JUDGMENT
Markby, J.
1. The facts of this case do not appear to be susceptible of any doubt. The prisoner was employer of a man, named Behary, his wife Chetya, and his sister Foolcoomaree. Some disagreement appears to have arisen as to the payment of the wages due to this family. In the morning in question the prisoner went to the house of Behary, and called Chetya, the wife of Bohary, and Foolcoomaree his sister, to execute some work on his behalf. They refused and made use of language which, no doubt, was disrespectful. Therefore, the prisoner, with the shoes which he was wearing, commenced striking Chetya about the head and shoulders. Chetya had at that time a child of a few months old in her arms, the head of the child, as she describes it, being either upon or close to her shoulder. One of the blows delivered by the prisoner fell upon the child’s head, and, as was almost certain to happen, the child died in consequence.
2. The prisoner was charged with culpable homicide not amounting to murder of the child, of causing the death of the child by a rash and negligent act, of grievous hurt to the child, and of hurt to the child; the last two charges being added by the Sessions Judge!. There was no charge made with reference to the assault upon the mother.
3. The result of the trial was, that three of the jury thought that the prisoner should ho acquitted altogether; the other two jurors seem to have thought that the accused was guilty of culpable homicide of the child.
4. The Judge has fold us that he differs front the verdict of the majority, who have acquitted the prisoner altogether; but we feel some what embarrassed in the matter by this, that he has not told is of what crime in his opinion the prisoner was guilty. Heading Sections 263 and 464 of the Criminal Procedure Code together, we think that it is the duty of the Judge in cases like this to give us his own opinion, if ho disagrees with the verdict of acquittal, as to the exact offence of which he considers the prisoner guilty. We think that this Court has a rigid to expect from the Sessions Judge his opinion in a case of this kind. Nevertheless, we think we are still competent to deal with the matter, and the Government pleader, who has appeared before us has very properly not pressed for a conviction of culpable homicide. We are extremely doubtful whether technically the charge of culpable homicide could be supported. But we think we are justified upon the facts proved in finding the prisoner guilty of grievous hurt under Section 322. There being no doubt whatever as to the facts of the case, we have no hesitation in finding the prisoner guilty under that section, notwithstanding that he was acquitted altogether by three of the jury, probably, because they did not fully understand the law upon the subject. No doubt, what the prisoner intended was to inflict some injury upon the mother; and in one sense, lie did not intend to inflict any injury upon the child at all; but it seems to me, that the language of Section 321 covers a case in which a man intending to aim a blow at one person strikes another. That section says: ‘Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said voluntarily to cause hurt to such person.” The very general language of that section was, I think, used expressly for the purpose of covering a case of this kind. I also think that the prisoner is also liable for causing grievous hurt. Section 322 provides that “whoever voluntarily causes hurt, if the hurt which he intends to cause, or knows himself to he likely to cause, is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt.” I think, that it is impossible to say, when a man strikes a woman with a child in her arms, and strikes her on that part of her person which is close to the head of the child, that he does not know that he is likely to cause grievous hurt to the child he must, as a reasonable being, know that nothing is more probable than that the blow which he aims at the woman would fall on the child, and that any blow which would fall upon the child’s bead would be likely to cause such hurt as would endanger the child’s life. This is one of the definitions of grievous Kurt, and, therefore, in my opinion the prisoner ought to be convicted under Section 322.
5. Of course, the most important matter in this case is, what is the punishment which the prisoner ought to undergo. The evidence certainly shows that the prisoner’s conduct was very violent. There was nothing which could justify his conduct even as regards the mother; and to strike a woman with a child of tender age in her arms is certainly a most unjustifiable act. No doubt, the prisoner never intended to do any injury to the child, but still he has done an act which deserves severe punishment. Under Section 322 of the Indian Penal Code ho will be sentenced to rigorous imprisonment for two years.
