Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 684 (ORI)

State of Orissa v. Sarat Chandar Giri

2007-09-05

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Heard. 2. This Government Appeal is filed challenging the order of acquittal under Section 302 IPC and alternatively challenging the sentence of R.I. for one year imposed on the accused-respondent for his conviction under Section 304-I of IPC. 3. The fact, as revealed from the lower Court record, indicates that on 23.03.1986 accused-respondent allegedly committed matricide and for that he was put to trial in the Court of Sessions Judge, Baripada in Sessions Trial No.58 of 1986 for the charge under Section 302 IPC. 4. According to the case of the prosecution, after effect¬ing partition between his sons and himself, Sadhu Charan Giri (P.W.7) remained with the younger son, Sisir. Accused is the elder son. Land retained by P.W.7 in his share was also divided by him between the two sons and each of them were directed to give 6 pouties of paddy every year. On the date of occurrence, at about 3.00 P.M., P.W.7 asked the accused, who was then moving out of the house, to make payment of the paddy. Accused refused to pay and asked to call the Village Punch. On such reply of the accused his deceased mother reacted and made sarcastic comment. That led to altercation between the mother and the son, i.e., the deceased and the accused and in feat of annoyance accused came to the verandah where the deceased was sitting inside the residen¬tial premises of his younger brother. He pulled out the katari, M.O.III, which had been kept under roof (as the usual practice in the villages) and dealt one blow, which was sufficient to cause death of the deceased in ordinary course of nature. P.W.6, Taru¬lata Giri, being the brother’s wife of the accused and Sadhu Charan Giri, the father of the accused were the eye-witnesses to the occurrence. In trial they supported the prosecution. P.W.3, Udayanath Giri, the agnatic uncle of the accused and P.W.2, a neighbour of the occurrence premises supported the prosecution about the extra judicial confession made by the accused. P.W.1, the informant and P.W.9 are the cousins of the accused. They, however, did not support the prosecution on extra judicial con¬fession made by the accused. P.W.5, the doctor who conducted post-mortem examination as per report, Ext.7 and identified the M.O.III, as the weapon of offence, also opined that homicidal death of the deceased was due to single blow by a sharp cutting weapon. They, however, did not support the prosecution on extra judicial con¬fession made by the accused. P.W.5, the doctor who conducted post-mortem examination as per report, Ext.7 and identified the M.O.III, as the weapon of offence, also opined that homicidal death of the deceased was due to single blow by a sharp cutting weapon. P.W.4 was a witness to the seizure of incriminating articles including the blood stained wearing apparels of the deceased, etc., He proved the seizure lists, Exts.2 to 5. The serological report records the finding of human blood of “A” group, being present on the weapon of offence wearing apparels of the deceased and wearing apparels of the accused. P.W.10 was the Investigating Officer of the case. On analysis of such evidence trial Court recorded finding that deceased suffered homicidal death and accused is the author of that crime. After so determin¬ing, learned Sessions Judge considered the argument of both the parties and held that it is because of the provocation given by the deceased by making sarcastic comment that accused committed the offence having lost his self-control and therefore the of¬fence committed by him does not amount to murder but it amounts to culpable homicide punishable under first part of the offence under Section 304 IPC. 5. Learned Standing Counsel argues that there is no suffi¬cient material on record to indicate that accused was provoked and he committed the crime under provocation. Alternatively, he argues that even if it is recorded that statement of the mother (deceased) provoked him, then also that provocation was not sufficient so as to commit the offence of murder. After going through the evidence on record and particularly evidence of P.Ws.6 and 7, we do not find any ground to disturb the findings recorded by the trial Court, inasmuch as, there was provocation. Different persons may reach in different manner to a comment made by near and dear person like the parents, brothers and sisters, etc. There cannot be any set pattern of behaviour of losing temper on comments/adverse comment. Therefore, we uphold the findings of learned Sessions Judge on the involuntary provocation received by the accused. 6. Learned Sessions Judge imposed sentence of R.I. for one year for the conviction under Section 304 IPC. There cannot be any set pattern of behaviour of losing temper on comments/adverse comment. Therefore, we uphold the findings of learned Sessions Judge on the involuntary provocation received by the accused. 6. Learned Sessions Judge imposed sentence of R.I. for one year for the conviction under Section 304 IPC. Learned Standing Counsel argues that in view of the statutory provision in the penal code providing for punishment of 10 years, sentence of one year is insufficient and at least the sentence be enhanced. Learned counsel for the accused-respondent does not dispute to the contention of learned Standing Counsel so far as the princi¬ple of law is concerned but he states that when the occurrence took place the accused was 40 years old. At the time of imposing sentence learned Sessions Judge observed that “Ordinarily in a case of conviction under Section Ist. Part 304 IPC a sentence of one year is not passed, but in the peculiar circumstances of the case, the accused is sentenced to one year R.I.” In that respect he has taken note of circumstances that accused is a sickly person and therefore he was released on parole during the penden¬cy of the trial and it was stated to the Court on the date of judgment that he was still continuing under treatment. Learned Sessions Judge also took note of the other tragedy of the accused that he lost his son in an accident. The second circumstances, in our considered opinion, may not be of any consequence, but so far as first circumstances is concerned, we take into consideration that aspect and lapse of 21 years in between by now the accused is in the 60 + age. Under such circumstance, even if we hold that sentence of one year is inadequate for offence under Section 304 IPC but in this particular case, for the reasons assigned by the trial Court, we do not disturb the same to enhance the sentence. Accordingly, the Government Appeal is dismissed. Appeal dismissed.