JOGI @ JOGENDRA SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and order dated 17.12.1991 passed by the First Addl.Sessions Judge, Puri in Sessions Trial Case No.15/202 of 1989 -88 convicting the accused -appellant for the offence under Section 304 Part -I of I.P.C. and sentencing him thereunder to undergo R.I. for ten years.

(2.) LEARNED counsel for the appellant submitted that the appellant was not aggrieved with the order of his conviction, but the sentence imposed was exorbitant, the maximum sentence prescribed under Section 304 Part -I of I.P.C. being rigorous imprisonment for ten years. He further submitted that as appears from the evidence on records, there was assault and counter assault between the accused party and the informant party members, land dispute being germane of such clash. In course of such assault and counter assault, in a fit of anger the accused -appellant inflicted two Farsa blows on the head of the deceased, but when the latter fell down he did not take any undue advantage of the situation by further assaulting him. Learned counsel for the appellant furthermore submitted that at the time of alleged occurrence the appellant was aged 53 years. The occurrence having been taken place in the year 1988, the present age of the appellant would be 72 years. The appellant has already undergone imprisonment for eight years and two months. So it would be just and proper to sentence him for the period he has already undergone jail. In support of his submission, he cited the decision in Shahzade v. State of Uttar Pradesh; AIR 1981 SC 2008 (2). In that case the appellant having been convicted under Section 452 of I.P.C., was sentenced to undergo R.I. for four years. By the time the appeal was heard by the Honble Apex Court, he was 77 years, for which the sentence was reduced from four years to six months R.I.