JOGURU ALIAS JHAKRU SUNA Vs. STATE

JUDGEMENT

(1.) THE convicted prisoner assails the order or conviction recorded against him under Section 304 Part I of the Indian Penal Code (for short, the 'Code') by Mr. S.K. Behera, Sessions Judge, Koraput, sentencing him to undergo rigorous imprisonment for a period or fifteen years. It was alleged that the Appellant and his nephew (hereinafter referred to as the 'deceased') had been sleeping together every night in one room and as usual, both of the were sleeping during the night of 29/30.10.1980 and the wife of the Appellant and the mother of the deceased had been sleeping outside. During that fateful night, the Appellant hit the deceased twice on his head by means or a crow -bar (M.O. I) which resulted in his instantaneous death. In the course of investigation, the Appellant made a confessional statement admitting to have killed the deceased. He had also said so when his wife and others came to the scene on hearing a cry raised in the house. They had seen him standing inside the house with the dead body of the deceased lying there and the crow -bar kept near the wall. There could be no doubt from the evidence including the confessional statement of the appellate that he had killed the deceased by means of M.O. I.

(2.) THE Appellant had not pleaded in his statement under Section 313 of the Code of Criminal Procedure that he had hit and killed the deceased under the influence of a dream or hallucination, but such a plea was raised by the defence at the trial and it was urged that the act of the Appellant should be excepted under Section 79 of the Code. This plea was negatived by the trial court for the reasons recorded in the judgment. The learned Counsel for the Appellant had raised the same question in this Court. The Appellant and the deceased had been sleeping together every night. There was no evidence of any past history indicating that the Appellant had been influenced by any dream or hallucination. No doubt, in his confessional statement as also in his statement to the persons who came to the scene, the Appellant had taken such a plea, but the materials on record would not justify it and he had not taken this plea in his statement at the trial. We would accordingly hold that the Exception contained in Section 79 of the Code could not be applied to this case.

(3.) IN the result, the order of conviction passed against the Appellant under Section 304 Part I of the Indian Penal Code is maintained, but the sentence passed against him is set aside and in lieu thereof, the Appellant is to undergo rigorous imprisonment for a period of seven years.