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2011 DIGILAW 398 (JHR)

Onath Lohar v. State of Jharkhand

2011-05-04

D.N.UPADHYAY, R.K.MERATHIA

body2011
Judgment : By Court.-Heard Mr. Rakesh Kumar Sinha, learned Amicus Curiae for the appellant and Mr. S.N. Rajgarhia, learned APP for the State. 2. This appeal is directed against the impugned judgment of conviction and sentence passed on 8th December, 2000 by Sri Sita Ram Mahto, the 2nd Additional Sessions Judge, Seraikella in Sessions Trial No. 177 of 1992, whereby the sole appellant has been found guilty for committing the offence under Section 302 of the Indian Penal Code and, thereby, he has been sentenced to undergo R.I. for life. 3. Mr. Sinha, learned Amicus Curiae appearing for the appellant submitted that at best the case falls under Exception 4 to Section 300 IPC. 4. On the other hand, Mr. Rajgarhia, learned APP supported the impugned judgment. 5. It appears that the occurrence took place on 19.12.1991 when the parents of the informant had come to her house. The cousin brother of her husband appellant started abusing her parents saying that they had come there to take food, whereupon her mother did not take meal. At about 12 O'clock her husband returned from work then she narrated the entire incident to him whereupon her husband went to the house of the appellant and asked him the reasons of the incident whereupon the appellant is said to have assaulted him on his head and chest by means of iron rod resulting in his death. 6. It appears from the evidence of PW 1 that there was hot exchange of words between the deceased and the appellant before the appellant caused injuries on him. It further appears that two injuries were found on the person of the deceased; one on his left abdomen and the other on his head. 7. The prosecution has not proved that there was any premeditation and intention to cause death of the deceased or the appellant took undue advantage and had acted in unusual manner. 8. In our opinion the case falls under Exception 4 to Section 300 IPC. Accordingly, the conviction passed by the trial court under Section 302 IPC against the appellant is hereby set aside and the appellant is held guilty for committing the offence under Section 304 Part-II of the Indian Penal Code. 9. So far as sentence is concerned, it is submitted that the appellant is in jail custody for about 11 years. Accordingly, the conviction passed by the trial court under Section 302 IPC against the appellant is hereby set aside and the appellant is held guilty for committing the offence under Section 304 Part-II of the Indian Penal Code. 9. So far as sentence is concerned, it is submitted that the appellant is in jail custody for about 11 years. He is sentenced to undergo R.I. for the period already undergone by him. The appellant is directed to be released forthwith if not wanted in any other case. With this alteration in conviction and modification in sentence, this appeal is dismissed.