Orissa High Court: A Division Bench of Pramath Patnaik and Dr A. K. Mishra JJ. modified the conviction given by the trial court and convicted the accused under Section 304 Part-I Penal Code, 1860.
The brief facts of the case are that the accused was charged under Section 302 IPC for having given a single blow to deceased mother.
As per prosecution case, the accused and his wife quarreled and when mother intervened, the accused left the spot only to return later with a knife dealt a blow which struck to the right ear and the mother succumbed to her injuries. On investigation, accused was arrested, post mortem conducted and charge-sheet under Section 302 IPC submitted and consequently the accused faced trial by the Court of Session.
Defence took the plea of denial simplicitor and examined none. The trial court appreciated the evidence of doctor and eyewitnesses and found the death of deceased to be homicidal in nature convicted and sentenced the accused. Aggrieved by the impugned judgment has filed the instant petition.
The counsel for the appellant, Ambika Prasad Ray, submitted that the manner in which the knife blow was inflicted to the mother is nothing but without premeditation and due to heat of passion, out of sudden quarrel and not in a cruel manner for which exception 4 of Section 300 IPC is attracted.
He further requested the Court to convert the conviction to Section 304 Part-I of IPC.
The counsel for the respondent, Zafarullah, did not dispute the factum of quarrel but stated that no such plea was taken before the Trial Court.
After carefully perusing the evidence on record and hearing all the witnesses from both sides, the Court observed that the accused son had no animosity with the deceased mother, rather the incident had the genesis of quarreling between accused and his wife for which it could be said that there was no premeditation and no motive. The Court further observed that the trial Court has committed error in not appreciating the law in the right perspective whereas the material in abundance proves that the offence committed is culpable homicide not amounting to murder as defined under Exception 4 of Section 300 IPC and for that the accused is to be convicted under Section 304 Part-I IPC instead of Section 302 IPC.
In view of the above, the appeal was allowed and sent back. [Santosh Toppo v. State of Odisha, 2020 SCC OnLine Ori 59, decided on 29-02-2020]
