JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellants-accused persons herein is directed against the impugned judgment of conviction and order of sentence dated 29.04.2016 passed by 5th Additional Sessions Judge, Raigarh, Chhattisgarh, in Sessions Trial No. 33/2015 by which appellants have been convicted for offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 500/- each; in default of payment of fine additional rigorous imprisonment for 3 months. 2. Case of the prosecution, in short, is that on 21.01.2009 at about 5:30 pm at village Kolaibahal Statiopara, Police Station Chakradharnagar, District Raigarh, Chhattisgarh, appellants herein namely Laxmichand Chouhan (A-1), Mali Chouhan (A-2) & Naka @ Savitri (A-3) in furtherance of their common intention, assaulted Ghurauram by wooden stick and hand & fist, by which he suffered grievous injuries and died and thereby committed the aforesaid offence. It is further case of the prosecution is that A-1 & A-2 are the son and daughter, respectively, of A-3 and Ghurauram (now deceased) was the son-in-law A-3. Further case of the prosecution is that on the date of offence Ghurauram (deceased) under the influence of liquor started quarreling with his wife A-2 herein and also with A-1 & A-3, on account of which, appellants herein (A-1, A-2 & A-3) assaulted Ghurauram (deceased) by wooden stick and hand & fist by which he suffered grievous injuries and died. Merg intimation and FIR were registered vide Exs. P/12 & P/20. Inquest proceedings (Ex.P/18) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/21), proved by Dr. Jayant Shriwastava (PW-12), cause of death was shock on account of excessive hemorrhage due to internal injury. Pursuant to memorandum statements of the appellants herein (A-1, A-2 & A-3) vide Exs. P/1, P/3 & P/5, wooden sticks have been seized vide Exs. P/2, P/4 & P/6. In FSL report (Ex.P/26), alcohol has been found in the viscera of the deceased. 3. After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence. 4. P/2, P/4 & P/6. In FSL report (Ex.P/26), alcohol has been found in the viscera of the deceased. 3. After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 26 documents. Defence, has neither examined any witness nor exhibited any document. Statements of the appellants were recorded under Section 313 of CrPC in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants/accused persons for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. 6. Mr. Vineet Kumar Pandey, learned counsel for the appellants, would submit that the appellants have not committed any offence and they have falsely been implicated in the crime in question. He would further submit Dr. Jayant Shriwastava (PW-12), who conducted the postmortem, in his statement before the Court, has clearly stated that injury caused on the head of the deceased was not sufficient to cause death and death has only occurred on account of excessive bleeding. Therefore, at best, the conviction of the appellants may be altered to Part-I or Part-II of Section 304 of IPC and the appellants may be sentenced for the period already undergone, as they are in jail since 06.02.2015 and the appeal be allowed in part. 7. Per contra, Mr. Afroz Khan, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants herein for the offence punishable under Section 302 of IPC and it is not a case where the conviction of the appellants can be converted and the appeal, therefore, deserves to be dismissed. 8. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection. 9. 8. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection. 9. The first question as to whether the death of deceased Ghurauram was homicidal in nature, has been answered by the trial Court in affirmative in para 25 of its judgment relying upon statements of Dr. Jayant Shriwastava (PW-12) and other evidences which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court. 10. Now, the question for consideration would be whether the appellants have assaulted the deceased? 11. Considering the statement of Burnogiri (PW-1), eye witness, in which he has clearly stated that he had the appellants (A-1, A-2 & A-3) herein were assaulting Ghurauram (deceased) by wooden stick and hand & fist and further considering the fact that pursuant to memorandum statements of the appellants herein vide Exs. P/1, P/3 & P/5, wooden sticks have been seized vide Exs. P/2, P/4 & P/6, the trial Court, in our considered opinion, has rightly recorded finding that it is the appellants who caused injuries to deceased Ghurauram and we hereby also affirm the said finding of the trial Court. 12. It is the contention on behalf of the appellants that the injury which was noticed by Dr. Jayant Shriwastava (PW- 12) on the back portion of the head was not sufficient to cause death of the deceased. As per statement of Dr. Jayant Shriwastava (PW-12) cause of death was due to excessive bleeding occurred on account of rupture of spleen and, therefore, the case would not fall under Section 300 Thirdly of the IPC and it would fall under Section 304 Part-II of the IPC. 13. In this regard, their Lordships of the Supreme Court in the matter of State of Andhra Pradesh v. Rayavarapu Punnayya and another, (1976) 4 SCC 382 have pointed out distinguishable features between Section 300 and Section 304 Part-I & II of the IPC with reference to Section 300 Thirdly of the IPC and held in para 15 as under:- 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. 14. Similarly, in the matter of Nankaunoo v. State of Uttar Pradesh, (2016) 3 SCC 317 ingredients of Section 300 Thirdly have been laid down by their Lordships of the Supreme Court and in paragraphs 12, 13 & 14 as under:- 12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. 13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1½” x 1½” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. 13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1½” x 1½” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause the death. We find substance in the contention of the learned counsel for the appellant the injury was on the inner part of left thigh, which is the non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part I IPC. 14. In the result, the conviction of the appellant under Section 302 IPC is modified as conviction under Section 304 Part I IPC and the appellant is sentenced to undergo ten years' rigorous imprisonment and the appeal is partly allowed. 15. 14. In the result, the conviction of the appellant under Section 302 IPC is modified as conviction under Section 304 Part I IPC and the appellant is sentenced to undergo ten years' rigorous imprisonment and the appeal is partly allowed. 15. Returning to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the afore-stated judgments, it is quite vivid from the statement of Dr. Jayant Shriwastava (PW-12), who medically examined the deceased, that in external examination of the dead body of the deceased one injury was noticed by him (PW-12) on the back portion of head of the deceased and in the internal examination the spleen was found rupture and clotting of blood was also found in the stomach. He (PW-12) has also stated, in his statement before the Court, in para 6.1 to 6.4 that injury on the head was not sufficient to cause death and the internal injury could not have been caused by the wooden sticks, which were seized pursuant to memorandum statements of the appellants herein, and further stated that the spleen of the deceased was ruptured due to which there was clotting of blood in the stomach of the deceased and on that account he (deceased) died. As such, considering the situs and nature of injury and in absence of evidence elicited from the doctor that the rupture of spleen was sufficient in the ordinary course of nature to cause death, we are of the considered view that it is fit case where the conviction of the appellant under Section 302 of the IPC should be under Section 304 Part II of the IPC and the prosecution has failed to establish that the nature of injuries suffered by deceased Ghurauram were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC. 16. Accordingly, the conviction and sentence of the appellants (A-1, A-2 & A-3) herein for the offence punishable under Section 302 of IPC is set-aside/quashed and their conviction is hereby altered to Section 304 Part-II of IPC and they are sentenced to the period already undergone, as they are in jail since 06.02.2015, more than 8 years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellants be released from jail forthwith, if not required in any other matter. 17. As a consequence, this criminal appeal is partly allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellants are presently lodged and suffering their jail sentence, forthwith for necessary information and action, if any.