Acts/Rules/Orders:
Indian Penal Code, 1860 - Sections 302 and 304;Criminal Procedure Code, 1973 - Sections 28 and 377;Probation of Offenders Act, 1958
JUDGEMENT
M.F. Saldanha, J.
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 Public 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.
4. As far as the aspect of sentence is concerned, the appellant's learned Counsel submitted that even if there is no legal bar to the benefit of the Probation of Offenders Act being afforded to an accused who is convicted under Section 304(II), that having regard to the seriousness of the offence, that it would be inappropriate. He also submitted that an impression should not be created that the accused has virtually got away with the offence. He also advanced a strong plea that in cases of violence, that it is normally very necessary to the Court to consider the position of the aggrieved party. In this case, he referred to the family of the deceased. In sum total his submission was that even though he concedes that the parties are brothers and having regard to the totality of the facts and circumstances, that the Trial Court might have been justified in showing a degree of lenience to the accused, but that some reasonable punishment must be inflicted by this Court.
5. The respondent-accused was unable to engage an Advocate of his own and learned Advocate Sri Premkumar has been appointed as Amicus Curiae. He pointed out to us that the incident has taken place 8 1/2 years ago and that the trial has concluded many years back and having regard to the fact that the accused is not a known criminal but a poor farmer and since it has come on record that his family consisted of his wife and three daughters, that the Trial Judge has exercised his judicial discretion in affording him the benefit of the Probation of Offenders Act. It was also pointed out to us that the prosecution has not adduced any evidence in support of anything aggravating and there is nothing to indicate that he has committed any indiscretion even after his release. From the record it was pointed out to us that the accused had undergone sentence for six months in custody prior to his release on bail. We have considered the plea that having regard to the late stage at which the appeal is now being disposed of, that the Court should not send the accused back to jail. On the question of whether to impose a fine on the accused which if recovered, could be paid over as compensation to the wife and children of the deceased, Learned Advocate submitted that it is very clear that the economic condition of the accused is so very bad that he could not even engage an Advocate even on such a serious charge. On this background, it is obvious that he has no capacity to pay fine.
6. Every case is required to be considered on its own special facts and circumstances and as far as criminal law is concerned, the Court passes an order which is virtually confined to the special situation attendant in that particular case. We do find that there was ample justification for the learned Trial Judge to have shown a high level of leniency to the accused having regard to facts that have been referred to earlier. We have also taken cognizance of the time factor and the in appropriateness at this late stage of the passing of an order which would have the effect of the accused being taken into custody and being made to serve a further sentence at this late point of time. In the exceptional facts and circumstances of this case, we are inclined to confine the sentence of the accused to the period that has already been undergone by him in custody. We are however, not inclined to accept the submission canvassed on his behalf by the learned Advocate that it is absolutely impossible for him to pay any fine. We propose to impose a reasonable fine of Rs. 2,000/- on the accused. We have taken into account his economic condition and we therefore afford him a period of three months within which he should deposit the fine amount in the Trial Court. In default, however, the accused is ordered to be sentenced to two months R.I. It is further directed that the whole of the fine amount of Rs. 2,000/- if recovered, shall be paid over by the Trial Court to the wife of the deceased Sawarappa.
7. In the result, the appeal is allowed in part. The conviction of the accused under Section 325, Indian Penal Code is set-aside. The accused is convicted of the offence punishable under Section 304. Part II, Indian Penal Code and it is directed that he be sentenced to the period already undergone by him in custody and to pay a fine of Rs. 2,000/- within a period of three months from today, in default, to suffer R.I. for two months. All of the fine amount if recovered to be paid over to Yenkamma, wife of the deceased. The bail bond of the accused to stand cancelled on expiry of the period of three months from today.
We further direct that the State shall pay a fee of Rs. 1,000/- to learned Advocate Sri A.L. Premkumar who represented the accused as Amicus Curiae.