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2003 DIGILAW 128 (ORI)

MINAKETAN BHOI v. STATE OF ORISSA

2003-02-17

M.PAPANNA, R.K.PATRA

body2003
R. K. PATRA, J. ( 1 ) THIS matter was listed on 11-2-2003 for consideration of prayer for bail. Counsel for both parties agreed that they have no objection if the main appeal is heard on merit because, according to them, the scope of the appeal is limited. In view of such submission, we heard the appeal on merit on 11-2-2003 as well as today. ( 2 ) THE appellant stands convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 500. 00, in default to undergo rigorous imprisonment for one month. The appellant and his father Arjuna were placed on trial under Sections 302/323/34, IPC for committing murder of Panchu Bhoi and causing hurt to his son Gobardhan (P. W. 3) in furtherance of their common intention. The learned Additional Sessions Judge acquitted appellant's father Arjuna of both the charges and convicted the appellant as stated above. ( 3 ) THE case of the prosecution is that on 26-7-1992 at about 6. 30 a. m. Chakanayan (P. W. 1) with his brother Gobardhan (P. W. 3) and father-Panchu (hereinafter referred to as 'the deceased') had gone to their land to carry on cultivation. In course of ploughing, they found that the ridge of their land adjacent to the land of the appellant had been cut, for which, the deceased shouted at accused Arjuna (since acquitted), who was in his land at that time. There ensued a quarrel between the deceased and his sons on one hand and Arjuna on the other. In course of such quarrel, Arjuna assaulted Gobardhan (P. W. 3) with a stick. When the deceased protested, the appellant dealt a blow with the yoke on the head of the deceased, due to which he fell down and lost his sense. The appellant and his father thereafter fled away from the place of occurrence. The deceased was taken to Bhatli P. H. C. from where he was shifted to V. S. S. Medical College, Burla in serious condition. On the same date at about 9. 30 a. m. P. W. 1 lodged oral report at Bhatli P. S. which was reduced to writing by the C. I. C. and treated the same as FIR under Sections 307/323/34, IPC. After the death the case was converted to one under Section 302, IPC. On the same date at about 9. 30 a. m. P. W. 1 lodged oral report at Bhatli P. S. which was reduced to writing by the C. I. C. and treated the same as FIR under Sections 307/323/34, IPC. After the death the case was converted to one under Section 302, IPC. The plea of the appellant although was one of denial, but from the trend of cross-examination, it appears that he tried to put up a case of private defence of the body. ( 4 ) THE prosecution examined ten witnesses to prove its case. P. Ws. 1 and 3, who are the sons of the deceased were examined as eye-witnesses to the occurrence. P. W. 8 is also one such witness. There is no dispute that the deceased had a homicidal death. On consideration of the evidence, the learned Additional Sessions Judge held that it was appellant who dealt a blow with the yoke on the deceased due to which the latter sustained severe bleeding injury on his head and succumbed to the same. ( 5 ) THE aforesaid finding is based on evidence and the learned counsel for the appellant rightly did not assail the said finding. He, however, contended that the case would come under Section 304-I, IPC. Admittedly, a counter-case was started against the prosecution party in respect of the same incident. From the evidence of the Investigating Officer (P. W. 10) it appears that P. W. 6 stated before him that P. W. 1 dealt a blow with a spade on the head of Arjuna (father of the appellant) due to which Arjuna sustained bleeding injury on his head. From the trend of cross-examination of the prosecution witnesses it appears that Arjuna (father of the appellant) was assaulted and with a view to save his father, the appellant assaulted the deceased which resulted in his death. When there is imminent peril to life and limb, it is not expected to weigh the situation in a golden scale. Although the appellant had a right of private defence, it was not within his right to assault the deceased with the yoke causing his death. When there is imminent peril to life and limb, it is not expected to weigh the situation in a golden scale. Although the appellant had a right of private defence, it was not within his right to assault the deceased with the yoke causing his death. Therefore, he is guilty of offence under Section 304, Part I, I. P. C. and not under Section 302, I. P. C. ( 6 ) IN the result, while acquitting the appellant of the charge under Section 302, I. P. C. , we hold him guilty under Section 304, Part-I, I. P. C. and convict him thereunder. He is sentenced to undergo rigorous imprisonment for six years. It is needless to mention that period of imprisonment already undergone shall be taken to be substantive sentence. The appeal is allowed in part. L. C. R. be sent back forthwith. ( 7 ) M. PAPANNA, J. : -. I agree. Order accordingly.