BHOJAPPA HANAMANTHAPPA CHOUDANNAVAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Though this appeal has been filed by special leave in challenge of both the conviction and sentence, we found the necessity to confine to the quantum of sentence. The first appellant herein was the first accused. He was acquitted along with a number of other accused by the trial court. But the high Court reversed the order of acquittal and convicted the first appellant under S. 304 Part II and S. 323 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years on the first count and to a fine of Rs. 500. 00 on the second count. All his co-accused (the remaining appellants) were convicted only under S. 323 of the Indian Penal Code and each of them was sentenced only to a fine of Rs. 500. 00. Apparently, that is the reason why the first appellant is now singled out as the rest of the co-accused are reconciled to the verdict passed by the High Court. Though those co-accused have also been arrayed as appellants in the present appeal, no argument was made on their behalf. So we dismiss the appeal as against all those co-accused and proceed to consider only the case of the 1 st appellant who will be referred to as the appellant in this order.

(2.) After hearing learned counsel for the appellant and learned counsel for the respondent State we are not persuaded to interfere with the conviction of the offence under S. 304 Part II. A brief sketch of the facts is necessary in considering the question of quantum of sentence.

(3.) A commotion took place in front of the house of Bhimappa (PW 1) during the night of 10/9/1984. The appellant and his co-accused were involved in assaulting Bhimappa and his brothers-in-law. While the brawl was in full swing PW 1's daughter Renu Kavva, a twelve-year-old little girl, rushed to the scene presumably to rescue her father whom she would have thought to be in a dangerous situation. The appellant herein then swished a wooden hammer he was then possessed with, which hit on the head of Renu kavva, which unfortunately turned out to be fatal. Therefore, the High Court, on the appeal against acquittal, found that the appellant did not intend to inflict the injury which caused her death. We are in agreement with the finding of the High Court that the offence is only under S. 304 Part II IPC.