PUBLIC PROSECUTOR Vs. ISLAVATH FAKEERAYA

JUDGEMENT

(1.) This is an appeal by the Public Prosecutor against the Judgment of the Court of Session, Khammam, in Sessions Case No. 12 of 1963. The respondent herein, who was the sole r.ccused in the case, was tried by the laid Court of Session on the charge that at about cock-crowing time on 5th July, 1963, he committed the murder of one Samini, a Lambadi child of about 4 years of age by throwing on her head a stone weighing 27 Kgs. The learned Sessions Judge, while finding that the prosecution established beyond doubt that the accused caused the death of the girl by throwing a stone on the head of the girl as charged, convicted the respondent of an offence under section 304, Part II, Indian Penal Code, and sentenced him to rigorous imprisonment for three years. This appeal has been preferred by the Public Prosecutor on the ground that the learned Sessions Judge has completely ignored the provisions of section 301, Indian Penal Code, and that the acquittal of the respondent of an offence under section 302, Indian Penal Code, is contrary to law.

(2.) The facts of the case are these: The accused is a Lambada of Pangidi village in Khammam District. P.W.1, the father of the deceased girl, Lingayya, is the accused's father's brother. P.W. 1 was living with his wife, P.W. 2 and two young sons and the deceased girl aged about 4 years . His hut had no doors.

(3.) There were ill-feelings between the accused, his brother and his father on the one side and P.W. 1 on the other about the sharing of some land. P.W.1 had taken a loan of 4 'thumoos ' of Jawar from his brother in March, 1963, agreeing to return the grain with interest and for that reasons P.W.1's brother did not give him a share in the land. About a month prior to the occurrence, the accused and his brother beat P.W. 1 and caused him injuries and he was treated in the hospital for about 20 days. It is said that P.W. 8 of Pangidi came to know that the accused and his brother beat P.W. 1 and four days later asked the accused why they beat P.W.1. The accused then said that some time or other they would kill P.W. 1 ar.d P.W. 8 informed P.W. 1 of what the accused had said. It is on account of these ill-feelings towards P.W. 1 that the accused is said to have intended to kill P.W. 1 on the night of occurrence but that by mistake he threw the stone meant for P.W. 1 on the head of the girl who was sleeping by the side of her mother at the entrance.