1. In this case in spite of the argument, to the contrary, we are satisfied that accused No. 2 did cause injury to the baby, which resulted in its death. There is clear evidence in the case that accused No. 2 dealt the blow and there is no reason to distrust the evidence which has been believed by the trial Judge and the assessors. The question, however, as to what offence has been committed by the appellant is one of some difficulty. The learned Sessions Judge was of opinion that it was not likely that the blow would have caused the death of an adult, but it might well have caused grievous hurt. On that basis, he found that the accused No. 2 was guilty of causing grievous hurt. The circumstances under which this blow came to be inflicted are briefly these. The woman with the child in her hand intervened apparently unexpectedly in the course of a scuffle between accused No. 2 and his party on the one hand and her husband and his brother on the other hand. It was about the middle of a dark night that this took place and the blow which was aimed by accused No. 2 at the husband of the woman whom he intended to attack fell unknowingly on the child. It is clear that the accused No. 2 had the intention of thereby causing hurt to a person, and therefore he would be guilty of causing simple hurt. The learned Judge has expressed his opinion, and I agree with him, that the blow could not have caused the death of an adult and such a blow could not be treated as evidencing any intention on the part of the accused to cause the death of the person against whom he aimed it. There is equal difficulty, in my opinion, in treating this as a case of grievous hurt. It is difficult under the circumstances of the case to hold that the accused intended to cause or knew himself to be likely to cause grievous hurt. There is no doubt that he had a stick in his hand. But we do not know anything about the size and nature of the stick. It is not established on the evidence that the stick with the iron rings produced in the case was the stick used on the occasion. Taking it to be an ordinary stick which the accused No. 2 used at the time, there is a reasonable doubt in my mind as to whether under the circumstances he could be said to have intended to cause or to have known himself to be likely to cause grievous hurt. He did not know that he was hitting a baby and the nature of the blow taken with reference to the person against whom it was aimed cannot be taken to indicate the necessary intention or knowledge as to causing grievous hurt. The conviction under Section 325 does not appear to me to be justified. . The proper conviction under the circumstances would be under Section 323 of the Indian Penal Code.
2. I would according]y alter the conviction to one under Section 323 of the Indian Penal Code and reduce the sentence to rigorous imprisonment for one year.
3. I concur. The accused has not, in my opinion, been proved to have intended to cause or to have known that he was likely to cause grievous hurt. It is true that he went armed with a stick with others to assault his enemies in the middle of the night. But it has not been proved what was the nature of the stick which he took and it cannot be presumed that it was a dangerous weapon in default of any evidence of serious injuries having been given to the men whom he went to assault. The only injury apparently was the injury to the child and that on the evidence was accidental. It was no doubt in the result grievous, but he could not properly be held in the circumstances guilty of voluntarily having caused that grievous hurt. He would, therefore, be liable to conviction under Section 323 and not under Section 325 of the Indian Penal Code.