STATE OF KARNATAKA Vs. RAMANNA

JUDGEMENT

(1.) WE have heard the learned Additional State Public Prosecutor as also the learned Advocate who represents the accused-respondent. We do not propose to elaborately set out the facts as regards the present criminal appeal because the unfortunate incident is one between two brothers. The deceased sawarappa and his brother who is the accused had partitioned their property and the two of them continued to have some difference of opinion with regard to a neem tree. On 5-11-1989 at about 2. 00 p. m. , a verbal altercation took place between the brothers and the evidence before us indicates that the accused picked up a stone and hit the deceased with it. The injury being on the head, the deceased died as a result thereof. The accused was arrested and charged for having committed an offence punishable under Section 302, Indian Penal Code. The learned trial Judge accepted the prosecution evidence and held that the offence in fact is established, but with regard to the conviction, a variety of reasons that have been set out, particularly the fact that there was a single injury on the parietal region, the fact that a stone had been used and that it took place on the spur of the moment, and the accused was convicted under Section 325, indian Penal Code. The learned Trial Judge also exercised his discretion in affording the accused the benefit of the Probation of offenders Act. The State has preferred the present appeal principally on the ground that the prosecution having established the incident in question that the conviction under section 325, Indian Penal Code was unjustified in law and the second contention raised was that the benefit of the Probation of offenders Act ought not to have been extended to the accused having regard to the gravity of the incident in question.

(2.) WE have heard the learned Additional State Publice Prosecutor in support of the appeal. His principal contention is that the learned Trial Judge has overlooked some of the vital aspects of the case, the first of them being that the stone was comparatively a large one and that for all intents and purposes, it would constitute a deadly weapon as admittedly, one blow from that stone did in fact cause the death of Sawarappa. Secondly what he points out is that the stone was not hurled at any other part of the body, but it was aimed at the head which is a vital part of the anatomy and consequently, it could never be argued that the accused did not commit an act which was sufficient in the ordinary course to cause death or for that matter he could not have reason to know that the act in question was serious enough to cause the death of the deceased. The fact that the injury was on the head and the fact that the deceased died almost immediately, according to the learned Counsel, is sufficient to bring the case within the ambit of Section 304, Part II, Indian Penal Code. He submitted that even if on the special facts of this case, namely, that since the act did not appear to be premeditated, if the Court were to give the accused the benefit of the lesser conviction that it was still wrong on the part of the learned Trial Judge to convict the accused under Section 325, indian Penal Code. The respondent's learned Advocate did try to support the order of the Trial Court in so far as he submitted that the stone did not come within the traditional category of deadly weapons and furthermore that there was nothing to indicate that the intention of the accused was to inflict the blow on the head and his submission was that the hurling of the stone has resulted in an injury that was more accidental than intentional.

(3.) WE have evaluated the special facts and circumstances of this case very carefully and we have also considered the submissions canvassed in the light of the record more importantly, having regard to the correct legal position. We are in agreement with the appellant's learned Counsel that on the facts of the present case, the conviction under Section 325, indian Penal Code was erroneous. It is true that the record would support the view that the incident in question was not either planned or premeditated and that it obviously emerged as a result of a heated verbal altercation. That circumstance and the fact that a stone was used, may be sufficient to bring it out of the gravity of Section 302, Indian Penal Code, but it would clearly qualify a conviction under Section 304, Part II of Indian penal Code. To this extent, the appeal filed by the State will have to be partially allowed. We, accordingly, set-aside the conviction under Section 325, Indian Penal Code and convict the accused for the offence punishable under Section 304, Part II, indian Penal Code.