HEERJI Vs. STATE

JUDGEMENT

(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.

(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.