1. This case has been, referred to mo under Section 429 of the Criminal Procedure Code on account on a difference of opinion between two 3udgea of this Court. The case relates to the death of the girl named Mt. Shakuran who was married to the son of the two accused Chanda and Mt. Ramzano. The girl came to their house to reside as the wife of their son six or seven months before her death. Her age at the time of her death was 15 or 16 years. At the post-mortem examination the Civil Surgeon found an absence of fat in the body and other appearances which pointed to ill-nourishment extending over several months The parties are Muhammadan Telis. It is established that on the day before her death, namely, on 17th January last, the deceased had spilt some oil and her mother-in-law, the accused Mt. Ramzano, gave her a beating. The thing was done openly at about 8 a.m. in the view of a number of neighbours. The stick used is described as a twig or a branch of a tree. Several of the witnesses, both male and female, describe it as about as thick as their thumbs. The only witnesses who give any details, Ismail and Mt. Zamurrad, say respectively that the blows were struck on the arms and back and on the back and shoulder. The girl's father-in-law, the accused Chanda, sat by and did not interfere.
2. No one realized at the time that the girl had received any serious injuries. She is not even said to have fallen down as the result of the beating. Next morning she was up and about fetching cowdung cakes as usual. About 9 A.M. (the time is given in the telegram sent to the girl's father by Chanda accused) she collapsed and died. The Civil Surgeon's evidence is that death was due to 'shock from several blows on an ill-nourished girl suffering from chronic lung disease.'
3. The accused was committed to the Sessions Court on a charge under Section 304 of the Indian Penal Code. The Sessions Judge altered the conviction to one under Section 302, but in the end acquitted both accused altogether. The acquittal of Mt. Ramzano is incomprehensible, as on the Judge's own finding an offence under Section 323 of the Indian Penal Code was established against her. The Local Government has appealed, and the learned Government Advocate has pressed for a conviction under Section 304 of the Indian Penal Code, or failing that, for a conviction under Section 323. The learned Acting Chief Justice was of opinion that the evidence established the offence of murder, though in view of the attitude of the Crown, he was content to convict under Section 304 of the Indian Penal Code and to sentence both accused to transportation for life. His view is that the accused subjected the deceased to
A continuousand severe course of ill-treatment and starvation which could only have one end if persisted in, and would certainly have terminated in her death from natural causes if they had not accelerated it by beating her.
4. Mr. Justice Ryves after an elaborate analysis of the evidence came to the conclusion that the accused certainly did not intend to cause the girl's death, and further that it was not proved beyond reasonable doubt that they knew that they were doing what was likely to cause it. He held that both the accused are guilty under Section 323 of the Indian Penal Code (the male accused on the ground that he was present and abetting the offence), and in view of the previous ill-treatment and the fact that death did result in consequence of the beating, he considered that the maximum sentence allowed by the section, namely, one year's rigorous imprisonment, should be imposed.
5. The case has been re-argued before me arid I have read the entire evidence and I may say at once that on the evidence it appears to mo impossible to hold that the accused either intended or contemplated the death of the deceased as a result of the beating which was inflicted on her. It is clear enough that Mt. Ramzano had taken a dislike to her daughter-in-law, that she underfed her, kept her short of clothes, and used at times to beat her. I may note at this point, that the evidence as to previous beatings is more scanty than one would expect. Most of the women who appear as witnesses, all of whom live in the vicinity, say that they had not seen the accused beat her before. A woman is more likely to be a witness of these beatings than a man. When, therefore, Hakimulah (P.W. 16) says that he had seen Ramzano beating the deceased 'scores of times' and Niadar (P. W. 17) 'tons of times' one may suspect a certain exaggeration. That the female accused had beaten the deceased on previous occasions, is however, undoubtedly the fact.
6. The only motive suggested in argument why the accused should have desired to make away with the girl is that they would thereby get rid of paying the allowance of Rs. 5 a month by way of pin money which they had agreed at her marriage to pay to her. This suggestion will not bear a moment's examination. There is not the slightest evidence that this allow since had ever in fact been paid, and it is most unlikely in the circumstances that in ever had been. The suggestion that the motive may have been 'economy carried beyond legal limits' is pure surmise. The probability is that the assistance in the house which the accused got from the deceased was worth more to them than her keep. If they thought she was a burden on them they had only to send her back to her parents, who would have been only too glad to have her. It is highly probable that the refusal to allow her brother to see her on the last occasion when he came was due to a fear that she might run away with him.
7. The circumstances in which the beating took place formed the strongest evidence that the caused did not realise that it was anything out of the ordinary or might produce serious consequences. If they had thought for a moment that there was any danger of serious consequences ensuing, it would have been easy for them to have taken her into her room and taken steps to stifle her cries. No less than five witnesses outside the family witnessed the boating, and though they say they remonstrated, it is cleat that they did not attach any great importance to it at the time. According to their ideas, it was quite in the ordinary course that a girl who spilt valuable oil should get a beating from that domestic tyrant her mother in-law. Then, again, the fact that the accused himself without any delay sent a telegram to the girl's father calling him to the funeral and saying that it was being kept waiting for him, is strongly against the theory that share had been any deliberate attempt to do the girl to death. The witness Nanwa says he suggested to the accused that he should send the telegram, but this does not do away with the inference. It may be argued that the telegram was sent to save appearances, but, if so, one would expect that either a letter would be sent or the telegram would be delayed until it j was no longer possible for the girl's father to arrive is time to see the body. Kallu took the singular course of wiring to find out what was the disease of which the girl died, waited for a reply, and only left Delhi far Meerut on the following day, when he arrived after the funeral.
8. No argument can be based on the fact that the accused put in a false defence. Ramzano had at any rate beaten the deceased severely on the day before her death and thereby committed an offence punishable with imprisonment. The accused knew that they were in for trouble and took the common course of denying every fact which might tell against them. I can find no evidence, medical or other, to sup port the view that the ill-treatment by the accused would certainly have terminated in her death from natural causes if the accused had not accelerated it by beating her. The local witnesses do not say it; there is nothing in their evidence to show that they regarded her life as in any way in danger. There is not a word in the Civil Surgeon's evidence to show that the state of under-nutrition in which ha found the body was sufficiently grave to be likely to produce fatal results apart from this particular boating. Had there been any. such evidence, there might have been a reasonable ease for conviction on the graver charge without it there is none.
9. This brings me to the Civil Surgeon's evidence. It is to be regretted that the Civil Surgeon was not re-called in the Sessions Court to clear up one or two points which were left vague in his evidence before the Committing Magistrate. He states that when he examined the body about two days after the death there were no wounds on it, but there were abrasions or bruises three or four days old on the chin, forehead, cheek, breast bone, back and thighs. The marks on the back were due to a stick, the other marks might be due either to a stick or a fist. The blow on the forehead must have been struck with considerable force, The body was very emaciated. The heart was unusually small. The kidneys were small and there was hardly any fat in the abdominal wall. These facts indicated ill-nourishment extending over several months, possibly a year or more. Both lungs were congested and chronically inflamed. This might in the Civil Surgeon's opinion have been caused by starvation, exposure and overwork, but he does not state, and apparently was not asked, whether it was likely to have been so caused. Congestion of the lungs may be due to so many causes that it would not be fair to assume that it was due to under-nutrition unless the Civil Surgeon indicates at least a preponderating probability in this direction. As I have already said, the Civil Surgeon does not state that the lack of nutrition had reached a point which was in itself dangerous, or which suggested a deliberate attempt to starve the girl.
10 I find therefore that the evidence does not establish an offence under Section 304 still less under Section 302, against either accused. I agree with Mr. Justice Ryves in convicting Mt. Ramzano of an offence under Section 323 of the Indian Penal Code and in imposing the maximum penalty under that section.
11. Against the male accused I find that no offence is established. He never struck the girl at all. He said nothing to encourage his wife to do so. Indeed, even on the former occasions on which the girl was beaten the witnesses are unanimous that it was always her mother-in-law who struck her and never her father-in-law. The only fact alleged against Chanda is that ha was sitting near-by when the beating was inflicted and that ho did not stop it. This is not sufficient to constitute an abetment. If it were so, every spectator of an assault, unless he actively interfered, would be an accomplice and therefore a tainted witness. To constitute, abetment there must be under Section 107 of the Indian Penal Code either (1) instigation, (2) conspiracy or (3) actual aid either by an act or an illegal omission.
12. Although it may be a moral duty of a person who sees a second person beat a third, to interfere, it is not a legal duty in the sense that the omission to do so is punishable. A private person is entitled to interfere to prevent the commission of an offence, but he is not in general legally bound to do so, and it is only in the case of a non-cognizable and non-bailable offence that he is entitled of his own motion to arrest the offender. I might hesitate to differ from my learned brothers on a point on which they are apparently agreed, but that under Section 429 of the Criminal Procedure Code the responsibility for the final decision rests with me, and it is obviously impossible for me to convict an accused against whom there is no evidence that he either committed the offence charged or abetted it. In the view taken by the learned Chief Justice the question did not arise, as if there was. a conspiracy both accused were equally guilty. In the judgment of Ryves, J., the position of the male accused has not been considered in detail.
13. I accordingly allow the Governments Appeal against Mt. Ramzano to this extent that I convict her of an offence under Section 323 of the Indian Penal Code and sentence her to one year's rigorous imprisonment. Against the accused Chanda the appeal is dismissed and he will be set at liberty.