DAVEED MANAS Vs. STATE

JUDGEMENT

(1.) The accused in Sessions Case No. 2/72 who was tried by the Sessions Judge, Trivandrum for an offence under S.302 and who was convicted by the learned Sessions Judge under S.304(ii) IPC., and sentenced to R. I. for two years, is the appellant before this court.

(2.) The deceased was staying in Vilayil Veedu with his son, Pw. 2 and other children. On 15-8-71 at about 2 P. M., Pw. 5 along with his brother Sukumaran and others came in connection with a marriage proposal for Sukumaran. They went to the house of the deceased with a view to take Pw. 1 also with them. Pw. 2, the son inlaw of the deceased also was in their house. These persons went to the house of the prospective bride. Sukumaran did not approve the girl and, therefore, they returned. Then they went to the house of the accused. Sukumaran saw the daughter of the accused and was satisfied with the girl and on his behalf, Pw. 1 proposed for her band in marriage but the accused gave an evasive reply. The accused did not like Sukumaran and, therefore, rejected the proposal. The accused went home and he met Pw. 1 at about 3 P. M. The accused told Pw. 1 that if it were not in his house that the proposal was made, he would have his teeth. Pw. 1 advanced near the accused and the accused gave him a blow with the hand which was warded off by Pw. 1. There ensued a quarrel between them. On bearing the quarrel, the deceased came out of the house and separated them and took Pw 1 to the house. Shortly later, the deceased came out of the house to the courtyard when the accused picked up M.O. 1 stone and threw it at the deceased. This stone hit the lower part of the abdomen of the deceased. On receiving the throw, the deceased sat down. Pws. 1, 2, 3 and 4 are alleged to have seen the incident. The injured was then removed in a car to the Police station where he gave Ext. P1 statement at 4-15 P. M. A crime was registered under S.324 IPC. Thereafter he was taken to the Medical College hospital, Trivandrum, Pw, 6 incharge of the Causality Department examined the deceased and noticed signs of peritonitis. He advised an operation. But the deceased refused and he left the hospital at 9-15 P.M. Thereafter, it is stated that he went to Ramadas hospital, a private Nursing Home, at about 1 A. M., on 16 8 71. The doctor incharge of the hospital stays 8 miles away and he came to the hospital only at 8 A. M., while at about 7 A.M., it was found that the deceased was dead. The learned Sessions Judge found that the evidence disclosed only an offence under S.304 IPC., and, therefore, convicted him under that section and sentenced him to 2 years R.I. The learned counsel for the appellant before me contends that the evidence does not disclose an offence under S.304 IPC., as the ingredients contemplated under that section are absent in this case.

(3.) The point for consideration, therefore, is what exactly is the offence made out. By the mere throw of a stone, the accused cannot be imputed with any knowledge that it would cause death. It is not the case of the prosecution that he either intended or knew that his act would result in death. The learned Sessions Judge opines that when the stone was thrown at the deceased, the accused must be deemed to have acted with knowledge that it is likely to cause death.