Judgment :- 1. The accused in Sessions Case No. 2/72 who was tried by the Sessions Judge, Trivandrum for an offence under S.302 and who was convicted by the learned Sessions Judge under S.304 (ii) IPC., and sentenced to R. I. for two years, is the appellant before this court. 2. The deceased was staying in Vilayil Veedu with his son, pw. 2 and other children. On 15 8 71 at about 2 P. M., pw. 5 along with his brother Sukumaran and others came in connection with a marriage proposal for Sukumaran. They went to the house of the deceased with a view to take pw.1 also with them. pw. 2, the son-in-law of the deceased also was in their house. These persons went to the house of the prospective bride. Sukumaran did not approve the girl and, therefore, they returned. Then they went to the house of the accused. Sukumaran saw the daughter of the accused and was satisfied with the girl and on his behalf, pw.1 proposed for her band in marriage but the accused gave as evasive reply. The accused did not like Sukumaran and, therefore, rejected the proposal. The accused went home and he met pw.1 at about 3 P. M. The accused told pw.1 that if it were not in his house that the proposal was made, he would have his teeth. pw.1 advanced near the accused and the accused gave him a blow with the hand which was warded off by pw. 1. There ensued a quarrel between them. On bearing the quarrel, the deceased came out of the house and separated them and took pw 1 to the house. Shortly later, the deceased came out of the house to the court-yard when the accused picked up M.O.1 stone and threw it at the deceased. This stone hit the lower part of the abdomen of the deceased. On receiving the throw, the deceased sat down. pws.1, 2,3 and 4 are alleged to have seen the incident. The injured was then removed in a car to the Police station where he gave Ext. P1 statement at 4-15 P. M. A crime was registered under S.324 IPC. Thereafter he was taken to the Medical College hospital, Trivandrum, pw, 6 in-charge of the Causality Department examined the deceased and noticed signs of peritonitis. He advised an operation. The injured was then removed in a car to the Police station where he gave Ext. P1 statement at 4-15 P. M. A crime was registered under S.324 IPC. Thereafter he was taken to the Medical College hospital, Trivandrum, pw, 6 in-charge of the Causality Department examined the deceased and noticed signs of peritonitis. He advised an operation. But the deceased refused and he left the hospital at 9-15 P.M. Thereafter, it is stated that he went to Ramadas hospital, a private Nursing Home, at about 1 A. M., on 16 8 71. The doctor in-charge of the hospital stays 8 miles away and he came to the hospital only at 8 A. M., while at about 7 A.M., it was found that the deceased was dead. The learned Sessions Judge found that the evidence disclosed only an offence under S.304 IPC., and, therefore, convicted him under that section and sentenced him to 2 years R.I. The learned counsel for the appellant before me contends that the evidence does not disclose an offence under S.304 IPC., as the ingredients contemplated under that section are absent in this case. 2. The injury noted on the body of the deceased is given by the doctor in the post-mortem certificate. There is only one injury which is a rupture of the small intestine 2.5 x 0.5 c.m., at the anti-mesenteric border 160 c. m., away from the duodeno jejunal junction. Margins of the rupture were irregular and contused. The other findings recorded by the doctor are that the coils, of small intestine were adherent with white flaky material. The omentum and the small intestine showed severe congestion. The abdominal cavity contained 150 m.1. of brownish turbid fluid. Stomach weighed 520 gms., and contained partly digested rice and vegetables without any characteristic smell and the mucosa was normal. All other internal organs were normal. It is contended by the learned counsel for the appellant that the absence of external injury would indicate that the internal injury noted by the doctor need not necessarily be as a consequence of the stone hitting that portion of the body. Even without any external pressure some times for other reasons rupture of the small intestines is possible. The learned Sessions Judge has found that the stone was neither heavy nor big. It is contended that the stone in this case is not a dangerous one. Even without any external pressure some times for other reasons rupture of the small intestines is possible. The learned Sessions Judge has found that the stone was neither heavy nor big. It is contended that the stone in this case is not a dangerous one. It is argued before me that the evidence in this case given by pws.1 to 4 are interested in the deceased and are partisan witnesses. Their evidence cannot be accepted without caution. The death occurred due to the supervening circumstances of the deceased wandering about and not heeding to the advice of the doctor. Thus it is contended that the offence cannot come within S.304 IPC. 3. The point for consideration, therefore, is what exactly is the offence made out. By the mere throw of a stone, the accused cannot be imputed with any knowledge that it would cause death. It is not the case of the prosecution that he either intended or knew that his act would result in death. The learned Sessions judge opines that when the stone was thrown at the deceased, the accused must be deemed to have acted with knowledge that it is likely to cause death. I do not think that the evidence in this case gives any clear indication about such a finding. It can be that way; but it can also be that the accused without the knowledge or intention of causing death had thrown the stone at the deceased which hit him on the abdomen voluntarily causing him hurt. 4. The learned counsel for the appellant argues that at best, it can be said that only an offence under S.323 IPC., is made out in this case in so far as by throwing the stone at the deceased, no ingredients under S.304 are made out. In support of this contention, the learned counsel for the appellant brought to my notice decisions reported in Ramakrishna Panicker v. State of Kerala (AIR. 1959 Kerala 372) and Dayal v. Union of India (AIR. 1963 Himachal Pradesh 18). In all these cases, it was held that if the evidence let in by the prosecution does not satisfactorily prove that the accused intended to cause death or knew that his act would ultimately cause death, be cannot be convicted under S, 304 (ii) IPC. In these cases, the accused was convicted under S.323 and sentenced accordingly for that offence. In all these cases, it was held that if the evidence let in by the prosecution does not satisfactorily prove that the accused intended to cause death or knew that his act would ultimately cause death, be cannot be convicted under S, 304 (ii) IPC. In these cases, the accused was convicted under S.323 and sentenced accordingly for that offence. The learned counsel brought to my notice an unreported case of the Supreme Court in the Current Judgments series, 1969 August, at page 936. The name of the case is Jani Gulab Shiakh v. Stale of Maharashtra. In this case, the accused pushed the deceased who was passing by the station road and the deceased fell down on the road with his skull coming into contact with the ground with a little fores. The High Court in that case convicted the accused under S.304 (ii). Their Lordships of the Supreme Court extracted the relevant portion of the judgment from the High Court. It is as follows: "We are of the opinion that the accused must be deemed to know that as a result of such forcible push death could have been the likely result. The accused must be deemed to know that the deceased was likely to fall on the cement concrete road and that the force which he was actually using was likely to result in fatal injuries to the deceased. Therefore, though the accused did not intend to cause the death of the deceased and did not intend to cause him injuries sufficient in the ordinary course of nature to cause his death and did not intend to cause him injuries which were likely to cause death, at any rate, he must be posted with the knowledge that death was likely to result in the circumstances in which the injuries were caused by him to the deceased." Their Lordships of the Supreme Court while commenting upon this portion of the judgment, observed as follows; "We are unable to agree with the High Court that the accused must be posted with the knowledge that death was likely to result in the circumstances the injuries were caused by him to the deceased. It is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured." In the result, Their Lordships altered the conviction from S.304 (ii) into one under S.323 IPC. It is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured." In the result, Their Lordships altered the conviction from S.304 (ii) into one under S.323 IPC. I feel that the case on hand is similar to the one which Their Lordships of the Supreme Court had to decide. It cannot be assumed as a matter of course that normally when a person throws a stone at another, he should have the necessary knowledge that such an act would cause in the normal course of conduct death of the person aimed against. As I stated above, the stone itself, as found by the learned Sessions Judge, is neither heavy nor being. It is very rarely that if a small stone is thrown at another man, his stomach will be ruptured and death ensues as a consequence. Even if the intestines are ruptured death is not the necessary consequence. I, therefore, hold that an offence under S.304 (ii) IPC., is not made out. From the peculiar circumstances of this case, I am of opinion that the accused could be found to have committed only an offence coming under S.323 IPC. I, therefore, convict the accused under S.323 IPC. and sentence him to R. I. for six months. In the result, the Criminal Appeal is allowed to the extent indicated above and the conviction and sentence under S.304 (ii) IPC., entered by the learned Sessions Judge are set aside.