Lal Murmu Vs. State of Bihar

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....that even if the case of the prosecution is accepted, the present case would fall under section 304ii and not under section 302, ipc since only a single blow was only given by the appellant to the deceased that also by means of a 'juath', which used for the purpose of ploughing land on his head and therefore it cannot be said that the appellant had in fact any intention to kill the deceased. he did not also repeat the blow. it is further submitted that the appellant has remained in custody for more than 20 years and therefore he has sufficiently been punished for the offence committed by him.5. from the evidence of pw 6, the doctor indra prasad mishra, it appears that only two injuries were found on the person of the deceased. one was lacerated wound 2' x 1' x bone over the right side of the forehead with swelling and echymosis 6'x 4' and other was abrasion in the left side of the neck. according to the doctor, the injuries which were found on the person of the deceased were caused by hard and blunt substance.6. after going through the evidence of the prosecution, we are inclined to accept the contention of the learned counsel for the appellant and we are also of the view that the present case would fall under section 304-ii, ipc and not under section 302, ipc, under which he has been convicted by the trial court.7. accordingly, we set aside the conviction and sentence passed by the trial court for the offence under section 302, ipc and alter the conviction by convicting the appellant for the offence under section 304 part ii. ipc and sentence him to undergo ri for a period of 10 years. since the appellant has already remained in custody for more than 20 years and therefore he is directed to be released forthwith, if not wanted in any other case. accordingly, this appeal is dismissed by altering the conviction and with modification in sentence as aforesaid.