Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 788 (ORI)

Jogi @ Jogendra Swain v. State of Orissa

2007-10-09

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : This appeal is preferred against the judgment and order dated 17.12.1991 passed by the First Addl.Sessions Judge, Puri in Sessions Trial Case No.15/202 of 1989-88 convicting the accused-appellant for the offence under Section 304 Part-I of I.P.C. and sentencing him thereunder to undergo R.I. for ten years. 2. Learned counsel for the appellant submitted that the appellant was not aggrieved with the order of his conviction, but the sentence imposed was exorbitant, the maximum sentence pre¬scribed under Section 304 Part-I of I.P.C. being rigorous impris¬onment for ten years. He further submitted that as appears from the evidence on records, there was assault and counter assault between the accused party and the informant party members, land dispute being germane of such clash. In course of such assault and counter assault, in a fit of anger the accused-appellant inflicted two Farsa blows on the head of the deceased, but when the latter fell down he did not take any undue advantage of the situation by further assaulting him. Learned counsel for the appellant furthermore submitted that at the time of alleged occurrence the appellant was aged 53 years. The occurrence having been taken place in the year 1988, the present age of the appel¬lant would be 72 years. The appellant has already undergone imprisonment for eight years and two months. So it would be just and proper to sentence him for the period he has already under¬gone jail. In support of his submission, he cited the decision in Shahzade v. State of Uttar Pradesh; AIR 1981 SC 2008 (2). In that case the appellant having been convicted under Section 452 of I.P.C., was sentenced to undergo R.I. for four years. By the time the appeal was heard by the Hon’ble Apex Court, he was 77 years, for which the sentence was reduced from four years to six months R.I. 3. In the present case, as stated earlier, land dispute was the germane of the clash between the informant party and the accused party member. By the time the appeal was heard by the Hon’ble Apex Court, he was 77 years, for which the sentence was reduced from four years to six months R.I. 3. In the present case, as stated earlier, land dispute was the germane of the clash between the informant party and the accused party member. In course of such clash, the accused-appellant inflicted two Farsa blows on the head of the deceased, but when he fell down, he (accused-appellant) did not take undue advantage of the situation, by assaulting him further.After the assault, the deceased was carried to Nayagarh hospital, wherefrom he was referred to S.C.B. Medical College, Cuttack and while being shifted, on the way, he succumbed to the injuries. The deceased did not die at the spot. Now the appellant is aged 72 years. As stated earlier, it was submitted at the Bar that he had already undergone imprisonment for eight years and two months. The maximum sentence prescribed under Section 304 Part-I is 10 years. Taking into consideration the facts and circumstances of the case and old age of the appellant, the sentence is reduced from ten years R.I. to the period the appellant has already undergone imprisonment. Accordingly the Appeal stands dismissed with modification of the sentence only. Appeal dismissed.