SUSIL LUGUN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant, Susil Lugun, along with five others stood their trial under Section 396, 326 and 323, I.P.C. for having committed the murder of one Sukra Oram while committing dacoity in his house and for also having severely injured his Wife (P.W. 12), as also his son P.W. 9 and two daughters, P.Ws. 10 and 11. The charge under Section 326, I.P.C. was confined to the injuries caused to P.W. 12 whereas the charge under Section 323, I.P.C was far assaulting P.Ws. 9, 10, and 11.

(2.) IN the trial, the learned Additional Sessions Judge came to the conclusion that the charge under Section 396, I.P.C. was not proved against any of the accused but coming to the conclusion that the Appellant cut the neck of the deceased causing his death convicted him under Section 302, I.P.C. and sentenced him to imprisonment for life. He also came to the conclusion that only the Appellant was guilty under Section 326, I.P.C. for having inflicted knife injury an P.W. 12 and convicted him thereunder and sentenced him to R.I. for two years and directed both the sentences to run concurrently. All the accused persons were acquitted of the charge under Section 323 I.P.C.

(3.) IT cannot be said that the charge under Section 302, I.P.C. is far a lesser offence than a charge under Section 399, I.P.C. The very punishment stipulated for an offence under Section 302, I.P.C. is death or in the alternative imprisonment for life whereas under Section 396, I.P.C. the punishment is either death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years as also fine. Inasmuch as there is no provision for a punishment lesser than either death or imprisonment for life under Section 302, I.P.C. it cannot be termed as a lesser offence than that under Section 396. This question has been considered by a Special Bench of the Calcutta High Court in : A.I.R. 1933 Cal 294 (Madhusingh Kaibarta and Ors. v. Emperor) where identical conclusion was reached. In that view of the matter it must be held that the conviction of the Appellant under Section 302, I.P.C. is not sustainable and hence is set aside.