- (1.) THIS is a jail appeal by the accused Jawaning against the judgment of the Sessions Judge, Udaipur, dated 26th August, 1954, whereby he has been convicted under sec. 304 Part II I. P. C. and sentenced to rigorous imprisonment for 2-1/2 years.
(2.) THE prosecution case against the appellant was that on the afternoon of 5th April 1954, his mother-in-law came to his house to take away the appellant's wife to her house in connection with the festival of Gangore. THE appellant was unwilling to send his wife with his mother-in-law. His wife, however, wanted to go with her mother and so she came out of the house to go to her mother's house. THE appellant thereupon began to beat his wife. His mother-in-law intervened, it is alleged that at the moment the appellant gave a kick to his mother-in-law, which struck her near her abdomen and resulted in her death. The appellant admitted in the committing Magistrate's Court and also in the trial court that his mother-in-law had gone to his house and that he had given her a kick, but it was placed by him that he had not given her a strong kick and he never intended to kill he. It appears from the statement of Mst. Dhuli, wife of the appellant,that the appellant's mother-in-law had abused him in filthy language and this was why he got enraged and gave her a kick There is no dispute in this case about the fact that the appellant's mother-in-law died on account of the kick given to her by the appellant. The main question to determine is whether the appellant has been rightly convicted under sec. 304 Part II on the proved facts and circumstances of this case. The learned Sessions Judge has found it proved that the accused gave this kick in a sudden fit of anger but he has convicted him under sec. 304 Part II saying that he should have known that by such act he was likely to cause his mother-in-law's death or such bodily injury to her as was likely to cause her death. The learned judge has not given any reason as to how the appellant could know that by his single kick he was likely to cause the death or such bodily injury as was likely to cause the death of his mother-in-law. It appears from the statement of P. W. 5 Dr. Ganpatlal that she was about 45 years of age. It is thus clear that she was not a very old lady who should have ordinarily died by a single kick. The reason why she died was that she had a fatty heart, diseased spleen and enlarged liver. These internal abnormalities were discovered by P. W. 5 on internal post-mortem examination. Externally he could not detect even a single injury on her person. There is no evidence on record to show that the appellant knew that her mother-in-law as thus suffering from enlarged spleen and enlarged liver and a fatty heart. It is not, therefore, correct to say that he was likely to cause her death ordinarily a single kick cannot result in death and therefore it cannot also be said that such bodily injury was likely to cause Mst. Nandu's death. Under the circumstances, the only offence of which the appellant can be held guilty is under sec 323 I. P. C. The appeal is, therefore, partly allowed. The charged is altered from under sec. 304 Part II to 353 I. P. C. and the sentence is reduced to one year's rigorous imprisonment. .;