Judgment :- 1. The appellant was convicted by the Sessions Judge, Ernakulam for an offence under S.302 I.P.C., for causing the death of Binu, a baby aged eight months, son of pw.1 Joseph. The incident took place at about 10-30 PM. on 30-3-74. The facts in brief relevant for the decision are the following: The appellant and pw. 1 are sons of brothers, living at Ponnaramala in Elamkode village. Following an incident in the school where their sons were studying, the appellant chastised and squeezed the neck of Baby, son of pw. 1. Baby complained to pw. 1. pw.1 met the accused by about 8-30 PM. at the Kalayanthani junction, the market area of the locality. There was a wordy quarrel and mutual beating. pw. 6 and others separated them. Both the appellant and Pw.1 left the place. At about 10-30 P.M. pw.1 who was on his way home saw the appellant standing on the rocky area close to his house. He had a drawn knife with him. He accosted pw.1 and threatened to kill him. pw.1 entreated him to go home. Hearing their talk and finding the appellant in an aggressive mood, pw. 2, the wife of pw.1 came out of the house with Binu in her arms and requested the appellant not to create trouble. The appellant retorted that he would kill her and aimed a stab at pw. 2. The knife hit Binu on his head. The child died at 2-30 A.M. on the same night. 2. During trial, when the appellant was questioned under S.313 Cr.P.C., he admitted the earlier quarrel, the encounter between him and pw.1 near the latter's house and also the intervention of pw. 2 the wife of pw. 1. He, however, stated that it was a dark night and he could identify pw. 2 only by her voice. He left the place on hearing the cry of the child. 3. The trial judge found that the appellant was responsible for the death of the child. The plea that only a case under S.304 Part II IPC. was made out was not accepted by that court Holding that the injury was on a vital part and was sufficient in the ordinary course to cause the death of the child, the appellant was convicted under S.302 IPC. and sentenced to imprisonment for life. 4. The plea that only a case under S.304 Part II IPC. was made out was not accepted by that court Holding that the injury was on a vital part and was sufficient in the ordinary course to cause the death of the child, the appellant was convicted under S.302 IPC. and sentenced to imprisonment for life. 4. Since the incident is more or less admitted and stands proved by the testimony of pws.1 and 2, the question involved is whether the conviction for an offence of murder is sustainable. Shri. Thomas Jacob, appearing on behalf of the appellant would contend that as there was no intention to cause the death of the child and since it was by accident that the stab directed against pw. 2 fell on the child, the offence made out is only one under S.304A IPC. The decision in Koran Singh v. State (1965 Allahabad Law Journal (Vol. 63) 52) was cited in support of the plea. In that case, one Karan Singh and his son Dhanvir Singh fighting Sri Ram in a lane in front of the house of Nathu Lal. Nathu Lal was sitting on the chabuthara near the entrance of his house holding his daughter Sakuntala in his lap. Nathu Lal objected to the fight in front of his house. Annoyed at this, Dhanvir Singh attacked Nathu Lal with bis lathi. Karan Singh joined him. After the blow of Dhanvir Singh on Nathu Lal, his lathi is said to have slipped and fallen on the head of the infant Sakuntala. As a result of the blow Nathu Lal fell into the lane and the baby in his lap was also dropped by him while falling. As a result of the injuries sustained, the infant died. The trial judge held that although Dhanvir Singh had no intention to kill the child or to cause hurt to her, yet due to the operation of S.301 IPC. Dhanvir Singh was guilty under S.304 Part II IPC. In appeal, it was held that inasmuch as the injury on the infant was not due to a blow aimed at Nathu Lal, S.301 IPC. Dhanvir Singh was guilty under S.304 Part II IPC. In appeal, it was held that inasmuch as the injury on the infant was not due to a blow aimed at Nathu Lal, S.301 IPC. had no application and since the death of the child was the result of the injury sustained by its fall from the lap of Nathu Lal due to the blow sustained by him it was a case of death by rash and negligent act coming under S.304A IPC. The facts of the present appeal are different. The above case is not helpful in arriving at a decision. 5. Whether in a case where the facts are more or less similar, an offence under S.304A IPC. is made out was considered in Jageshar v. Emperor (24 Cr. L.J. Reports 789). In that case, the appellant was beating one Sheopal with his fists, when the wife of Sheopal with a two months' old baby on her shoulder interfered. The appellant hit at the woman and the blow struck the child on the head; the baby died as a result of the blow. It was held that the act of the appellant was in its nature criminal and,neither S.80 IPC. nor S.304A IPC. applied to the case. It had not been made out that while wanting to hit the woman, the appellant intended or knew to be likely to cause the death of the woman. Therefore, no conviction could be entered under S.304 IPC. by the operation of S.301 IPC. The appellant was held to have committed an offence under S.325 IPC. 6. In Kure v. Emperor (AIR. 1919 Allahabad 379) in the course of an affray between two parties, a blow fell on a girl aged 10 years of age. It was held that the accused should be convicted under S.325 read with S.149 IPC., and not under S.304A IPC. 7. In re the Empress v. Sahae Rae (ILR. 3 Calcutta 623) is another case where an accused struck a woman, carrying an infant in her arms. One of the blows fell on the child's head causing death. The offence was held to fall within the definition of grievous hurt. A similar decision was taken in Dyal Singh v. Emperor (AIR. 1924 Lahore 47). 8. Chatur Nath v. Emperor (AIR. One of the blows fell on the child's head causing death. The offence was held to fall within the definition of grievous hurt. A similar decision was taken in Dyal Singh v. Emperor (AIR. 1924 Lahore 47). 8. Chatur Nath v. Emperor (AIR. 1920 Bombay 224) is yet another instance where a woman holding a child intervened in a scuffle between her husband and a stranger, the accused. A blow aimed by the accused against the husband accidentally struck the child causing its death. The accused was held to be guilty of only simple hurt as in the circumstances of that case he could not have intended to cause or known that he was likely to cause either death or grievous hurt. 9. Since in the instant case no intention to kill the child is proved, the appellant's conviction can be sustained only on the basis of the doctrine of transfer of malice embodied in S.301 IPC. The facts of the case disclose that the appellant bawled out that he would kill pw. 2; but those could only be words of threat in the heat of passion. It is not made out that the appellant had reason for enmity towards pw. 2 in which case alone he would have intended to cause her death. The stab, no doubt, was sufficient to cause the death of Binu who was an infant of tender constitution There are, however, no materials to show that the identical stab, if it had fallen on pw. 2 against whom it was aimed would have caused her death. Therefore, the appellant is not liable for an offence of murder or culpable homicide even by the operation of S.301 IPC. The offence made out is only one under S.326 IPC We convict him for the said offence and sentence him to rigorous imprisonment for 3 years. The appeal is allowed as stated above. Allowed.