T PRASANTA KUMAR PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner stands convicted under sections 307 and 452 of the Indian Penal Code (for short, the TCode) and sentenced thereunder to undergo rigorous imprisonment for a period of seven years on each count to run concurrently. Concurrent findings of facts have been recorded by the trial and the appellate courts that in the afternoon of February 13, 1980, the petitioner, residing then in a rented house adjoining the house taken on rent by P.W. 5, then working as a Lecturer ill Marine Science, entered the rented house after coming to know of his absence from his wife (P.W. 2) and asked P.W. 2 to part with rupees two hundred which P.W. 2 did not have in the box or in the almirah which were shown to the petitioner and she had rupees one hundred with her which she was prepared to hand over where after the petitioner, by means of a long knife (M.O. I) assaulted P.W. 2 and caused injuries on her person. The evidence of P.W. 2 with regard to the entry of the petitioner into her rented house and assault on her was clear and consistent and had been supported by the evidence of P.Ws. 1, 3 and 4 who had come to the scene on hearing the cry raised by P.W. 2 when the petitioner was near P.W. 2 with M.O. I and to whom P.W. 2 had narrated the occurrence naming the petitioner as her assailant. She had been rushed to the Medical College Hospital where her husband came on receiving a telephonic call and P.W. 2 had narrated the occurrence to him naming her assailant. In addition, there was the evidence of the doctor (P.W. 6) who had examined P.W. 2 and noticed injuries on her person which could be caused by M.O. I and that of another doctor (P.W. 8) who had noticed in juries on the person of the petitioner which could be caused during the struggle when P.W. 2 wanted to extricate herself from further assault.

(2.) In view of the unassailable evidence against the petitioner, the Findings of facts recorded by the courts below have not been assailed and indeed, cannot be. Mr. S.K. Padhi, appearing for the petitioner, has strenuously challenged the legality of the order of conviction under sections 307 and 452 of the Code and has submitted that the petitioner could only be convicted under section 324 of the Code. As to the sentence, Mr. Padhi has submitted that regard being had to the young age of the petitioner, the sentence undergone for a period of more than two months would meet the ends of justice for his conviction under section 324 of the Code. Mr. A. Rath, the learned Additional Standing Counsel, has supported the order of conviction under both the charges and has left the question of sentence to the discretion of this Court.

(3.) For a conviction under section 452 of the Code, it is necessary to prove that the dominant intention of the accused was to cause hurt while committing house-trespass and the same was committed after making preparation for causing hurt to or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt, assault or wrongful restraint. The fact that an accused person trespasses into anothers dwelling house for the purpose of assaulting the complaint is not sufficient to support a conviction under this section. The fact that a person enters another person's house and commits an assault does not necessarily presuppose such preparation for it may be a case of post hoc ergo proper hoe.