Women convicted of murder on jumping in well with children…

Comment : In this case a women driven to despair and torture jumped into a well with her three children, was convicted u/s 300 (4) for causing death by act with knowledge that such act is so imminently dangerous that it must in all probability cause death. The defence took the specios plea that such act was justified in the facts of the case – i.e there was a circumstantial compulsion – the court turned down the plea – differentiating the case from likes of Emproer v. Dhirajia and convicted for murder – but gave the lesser punishment for life. 
 
Madhya Pradesh High Court
Gyarsibai W/O Jagannath vs The State on 23 October, 1952
Equivalent citations: 1953 CriLJ 588
Author: Dixit
Bench: Dixit, Chaturvedi

JUDGMENT

Dixit, J.

1. The appellant has been convicted by the Sessions Judge of Shajapur of an offence under Section 302, Penal Code, for the murder of her three children and also of an offence under Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to transportation for life under Section 302 Penal Code, and to six months simple imprisonment under Section 309, Penal Code. Both these sentences have been directed to run concurrently. She has now preferred this appeal from Jail against the convictions and sentences.

2. The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years and 1 years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai’s harassment.

3. The facts have been amply established by the prosecution evidence. From the statement of Kaisar Bai and Narayan it is Clear that on the morning of the day ox occurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai, and during this quarrel when Kaisar Bai asked the appellant to leave the house, she left the house with her three children, saying that she would jump into a well. Kaisar Bai also admits that some times Jagannath used to give two or three slaps to the appellant for quarrelling with her. The other prosecution witnesses deposed to the recovery of the bodies of three children and to the rescue of the appellant. There is no eye-witness of the fact that the appellant jumped down the well herself together with her three children. But from the statements of Kaisar Bai, Narayan and the statement of the appellant herself before the Committing Magistrate and the Sessions Judge, I am satisfied that the version given by the appellant in her own statement is correct and that she jumped into the well herself along with her three children in order to escape harassment at the hands of her sister-in-law Kaisar Bai.

4. On these facts the only question that arises for consideration is whether the appellant is guilty of the offence of murder of the three children and of attempted suicide. The learned Sessions Judge has found her guilty under Section 302, Penal Code, but he has not stated under which clause of Section 300, Penal Code, the act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code, which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses 1, 2 and 3 of Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300. Penal Code, which then remains for consideration is the 4th clause. This clause says:

If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

5. It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability, cause death, then the act is not murder as is defined in Clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed “without any excuse for incurring the risk of causing death or such bodily injury”. The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was “without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in Clause 4 of Section 300, Penal Code. Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any Knowledge of the nature of her act.

Every sane person – and in this case we are bound to take it that the appellant was sane – is presumed to have some knowledge of the nature of his act. This knowledge is not negatived by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant’s act of jumping into a well with her children.

The words used in Clause 4 of Section 300, Penal Code are “without any excuse for incurring the risk of causing death or such injury as aforesaid”. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act, then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death or such injury as is likely to cause death. Here there is no material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant’s act is clearly murder under Clause 4 of Section 300, Penal Code.

6. I must, however, notice two cases in which the question of the offence constituted by an act of a woman deliberately jumping into a well with a child in circumstances somewhat different to those present in this case has been considered. The first case is one reported in – Emperor v. Dhirajia ILR (1940) All 647. In this case a village woman left her home with her six months old baby in her arms on account of her husband’s illtreatment; after she had gone some distance from the home, she turned round and saw her husband pursuing her. She became panicky and jumped down into a well nearby with the baby in her arms. The baby died, but the woman survived. On these facts, the learned Judges of the Allahabad High Court held that an intention to cause the death of the child could not be attributed to the woman, though she must be attributed with the knowledge that such an imminently dangerous act as jumping down the well was likely to cause the child’s death.

But the learned Judges held that considering the state of panic she was in, the culpable homicide did not amount to murder as there was an excuse for incurring the risk of causing death. Mst. Dhirajia was thus found guilty under Section 304, Penal Code. It is not necessary to consider whether upon the facts of that case, the conclusion that the woman was guilty of culpable homicide not amounting to murder was justified. But it must be observed that the learned Judges of the Allahabad High Court thought that the fear of her husband and the panic into which she was thrown could be an excuse for incurring the risk of causing death. Here there is no question of any panic or fright of the appellant. It is, no doubt, true, as the learned Judges of the Allahabad High Court say that in assessing what is excuse or is not excuse, we must consider the state of mind in which the accused person was.

But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law’s attitude towards her. The other decision is of the Bombay High Court in – Supadi Lukada v. Emperor AIR 1925 Bom 310. In that case too, a girl of about 17 years of age who was carrying her baby on her back jumped into a well because her husband had ill-treated her and had prevented her from returning to her parents.

The learned Judges of the Bombay High Court held that when the girl attempted to commit suicide by jumping into a well she could not be said to have been in a normal condition and was not, therefore, even aware of the child’s presence and that as she was not conscious of the child, there was not such knowledge as to make Section 300(4) applicable. The learned Judges of the Bombay High Court found the girl guilty under Section 304A. The Bombay case is clearly distinguishable on the facts. In the present case when the evidence shows that the appellant left her home saying that she would jump into a well with her three children, it cannot clearly be held that she was not aware that her children were with her. In my opinion, these two cases are not of much assistance to the appellant.

7. As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into the well, she did so in a conscious effort to take her own life.

8. The appellant has been sentenced to transportation for life under Section 302, Penal Code, This is the only sentence which could legally be passed in this case. But having regard to the fact and circumstances of the case and also to the fact that the appellant though not legally insane was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to the Government to commute the sentence of transportation for life to one of three years rigorous imprisonment. The sentence of six months’ simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate.

9. In the result this appeal is dismissed.

Chaturvedi, J.

10. I agree.


Murder under Supposed Circumstances

Comment : The Court summed up the law on death caused under supposed circumstances. The Law in a nutshell is examine the initial mens rea ? and not the latter one because when the person takes another to be dead and then hangs him up to potrray this as a suicide he has mens rea only for 201 not 302, and in absence of conurrence of actus reaus and mens rea – criminal liability cannot be imposed. If the initial actus reus was for simple hurt – he would be convicted for the same and not murder. 
 
Madras High Court
 
In Re: Palani Goundan vs Unknown on 7 April, 1919
 
Equivalent citations: 51 Ind Cas 164
Author: Napier
Bench: J Wallis, S Aiyar, C Trotter

ORDER

Napier, J.

1. The accused has been convicted of the murder of his wife. The evidence shows that on Wednesday the 23rd of October 1918 at about 4 or 5 raligais before sunset she was seen by prosecution 6th witness weeping and she said that her husband had beaten her. The witness told her to go home, promised to send for her father and then went to the father himself, who lived in another hamlet of the same village a mile away a little before sunset, and told him of the occurrence. After sunset the father, prosecution witness No. 2, sent his son, prosecution witness No. 3, and his son in law, prosecution witness No. 4, to the house where his daughter was living. Their evidence is that they arrived at the house at 4 or 5 nalig is after sunset and that Just outside the door they found the mother and the brother of the accused in the vasal and that the mother was remonstrating with her son inside, saying ‘do not beat a woman’ According to their evidence they did not hear any cries inside the house at that time After they waited a few minutes the accused opened the door and came out. They say they went inside and found Ramayee lying dead on the floor with a ploughshare lying near her. They say they at once went and told Rasa Gaundan, who lives two doors off from the accused’s house, to go and call their father, prosecution witness No 2. Rasa Gaundan, prosecution witness No. 5, says that he went and informed prosecution witness No. 2, who at once came and found his daughter lying dead at about 10 or 11 o’clock in the night. Prosecution witness No, 2, says that he taxed the accused with the murder of his daughter and the accused said she hanged herself. Prosecution witness No. 2 further says that he went to the Monigar and reported, but the Monigar was busy with a procession and only promised to report. He thought that the Monigar was endeavouring to hush the matter up, so he went to report the matter to the Police himself at Kodumudi 3 or 4 miles away and laid a complaint. This complaint was recorded at 9. 15 a.M. the next morning. That the Monigar was endeavouring to hush the matter up there can he no doubt, for it is clear that he sent no report to the Police what scever as was his duty to do. The accused told a story to the effect that he came bark early in the evening to get his meals and found his wife banging with a rope sied to the roof, and he calls two witnesses who say that the accused came and told them that his wife would not let him in and they went in with him and found his wife hanging from a beam. I do not think there can be any doubt that the deceased was hanged, but the evidence of the two defence witnesses is so discrepant that it is impossible to believe their version of the occurrence. The medical evidence shows that the woman had received a severe blow on the side of her head which would probably have rendered her unconscious, and it also shows that she died of strangulation which may have been the effect of hanging. That she hanged herself is impossible because, as pointed out by the Medical Officer, the blow on the head must have produced unconsciousness, and therefore, she could not hang herself. I am satisfied on the evidence of the following facts: that the accused struck his wife a violent blow on the head with the ploughshare which rendered her unconscious, that it is not shown that the blow was likely to cause death and I am also satisfied that the accused hanged his wife very soon afterwards under the impression that she was already dead, intending to create fale evidence as to the cause of the death and to conceal his own crime. The question is, whether this is murder.

2. Section 299 of the Indian Penal Code provides: Whoever causes death by doing an act with the intention of causing…such bodily injury as is likely to cause death…commits the offence of culpable homicide,” and Section 300, Clause 3, provides that “if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be indicted is sufficient in the ordinary course of nature to cause death,” then in such cases culpable homicide is murder. Now, the hanging of a woman who dies from the effect of the hanging is on the face of it causing bodily injury which is sufficient in the ordinary course of nature to cause death, and the section only requires that there should be homicide, namely, the causing of death, to make this murder. It cannot, I think, be disputed that the accused intended to cause bodily injury, for he intended to hang and did hang whether the body was alive or dead, if he bad stabbed her or shot her intending it to be believed that she had stabbed or shot herself, I cannot see that he would have done other wise than intended to cause the wounds which he did cause. In this case the bodily injury was strangulation by hanging. It is, however, suggested that there is a necessary limitation, namely, that the person on whom the bodily injury is infected must be a person who is to the knowledge of the accused capable of being killed and that, therefore, if the accused thinks that the person is dead already he cannot be convicted of culpable homicide. One limitation of the strict words of the section and the difficulty is to say what that limitation is to be.

3. The protection would seem to be found in English Law by the application of the doctrine of mens rea, though this might again be affected by the doctrine of malice in law which makes the killing in the course of a felony homicide. This doctrine of mens rea, though extremely difficult of definition, operates to protect persons who have no wrongful intention or other blameworthy condition of mind. To what extent it would operate to protect persons who knew that they were committing a criminal offence, namely, concealment of murder, is a question which I do not propose to consider, though the decision in R. v. Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13 Cox. C.C. 138 referred to by the Public Prosecutor would seem to apply the mens rea to a person who intended to do an unlawful act but not the unlawful act which he in fact did. This is in fact the argument of the Public Prosecutor who asks us to apply this doctrine. I do not think, however, that it arises for consideration.

4. Mr. Mayne is quite clear that under the Penal Code the maxim is wholly out of place. He says that every offence is defined and the definition states not only what the accused must have done but his state of mind in regard to his act when he was doing it. The whole of his discussion in Sections 8, 9 and 10 on mens rea and knowledge is worthy of very close consideration, and he seems to be quite clear that all the protections found in the English Criminal Law are reproduced in the Chapter of General Exceptions in the Penal Code. Sections 79, 80 and 81 would seem to cover all cases where a person is not acting with a criminal intent. Now it seems to me that the particular clauses in Sections 299 and 300 which we have to interpret do create what I am tempted to call constructive murder. The first Clause of Section 299 requires the intention of causing death; the third Clause requires a knowledge that he is likely by such act to cause death. In the same way the first Clause of Section 300 requires an intention to cause death, the second Clause requires an intention to cause such bodily injury as the offender knows to be likely to cause death, and the fourth Clause requires the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or is likely to cause death and the act is committed without any excuse for incurring the risk. In all these we have intention, knowledge and recklessness directed towards the causing of death. On the other hand, in the second Clause to Section 299 the intention is directed towards the bodily injury and in the third Clause to Section 300 the intention is the same. What makes the offence murder is that the bodily injury should in fact be likely to cause death entirely apart from intention or knowledge. The Legislature has thought fit to make the offence murder without proof of intention or knowledge directed towards death on the principle, of course, that a person must be deemed to intend the natural result of the injury which he inflicts; that is to say, if he inflicts an injury which is likely to cause death and that person dies, he must take the consequences of his action. But the intention provided for is confined to he bodily injury and not to the death. That is the law which we have to apply, and unless a person can be protected by one of the General Exceptions, I cannot see for myself how he is to escape from the larguage of the section. Apart from the actual offence of concealing a murder, it is the grossest violation of natural rights to stab, shoot or hang a person without absolute knowledge that that person is dead, unless of course it is done innocently, and I see no reason why the offender should not suffer the consequences of this act.

5. I shall now refer to the cases. The first is Gour Gobindo Thakoor, In re 6 W.R.Cr. 55. The facts are very similar. There one Gour Gobindo struck the deceased Dil Muhammad a blow which knocked him down, and then he and others, without enquiry as to whether he was dead or not, in haste hung him up to a tree so as to make it appear that he committed suicide. The accused were all convicted of hurt but the High Court quashed the proceedings and directed the accused to be re tried on charges of murder, culpable homicide not amounting to murder and hurt. Mr. Justice Seton Karr says, “if, however, the deceased was not actually killed by the blow, but was killed by the suspension, then Gour Gobindo himself and also all the other Thakoors who took part in hanging him up to the tree, would be clearly liable to a charge of culpable homicide amounting to murder; for, without having ascertained that he was actually dead, and under the impression that he was only stunned, they must have done the act with the intention of causing death, or bodily injury likely to cause death, and without the exceptions provided by the law, or they might have been committed for culpable homicide not amounting to murder.” Mr. Justice Norman fays: “Suppose, secondly, that the Thakoors had no intention of killing the deceased, but, finding him insensible, without enquiry whether he was dead or alive, or giving him time to recover, under an impression that he was dead, hung him to the tree, and thereby killed him. It appears to me that they might all have been put on their trial, under Section 304, for culpable homicide not amounting to murder. I think a Jury might fairly presume against them that they must have known that they were likely by that act to cause death”. The difficulty in this case is that the learned Judges did not wish to decide the case, and, therefore, their language is hypothetical. Mr. Justice Norman says that a Jury might fairly presume knowledge that they were likely to cause death, hereby introducing a limitation which is not to be found in the clauses we have under consideration. Certainly Seton-Karr, J., thinks the offence to be culpable homicide.

6. The next case is Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131. In that case it was found that the accused struck the deceased three blows on the head with a stick with the intention of killing him. The accused, believing him to be dead, set fire to the hut in which he was lying with a view to remove all evidence of the crime. The medical evidence showed that the blows were not likely to cause death and did not cause death and that death was really caused by injuries from burning. Mr, Justice Bird wood states the provisions of Section 299 and says, it is not as if the accused had intended, by setting fire to the shed, to make the deceased’s death certain,” and, therefore, acquits him of murder though be convicts him of an attempt to commit murder because of the accused’s own admission that he intended by the blow to kill. With great deference the learned Judge gives no reason for the view he takes. Mr. Justice Parsons took the view that the whole transaction, the blow and the burning, must be treated as one and that, therefore, the original intention to cause death applied to the act of burning which did cause death. The Chief Justice disagreed with Mr. Justice Parsons as to the transaction being one and without giving any other reason acquitted. With the greatest deference to the learned Judges I do not find any assistance from the manner in which they disposed of the case. Mr. Mayne deals with this case in Section 414 of his notes and is inclined to agree with the dissenting Judge that the intention should be treated as continuing up to the burning.

7. The last case is Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. In that case, the accused assauped his wife by kicking her below the navel. She fell down and became unconscious. In order to create an appearance that the woman bad committed suicide, he took up the unconscious body and, thinking it be a dead body, hung it by a rope. The post mortem examination showed that death was due to hanging. The Court, I think, assumed that at the time he struck her be was not intending to cause death, and, I think, we may also take it that the injury was not in fact likely to cause death. The learned Judges say that as he thought it to be adead body, he could not have intended to kill her if he thought that the woman was dead, and seem to assume that the intention to cause death is a necessary element in the offence of murder. With very great deference to the learned Judges, they seem to have ignored the language of Sections 299 and 300 and accordingly I can find no assistance from this case. That being the state of the authoreies, it seems to me to be advisable to get a definite pronouncement from this Court and I would, therefore, refer to a Full Bench the question whether on the facts found by us in this case the offence of murder has been committed.

Sadas. V. Ayyar, J.

8. I agree in referring the question to a Pull Bench as proposed by my learned brother. I shall, however, give my own opinion shortly on the matter referred. I do not think that the case of R. v. Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13 Cox. C.C. 138 relied on strongly by Mr. Osborne has much relevancy in the consideration of the question before us. In that case the decision mainly deoended upon the wording of the Statute 24 and 25 Vict. C. 100, Section 55, which made the taking unlawfully of an unmarried girl, being under the age of 16 years, out of the possession of the father a misdemeanour. The majority held in that case that there was no lawful excuse for taking her away, and the accused’s ignorance of her age did not make it not unlawful. We have simply to construe the definition of culpable homicide in Section 299. The intention “to cause such bodily injury as is hkely to cause death” cannot, in my opinion, mean anything except ‘bodily injury’ to a living human body. If this is not so, then, according to the strict letter of the definition, the relatives who burn the body of a man believing it to be dead would be guilty of culpable homicide ; I may even say that it is remarkable that the words “of a human being” are not added in the body of the definition after “death” and as the definition stands, the causing of the death of anything with intention will be culpable homicide which of course is a contradiction in terms. I think after the words ‘bodily injurs’ the following words most he understood, namely, ‘to some living human body or other’ [it need not be a particular person's body according to illustration (a) and it may even be the body of another living person than the one intended actually that received the injury]. The case in Emperor v. D alu Saraar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 is almost exactly a similar case to the present. Though (as my learned brother points out) the Judges refer only to the intention to kill and not the intention to cause bodily injury hkely to cause death, the two stand clearly on the same footing.

9. As regards Mr. Osborne’s argument that a person who dees an unlawful act such as trying to conceal a murder should take the cor sequences of the same if the act done in furtherance of that unlawful intention results unintentionally in homicide, I need refer only to illusiation (c) to Section 299, which indicates that the Indian Legislature did not wish to import the artificial rules of the English Law of Felony into the Indian Criminal Law.

10. A similar case in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 contains observations by Sargent, C.J., and Bud wood, J., that “what occurred from first to last cannot be regarded as one continuous act done with the intention of killing the deceased” and I agree with them respectfully. As regards the case, Gour Gobindo Thakoor, In re (3), no final opinion was expressed and the fact that the accused hastily and recklessly came to the conclusion that the woman was dead might make him liable for punishment under Section 30A (causing death by doing rash or negligent act) but not under culpable homicide, Sections 300 and 304 having the same relation to each other as Section 325 and Section 338 relating to grievous hurt.

11. This case came on for hearing in pursuance of the above Order of Reference to a Full Bench on the 17th March 1919.

12. Mr. E.R. Osborne, Public Prosecutor, for the Crown.–It is doubtful whether the English Law should be followed in India, If in fact death was caused by the act of hanging, is the knowledge of the accused material? Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 is a case in point. See also Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 and Gour Gobindo Thakoor, In re (3). I do not propose, however, to argue that the act of the accused does constitute the offence of murder or culpable homicide.

[Wallis, C.J.

13. Suppose the offence is not under Section 300, Indian Penal Code, does it fall under Section 304A?]

14. The act is neither rash nor negligent. The act of hanging is a deliberate act.

15. Mr. V. R. Ponnusowmy Aiyangar, for the Accused, was not called upon.

16. Opinion.–The accased was convicted of murder by the Sessions Judge of Coim-batore. He appealed to this Court, which took a different view of the facts from that taken by the learned Sessions Judge and has referred to us the question whether on the facts, as found by the learned Judges who composed it, the accused has in law committed the offence of murder. Napier, J., inclined to the view that he had: Sadasiva Aiyar, J., thenght he had not. The facts as found are these: the accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He believed her to be dead and in order to lay the foundation for a false defence of suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a rope. In fact the first blow was not a fatal one and the cause of death was asphyxiation by hanging, which was the act of the accused.

17. When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constitute the crime of murder or even culpable homicide. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law this would clearly not be murder but manslaughter, on the general principles of the Common Law. In India every offence is defined, both as to what must be done and with what intention it must be done, by the section of the Penal Code which creates it a crime. There are certain general exceptions laid down in Chapter IV, but none of them fits the present case. We must, therefore, turn to the defining Section 299. Section 299 defines culpable homicide as the act of causing death with one of three intentions:

(a) of causing death,

(b) of causing such bodily injury as is likely to cause death,

(c) of doing something which the accused knows to be likely to cause death.

18. It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. ‘Causing death’ may he paraphrased as putting an end to human life: and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man outs the head off from a human body, he does an act which he knows will put an end to life, if it exis’s. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because, though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged, not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide, if his intention was directed only to what he believed to be a lifeless body. Complications may arise when it is arguable that the two acts of the accused should be treated as being really one transaction, as in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 or when the facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and ignorance as to whether the body he handled was alive or dead, as in Gour Gobindo’s case. 6 W.R. Cr. 55. The facts as found here eliminate both these possibilities, and are practically the same as those found in Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. We agree with the decision of the learned Judges in that case, and with clear intimation of opinion by Sargent, C.J., in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131.

19. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can, of course, be punished both for his original assault on his wife, and for his attempt to create false evidence by hanging her. These, however, are matters for the consideration and determination of the referring Bench.

Murder v. Culpable Homicide – R v Govinda

Comment : The distinction drawn by Melville J. in this cause celebre, has been accepted. In a nutshell – as Culpable Homicide is the genus and murder is the species. Murder is culpable homicide + that extra mental element – more aggravated mens rea than CH. 
 
Bombay High Court
Reg vs Govinda on 18 July, 1876
Equivalent citations: (1877) ILR 1 Bom 342
Author: Melvill
Bench: Melvill, Kemball, N Haridas

JUDGMENT

Melvill, J.

1. I understand that these proceedings have been referred to me under Section 271-B of the Code of Criminal Procedure, in order that I may decide whether the offence committed by the prisoner was murder, or culpable homicide not amounting to murder.

2. For convenience of comparison, the provisions of Sections 299 and 300 of the Indian Penal Code may be stated thus:

Section 299.

A person commits culpable homicide, if the act by which the death is caused is done

(a) With the intention of causing death;

(b) With the intention of causing such bodily injury as is likely to cause death:

(c) With the knowledge that the act is likely to cause death.

Section 300.

Subject to certain exceptions, culpable homicide is murder, if the act by which the death is caused is done (1) With the intention of causing death;

(2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(3) With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;

(4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death.

3. I have underlined the words which appear to me to mark the differences between the two offences.

4. (a) and (1) show that where there is an intention to kill, the offence is always murder.

5. (c) and (4) appear to me intended to apply (I do not say that they are necessarily limited) to cases in which there is no intention to cause death or bodily injury. Furious driving, firing at a mark near a public road, would be cases of this description. Whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.

6. The essence of (2) appears to me to be found in the words which I have underlined. The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, or immature age, or other special circumstance, to be killed by an injury which would not ordinarily cause death. The illustration given in the section is the following:

A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health.

7. There remain to be considered (b) and (3), and it is on a comparison of these two clauses that the decision of doubtful cases like the present must generally depend. The offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the, ordinary course of nature to cause death. The distinction is fine, but appreciable. It is much the same distinction as that between (c) and (4), already noticed. It is a question of degree of probability. Practically, I think, it will generally resolve itself into a consideration of the nature of the weapon used. A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is sufficient in the ordinary course of nature to cause death.

8. In the present case the prisoner, a young man of 18, appears to have kicked his wife, (a girl of 15) and to have struck her several times with his fist on the back. These blows seem to have caused her no serious injury. She, however, fell on the ground, and I think that the evidence shows that the prisoner then put one knee on her chest, and struck her two or three times on the face. One or two of these blows, which, from the medical evidence, I believe to have been violent and to have been delivered with the closed fist, took effect on the girl’s left eye, producing contusion and discoloration. The skull was not fractured, but the blow caused an extravasation of blood on the brain, and the girl died in consequence either on the spot, or very shortly afterwards. On this state of facts the Sessions Judge and the assessors have found the prisoner guilty of murder, and he has been sentenced to death. I am myself of opinion that the offence is culpable homicide, and not murder. I do not think there was an intention to cause death; nor do I think that the bodily injury was sufficient in the ordinary course of nature to cause death. Ordinarily, I. think, it would not cause death. But a violent blow in the eye from a man’s fist, while the person struck is lying with his or her head on the ground, is certainly likely to cause death, either by producing concussion or extravasation of blood on the surface or in the substance of the brain. A reference to Taylor’s Medical Jurisprudence (Fourth Edition, page 294) will show how easily life may be destroyed by a blow on the head producing extravasation of blood.

9. For these reasons I am of opinion that the prisoner should be convicted of culpable homicide not amounting to murder, and I would sentence him to transportation for seven years.

10. This order was accordingly passed by the Court.