STATE Vs. MEGHA TIRKEY

JUDGEMENT

(1.) IN course of inspection of the Court of Add!. Sessions Judge, Rourkela by an Honourable Judge of this Court the case record of Sessions Trial No. 187/55 of 1995 was perused and it was noticed that though the accused/opposite party Megha Tirkey was arrested followed with submission of charge sheet under Section 302, IPC but at the stage of consideration of charge trial Court instead of framing charge under Section 302, IPC framed charge for the offence under Section 304, IPC. The Hon'ble Inspecting Judge on perusal of the materials on record formed opinion that materials in the Case Diary was sufficient to frame charge for the offence under Section 302, IPC and therefore, the order of conviction against the accused for the offence under Section 304, IPC should be considered and if required, it be interfered with by exercising the revisional jurisdiction with a direction for trial of the case for the offence under Section 302, IPC. In that context, at the stage of argument both learned counsel for the State and learned Counsel appearing for the accused/opposite party referred to the provisions in Section 300, Cr.P.C. and a host of decisions in support of their contention for interference / non interference with the judgment of conviction. While learned Standing Counsel Mr. Aswini Kumar Mishra prayed for retrial or alternatively for enhancement of sentence on due notice to the accused, Mr. D. P. Dhal, learned counsel for the accused argued that neither of the courses suggested by the Sta,te is acceptable in this case.

(2.) A glimpse of the factual aspect will be appropriate to consider the legal issue. As ascertainable from the case diary and the statement of Hauri Tirkey (P.W. No. 3) Samara Tirkey (hereinafter referred to as 'the deceased') was her husband. Jayaram Tirkey (P.W. No. 1) is the younger brother of the accused. House of the accused situates at a distance about 50 yards from the house of the deceased and there is a tube well near the house of the deceased. It is the case of the prosecution that there was land dispute between the accused and the deceased and on 25.6.1995 misbehaviour was shown by the deceased to the wife of P.W. No. 1. On 26.6.1995, at about 5 P.M., P.W. No. 1 came to the house of the deceased and ascertained from her (P.W. 3) if the deceased was in his house. At that time, holding a lathi accused was standing at the tube well. The deceased was being not in the house P.W. No. 3 made such a statement to P.W. No. 1. Without believing her P.W. No. 1 went and intimated to the accused. The latter remained standing there with the lathi. Soon thereafter deceased in a drunken condition arrived at his house. P.W. No. 3 cautioned him not to go near the accused. But when the deceased went near the tube well accused dealt lathi blows. On sustaining the lathi blow on is head, deceased fell down with a bleeding injury and thereafter, accused dealt lathi blows to his chest. P.W. No. 3, came for his rescue and accused also dealt a lathi blow to her. Thereafter, the deceased and P.W. No. 3 were brought to Kumarmunda P.H.C. for treatment. Condition of the deceased being serious, after attending to him medically, the Doctor (P.W. No. 8) advised for shifting the deceased to Rourkela Govt. Hospital. As per the report of the Medical Officer of Government Hospital, Rourkela (P.W. No. 10) deceased succumbed to the injury at 2 P.M. on 27.6.1995. It reveals from the post mortem report (Ext. 7) that out of the four external injuries the injury No. 4, i.e., fracture of ramus of left side mandible was grievous. On dissection it was also found by the Doctor that the brain membrane was congested, there was a subdurai haematoma over the left parietal lobe, brain was congested and also other vital internal organs like lungs, liver, spleen, kidney were all congested. The Doctor (P.W.No. 8) opined that death was due to coma resulting from injury to brain and scalp bones and the injuries were ante mortem in nature.

(3.) IT is not disputed at the Bar that at the stage of consideration of charge it is required for the trial Court to peruse the material in the case diary and to take a prima facie view what offences are made out and to frame charge accordingly. If the materials on the case diary reveals of two distinct offences of the same nature then it is appropriate to frame charge for more grievous offence or to frame charge for both the offences distinctly and separately. That being the settled position of law and the prosecution case stands in the manner indicated above, therefore, there is no hesitation to record a finding that learned Additional Sessions Judge, Rourkela went wrong in framing charge for the offence under Section 304, IPC by declining to frame charge under Section 302, IPC for no reason explained in the order passed under Section 228, Cr.P.C.