Chainani, J.
1. This is an unfortunate case, in which a quarrel between young boys has resulted in serious consequences.
2. The accused as well as the deceased Harshabhai were residents of Vaso village and were studying in an English School in that village. On 26-4-1955 at about 1 p. m. both of them had gone to a pond in the village for taking a bath. Witnesses Vithalbhai, Ramanlal, Shankar and Chhanganbhai had also gone to ' this pond for washing clothes.
While the accused and the deceased were bathing, they started throwing water, on each other. Harshadbhai came out of the pond, changed. the clothes, brought some earth sods and threw them at the accused. This annoyed the accused, who came out of water, took out a pen knife from his clothes and gave a blow with it on the neck of Harshad. Harhad bled profusely from this injury. He walked back to wards the village, but he fell down some distance away. Vithalbhai, Ramanlal, Shankar and Chhagan also left the place. They did not inform Harshad's relations.
At about 3 p. m. a boy Kantilal happened to pass by that Way. He saw Harshad lying injured. He was then unconscious. He informed Harshad's brother who informed his father. Harshad was then removed to his house, but he died before he could be taken to the Hospital. The police were then informed. The police recorded the statements of Vithalbhai, Ramanlal, Shankar and Chhagan on the next day.
The accused was then arrested and sent up for trial. He was charged under Section 302, I. P. C., for committing the murder of Harshad. He pleaded not guilty to the charge. He admitted the presence of witnesses, Vithalbhai, Ramanlal, Shankar and Chhagan at time of the offence. He stated that Harshad had asked him to teach him swimming and that as he refused to do so, Harshad threw water at him.
Thereafter he also threw earth sods at him. In this he was assisted by Ramanlal. As he was being hit with earth sods, he came out of water and changed his clothes. He asked Harshad why he had thrown earth sods at him. He was then surrounded by Harshad and other witnesses. Harshad picked up a Dharia and threatened to assault him with it. The accused had taken with him a pen knife in order to cut babul sticks. On receiving the threat from Harshad, he opened that knife and held it in front of Harshad.
In the meantime Ramanlal gave him a fist blow on his hand. The knife then accidentally struck Harshad and injured him. He and the other witnesses then ran away from that place. This defence of the accused was not accepted by the learned Judge. He came to the conclusion that the injury, which resulted in Harshad's death, had been caused by the accused. In the opinion of the learned Judge, the injury had been caused by the accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. He, therefore, held that the offence committed by the accused was that punishable under Section 304 part II, I. P. C. Accordingly, he convicted the accused under this section and sentenced him to 6 years' rigorous imprisonment.
2a. Having regard to the statement made by the accused, there can be no doubt that the injury which resulted in Harshad's death,-had been caused to him by the accused. There is also ample evidence on this point. That is the evidence of four witnesses, Vithalbhai, Raman-lal, Shankar and Chhagan, who were admittedly present at the time when Harshad was injured. The accused's story that Harshad had threatened to assault with a Dharia does not appear to be true. All the witnesses had denied that any such threat had been given by Harshad.
In fact Chhagan has stated that no Dharia had been taken there by Harshad. Also if, as stated by the accused, he had been surrounded by four persons, one of whom was armed with a Dharia, it is not likely that he would have escaped without any injury being caused to him. The injury caused to Harshad was a very serious one. It was 5 1/2' deep and had pierced the upper lobe of the right lung.
Such an injury could not have been caused accidentally.. The learned Judge was, therefore, right in disbelieving the accused's defence and in convicting the accused. We might, however, observe that the conviction should have been under Section 304 Part I and not under part II of Section 304, I. P. C. We, therefore, confirm the conviction of the accused.
3. As regards the sentence, the accused is a young boy of about 17 years of age. At the time of the offence, he was 16 years and 7 months old. As he was, therefore, a few months older than 16 years, he could not be given the benefit of the Bombay Childrens Act. The learned Judge also has given good reasons for not using the provisions of the Borstal Schools Act in this case. We, however, think that the sentence of 6 years' R. I. passed upon the accused is, in the circumstances of the case, rather excessive.
The injury was caused by the accused without any premeditation and after he had received provocation from the deceased, who had thrown water and thereafter earth sods at him. The learned Judge has also, after making enquiries, observed in his judgment that the accused had no criminal tendencies or bad associations. In view of these facts anct having regard to the young age of accused we fhink the sentence of four years' R. I. will be sufficient to meet the ends of justice.
Accordingly, we reduce the sentence passed upon the accused to four years' R. I. Theorder passed by the learned Judge that the accused should undergo the period of sentence inthe Juvenile section of the jail is confirmed.
4. Order accordingly.