DABAL ALIAS JABAL SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard and the Criminal Appeal is disposed of in the following manner.

(2.) Appellants were the accused persons in Sessions Trial, No. 15 of 1988 (S.C. 54 of 1988 GDC). Accused persons faced the trial for the offence under Sections 302/149, IPC in the Court of 1st Additional Sessions Judge, Berhampur on the allegation that on 22.5.1983 at about 8 P.M. all the accused persons forming unlawful assembly and being armed with weapons came and attacked Laxmi Pradhan, the deceased, Trial was proceeded with that accusation because of the plea of denial of the accused persons. In course of trial, prosecution examined 12 witnesses relied on Exts. 1 to 18/1 as documentary evidence and M.Os. I to XI as material objects to substantiate the charge. Learned Additional Sessions Judge on appreciation of the said evidence together with the defence plea found that the fact of constituting unlawful assembly and fact of assault on the deceased are proved. But there being provocation from the deceased for the aforesaid purpose and the accused persons having no intention to kill him, the offence which is made out against the appellants is under Sections 324/149, IPC. Regarding such offence, the Trial Court convicted the appellants and sentenced each of them to undergo rigorous imprisonment for two years.

(3.) It is stated at the Bar that Government has not preferred any appeal challenging to the order of acquittal for the offence under Sections 302/ 149, IPC. Learned Counsel for the appellants after placing the judgment and the evidence finds no lacuna in trie impugned order so as to interfere with the same. Therefore, as an alternative remedy, he asked for imposing the sentence of fine on the ground that there has been a considerable rapse of time in between. Learned Standing Counsel however argues that substantive sentence should be there, when the ultimate result of the assault occasioned in death of the deceased. It is also noticed that at the time when the appeal was admitted, no notice was given for enhancement of sentence.