The court ruled that the lack of intent to kill by the accused requires a conviction adjustment from murder to grievous hurt under Section 325 of the IPC.

JUDGMENT :

Sanjay K. Agrawal, J.

1. The appellants herein have preferred this appeal under Section 374(2) of the CrPC questioning the impugned judgment of conviction and order of sentence dated 14-12-2018 passed by the Sessions Judge, Mungeli in Sessions Trial No.61/2017, by which they have been convicted under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo additional simple imprisonment for one year.

2. The two appellants herein, father, aged about 70 years on the date of offence, and son, have stood trial before the Sessions Judge, Mungeli for committing the murder of Chandrika Bai – neighbour, on 28-6- 2017 at about 3.30 p.m. at Village Dandgaon, Police Station Pathariya, District Mungeli and they were stand convicted for offence under Section 302 read with Section 34 of the IPC on the allegation that they had assaulted deceased Chandrika Bai by hands & fists by which she suffered injuries on 28-6-2017 and died after ten days on 7-7-2017. The incident is said to be reported by Priya Das Gendle (PW-2) and the incident was witnessed by Ranu Gendle (PW-3) – grand-daughter of the deceased. After completing all formalities, Chandrika Bai was subjected to MLC by Dr. Jayant Toppo (PW-10) vide Ex.P-14 in which her right shoulder was found swelling and the doctor has described that it may cause on account bite by honey bee. Further, Chandrika Bai was subjected to postmortem by Dr. Rohit Kumar (PW-9) and in the postmortem report Ex.P-13, he has reported that the deceased was suffering from cardiomegaly with left side intraventricular clot. According to him, cause of death was syncope due to cardiomegaly and intraventricular clot leads to shock and death.

3. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellants were charge-sheeted for offences under Sections 294, 506 & 302 read with Section 34 of the IPC and the case was committed to the Court of Session, Mungeli where the trial was conducted.

4. The prosecution, in order to prove the offence against the appellants, examined as many as 12 witnesses and brought on record 25 documents Exs.P-1 to P-25. The defence has not examined any witness, however, brought on record one document Ex.D-1 i.e. the statement of Chandra Prakash Tandan recorded under Section 161 of the CrPC, to support its case. The trial Court has also recorded the statements of Gourishankar Dhruw (CW-1) and C.L. Ahirwar (CW-2).

5. The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellants for offence under Section 302 read with Section 34 of the IPC, against which they have preferred this appeal.

6. Mrs. Laxmin Tondey, learned counsel appearing on behalf of the appellants herein, would submit that according to the statement of eyewitness Ranu Gendle (PW-3) – grand-daughter of the deceased, the appellants are only said to have caused injury by hands & fists, the date of incident was 28-6-2017 and the deceased died on 7-7- 2017 after a period of ten days and more particularly, as per the evidence of Dr. Rohit Kumar (PW-9), no external injury was found on the person of the deceased and as per his postmortem report Ex.P-13, there was blood clot present in left side intraventricular (heart chamber) and cause of death was syncope due to cardiomegaly and intraventricular clot which led to shock and death. As such, the deceased was suffering from major heart disease and it was a sign of heart disease