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2011 DIGILAW 748 (JHR)

Dhuma Pradhan v. The State of Jharkhand

2011-08-01

P.P.BHATT, R.K.MERATHIA

body2011
JUDGEMENT Nobody appeared on behalf of the appellant. Mr. S.K. Dev, learned counsel was appointed as Amicus Curiae to assist the Court on behalf of the appellant. Mr. R.C.P. Sah, learned counsel appeared on behalf of the State. Parties were directed to argue the case on merit in the second half. Later on Heard the parties. 2. This appeal arises out of the judgement of conviction dated 28.07.2001 and the order of sentence dated 30.07.2001 passed by learned 1st Additional Sessions Judge, Simdega in S.T. No. 102 of 2000 by which, the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. 3. The prosecution case, in short, is that on 15.7.99 at about 3 p.m. Gandur Pradhan, (deceased-husband of the informant-P.W.-4), had gone to bring meat to the house of Bhagtu Mahto. At about 4:00 p.m. the appellant, Dhuma Pradhan (who happens to be the nephew of the deceased) returned to the house and disclosed that he killed Gandur Pradhan by assaulting him with axe in the Angan of Bhagtu Mahto. On this, the informant, Sita Devi (P.W.-4) and her daughter (P.W.-5) Firani Devi went there and saw Gandur Pradhan in restless condition with bleeding injuries on head, right cheek and forehead. P.W.-1-Budhwa Mahto, P.W.-2-Bande Mahto and P.W.-7-Bonde Mahto were present there and they disclosed that the appellant assaulted the deceased with axe. They brought the appellant to house. Doctor was called but before he arrived, the deceased succumbed to injuries. 4. Mr. Dev appearing for the appellant submitted that it has come in the evidence that the deceased abused the appellant and then the appellant assaulted the deceased. He further submitted that axe is commonly available in the houses in village. He also submitted that there is nothing to show that there was premeditation to kill the deceased. The appellant admitted his guilt. He also submitted that the appellant at best could be convicted under Section 304 Part-I of the Indian Penal Code. He lastly submitted that the appellant is in jail custody for more than 11 years. 5. On the other hand, Mr. R.C.P. Sah, the learned counsel appearing for the State supported the impugned judgment. 6. P.Ws.-1, 2 and 7 are the eye witnesses and they inter alia stated that a he-goat was being dressed when the appellant went there and started helping in such dressing. 5. On the other hand, Mr. R.C.P. Sah, the learned counsel appearing for the State supported the impugned judgment. 6. P.Ws.-1, 2 and 7 are the eye witnesses and they inter alia stated that a he-goat was being dressed when the appellant went there and started helping in such dressing. In the meantime, the deceased went there and abused the appellant in filthy language, on which, the appellant assaulted the on the vital part of the body of the deceased by axe repeatedly. There is some discrepancy with respect to the manner of assault. Some witnesses said that the assault was made by the back portion of Tangi whereas, others have said that the assault was made by sharp portion of Tangi. P.W.-3 is the inquest witness. P.W.-4 is the informant. P.W.-5 is the daughter of the informant. P.W.-6 is the witness of seizure of axe and P.W.-9 is the Investigating Officer. The informant, P.W.-4 and her daughter, P.W.-5 clearly stated that there is good relationship between them and the appellant. It appears that there was no motive on the part of the appellant to kill the deceased, but when the deceased scolded the appellant in filthy language, the appellant in heat of passion inflicted axe blows on his head and face, which became fatal . 7. The defence version about the false implication of the appellant has been rightly disbelieved by the trial court. However, we are convinced that there was no premeditation on the part of the appellant to kill the deceased. It is true that there were repetition of axe blows on the vital part of the body of the deceased, but in view of the facts and circumstances of this case, in our opinion, the appellant be convicted under Section 304, Part-I of the Indian Penal Code and not under Section 302 IPC. 8. In the result, the conviction under section 302 IPC is altered into conviction under section 304 Part-I IPC. So far as the sentence is concerned, it is stated that the appellant is in jail for more than 11 years. Accordingly, the period of sentence is modified to the period already undergone by the appellant in jail. With this modification in conviction and sentence, this appeal is partly allowed. So far as the sentence is concerned, it is stated that the appellant is in jail for more than 11 years. Accordingly, the period of sentence is modified to the period already undergone by the appellant in jail. With this modification in conviction and sentence, this appeal is partly allowed. Let this order be sent to the trial court concerned for issuance of modified conviction warrant, immediately so that the appellant is released forthwith, if not wanted in any other case.