The distinction between culpable homicide not amounting to murder and voluntarily causing hurt is critical, with Section 308 IPC requiring proof of intention or knowledge regarding the potential for death.

C A V Judgment

1. The present appeal is directed against the judgment of conviction and order of sentence dated 08.12.2003 passed by the learned Additional Session Judge, Sakti in Session Trial No.305/2003, whereby the appellant has been convicted under Section 308 of IPC and sentenced to undergo RI for 3 years with fine of Rs.3000/- and in default of payment of fine, additional RI for 6 months.

2. The prosecution case, in brief, is that on 21.06.2003, the complainant Bedram was sitting in the courtyard of the house of Nanka and Uttara Sahu, at that time the appellant came there and assaulted the complainant with tangiya, due to which the complainant received injuries on his chin and head and became unconscious, thereafter the matter was reported to the concerned police station and he was admitted to the Government Hospital, Champa for treatment, where he was admitted till 03.07.2003. After completion of investigation, the charge sheet was filed before the Magistrate concerned.

3. The learned Trial Court after appreciating the oral and documentary evidence available on record convicted the appellant, as mentioned in para 1 of the judgment.

4. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court erred in not relying upon the evidence of DW-1 Rajkumar, who stated that the injured received injuries due to fallen. The prosecution has failed to prove that from which side of tangiya, the assault was done. The learned Trial Court has rightly acquitted the appellant of the charges under Section 307 of IPC, but wrongly convicted him under Section 308 of IPc. There are so many omissions and contradictions in the statements of the prosecution witnesses and the learned Trial Court should have disbelieved the same. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Apex Court in the matters of Bishan Singh and another vs The State, passed in CRA No.1390/2007, decided on 19.10.2007 and Roopchand @ Lala vs State (NCT) of Delhi, passed in CRA No.2204/2010, decided on 22.09.2020.

5. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed.

6. Heard learned counsel for the parties and perused the material available on record.

7. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 307 of IPC against the appellant. The prosecution has examined 10 witnesses to prove its case against the appellant, whereas the defence examined 1 witness in its support. After appreciation of oral and documentary evidence available on record, the learned Trial Court found that the offence under Section 307 is not made out against the appellant and convicted the appellant under Section 308 of IPC.

8. Dr. Shyam Lal Banjare (PW-9), who examined the complainant on 21.06.2003, found two injuries on his parietal bone and left cheek/jaw and he referred the appellant to Government Hospital, Champa as per Ex-P/19. It is clear that the doctor did not opine about nature of injury and in cross-examination, he found this fact that the nature of injury is simple. Dr. Hari Singh Chandel (PW- 10) stated in para 2 that as per discharge ticket (Ex-P/22), he admitted Bedram in the Government Hospital, Champa and his jaw and parietal bone were fractured and he was discharged on 03.07.2003, whereas bedhead ticket is Ex-P/23. It is clear from the statement of both the doctors that the injuries are simple in nature and injuries are not dangerous to life, but it is clear from the statement of the complainant (PW-2) Bedram that on the date of incident, the accused assaulted him with tangi (spade) and doctors found only two injuries on his parietal bone and jaw. The learned