Babu Kava3 , 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.

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(15) In Illustration (b) of Clause (iv) of Section 300 of IPC, it has been provided that if the offender knowing that the victim is labouring under such disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury and the victim dies in consequence of the blow, the offender is guilty of

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2 1990 CrLJ 486

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3 (2003) 4 GLR 892

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Page No.8 of 9 IN CRA-555-2016

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murder although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if the offender not knowing that the victim is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health and the victim dies, the offender is not guilty of murder.

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(16) Coming back to the facts of the present case in light of the above factual and legal position, it is quite vivid that the cause of death of the deceased is shock and Peritonitis due to duodenal ulcer perforation or rupture of major blood vessels and its compilations and the prosecution has failed to establish that the appellant knew that the deceased was suffering from duodenal ulcer and knowing that he caused abdominal injury to him or that he inflicted injury with this intention and knowledge on those organs so as to cause his death. Being so, it would not be safe to hold the appellant guilty for offence under Section 304 (Part-I) of IPC and, instead thereof, he is liable to be convicted for offence under Section 325 of IPC.

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(17) In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 304 (Part-I) of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no intention or knowledge on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the

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Page No.9 of 9 IN CRA-555-2016

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appellant is convicted for offence punishable under Section 325 of IPC and, for which, since the appellant remained in jail from 07.07.2014 to 02.02.2017 i.e. for a period of about 02 years 06 month, he is sentenced to the period already undergo by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC.

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(18) This criminal appeal is partly allowed to the extent indicated herein-above.

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(19) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge

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s@if

Deepnarayana Gond v. The State Of Chhattisgarh

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Deepnarayana Gond v. The State Of Chhattisgarh

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