The main legal point established in the judgment is the consideration of the circumstances and the absence of premeditation in determining the appropriate section of the IPC applicable to the offence.

K. N. Phaneendra, J.

The appellant/accused has called in question the judgment of conviction and order of sentence passed by the 5th Fast Track Court at Madhugiri, in S.C. No.21/2012 dated 03.04.2013 in convicting the appellant/accused for the offence punishable under section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence of Rigorous Imprisonment for two years.

2. We have heard the arguments of Sri. Somashekar Harvi and Sri. M. Shashidhar, the learned counsels for the appellant/accused and also the learned Addl. SPP for the respondent-State.

3. Learned counsel for the appellant has submitted two fold arguments before the court. He contended that, the prosecution itself has not proved the case against the accused beyond reasonable doubt so as to attract the provision of Section 302 of IPC. The trial Court has relied upon the evidence of the sole eyewitness to the incident to draw an inference against the accused to convict and sentence him for the offence punishable under section 302 of IPC. When the evidence of the so-called sole eyewitness (PW.6) is only available, the court has to meticulously examine the evidence of that witness with the supported surrounding circumstances so as to come to such a conclusion to convict the accused, but that has not been done by the trial Court. Therefore, no other materials are available except the said eyewitness's version and also recovery of a stone which was stated to have been used to assault the deceased, at the instance of the accused. Therefore, the learned counsel contended that, the accused is entitled for acquittal.

4. Alternatively, the learned counsel for the appellant/accused has argued before the court that, on considering the whole circumstances of the case and also even accepting the eyewitness's version, it would clearly show that there was no premeditation by the accused in order to cause the death of the deceased and it was due to sudden quarrel at the spot and as a result of such an unexpected and instantaneous quarrel, the accused has committed such an offence, and therefore, the offence would not fall under Section 302 of IPC, but the offence may fall under Section 304 of IPC. He has also submitted that, the deceased was no other than the brother of the accused, therefore, considering the close relationship between the parties that, a lenient view may be taken. He further submitted that, the accused has already been in jail for more than seven years and hence, the extent of the period of imprisonment already undergone by him may be treated as the punishment to him. On these submissions, the learned counsel has pleaded that, an appropriate judgment may be passed.

5. The learned Addl. SPP submitted that, there is a strong evidence of the eyewitness (PW.6), who is no other than the son of the accused. He has deposed before the court that, the accused has mercilessly assaulted his brother, deceased Nagaraju and caused his death. Therefore, no leniency should be shown to the appellant/accused and therefore, there is no room to interfere with the judgment of conviction and sentence passed by the trial Court.

6. In the wake of the above said submissions, we have carefully examined the evidence adduced by the prosecution against the accused and also the judgment of the trial Court.

7. On careful perusal and re-evaluation of the evidence on record, it is seen that, -

7.1 PW.1-Hanumantharayappa is the father-in-law of the accused, who lodged a report as per Ex.P1 and identified MO.1 (Stone) and of course, he is a hearsay witness sofar as the incident is concerned. He received information from PW.6. He also identified the clothes of the deceased under Ex.P3 (Seizure Mahazar).

7.2 PW.2 -Thimmaraju is the resident of the same village, where the deceased was residing. But, no incriminating material is available in the evidence of PW.2 except he gone to the spot and saw the dead body.

7.3 PW.3-Subbarayappa is the re