KURIEN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was convicted by the Sessions Judge, Ernakulam for an offence under S.302 I.P.C., for causing the death of Binu, a baby aged eight months, son of pw. 1 Joseph. THE incident took place at about 10-30 PM. on 30-3-74. THE facts in brief relevant for the decision are the following: THE appellant and pw. 1 are sons of brothers, living at Ponnaramala in Elamkode village. Following an incident in the school where their sons were studying, the appellant chastised and squeezed the neck of Baby, son of pw. 1. Baby complained to pw. 1. pw. 1 met the accused by about 8-30 PM. at the Kalayanthani junction, the market area of the locality. THEre was a wordy quarrel and mutual beating. pw. 6 and others separated them. Both the appellant and Pw. 1 left the place. At about 10-30 P.M. pw. 1 who was on his way home saw the appellant standing on the rocky area close to his house. He had a drawn knife with him. He accosted pw. 1 and threatened to kill him. pw. 1 entreated him to go home. Hearing their talk and finding the appellant in an aggressive mood, pw. 2, the wife of pw. 1 came out of the house with Binu in her arms and requested the appellant not to create trouble. THE appellant retorted that he would kill her and aimed a stab at pw. 2. THE knife hit Binu on his head. THE child died at 2-30 A.M. on the same night.

(2.) DURING trial, when the appellant was questioned under S.313 Cr.P.C., he admitted the earlier quarrel, the encounter between him and pw. 1 near the latter's house and also the intervention of pw. 2 the wife of pw. 1. He, however, stated that it was a dark night and he could identify pw. 2 only by her voice. He left the place on hearing the cry of the child.

(3.) WHETHER in a case where the facts are more or less similar, an offence under S.304A IPC. is made out was considered in Jageshar v. Emperor (24 Cr. L.J. Reports 789). In that case, the appellant was beating one Sheopal with his fists, when the wife of Sheopal with a two months' old baby on her shoulder interfered. The appellant hit at the woman and the blow struck the child on the head; the baby died as a result of the blow. It was held that the act of the appellant was in its nature criminal and,neither S.80 IPC. nor S.304A IPC. applied to the case. It had not been made out that while wanting to hit the woman, the appellant intended or knew to be likely to cause the death of the woman. Therefore, no conviction could be entered under S.304 IPC. by the operation of S.301 IPC. The appellant was held to have committed an offence under S.325 IPC.