Wanchoo, C. J. - (1.) THIS appeal is by Narain Singh who has been convicted by the Civil and Additional Sessions Judge, Dholpur of an offence under sec. 302 of the Indian Penal Code and sentenced to death. The Judge has also made a reference to this court for confirmation of the sentence of death. We propose to dispose of the appeal as well as the reference together.
(2.) THE case relates to the death of Gian Singh which took place in the jungle of Sikri at about mid-day on the 26th of March, 1949. THE prosecution story as disclosed in the court was this. THE deceased Gian Singh contracted illicit intimacy with Mst. Burfi. THE accused Narain Singh also had illicit relations with this woman some 15 years ago. He was then convicted and sentenced to 14 years rigorous imprisonment in connection with another murder. He was released from jail a year or so before the present incident took place on the 24th March, 1949. Soon after his release from jail he began to re-visit Mst. Burfi. THEreupon Gian Singh objected to these visits and the two quarrelled a number of times on that account. THE prosecution case, further, is that on the 24th March, 1949 Gian Singh was grazing cattle in the jungle of Sikri at about mid-day. THE appellant went with a lathi and hit him on the head. Gian Singh raised an alarm which brought three boys to the scene. THEse three boys in their turn shouted with the result that Chetta and others also arrived on the scene. By this time, however, Gian Singh had fallen down injured and Narain Singh was running away. This in brief is the prosecution story. The appellant pleaded not guilty. He did not admit that he had any illicit intimacy with Mst. Burfi but admitted that he used to visit her. He denied, however, that Gian Singh had ever interfered with his visits to Mst. Burfi. He alleged his implication in this case on account of enmity. The reason for this enmity was that one Rajai the brother of Mst. Burfi's husband had given him a field. He had been cultivating the field and was sentenced to imprisonment in the murder case to which we have already referred. On return from jail he wanted to take possession of the field again but Rajai would not allow him to do so. Consequently there was bad blood between him and Rajai and these people used the death of Gian Singh to manufacture a false case against him. The accused also alleged illicit intimacy between Gian Singh and Mst. Burfi and said that her husband and others, who had murdered Gian Singh had got him falsely implicated because of the trouble over the field. He produced a number of defence witnesses who said that he had been working in a field some two miles away when the alleged murder of Gian Singh took place. It is enough to say that the evidence of these witnesses is not of any value and we shall not refer to it again. The prosecution rests on the evidence of four eye witnesses and two other persons who gave circumstantial evidence, the eye witnesses being Lakhan Lal a boy of 10 years, Rup Singh a boy of 9 years, Buddha a boy of 15 years and Chetta an old man. These boys were also grazing cattle when they heard the shout of Gian Singh and ran to see what had happened. They saw Gian Singh being beaten with lathies. The learned counsel for the appellant has urged that we should not place any reliance on the evidence of these boys because the learned Judge has not tested their competency to give evidence before recording their statements. He relied on Dhanna and another vs. The State (A. I. R. 1951 Rajasthan Page 37 ( (a) 1950 Rajasthan Law Weekly 357) In that case it was held that it was the duty of the court to test competency of a child witness under sec. 118 of the Evidence Act before examining him. This was said with respect to a boy of 12 years. Lakhan Lal and Rup Singh are very young children and the trial court should have satisfied itself before recording their statements, that they understood what was meant by truth and also whether they were intelligent to answer questions and remember what had taken place some months before. We would, therefore, put no reliance on the statements of these two young children. But Buddha is a young boy of 15 years and his case raises no such difficulty. We see no reason to disbelieve his statement to the effect that he was grazing cattle near-by when he heard a shout raised by Gian Singh, he ran up and saw him being beaten by Narain Singh. The only point in his cross-examination which is difficult to reconcile with his examination-in-chief relates to the exact place from where Chetta saw the incident. In his examination-in-chief he said that Chetta came and stood on the bank of the river at a distance of 50 paces or so. But in his cross-examination somehow he said that Chetta was also standing at the same place as himself and the other two boys. It seems to us that his statement in cross-examination was a mistake due to some confusion; otherwise his evidence appears to us to be straight forward and we have no hesitation in accepting it as true. The next witness is Chetta. He was at a distance of two fields when he heard the cry of the boys and ran up to see Narain Singh hitting Gian Singh. The post-mortem report shows, that Gian Singh had only three injuries. Chetta in his evidence at one place says that he only saw the deceased ,being hit when he was, lying on the ground. It does not appear, however, from the evidence of Buddha, that the deceased was hit after he fell down. So it seems to us that Chetta has tried to say more than what he actually saw. He must have run up on hearing, the shouts of the boys and seen the accused gunning away and we are prepared, to accept his statement to this extent only. Then there is the evidence of two other witnesses Raja Ram and Devi Singh; these people also arrived on hearing the shouts ,of the boys and saw the appellant running away. They were told then and there that Narain Singh had attacked Gian Singh. In the case of these witnesses also, there, is no. reason for disbelieving what they have said. We are, therefore, satisfied from the statements of these four witnesses that it was the appellant who caused these injuries to the deceased. He had a reason for doing so, namely the quarrel between him and Gian Singh over Mst. Burfi. Hakim Singh in his report now did not disclose the reason for the attack. It seems to us that he probably wanted to hide the fact that his cousin Gian Singh was of bad character. There is, however, ample evidence on the record of the other witness whom we have no reasons to disbelieve, to prove that there was illicit intimacy between Narain Singh and Mst. Burfi and there used to be quarrels between Narain Singh and Gian Singh. We now turn to the question whether an offence under sec. 302 of the Indian Penal Code has been made ,out on these facts. There is no doubt evidence that there used to be quarrels between the accused and the deceasedabout this woman. But there is no evidence of any threat having been uttered by the accused to Gian Singh. The weapon used in this case was a lathi and only three blows were inflicted on the deceased including two on the head. From these facts alone we cannot necessarily infer that the, intention of the accused was to murder the deceased. These facts are also consistent with the inference that his intention might have only been to give a beating to Gian Singh so that he might not interfere with his visits to Mst. Burfi. The case is not, therefore, covered by the first clause of Sec. 300 namely that the death was caused with the intention of causing death. Nor can the case be covered by the second clause of sec. 300 because at cannot be said that the intention was to cause such bodily injury as the accused knew to be likely to cause the death of Gian Singh. It is common knowledge that many a time blows are given on the head and the person injured does not die. Nor can it be said that the case is covered by the third clause of sec. 300 as the mere infliction of an injury on the head with a lathi is not necessarily sufficient in the ordinary course of nature to cause death. The fourth clause is also not applicable because the act which was done in this case cannot said to be so imminently dangerous that it must, in all probability, cause death or such bodily, injury as was likely to cause death. Under, these circumstances, we are of opinion, that the appellant should properly have been convicted under sec. 304 of the Indian Penal Code as the death was caused by an act with the knowledge that the appellant was likely by such act to cause death. We, therefore, partially allow the appeal and set aside the appellant's conviction under sec. 302 of the Indian Penal Code and convict him instead under sec. 304 of the same Code. The sentence of death passed on the appellant, is set aside and instead he is sentenced to seven years' rigorous , imprisonment. The reference is under the circumstances rejected. . ;