1. This case was called up On perusal of the Sessions statements. The accused Musammat Nannhi Bahu was committed for trial on a charge under Section 307, Indian Penal Code. The evidence shows that the accused in the course (sic) a quarrel with her sister-in-law a (sic) fir of flung her child, age 3 years, into a pond on the edge of which her house was situated and at the same time gave expression to a wish that the death of the child should rest as a curse on the head of the woman with whom she was quarrelling. Fortunately there were by standers about and one of these picked up the child and saved its life. The learned Sessions Judge held that the woman did an act endangering the child, that she intended to cause hurt, namely, death to her child and that her act resulted in the child suffering hurt. It is not easy to understand how on these findings the learned Sessions Judge held that the offence was an offence under Section 323, Indian Penal Code. We have gone carefully into the evidence from which it can be safely held as proved that the woman intended to cause the death of her child by the act, for if she did intend to cause death and in carrying out her intention committed an act which resulted in hurt to the child, the offence is one under Section 307, Indian Penal Code, and a. much graver offence than the under Section 323. The learned Sessions Judge in his judgment makes a curious mistake. He says that, the spot where the child was thrown into the Water was a spot where the water stood only 2 ft. deep. We find no witness for the prosecution who says that the water at this place was only 2 ft. deep. The witnesses for the prosecution, it is true, give various depths, but they all agree in placing the depth as not less than 4 ft.
2. There are two witnesses for the defence, who give lesser depth but their evidence has been, and we think rightly, discredited. To fling a child 3 years of age into water 4ft. in depth gives rise to a presumption that the intention was to cause its death though there may have been by-standers ready to pick the child out without loss of time and again the words used by the accused throw light on her intention. We find the accused guilty of an offence under Section 307, Indian Penal Code. We set aside the conviction and sentence passed under section, 323 Indian Penal Code, convict Musammat Nannhi Bahu of an offence under Section 307, Indian Penal Code, and order that she suffer rigorous imprisonment for two years with effect from the 11th August 1909.