1. This reference is made under Section 874, Or. F. 0,, by the Sessions Judgo of Ganjampuri for confirmation of the sentence of death imposed on Srinarayain Marwari.
2. In the same trial, Saraswati Dei mother of Srinarain has been convicted under Section 302 and sentenced to transportation for life.
3. Srinarain and Saraswati have filed appeals, which have been heard along with the reference.
4. The case for the prosecution is that Bhagaban Das Joshi (p. w. l) had taken lease of the upper floor of a house owned by Jamula Narasimham. He had sub-let a portion of the floor to Mangal Chand. Bhagaban Das and his wife Anuohi cocupied the southern Bet of rooms. Mangal Chand, his wife Saraswati and Srinarain cocupied the northern rooms. It is alleged that for some months pares there had been dispute between Bhagaban Das and Mangal Chand as regards payment of rent. On one occasion Srinarain had threatened to assault Bhagaban Das, There were also quarrels between ladies of the two families. On the alleged date, namejy, 3rd of April 1917, at noon a violent quarrel took place between Annuchi and the appellant Saraswati. Anuchi thereupon told her husband that they should at once vacate the house. Anuchi complained that Saraswati had threatened to get her beaten by the maid servant. At 2-30 p. M. Bagaban Das was at his master's shop when Srinarayan reported to him that there was again a quarrel between the two ladies. Bhagaban returned to his house and found Saraswati abusing his wife, and the latter taking rest pan cot inside her room. Bhagaban Das paoified his wife and returned to his shop. '
5. Shortly after Saraswati resumed her quarrel with Anuohi. In the heat of the quarrel Srinarain struok Anuohi on the forehead with a piece of firewood. Anuohi fell down and some quantity of blood came out of her nose. Saraswati sprinkled water on Anuohi's face and also wiped the blood from it. But Anuohi did not regain consciousness. be to the appellants then staoked firewood in a pyre; they poured a buoketful of ghee, plaoed Anuohi on it and set fire to the wood. Attracted by the flames, a crowd collected but no human help was of avail as Anuchi had already been burnt to death.
6. Aaoording to the defence, there had been a quarrel between Anuohi and her husband Bhagaban, as 'a result of which Anuchi committed suicide, by burning herself on the wooden pyre.
7. The learned Judge accepted the prosecution case as true, and convicted the appellants under s. SOS, Penal Code.
8. In appeal, the judgment is impeached on the prinoipal ground that the prosecution evidence is suspicious and inadequate.
9. For the prosecution only one eye-witness, namely, Bahaso, was examined to prove that on the alleged date Srinarayan struok Anuohi on the forehead with a piece of, firewood, Anuohi fell dpwn and some blood came out of he nose and forehead? Saraswati sprinkled water on her face and wiped the blood from it. When Anuohi did not regain her senses, the appellant stacked fuelwood, placed the body of Anuohi thereon, poured ghee and set fire to the wood. On behalf of appellants learned advocate maintained that Bahaso should be deemed to be an aooomplioe and her evidence should not be trusted without strong corrobo-ration. It is true that Mt. Bahaso made no protest when her superior committed the crime but it cannot be inferred that Musamat Bahaso is an aooomplioe. She is a female servant, a poor woman of low caste. Merely because she made no protest or no subsequent report to the police, it cannot be said that she connived at the Grime. It is true that she made her statement to the police at 8 A. M. next day. But she explains that she was in a confused and terror, stricken frame of mind and conoealed herself in her house the whole night out of fear. This explanation appears adequate and probable. Musamat Bahaso's delay in making statement to the police does not hence appear material or affeot the value of her evidence. On the contrary, there are important oiroumstanoes which strongly corroborate the evidence of Bahaso. (After considering the corroborative evidence his Lordship continued:)
10. We are satisfied that MuRamat Bahaso has given a completely true account of the manner in which Anuohi met her death. We are unable to accept the defence theory that Anuohi committed suicide by burning herself on the wooden pyre.
11. The medical evidence is also important. The Assistant Surgeon (p. w. 7) deposed that the dead body of Anuohi was charred and burnt. The larynx and trachea were covered with soot. The body was found in a preplistic position with burns of the third degree. There were lines of redness on the feet which positively indicate that the burns were ante-mortem.
12. On these conclusions of f Act. the question arises, what offence in law have the appellants committed? On behalf of the Grown learned Advooate contended that the appellants have been rightly convicted of murder. The learned Advocate placed reliance on King-Emperor v. Nehal Singh, 18 Pat. 485:(A.I.R.(26) 1989 pat. 626). In that case accused Nehal Singh had attacked a woman Nisi with a lathi on the neck and head. In doing so, accused was acting in pursuance of a preconceived plan and intended to cause-the death of Nisi. Thereafter the accused placed Nisi on a Bailway line, where she was run over by a train. The medical opinion favoured the view that the actual cause of death was decapitation. On these facts be wland J. held that the accused was guilty of murder. The facts of the present case are, however, different. For the Grown it is not alleged that the appellants had originally the intention of causing the death of Anuohi. According to the evidence Srinarayan intervened in the quarrel and struok Anuohi on the head a single blow with a piece of fire wood, Anuchi fell down bleeding from her nose, Saraswati then attempted to restore Anuohi to her senses. She wiped the blood with a piece of cloth and also sprinkled water on the face of Anuohi. Still Anuchi did not regain her senses. They wrongly surmised that she was dead; and with the object of screening themselves from the con-sequence of the crime they placed Anuohi on the widen pyre and set fire to it. These facts in. dioate that the appellants did not intend to cause the death of Anuohi. I consider that the appellants cannot be convicted of murder.
13. Three other cases may be examined in this context. In Emperor v. Dalu Sardar, 18 0. W. N. 1279:(A.I.R. (2)1915 cal. 221:16 Or. t. J. 709), the accused Dalu had first assaulted his wife Sandeshi with kicks and slaps. The woman fell down unconscious. In order to make it appear that the woman committed suicide, accused took up the unoonsoious body of his wife thinking her to be dead and bung it by rope, It was found that in fact death was not caused by the previous assault, but by the hanging. The Caloutta Judges convicted the accused not under Section 802, but under Section 826, Penal Code. In the Madras case, Palani Goundan v. Emperor 42 Mad. 647 : A.I.R. (7) 1920 Mad. 862:20 or. ii. J. 404 F.B.), the accused struok his wife ablow on the head with a ploughshare which rendered her unoonsoious. Believing her to be dead, in order to lay the foundation of a false defenoa of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation. The Full Bench held that the accused was not guilty of murder, but of grievous hurt. In Queen-Empress v. Khandu valad Bhavani, 16 bom. 194, the accused had struok his father-in-law on the head with a stick and rendered him unconscious. Believing that he was dead, the accused set fire to the hut with a view to remove all evidence of the crime. Ac cording to the medical evidence, the blows struck were insufficient to cause death. Death was caused by injuries from burning. But the intention with which accused set fire to the shed was not to cause death or to make the deceased's death certain but to do away with the evidence. On these facts, Sargent C. J. and Bird wood J. held that the accused was guilty of attempt to murder. In the present case, on the facts proved, I hold that the appellants bad no intention to cause the death of Anuchi and it follows that they are not liable to be convicted on the charge of murder.
14. If the appellants are not guilty of murder, the question arises, for what other offence ought they to be convicted? Learned advocate present-ed the extreme argument that, if the appellants believed that Anuohi was dead, they committed no offence' by burning her on the wooden pyre. It is necessary therefore to examine the question whether the appellants could, on the facts of the present case, properly invoke the defence of mistake of fact, In Bex v. Tolson, (1839) 23 Q. B.D. 168 : 68 L, j, M. 0. 97), Stephen J., stated the general rule that in order to raise the defanoe of mistake of fact the offender must have acted in good faith and on reasonable grounds of bulief. In that case, a woman had been con vie to 3 of bigamy under the English statute. She had been deserted by her husband and had married again within Beven years of desertion. As a matter of fact the husband was still alive, but the jury found that she had, at the time of her second marriage, believed that he was dead in good faith and on reasonable grounds. Her case dame literally within the statute, but the majority of the Judges held that the conviction was bad. But in Beg. v. Prince, (1876) L. a. s o. 0. 161 : 44 L. 3. M. o. 122), the Court refused to accept; the plea of mistake as answer to the criminal chirge. The prisoner as convicted under the English statute for unlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father. All the facts were proved, but it was found by the jury that before the prisoner took the girl away, she had told him that she was eighteen, and defendant be no fide believed that statement and the belief was reasonable. Upon a case reserved it was held by fifteen Judges (Brett J. dissenting) that the conviction was right. Bramwell, B. laid down the rule that the plea of mistake can be only valid when the act is prima facie innocent. But when the fact itself is plainly criminal the ignorance of the existence of certain circumstances which make it more aggravated is no answer to a charge for the aggravated offence.
15. If these principles be applied, it is plain that the appellants in the present case cannot be allowed to plead mistake of fact. In burning Anuchi, on the wooden pyre, the appellant though not intending her death were not performing a prima facie innocent Act. They were perpetrating wrongful Act. if not a crime for they were deliberately causing disappearance of evidenoe of their previous offence.
16. The question still remains for what offence in law are the appellants liable. From the evidence there is no doubt that death of Anuchi has resulted from burning caused by the act of the two appellants. There is no proof in this case of inensrea except what may be gathered from the act itself. But the principle is that when an Act. is done with gross negligence the law imputes to the offender the necessary knowledge. I would refer to the celebrated doctrine of be man law lata oulpa plane doll comparabitur (D, 17-1-29 and D. 60-16-226). The basis for the dootrine is that gross negligence is probably in truth not negligence at all but wrongful purpose. The principle has been applied in Indian oases. In Queen-Empress v. Kangla, (1898.18 A.W.N. 163), the accused struok with a lathi and killed a man being under the be no fide belief that the object at which he struok was not a human 'being but something supernatural. Through terror the accused did not take steps to satisfy himself that it was not a human being. The Division Bench held that the accused was liable for the offence of culpable homioide not amounting to murder. In another case Emperor v. Dumdya, i be m, L. Rule 879, the accused in exorcising a spirit had beaten a girl to death, and it was held that his negligence amounted to knowledge and he should be convicted for culpable homioide. In the present case, there can be no doubt that be to the appellants were criminally negligent. They took no reasonable precaution to test themselves whether Anuchi was 'really dead before they placed her body on the pyre. But impelled by panio and in order to conceal their criminal offence they hastily erected the wooden pyre and set fire to the body of Anuchi. In law gross negligence is equivalent to criminal intent. In my opinion the appellants must be deemed to have known that their act was likely to cause the death of Anuchi. It follows that the appellants are guilty of an offence under Section 304, part 2, Penal Code.
17. I would, therefore, convict the appellants under Section 804 and sentence them each to rigorous imprisonment for five years.
18. Accordingly I would reject the reference and allow the appeals to the above extent.
19. I agree.