Kumar Rajaratnam, J.
1. The accused being aggrieved by the judgment and order passed by the Trial Court in S.C. No. 135 of 1993 in convicting the accused for an offence under Section 302 of the IPC has preferred this appeal.
2. The accused was convicted under Section 302 of the IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo two months simple imprisonment.
3. The accused is alleged to have murdered his sister Sangeeta on 12-3-1992 at about 3 p.m. The accused inflicted knife injuries on the deceased as a result of which the deceased succumbed to the injuries.
4. The tragedy unfolds thus.
5. P.W, 1 is the husband of the deceased. He had a house situated in Shahunagar locality, Kangrali B.K. He was living with his wife, the deceased, and children which included a child, witness, P.W. 2. The deceased and her husband were living in the 1st floor of the said building. The accused was living in the other room in the same building.
6. The accused was once serving in the military. He had retired from service about 13 years prior to the incident. The accused had requested his brother-in-law, P.W. 1 to secure a house site for him. It appears that P.W. 1 was dealing with real estate. The accused paid P.W. 1 a sum of Rs. 45,000/- for a plot. Owing to some reasons P.W. 1 was not able to secure the said plot in time. The accused demanded P.W. 1 to return the money paid to him. It is stated that P.W. 1 had returned only about Rs. 20,000/- out of Rs. 45,000/-. Later on a further sum of Rs. 6,700/- was also returned by P.W. 1.
7. On the date prior to the occurrence on 11-3-1992 the accused had come to the house of P.W. 1 and informed P.W. 1 that he was badly in need of Rs. 3,000/-. He requested P.W. 1 to pay the said sum. P.W. 1 had initially pleaded his inability to pay the amount and there was a heated quarrel between them. It also appears from the evidence that P.W. 1 also paid a sum of Rs. 1,100/- to the accused. The accused demanded from P.W. 1 the balance of Rs. 1,900/-. His sister, the deceased intervened and assured the accused that she would arrange to pay the amount on the following Saturday.
8. On the date of the occurrence at about 3 p.m. P.W. 1 and his wife, deceased were taking food in their house. The accused had come over to the house and there was a quarrel between the accused and P.W. 1. It appears that the quarrel went on for some time and the deceased intervened and requested her husband, P.W. 1 to leave the place. Accordingly, P.W. 1 left the place. At that time P.W. 2, the daughter of the deceased was present in the house with her mother, the deceased. There was a heated quarrel between the deceased and her brother, the accused. During the quarrel it appears that the accused took out a knife and stabbed the deceased. On seeing this incident P.W. 2, the child witness ran out of the house and informed her father, P.W. 1. P.W. 1 also rushed to the room. It is stated that P.W. 1 also saw the accused stabbing the deceased by means of a knife. After assaulting the deceased with a knife, the accused ran away from the spot.
9. P.W. 1 and the other witnesses shifted the deceased to the hospital. When she was taken to the hospital she was pronounced dead. Thereafter P.W. 1 went to the Kakti Police Station at about 6 p.m. and lodged a written complaint, Ex.P. 1 before Belavadi P.S.I. The case was registered in Crime No. 61 of 1992. After the inquest the post-mortem was conducted by P.W. 5-Doctor. After completing the investigation P.W. 13-C.P.I. laid the charge-sheet.
10. P.W. 5-Doctor who conducted the post-mortem noticed the following injuries on the deceased:
1. Right Peritoneal region just medial to right shoulder, incised wound 1 1/2' x 1/2' x 1/2' muscle deep with blood clots.
2. Incised wound 1/2 cm x 1/2 cm over manubrium sternum (midline) bone deep with blood clots.
3. Incised wound 1 cm x 1/2 cm over body of sternum right wide, near border, bone deep with blood clots piercing the 3rd intercostal space with plenty of blood clots.
4. Incised wound 1 cm x 1/2 cm, right side of sternal border piercing the 7th interspaced with blood clots in re-trosternal space.
5. Incised wound 1/2 cm x 1/2 cm below and medial to the left nipple (mammary gland) with blood clots piercing the left 5th intercostal space and injuring the lung (left) with blood clots.
6. Head region.--Contusion over vertex (near frontal region) 2'/2 cm x 1 1/2 cm with blood clots in deeper tissue'.
11. All the above injuries were ante-mortem. There were in all five injuries and the 6th injury according to the Doctor could have been caused by fall on the ground. The cause of death was due to shock and haemorrhage. Although the doctor has not stated so it can be presumed that the injuries are sufficient in ordinary course of nature to cause death.
12. Curiously P.W. 1 who gave the complaint does not support the prosecution. He, however, states in his evidence that when he went to the house he saw his wife lying on the gallery of the first floor. He states that his children were standing nearby and were weeping. He admits that P.W. 2, his daughter was present at the scene of occurrence when the accused assaulted his sister.
13. We are now left with the evidence of P.W. 2. P.W. 2 was approximately 14 years old at the time the occurrence happened. P.W. 2 clearly states that the accused assaulted the deceased with a knife. P.W. 2 also states that her father, P.W. 1 took the deceased in an auto-rickshaw to the hospital and that the deceased died at the hospital. P.W. 2 states that there was a quarrel between the deceased and the accused. She further stated 'It is true that the accused and my mother were abusing each other', P.W. 2 states that her mother was sitting inside the house and that she was sitting near the gallery. She saw the accused and the mother (the deceased) quarrelling in the room. In our view whatever be the infirmity in the evidence of P.W. 1 the evidence of P.W. 2 clearly implicates the accused.
14. The learned Counsel for the appellant Mrs. Rajarajeswari submitted that P.W. 2 is a child witness and cannot be relied upon. Reliance was placed on a judgment of this Court in Mahadevappa Sangappa v. State of Karnataka, 1978 (1 ) Kar. L.J. 183. A Division Bench of this Court has held that the evidence of a child witness requires corroboration in some material particulars implicating the accused. In our view there is sufficient corroboration in the evidence of P.W. 1 wherein P.W. 1 has stated that he saw P.W. 2 crying over the dead body of the deceased. There can be no cause for doubt that P.W. 2 is a reliable witness.
15. The only question that arose for consideration was whether the offence would fall under Section 302 or one under Section 304 of the IPC. It is the admitted case that there was a quarrel as a result of which the accused took out a knife on the spur of the moment and stabbed the deceased. The knife has not been recovered. There is no material to show that the accused brought the knife along with him. It is also clear the object of the accused visiting the house of the deceased was only to demand the return of the money from P.W. 1. There is also material to show that there was a quarrel between the deceased and the accused.
16. The Supreme Court in Chamru Budhwa v. State of Madhya Pradesh , : AIR1954SC652 , held that where there was severe exchange of abuses between the parties preceding the incident and during the incident the temper rose and where the accused dealt a blow on the head of the deceased with a lathi the offence would be one under Section 304 and not under Section 302 of the IPC.
17. The Supreme Court in Shankar alias Kallu v. State of Madhya Pradesh, : 1979CriLJ1135 held that where the prosecution case itself is that the occurrence took place without any premeditation although the injury was on a vital part of the body like neck, the case would come under Section 304, Part II. The Supreme Court further held that there can be however no doubt that the accused must be deemed to have knowledge that 'death may be caused by his act'.
18. From the facts and circumstances of the case it can be said that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death but without any intention to cause death.
19. We accordingly allow the appeal to the extent that the conviction of the appellant under Section 302 of the IPC and the sentence of imprisonment for life awarded to him is set aside. The appellant-accused is convicted for an offence under Section 304, Part II of the IPC and we sentence the accused for a period of seven years R.I. and to pay a fine of Rs. 20,000/-, in default to undergo S.I. for six months. The payment shall be made in the Trial Court within ten weeks from the date of receipt of this order and on payment of the fine amount the Trial Court shall disburse the amount as compensation to P.W. 2, the daughter of the deceased since she has become a major as of now.