Ganesh Bhumij vs State of Jharkhand

Heard Mrs. Preety Sinha, learned Amicus Curriae for the Appellant and Mr. T.N. Verma, learned APP for the State.

This appeal is directed against the impugned judgment of conviction and sentence passed on 18th July 2003 by Sri S.N. Prasad, the 2nd Additional Sessions Judge, Chaibasa in Sessions Trial No. 171 of 1998, whereby the sole Appellant has been found guilty for committing the offence u/s 302 of the Indian Penal Code and, thereby, he has been sentenced to undergo R.I. for life.

The prosecution case, in short, is that when the informant of this case-Karmi Loharin was in her house on 07/11/1997, at about 8 p.m., the Appellant Ganesh Bhumij came to her house and proposed for sexual intercourse-to which she denied and she begun to reprimand him. In the meantime, her father-in-law Sonu Lobar reached there and she told about the said fact to him upon which he also rebuked the Appellant and asked him to go away from his house, then the Appellant picked up an iron "Sawal", kept there, and assaulted her father-in-law with it which resulted in his death at the spot. It is further alleged that a week prior to the alleged occurrence, the Appellant used to make such proposal to the informant whenever he used to meet her in the village but she always rebuked him.

Mrs. Preety Sinha, learned Amicus Curriae appearing for the Appellant submitted that at best the Appellant could be convicted u/s 304 Part II of the Indian Penal Code. She referred to the Post Mortem report to show that only one injury was found on the head of the deceased, caused by heavy hard and blunt substance.

On the other hand, Mr. T.N. Verma, learned APP supported the impugned judgment.

There appears to be substance in the submissions of the learned Counsel for the Appellant that the case falls under Exception 4 to Section 300 Indian Penal Code is as much as there is nothing to show that there was any premeditation or intention to loll the deceased. It further appears that when the Appellant was rebuked by the deceased, he assaulted him by the "Sawal" lying in the house of the informant, There is no repeated blow on the person of the deceased. There is nothing to show that the Appellant took undue advantage and had acted in cruel or unusual manner.

In our opinion the case falls under Exception 4 to Section 300 Indian Penal Code. In the circumstances, we are inclined to convert the conviction u/s 302 Indian Penal Code to Section 304 Part-II of the Indian Penal Code. Accordingly, the conviction passed by the trial court u/s 302 Indian Penal Code against the Appellant is hereby set aside and the Appellant is held guilty for committing the offence u/s 304 Part-II of the Indian Penal Code.

So far as sentence is concerned, it is submitted that the Appellant is in jail custody since October 1997, i.e. for about 14 years by now. 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.

The order may be communicated to the court concerned for issuing modified conviction warrant.

With this alteration in conviction and modification in sentence, this appeal is dismissed.

Let the order be communicated through FAX by the office.