Murder Conviction on testimony of interested witnesses

In this murder case the court was faced with a situation where a grandson murdered his grandfather when the latter tried bringing sense into him not to indluge in rowdyism and to work. The Court convicted on the basis of clinching testimony of 3 eye witnesses/Recovery/Disclousure Statement/Strained Relations and subsequent conduct of the offendor. The Court repelled objections that witnesses were interested witnesses and thus were partisan, because they withstood lengthy cross. Secondly court on account of injuries put the the offence in category of Murder cls.1 of S.300 as it was done With the intention to cause death. The Desire of the accused to cause death of an unarmed man was apparent manifest from the nature and quantum of injuries, some of which were alone and together cumulatively sufficient in the ordinary course of nature to cause death.
Rajasthan High Court
Gura Singh vs State Of Rajasthan on 20 December, 1983
Equivalent citations: 1984 CriLJ 1423
Author: S Byas
Bench: D Mehta, S Byas

JUDGMENT

S.S. Byas, J.

1. By his judgment, dt. 8.3.78, the learned Sessions Judge, Ganganagar convicted the accused Gura Singh under Section 302, I.P.C. and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.

2. Briefly stated, the prosecution case is that deceased-victim Gandasingh had two sons Paharasingh and P.W. 1 Mohansingh. The appellant is the son of Paharasingh. Paharasingh passed away nearly 20 years ago. Gandasingh had forty bighas of agricultural land for cultivation. After the death of Paharasingh he gave thirteen bighas of land to the appellant, thirteen bighas of land to Mohansingh (PW 1) and retained the remaining thirteen bighas or so for himself. Gandasingh lived with Mohansingh (PW 1). As such Mohansingh was cultivating 26 bighas of land. The accused was not serious about the work and gathered a company of bad elements around him. Gandasingh used to ask the accused off and on to be serious at the work and give up the company of bad associates. In the morning of the day of occurrence 6.8.76, Gandasingh asked the accused to give up rowdyism and be careful about the work as he had to support his mother and wife. This led to a wordy wrangle between the two. Mohansingh intervened and the matter got sub-sided. Gandasingh lay down on a cot in his Bethak shown by mark “1″ in site plan Ex. P. 2. The accused went away. Mohan Singh (PW 1) went to bring cattle fodder stacked in a Kotha, shown by mark “19″ in Ex. P.

2. His wife Mst. Surjeet Kaur (PW 2) started cooking food in the courtyard situate just in front of the Bethak of Gandasingh. While she was cooking the food, the accused came with a ‘Tamba’ (lathi) and struck blows to Gandasingh with it. Surjeet Kaur raised cries. PW 1 Mohansingh and PW 3 Jogendra Singh, who were passing that way, rushed to help the victim. Mohansingh challenged the accused and the accused then went away. There was profuse bleeding from the wounds of the victim. Many persons from the locality gathered there. Gandasingh did not survive and succumbed to the injuries after a little while. P.W. 1 Mohansingh went on foot to Police Station Kesarsinghpur and verbally lodged report Ex. P. 1 of the occurrence at about 1.30 P.M. The Police registered a case and took up the investigation. Narainsingh (PW 9), A.S.I. arrived at the place of occurrence and while he was inspecting the site, PW 8 Prem Narain, Station House Officer, also, reached there. The site was inspected and the site plan was prepared. The inquest report of the victim’s dead body was also prepared. The accused was arrested and in consequence of the information furnished by him whilst under police custody, Tamba was recovered. The bloodstained articles were also seized and sealed. The post-mortem examination of the victim’s dead body was performed at about 10.30 A.M. on 7.8.76 by PW 6 Dr. Ram Lai Beniwal, the then Medical Officer in charge. Government Dispensary, Guiabewala. On examination, the doctor found the following injuries:

1) A contusion on chest wall anteriorly left side upper part 4″ x 1″.

2) A contusion with fracture of the left forearm in its lower part 2″ x 1″.

3) Lacerated wound on right hand dorsally at the base of thumb 2″ 1/4″ x 1/8″.

4) A lacerated wound on right maxilla lateral part 3/4″ x ” x 1/8″.

5) A lacerated wound on the left maxilla below eye lid 2″ x ” x ” with fracture of underlying bone.

6) A contusion on the base of nose ” x ” with fracture of nasal bone.

7) Four lacerated wounds on the forehead (with fracture of frontal bone) 1 x bone deep.

8) Fracture of lower jaw on the right side of mid line and on left side at the angle of mandible with a contusion at the angle of mandible 2″ x 1″.

9) Laceration of membranes of brain at the sites of frontal bone fractures.

10) Laceration of frontal lobes of brain.

In the opinion of Dr. Beniwal, the cause of death of Gandasingh was multiple injuries on the body with fracture of bones and injury to vital organ brain leading severe haemorrhage and shock.

After when the investigation was over, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Karanpur, who in his turn committed the case for trial to the Court of Sessions Judge, Ganganagar. The learned Sessions Judge framed a charge under Section 302, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. Denouncing the prosecution case as fabricated piece of concoction he claimed absolute innocence. According to him, Gandasingh had executed a will in favour of the wife and sons of his uncle Mohan Singh (PW 1). He has been falsely implicated because Mohansingh wants to take the entire land of Gandasingh. During trial, the prosecution examined nine witnesses and filed some documents. In defence, no evidence was adduced by the accused. On the conclusion of trial, the learned Sessions Judge held the charge duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.

3. There is no room for doubt that the death of victim Gandasingh was not natural but homicidal. According to Dr. beniwal (PW 6), as stated above, as many as ten antemortem injuries were found on the victim’s dead body. He further deposed that the injuries were sufficient in the ordinary course of nature to cause death.

4. In assailing the conviction, the first contention raised by the learned Counsel for the accused is that the evidence of the three witnesses viz., PW 1 Mohan Singh, PW 2 Mst. Surjeet Kaur and PW 3 Jogindersingh was not rightly weighed and scanned. It was argued that there was no occasion for PW 3 Jogindersingh to reach the place of occurrence. His services were borrowed by PW 1 Mohansingh to falsely implicate the accused. Jogindersingh was only a chance witness and no reliance could be placed on what he testified. It was further argued that PW 1 Mohansingh was in a Kotha situate nearly at a distance of 250 feet away from the place of occurrence and it was not possible for him to hear the cries of Surjeet Kaur. He, therefore, could not reach the site when the occurrence was taking place. So also, the testimony of PW 2 Mst. Surjeet Kaur could not be believed. She was the wife of PW 1 Mohan Singh and naturally she was at his disposal to state what he wanted her to depose. In reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the testimony of the three witnesses should not be discarded on the ground mentioned above. We have taken the respective contentions into consideration.

5. PW 2 Mst. Surjeet Kaur is the daughter-in-law of the deceased-victim. She stated that at about 9.00 or 9.30 A.M. on the day of occurrence, Gandasingh rebuked the accused for his rowdyism and advised him to be particular about his work. She was then, cooking the food. Accused Gurasingh went to his Kotha. Her husband Mohansingh (PW 1) went in another Kotha to bring cattle fodder from there. Accused Gurasingh came back with a Tamba and started beating Gandasingh in his Bethak. She was cooking food nearly at a distance of 25 feet from there. She raised cries and Jogindersingh (PW 3), who was passing nearby came there. Hearing the out-cries, her Husband Mohansingh (PW 1) also came there. Her husband challenged the accused and the accused ran away taking his Tamba with him. Gandasingh sustained a number of injuries on his person including the head. There was profuse bleeding from his wounds. Meharsingh, Modansingh and many other persons thereafter came. Gandasingh did not survive and succumbed after 15 or 20 minutes. She was cross-examined at length but she remained consistent throughout and stuck on her version that accused Gurasingh inflicted a number of blows to Gandasingh with his Tamba. She refuted the suggestion that she and her husband were not present at the place of occurrence and were away to their field. She also dismissed the suggestion that she and her husband got Gandasingh killed by somebody else and they were falsely implicating the accused for killing him. It is true that she is the wife of PW 1 Mohansingh but her testimony cannot be discarded merely on that count. Her presence on the spot is most natural. It was the time of cooking the morning meals and as such she could not be expected to go to her field, as suggested by the learned Counsel for the accused. Her name has been mentioned in the First Information Report-lodged without any delay.

6. PW 1 Mohansingh is the son of the deceased-victim. He deposed that the accused was not serious about his job and his father used to rebuke him off and on and used to ask him to be more particuar about his job as he had to support his wife and mother. At about 9.00 or 9.30 A.M. on the day of occurrence, his father Gandasingh again asked the accused to be particular about his job. It resulted in verbal wrangling between the two. He intervened and the matter got subsided. Thereafter Gurasingh went to his Kotha and Gandasingh lay on a cot in his Bethak. He (witness) went to a Kotha to bring cattle fodder from there. There he heard the cries of his wife. He rushed to the spot and saw the accused striking blows to Gandasingh with his Tamba. Jogindersingh (PW 3) was also present there. He challenged the accused and the accused ran away taking his Tamba with him. There were multiple wounds on the person of Gandasingh, including on his head. There was profuse bleeding from the wounds. Mohansingh, and Meharsingh and many other persons of the locality came there thereafter. Gandasingh did not survive and passed away after a few minutes. He went on foot to Police Station, Kesarsinghpur and lodged report Ex. P. 1 there at about 1.30 P.M. In cross-examination he denied the suggestion that he and his wife Surjeet Kaur were not present in their house when the occurrence took place and were at their field. He also refuted the suggestion that he has falsely implicated the accused. There is nothing in his cross-examination which may induce us to disbelieve his testimony.

7. It is true that the accused was living separately from PW 1 Mohansingh. The relations between them were not very happy. Mohansingh had lodged a proceeding under Section 107, Cr.P.C. against the accused before this occurrence. But this fact is not sufficient to discard the testimony of PW 1 Mohansingh or his wife PW 2 Mst. Surjeet Kaur. The fact that they are the son and daughter-in-law of the deceased-victim does not detract from the value to be attached to their testimony.

8. PW 3 Jogindersingh deposed that at about 9.00 or 9.30 A.M. on the day of occurrence he was going to the house of Gulabsingh (PW 4) to recover his labour charges from him. The house of Gulabsingh is situate just opposite to that of Mohansingh. When he remained 4 or 5 paces away, he saw that accused Gurasingh took up a Tamba, went to the Bethak of Ganda Singh and started striking blows to him with it. Mst. Surjeet Kaur was there in the house. He and she raised cries. Mohansingh also came there 1 and challenged the accused. The accused thereafter ran away taking the Tamba with him. Many persons came there. The name of this witness has been mentioned in First Information Report. In cross-examination he admitted that a criminal case relating to illicit liquor was pending against him. He denied the suggestion that it was he who had killed Gandasingh at the behest of Mohansingh (PW 1). We find no force in the contention of the learned Counsel that the testimony of this witness should be disbelieved as he has bad antecedents. Simply because some criminal case is pending against him, his testimony does not become incredible. It is true that he was examined by police two days after the occurrence, but that is immaterial specially when his name has been mentioned in the First Information Report which was promptly lodged without any delay. Gulabsingh (PW 4) of course denied that he owed any labour-charges to this witness. But the hostile attitude of PW 4 Gulabsingh does not persuade us to dismiss the testimony of this witness Jogindersingh. We also find no merit in the contention of the learned Counsel that Jogindersingh is only a change witness. He had given reasons as to how he happened to pass in the Courtyard of the victim. A look into site plan Ex. P. 2 will reveal that the house of Gulabsingh (PW 4) is situate just opposite to that of the victim and anybody can pass freely from west to east.

9. The learned Sessions Judge accepted the evidence of these witnesses as true arid on a careful consideration we are unable to take a different view. The evidence of the witnesses should be properly assessed, sifted, scanned, scrutinized and appreciated keeping in view the surrounding circumstances and the background in which the offence is alleged to have been committed. Mere suggestions in cross-examination, however, ingenious are of no evidentiary value unless accepted by the witness or proved by other evidence. There must be something inherent in the statement of a witness to disentitle him to be believed. There is no presumption of perjury against the oral testimony of a witness. But before acting upon such testimony its credibility should be tested both. intriguingly intrinsically and extrinsically. There is nothing inherent in the statement of these three witnesses to disentitle them to be believed. It does not appear from the circumstances that PW 3 Jogindersingh was a chance witness or that his services were procured and purchased by PW 1 Mohansingh to falsely depose against the accused. Gandasingh was living with Mohansingh. He was an old man and it was Mohansingh and the members of his family who were looking after him. It is beyond our comprehension, that Gandasingh would be done to death by Mohansingh or at his behest by Jogindersingh or somebody else. We cannot assume the facts merely on conjectures and surmises as was suggested by the learned Counsel for the accused. In our opinion, the evidence of these three witnesses is beyond reproach. Their testimony is free from suspicion and above board. No risk is involved in convicting the accused on the strength of what they testified on oath.

10. It is true that deceased Gandasingh had made a will of all his agricultural lands including that in possession of the accused in favour of the wife and sons of PW 1 Mohansingh. The wife of Mohansingh has filed a suit on the basis of will against the accused and others after this incident. But it is not sufficient to persuade us that Mohansingh wanted to finish Gandasingh as soon as possible. It was he and his family who were to be benefited by that will. We are, therefore, unable to accept the contention that Gandasingh could be put to death by Mohansingh or by somebody else at his investigation.

11. It was next contended by the learned Counsel that the offence made out is not covered by Section 302, I.P.C. It was argued that when the background in which the offence was committed is kept in mind, it appears that there was an exchange of hot words and abuses between the accused and the deceased-victim. In the First Information Report it was mentioned that an exchange of abuses had taken place between them. It was argued that these circumstances point out that Gandasingh was killed by the accused without premeditation in a sudden fight and upon a sudden quarrel. Learned Counsel tried all his efforts to bring the case within Exception (4) of Section 300, I.P.C. We are again unable to accept his contention. In order to bring a case within Exception (4), it must be proved that the act was done (1) without premeditation, (2) in a sudden fight, (3) in the heat of passion, (4) upon a sudden quarrel and (5) without offender’s taking undue advantage or without acting in a cruel and unusual manner. All these five elements must exist in order to bring the case within Exception (4). If any of them is missing, this Exception cannot be brought into play. Here in the instant case, all these five elements of Exception (4) are completely missing. After a verbal wrangling the accused went and came back with a Tamba. He then struck blows to the victim. There was no fight between him and the victim. The fight implies an exchange of blows or mutual attack by both the parties. Where it is as one-sided affair, there is no fight at all to bring the case within Exception (4). The very word ‘fight’ implies that it is a bilateral act and excludes the case where violence is used by one of the parties.

12. Mr. Garg appearing for the accused strenuously contended that exchange of blows is not necessary to constitute a fight and words may be as provocative as blows. Reliance was placed on certain observations made in Hans Raj Singh v. Emperor AIR 1946 Lah 41 : 47 Cri LJ 234. We are unable to accept the contention. Mere exchange of abuses and hot words (which is even not present here in the instant case) does not constitute fight within the meaning of Exception (4). Where it is all an one-sided affair and only the accused caused injuries to the victim who does not retaliate, there is no fight at all to attract the exception. We are fortified in our view by the observations of their Lordships of the Supreme Court in Bhagwan Munjaji v. State of Maharashtra1978 SCC (Cri) 428 : 1979 Cri LJ 49 and, Mohammad Mytheen Shanhud Hammed v. State of Kerala 1979 SCC (Cri) 1010 : 1980 Cri LJ

192. In face of the pronouncement of their Lordships of the Supreme Court, the view taken by the Lahore High Court cannot be regarded as a good law. It may be mentioned that the view taken by the Lahore High Court is solitary view on the point and has not been followed by any other High Court. Since there was no fight, exception (4) cannot be brought into play for the rescue of the accused. Reliance was also placed on certain observation made in Chamuru Budhwa v. State of Madhya Pradesh and Babulal v. State of Rajasthan 1976 Raj LW 345 : 1977 Cri LJ 59 by Mr. Garg to bring the case within exception (4). It may be stated at once that these two authorities do not cover a case of ‘fight’ as contemplated by Exception (4). These were the cases where only one blow was caused to the victim, and it was taken that it was due to exchange of abuses and hot words. There is nothing so like that in the instant case.

13. We have also examined the contention of Mr. Garg whether the case is covered by exception 1 of Section 300, I.P.C. The facts of the case do not permit us to apply this exception, either. The provocation is an external stimulus which should be objectively gained. Merely uttering abusive words would not amount to grave and sudden provocation. It is true that at times words and gestures may under certain circumstances cause grave and sudden provocation but in the instant case the facts do not disclose any cause of grave and sudden provocation for the accused. None of the three eye-witnesses stated that the victim addressed any abusive words to the accused nor any of them was cross-examined in this light. Of course, there is a reference in the FIR that there was “Gali Galauch” between the victim and the accused but there is no evidence to show that there was really an exchange of abuses between the victim and the accused. Even if we assume that there was “Gali Galauch”, in our opinion, it was not sufficient to cause grave and sudden provocation. Moreover, as has been stated by PW 1 Mohansingh and PW 2 Surjeet Kaur, the victim asked the accused to give up rowdyism and to be particular about his work as he had to support his mother and wife. It was a grand-parent’s advice to a grandson and if the, grandson makes a murderous assault on the grandfather because of his parental advice, we are unable to make out a case of grave and sudden provocation for the accused.

14. It was then argued that the offence made out is not covered by any of the first two clauses of Section 299 or Clauses 1 to 4 of Section 300, I.P.C. The victim was the real grandfather of the accused. He, therefore, could not be attributed the intention to kill him. What can be attributed to him is simply the knowledge. As such the case is covered by Clause III of Section 299 and the offence made out would fall under Clause II of Section 304, I.P.C. We are unable to accept this contention too. The victim was landed as many as ten blows. The frontal bone was found completely fractured. The lower jaw was also found fractured. The injuries were caused to vital organs. In cross-examination, Dr. Beniwal (PW 6) stated that external injury No. 7, which resulted in injuries Nos. 9 and 10, was in itself sufficient in the ordinary course of nature to cause death. The intention of the accused to kill is manifest when he inflicted mortal blows on the head of the victim resulting in the fracture of skull bones. The victim was an old man fully unarmed and defence less. The head injury was found to be sufficient in the ordinary course of nature to cause the death. The case is, therefore, squarely covered by Clause III of Section 300 and the offence made out is punishable under Section 302, I.P.C.

15. We are quite conscious that fouler the crime is, the clearer and plainer ought the proof of it to be. All the probabilities that appear from the evidence and surrounding circumstances should be taken into consideration while judging the question of the guilt and innocence of the accused. The evidence of the three eye witnesses cannot be put at discount when it is judged in the circumstances and background in which the offence was committed. The accused had a grudge against his grandfather who used to rebuke him off and on.

16. No other contention was raised. From what has been discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced.

17. The appeal of accused Gurasingh is consequently dismissed.

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.


Transfer of Malice under Indian Penal Code.

CASE NOTE : A true classic on Transmigration of Motive/Transfer of Malice cases. In this case the accused gave poisoned halwa to X who having enough to make him sick, threw it away – which was eaten by two children who died. Accused was held liable for death of these two children by aid of :-
i) S.299/300 talk about causing death (not of a specific person);
ii) S.301 – further fructifies this by saying 

(If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause) 

Madras High Court

Emperor vs Mushnooru Suryanarayana Murthy on 2 January, 1912
Equivalent citations: (1912) 22 MLJ 333
Author: Benson

JUDGMENT

Benson, J.

1. This is an appeal by the Public Prosecutor on behalf of Government against the acquittal of one Suryanarayana Murthi, on a charge of having murdered the girl, Rajalakshmi.

2. The facts of the case, so far as it is necessary to state them for the purposes of this appeal, are as follows:

The accused, with the intentipn of killing Appala Narasimhulu, (on whose life he had effected large insurances without Appala Narasimhulu’s knowledge, and in order to obtain the sums for which he was insured), gave him some sweetmeat (halva) in which a poison containing arsenic and mercury in soluble form had been mixed. Appala Narasimhulu ate a portion of the sweetmeat, and threw the rest away. This occured at the house of the accused’s brother-in-law where the accused had asked Appala Narasimhulu to meet him. Rajalakshmi, who was aged 8 or 9 years, and who was niece of the accused, being ,the daughter of accused’s brother-in-law, took some of the sweetmeat and ate it and gave some to another little child who also ate it. According it one account Rajalakshmi asked the accused for a portion of the sweetmeat, but according to the other account, which we accept as the true account, Appala Narasimhulu, after eating a portion of the sweetmeat threw away the remainder, and it was then picked up by Rajalakshmi without the knowledge of the accused. The two children who had eaten the poisoned sweetmeat, died from the effects of it, but Appala Narasimhulu, though the poison severely affected him, eventually recovered. The accused has been sentenced to transpiration for life for having attempted to murder Appala Narasimhulu. The question which we have to consider in this appeal is whether, on the facts stated above, the accused is guilty of the murder of Rajalakshmi.

3. I am of opinion that the accused did cause the death of Rajalakshmi and is guilty of her murder. The law on the subject is contained in Sections 299 to 301 of the Indian Penal Code and the whole question is whether it can properly be said that the accused “caused the death” of the girl, in the ordinary sense in which those words should be understood, or whether the accused was so indirectly or remotely connected with her death that he cannot properly be said to have “caused” it. It is not contended before us that the accused intended to cause the death of the girl, and we may take it for the purpose of this appeal that he did not know that his act was even likely to cause her death. But it is clear that he did intend to cause the death of Appala Narasimhulu. In order to effect this he concealed poison in a sweetmeat and gave it to him eat. It was these acts of the accused which caused the death of the girl, though no doubt her own action, in ignorantly picking up and eating the poison, contributed to bring about the result. Section 299 of the Indian Penal Code says : ” Whoever causes death by doing an act with the intention of causing death, or with the intention of Causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” It is to be observed that the section does not require that the offender should intend to kill (or know himself to be likely to kill) any particular person. It is enough if he “causes the death” of any one by doing an act with the intention of “causing death” to any one, whether the person intended to be killed or any one else. This is clear from the first illustration to the section, “A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.”

4. Nor is it necessary that the death should be caused directly by the action of the offender, without contributory action by the person whose death is caused or by some other person. That contributory action by the person whose death is caused will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the above illustration, and that contributory action by a third person will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the second illustration, viz., “A knows Z to . be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely t6 cause, Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence ; but A has committed the offence of culpable homicide.

5. The language of the section and the illustration seem to me to show that neither the contributory action of Appala Narasimhulu in throwing away part of the sweetmeat, nor the contributory action of the girl in picking it up and eating it prevent our holding that it was the accused who caused the girl’s death. The Indian Law Commissioners in their report (1846) on the Indian Penal Code call attention to the unqualified use of the words “to cause death ” in the definition of culpable homicide, and rightly point out that there is a great difference between acts which cause death immediately, and acts which cause death remotely, and they point out that the difference is a matter to be considered by the courts when estimating the effect of the evidence in each case. Almost all, perhaps all, results are caused by a combination of causes, yet we ordinarily speak of a result as caused by the most conspicuous or efficient cause, without specifying all the contributory causes. In Webster’s Dictionary ” cause ” is defined as ” that which produces or effects a result; that from which anything proceeds and without which it would not exist ” and again ” the general idea of cause is that without which another thing, called the effect, cannot be; and it is divided by Aristotle into lour kinds known by the name of the material, the formal, the efficient and the final cause. The efficient cause is the agent that is prominent or conspicuous in producing a change or result.”

6. In the present case 1 think that the accused’s action was the efficient cause of the girl’s death, though her own action in picking up and eating the poison was also necessary in order to effect her death ; just as in the illustration given in the Code the man who laid the turf and sticks over the pit with the intention of causing death was held to be the cause of the death of the man who ignorantly fell into the pit ; although the death would not have occurred if he had hot of his own free will walked to the spot where the pit was. The Code says that the man who made the pit is guilty of culpable homicide, and, in my opinion, the accused in the present case, who mixed the poison in sweetmeat and gave it to be eaten, is equally guilty of that offence. The mens rea which is essential to criminal responsibility existed with reference to the act done by the accused in attempting to kill Apala Narasimhulu, though not in regard to the girl whose death he, in fact, caused, and that is all that the section requires. It does not say ” whoever voluntarily causes death,” or require that the death actually caused should have been voluntarily caused. It is sufficient if death is actually, even though involuntarily, caused to one person by an act intended to cause the death of another. It is the criminality of the intention with regard to the latter that makes the act done and the consequence which follows from it an offence.

7. Turning now to Section 300, Indian Penal Code, we find that culpable homicide is murder if the act by which death ‘ is caused is done with the intention of causing death, and does not fall within certain specified exceptions, none of which are applicable to the present case.

8. It follows that the accused in the present case is guilty of murder, and this is rendered still more clear by Section 301 of the Code. The cases in which culpable homicide is murder under Section 300 are not confined to cases in which the act by which the death is caused is done with the intention of causing death. Section 300 specifies other degrees of intention or knowledge which may cause the ate to amount to murder, and then Section 301 enacts that ” if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”

9. The section does not enact any rule not deducible from the two preceding sections, but it declares in plain language an important rule deducible, as we have seen, from those sections, just as an explanation to a section does. The rule could not well be stated as an explanation to either Section 299 or Section 300 as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section., The rule makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill, a rule which though it does not lie on the surface of Section 299, yet is, as we have seen, deducible from the generality of the words ” causes death” and from the illustration to the section ; and the rule then goes on to state that the quality of the homicide, that is, whether it amounts to murder or not, will depend on the intention or knowledge which the offender had in regard to the person intended or known to be likely to be killed or injured, and not with reference to his intention or knowledge with reference to the person actually killed, a rule deducible from the language of the Sections 299 and 300 though not, perhaps, lying on their very surface. The conclusion, then, at which I arrive is that the accused in this case is guilty of murder as defined in Sections 299 to 301, Indian Penal Code.

10. This conclusion is in accord with the view of Norman Offg., C.J., and Jackson, J., in the case reported in 13 W. R. Criminal Letters, p. 2, where it is said: “The prisoner gave some poisoned rice water to an old woman who drank part herself and gave part to a little girl who died from the effect of the poison. The offence of the prisoner, under Section 301 of the Indian Penal Code, is murder.” That the present accused would be guilty of murder under English Law is clear from the case of Agnes Gore. In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband, which he ate but which did not kill him, but afterwards killed the Apothecary, who to vindicate his reputation, tasted it himself, having first stirred it about. ” It was resolved by all the Judges that the said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence ensued; i.e., the death of the said Martin; for the putting of the poison into the electuary is the occasion and cause ; and the poisoning and death of the said Martin is the event, quia eventus est qui ex causa sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary by Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death.” (King’s Bench 77 English Reports, p.853 at page 854).

11. A number of other English cases have been referred to, but it is unnecessary to discuss them as we must decide the case in accordance with the provisions of the Indian Penal Code, and these are not necessarily the same as the English Law.

12. In the result, I would allow the appeal by Government and convict the accused of the murder of Rajalakshmi.

13. The accused was originally sentenced to seven years’ rigorous imprisonment for having attempted to murder Appala Narasimhulu. This sentence was enhanced to one of transportation for life by this court acting as a court of revision in December, 1910, when this appeal was not before them. Looking to these facts I am unwilling to now impose a sentence of death, though it would have been appropriate if the accused had been convicted of murder at the original trial.

Sundara Aiyar, J.

14. In this case the accused Suryanarayana Murthi was charged by the Sessions Court of Ganjam with the murder of a young girl named Rajalakshmi and with attempt to murder one Appala Narasimhulu by administering poison to each of them on the 9th February 1910. He was convicted by the Sessions Court on the latter count but was acquitted on the former count and was sentenced to seven years’ rigorous imprisonment. He appealed against the conviction and sentence in Criminal Appeal No. 522 of 1910, and this court confirmed the conviction and enhanced the sentence to transportation for life. The present appeal is by the Government against his acquittal on the charge of murdering Rajalakshmi.

15. The facts as found by the lower court are that the accused, who was a clerk in the Settlement Office at Chicacole, got the life of Appala Narasimhulu, the prosecution 1st witness, insured in two Insurance Companies for the sum of Rs. 4,000 in all, having paid the premia himself; that the 2nd premium for one of the insurances fell due on the 12th January, 1910, and the grace period for its payment would elapse on the 12th February, 1910; that the prosecution 1st witness being at the same time badly pressed for means of subsistence asked the accused for money on the morning of 9th February ; that the latter asked him to meet him in the evening at the house of his (the accused’s) brother-in-law, the prosecution 8th witness; that at the house the accused gave the prosecution 1st witness a while substance which he called ‘ halva’ but which really contained arsenic and mercury in soluble form ; that the prosecution 1st witness having eaten a portion of the halva threw aside the rest; that it was picked up by the daughter of the prosecution 8th witness, the deceased Rajalakshmi, who ate a portion of it herself and gave another portion to a child of a neighbour ; and that both Rajalakshmi and the other child were seized with vomiting and purging and finally died, Rajalakshmi some four days after she ate the halva and the child two days earlier. After the prosecution 1st witness had thrown away the halva both he and the accused went to the bazaar and the accused gave prosecution 1st witness some more halva. The prosecution 1st witness suffered in consequence for a number of days but survived. The accused, as already stated, has been sentenced to transportation for life for attempting to murder the prosecution 1st witness.

16. The case for the prosecution with reference to the poisoning of Rajalakshmi was, as sworn to by the prosecution 1st witness, that, when the accused gave him the halva, the girl asked for a piece of it and that the accused, though he reprimanded her at first, gave her a small portion. But I agree with the learned Sessions Judge that this story is improbable. The girl was the accused’s own niece being his sister’s daughter. He and her father (the prosecution 8th witness) were on good terms. He had absolutely no motive to kill her, and there was no necessity for giving her the halva. The accused, in his statement to the Magistrate (the prosecution 22nd witness) soon after the occurrence, said that the girl had picked up the halva and eaten it. He had made a similar statement to the prosecution 8th witness when the latter returned to his house on the evening of the 9th immediately after the girl had eaten it. This statement is in accordance with the probabilities of the case, and I accept the Sessions Judge’s finding that the halva was not given to the girl by the accused but picked up by her after the prosecution 1st witness had thrown it way. The question we have to decide is whether, on these facts, the accused is guilty of the murder of the girl. At the conclusion of the arguments we took time to consider our judgment, as the point appeared to us to be one of considerable importance, but we intimated that, even if the accused should be held to be guilty of murder, we would not consider it necessary, in the circumstances, to inflict on him the extreme penalty of the law.

17. It is clear that the accused had no intention of causing the death of the girl Rajalakshmi. But it is contended that the accused is guilty of murder as he had the intention of causing the death of the prosecution 1st witness, and it is immaterial that he had not the intention of causing the death of the girl herself. Section 299, Indian Penal Code, enacts that whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Section 300 says “culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death.” Section 301 lays down that ” if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” The contention of the learned Public Prosecutor, to put it very shortly, is (1) that it was the accused’s act that caused the death of the girl and (2) that the accused had the intention of causing death when he gave the poison to the prosecution 1st witness and was, therefore, guilty of any death that resulted from his act. He urges that the sections of the Penal Code practically reproduce the English Law according to which the causing of death with malice aforethought, though the malice may not be directed against a particular individual whose death ensues, would amount to murder. Before referring to the English Law, I shall consider the provisions of the Penal Code bearing on the subject. If Mr. Napier’s contention be sound it would make no difference whether Appala Narasimhulu, the prosecution 1st witness, also died in consequence of the poison or not; nor would it make any difference if, instead of the poison being picked up by the girl and eaten by herself, she gave it to some one else and that one to another again and so on if it changed any number of hands. The accused would be guilty of the murder of one and all of the persons who might take the poison, though it might’ have been impossible for him to imagine that it would change hands in the manner that it did. The contention practically amounts to saying that the intervention of other agencies, and of any number of them, before death results, would make no difference in the guilt of the accused, that causing death does not mean being the proximate cause of death, but merely being a link in the chain ot the cause or events lea-ding to the death and that further any knowledge on the part of the accused that such a chain of events might result from his act is quite immaterial. It is, prima facie, difficult to uphold such an argument. Now is there anything in the sections of the Penal Code to support it? Section 39 provides that ” a person is said to cause an effect’ voluntarily ‘ when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.” The illustration to the section is that if a person sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery, and thus causes the death of a person, he would be taken to have caused the death voluntarily if he knew that he was likely to cause it even though he may not have intended to cause death and may even be sorry that death had been caused by his act. The section and the illustration both show that causation with respect to any event involves that the person should have knowledge that the event was likely to result from his act. Section 299, Indian Penal Code, in my opinion, does not lead to a different conclusion. But before dealing with it, I must turn to Section 301, Indian Penal Code. That section apparently applies to a cause where the death of the person whose death was intended or known to be likely to occur by the person doing the act, does not, as a fact, occur but the death of some one else occurs as the result of the act done by him. It evidently does not apply where the death both of the person whose death was in contemplation and of another person or persons, had occurred. Can it be said that, in such a case, the doer of the act is guilty of homicide with reference to those whose death was not intended by him and could not have been foreseen by him as likely to occur ? Are we to hold that a man who knows that his act is likely to cause the death of one person is guilty of the death of all the others who happen to die, but whose death was far beyond his imagination? Such a proposition it is impossible to maintain in criminal law. Section 301 of the Indian Penal Code has reference to a case where a person intending to cause the death of A, say by striking or shooting him, kills B because B is in the place where he imagined A to be, or B rushes in to save A and receives the injury intended for A. The reason for not exculpating the wrong-doer in such cases is that he must take the risk of some other person being in the place where he expected to find A, or, of some one else intervening between him and A. The section is a qualification of the rule laid down in Section 299 and is evidently confined to cases where the death of the person intended or known to be likely to be killed does not result. If the Public Prosecutor’s general proposition were right, Section 301 of the Indian Penal Code would seem to be unnecessary, as Section 299 would be quite enough. If a person is intended by Section 299 to be held to be guilty for deaths which are not known to be likely to occur, then that section might itself have been worded differently so as to show that the particular death caused need not have been intended or foreseen and what is more important, Section 301 of the Indian Penal Code would not be limited to cases where the death of the particular individual intended or foreseen does not occur. The general theory of the criminal law is that the doer of an act is responsible only for the consequences intended or known to be likely to ensue; for otherwise he could not be said to have caused the effect ” voluntarily,” and a person is not responsible for the involuntary effects of his acts. Illustrations A and B, in my opinion, support this view. Sections 323 and 324 show that a person is responsible in the case of hurt or grievous hurt only for what he causes voluntarily ; and Section 321 shows that hurt to the particular person in question must have been intended or foreseen. In the eye of the law, no doubt, a man will be taken to have foreseen what an ordinary individual ought to foresee, and it will not be open to him to plead that he himself was so foolish as, in fact, not to foresee the consequence of his act. A person might, in some cases, be responsible for effects of which his act is not the proximate cause where the effect is likely to arise in the ordinary course of events to result from the act. This rule will certainly hold good where a person’s act set in motion only physical causes which lead to the effects actually occurring ; when the effect is not due merely to physical causes set in operation by an act, but other persons’ wills intervening are equally necessary causes with the original act to lead to the result, it is more difficult to decide whether the act in question can be said to be the cause of the effect finally produced. The Code throws very little light on the question, Ordinarily, a man is not criminally responsible for the acts of another person, and ordinarily his act should not be held to be the cause of a consequence which would not result without the intervention of another human agency. Sir J. Fitz James Stephen in his ‘History of the Criminal Law of England,’ Vol. III, p. 8, says : ” A more remarkable set of cases arc those in which death is caused by some act which does unquestionably cause it, but does so through the intervention of the independent voluntary act of some other person. Suppose, for instance, A tells B of facts which operate as a motive to B for the murder of C. It would be an abuse of language to say that A had killed C, though no doubt he has been the remote cause of C’s death.” The learned author proceeds to point out that, even when a person counsels, procures or commands another to do an act, he would be only guilty as an abettor but not as a principal offender whose act caused the result, say murder. This is the well settled principle of the English Law, though there appear to be one or two exceptions, to be hereafter pointed out. No such exceptions are mentioned in the Indian Code. They may perhaps be recognised where the doer of the act knew that it would be likely that his own act would lead other persons, not acting wrongfully, to act in such a manner as to cause the effect actually produced. But the scope of the exceptions cannot cover those cases where the doer could not foresee that other persons would act in the manner indicated above. This is the principle adopted in determining civil liability for wrongs. See the discussion of the question in Baker v. Snell (1908) 2 K.B. 825. A stricter rule cannot be applied in cases of criminal liability.

18. Now, can it be said that the accused, in this case, knew it to be likely that the prosecution 1st witness would give a portion of the halva to the girl Rajalakshmi? According to Section 26 of the Indian Penal Code ” a person is said to have ‘reason to believe’ a thing if he has sufficient cause to believe that thing but not otherwise.” A trader who sells a basket of poisoned oranges may be said to have sufficient ‘ reason to believe’ that the buyer would give them to various persons to eat; but one who gives a slice of an orange to another to eat on the spot could not be said to have sufficient ‘ reason to believe’ that he would give half of that slice to another person to eat or that he would throw away a portion and that another would eat it. The poison was thrown aside here not by the accused but by the prosecution 1st witness. The girl’s death could not have been caused but for the intervention of the prosecution 1st witness’s agency. The case, in my opinion, is not one covered by Section 301 of the Indian Penal Code. The conclusion, therefore, appears to follow that the accused is not guilty of culpable homicide by doing an act which caused the death of the girl. Mr. Napier, as already mentioned, has contended that the law in this country on the question is really the same as in England; and he relies on two English cases in support of his contention, viz., Saunder’s case and Agnes Gore’s case. I may preface my observations on the English Law by citing Mr. Mayne’s remark that “culpable homicide is perhaps the one branch of criminal law in which an Indian student must be most careful in accepting the guidance of English authorities.” According to the English Law ” murder is the unlawful killing, by any person of sound memory and discretion, of any person under the King’s peace, with malice aforethought, either express or implied by law. This malice aforethought which distinguishes murder from other species of homicide is not limited to particular ill-will against the persons slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit ; a heart regardless of social duty, and deliberately bent upon mischief. Any formed design of doing mischief may be called malice ; and therefore, not only killing from premeditated hatred or revenge against the person killed, but also, in many other cases, killing accompanied with circumstances that show the heart to be previously wicked is adjudged to be killing of malice aforethought and, consequently, murder.”-RUSSELL on Crimes and Misdemeanors, 7th Edition, Volume I, page 655. It will be observed that, in this definition, malice is made an essential requisite, and all cases have to be brought under it. Knowledge that the act is likely to cause death is not part of the definition Nor have we any words to import what is contained in the explanations to Section 299 of the Indian Penal Code or in Cls. 2, 3 and 4 of Section 300. The law was worked out of England to its present condition by a series of judicial decisions. This accounts for the statement that general malice is enough and that it need not be directed against the particular individual killed. Hence also the proposition that wicked intention to injure is enough and intention to kill that individual is not necessary. See ROSCOE’S Criminal Evidence, 13th Edition, pages 617 to 619. Malice again is explained to mean malice implied by law as well as malice in fact. The result is, the law in England is not as different from that in India as a comparison of the definitions might, at first sight, indicate. This is apparent from the statement of the English Law at pp. 20-22, Vol. III of Stephen’s History of the Criminal Law. The statement, however, shows that the law is not identical in both countries. In England an intention to commit any felony will make the act murder if death results. Again ” if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a crime, the inciter is the principal ex necessitate, though absent when the thing was done. In point of law, the act of the innocent agent is as much the act of the procurer as if he were present and did the act himself.” See RUSSELL on Crimes, Vol. I, page 104. The Indian law does not make the abettor guilty of the principal offence in such circumstances. There is also a presumption in the English Law that ” all homicide is malicious and murder, until the contrary appears from circumstances of alleviation, excuse, or justification ; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and Jury, unless they arise out of the evidence produced against him.” See Russell on Crimes, Vol. I, page 657. There is no such presumption here. In Saunder’s case as stated in Roscoe’s Criminal Evidence, p. 154, the prisoner intending to poison his wife gave her a poisoned apple which she, ignorant of its nature, gave to a child who took it and died. This was held murder in the husband, although being present he endeavoured to dissuade his wife from giving it to the child. In Hale’S Pleas of the Crown, Vol. I, p. 436, it is not stated that the prisoner endeavoured, to dissuade his wife from giving the apple to the child. On the other hand, the author says : ” If A commands or counsels B to kill C and before the fact is dose A repents and comes to B and expressly discharges him from the fact and countermands it, if after this countermand B does it, it is murder in B; but A is not accessory.” The decision apparently proceeded on the English rule that the innocence of the intervening agent had the effect of holding the prisoner liable as the principal offender. In Agnes Gore’s case (1614) 77 E.R. 853 the wife who mixed ratsbane in a potion sent by the apothecary to her husband which did not kill him but killed the apothecary who, to vindicate his reputation, tasted it himself, having first stirred it up, was held guilty of murder because the wife had the intention of killing the husband though not of killing the apothecary. It is possible that an Indian court may hold in such a case that it was the duty of the wife to warn and prevent the apothecary from tasting the potion and that she was guilty of an illegal omission in not doing so. Whether the case might not come under Section 301, Indian Penal Code, also it is unnecessary to consider. In The Queen v. Latimer (1886) 17 Q.B.D.359 ” the prisoner, in striking at a man, struck and wounded a woman beside him. At the trial of an indictment against the prisoner under 24 and 25 Vic. C 100, Section 20, for unlawfully and maliciously wounding her, the Jury found that the blow ‘ was unlawful and malicious and did in fact wound her, but that the striking of her was purely accidental and not such a consequence of the blow as the prisoner ought to have expected.’ The Court of Crown Cases Reserved held that the prisoner was guilty. The decision proceeded upon the words of the statute. Section 18 enacted that “whosoever shall unlawfully and maliciously cause any grievous bodily harm to any person with malicious intent shall be guilty of felony.” Then Section 20, leaving out the intent, provided that whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be guilty of misdemeanour. Lord Coleridge, C.J., pointed out that the language of Sections 18 and 20 was different and that the earlier statute had been altered which provided that the intention should be against the person injured. In Regina v. Michael, where a bottle containing poison was put on the mantel-piece where a little child found it and gave part of the contents to the prisoner’ child who soon after died, the Judges were of opinion that ” the administering of the poison by the child was under the circumstances of the case as much in point of law an administering by the prisoner as if the prisoner had actually administered it with her own hand.” This decision also, no doubt, proceeded on the ground of want of discretion in the intervenor, the child. The Indian courts may hold that a person who keeps poison at a place where others might have access to it must be taken to know that death is likely to result from the act. It is clear that English decisions are not always a safe guide in deciding cases in this country where the provisions of the Penal Code must be applied. In Shankar Balkrishna v. King-Emperor (1904) I.L.R. 32 Cal. 73 the Calcutta High Court held that the prisoner in the case, an Assistant Railway Station Master, was not liable where death would not have resulted if the guard had not acted carelessly, as the prisoner could not be taken to know that the accident to the train which resulted in the loss of human life was likely to lead to death. In In re The Empress v. Sahae Rae (1877) I.L.R. 3 Cal. 623 which may be usefully compared with The Queen v. Latimer (1886) 17 Q.B.D.359 and where also the prisoner was held guilty, the decision was put on the ground that the prisoner knew it to be likely that the blow would fall on a person for whom he had not intended it. Holding, as I do, that, in the circumstances of this case, the prisoner could not be said to have known that it was likely that the prosecution 1st witness would throw aside the halva so as to be picked up and eaten by some one else and that the prisoner was not responsible, in the circumstances, for the voluntary act of prosecution 1st witness, I must come to the conclusion that the prisoner is not guilty of the murder of the girl Rajalakshmi. It is not contended that there was a legal duty on the part of the accused to prevent the girl from eating the halva and that he was guilty of murder by an illegal omission.

19. I would uphold the finding of acquittal of the lower court and dismiss the appeal.

Benson, J.

20. As we differ in our opinion as to the guilt of the accused, the case will be laid before another Judge of this court, with our opinions under Section 429, Criminal Procedure Code.

21. This appeal coming on for hearing under the provisions of Section 429 of the Code Criminal Procedure

The Court delivered the following

Rahim, J.

22. The question for decision is whether the accused Suryanarayanamurti is guilty of an offence under Section 302, Indian Penal Code, in the following circumstances He wanted to kill one Appala Narasimhulu on whose life he had effected rather large insurances and for that purpose gave him some halva (a sort of sweet meat), in which he had mixed arsenic and mercury in a soluble form, to eat. This was at the house of the accused’s brother in-law, where Appala Narasimhulu had called by appointment. The man ate a portion of the halva, but not liking its taste threw away the remainder on the spot. Then, according to the view of the evidence accepted by my learned brothers Benson and Sundara Aiyar JJ., as well as by the Sessions Judge, a girl of 8 or 9 years named Rajalakshmi, the daughter of the accused’s brother-in-law, picked up the poisoned halva, ate a portion of it herself, and gave some to another child of the house. Both the children died of the effects of the poison, but Appala Narasimhulu, the intended victim, survived though after considerable suffering. It is also found as a fact, and I agree with the finding, that Rajalakshmi and the other girl ate the halva without the knowledge of the accused, who did not intend to cause their deaths. Upon these facts Benson J. would find the accused guilty of the murder of Rajalakshmi, while Sundara Aiyar J., agreeing with the Sessions Judge, holds a contrary view.

23. The question depends upon the provisions of the Indian Penal Code on the subject as contained in Section 299 to 301. The first point for enquiry is whether the definition of culpable homicide as given in Section 299 requires that the accused’s intention to cause death or his knowledge that death is likely to be caused by his act in question must be found to exist with reference to the particular person whose death has actually been caused by such act, or is it sufficient for the purposes of the section if criminal intention or knowledge on the part of the accused existed with reference to any human being, though the death oi the person who actually fell a victim to the accused’s act was never compassed by him. I find nothing in the words of the section which would justify the limited construction. Section 299 says: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” The language is perfectly general; all that it requires is that there should be an intention to cause death or a knowledge that death is likely to be the result, and there is nothing in reason which, in my opinion, would warrant us in saying that the homicidal intention or knowledge must be with reference to the life of the person whose death is actually caused. The law affords protection equally to the lives of all persons, and once the criminal intention, that is, an intention to destroy human life, is found, I do not see why it should make any difference whether the act done with such intention causes the death of the person aimed at or of some one else. Illustration (a) to Section 299 makes it quite clear that the legislature deliberately employed general and unqualified language in order to cover cases where the person whose death is caused by the act of the accused was not the person intended to be killed by him but some other person. Section 301 also supports this construction as it assumes that the accused in such cases would be guilty of culpable homicide; and I may here point out that the object of this section is to lay down that the nature of culpable homicide of which the accused in these cases would be guilty, namely whether murder or not, would be the same as he would have been guilty of, if the person whose death was intended to be brought about had been killed. Now the first paragraph of Section 300 declares that culpable homicide shall be deemed to be murder if the act by which death is caused is done with the intention of causing death, using so far the very words of Section 299. In the 2nd and 3rd paragraphs of Section 300 the language is not quite identical with that of the corresponding provisions in Section 299, and questions may possibly arise whether where the fatal act was done not with the intention of causing death but with the intention of causing such bodily injury as as likely to cause death, or with the knowledge that the accused is likely by such act to cause death, the offence would be one of murder or culpable homicide not amounting to murder. But it is not necessary for me to express any opinion on these matters as in the present case the prisoner undoubtedly intended to cause death.

24. The next point for consideration is whether the death of Rajalakshmi was caused by the accused’s act within the meaning of Section 299. The question is really one of fact or of proper inference to be drawn from the facts. That girl’s death was caused by eating the sweetmeat in which the accused had mixed poison and which he brought to the house where the girl lived in order to give it to the man for whom it was intended. It was given to him, but he, not relishing the taste of it, threw it down. The deceased girl soon afterwards picked it up and ate it, But the accused was not present when Rajalakshmi ate it, and we may even take it that, if the accused had been present, he would have prevented the girl from eating the sweetmeat. These being the facts, there can be, however, no doubt, that the act of the accused in mixing arsenic in the halva and giving it to Appala Narasimhalu in Rajalakshmi’s house was one cause in the chain of causes which brought about the girl’s death. The question then is whether this act of the accused was such a cause of Rajalakshmi’s death as to justify us in imputing it to such act. In my opinion it was. Obviously it is not possible to lay down any general test as to what should be regarded in criminal law as the responsible cause of a certain result when that result, as it often happens, is due to a series of causes. We have to consider in each case the relative value and efficiency of the different causes in producing the effect and then to say whether responsibility should be assigned to a particular act or not as the proximate and efficient cause. But it may be observed that it cannot be a sufficient criterion in this connection whether the effect could have been produced in the case in question without a particular cause, for it is involved in the very idea of a cause that the result could not have been produced without it. Nor would it be correct to lay down generally that the intervention of the act of a voluntary agent must necessarily absolve the person between whose act and the result it intervenes. For instance, if A mixes poison in the food of B with the intention of killing B and B eats the food and is killed thereby, A would be guilty of murder even though the eating of the poisoned food which was the voluntary act of B intervened between the act of A and B’s death. So here the throwing aside of the sweetmeat by Appala Narasimhulu and the picking and the eating of it by Rajalakshmi cannot absolve the accused from responsibility for his act. No doubt the intervening acts or events may sometimes be such as to deprive the earlier act of the character of an efficient cause. Now, suppose, in this case Appala Narasimhulu had discovered that the sweetmeat was poisoned and then gave it to Rajalakshmi to eat, it is to his act that Rajalakshmi’s death would be imputed and not to the accused’s. Or suppose Appala Narasimhulu, either suspecting that the sweetmeat was poisoned or merely thinking that it was not fit to be eaten, threw it away in some unfrequented place so as to put it out of harm’s way and Rajalakshmi happening afterwards to pass that way, picked it up, and ate it and was killed, the act of the accused in mixing the poison in the sweetmeat could in that case hardly be said to have caused her death within the meaning of Section 299. On the other hand, suppose Appala Narasimhulu, finding Rajalakshmi standing near him and without suspecting that there was anything wrong with the sweetmeat, gives a portion of it to her and she ate it and was killed, could it be said that the accused who had given the poisoned sweetmeat to Appala Narsimhulu was not responsible for the death of Rajalakshmi ? I think not. And there is really no difference between such a case and the present case. The ruling reported in 13 W.R.Cr. Letters, p. 2, also supports the view of the law which I have tried to express.

25. Reference has been made to the English law on the point and though the case must be decided solely upon the provisions of the Indian Penal Code, I may observe that there can be no doubt that under the English Law as well the accused would be guilty of murder. In English Law it is sufficient to show that the act by which death was caused was done with malice aforethought, and it is not necessary that malice should be towards the person whose death has been actually caused. This is well illustrated in the well-known case of Agnes Gore (1614)77 E.R. 853 and in Saunder’s case I. Hale P.C. 431 and also in Regina V. Michael 9 C and P. 356. No doubt” malice aforethought,” at least according to the old interpretation of it as including an intention to commit any felony, covers a wider ground in the English Law than the criminal intention or knowledge required by Sections 299 and 300, Indian Penal Code, but the law in India on the point in question in this case is undoubtedly, in my opinion, the same as in England.

26. Agreeing therefore with Benson J., I set aside the order of the Sessions Judge acquitting the accused of the charge of murder and convict him of an offence under Section 302, Indian Penal Code. I also agree with him that, in the circumstances of the case, it is not necessary to impose upon the accused the extreme penalty of the law, and I sentence the accused under Section 303, Indian Penal Code, to transportation for life.


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.

Emporer v. Dhirajia – On Murder S.300 IPC

 
Allahabad High Court
Emperor vs Mt. Dhirajia on 4 June, 1940
Equivalent citations: AIR 1940 All 486
Author: Braund

JUDGMENT

Braund, J.

1. This is an appeal of some little interest. The appellant is a young woman of 20 who was tried for murder by the Sessions Judge of Benares and who was tried at the same time for attempted suicide by a jury. The result of the trial by the Sessions Judge with the aid of his assessors-who were of course the same people who constituted the jury-was that he convicted the appellant of murder under Section 302, I.P.C. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge, as logically he was bound to do, was unable to agree with the verdict of not guilty upon the charge of attempted suicide and he has therefore referred the case to us under Section 307, Criminal P.C., with the recommendation that the jury’s verdict should be set aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way we have before us the appellant’s own appeal against her conviction and sentence under Section 302, I.P.C., and the learned Sessions Judge’s reference recommending us to set aside the verdict of the jury and to substitute a conviction upon the charge of attempted suicide as well.

2. We need hardly say that this is one of those cases common in these provinces in which a young woman with her baby in her arms had jumped or fallen down a well. The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and when he reached a point close to the railway line he saw her making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury. Upon these facts Mt. Dhirajia was, as we have said, charged with the murder of her baby and with an attempt to commit suicide herself. At that stage it is desirable that we should look at her own statements. She has put forward her version of the affair on three separate occasions: first by a statement in the nature of a confession; secondly, before the committing Magistrate, and thirdly in the Court of the Sessions Judge. The first two of these are identical and we need only, therefore, actually discuss the one before the Magistrate. She was asked:

Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to commit suicide?

3. This was her answer:

There had been a quarrel in my house for three or four days. My husband threatened to beat me. Thereupon I fled away. He followed me. When I saw my husband coming after me, I through fear jumped into the well.

4. And later in another answer she said:

Yes, I jumped into the well. I did not know that she would the (by doing so). I jumped into the well through fear of my husband.

5. That was perfectly clear and to our minds, quite straightforward statement of fact and we cannot but regret that in the Sessions Court her statement was changed. There-possibly on advice-she changed her story and alleged that she did not jump into the well at all but fell into it by accident. In those circumstances she was tried. The only issue to which the learned Sessions Judge appears to have addressed his mind, either in his own deliberations upon the charge under Sec. 302 or in his charge to the jury under Section 309 was whether as a fact Mt. Dhirajia jumped into the well or fell into it. His conclusion as expressed in his own judgment is:

I am, therefore, of opinion that the evidence of Jhagga supported as it is by the two previous statements of the accused clearly shows that the accused had jumped down into the well and had not fallen down accidentally.

6. He then assumes that it is a case of murder. In the same way the whole purport of his charge to the jury was that they had merely to decide whether she had jumped deliberately or fallen by accident into the well. We ourselves, having read the evidence with considerable care, are satisfied that the story of the falling into the well by accident is not true. We are satisfied upon the fact that the story told by the appellant in her own statement before the Magistrate is in substance the true version of what happened. It is, indeed, supported by the prosecution evidence itself because one cannot read her husband’s evidence without coming to the conclusion that the woman was in a panic when she saw her husband coming after her. And we believe that what she did, she did in terror for the purpose of escaping from her husband.

7. Now, upon those facts, what we have to consider-and what we think the learned Sessions Judge ought to have considered-is whether this satisfies the charges of murder and of attempted suicide, and if not what the woman has been guilty of. This raises questions which are not altogether free from difficulty and are of some interest. To take first the charge of murder, as we all know, according to the scheme of the Penal Code, ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300, Penal Code, is designated ‘murder’ or whether it falls within that residue of cases which are covered by Section 304 and are designated ‘culpable homicide not amounting to murder.’ In order to ascertain whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says:

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

8. In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia an intention to cause the death of her baby. We are satisfied that no such intention was ever present in her mind. Indeed we think there was no room in her mind for any such intention having regard to the panic that she was in. But we have to consider whether what she did, she did with the ‘knowledge’ that she was likely by such act to cause death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that we cannot in this case having regard to all the circumstances attribute to this unfortunate woman the ‘knowledge’ of anything at all at that particular moment. We desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on behalf of the Government, has very properly and with great ability represented the appellant herself who was not otherwise represented. We are grateful for his argument from which we have derived great assistance. The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had no ‘intention’ but she could have had no knowledge either. We regret that we are unable to go as far as this. ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to be a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us-treating Mt. Dhirajia as a sane person, which we are bound to do-to conclude that she could possibly have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that baby’s death. We do not think we can.

9. We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. We have been pressed with cases by Mr. Saran in which when blows have been struck, it has been discussed whether knowledge of the likely consequences of those blows can be attributed to the striker. But we venture to think that such cases as these are fundamentally different from the case before us. A blow is not per se a necessarily fatal act, especially if the blow be given with the fist or with one of the less lethal weapons. This is a question of degree, a question of force, a question of position and so forth, and therefore in these cases there is ample room for argument as to whether in any particular case, having regard to the manner in which the particular blow or blows in that case was or were delivered, there was behind it knowledge that it was likely to result in death. But, in this case, the character of the act is in our opinion, fundamentally different. The act of jumping into a well with a six-months old baby in one’s arms can, in our opinion, but for a miracle, have only one conclusion and we regret that we have to assume that consequence must have been within the knowledge, but not within the intention of Mt. Dhirajia.

10. For these reasons we think that this was a case of culpable homicide. We must now proceed to consider whether or not it was murder. We do not propose to set out verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that in four cases culpable homicide is always murder, subject to certain specified exceptions. The first three cases in which culpable homicide is designated as murder are all cases in which there is found a positive ‘intention’ in the doer of the act. We need not waste time on these because, as we have already said, we do not think that in the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or active intention at all. The only case we need discuss is the fourth which is in these words:

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.

11. That is the fourth case in which culpable homicide is murder. We have already found that Mt. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that “such act” must be “without any excuse for incurring the risk of causing death….” The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it is so imminently dangerous that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred-even a risk of the gravest possible character which must normally result in death-the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse. We must consider in assessing what is excuse or is not excuse the state of mind she Was in. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. We think she had excuse and that excuse was panic or fright or whatever you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of murder.

12. Upon this reasoning however we cannot escape from Section 304. It must inevitably follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the charge upon which she should have been convicted and not upon the charge of murder. Before we leave this part of the case we desire to refer to one more authority to which our attention has been called by Mr. Saran. That is Supadi Lukadu v. Emperor (25) 12 AIR 1925 Bom 310. The case was a curious one in which a girl of 17 years of age, who too was ill-treated by her husband jumped with her baby into a well when she found that her husband prevented her from returning to her parents. In that case she was carrying the baby on her back and the learned Judges who tried it in the Bombay High Court on appeal came to the conclusion that on the facts of that case she was not aware at all that she even had a baby with her. No doubt upon the facts of that particular case that conclusion was justified. But we desire to say that we are not ourselves prepared to apply it to the case before us. The facts in the case before us are different and we should not be justified, we think, in looking for evidence which does not exist in order to enable us to come to a conclusion which the facts do not warrant. There is nothing upon this record which could enable us upon any reasonable view of the matter to assume that Mt. Dhirajia was not aware that she had he baby with her. We have found it necessary to resist the temptation in this case to adopt the facts to what our own desires might be because we think that such a course must necessarily be dangerous and wrong.

13. As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was rightly acquitted. To our minds, the word ‘attempts’ connotes some conscious endeavour to do the act which is the subject of the particular section. In this case the act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take her own life. We do not think she did. She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned therefore, the result of the appeal is that the appellant’s conviction under Section 302, I.P.C., is set aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned Judge’s reference to us is concerned, we are unable to accept it and the verdict of not guilty passed by the jury must stand.

14. There only remains the question of sentence upon the conviction under Section 304 which we have substituted for the conviction under Section 302, I.P.C. It is obvious that this is not a case deserving of a severe punishment. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months’ rigorous imprisonment which in effect means that she will be at once released unless she is required upon some other charge.

Virsa Singh v. State of Punjab – SC on Murder S.300 IPC

 Comment : The Court held that to bring a case under section 300 IPC Part 3 – the prosecution need not prove that the accused knew the injury to be sufficient in the ordinary course of nature to cause death – this would be too onerous – and would be tantamount to requiring a direct intention to cause death – which is already provided in clause 1, two clauses in the same section can’t be made to cater to same situation. Hence in these cases only these things need to be proved :-
i) Quite objectively – bodily injury present;
ii) This particular injury intended to be caused (that is – it is not accidental) 
iii) then begins the objective examination – expert opinion – whether sufficient in the ordinary course of nature to cause death or mere likely to cause death – here the difference is merely the probability of fatality from injury. Former – is murder. Latter is Culpable Homicide not amounting to Murder
 
Supreme Court of India
Virsa Singh vs The State Of Punjab on 11 March, 1958
Equivalent citations: 1958 AIR 465, 1958 SCR 1495
Bench: Bose, Vivian

PETITIONER:

VIRSA SINGH.

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT:

11/03/1958

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

IMAM, SYED JAFFER

GAJENDRAGADKAR, P.B.

CITATION:

1958 AIR 465 1958 SCR 1495

ACT:

Criminal Trial–Culpable homicide amounting to murder– Prosecution to Prove-Presence and Nature of Injury -Intention to cause that Particular Injury, which was not accidental or unintentional and was sufficient to cause death in the ordinary (course of nature–Indian Penal Code (Act XLII of 1860), s. 300, 3rdly.

HEADNOTE:

The accused thrust a spear into the abdomen of ,he deceased. This injury caused his death. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. It was found by the Sessions judge that the accused intended to cause grievous hurt only. In his opinion however the third clause Of S. 300 Indian Penal Code applied. He accordingly convicted and sentenced the accused under S. 302 India, Penal Code. The High Court upheld the conviction, It was argued that the third clause Of s. 300 Indian Penal Code did not apply as it was not proved that the accused intended to inflict a

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bodily injury that was sufficient to cause death in the ordinary course of nature as s. 300 Indian Penal Code third clause states, ” If it is done 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

Held, that the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.

(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved; these are purely objective investigations.

(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The third clause of S. 300 Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words ” and the bodily injury intended to be inflicted ” are merely descriptive. All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature ; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90 of 1957.

Appeal by special leave from the judgment and order dated November 21, 1956, of the Punjab High Court in Criminal Appeal No. 326 of 1956 arising out of the judgment and order dated June 26, 1956, of the Court of the Sessions Judge at Ferozepore in Sessions Case No. 8 of 1956. Jai Gopal Sethi and R. L. Kohli, for the appellant. N. S. Bindra and T. M. Sen, for the respondent. 1958. March 11. The Judgment of the Court was delivered by

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BOSE J.-The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to ” the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner.”

The appellant was tried with five others under sss. 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302.

The other, were acquitted of the murder charge by the first Court but were convicted under ss. 326, 324 and 323 read with s. 149, Indian Penal Code. On appeal to the High Court they were all acquitted.

The appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld by the High Court.

There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was ” a punctured wound 2″ x 1/2″ transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that

” Three coils of intestines were coming out of the wound.” The incident occurred about 8 p. m. on July 13, 1955. Khem Singh died about 5 p. m. the following day. The doctor who conducted the postmortem described the injury as-

” an oblique incised stitched wound 21/2″ on the lower part of left side of belly, 13″ above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines

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and there were six cuts……… at various places, and digested food was flowing out from three cuts.” The doctor said that the injury was sufficient to cause death in the ordinary course of nature.

The learned Sessions Judge found that the appellant was 21 or 22 years old and said-

” When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer.”

Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code.

The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting “. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted:

” If it is done 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.”

It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary 1499

course of nature, then the intention is to kill and in that event, the “thirdly ” would be unnecessary because the act would fall under the first part of the section, namely- ” If the act by which the death is caused is done with the intention of causing death.”

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: “If it is done with the intention of causing bodily injury to any person.”

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. Once that is found, the enquiry shifts to the next clause- ” and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.” The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining 190

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” and the bodily injury intended to be inflicted ” is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on common sense: the kind of enquiry that ” twelve good men and true could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly ” ; First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

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Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. We were referred to a decision of Lord Goddard in R v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: (1) [1947] 1 All E. R. 813, 816.

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“if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.”

We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment:

“No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.”

That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (1) where Beaman J. says that- ” where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended.”

With due respect to the learned Judge he has linked (1) (1917) I. L. R. 41 Bom. 27,29.

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up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If be can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.- But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not One of law but

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one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.

The appeal is dismissed.

Appeal dismissed.

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.