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2011 DIGILAW 319 (JHR)

Haripada Rajak @ Hari Rajak v. State of Jharkhand

2011-04-07

R.K.MERATHIA, R.R.PRASAD

body2011
Judgment By Court.-This appeal is directed against the judgment of conviction and order of sentence dated 3.9.2002 and 6.9.2002 respectively passed by learned Additional Sessions Judge; F.T.C.-II, Jamshedpur, East Singhbhum in S.T. No. 91 of 1997 convicting appellant no. 1Haripada Rajak @ Hari Rajak for the offence• under. Section 302/34 of the Indian Penal Code and appellant no.2-Shankar Rajak for the offence under Section 302 of the Indian Penal Code and sentenced each of them to undergo life imprisonment. 2. Ms. Amrita Banerjee, learned counsel appearing for the appellants, submitted that it is clear from the evidence that appellant no.2-Shankar Rajak gave one Bhujali blow on the deceased-Sashadhar Mahato during the quarrel amongst the villagers as to whether the check dam should be constructed first or a culvert over the river and thus at best this case falls within Exception 4 of Section 300 of the Indian Penal Code. 3. She further submitted that so far as appellant no. 1-Haripada Rajak @ Hari Rajak is concerned, the allegation against him is similar to those accused persons, who have been acquitted. 4. Mr. A.B. Mahato, learned A.P.P., on the other hand, supported the impugned judgment. 5. It appears that the prosecution case is consistent so far the manner of occurrence is concerned, and the minor contradictions are to be ignored. But it is clear that the occurrence took place over a quarrel amongst the villagers as to whether a check dam should be constructed first or a culvert. The occurrence took place during the quarrel between the parties. The prosecution has not been able to prove that the appellants had made any preparation or had any premeditation to cause death of the deceased. It has come in the evidence that appellant no. 2 Shankar Rajak gave one Bhujali blow on the deceased. Appellant no. 2 could have repeated the blows on the deceased, but he did not. Therefore, so far as appellant no.2 - Shankar Rajak is concerned, we are satisfied with the submission of Ms. Amrita Banerjee that his case falls within Exception 4 of Section 300 of the Indian Penal Code and the conviction under Section 302 IPC cannot be sustained. But he is held guilty of committing offence under Section 304 Part II of the Indian. Penal Code. Amrita Banerjee that his case falls within Exception 4 of Section 300 of the Indian Penal Code and the conviction under Section 302 IPC cannot be sustained. But he is held guilty of committing offence under Section 304 Part II of the Indian. Penal Code. So far as appellant no.1-Haripada Rajak @ Hari Rajak is concerned, we are not convinced that his case stands on similar footing with the accused persons, who have been acquitted. The allegation against him is that during the quarrel he made the deceased fall on the ground by pulling his hairs, though the evidence of P.W. 2 is slightly different on this aspect. In our opinion, his conviction under Section 302/34 of the Indian Penal Code cannot be maintained. However, he is held guilty under Section 323 of the Indian Penal Code. 6. So far the sentences are concerned, it .was informed by Ms. Banerjee that appellant no. 1-Haripada Rajak @ Hari Rajak has remained in jail custody for about one year and five months and appellant no.2-Shankar Rajak has remained in jail custody for about 14 years. 7. In our opinion, the ends of justice will be served by sentencing both the appellants to the extent they have already undergone. 8. In the result, this appeal is dismissed with modification in their conviction to the extent that appellant no. 1, namely, Haripada Rajak @ Hari Rajak, is convicted under Section 323 of the Indian Penal Code and appellant no. 2, namely, Shankar Rajak, is convicted under Section 304 Part II of the Indian Penal Code. The sentences, awarded against both the appellants, are altered to the extent, indicated above. 9. Since appellant no. 1. namely, Haripada Rajak @. Hari Rajak, is already on bail, he is discharged from the liability of bail bonds. So far as appellant no.2, namely, Shankar Rajak, is concerned, he is directed to be released forthwith from the custody, if not required in any other case.