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1986 DIGILAW 324 (ORI)

BENU v. STATE OF ORISSA

1986-09-12

B.K.BEHERA, G.B.PATTANAIK

body1986
BEHERA, J. ( 1 ) THE two appellants stood charged under S. 302 of the Indian Penal Code (for short, the 'code') with having committed the murder of Choudhury Naik (hereinafter referred to as the 'deceased') by intentionally causing his death on March 25, 1980 at Dhanurjayapur in the district of Keonjhar. They also stood charged under S. 323 of the Code for having voluntarily caused hurt to Bhaskar Naik (P. W. 8 ). The acquitted co-accused Kandra Naik stood charged under S. 323 of the Code for having caused hurt to Bhijha Naik. ( 2 ) TO bring home the charges, the prosecution examined sixteen witnesses of whom P. Ws. 1, 2, 7, 8 and 10 figure as witnesses to the occurrence. P. Ws. 12 and 13 who where also examined as eye-witnesses, turned hostile and were put leading questions by the prosecution under S. 154 of the Evidence Act and gave a go - by to the incriminating statements said to have been made by them in the course of investigation against the appellants and the co-accused. ( 3 ) ON a consideration of the evidence, the learned trial Judge has found that the death of the deceased was homicidal in nature and that P. W. 8 had sustained injuries as a result of the assault on his person. He has held the two appellants responsible for causing the death of the deceased, but the conclusion of the trial court is that the appellants could be convicted under S. 304 read with S. 34 of the Code for causing the death of the deceased and that one of the appellants, namely, Benu, would also be liable to be convicted under S. 323 of the Code for valuntarily causing hurt to P. W. 8. The co-accused Kandara Naik has been acquitted of the charge framed against him. For their conviction under S. 304 read with S. 34 of the Code, each of the two appellants has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a period of six months. For his conviction under S. 323 of the Code, the appellant Benu has been sentenced to undergo rigorous imprisonment for a period of six months. ( 4 ) APPEARING on behalf of the appellants, Mr. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a period of six months. For his conviction under S. 323 of the Code, the appellant Benu has been sentenced to undergo rigorous imprisonment for a period of six months. ( 4 ) APPEARING on behalf of the appellants, Mr. Mohanty has submitted that the evidence on which the prosecution sought reliance was highly unsatisfactory and could not be acted upon. He has contended that the appellants had the right of private defence of their persons and property. He has submitted, in the alternative, that in case this Court agrees with the conclusions recorded by the trial court with regard to the complicity of the appellants, the sentences passed against the appellants are too severe and should not have been imposed. The learned Additional Standing Counsel has supported the order of conviction in respect of both the charges. He has, however, left the question of sentences to the discretion of this Court. ( 5 ) IT is not disputed at the Bar that the deceased had died a homicidal death. There is no paucity of evidence that P. W. 8 had sustained injuries on his person during the occurrence. The ocular testimony of the prosecution witnesses in this regard is amply borne out by the medical evidence. As regards the assault on the person of the deceased by the two appellants, there is the clear and acceptable evidence of P. Ws. 1, 2 and 10 supported by the medical evidence. On a perusal of their evidence, we find no infirmity discrediting their testimony. P. W. 8 had himself spoken about the assault on his person by the appellant Benu. This evidence of his finds ample support from that of P. Ws. 1, 2, 7 and 10. Agreeing with the trial court, we hold that the two appellants had assaulted the deceased to death and that the appellant Benu had voluntarily caused hurt to P. W. 8. ( 6 ) THERE is no material to substantiate a case of private defence of either person or property. Our attention has been invited by the learned counsel for the appellants to some statements made by P. Ws. 12 and 13 in this regard, but as earlier indicated, they have departed from their earlier statements said to have been made in the course of investigation. Our attention has been invited by the learned counsel for the appellants to some statements made by P. Ws. 12 and 13 in this regard, but as earlier indicated, they have departed from their earlier statements said to have been made in the course of investigation. Their evidence does not deserve credence and no case of right of private defence can be built upon some statements made by them. ( 7 ) WE notice that while recording the order of conviction under S. 304 of the Code, it has not been stated expressly by the learned trial Judge as to whether the conviction was one under the first part or under the second part of S. 304 of the Code. A Court of Session should invariably record this so that the higher court can know under which part the order of conviction has been recorded. However, as each of the two appellants has been sentenced to undergo imprisonment for life and the finding of the trial court is that both the appellants had intentionally caused the death of the deceased, the order of conviction has evidently been recorded, although not expressed in clear terms, under the first part of S. 304 of the Code. ( 8 ) UNDER S. 304 Part First of the Code a convicted person can be given life sentence or if that sentence is not imposed, he may be sentenced to undergo imprisonment of either description for a term which may extend to ten years. A sentence imposed on a convict should be commensurate with the nature of the acts committed by him keeping in view the circumstances obtaining in a case. ( 9 ) IN the instant case, the occurrence had taken place in a flash owing to dispute over a piece of tree. It would not appear from the materials on record that after a pre-plan or premeditation, the two appellants had killed the deceased. It has been submitted at the Bar that the appellants have been in custody, in the course of investigation and trial and on conviction for over six years. In our view, the period of imprisonment already undergone by them would meet the ends of justice for their conviction under S. 304 Part I of the Code and no separate sentence of fine need be passed against them. In our view, the period of imprisonment already undergone by them would meet the ends of justice for their conviction under S. 304 Part I of the Code and no separate sentence of fine need be passed against them. For his conviction under S. 323 of the Code, it is not necessary to pass a separate sentence against the appellant Benu alias Basu Maharana. ( 10 ) IN the result, the order of conviction passed against the appellants, under S. 304 Part I read with S. 34 of the I. P. C. is maintained, but the sentence passed against each of them to undergo imprisonment for life is set aside and in lieu thereof, they are sentenced to imprisonment for the periods already undergone by them. The sentences of fine passed against them are set aside. The order of conviction recorded against the appellant Benu alias Basu Maharana under S. 323 of the I. P. C. is maintained, but no separate sentence is passed against him thereunder, Both the appellants be set at liberty forthwith. The appeal is dismissed subject to the reduction and modification in the sentences as indicated above. ( 11 ) G. B. PATNAIK, J. :- I agree. Order accordingly. .