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2012 DIGILAW 3 (JHR)

Shibu Lohar v. State of Jharkhand

2012-01-02

D.N.UPADHYAY, R.K.MERATHIA

body2012
Judgment By Court This appeal has been filed against the judgment of conviction and order of sentence dated 12.09.1995 passed by Additional Judicial Commissioner, Khunti in Sessions Trial No. 666 of 1993 convicting the appellant under Section 302 of I.P.C. and sentencing him to under R. I. for life. 2.The prosecution case in short is that on 02.07.1992 which was Rath Yatra day, one co-villager of the deceased named Guma (P.W. 2) returned along with his wife from Mela in the evening at about 8:00 P.M. and both starting quarreling on the issue of giving some sweets which they have bought from the Mela, to a girl who had looked after their cattle for the whole day. Guma became angry and chased his wife with Balua in his hand. Seeing quarrel Mohan Lohar (the deceased) intervened. Guma then sat near the door of his house and the appellant Shibu his relative, snatched the Balua from the hand of Guma and asked him as to whether he would cut Mohan Lohar who was intervening in the quarrel. Guma kept mum and did not reply. On this the appellant assaulted the deceased with Balua and injured him due to which he fell down and died. 3.The prosecution has examined about 14 witnesses and has proved its case. The doctor – P.W. 12 had found one sharp cut injury 4” x 1½ x 1” on right side of neck below ear cutting soft tissues, arteries and veins and ramus of mandible; and one lacerated injury of 2” circumference on the right hand. The first injury was caused by heavy sharp cutting weapon such as Balua and the second injury was caused by hard and blunt substance. The cause of death was Haemorrhage and Shock due to first injury which was sufficient to cause death inn ordinary course of nature. 4.No body appeared on behalf of the appellant. We appointed Mr. Rohit to assist the Court on behalf of the appellant. He submitted that at best the appellants could be convicted under Section 304 Part (I) of the I.P.C. 5.On the other hand, Mr. Amaresh Kumar, learned counsel appearing for the State supported the impugned judgment. 6.It appears that Guma Lohar (P.W. 2) and his wife Somari (P. W. 9) quarrelled over giving sweets to a girl which was brought by them from the Mela on the Rath Yatra day. Amaresh Kumar, learned counsel appearing for the State supported the impugned judgment. 6.It appears that Guma Lohar (P.W. 2) and his wife Somari (P. W. 9) quarrelled over giving sweets to a girl which was brought by them from the Mela on the Rath Yatra day. Mohar Lohar (the deceased) intervened. The appellant is said to have snatched the Balua from the hand of Guma (P.W. 2) and caused injury on the neck of the deceased due to which he died. There is no allegation on the appellant of causing second injury. There is nothing to show that the appellant had any motive to kill the deceased. The only thing was that the deceased intervened in the quarrel between his relative i.e. P.W. 2 and P. W. 9. There was no premediation on the part of the appellant. He was not armed with weapon. He snatched the Balua from the hand of P.W. 2 who was quarrelling with his wife (P.W. 9) and asked P.W. 2 whether he should cause injury to the deceased or not. When the P.W. 2 did not say anything, the appellant is said to have caused the first injury to which the deceased succumbed to death. It appears that neither there was premediation, preparation nor any motive for the assault by the appellant. 7.In the facts and circumstances of the case, we are inclined to alter the conviction under Section 302 into Section 304 Part (I) of the I.P.C. So far as the sentence is concerned, it appears that the appellant has remained in jail for more than 19 years. Accordingly, his sentence is modified to the period already undergone by him. 8.With these alternation in conviction and modification in sentence, this appeal is disposed of. 9.This jail appeal was filed through the Jail Superintendent, Bhagalpur. It appears that as the judgment under appeal was passed on 12.9.1995 i.e. before bifurcation of the State, the appellant was sent to Bhagalpur jail. It is not known whether he has been shifted back to any jail situated in Jharkhand or he is still lying in Bhagalpur jail. It is also not known whether he has been released by the sentence review committee. In the circumstances, the appellant is directed to be released, if not wanted in any other criminal case. It is not known whether he has been shifted back to any jail situated in Jharkhand or he is still lying in Bhagalpur jail. It is also not known whether he has been released by the sentence review committee. In the circumstances, the appellant is directed to be released, if not wanted in any other criminal case. Let a copy of this judgment be sent to the I.G., Prison, Jharkhand, Ranchi and the Superintendent, Special Central Jail, Bhagalpur, Bihar, by FAX for doing the needful and reporting the action taken. Put up with the report after two weeks, under the heading 'For Orders'.