SONU BHOTRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ACCUSED has preferred this appeal from the Jail against the order of conviction under Section 304, Part -II, I.P.C. and sentence of rigorous imprisonment for ten years imposed by Learned Addl. Sessions Judge, Nabarangpur in Sessions Case No. 15 of 2000, arising out of G.R. Case No. 364 of 1998 of the Court of Judl. Magistrate First Class, Umerkote.

(2.) PROSECUTION case is that on 15.12.1998 in village Rengabhati, Bhanumati Bhotra alias Bhanu, the deceased and Jamuna Bhotra (P.W. 2) were engaged in catching fish in a paddy land in their village. Accused arrived there at about noontime and offered a medicine to be taken by the deceased. Latter refused to consume that medicine and then accused threw a stone, which hit on her left side ribs and she fell down. The deceased in injured condition was brought to the village and thereafter she was taken to Addl. P.H.C., Raighar, where Dr. Niranjan Padhi (P.W. 11) examined the injured and found one abrasion of the size of 2' x 2' x 1/2' of the left lateral side of lower chest. He found the injury to be simple and could have been caused by blunt weapon like stone, M.O.I. He proved the injury certificate, Ext. 8/2. Because of the poverty, the injured could not stay in the Addl. P.H.C. beyond the period of three days and returned to her htfuse with her husband (P.W. 1) and she died on 03.01.1999. Initially, the case was registered on 15.12.1998 under Section 294/323, I.P.C., which was converted to a case under Section, 302, I.P.C.

(3.) NOTWITHSTANDING the fact that charge was framed for the offence under Section 302, I.P.C, Learned Addl. Sessions Judge did not determine as to whether, the death of the deceased was homicidal, on the other hand, referring to the evidence of P.Ws. 6 and 9, he simply recorded that death occurred because of the injury caused by the stone, M.O.I. In that respect, he also relied on the evidence of P.W. 2 to hold that accused caused that injury on the body of the deceased. Recording such findings, Learned Addl. Sessions Judge noted that since the deceased survived for some days after sustaining the injuries, therefore, the offences made out against the accused is culpable homicide not amounting to murder, punishable under Section 304, Part -II, I.P.C. Accordingly, he acquitted the accused from the charge under Section 302, I.P.C. and convicted him under Section 304, Part -II, I.P.C. The Trial Court awarded sentence of rigorous imprisonment for ten years.