B.R. James, J.

[1] Bangi, a Taga Brahman, who has been sentenced to transportation for life under Section 302, I.P.C., and to rigorous imprisonment for three months under Section 426, I.P.C. has filed this appeal against his conviction and sentence.

[2] The person of the murder of whom the appellant has been found guilty was Chameli, a Bhangi woman of the appellant's village, who was the wife of one Thanwarya. The evidence of the eye-witnesses Sukhdeo, Sm. Ram Dei, Nand Kishore, Sagar Singh and Kali Chran establishes the following. Chameli had a piglet three months old. On the morning of 7-5-1953 it entered the appellants' house and thereby defiled it. The appellant was infuriated, went up to Chameli's house and brought her over to identify the animal.

By then the animal had come out of the appellant's house and entered a neighbouring shed where a heap of arhar stalks was lying. No sooner had Chameli seized the animal and started dragging it out of the stalks then the appellant began hitting it with a lathi. Chameli beseeched him to spare the little animal, promising to see that it did not stray in future. Thereupon the appellant hit her a number of lathi blows. Both she and the piglet fell down on the spot and died.

[3] The appellant's own version of the affair is to the following effect. When he seated beating the piglet Chameli entreated him to spare it. On his pointing out that it had spoiled his food and utensils the woman grappled with him, whereupon he struck her two lathi blows and removed her. She tried to rescue the piglet by placing herself in front of it so that the next lathi blows struck her. He caught hold of her, made her stand and asked her to leave the place, which she did. A short distance away she fell down on a large stone.

[4] This story of the appellant is undoubtedly false. His learned counsel before us has declined to place any reliance on it; on the contrary he fully accepts the case set up by the prosecution witnesses. His contention is that on their testimony the conviction should be under Section 304, I.P.C. and not under Section 302, I.P.C.

[5] In order to assess the force of this contention it is first of all necessary to be clear about the injuries suffered by the deceased woman. These appear from the testimony of the Civil Surgeon who conducted the post-mortem examination. He found a contusion 3" x 2" on the outer side of the left knee, and another contusion 1"X 1/2" over the back of the right knee. On cutting the skin of the back and sides of the chest there were found areas of deep congestion, areas which had also been noted under the chest and abdomen.

But owing to decomposition no external marks of injury over the skin were visible. Nor were there external marks of injury over the fore-head and left ear, though on cutting the skin deep congestion in an area 3" X 2" was discovered. On cutting open the walls of the chest very deep congestion was found present towards the right side in an area 4" X 1 1/2". On the back there was a good deal of congealed blood in an area 5" X 3" adjacent to the spinal column, and the ninth and tenth ribs had become loosened from their joints.

All the tissues and ligaments were deeply bloodstained. Congestion was present in an area 4" X 3" on the left side of the chest in the line of the breast and the axilla. The right lung and its pleura were congested at the base. The left lung was congested to an even greater extent. The abdominal walls were deeply congested over an area 3" X 2" on the left side in the region of the spleen. Two points of blood and clots of blood were found in the abdominal cavity. There was congealed blood in the region of liver too.

The liver was lacerated 1 1/4" X 1/2" X 1/6" in the right lobe, and a part of its head was full of blood. The small intestines were congested and blood-stained. The large intestines were more congested on the left side. The spleen was full of blood, and a rupture 3/4" x 1/6" x 1/10" was present on the upper sur