Decided on May 18,1953

Sham Behera Appellant
STATE Respondents


MOHAPATRA, J. - (1.) THIS appeal is against the judgment dated 15 -11 -52 of Sri R. C. Misra, Sessions Judge of Sambalpur -Sundergarh, convicting ap -pellant Sham Behera under Sections 335 and 201, Penal Code, and sentencing him to undergo rigorous imprisonment for 4 years under the former section and to undergo rigorous imprisonment for 3 months under the latter; and convicting appellant Srinibas Bandasena under Sections 323 and 201, Penal Code and sentencing him to rigorous imprisonment for 6 months under the former section and to rigorous imprisonment for one yearunder the latter. Both the accused persons were charged under Sections 302 and 201, Penal Code.
(2.) THE prosecution case is that on 24 -11 -51, deceased Kartika Padhan, the Gountia of village Barbank, left home with a torch in hand at about 8 O'clock in the night to fix up labourers to reap his paddy. He not having returned, his youngerson P. W. 5 made an unsuccessful search in the village and sent words to his elder brother P. W. 1, an Agricultural Overseer at Bairakhol. Next morning, P. w. 1 came to the village and the dead body of Kartik was also discovered in a dry well on 25 -11 -51 by P. W. 6, who had seen the Gountia alive on the previous night. The substantial part of the prosecution case is that the deceased was in love intrigue with Chanchala, P. W. 2, aged 26, who is the wife of Sham Behera (accused 1). Sri -nibas (accused 2) is a close neighbour of Sham. Accused 2 informed of this love intrigue between Chanchala and deceased Gountia to Sham. Sham, in fact, on one previous occasion saw the Gountia having sexual intercourse with Chanchala, but as Sham was obliged to the Gountia in various ways he forgave him with a warning. Chanchala also made a clean confession before her husband that the Gountia had such intercourse with her on several occasions but asked for her husband's unconditional pardon. The husband pardoned with a warning that there should be no further continuance of the intrigue. Subsequently, however, Srinibas informed Sham that the love intrigue was still continuing in spite of his warning, so on the date of occurrence, that is, on 24 -11 -51, both these accused persons kept themselves concealed in the cowshed belonging to accused Srinibas to watch the movements of the Gountia and Chanchala. It is to be observed that from the said cowshed most of the parts of the house of Sham are visible and the talks going on over there may be over -beard. The Gountia approached Chanchala several times during the day soliciting for an intercourse with her, but she (Chanchala) had persistently refused such requests during day time. But at night when Chanchala went to bed with her children, the Gountia came and had sexual intercourse with her. The two accused persons who had kept themselves concealed at that time in the cowshed nearby overheard the conversation between Chanchala and Gountia and rushed in. While the accused persons were attempting to catch the deceased, the deceased struck against the door -frame and fell down with his face downwards. The two accused persons gave him quite a number of fist blows and the further part of the prosecution case is that accused Sham caused burn injuries on the body of the deceased by a 'Niakhunta', that is, a burning piece of fire -wood. The Gountia died on the spot. Thereafter, the two accused persons, in order to conceal the offence committed by them, carried the dead body and threw it into a dry well nearby from which place the dead body was discovered as mentioned above by P. W. 6. The accused persons pleaded not guilty before the Sessions Judge. Notice was issued by the Bench consisting of Das C. J. and Narsimham J. While admitting the appeal to show cause why the accused persons may not be convicted under Section 302, Penal Code and why the sentences passed on them may not be enhanced even though Das C. J. had expressed some doubt as to whether any conviction under Section 302 was likely to be sustained.
(3.) ON a careful examination of the entire record of the case we are satisfied that the chargeunder Section 302 can never be sustained. According to the evidence of the doctor, he found several contusions and abrasions on the fore -head and other parts of the face and one abrasion on left knee. On opening of the skull, he, however, found that there was a fracture on the floor of the anterior fossa and, in his opinion, it was the head injuries that were the causes of the death. He also found several burn injuries on the body of the deceased. On a careful examination of the evidence, adduced on behalf of the prosecution, as we find there is nothing to establish that any of these accused persons was responsible for the head injuries which were the causes of death df the deceased, the charge under Section 302 must fail. We agree with the learned Sessions Judge, who, after giving his reasons, has come to the finding that the deceased received the fatal head injuries by his fall and that the accused persons had no intention to kill Kartik; on the other hand their only intention was to teach him a fitting lesson.;

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