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2015 DIGILAW 285 (ORI)

Matka alias Naranga Munda v. State of Orissa

2015-04-25

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : Vinod Prasad, J. 1. This appeal arises out of the impugned judgment and order dated 30.9.2013 passed by the Sessions Judge, Keonjhar in Sessions Trial Case No.110 of 2010, State vs. Matka @ Naranga Munda, under Section 302 I.P.C. by which learned trial Judge, after vetting through the evidences tendered before it, concluded that the prosecution has not been able to establish charge of murder against the appellant but has successfully anointed his guilty for offence under Section 304-A I.P.C and, therefore, has convicted him for the said crime, but very surreally and illegally, dehors the penal section, has sentenced him to imprisonment for life with a fine of Rs.5,000/-(rupees five thousand) with further direction to undergo R.I for two years, in default of payment of fine. He has further ordered that the period as an under trial prisoner be set off. 2. When the appeal came for admission, we noticed above ex facie incurable illegality and our examination of impugned judgment made it manifest that all is not well with the impugned decision. We, therefore, called for an explanation from the learned trial Judge, while, at the same time, also directing to requisition the trial court record. Learned trial Judge has furnished his explanation and we have perused it. Trial court record was also produced before us. 3. From the mistakes narrated above and scrutiny of record reveled that our apprehension had come true. There are oxymoron findings recorded, some of the findings are interdicting the ultimate conclusions recorded, sentence is not commensurate nor is legal, it is and probably could not have been a case u/s 304-A, I.P.C. 4. We are also of the view that the explanation offered by the learned trial Judge is not satisfactory. 5. Although we could have decided the appeal ourselves, but since preparation of paper book etc. will take some time and question of jurisdiction, whether the appeal is to be entertained by a single judge or by a Division Bench and to avoid further complication in the event of decision by a Bench, that we thought it proper to decide the appeal, not on merits but on illegalities as above in joint agreement between both the parties. 6. We have heard learned counsel for the appellant and learned Public Prosecutor. 7. 6. We have heard learned counsel for the appellant and learned Public Prosecutor. 7. We, without entering into the merits of the matter, since we find that there is apparent error which resulted in incurable irregularity, so to rectify the mistake, set aside the impugned judgment and remand the matter back to the learned trial Judge to re-decide the sessions trial in accordance with law by observing that:- (i) If the trial judge was of the opinion that the prosecution has “sufficiently proved that the accused had the intention of causing death of deceased”, where was the occasion for him to put the crime within the fold of Section 304-A I.P.C. (ii) If the trial Judge was of the opinion that “the convict has committed the brutal murder of his maternal uncle and taking the gravity of the offence into consideration……” where was the occasion for the learned trial judge to palliate the crime to one u/s under Section 304-A I.P.C. (iii) The offence under Section 304-A IPC is punishable only with 2 years of imprisonment. We are unable to fathom out any viable reason how and in what manner the trial judge has convicted the appellant to undergo imprisonment for life and to pay a fine of Rs.5,000/-and to undergo further R.I for two years, in default of payment of fine. (iv) How the set off can be applied to a convict sentenced for imprisonment for life. (v) If the trial Judge was of the opinion that the accused is not entitled to be extended the benefit of provisions of the Probation of Offenders Act, why he has still granted him the benefit of set off. 8. We again repeat that normally we are expected to decide the appeal on merits but since these are the above noted illegalities exist on the face of the record, we have not at all gone into the merits of the matter, which we leave for the trial judge to adjudicate. 9. The appeal is allowed as above. The impugned judgment and order is hereby set aside, since we find that there is a mistake in writing of the judgment. We direct the learned trial Judge to rehear the trial and decide in accordance with law by attempting to write a proper judgment in accordance with the provisions of the Cr. P.C. 10. The impugned judgment and order is hereby set aside, since we find that there is a mistake in writing of the judgment. We direct the learned trial Judge to rehear the trial and decide in accordance with law by attempting to write a proper judgment in accordance with the provisions of the Cr. P.C. 10. The appellant, it is informed, was on bail during the trial and since we have set aside his conviction and sentence we direct him to be released on bail till his trial is re-decided by the learned trial Judge afresh. 11. We point out that, since we have remanded the appeal to be reheard and decided, no party shall be permitted to lead further evidence. It will be better for the learned trial Judge to decide the Sessions trial within a period of one month from the date of receipt of certified copy of this order.