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2011 DIGILAW 517 (JHR)

Sona Ram Karmali v. State of Jharkhand

2011-06-16

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT By Court.- This appeal arises out of the judgment and order of conviction and sentence dated 4.12.2001 and 6.12.2001 res-pectively passed by Sri Rameshwar Tiwary, 1st Addl. Sessions Judge, Hazaribagh, in Session Trial No.550 of 1996 corresponding to Gola P.S. Case No.31 of 1996. G.R.Case No.1381 of 1996 convicting the appellant under Section 302, IPC, and sentencing him to R.I. for life. 2. Prosecution case, in brief, is that the informant Rukani Devi (PW-1) gave a fardbeyan before the police on 9.8.1996 at about 10.45 hours to the effect that in the preceding night at about 9.00 p.m. when she was taking rest with her family members, the appellant, who happens to be elder brother of her husband-Rupdeo Karmali, came out of his 'house and abused loudly as to why Rupdeo threw dirty water in his courtyard, Rupdeo disputed this allegation in abusive language. The appellant became angry, Rupdeo also became angry and used filthy language. On this the appellant pushed him and started assaulting with fists and slaps. Rupdeo also continued to abuse the appellant in filthy language. The appellant became very angry and assaulted Rupdeo on his head by 'kudali' which was lying there. The appellant assaulted him repeatedly on his head by 'kudal' due to which Rupdeo died. It is further alleged that in spite of raising alarm nobody came to help. 3. Learned amicus curiae Mrs. Chaitali C. Sinha, appearing for the appellant submitted that the prosecution has not been able to prove that there was any intention or pre-mediation on the part of the appellant to kill his brother. She further submitted that even as per the prosecution case, quarrel/scuffle took place and in the spur of the moment the incident took place. The deceased also continued to abuse- in filthy language. She further submitted that the doctor found four injuries caused by hard and blunt object, like back portion of spade, on head, apart from other injuries, but had there been any intention Ion the part of the appellant. he could have used the edged portion of the 'kudal'. The head injuries might have been caused by fall during scuffle. She placed reliance on the judgment reported in (2009) 4 SCC 771 Jagriti Devi v. State of Himachal Pradesh. he could have used the edged portion of the 'kudal'. The head injuries might have been caused by fall during scuffle. She placed reliance on the judgment reported in (2009) 4 SCC 771 Jagriti Devi v. State of Himachal Pradesh. She further submitted that in any event the appellant has remained in jail for about 15 years and his case has been recommended for remission JY the Sentence Review Committee. 4. On the other hand! Mr. S.N. Rajgarhia, learned Addl. P.P., appearing for the State supported the impugned order. 5. There appears to be substance in the submissions of Mrs. Chaitali C. Sinha that prosecution has not been able to prove that there was intention on the part of the appellant to kill his brother/the deceased. The alleged occurrence took place in the heat of passion upon quarrel. There is nothing to show that the appellant took advantage or acted in unusual manner. 6. In the circumstances, we are inclined to convert the conviction from 302 IPC, to 304. Part-II. IPC, So far as sentence is concerned, it appears that the appellant has remained in jail for about 15 years. Accordingly the appellant is sentenced to the period already undergone. 7. In the result this appeal is dismissed with the modification in the conviction and sentence as aforesaid. 8. Let a copy of this order be sent to the concerned Court below to issue modified conviction order so that the appellant may be released forthwith. Appeal dismissed.