BANSIDHARA NAYAK Vs. STATE OF ODISHA

JUDGEMENT

(1.) Instant Appeal is filed by the Appellant questioning the legality and judicial propriety of the impugned judgment dtd. 6/7/2012 promulgated in C.T. No.87 of 2010 by the learned Sessions Judge, Nabarangpur for having been convicted under Sec. 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.5,000.00 in default to undergo R.I. for a period of one year.

(2.) An F.I.R. was lodged on 10/5/2010 by the Informant alleging that the Appellant father assaulted the victim (mother) by means of an axe, as a result of which, she died on the spot, consequent upon which, G.R. Case No.242 of 2010 was registered under Sec. 302 I.P.C. and on completion of investigation, he was chargesheeted for having caused murder of his wife. Then, the Appellant was committed to the learned court below for trial. The prosecution led evidence during the trial. The Appellant did not lead any evidence in support of his defence, rather, pleaded innocence and false implication. The learned court below finally held the Appellant guilty under Sec. 302 I.P.C. and accordingly, sentenced and convicted him thereunder followed by a sentence of life imprisonment and fine.

(3.) Learned counsel for the Appellant contended that the court below relied upon the evidence of P.Ws.2 and 7 despite the fact that both of them could not have witnessed the alleged incident. It is further contended that as per the testimony of P.W.7, the Appellant had no previous quarrel with the deceased but appeared to have committed the alleged overt act under a sudden provocation without any intention to commit murder of the deceased and therefore, it would be a case falling under Sec. 304 Part-II I.P.C. While contending so, the learned defence counsel cited a decision of this Court in the case of Narsingha Bisoi v. State 1986(II) OLR 313. It is submitted that since the Appellant did not have any issue with the deceased wife and without any premeditation rather in a fit of anger caused the assault, the learned court below ought to have convicted him under Sec. 304 Part-II I.P.C. instead of Sec. 302 I.P.C. as in a similar case, this Court did take such a view in the decision (supra).