SUSIL LUGUN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant, Susil Lugon, along with five others stood their trial under Section 396, 326 and 323 of the Indian Penal Code for having committed the murder of one Sukra Oram While committing dacoity in his house and for also having severely injured his wife (P. W.12), as also his son P.W.9 and two daughters, P.Ws. 10 and 11. The charge under Section 326 of the Indian Penal Code was confined to the injuries caused to P.W.12 whereas the charge under Section 323 of the Indian Penal Code was for assaulting P.Ws. 9, 10 and 11.

(2.) In the Trial, the learned Additional Sessions Judge came to the conclusion that the charge under Section 396 of the Indian Penal Code was not proved against any of the accused but coming to the conclusion that the appellant cut the neck of the deceased causing his death, convicted him under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. He also came to the conclusion that only the appellant was guilty under Section 326 of the Indian Penal Code for having inflicted knife injury on P.W. 12 and convicted him thereunder and sentenced him to R.I. for two years and directed both the sentences to run concurrently. All the accused persons were acquitted of the charge under Section 323 of the Indian Penal Code.

(3.) Mr. P.K. Padhi, learned Counsel appearing for the appellant, at the outset raised a question that since the appellant was never charged under Section 302 of the Indian Penal Code, a conviction thereunder was not sustainable merely because the charge under Section 396 of the Indian Penal Code failed. The objection is well taken. It is no doubt true that where an accused has been charged for a graver offence, but on evidence the offence is not made out and a lesser offence is found to have been established, the court would be within its jurisdiction to convict the accused for such lesser offence, the principle being that no prejudice is caused thereby to the accused. But where the evidence disclosed some other unconnected offence than for what the accused has been charged to have been committed, he cannot be convicted therefor without there being a specific charge for the case. Also, if an offence graver then the one charged appears to have been committed, a conviction therefore cannot ensue, he having not been charged therefore. Such view is based upon the principle that accused having not been called upon to answer the charge, the prejudice to him would be presumed.