IMPORTANT POINT
Causing bodily injury likely to cause death but without intention to murder is culpable homicide not amounting to murder and is punishable u/s 304 (Part I) of IPC.

JUDGMENT :

S.ABDUL NAZEER, J.

1. This appeal by special leave is preferred against the judgment dated 06.12.2006 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 1370 of 2001 arising out of Sessions Trial No. 197 of 2000 passed by the Additional Sessions Judge, Shajapur, Madhya Pradesh, dated 4th December, 2001, wherein the High Court has set aside the judgment and order of conviction of the respondents under Sections 302/149 and 325/129 IPC against all the respondents except respondent No.1. The respondent No.1 has been held guilty under Section 304 (Part I) IPC and sentenced to undergo ten years R.I. and fine of Rs.25,000/and in default to undergo three years further R.I.

2. Briefly stated the prosecution case is that Dinesh (PW1) and his brother Rajesh (deceased) were in their field situated in the forest, for the purpose of watching the crops. At that juncture, the accused persons reached over there having lathis and swords in their possession except accused No.1 Gangabishan alias Vishnu, who was having 12 bore gun and started assaulting Rajesh with their respective weapons. Accused No.1 caused gunshot injury on the left thigh of the deceased by 12 bore gun because of which he fell down on the ground. Dinesh raised cry. However, no one came to their rescue. Somehow he managed to run away from the scene of occurrence and disclosed about the incident to Sidhnath, Ramsingh, Gopal Khati and Laxminarayan Khati. They all brought the deceased Rajesh on a cot from the field and thereafter took him in a mini truck. The deceased Rajesh became unconscious. The accused persons were also causing damage to the standing crops of PW1 by grazing their cattle and the incident occurred because of the objection being raised by PW1 in the morning of the same day.

3. The police after registration of the crime and recording of the FIR (Ex. P/1) prepared the inquest. Post mortem examination of the deceased was conducted by Dr. Kapil Sahay (PW7). The post mortem report is Ex. P/10. Dr. Vijaysingh, PW8 initially examined the deceased Rajesh, the same day and also PW1. Their MLC reports are Exhibits P/11 and P/12 respectively. Dying declaration (Ex. P/4) of the deceased was also recorded by Tehsildar Shri Purshottam Sharma (PW2). After investigation, accused were charge sheeted for the commission of offences under Sections 302/149, 325/149, 147, 148 and 440 of the IPC. Accused No.1 was also charge sheeted under Section 30 of the Arms Act.

4. The trial court after undertaking a fullfledged trial found the accused guilty under Sections 302/149 of IPC and sentenced them to undergo life imprisonment and Rs.20,000/fine and on default additional three years of R.I., two years of imprisonment under Section 325/149 of IPC and fine of Rs.2000/and on default one year additional R.I, three years of R.I under Section 440 of IPC and fine of Rs.5000/and on default six months additional R.I and except accused No.1, rest of the accused were sentenced to one year of R.I under Section 147 IPC and fine of Rs.500/and on default two months of additional R.I. Accused No. 1 was further convicted under Section 148 IPC and Section 30 of the Arms Act and was sentenced to suffer two years of R.I and fine of Rs.1000/and on default four months of additional R.I. and four months of R.I and a fine of Rs.1000/and on default four months of additional R.I respectively.

5. Feeling aggrieved, the accused approached the High Court by filing an appeal. By the impugned judgment herein, the High Court set aside the judgment and order of conviction of accused Nos.2 to 9 (respondent Nos.2 to 9). However, respondent No.1 has been held guilty under Section 304 (Part I) IPC and sentenced to undergo ten years R.I and fine of Rs.20,000/and in default to undergo three years R.I in addition.

6. We have heard learned counsel for the parties. Learned counsel for the appellant submits that the High Court has failed to appreciate the findings of the trial court that the respondents