Tuika Bhima and Another vs State of Orissa

Heard learned Counsel for the Appellants and the learned Addl. Government Advocate and the judgment is as follows:

Order of conviction and sentence under Sections 394 and 302, I.P.C. in Sessions Case No. 85 of 1994 of the Court of Addl. Sessions Judge, Jeypore is under challenge by the accused-Appellants.

As per the prosecution allegation, on 19.3.1994 when Anandini Jilakara (P.W. 2) was coming with a Tiffin box, the accused persons snatched away the same from her by using force and went to the nearby hilltop. P.W. 2 immediately reported that matter to P.Ws. 1, 3, 4, 5, 6 and the deceased who were playing volley ball in the nearby field. All those persons went in search of the miscreants, who committed the aforesaid robbery in the hilltop. Each of them searched in different direction so as to trace out the culprits. The deceased Sobha Mandangi saw the accused persons and the accused Tuika Bhima was holding the Tiffin carrier, M.O.I. When the deceased proceeded to the accused persons, in order to escape they threw two stones aiming at him, which hit on the head of the deceased and he fell down sustaining bleeding injury. The deceased was brought to the village, but he died in the night of that date of occurrence. They also caught hold of the accused persons and handed over to the police.

Accused took the plea of denial.

In order to substantiate the case for the offence under Sections 394 and 302, I.P.C., prosecution examined altogether 9 witnesses and relied on documents marked Exts. 1 to 15. Besides, as noted above, Tiffin carrier was marked M.O.I. and the pieces of stones as M.Os. 2 to 4. Accused did not adduce any defence evidence. On assessment of the post mortem report, Ext. 14, learned Additional Sessions Judge recorded the findings that the two lacerated wounds on the head and on the left ear resulted in fracture of right temporal bone. The nature of the injuries were ante mortem and the death was homicidal. The Doctor was not examined because the post mortem report was exhibited on admission by the defence. All the prosecution witnesses stated about the occurrence in the manner as indicated above and the trial Court on assessment of such evidence found the same to be credible and reliable and accordingly held the accused persons guilty of the offence u/s 394, I.P.C. as well as for the offence u/s 302, I.P.C. Thus, learned Additional Sessions Judge sentenced each of them to imprisonment for life for the offence u/s 302, I.P.C. and Rigorous Imprisonment for one year and to pay a fine of Rs. 500/- each for the offence u/s 394, I.P.C.

Learned Counsel for the Appellants argues that even if entire prosecution case is believed, at best a case for culpable homicide not amounting murder punishable u/s 304-Second part, I.P.C. is made out, beside the offence u/s 394, I.P.C. and since the Appellants have already spent time in jail over a decade, the conviction and sentence be modified accordingly.

Learned Additional Government Advocate without disputing much to the aforesaid argument states that in the facts and circumstances of the case the conviction u/s 302, I.P.C. is liable to be modified to one u/s 304-First Part, I.P.C.

On due consideration of the contention of both the parties and looking to the nature of the injuries and pelting of pieces of stones for causing those injuries, we find that there was absence of intention to kill, but with an intent to escape such stones were thrown at the deceased which caused her death unfortunately. We set aside the order of conviction u/s 302, I.P.C. and instead, we convict the Appellants for the offence u/s 304-First Part, I.P.C. and sentence each of them to undergo Rigorous Imprisonment for a period of ten years.

In view of that conviction and sentence for the offence u/s 304-First part I.P.C., we do not propose to impose any separate sentence for the offence u/s 394, I.P.C. and accordingly set aside the sentence so far as the offence u/s 394, I.P.C. is concerned.

The Jail Criminal Appeal is accordingly allowed in part.