K. Sadasivam, J.
1. Appellant Chinnapaiyan alias Arumugham has been convicted under Sections 379 and 302, Indian Penal Code, for having committed theft of a silver waist-cord from the possession of the female child Rajeswari alias Nageswari, aged about 5 years, and caused the death of the said child in the course of the same transaction, by dashing her against a big stone at about 9 a.m., on 3rd October, 1967 at Jagir Ammapalayam village, and sentenced to R.I. for six months on the first charge and to death, subject to confirmation by this Court, on the second charge. The sentence of imprisonment was ordered to merge with the capital sentence. The appellant is the brothers' son of P.W. 1, Ayithal. The deceased child Rajeswari was the daughter of P.W. 8, Ganesan, the son of P.W. 1. On the morning of 3rd October, 1967, the appellant approached his aunt, P.W. 1, and asked her for a rupee saying that he was feeling giddy as he had not taken food. P.W. 1 told him that she had no money and offered to give him food. But the appellant did not want food and went and sat near the well at a distance of 30 or 40 marks. , P.W. 3, Thangaraju, aged 12 years, P.W. 4 Selvaraju, aged 13 years, and other boys were playing near the well. The deceased child Rajeswari was standing nearby. The appellant caught hold of the child, and snatched the silver waist-cord worn by it and when the child cried he dashed it on the stone nearby. P.W. 1, her daughter P.W. 2, Govidammal, the boys P.Ws. 3 and 4, P.W. 5, Karuppa Chetti, living at a distance of 50 feet from the well and P.W. 6 Arunachalam, who was then going along the road, claim to have witnessed the occurrence. In spite of their crying aloud, the appellant dashed the child against the stone a second time and left the place. Just after he passed P.W. 6, the latter took a cycle, which was being pushed along the road by one Manickam, and proceeded on it, with Manickam on the carrier, to catch hold of the appellant. The cycle driven by P.W. 6 dashed against the appellant and this resulted in the appellant, P.W. 6, and Manickam falling on the ground. The appellant sustained minor injuries, but he escaped. He went to the Police Station, shortly after P.W. 1 gave the complaint Exhibit P-1. The appellant was arrested with his blood-stained dhoty. The appellant is alleged to have made a statement about the silver waist-cord, but no recovery was made in pursuance of the same. P.W. 2, Govindammal, took the child to the Mill Hospital, but the Doctor there found that the child was dead. It was only thereafter P.W. 1 gave the complaint Exhibit P-1, in this case.
2. P.W. 14, Dr. Vijayal, conducted post-mortem on the body of the child Rajeswari and she found a laceration on the right side of the chin, and abrasion on the right side of the chest, a group of abrasions above the right chest, an abrasion on the right chest below the axilla, an abrasion just above that injury and a minute abrasion on the left knee-cap. The doctor reserved her opinion as to the cause of death and sent the viscera for chemical analysis and she gave her final opinion that the deceased child would appear to have died due to shock on account of the injuries to the abdominal wall and chest.
3. The appellant was produced before the Sub-Magistrate, P.W. 13, Thaiyanayagam, for his judicial confession being recorded. P.W. 13 gave the necessary warnings and time for reflection and after satisfying himself that the appellant wanted to make a voluntary statement, recorded the statement Exhibit P-13. In this judicial confessions the appellant has stated that on the date of occurence, he went to beat his aunt's son, P.W. 8, Ganesan, as he was unable to bear the troubles given by him, that. P.W. 8 was not in his house, that the child Rajeswari, daughter of' P.W. 8, spat on him and showed her left leg against him, that he lifted the child catching hold of its legs and dashed it out of anger and that immediately after dashing the child he went straight to the Police Station.
4. During his examination under Section 342 of the Code of Criminal Procedure, In the committal Court, the appellant pleaded inability to recollect whether he made a judicial confession. He stated that he did not know anything about the occurrence and that he saw the child lying dead on the rock and he ran away. During his examination under Section 342 of the Code of Criminal Procedure in the Sessions. Court, the appellant gave the following version:
There was enmity between me and P.W. 8 (Ganesan). He owed me Rs. 200. I went to his house to get back the amount. He was not present. I quarrelled with his wife Kandayee. The deceased child came out and spat on me and also showed her legs. I pushed it down. There were stones there. It fell down on that. I was going away I heard people saying that the child had died. So I went straight to the Police Station.
Thus, the appellant does not dispute the fact that he took the child and hit it against the stone. There is also no reason to disbelieve the evidence of the eye witnesses, P.Ws. 1 to 6, about the act of the appellant in catching hold of the child and hitting it twice against the stone. During his examination in the Sessions Court the appellant has stated that he went to the house of P.W. 8 to demand repayment of the loan of Rs. 200. But the only suggestion made to P.W. 1 is that the appellant returned from Tirupathi, four days prior to the occurrence, with Rs. 200. There was no-suggestion to her that he gave the said amount to P.W. 8. In fact, no suggestion was made to P.W. 8 that he took any loan from the appellant. Even in his judicial confession, Exhibit P-13, the appellant has not mentioned that he gave any loan to P.W. 8. He has only stated therein that P.W. 8 gave him trouble for a long time and that unable to bear the same he went to beat him. P.W. 1 has stated that the appellant came and asked her for a loan of a rupee and that she offered to give him food. It is clear from the evidence of P.Ws. 1 and 8 that the appellant was leading a. wayward life and that P W. 8 has even chastised him on one occasion.
5. The plea of the appellant that the deceased child had spat on him and raised its legs does no doubt find support in the judicial confession, Exhibit P-13. But there is nothing in the evidence of P.Ws. 1 to 6 to support this statement The learned Sessions Judge has rightly pointed out that in the earliest report, Exhibit P-1 given by P.W. 1 she has given the same version which she has given at the trial There is nothing in Exhibit P-1 to support the plea of the appellant that the deceased child spat on him or showed its legs. Even assuming the said statement in Exhibit. P-13 to be true, we fail to see how the act of the young child of 5 years would constitute a provocation and much less grave provocation, to sustain the plea of grave and sudden provocation under Exception (1) to Section 300, Indian Penal Code.
6. We entertain grave doubts whether the appellant committed theft of the silver waist-cord worth a few rupees, from the child. It is unlikely he would have attempted to commit theft of that waist-cord in the presence of so many witnesses. It is-true P.Ws. 1 to 5, among the eye-witnesses, speak to the appellant having snatched away the waist-cord Evidently, the act of the appellant in taking hold of the child, and the subsequent missing of the waist-cord must have induced a belief in these witnesses that the appellant took away the waist-cord It should be noted that the appellant immediately went to the Police Station with his blood-stained dhoti and. surrendered there. No waist-cord was recovered in pursuance of any statement made by the appellant. The guilt of the appellant under Section 379, Indian Penal Code, is therefore doubtful and the appellant is entitled to the benefit of the doubt.
7. On the facts of this case, it could not be said that the appellant intended to cause the death of his aunt's grand-daughter. It is however clear from what we have stated that the appellant did catch hold of the child and hit it twice on the stone near the well. The evidence of P.W. 14, Dr. Vijayal shows that the external injuries sustained by the child were minor abrasions and lacerations and the injuries were all simple and could not, by themselves, account for the death of the child. The Doctor also stated that if a child was dashed on a rock or stone forcibly by some one holding its legs, some more injuries could have been caused and the head might have been broken and that it all depended upon the force used. Having regard to the nature of the injuries found on the child, it is obvious that much force could not have been used by the appellant. We have already referred to the evidence of the Doctor that she had reserved her opinion about the cause of death and sent the viscera for chemical analysis. She, however gave her opinion finally that the child would have died of shock due to the injuries to the abdominal wall and chest. It is clear from her evidence and the post-mortem certificate, that the chambers of the heart were empty, and this gives a clue as to how the shock caused the death of the child. In Glaister's Medical Jurisprudence and Toxicology, Eleventh Edition, page 127, it is stated as follows:
Primary shock, a frequent cause of syncope, results from different impulses which cause reflex vasodilatation and a resultant serious fall in the blood-pressure due to the actual diminution of the volume of the blood passing through the heart to the arteries. The capillaries of the skeletal muscles are chiefly affected, and in these the blood collects instead of returning to the heart, causing a temporary deprivation of the blood from the circulation 'and cerebral anaemia
In Modi's Medical Jurisprudence and Toxicology, Sixteenth Edition, page 249, it is stated that death may occur from shock without any visible injury from paralysis of the heart by a blow on the cardiac region, or from the inhibitory action of the solar plexus caused by a blow on the pit of the stomach in the upper part of the abdomen.
8. Having regard to the above facts it is not possible to bring the present case under Clause (3) of Section 300, Indian Penal Code, but only under the second clause of Section 299, Indian Penal Code There can be no doubt that the appellant did intend to cause injuries to the child but it could not be said that the injuries were sufficient in the ordinary course of nature to cause death. It is clear from the medical evidence in this case that the child died of shock. The appellant, when he caught hold of the child and hit it against the stone twice, should have known that death was likely to be caused. The appellant could safely be convicted only under the second clause of Section 299, Indian Penal Code The conviction of the appellant under Section 302, Indian Penal Code, is therefore altered to one under Section 304 (Part I), Indian Penal Code. The sentence of death is set aside and instead we impose on him a sentence of rigorous imprisonment for seven years The conviction of the appellant under Section 379, Indian Penal Code, and the sentence of rigorous imprisonment for six months imposed in respect of the same are set aside.