KUMAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The three appellants stand convicted under section 302 read with section 34 of the Indian Penal Code (for short, the CodeT) for having committed the murder of Pabitra Patel owing to previous land dispute between the parties by intentionally causing his death by, the use of dangerous instruments, such as, Kudalis and lathi, on November 10, 1978, at Kuturma - Tahabeldhipa in the district of Sundargarh, in furtherance of their common intention and have been sentenced to undergo rigorous imprisonment for a period of twelve years.

(2.) As the sentence imposed on each of the appellants is illegal and on his conviction for the offence of murder, an accused is either to be sentenced to death or to undergo imprisonment for life and no lesser punishment can be imposed, this Court, at the stage of hearing the appeal, has issued notices to the appellants to show cause as to why the sentences passed against them should not be enhanced. The learned counsel for both the sides are agreed that in the revisional jurisdiction of this Court, this Court can enhance the sentences although it was open to the State to prefer an appeal under section 377 of the Code of Criminal Procedure. Surprisingly, the State has chosen not to prefer one A5 to the revisional jurisdiction of this Court in this regard, reference may be made to the cases- reported in Nadir Khan v. The State (Delhi Administration)1 Eknath Shankarrao Mukkawar v. State of Maharashtra2 and State v. Babaji Sahoo and another3. We are, indeed, surprised as to how the learned Sessions Judge has imposed a sentence lesser than imprisonment for life after convicting the three appellants in a case of murder in flagrant violation of the provisions made under section 302 of the Code. Such illegal and careless act on the part of a Sessions Judge betrays his ignorance of the sentencing schemes.

(3.) We have heard the learned counsel for both the sides both on the merits of the appeal and on the question of enhancement of the sentences passed against the appellants.