Partly allowed

Dadabu@Dasarath Moha v. State

Orissa HC17 Sept 2019CRA/274/1992

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the order of sentence alone. While upholding the conviction for the offence under Section 326 of the IPC, the Court commuted the seven-year rigorous imprisonment to the period already undergone by the accused and imposed a fine of Rs. 2,000.

What did the court decide?

Sentence modified; accused sentenced to undergo rigorous imprisonment for a period corresponding to time already undergone and to pay a fine of Rs. 2,000.

Dadabu@Dasarath Moha Vs State — Cheque Dishonour | Orissa HC (2019)

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HIGH COURT OF ORISSA : CUTTACK

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CRA NO.274 OF 1992

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In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure and from the judgment dated 24.07.1992 passed by Shri A.K.Parichha, Sessions Judge, Mayurbhanj-Baripada in S.T. Case No.133 of 1991.

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Dadabu @ Dasarathi Mohanta :::: Appellant Versus. State of Orissa :::: Respondent. For Appellant :::: M/s. R.N. Naik, (Advocate). M/s. L. Pradhan, B.C. Patra, R.K.Mishra, D.K. Sahu, B.S Tripathy, A. Deo, P. Panda, (Advocates). Mr. Durga Prasanna Mishra, (Amicus Curie). For Respondent :::: Sk. Zafarrula, Addl. Standing Counsel.

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P R E S E N T :

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THE HON’BLE SHRI JUSTICE D.DASH

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----------------------------------------------------------------------------------------Date of Hearing & Judgment ::: 17.09.2019 ----------------------------------------------------------------------------------------

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D. Dash, J. The appellant by filing this appeal has assailed the judgment of conviction and order of sentence dated 24.07.1992 passed by the learned Sessions Judge, Mayurbhanj-Baripada in S.T. Case No.133 of 1991.

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By the said judgment, the appellant (accused) having faced the trial for commission of offence under section 302 of the IPC, has been convicted for the offence under section 326 of the IPC and he has been sentenced to undergo rigorous imprisonment for a period of

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seven years.

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= 2 =

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2. The prosecution case, in short is that on 02.07.1991 evening, the deceased Niranjan Mohanta was sitting on the verandah situated at village Mutuani. The accused arrived there giving out that he would kill his parents. Having seen the deceased sitting on the verandah, the accused asked him to accompany him to the village. It is stated that the deceased when refused to move, the accused gave a stab blow on his forehead with a knife and fled away. Receiving the blow, deceased fell on the verandah and died. Villagers present there had rushed to take care of the deceased. One Manmohan Mohanta (P.W.1) proceeded to the Police Station on the following morning and lodged the F.I.R. Basing upon that, Satkosia P.S. Case No. 11 of 1991 being registered for offence under section 302 of the IPC; investigation commenced.

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On completion of investigation, charge-sheet was placed against accused to face the trial for commission of offence under section 302 of the IPC.

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The plea of the accused is that of complete denial and false implication.

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3. From the side of the prosecution, in the trial, eight witnesses have been examined. Out of them, P.Ws.1 & 2 are the eye witnesses; whereas P.W. 3 is the post occurrence witness. Witnesses to the seizure of the incriminating articles have come to the box as P.Ws. 4 & 5. The Doctor conducting autopsy on the deceased has been examined as P.W.7 and the Investigating Officer has been examined at

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= 3 =

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the end as P.W.8. Over and above, the oral evidence, the prosecution has proved several documents and produced incriminating articles which have been admitted in the evidence and marked as exhibits and material objects.

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The defence has tendered no such evidence.

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4. The trial court on examination of the evidence on record and their evaluation has concluded that this accused is author of that injury by the knife on the forehead of the deceased. Keeping in view the facts and circumstances as those emanate from the evidence, the trial court has however held that the accused had no such intention of causing the death of the deceased and had only wanted to inflict the said injury with that the weapon that he was then holding. Having said so, the trial court has found the accused guilty for commission of offence under section 326 of the IPC. Accordingly, he has been sentenced as aforesaid.

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5. Learned Amicus Curie at the beginning instead of attacking the finding of conviction returned by the trial court as against the accused confines his submission on the order of sentence. According to him, this petitioner who was then aged about 23 years as by now entered in his fifties. He further submits that the petitioner hail from rural background and lives on cultivation having no permanent source of earning much less to say any fixed income, hardly knowing to just put his signature. It is submission that the

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= 4 =

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proven facts reveal that the accused then was in an enraged mood and his aim was something else and being a frustrated man finding the deceased on the way, he wanted his support in raising the grievance against his father; might be for some injustice meted out at him by his father, when the denial of the deceased being the response, has caused further annoyance. It is stated that the facts and circumstances of the case clearly tend to show that the accused was then not in a position to understand and imagine the consequences of his action being very much worried and frustrated and thus, the blow has been given thinking at that moment that the deceased knowing everything about the injustice done to him has purposefully refused to come to his rescue and in this way supporting the father in perpetrating injustice at him. It is his submission that the accused had faced the trial being in custody throughout for more than one year and one month, till he has been released on bail by order of this Court in appeal and it is not stated that for all these years, he has not indulged himself in any criminal activity and thereby has not abused the liberty so granted to him. It is his submission that nothing has also been proved regarding his post incident conduct and that he had any criminal track record to his credit. It is submitted that during this period of more than twenty eight years, the accused has undergone the mental agony and even after being released on bail has been facing the society with the sigma. In view of all the above, when the accused is the sole bread earner of his family and the family members are

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= 5 =

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wholly beginning on him for their living, he contends that directing the petitioner to undergo, the remaining part of the custodial sentence would not be in the interest of justice. It is his submission that the ends of justice would be met if the petitioner is sentenced to the period undergone.

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Learned counsel for the State submits that in the proven facts and circumstances, when the finding of conviction of the accused is not challenged, the order of sentence is just and proper.

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6. Considering the submissions made; further keeping in view the overall facts and circumstances as also the factual aspects concerning the accused while maintaining the finding of conviction of this accused Dadabu @ Dasarathi for commission of offence under section 326 of the IPC; in my considered view, the order of sentence as has been imposed by the trial court if is modified to the period undergone and the accused is further sentenced to pay fine of Rs.2,000/- (Rupees two thousand only) in default to undergo rigorous imprisonment for a period of one year would met the ends of justice.

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7 . For the aforesaid, the appeal stands disposed of with the modification as to the order of sentence to the extent as indicated above.

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…………………….

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D. Dash, J.

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The 17^th day of September, 2019/Narayan.

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Orissa High Court, Cuttack

Dadabu@Dasarath Moha v. State

Case brief

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What did the court decide?

Dadabu@Dasarath Moha v. State

Case brief

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