Mohan Gouda and Another vs State of Orissa

Sujit Barman Roy, C.J.—Prosecution case, in brief, is that the two appellants gave blows with kicks and hands upon the deceased as a result of which the liver of the deceased ruptured and ultimately succumbed to the injuries.

Learned counsel for both the parties have taken me through the evidence on record. On perusal of the evidence on record we are satisfied that the appellants were in fact involved with the assault on the deceased which ultimately resulted in the death of the deceased. However, trial Court only basing on such facts concluded that the appellants were guilty u/s 304/34 I.P.C. and accordingly convicted them thereunder and sentenced them to life imprisonment. After going through the post mortem report, it appears to us that the conviction of the appellants u/s 302/34 I.P.C. cannot be sustained inasmuch as on the evidence on record as well as medical evidence, it is not possible for us to infer that the appellants had any common intention to cause death of the deceased. At the maximum, we can attribute common intention to the appellants that they intended to cause such bodily injuries which they knew were likely to cause death of the deceased. Therefore, the appropriate conviction of the appellants should have been u/s 304, Part II read with Section 34, I.P.C. We therefore alter the conviction of the appellants from Section 302/34 I.P.C. to one u/s 304, Part II read with Section 34 I.P.C. The appellants have already served out more than six years'' imprisonment. We are of the opinion that the period of imprisonment already suffered by the appellants would meet the ends of justice and accordingly they are sentenced to the period they have already undergone.

The appeal is therefore partly allowed. We further direct that the appellants be set at liberty forthwith.