AKHILA PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two appeals arising out of the same judgment and order have been heard together and will be governed by this common judgment. The three accused persons who figure as the respondents in the Govt. Appeal stood charged under S.302 read with section 34 of the IPC (for short, the 'Code') with having committed the murder of Jaya Parida (to be referred to hereinafter as the 'deceased') by intentionally assaulting him to death by means of Tangia and lathi in furtherance of their common intention on Nov. 11, 1979 when he had come to the land for harvesting crops. While according to the case of the prosecution, the deceased had raised the crops, the case of the accused persons was that they had raised the crops in question which were being harvested by the deceased for which protest had been raised by the accused persons.

(2.) The prosecution case, the plea of the defence and the evidence on which the prosecution sought reliance have been set out in details in the impugned judgment and order and need not be re-stated. The finding of the trial court is that the accused persons were in cultivating possession of the land in question and had raised crops thereon which the deceased was removing on the day of occurrence. As would appear from the impugned judgment, the deceased was the aggressor in that when the accused Akhila raised protest, the deceased was the first to deal a blow by means of a lathi on this accused. The trial court has held that the evidence did not warrant a conclusion that the accused Raja and Alli had taken part in the assault or that they had otherwise shared the common intention with the accused Akhila. These two accused persons have accordingly been acquitted. The trial court has accepted the case of the prosecution and in our view, justifiably so, that the accused Akhila had assaulted the deceased to death and had chopped off the head of the deceased and had carried it with him. The finding recorded by the trial court that the accused Akhila had killed the deceased has not been assailed before us by Mr. Patnaik appearing for the accused Akhila in view of the clear and acceptable evidence pointing to this fact.

(3.) Mr. Patnaik has urged that on the facts and in the circumstances of the case, Exception 1 to S.300 of the Code had correctly been applied and as the offence had been committed under tragic circumstances when the deceased was himself the aggressor and was the first to start the assault, the sentence passed against the convict Akhila to undergo rigorous imprisonment for a period of eight years has been excessive and the period of imprisonment already undergone by him would meet the ends of justice and the sentence of fine should be set aside.