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1987 DIGILAW 19 (ORI)

RABI MUNDA v. STATE OF ORISSA

1987-01-15

B.K.BEHERA, K.P.MOHAPATRA

body1987
BEHERA, J. ( 1 ) THE appellant assails the order of conviction recorded against him under section 302 of the Indian Penal Code and the sentence passed against him there under to undergo imprisonment for life by the Court of Session which has accepted the case of the prosecution that in the afternoon of April 20, 1981 while the appellant and Ramia Munda (to be described hereinafter as the deceased) were talking on the verandah of the house of the appellant and P. W. 3; a relation of the appellant, was resting nearby, the appellant by means of an axe (M. 0. 1) assaulted the deceased to death and then dragged the dead body of the deceased and threw it in a water nala nearby. We have heard Mr. Mohanty appearing for the appellant and the learned Standing Counsel. ( 2 ) THE doctor (P. W. 1) who had conducted the autopsy had noticed two injuries including internal injuries on the person of the deceased, but owing to a high state of decomposition, he was not in a position to opine as to whether the injuries were ante-mortem or post-mortem in nature. There was, however, the clear and cogent evidence of a disinterested witness, namely. P. W. 3, that while he was having an afternoon nap on the verandah of the house of the appellant and the appellant and the deceased were talking, a cry of agony raised by the deceased roused him from sleep and he noticed the deceased ling in a pool of blood and the appellant with a blood stained axe in his hands nearby and thereafter, the appellant dragged the dead body of the deceased and threw it in the nala nearby. Nothing has been brought out in the cross-examination of this witness to discredit his testimony and the trial court bas rightly accepted it, as besides having intrinsic worth, his evidence found assurance from the other evidence on which reliance had been placed by the prosecution. ( 3 ) P. W. 3 had immediately gone from the scene of attack and informed P. W. 4, the Pradhan of the village, about the occurrence. He had named the appellant as the assailant of the deceased. In company with P. Ws. ( 3 ) P. W. 3 had immediately gone from the scene of attack and informed P. W. 4, the Pradhan of the village, about the occurrence. He had named the appellant as the assailant of the deceased. In company with P. Ws. 2 and 5, P. W. 4 went to the spot and they had seen stains of blood on the verandah and wall of the house of the appellant and the deceased lying dead in the nala. First information report was lodged by P. W. 2. While the first informant and the persons accompanying him were at the police station, the appellant appeared at the police station and produced M. 0. 1 which was seized by the Officer-incharge (P. W. 6 ). On chemical and serological test, human blood was detected in M. O. I. The Officer-in-charge (P. W. 6) had noticed marks of dragging from the place of attack on the deceased to the nala and bad noticed a trail of blood-marks. The earth seized from the spot also contained human blood on serological test. These are telling circumstances against the appellant corroborating the evidence of P. W. 3. ( 4 ) THE aforesaid items of evidence would undoubtedly establish that the deceased had died a homicidal death and that the appellant was the author of the crime. Regard being had to the nature of the injuries noticed by the doctor which were homicidal in nature and in view of the evidence of P. Ws. 3, there can be no doubt that the appellant had the intention of causing the death of the deceased and had, with that intention, caused injuries sufficient in the ordinary course of nature to cause his death. ( 5 ) TRUE it is that the prosecution had not established any motive for the commission of the crime, but as the evidence against the appellant is clear and acceptable, absence of proof of motive is of no consequence ( 6 ) FOR the foregoing reasons, we find that the order of conviction passed against the appellant cannot be assailed. ( 7 ) THE appeal fails and is dismissed. K. P. Mohapatra, J -I agree. Appeal dismissed. WHETHER SECTION 389 (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973 TAKES IN ITS AMBIT THE POWER TO SUSPEND THE SENTENCE OF FINE? ( 7 ) THE appeal fails and is dismissed. K. P. Mohapatra, J -I agree. Appeal dismissed. WHETHER SECTION 389 (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973 TAKES IN ITS AMBIT THE POWER TO SUSPEND THE SENTENCE OF FINE? By: G. G. Pathak, Civil Judge (Junior Division) and Judicial Magistrate First Class, Nagpur (Maharashtra) 1. Section 389 (3) of the Code of Criminal Procedure, 1973 (for short the Code) empowers a Court to release the convicted person on bail if that person satisfies the court by which he is convicted that he intends to present an appeal. Such a person however if on bail during the trial should not have been sentenced to imprisonment for a term exceeding three years or the offence for which he is convicted is a bailable one and he is on bail. If such person is released on bail and he is given sufficient time to present the appeal and obtain the orders of the Appellate Court under subsection (1) of Section 389 of the Code, then the sentence of imprisonment, so long as he is released on bail, be deemed to be suspended. 2. Section 389 (3) of the Code thus does not speak about the power of the Court to suspend the sentence of fine. It is silent in that respect. Hence the question is: Whether it takes in its ambit the power to suspend the sentence of fine also? Suppose if a person is convicted say under section 324 of the Indian Penal Code and he is sentenced to suffer R. I. for one year and to pay a fine of Rs. 300/- in default of payment of fine to suffer R. I. for one month and if such person on his application is released on bail and he is given time to present the appeal by the Court by which he is convicted then the question that arises is. Can the Court suspend the sentence of fine along- with the sentence of Imprisonment? My answer is emphatic Yes. 3. In my opinion the power to suspend the sentence of fine though not expressly provided by Section 389 (3) of the Code can be exercised by adopting the principle of necessary implication. It is well settled that when an Act authorises something to be done, it also by necessary intendment confers a jurisdiction to exercise auxiliary or incidental power. 3. In my opinion the power to suspend the sentence of fine though not expressly provided by Section 389 (3) of the Code can be exercised by adopting the principle of necessary implication. It is well settled that when an Act authorises something to be done, it also by necessary intendment confers a jurisdiction to exercise auxiliary or incidental power. It is assumed that such a power exists impliedly. Section 389 (3) of the Code expressly gives power to suspend the sentence of imprisonment. But the power to suspend the sentence of fine also exists therein by necessary implication, which is auxiliary or incidental. Thus by adopting the principle of necessary implication it can be concluded that the sentence of fine also can be suspended under section 389 (3) of the Code. If the power to suspend the sentence of fine is not assumed in Section 389 (3) of the Code then the accused would be put to hardship and the object of the accused in seeking bail and sufficient time for presenting the appeal would be defeated. .