The court determined that a death resulting from infection related to an assault leads to liability under S.326 IPC rather than S.304 IPC.

1. Feeling aggrieved by the judgment of conviction and order of sentence dated 17.06.1996 passed by the learned II Additional Sessions Judge, Damoh in Sessions Trial No.1/1994 convicting the appellant under S.304(Part - 1) IPC and thereby sentencing him to suffer 10 years RI and fine of Rs.2,000/-, in default further RI of 6 months, the appellant has taken shelter of this Court by preferring this appeal under S.374(2) of the Code of Criminal Procedure , 1973.

2. In brief the case of prosecution is that on 26.10.1993 at 3.45 hours the accused persons were in their home. They asked Ganpat (hereinafter shall be referred to as “deceased”) to accompany them. On the way, some hot talk took place between them, as a result of which, appellant took out the knife and dealt its blows on the waist of the deceased. The incident was witnessed by Dhallu (PW1). On hearing the hue and cry, some persons arrived at spot and on seeing them, the accused persons fled from the place of occurrence.

3. The FIR (Ext. P / 17) was lodged by deceased himself. Initially the case was registered under S.307/34 of IPC, however, after the death of deceased on 02.11.1993 in the hospital, case was converted into S.302/34 of IPC.

4. On lodging of the FIR, the criminal law was triggered and set in motion. The investigating agency arrested the accused persons; prepared the spot map; sent the injured to hospital for treatment and after his death his dead body was sent for postmortem.

5. After investigation was over a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for the trial.

6. The learned Trial Judge on the basis of the material available in the charge sheet, framed charges punishable under S.302/34 of IPC against the accused persons, which they denied and requested for the trial.

7. In order to bring home the charges, the prosecution examined its witnesses and also proved certain documents. The defence of the accused persons is of false implication and the same defence they set forth in their statement recorded under S.313 Cr.P.C. However, in support of their defence they did not choose to examine any witness.

8. The learned Trial Court after appreciating and marshalling the evidence came to hold that charge under S.302/34 IPC has not been proved against accused Raju and eventually acquitted him. However, learned Trial Court on the basis of evidence placed on record came to hold that charge under S.304 (Part - 1) of IPC has been proved against the appellant and hence convicted the appellant and passed the sentence, which I have mentioned in para 1 of this judgment.

9. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence.

10. It is has been put - forth by learned counsel for appellant that looking to the evidence of eyewitness it cannot be said that appellant caused injury by knife and if that is the position learned Trial Court erred in convicting the appellant under S.304 (Part - 1) of IPC. An alternative submission has also been put - forth by him that if this Court come to the conclusion that by giving knife blow by the appellant, deceased had died, since the incident had occurred on 26.10.1993 and deceased died on 02.11.1993 while undergoing treatment on account of septicaemia the case would not rest beyond S.326 of IPC. Learned counsel submits that present appellant has already undergone the jail sentence of three years and six months and hence prayed that he be released for the period he had already undergone by him.

11. On the other hand, lea