Ghana Pradhan And Others vs State Of Orissa

1. This appeal is preferred against the judgment made in Govt. Appeal No. 39/76 on the file of the High Court of Orissa. These two appellants along with two others, namely,' Arakhita Padhan and Pareswar Padhan who were arrayed as accused Nos. 3 and 4 took their trial under the charges namely, the appellants and the third accused Under Section 302 read with 34 I.P.C. and 4th accused Under Section 302 read with 114 I.P.C. The appellants are brothers. The third accused (since acquitted) namely, Arakhita is the father of the appellants and the 4th accused Pareswara Padhan is the grand-father of the appellants. The charge levelled against these appellants and others is that on 3-4-74 at Kanbar, the appellants along with their father in furtherance of their common intention committed murder of one Gaja Bohi and the grand-father Pareswar Padhan (Accused No. 4) abated the commission of the said offence. The Trial Court acquitted accused No. 4 and convicted the appellants Under Section 304 I.P.C. and sentenced both of them to undergo rigorous imprisonment for 7 years, and also convicted accused No. 3, namely the father of the appellants Under Section 323 I.P.C. and sentenced him to undergo R.I. for a period of six months. The State on being aggrieved by the judgment of the Trial Court preferred an appeal as against all the accused. The High Court for the reasons assigned in its judgment confirmed the acquittal of the 4th accused namely Pareswara Padhan as well as the conviction of third accused Arakhita Under Section 323 I.P.C. and the sentence imposed therefor, but allowed the State appeal by converting the conviction of the appellants Under Section 302 read with 34 I.P.C. and sentenced each of them to undergo life imprisonment. Hence the present appeal by the appellants. It is seen from the records that the prosecution has examined PWs. 1, 3, 5, 7 and 11 as eye witnesses to the occurrence in question. According to the evidence, the second appellant Rana Padhan dealt lathi blows on the head of the deceased while the appellant No. 1 (Ghana Padhan) stabbed on the right side of the chest of the deceased with a knife, which injury had passed through the lung. PW 12 has opined that both the injuries namely injury on the head as well as the injury on the chest were individually sufficient to cause the death of the deceased. After hearing the learned Counsel appearing for the appellants and the respondent and considering the entire evidence, we are of the view that the second appellant namely, Rana Pradhan is liable only for an offence of culpable homicide not amounting to murder, punishable Under Section 304 Part II I.P.C. as the evidence is lacking for concluding that he shared the common intention of Ghana Pradhan in causing the death of the deceased. Further the circumstances also indicate that he would not have intended to cause the death of the deceased so as to attract Clause 3 of Section 300 but would have got the knowledge that such injury was likely to cause the death. So far as Ghana Pradhan is concerned (the first appellant), there is over-whelming direct evidence supported by the medical evidence, incriminating the first appellant with the offence of murder, thereby making him liable to be punished Under Section 302 I.P.C. simpliciter. We, accordingly, convict him Under Section 302 instead of Section 302 read with 34 I.P.C. and maintain the sentence of imprisonment for life. So far as Rana Pradhan is concerned, we set aside the conviction Under Section 302 read with 34 I.P.C. and the sentence of life imprisonment instead convict him Under Section 304 Part II I.P.C. and sentence him to undergo imprisonment for 7 years.

2. Subject to the above alteration in the conviction of Rana Pradhan, the appeal is dismissed.