Ori HC | Conviction of the appellant modified from S. 302 to S. 304 Part-I of Penal Code as premeditation could not be proved

Orissa High Court: A Division Bench of Dr A.K. Mishra and S.K. Mishra, JJ. set aside the conviction of accused under Section 302 Penal Code, 1860 and instead, punished him under Section 304 Part-I of Penal Code, 1860.

The appellant had challenged his conviction under Section 302 of the Penal Code, 1860. As per the prosecution’s case, the accused had come to the house of the deceased and asked him to pay money by mortgaging a bi-cycle. After the deceased refused to lend money, he threatened him and left. Next day, the accused came to his house and asked the deceased for more liquor. After he was refused again, the accused threatened to get the deceased arrested on charges of illegally distilling liquor. Soon after, he picked up the knife kept on the wall of the house of the deceased and charged. There was a struggle between them and in the course of struggle, the accused sustained cut injury on his hand. Thereafter, the accused threw a curry stone (Shila) on the chest of the deceased and trampled over it. Accused also struck a brick on the head of the deceased and urinated on his face. The wife, daughter and son of the deceased requested the accused to stop, but he did not listen and killed the deceased and then fled away from the spot.

Post investigation, the accused was tried under Section 302 of Penal Code, 1860. The accused pleaded right to private defence to his life. The Additional Sessions Judge relied on the eye-witnesses in this case and recorded that the death of the deceased was homicidal in nature. He did not accept the plea of right to private defence as probable as the accused not only put curry stone on the chest of deceased and trampled over it, but also expressed his intention to ensure death by urinating on the face.

In the appeal to this case, the appellant contested that he too sustained an injury in course of the struggle with the deceased and he, therefore, had a reasonable apprehension of danger to his life, due to which he threw the curry stone. Further, he too sustained an injury on his right hand which could not have been self-inflicted as per a doctor.

The High Court was of the view that there was a discrepancy in the statements of the eyewitnesses due to which the appellant was entitled to be given benefit of doubt. The Court held that the trial court had committed no mistake in ignoring the right to private defence plea as accused threw curry stone when deceased was lying on the ground and had no weapon on his hand. The accused had no premeditation and the way he acted in a sudden fight in course of quarrelling and struggling, the offence under Section 304 Part-I of Penal Code, 1860 was found to have been committed and appellant was held to be liable for culpable homicide not amounting to murder. Accordingly, the conviction of accused under Section 302 of the Penal Code, 1860 was set aside. Instead, he was found guilty under Section 304 Part-I of the Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for a period of ten years.[Bulu Khandia v. State of Orissa, 2019 SCC OnLine Ori 288, decided on 19-08-2019]

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