The judgment establishes the principle that the conduct of the accused during and after the occurrence should be considered in sentencing, especially in cases involving young offenders.

JUDGMENT

V. Narasingh, J. - Heard Mr. Sk. Zafarulla, learned Amicus Curiae for the Appellant and Mr. P.K. Maharaj, learned Public Prosecutor appearing for the State.

2. The Appellant-Debraj Putel along with three other accused persons faced trial for the charge under Sections 302/34 IPC in S.C Case No.29/8 of 1990 arising out of Kantabanji P.S. Case No.121 of 1989 for committing the murder of one Sashidhar Putel.

3. On conclusion of trial, learned Addl. Sessions Judge, Titlagarh by judgment dated 28.11.1990 while acquitting three other accused persons, namely, Nepal @ Bhagaban Putel, Asabati @ Ashmati Putel and Sundermati Putel for the charge under Section 302/34 IPC, convicted the Appellant-Debraj Putel under Section 304-II IPC and sentenced him to undergo R.I for seven years.

4. Assailing the same, the present CRA has been filed.

5. Accused-Nepal @ Bhagaban Putel was convicted under Section 342 IPC and was directed to undergo R.I for six months. Accused-Asabati @ Ashmati Putel and Sudermati Putel were convicted under Section 323 IPC and sentenced to undergo R.I. for six months each.

6. In a separate appeal vide CRA No.341 of 1990 while the appeal stood abated in respect of the accused persons, namely, Asabati @ Ashmati Putel and Sundermati Putel, this Court confirmed the order of conviction of accused-Nepal @ Bhagaban Putel under Section 342 IPC.

7. To drive home the charge, the prosecution examined 17 witnesses and 23 documents were marked as exhibits. Weapons of offence were marked as M.O. I (one wooden handle of RAPHA) and M.O-II (one Thenga).

8. The prosecution case in brief is that on 24.11.1989 at about 2.00 P.M one herd of cow damaged Gobi crops raised in the Bari of one Bhaji Putel and he drove out the cow as a result of which there was a hot exchange of words between said Bhaji Putel and one Sashidhar Putel.

9. It is the assertion of the prosecution that during the quarrel, which ensued on driving out the herd of cow, the present Appellant along with others came to the spot and started assaulting the said Sashidhar Putel for which he sustained bleeding injuries on his head and under his left ear and fell down on the ground.

10. P.W.5-Ratnabati Putel, who is stated to be an eye witness and related to both accused as well as said Sashidhar Putel shouted for help and then P.W.4 and others came to the spot and tried to rescue Sashidhar Putel.

11. It is stated that injured Sashidhar Putel was shifted to hospital but unfortunately during the course of treatment, he passed away after three days of occurrence and thus Kantabanji P.S. Case No.121 of 1989, which was initially registered under Section 307/34 IPC was turned to one under Section 302/34 IPC.

12. As already noted, out of 17 witnesses examined P.Ws.5, 6, 8 and 10 have been cited as ocular witnesses. Mainly relying on the evidence adduced by them, coupled with the statement of P.W.16, the doctor, who initially treated the injured and P.W.15, the doctor, who conducted the post-mortem of the deceased at Burla Medical College and Hospital and submitted his report vide Ext.16 and P.W. 17 the I.O., learned trial court found the present Appellant to be guilty of having committed an offence under Section 304-II IPC while acquitting him under Section 302 IPC and as already noted, the present Appellant was directed to undergo R.I for 7 years under Section 304-II IPC.

13. At this stage, it is apt to be noted, as borne out from the record, that the present Appellant was taken into custody on 25.11.1989 and he continued in incarceration till he was granted bail by this Court in 1991.

14. Mr. Sk. Zafarulla, learned Amicus Curiae, submitted with vehemence that the approach of the learned trial court is ex facie erroneous in as much as admittedly the Appellant was charged under Section 302/34 IPC. Hence, in the event of acquittal of other accused persons under Section 302 IPC, the conviction of the Appellant under Section 304-II IPC independently cannot be sustained and in this context, he rel