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2019 DIGILAW 10 (ORI)

Suman Biswal v. State of Orissa

2019-01-07

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT S.K. MISHRA, J. - This appeal is preferred by way of a prisoner’s petition assailing the judgment of conviction and order of sentence dated 29.3.2010 passed by learned Sessions Judge, Cuttack in S.T. Case No.242/2008 convicting the appellant under Section 302 of the Indian Penal Code 1980 (hereinafter referred to as “I.P.C.” for brevity) and sentencing him to undergo imprisonment for life and pay a fine of Rs.10,000/- (Rupees ten thousand) in default to undergo T.I. for one year. 2. The case of the prosecution in short is that the convict-appellant on 10.3.2008 at 5.00 P.M. abused Kharika Bewa, the deceased who is the grand-mother of the informant Jitendranath Biswal in obscene words and told that she should record the lands in his name. It is further alleged that when the deceased refused to accede to the demand of the convict-appellant, the convict-appellant being enraged lifted the deceased and threw her on the ground and also had hit the head of the deceased by twisting her neck on the ground. It is further alleged that after the deceased returned back from the hospital after treatment, again on the same day the convict-appellant further lifted the deceased and smashed her on the ground which resulted in her death. Information was lodged by P.W.1 regarding the occurence before the O.I.C., Baideswar Police Station in writing vide Ext.1 and Police on receipt of the said information took up investigation of the case and after completion of investigation filed charge sheet against the convict-appellant under Section 302 of the I.P.C. 3. The plea of the convict-appellant is that of complete denial of the occurrence and false implication in this case. 4. The prosecution in order to bring home its case has examined as many as seven witnesses. Out of them, P.W. 1 is the informant, P.Ws.2, 3 and 5 are the eye witnesses to the occurrence. P.W. 4 is the witnesses to the inquest held over the dead body of the deceased by the Police. P.W. 6 is the Doctor, who conducted post mortem over the dead body of the deceased and P.W. 7 is the Investigating Officer. 5. The convict-appellant, on the other hand, did not examine any witness on his behalf. Mr. P.W. 4 is the witnesses to the inquest held over the dead body of the deceased by the Police. P.W. 6 is the Doctor, who conducted post mortem over the dead body of the deceased and P.W. 7 is the Investigating Officer. 5. The convict-appellant, on the other hand, did not examine any witness on his behalf. Mr. R.K. Mallick, learned Counsel for the convict-appellant submits that offence under Section 302 of the I.P.C. is not made out, rather at best offence under Section 304 Part-II of the I.P.C. is made out as the occurrence took place in the spur of moment. 6. Learned Addl. Government Advocate, on the other hand, submits that the conviction under Section 302 of the I.P.C. is proper and should not be interfered with. 7. We have examined the impugned judgment as well as depositions of witnesses and from the aforesaid materials, it is apparent that the convict-appellant did not use any weapon of offence, rather he had used his bare hands to push the deceased on the ground, as a result of which her head struck on the ground and she sustained head injury and died. In that view of the matter the convict-appellant had no requisite intention to commit murder of the deceased, but he was aware of the fact that his action is so immensely dangerous that it may result in death of the deceased. 8. In that view of the matter, we are of the opinion that offence under Section 302 of the I.P.C. is not made out, rather offence under Section 304, Part-I of the I.P.C. is made out. Therefore, we allow the appeal in part, set aside the judgment and order of conviction dated 29.3.2010 passed by learned Sessions Judge, Cuttack in S.T. Case No.242/2008 under Section 302 of the I.P.C. and alter the conviction to Section 304, Part-I of the I.P.C. and sentence the convict-appellant to undergo R.I. for ten years. The period undergone shall be set-off against the substantive imprisonment and he be set at liberty forthwith as he has already undergone more than ten years imprisonment in the mean time unless his detention is not required in any other case. 9. Keeping in view the fact that the convict-appellant is not having any means for which a State defence counsel was appointed, we are not inclined to impose any fine. 9. Keeping in view the fact that the convict-appellant is not having any means for which a State defence counsel was appointed, we are not inclined to impose any fine. The sentence and fine imposed by learned Sessions Judge, Cuttack is hereby set aside. 10. Accordingly, the JCRLA is allowed in part. J.P.Das, J. I agree. JCRLA allowed in part.