- (1.) THE appeal is by Heerji against his conviction under sec. 302 of the Indian Penai Code, by the Additional Sessions Judge of Bans-wara, and the reference is by the Judge for confirmation of the sentence of death passed on the appellant.
(2.) THE case for the prosecution was briefly this. Galba, a boy of about 8 years, was playing with another boy, namely, Kalia in the chowk of the latter's house. A little girl was also there at the time though her name has not come on the record. THE appellant Heerji is the brother of Kalia's father Bhimji. THE time of the incident was about 4 P. M. and the date was 16th of May 1951. While these children were in the chowk, the appellant came there and brought a dantra (sickle) from inside the house. THEreafter he attacked the deceased boy Galba and caused him two injuries on the abdomen with the result that his spleen was cut and the intestines came out. Kalia immediately raised an alarm shouting that the boy had been killed. This brought Rama on the scene. Rama says that he saw the appellant giving two or three blows to the deceased with the sickle. Rama rushed up and caught hold of the appellant. In the meantime another man Magna also arrived and found that Rama was holding the appellant who had the blood stained sickle in his hand. Magna snatched the sickle from the hand of the appellant. THEn other people including father of the deceased boy came on the scene and the appellant was secured. This village Ganoda is in the Police Circle Khamera, but Khamera is about 16 miles from Ganoda, while Police Station Loharia is only a mile away. THEre is also an Ayurvedic dispensary at Loharia. So the father of the deceased and others decided to take the boy, who was not quite dead at the time, to this dispensary. After the boy had reached the dispensary, his uncle Heera went to Police Station Loharia and made a report to the effct that the boy had been attacked by the appellant with a sickle and had been brought to the hospital where he was lying in a precarious condition. Assistant Sub-Inspector Dost Mohammed immediately went to the Dispensary and saw the boy. It is said that the boy was in his senses at the time and his dying declaration was recorded by the Assistant Sub-Inspector in the presence of Vishwa Nath Vaidhyaraj who is incharge of the dispensary. THE boy died shortly thereafter. Next day, the Police took the appellant into custody from his village. It appears that the appellant was willing to make a confession and, therefore, he was forwarded to a Magistrate with the request that this confession may be recorded. The appellant was presented before Sri S. C. Pancholi, Extra Magistrate of Banswara, on the 19th of May. The Magistrate kept the appellant in his court-room for two hours in order that any influence of the Police that might be on the mind of the appellant might be removed. Thereafter,he recorded the appellant's confession after satisfying himself that the appellant was making it voluntarily. The appellant was duly warned that he was not bound to make a confession and that if he did so, it would be given in evidence tagainst him. He was also asked whether he had been induced or threatened by any one to make a confession, and after the Magistrate had satisfied himself by questioning the appellant, he recorded the confession. In this confession, the appellant said that that Manji's son Galba was playing in the chowk of his brother Bhimji. Manji had beaten the appellant's son some time before. Sunset and, therefore, the appellant got enraged and thrust the dantra into the stomach of Galba due to which Galba died. Thereafter, the appellant was sent for trial. On examination, in the committing Magistrate's court, the appellant did not retract the confession which he had made. On the other hand, he said that he was mad and might have killed the boy in madness. He went on further to say that when he heard that Manji had killed his son, he also killed Manji's son Galba with a dantra in the chowk of Bhimji. He also admitted his confession before the Extra Magistrate, and in the end said that mercy might be shown to him and he might be set at liberty after a fine of Rs, 100/-which he would pay. When the case came to the Sessions Court he did not say that the confession that he had made before the Magistrate or the statement that he had made in the committing Magistrate's Court was incorrect. What the appellant said was that he did not know whether the statement which he had made in the committing Magis-trate's Court was correct or not and whether the confession was correct or not. When questioned, whether he had killed Galba by striking him with a dantra. He said that he knew nothing about the occurrence though he admitted that the dantra was his. In the end, he said that he had been insane for the last two years. The evidence in this case consists of the statements of two eye witnesses, namely, Kalia and Rama, and of three others, namely, Magna, Manji and Heera, who arrived soon after the incident. Kalia is the boy with whom the deceased was playing and his evidence is quite clear and shows that the appellant came into the chowk, brought a dantra from the house, caught hold of Galba and struck him with the dantra a number of times with the result that the intestines came out. This boy raised the alarm which brought Rama and Manga on the scene, Rama being first to arrive. Rama corroborates the statement of Kalia and says that on hearing Kalia's cries, he came out of Panjia's house and saw the appellant striking Galba with a dantra twice or thrice. He then rushed up and caught hold of the appellant. In the meantime Manga arrived and snatched the sickle from the hand of the appellant. Manga says that when he arrived, Rama had caught the appellant and pressed him down on the grbund,and he snatched the dantra from the hand of the appellant. The other witnesses, namely, Manji and Heera arrived soon after when Manga had already snatched the dantra from the hand of the appellant. We have gone through the evidence of these witnesses and see no reason to disbelieve them. Nothing has been brought out in their cross-examination to throw any doubt on their testimony. Learned counsel for the appellant urges that there is a discrepancy between the evidence of Kalia and that of Rama on one point. Kalia states in his cross-examination that Rama arrived after the appellant had struck Galba with the dantra and that no blow was struck after the arrival of Rama. Rama, on the other hand, says that he saw two or three blows being given to the deceased. The post mortem report shows that the deceased had two serious injuries on the abdomen, while there were five multiple incised wounds on the back and left arm which were not serious. According to the doctor, these injuries need not necessarily have been caused by the dantra. But it may be that the appellant gave a few other blows with the dantra after the deceased had got the two serious injuries These injuries are also incised wounds which could have been inflicted by a weapon like dantra. All that Kalia says is that no dantra blow was struck after Rama had arrived on the scene. Now, Rama's evidence is that soon after he arrived on the scene, he caught hold of the appellant and thereafter the appellant could not naturally cause any further injuries to the deceased. But it is possible that while coming into the chowk, Rama might have seen the appellant striking blows on the deceased from some distance. We do not, therefore, see any contradiction between the evidence of Kalia and that of Rama in this matter. Another discrepancy, which has been brought to our notice is that some of the witnesses have said that the deceased said nothing at the spot, while Manji, the father of the boy, has said that the boy on seeing him said that Heerji had beaten him. We do not attach any importance to this discrepancy as the boy may have faintly said something to his father which the others may not have heard. We are, therefore, satisfied that the evidence of these witnesses is true and it proves clearly that the injuries, which have been found on the body of Galba deceased, were caused by the appellant. This conclusion is enforced by two other pieces of evidence. The first of these is the dying declaration made by the deceased in the dispensary at Loharia before the Assistant Sub-Inspector and Vishwanath Vaidhyaraj. This statement appears to have been made at about 7 P. M. soon after the report at Thana Loharia. Learned counsel urges that the deceased was not in a position to make any statement at all, and relies on the statement of Dr. Dongra who conducted the post mortem examination. Dr. Dongra's statement is that the deceased could have lived at the most for about an hour and might have spoken for a few minutes after receiving the injuries. We have the evidence of a number of witnesses who all say that the deceased died some time-about 7. 30 P. M. or so. There is no reason to disbelieve the evidence of these witnesses and this shows that Dr. Dongrn's estimate, that the deceased could not have lived for more than one hour, is just an estimate which turns out to be incorrect in this case. In the same way, his estimate, that he could not have spoken after a few minutes after receiving the injuries, may be incorrect, and the deceased might have been able to speak at about 7 P. M. . when his statement was recorded. In any case, we have no reason to hold that the Assistant Sub-Inspector and Vishwanath concoted the dying declaration of Galba. We, therefore, hold that the dying declaration was made by Galba and it goes to support the evidence of witnesses which we have already mentioned. The other piece of evidence is the confession made by the appellant himself. We have already set out that confession. We are satisfied that it was voluntarily made and is in the main true. It is in agreement with the evidence that has been given. The appellant did not retract it at the earliest opportunity, viz; in the committing Magistrate's court. On the other hand, he practically reiterated in that Court what he had said in the confession. Even in the Sessions Court he has not categorically retracted the confession, though he said that he did not know whether it was correct or not. He also tried to make out in the Sessions Court that he had been insane for about two years; but his own brother Bhimji, who has appeared as a defence witness said that appeal-lant was in a fit state of health. He was obviously not prepared to support the theory that the appellant was in any way of unsound mind. We are, therefore, satisfied that the appellant was not of unsound mind and that he made a voluntary and true confession before the Extra Magistrate to which he stuck in the committing Magistrate's court. This evidence also therefore, supports the evidence of witnesses and leaves no doubt whatsoever that it was the accused who caused the injuries which resulted in the death of Galba. The only question that remains then is what offence has been made out on these facts. Learned counsel urges that the appellant should have been properly convicted under sec. 326 or sec. 304 of the Indian Penal Code, and relied on two cases in support of his argument, namely Hazrat Gul Khan vs. Emperor (A. I. R. 1928 Calcutta 430), and Gulam Hyder Imam Baksh vs. Emperor (A. I. R. 1938 Sindh 63 ). In the Calcutta case, the deceased had been killed by the accused plunging a knife into his stomach. The case came before two judges, one of whom, Cuming, J. , was of the view that the accused had been rightly convicted under sec. 302 I. P. C. The other learned Judge, Mukerji, J. hwo-ever,held that the case only came under sec. 326. The view taken by Mukerji, J. was coloured by the fact that there was only one blow inflicted in that case and the knife with which the blow was said to have been inflicted had not been found and its dimensions were not known. Mukerji, J. therefore, preferred to follow what he called the safer course of taking the facts as they were, and convicted the prisoner under sec. 326 I. P. C. Cuming, J. however, in our opinion rightly pointed out that the case was covered by the second clause of sec. 300, and we may with respect say that this is the correct view. The facts of the Sindh case are that the accused had struck the deceased with a hatchet on the head with the result that the deceased died. The case of the accused was that he struck in self-defence but this was not believed. The medical offecer was of the opinion that the injury from which the deceased died was sufficient in the ordinary course of nature to cause death. The learned Judges, however, convicted the accused under sec. 304, part 2, I. P. C. on the ground that only one blow had been struck suddenly in circumstances which were in doubt. They, however, no where considered the statement of the medical officer that the injury from which the deceased had died was sufficient in the ordinary course of nature to cause death. It seems that their attention was directed throughout to the first or second clause of sec. 300, and they seem to have omitted the third clause under which the case clearly fell according to medical testimony.
(3.) IN the present case, medical evidence shows that the deceased had two injuries on the abdomen, both caused by a sharp weapon like dantra. One of the injuries was 3"x 1" cavity deep on the right side of the abdomen through which abdominal viscera, namely, omentum and gut, had protruded. The second injury was 4"x 1" cavity deep cutting 10th and 11th ribs and portion of the spleen was also protruded. These injuries were caused to a boy of about 8 years. We are of opinion that considering the nature of the injuries and the instrument used, the case is clearly covered both by the second clause and the fourth clause of sec. 300 I. P. C. IN a case of this kind, we must presume that the accused intended to cause such bodily injury which he knew was likely to cause death of that boy when be gave such serious injuries on the abdomen with a dantra. IN the alternative, considering that the deceased was a child of 8, and such serious injuries were being caused to him by a dantra, the case would be covered by the fourth clause because the appellant must be deemed to have knowledge that his act was so imminently dangerous that it must, in all probability, cause, death of that little boy, or such bodily injury as was likely to cause death. He obviously committed the act without any excuse, and caused such injuries as aforesaid. We, therefore, hold that the appellant has been rightly convicted under sec 302 of the INdian Penal Code. The last point which we have to consider is about the sentence. Learned counsel urges that the prosecution has failed to prove any motive for the attack and, therefore, in any case we should impose the lesser penalty upon the appellant. There is no doubt that the evidence for the prosecution on this point is not quite consistent. The deceased's father and uncle say that they and the appellant were not on dining terms because of some dispute about caste affairs. Some other witnesses say, however, that there was no dispute with respect to caste affairs. Some other witnesses say, however, that there was no dispute with respect to caste matters. In any case,even if there was some dispute with respect to caste matters, it does not appear to have been of a serious nature and could hardly be considered as providing a motive for such an attack. But where as in this case the evidence is clear and undoubted, the absence of motive will make no difference. We have to see the nature of the act in order to decide what punishment should be given to the appellant. The facts show that the boy was just playing with another boy and the appellant came up there and brought a dantra from the house and just killed him. The boy had done nothing whatsoever to cause any annoyance to him. The manner of killing was also, in our opinion, brutal and we find no extenuating circumstances whatsoever in this case. There is, therefore, no reason to give the lesser penalty to the appellant. Learned counsel relied on two cases in this connection : Kesava Chettiar vs. Emperor (A. I R. 1931 Madras 420) and Emperor vs. Samat Kala (A. I. R. 1934 Bom. 156 ). In the Madras case, however, the instrument used was a heavy lathi and, in our opinion, different considerations arise where a lathi is used. In the Bombay case, a quarrel had already been going on between two persons, when a third person intervened and was struck with a sharp instrument. The incident look place during the Holi festival and the learned Judges were of the view that in view of the excitement that was prevailing, the extreme penalty was not called for. This excitement was considered to be an extenuating circumstance in that case; but we have already pointed out that there is no extenuating circumstance whatsoever in the case before us. We, therefore, dismiss the appeal, and confirm the sentence of death passed upon the appellant, and order that the sentence be carried out according to law. The reference is hereby accepted. .;