1. This is an appeal by the Public Prosecutor against the judgment of the. Court of Session, Khainmam, in Sessions Case No. 12 of 1963,
2. The respondent herein, who was the sole accused in the case, was tried by the said Court of Session on the charge that at about cock-crowing time on 5-7-1963 he committed the-murder of one Samini, a Lambadi child of about, 4 years of age by throwing on her head a stone weighing 27 Kgs. The learned Sessions Judge, while finding that the prosecution established beyond doubt that the accused caused the death-of the girl by throwing a stone on the head of the girl as charged, convicted the respondent oft an offence under Section 304, Part II, I.P.C. and sentenced him to rigorous imprisonment for-three years. This appeal has been preferred by,-the Public Prosecutor on the ground that the learned Sessions Judge has completely ignored the provisions of Section 301, 1. P. C. and that the acquittal of the respondent of an offence under Section 302, I.P.C. is contrary to law.
3. The facts of the case are these : The accused is a Lambada of Pangidi village in Khammam, District. P.W. 1, the father of the deceased girl, Lingayya,' is the accused's father's brother' P.W. l was living with his wife, P.W. 2 and two young sons and the deceased girl aged about, 4 years. His hut had BO doors.
4. There were ill-feelings between the accused, his brother and his father on the one side and P. W. 1 on the other about the sharing of some land. P.W. 1 had taken a loan of 4 1/2 'thumoos' of Jawar from his brother in March 1963, agreeing to return the grain with interest and for that reason P.W. 1's brother did not give him a share in the land. About a month prior to the occurrence, the accused and his brother beat P.W. 1 and caused him injuries and he was treated in the hospital for about 20 days. It is said that P.W. 8 of Paugidi came to know that the accused and his brother beat P.W. l and four days later asked the accused why they beat P.W. 1. The accused then said that some time or other they would kill P.W. land P.W. 8 informed P.W. 1 of what the accused had said.
5. It is on account of these ill-feelings towards P.W. 1 that the accused is said to have intended to kill P.W. 1 on the night of occurrence hat that by mistake he threw the stone meant for P.W. 1 on the head of the girl who was sleeping by the side of her mother at the entrance.
6. On the night of occurrence P.W. l and his wife P.W 2, were sleeping in their hut. It may be recalled that the hut had no doors. P.W. 1 and his two sons were sleeping on a cot. His wife, P.W. 2, was sleeping on the floor near the door. They had covered themselves. At about cock-crowing time P.W. 1 was awakened by a noise of something fallen inside the house. At the same time he heard the shriek of the deceased. P.W. 1 and his wife got up. They saw a man running out of the house. P.W. l chased. The Talari P.W. 4, was returning after answering calls of nature and the accused was running opposite to him. Seeing P.W. 4, the man who was running slowed down. Meanwhile P.W. l caught hold of him. P.W. 4 also caught him. It was the accused, Then they brought him to the hut of P.W. 1. The deceased girl was lying dead, with her head Weeding. The stone, M.O.1 was lying by her aside. Meanwhile a neighbour P.W. 5 came on the scene. The accused was questioned and he stated in the presence of P.Ws. 1, 2, 4 and 5 that he had committed a mistake by throwing the stone on the deceased girl. The Talari, P.W. 4 detained the accused in his custody while P.W. l went to report to the Police Patel P.W. 3.
7. P.W. 8 arrived at the scene of occurrence on the information of P.W. 1 at about 6 or 7 a.m. He saw the girl dead and the stone, M.O. 1, lying by her side. He wrote a report embodying the information given by P.W. l Ex. P. 2, and sent the same to the Police.
8. The report was received at the Ehammam Rural Police Station at 3 P.M. It may be stated here that Pangidi is 17 tnilea from Khammam. P.W. 15 the Head Constable in charge, registered Crime No. 76, of 1963 under Section 302,1. P. 0. and prepared the F. I. Ba. (By. P. 11 being a copy thereof) and despatched them to the concerned authorities. Then he proceeded to the scene of occurrence. Meanwhile the Sub-Inspector of Police, Thallapad arrived at about 11 P.M. on 5-7-1963. He said that he had received information of this crime at about 5.30 P.M. while he was attending the Court at Khammam, that by 6 P.M. he started from Khammam, that there was heavy rain and so he was held up on the day. The next morning i.e., on 6-7-1963 he held an inquest over the dead body from 7 a.m. to 10 a.m. He seized the blood-stained clothes of the deceased, the Wood-stained earth and the stone M.O. 1 at the inquest. Then he despatched the body for post-mortem examination.
9. The Circle Inspector of Police, Khammim, took over further investigation and examination of the material witnesses. He examined the scene of occurrence and particularly noticed that the hat of P. W. 1 had no doors.
10. The post-mortem over the body of the deceased was conducted by the : Medical Officer, Khammam (P. W. 9) commencing at 7.30 a.m. on 7,7.1963. He has spoken to the following injuries found on the body of the deceased.
(1) A lacerated injury over the right parietal eminence about 1 1/2' x 3/4' x 1/2' with edges irregular.
(2) A bruise over the right temporal region behind the right ear, bluish in colour, when out showed eochymosis.
(3) Swelling over the left temporal region, bluish discolouration, when out. showed eochymosis.
The injuries were ante mortem. Internally there were extensive fractures of the skull and sub-dural haemorrhage Death had resulted due to multiple fractures of the skull, sub-dural haemorrhage and injury to the vital structures and shook. The stone, M. O. 1, could hare caused all the injuries. Ex. P. 4 is the post-mortem certificate that he issued.
11. The Circle Inspector of Police, P. W. 17, arrested the accused on 6.7-1963. After-completing the investigation, a charge sheet was filed against the accused on 22-7.1963.
12. Accused denied the circumstances appearing in evidence against him and also that he confessed to having thrown the stone on the deceased girl. He stated in the committal Court that the Talari, P. W. 4, had deposed against him because he did not pay him the yearly 'Mamool,'
13. The medical evidence is conclusive that the girl had died on account of the stone hit. M. O. 1 is a massive stone of granite weighing 27 Kgs (1 1/2 maunds). A hit with that stone had obviously resulted in extensive fractures of the skull and damage to the brain.
14. The evidence implicating the accused consists of (1) motive, (2) facts constituting circumstantial evidence, (3) confession made to P. Ws. 1, 2, 4 and 5 at the scene of occurrence seeing the dead body of the child lying there and the atone nearby, and (4) accused's immediate conduct in submitting to custody without pro. test.
15. Under the head of motive for the occurrence, there is a large volume of evidence relating to the ill-feelings between P. W. 1 on the one side and the accused and his brother and their father on the other. P. W. 1 has stated that the accused's father gave him 4 bags of paddy as he had no grain to eat, that be bad to repay him 6 bags including interest, that the accused's father took away all the 6 bags from out of P. W. 1's share in the land, that he did not spare him any grain, that he complained to elders, that they decided that P. W. 1 should be given a abare which was given to him, that in that connection the accused and. his brother beat him, that that was about a month prior to the incident and that P. W. 1 was an in-patient in the hospital for about 20 days on account of injury. He also referred to Ex. P. 1 as the bond executed by him in favour of his brother towards the paddy loan which he took from him.
16. P. W. 4 has said that P. W. l and the accused had disputes.
17. P. W. 6 was the caste-elder among the Lambadis. He knew about the dispute between P. W. 1 and the accused. He claimed to have settled the dispute. His decision was that P. W. 1 should get a share in the land, but in spite of it they were quarrelling. The accused and his brother beat P. W. 1. He did not see the beating personally.
18. P. W. 7 is a Lambadi of Pangidi. He knew P. W. 1 and the accused. He witnessed the accused and his brother beating P. W. l with a cart peg. He interfered and separated thorn. They went away. His field was near the place where P. W. 1 was beaten.
19. P. W. 8 is also a resident of Pangidi, He deposed that he came to know that the accused and his brother beat P. W. 1. A few days there, after he asked the accused as to why they beat P.W.1. The accused is said to have retorted that some time or other they would kill P. W. 1. He told P. W. 1 about what the accused had said.
20. P. W. 10 is the Medical Officer who had, examined the injuries on P. W. 1, on a requisition (Ex. P. 5) issued by the sub-Inspector of Police, Khammam Rural (P. W. 13). The Medical Officer had deposed to the several injuries found on the person of P. W. 1. The wound certificate that he issued was Ex. P. 6. The injuries were 48 hours old when the Medical Officer saw them.
21. The accused denied all the facts appearing against him and said that all those facts were falsely stated against him. It is difficult to disbelieve the evidence of ill-feelings and that the accused, and his brother had beaten P. W. 1, which is borne out by independent evidence. It would appear from the evidence that ill-feelings were sufficiently strong in the mind of the accused which could furnish a motive to intend harm to P. W.1.
22. It is the prosecution case that on the night of occurrence, the accused intended to kill P. W. 1 but that by mistake he threw a stone on the head of the child and killed it instantaneously.
23. It will be seen presently from the other evidence that the accused confessed to having made a mistake in throwing the stone on the head of the child. We might therefore find that the motive part of the prosecution case is proved by credible evidence.
24. P. Ws. l, 2, 4 and 5 have deposed to circumstances. P. W. 1 was awakened at about cook-crow time by a noise as if something fell inside the house. At the same time he heard the deceased shriek. He and his wife got up. He saw a man running out of the house. He went out chasing. P. W. 4, the Talari was coming in the opposite direction. On seeing him, the man, who was running away, slowed down his pace. Then P. Ws. 1 and 4 caught hold of him. It was the accused. He was brought to the scene of occurrence and thereafter detained by the Talari, P. W. 4, at his house and was later arrested. This version is corroborated by P. Ws. 2, 4 and 5. P. W. 2 is the wife of P. W. 1. P. W. 4 is the Talari. P. W. 5 is a neighbour.
25. It is commented that P. Ws.1 and 2 are not independent witnesses. But it is undeniable that they are natural witnesses to an incident which had taken place in their hut, and nothing is elicited in their cross-examination to suspect their version of the night's incident.
26. The accused said that P. W. 4 was not well-disposed towards him because he did not give him mamool. That was not even suggested to P. W. 4. He had stated that before the committal court which seems to be an after-thought. We have to regard P. W. 4 as an independent witness.
27. There is nothing suggested against P. W. 5 to treat him as unworthy of credit.
28. The version of the night's incident was narrated by natural witnesses, P. Ws. 1 and 2 and is corroborated by the independent testimony of P. Ws. 4 and 5.
29. The evidence proves the circumstances that the man ran out of the house when the stone fell on the head of the deceased and the deceased shrieked, that the man was chased and caught and that he was the accused. The circumstances necessarily connect the man who was running away with the throwing of the stone on the head of the deceased. The circumstances therefore give rise to a necessary inference that the accused was directly connected with the throwing of the stone on the head of the deceased child.
30. Next there is the confession spoken to by P. Ws. 1, 2, 4 and 5. P. W. 1 said that when the accused was brought to the scene of occurrence, the dead body of the child was there with a massive stone by its side. The deceased had bled a lot from the head wound, On the accused being questioned, he said that he had committed a mistake by throwing the stone on the deceased. This confession was made in the presence of P. Ws. 1, 2, 4 and 5. P. Ws. 2 and 4 had also stated that the accused said that he had committed a mistake by throwing the stone on the deceased. P. W. 5, however, stated that the accused admitted his guilt.
31. The learned Counsel argued that P. W. 5's evidence of what the accused said was uncertain and so could not be acted upon. P. W. 5 has not deposed to the identical words as stated by P. Ws. 1, 2 and 4, but for that reason we cannot read any uncertainty into the statement made by the accused in their presence. It is not as if the accused made several statements before each of them. P. Ws. 1, 2, 4 and 5 were all present when the accused was questioned and the accused said that he had thrown the stone on the child's head by mistake. P. Ws. 1, 2 and 4 have clearly stated what the accused said at that time. P. W. 5, however, said that he admitted his guilt. The evidence of P. Ws. 1, 2, 4 and 5 has to be read together. When so read, as it has to be in the circumstances under which the accused was questioned and confessed, we do not 'see any uncertainty in the confession made by the accused.
32. From the evidence above referred to, the confession appears to have come from the accused spontaneously, when he saw the ghastly sight of the dead child and be realised the mistake. We may infer in the circumstances and the situation in which the accused was that the confession emanated from genuine feelings of penitence and was therefore voluntary. The confession is cryptic and the truth thereof has necessarily to be verified from the other evidence in the case, viz. the circumstances which implicate him which we have referred to, and the presence of the tell-tale objects at the scene of occurrence, viz. the massive stone and the child with its head smashed by the stone. From the motive part of the prosecution case which we have discussed heretofore, it is also manifest that the intended victim was P. W. 1 and that by mistake the child became the unfortunate victim. It would appear that it was partly due to the fact that at the time of the occurrence it was dark in the hut; and secondly that the inmates had covered themselves.
33. Apart from the voluntary nature of the confession, the truth whereof is verified, we have the guarantee of actual words stated by the accused constituting the confession.
34. The learned Counsel has contended that the extra-judicial confession was a development inasmuch as there is no reference thereto in the first information report, Ex. P. 2, made by the police Patel (P. W. 8). The learned Counsel argued that inasmuch as there was no mention of the confession in Ex. P. 2, the entire confession was got up later.
35. We have examined this aspect of the criticism carefully and we have come to the con. elusion that we cannot possibly accept this criticism.
36. Ex. P. 2 is the report of the Police Patel, which, according to him, he wrote on the strength of what P. W. 1 had stated. Taking it to be a report written on the information of P. W. 1, it would have been proper if P. W. 1 had been confronted with the omission. That has not been done. We cannot accept that P. Ws. 1, 2, 4 and 5, who spoke to this confession, could be discredited with reference to an omission in Ex. P. 2. We have regarded P. Ws. 4 and 5 as independent witnesses who had no ill-feelings towards the accused. They had therefore no reason to implicate the accused falsely. There was not even a suggestion that they were so disposed. We cannot therefore accept that the extra-judicial confession was an after thought.
37. As to the value of an extra-judicial confession, it is like any other piece of evidence. It has been observed by the Supreme Court in Mulk Raj v. State of Uttar Pradesh AIR 1959 S 0 902; at p. 905, that the confession (Extra judicial confession) will have to be proved just like any other fact and the value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witnesses to whom it is made.
38. For the reasons discussed by us, we have no reason to treat the extra-judicial confession as suspect. We are inclined to accept it as a spontaneous statement probably emanating from feelings of penitence at the sight of the dead child in a puddle of blood.
39. The accused denied that he had confessed. We cannot possibly accept his denials at the trial as against the credible evidence to the contrary.
40. The next piece of evidence implicating, the accused is his conduct. The accused was caught by P. Ws 1 and 4 and taken to the scene of occurrence and thereafter detained by the Talari (P. W. 4) at his house and was later arrested by the Investigating Officer. The accused said that it was not true that he was kept in the custody by the Talari till the Police arrived. P. W. 4 is the Talari whose evidence we have no reason to disbelieve. The accused was arrested by P. W. 17, the Circle Inspector of Police, who came on 6-7-1963, for investigation. It does cot appear that the accused had acted otherwise than submitting himself to the detention and arrest. This conduct read with other evidence in the case shows very much the conduct of a guilty man.
41. From the evidence discussed supra, we consider that it is proved that the accused threw a huge atone (M. O. 1) on the head of the deceased child mistaking the child for P. W. 1. This is also the finding of the learned Sessions Judge.
42. The learned Public Prosecutor has contended that having accepted these facts as proved, the learned Sessions Judge erred in finding that a lesser offence was committed. The main ground taken in the appeal is that the learned Sessions Judge ignored the provisions of Section 301, I.P.C. Section 301,1. P. C. states as follows:
If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the oftener is of the description of which it would have been it he had caused the death of the person whose death he intended or knew himself to be likely to cause.
The words of the section are clear and present no ambiguity. The section enacts the principle that the man shall be punished for the offence committed in the same manner as he intended it or knew himself to be likely to commit. The well-known commentator ' Gour' in his Penal Law of India, Vol. II, 7th Edition, 1962, page 1452, explained the application of the section thus:
Liability for homicide by mistake - A person killing a wrong person by mistake is, as regards his criminality, in the same position as if be bed killed the person he intended to kill. His offence would then be judged on that assumption. So that if A, intending to murder B striken at and misses him bat kills C, it will be murder in A, though he may never have intended to kill C, who may be his friend.
To the same effect states the commentator of the Law of Crimes, Katanlal, in the 20th Edition, 1961, at page 768:
Where a mistake is made in respect of the person, as where the offender shoots at A supposing that he is shooting at B, it is clear that the difference of person can make none in the offence or its consequences;...
'Similarly, there will be no difference where the injury intended for one falls on another by accident. If A makes a thrust at B, meaning to kill, and C throwing himself between, receive the thrust and die, A will answer for it as if his mortal purpose had taken place on B
We agree that the application of the section has been lucidly brought out by the commentators. Further discussion on this topic seems to be unnecessary. It is sufficient if we refer Emperor v. M. Suryanarayana Murthy (1912) 26 Mad L J 333, the leading case on the application of this session which was brought to our attention by the learned Public Prosecutor. The views expressed by the commentators accord with the reasons for the decision in the case.
43. We have therefore to say that though the accused did not intend to kill the child or did not know himself to be likely to cause its death, yet, he shall be punished for the offence committed. The learned cessions Judge therefore fell into an obvious error in supposing that on the facts found by him an offence under Section 304, Second Part, I.P.C. was committed.
44. The stone that was thrown on the head weighed 27 Kgs. or 1 1/2 maunds. It was thrown on a sleeping child. The manner of causing death was deliberate, premeditated and brutal and was consistent only with the intention to cause death.
45. For the said reasons, we set aside the conviction under Section 304, Part II, I.P.C. and the sentence of R. I. for 3 years and instead convict the accused of an offence under Section 302 lead with Section 301, I.P.C. and sentence him to imprisonment for life.
46. Appeal is allowed.