Tek Chand, J.
1. Om Parkash, a clerk in the office of the District Inspector of Schools, Ludhiana, has instituted an appeal in this Court from his conviction under Section 307, Indian Penal Code, and the sentence of three years' rigorous imprisonment passed by the Additional Sessions Judge, Ludhiana. The police had challaned besides Om Parkash, his mother Dwarki Devi, and his brothers Romesh Chander and Surinder.
The Committing Magistrate discharged Romesh Chander and Surinder, and committed to the Court of Session Om Parkash and Dwarki Devi for trial under Section 307 read with Section 34, and under Section 342, Indian Penal Code, Dwarki Devi has been acquitted. The Sessions Judge also found that the charge under Section 342, Indian, Penal Code, was not proved against Om Parkash.
2. The offence under Section 307, Indian Penal Code, is alleged to have been committed under circumstances which in some ways are unusual.
3. The prosecution story as stated by P.W. 7 Shrimati Bimala wife of the accused, is that she was married to Om Parkash on 5th of October, 1951, when she was 20 years old. She lived with him at Ludhiana for about a year and the marital relations, to start with, were happy for a short while, but soon after there was estrangement. This led her brother to take her away to Ambala where she stayed with him for one year.
This was in 1953. On being assured by the maternal uncle of the accused that she would not be maltreated, she returned to her husband. But tile domestic felicity did not last for long and bickerings and quarrels started again. At the time of marriage it was said that she was in good health, but later on owing to mal-treatment and deliberate under-nonrishment her health deteriorated.
It was also alleged, that she used to be often beaten by the accused and also by his mother Dwarki Devi. It is then said that on one occasion, her mother-in-law called her upstairs and when she reached the topmost step, she was asked to stop; and then Dwarki pushed her and Bimla went tumbling down. She sustained many injuries, as she struck against the edges of the steps.
According to Bimla Devi, her mother-in-law and her husband expressed their annoyance at her not having brought any cash in the dowry, and the mother-in-law used to say that if Bimla were to die, she would marry her son in a rich family. Bimla also said that in 1956, she was deliberately starved and was not allowed to leave the house and some times a morsel or so used to be thrown to her 'as alms are given to a beggar'.
She was not allowed to contact anybody outside the house. She stated that she was denied food for days together and water was given to her to drink in the same utensil which was kept for ablution when going to the latrine. Sue also complained that after being kept without food for some days she used to be given gram husk mixed in water after 5 or 6 days.
In the month of April, 1956, she managed to go out of the house but she was caught hold of in the bazar by Romesh and Surinder. brothers of her husband, she was forcibly dragged inside the house, and severely beaten. From that day, she said that she was kept in a room which used to be locked from outside.
4. On 5th of June, 1956, which was an Ekad-shi day, her mother-in-law Dwarki Devi left the house and went to the temple. Her husband was in the office. Finding her room unlocked, she availed herself of this opportunity and went out of the house and managed to reach the Civil Hospital, Ludhiana, where she met Lady Doctor Mrs. Kumar P. W. 2 & told her as to how she had suffered at the hands of her husband and his people and how she had been deliberately starved, under-nourished and kept in confinement during the last two months.
Later in the day, on learning that she had gone to the hospital, Om Parkash and his mother went there and insisted on taking her home but the Lady Doctor Mrs. Kumar would not let her be taken back. Some women social workers coming to know of her plight, took interest in her and sent information by telegram to her brother Madan Mohan who was then in service in Srinagar, Kashmir.
He reached Ludhiana and on learning from her of her sufferings during the preceding months, be made a report, Exhibit P.N., to the Station House Officer, Division No. 2, Ludhiana, 011 1.6th of June, 1956. It was stated in Exhibit P. N. that his sister Bimla was lying on death bed and her condition was very serious and that was intentionally caused by her husband, and his mother, brothers and sister, and that she was kept locked in a room for a long time and used to be frequently beaten by them.
5. Exhibit P.N/1 is the formal first information report which was registered by P.W., 14 Nand Lal Assistant Sub-Inspector of Police. On 16th June, 1956, P.W.I Dr. Miss Dalbir Dhillon on duty sent a note to S.H.O. Division No. 2 at 9-15 p.m. saying 'My patient Bimla Devi is actually ill. She may collapse any moment.' On receipt of this note P.W. 14 Assistant Sub-Inspector arranged for a Magistrate to record her statement after Dr. Dhillon had certified that Bimla Devi was in a fit condition to make the statement. P.W. 9 Shri Sohgal Magistrate recorded her statement which is exhibit P. K. and had it thumb-marked by her. Along with the statement he sent the following note :
'Bimla Devi (wife of Om Parkash) whose dying declaration is attached herewith tells me that she has studied up to 6th class and can both read and write but she is too weak at the moment to put her signatures. Hence instead I have taken her left hand thumb impression.
Blood transfusion is taking place through the right fore-arm and consequently the right hand of thepatient is not free. It is not possible to get the thumb-impression of the right hand thumb of the patient. That is why I have got her left hand thumb impression.'
6. The statement of the girl was recorded by the Magistrate at 23-15 hours on 16th June, 1956. A few days after her admission in the hospital but during the month of June, P.W. 10 Gokal Chand photographer took her photographs, enlarged copies of which are placed on the record as P.W. 3/A and P.J. The negatives of these photographs are also produced as Exhibits I.L. and P.N. The impression, that I formed on looking at the two photographs of Bimla was that at that time she appeared to be suffering from extreme emaciation. Her cheeks appeared to be hollow. The projecting bones of her body-with little flesh on them made her appearance skeleton. The countenance seemed to be cadaverous.
7. The charges framed by the Sessions Judge against Om Parkash and Dwarki Devi under Sections 307/34 and 342, Indian Penal Code, read as under :
'(1) That you at Ludhiana from the month ofJanuary or February 1956 upto 5th June 1956cruelly maltreated Smt. Bimla Devi P.W. and starved her in furtherance of the common intention ofyou both to cause her death as a result of which shesuffered from T.B. and you continued to starve herand merely maltreated her in order to accelerateher death under such circumstances and with suchcommon intention * * * *
(2) That you at Ludhiana from the month of January 1956 up to 5th June 1956 wrongfully confined Smt Bimla Devi within your house * * **'.
8. The prosecution has produced 14 witnesses including Bimla Devi. The prosecution consists of the statements of doctors who examined Bimla Devi and of neighbours who have deposed to the bad treatment meted out to her, besides that of the formal witnesses. The statement of P.W. Dr. Miss Dalbir Dhillon does not throw any light regarding Bimla Devi's malady and treatment. She had issued certificate Ext. P.E. regarding her condition on 16th June 1956 when Shri Sehgal Magistrate recorded her statement, Exhibit P.K.
9. P. W. 2 Lady Doctor Mrs. H. Kumar was working in the Civil Hospital at Ludhiana when Bimla Devi came to her in the hospital on 5-6-1956. Dr. Mrs. Kumar stated that Bimla Devi looked very much perturbed, weak and anaemic, when she came to the hospital, and requested her to admit her and to treat her. At that time, she complained to Mrs. Kumar, that she had been maltreated by her husband and her mother-in-law and that she was being starved and she also used to be beaten at times. In view of her condition she was admitted in the hospital as an indoor patient.
About an hour or so after she was admitted, Dwarki Devi, her mother-in-law, came to the hospital and wanted to take Bimla Devi with her to her house to which Bimla Devi did not agree. After some time the accused appellant Om Parkash also went to the hospital and wanted to take Bimla Devi home but she refused to go back. From 5-6-1956 to 14-7-1956, Bimla Devi remained as an indoor patient at the Civil Hospital and during those clays her blood was examined and chest was screened. She was also X-rayed and was referred to Dr. Gulati P. W. 6 in charge of T. B. Clinic and was transferred to his side on 14-6-1956 for treatment.
10. Bimla Devi had also been treated by Dr. Mrs. Kumar when she was an indoor patient from
1-4-1955 to 3-5-1955, and again from 9-5-1935 to 10-6-1935. At that time she was got admitted to the hospital by her husband Om Parkash who had come with her. Her ailment was diagnosed as pellagra' which is a skin disease and believed to be a deficiency disease. She did not think that in 1955 she was suffering from tuberculosis and was not given any anti-tubercular treatment. She was discharged as cured.
When she came to the hospital she was running temperature. The provisional diagnosis of Dr. Mrs. Kumar was that Bimala Devi had tuberculosis of the abdomen, as entered in the bed head ticket, but her final opinion was that she had diarrhea. In cross-examination she stated that she was definite that Bimla Devi was suffering from diarrhea and tuberculosis. The lady doctor also stated that when Bimla Devi was admitted in April 1955 her blood test was taken and stools were examined for tuberculosis and she did not find any symptoms of disease in her, till she came to the hospital on 5-6-1950.
She was subjected to a long cross-examination and she has not come out of it badly. There is nothing to suggest that she as a doctor was not competent or careful, or, that she had made a statement which was untrue. Her attention was drawn to a portion of her statement before the police to the effect that on coming to the hospital Bimla Devi did not complain against any one for starving and withholding food from her but she denied having made such a statement before the police.
She appears to be a disinterested witness and I am not prepared to accept the contention of the learned counsel for the defence that she initially stated that Bimla Devi had not complained to her regarding the maltreatment she had received from Om Parkash and his mother and has now gone back over it. The statement of Dr. Mrs. Kumar is credible and in no way suffers from any flaw which might reduce its value.
11. P W.6 is Dr.D.N. Gulati in charge T. B. Clinic of the Memorial Hospital, commonly known as Dr. Brown's Hospital at Ludhiana. He was called to the Civil Hospital by P. W. 2 Lady Doctor Mrs. Kumar to examine Bimla Devi which he did on 6-6-1956. He got her transferred to the female medical ward of the Memorial Hospital. At that time she was 'in a condition of shock'. On that very day she was given blood transfusion to save her life. According to Dr. Gulati at the time when he examined her she was found in a 'shockingly emaciated condition.' On 18-6-1956, the screening of her chest revealed suspected T. B. of both lungs.
This result was further confirmed by X-ray & sputum examination. He put her on anti-T. B. drugs. On 18-6-56, his opinion was sought by Assistant Sub-Inspector Nand Lal regarding the condition of the girl as per memo. Exhibit P. A. and Dr. Gulati gave his opinion as per Exhibit P. A/1. According to him when he examined Bimla Devi first, she was under nourished, weak, emaciated and anaemic, and this could be due to starvation and malnutrition. If these conditions were allowed to continue without any treatment she might have died within a month.
12. The opinion of Dr. Gulati was also sought by the City Magistrate Ludhiana as per memo. Exhibit P. H. and on 21-6-1956, he gave the following opinion:
'Mrs. Bimla Sharma's present condition is due to food deprivation and maltreatment. She is alsosuffering from pulmonary tuberculosis which could be caused by continued malnutrition and ill-treatment.'
13. In his cross-examination he stated that he did state before the Committing Magistrate that the condition in which he found Bimla Devi on 14-6-1956, could he due to her having abdominal tuberculosis as well in 1955. He also said,
'the condition of Smt. Bimla Devi as I found it could be due to pulmonary tuberculosis but I found that it was also due to deprivation of food.' He also admitted having stated to the Committing Magistrate that the condition of Bimla Devi might also be due to pulmonary tuberculosis and not necessarily due to withholding of food.
He also stated that Bimla Devi and the lady doctor had told him that she had been starved and denied food. During the course of the arguments it was suggested on behalf of the accused that the medical opinion was tainted with prejudice and partiality in consequence of local stir which this case had created and the atmosphere of bias which prevailed at Ludhiana against the accused, and the feelings against the accused had been arpused, in the public mind which probably were shared by the medical witnesses.
By way of abundant caution I ordered theexamination of Bimla Devi by a medical specialist.The statement of Bimla Devi was also recordedin this Court on 8-5-1958, regarding the presentstate of her health. In her statement in this Courtas C. W. 1 she stated that she was admitted to thehospital at Ludhiana on 5-6-1956, and stayed thereas an indoor patient for a period of ten or elevenmonths and that she had been enjoying goodhealth after her discharge from the hospital andnever had any occasion to consult a doctor for anytreatment.
She stated that after receiving training in the use of ambar charkha she is now employed in giving instructions as to its use at a salary of Rs. 50/- per month. The statement of Dr K S. Rai, P. C. M. S., Medical Specialist of General Hospital at Chandigarh, was recorded as C W 3 on 8-5-1958. He stated that he had examined Bimla Devi on 6th and 7th May, 1958, and there were scabs of previous pulmonary tuberculosis in both the lungs and this was confirmed by him after her radiological examination.
He produced the skiagram of her chest and stated that at present lesions in her lungs were healed and there was no active tubercular process discoverable now. He also confirmed this opinion by the laboratory examination of her sputum and blood which did not disclose any activity of tubercular process. From the examination of the scars on her lungs he could not assess the age of her last disease. As it was an old scar she might have had this disease some years ago.
On being shown the photographs of the girl he stated that the condition of such a person could be as a result of starvation or semi-starvation and it could also be caused by a number of diseases from which such a person might be suffering. Her weight on 8-5-1958, when she appeared in this Court, was 132 lbs. In answer to questions put on behalf of the accused Dr. Bai said that pellagra was a disease of malnutrition and occurred when nutrition had not been supplied or had not been assimilated. Amenorrhoea could be the result of anaemia or as a result of a disease lowering the vitality of a person.
14. The main question to be seen in this case is whether the condition of extreme emaciation inwhich Bimla Devi was found, was the result of systematic starvation and under-nourishment as a result of intentional maltreatment on the part of her husband and his relations, or, was it due to the disease from which she was suffering, despite having been given proper nourishment, as contended by the accused.
The medical evidence to which reference has been made above shows that in June 1956 when she left her husband's house last, she had been suffering from the T.B. of the lungs. Lady Doctor Mrs. Kumar was of the view that in 1955 when Bimla Devi was admitted as an indoor patient first, she was only suspected at the time of provisional diagnosis, to be a case of tuberculosis, but as a result of subsequent treatment and her satisfactory response to it, she was of the view, that she was not stricken with that disease; and she was discharged from the hospital as cured.
The medical opinion also indicated, that starvation or semi-starvation had produced the condition in which she was found in June 1956, though the doctors did not rule out that such a condition could also be produced by disease independent of starvation. At this stage, I may advert to the fact, that Bimla Devi complained of maltreatment and starvation on the part of her husband when she was first seen by Lady Doctor Mrs. Kumar and also by Dr. Gulati.
15. The conduct of the accused and his mother in following her to the hospital soon after her admission, and wanting to take her back home, and hers, in having refused to accompany them is also relevant. No reasonable explanation is forthcoming, as to why the husband and the mother-in-law of Bimla Devi were keen that she should go back home and not be treated at the hospital.
It is not the case of the accused, that Bimla Devi was at that time under a competent medical treatment at home, and therefore, she could be more efficiently and properly looked after there, than in the hospital. There is no doubt that the medical facilities which were available to Bimla Devi in the hospital under the treatment of Lady Doctor Mrs. Kumar and Dr. Gulati and others, could not be had at home.
In 1955 when Bimla Devi was unwell Om Parkash had himself brought her to the hospital and got her admitted as indoor patient. It is not the case of the accused, and no suggestion has been made at the Bar, that the treatment of Bimla Devi, as an indoor patient in the hospital would have been costly or beyond the means of Om Parkash. It is not even suggested that the treatment in the hospital was not free.
There could be no two opinions on the record of this case, that her condition when she was admitted in the hospital in June 1956 was alarming, and if it had continued for some, time more, she was not expected to survive. In these circumstances, the persistence on the part of the accused, and his mother, to take Bimla Devi home, and to reject such facilities of medical care and treatment as were being afforded in the hospital, is not comprehensible on any reasonable hypothesis
It could not he for reasons of any tender care, affectionate nursing and superior medical treatment at home, that Bimla Devi was being asked to return to the house of Om Parkash and not to get herself treated at a place where she had been successfully treated before, when she fell ill in 55.
16. It is necessary now to turn to the statement of Bimla Devi and of the other prosecution witnesses regarding the allegations of intentionalstarvation, deliberate maltreatment with a view to hasten her end, and to shorten the span of the life of a tubercular patient. P. W. 7 Bimla DEVI, as soon as she managed to totter to the Civil Hospital, contacted Lady Doctor Mrs. Kumar and told her, story, that she had been kept in confinement and subjected to starvation and that other alleged atrocities were perpetrated on her by her mother-in-law and others.
She told the same story to Dr. Gulati, andto Her brother Madan Mohan P. W. 13 who on receipt of a telegram regarding her serious conditioncame to Ludhiana from Srinagar. P. W. 13 MadanMohan stated that this sister Bimla Devi was inexcellent health and lived happily for a few monthsafter marriage in October 1951. After that shecomplained of ill-treatment on the part of herhusband and he (Madan Mohan) then, about ayear after the marriage, went to Ludhiana andtook her away and found her in a very weak stateof health.
She lived with him at Ambala for about a year and a half and he agreed to send her back to her husband after the intervention of Om Parkash's maternal uncle assuring Madan Mohan that his sister would not be maltreated and would be well provided for. The main cause of the bad treatment of his sister, Madan Mohan attributes to his inability, on account of poverty, to meet the demands of the accused.
He reached Ludhiana on 16-6-1956, and when he saw his sifter in Dr. Brown's Hospital he found her 'a mere bundle of bones with hardly any flesh on them.' On his enquiry, Bimla Devi told her brother, that she had been kept wrongfully confined for about two months and her condition at that time was due to starvation, under-nourishment and beating etc., and all this he mentioned in his report, Exhibit P. N., made to the police.
Thus, it appears from the prosecution evidence that at the earliest, when Bimla Devi left her home she complained to every one she came into contact with, that she had been wrongfully confined, deliberately starved and maltreated. Her above allegations are not in the nature of an afterthought. In her examination-in-chief as P. W. 7: she categorically alleged, inter alia, that she was in excellent health when she was married and her health gradually deteriorated in consequence of maltreatment and under-nourishment.
On this account she left her husband's house and stayed about a year at Ambala with her brother and returned to her husband's house on assurances given by his uncle. She also stated, that her mother-in-law did not give her anything to eat and gave her a morsel or so at times. She alleged, that as she had not brought any cash or dowry, the mother-in-law used to say that she should die so that her son could marry again.
She used to be given gram-husk mixed in water after five or six days. Two months previous to June 1956 she went out of the house but was caught hold of in the bazar by Romesh and Surinder, brothers of Om Parkash, and mercilessly beaten and kept in a locked room. Bimla Devi was subjected to a detailed cross-examination but it is significant that she was not subjected to cross-examination on the above allegations. Her cross-examination is directed mainly to showing that she was medically treated whenever she fell ill and that Om Parkash on one occasion, sent her a money order of Rs. 5/- and the relations between him and her had been cordial.
The rest of the cross-examination is devoted to her previous ailments for which her husband hadher treated. Regarding her several statements alleging ill-treatment as the specific cause of her condition she had not been subjected to any serious cross-examination. No doubt certain discrepancies and omissions' between her statement in the Court and the one before the Committing Magistrate have been brought out, but they ore not of such a nature, from which, I can conclude, that Bimla Devi was a liar or that her testimony was unworthy of acceptance.
Even on the assumption, that she was properly looked after during the earlier years of marriage or that a sum of Rs. 5/- was sent to her in 1952 when she had gone to live with her brother, or that she had been once taken to Dr. Kapur's Hospital at Ludhiana in August 1952, which fact she had denied, or that she had been given medicines, or that the accused got her treated during her earlier ailments, it cannot be said that her allegations of ill-treatment during the two months preceding June 1956 were false.
From such discrepancies and omissions as have been brought out in the cross-examination, I cannot brand her as a liar and her testimony as unworthy of belief. So far as the basic allegations are concerned, which formed the gravamen of the offence, the veracity of her statement cannot be doubted. After a careful scrutiny of her statement find her allegations as to starvation, maltreatment etc. true. The exaggerations and omissions to which my attention was drawn in her statement are inconsequential
17. I may now proceed to asssess the value of the statements of other witnesses produced by the prosecution in support of its ease.
18. The prosecution has produced three neighbours of Bimla Devi. P. W. 3 Smt. Kartar Kaur lives in a house the back wall of which is adjacent to the house of the accused. She stated that the accused was married to one Kaushalya but on account of his bad treatment of her, she left him. According to the accused, he and Kaushalya mutually agreed to separation. One year after Kaushalya left Om Parkash, he married, Bimla Devi. They lived happily for about two months, and after that, there was constant bickering between the husband and wife.
She even used to be beaten on some occasions. Two months prior to her admission in the hospital, Bimla Devi had gone out of the house and she was brought back by force and being weak she could not offer resistance. She was dragged and some of her clothes had come off and after that, she was not allowed to come Out of the house and she did not use to be given food when she asked for it. She stated that from the upper storey of her house she could see what was going on, on the side of the accused. She said that she had seen Bimla Devi asking for food but no food was given.
This lady denies, that she had any talk with Bimla Devi, during the preceding two months of her admission in the hospital, but she says, that Bimla Devi used to make signs to her whenever she happened to be upstairs, indicating that she was being denied food and was hungry. There appears to be no good reason, that Smt. Kartar Kaur should be disbelieved. There is nothing to show in the cross-examination, that her relations with Om Parkash were strained, as a result of which, she might have been making a false statement.
19. P. W. 4 Smt. Vidva Puri stated that she had been the Secretary of All India Women's Conference and was a member of its Executive Committee and that in April 1956, some ladies of the mohalla in which Bimla Devi lived met her and told her that she was being maltreated in her house.
This lady accompanied them to the house of Bimla Devi and had a talk with Dwarki, mother of the accused.
The latter resented her intervention and even abused her, and went to the length of saying that she would break the legs of persons who would unnecessarily meddle with her affairs. P. W. 4 was told that Bimla and her husband were not there and that she would be calling them the next day. On the next day when she came, the accused and Bimla Devi were there, and she appeared to her to be perturbed in mind and in a weak state of health. Bimla Devi then begged her to go back to her house and she then departed.
On her return to Ludhiana on 7th of June 1956 after tour, she received a message from Lady Dr. Mrs. Kumar that she should come to the hospital. She and some other women went to the hospital where Bimla Devi narrated her story, and told them of her sufferings at the house of the accused and how she had been maltreated. Bimla Devi also told her, that she was afraid of her husband and his people when P. W. 4 came to her house and therefore she did not dare to disclose the treatment which used to be meted out to her.
20. The next prosecution witness is Smt. Krishna Kumari whose house also adjoins that of the accused. She stated that Om Parkash accused used to beat Bimla Devi and she used to be denied food and kept hungry on several times. She approached Dwarki and asked her to treat Bimla Devi better but that was to no effect. Dwarki resented this intervention. She also deposed that she had seen Bimla Devi about two months previous to her admission to the hospital, being forcibly brought to the house by brother of Om Parkash accused against her will.
She also stated that she and 12 other women of the mohalla had approached P. W. 4 Smt. Vidya Puri who is a leading social worker there, and told her of Bimla's plight. She did not take any further interest as Dwarki used to get angry and frequently showered abuses on her. In cross-examination she admitted that Bimla Devi had never complained to her about the maltreatment and beating and her statement was based upon what she saw with her own eyes and what she gathered from the gestures of Bimla Devi.
21. The next witness is P. W, 8 Smt. Shanti Devi who is also a next door neighbour. Her statement is on similar lines as that of P. W. 3 Smt. Kartar Kaur and P. W. 5 Krishna Kumari. It was vehemently argued before me that P. W. 5 Smt. Krishna Kumari and P. W. 8 Smt. Shanti Devi have been inimical towards the accused and P. W. 3 Smt. Kartar Kaur has been taking their side.
It was also urged that Smt. Krishna Kumari and Smt. Shanti Devi were responsible for the prosecution and out of old enmity they got a false case bolstered up against the accused and they have been, poisoning the ears of Bimla Devi who on account of her weak state of health and out of false sympathy shown towards her fell a victim to their designs. It was submitted that these women have been improperly influencing Bimla Devi and she would readily believe, that her present condition had been produced not by her disease but by starvation.
22. In proof of the existence of ill-will between the accused on the one side and P. W. 5 Smt. Krishna Kumari and P. W. 8 Shanti Devi on the other, the defence has relied on the statements of a number of defence witnesses and has also produced some documents. Exhibit D. A. is a certified copy of an application made by Smt. Shanti Devi to the Officer in charge. Soldiers' Board, Ludhiana, in 1954 stating, that one Kartar Singh and his wife threatened her, and she and her children apprehended danger at Kartar Singh's hands and the threat was that he 'would get her daughters abducted.
She desired that an inquiry should be made from in members of the mohalla Committee. She also stated that no one was ready to support Kartar Singh except one 'Om Parkash who resides in house No. 221' (i. e., the accused). D. W. 9 stated that the relations between Smt. Shanti Devi and the accused were strained because Smt. Shanti Devi's husband's brother Mulkh Raj did not vacate a room in the house of the accused.
Om Parkash accused had allowed one liar-bans Lal to occupy this house and Mulkh Raj, the brother of her husband, had occupied this room alter Harbans Lal had left. D. W. 10 Harnam Singh deposed to unfriendly relations between Smt. Shanti Devi P. W. and Dwarki, mother of the accused. D. W. 10 deposed to Mulkh Raj having taken unlawful possession of the room. D. W. 16 Labh Singh deposed to quarrels between Smt. Shanti Devi and Dwarki.
23. The accused appeared as his own witness and stated that Smt. Krishna Devi and Smt. Shanti Devi P. Ws. had been instigating and misguiding his wife, Bimla Devi, against him and they were not on talking terms with them for the last eight years.
24. From the evidence produced by the accused I am willing to believe that P. Ws. Smt. Krishna Kumari and Smt. Shanti Devi were unfriendly towards him and the other members of his family, and it is possible, that in making their depositions, they were guided more by their feelings of hostility towards the accused and the Other members of his family, than by what they could actually observe.
In assessing the weight which should be given to the prosecution story it is safer to eliminate the testimony of P. Ws. Smt. Krishna Kumari and Smt. Shanti Devi but as against P. W. 3 Smt. Kartar Kaur and P. W. 4 Smt. Vidya Puri, the defence has not brought out anything substantial, which should detract from the value of their evidence on grounds of incredibility. In defence, statements of 17 defence witnesses were recorded, including the accused who appeared as his own witnesses and was cross-examined by the prosecution.
D. W. 1 Dr. B. L. Kapur stated, that a patient was brought to him by the name of Bimla and Exhibit D. W. is an out-door chit given .by him which showed that the patient was suffering from amenorrhoea (stoppage of menstruation). She was brought to him on 23-8-1952 by the accused. The above statement regarding the condition of Bimla Devi in 1952 is of no help in determining the guilt of the accused on charge of attempt to murder her by starvation in 1956. Dr. B. N. Sur who called himself an all-round physician and not a specialist in tuberculosis, gave his opinion that the X-ray skiagram Exhibit P. B. which had been taken in the hospital of Bimla Devi indicated to him chronic pulmonary tuberculosis.
He admitted that he had never had the occasion to examine P. W. Bimla Devi. His general opinion about diseases and their effect is not of much assistance in determining the question of the guilt of the accused, and the learned counsel for the accused has not based any particular argument on the general opinion given by this witness, Anumber of defence witnesses to which reference has already been made deposed regarding enmity-between the accused and prosecution witnesses.
Smt. Krishna Kumari and Srnt. Shanti Devi. D. W. 8 is a clerk in the office in which the accused is working, and he has produced documents to show that in October 1952 the accused had withdrawn Rs. 150/- and in December 1955 Rs. 240/- out of his Provident Fund and the reason given for withdrawal was the illness of his wife. D. W. 14 is the compounder of the Civil Hospital from whose statement it has been tried to show that the accused purchased medicines for Bimla Devi.
25. D. W. 15 is Kaviraj Guru Parkash Kochhar who is a Vaid and gives Ayurvedic treatment. He stated with reference to his register, that Bimla Devi P. W. attended his clinic from 26-4-1956 to 2-5-1956, and he issued a certificate in respect of her illness which is Exhibit D. W/W. dated 26-6-1956. The case against the accused had been registered on 16-6-1956 after investigation had begun.
This certificate was given not in the ordinary course, when the patient attended the clinic, but several months later, and the object could only be to procure a certificate in support of defence version. Much value cannot be attached to such a certificate- Moreover all that this document certifies is that 'Smt. Bimla Rani, 23 years old, was under my treatment from 26-4-1956 to 2-5-1956. She was suffering from fever'. Bimla Devi has, however, denied having been treated by D. W. 15.
Neither from the certificate Exhibit D. W/W. nor from the statement of Kaviraj Guru Parkash D. W. 15 the identity of the patient examined by him can be established beyond doubt. The certificate, neither contains particulars of the patient nor of the nature of the disease she was suffering from. D. W. 15 himself admitted in reply to the Court question, that he was in charge of a charitable dispensary, and he ordinarily saw about two hundred patients a day.
26. In his statement as D. W. 17, Om Parkash stated that the relations between him and Bimla Devi had been cordial and affectionate since his marriage and he had been having her treated during her ailments. In 1952 he bad got her treated by D. W. 1, Dr. B. L. Kapur and in May 1955 she was admitted in the Civil Hospital, Ludhiana, and he also kept her brother Madan Mohan informed of her condition from time to time.
The relations between him and his neighbours Smt. Krishna Kumari and Smt. Shanti Devi P. Ws. were strained and these two women were responsible for inciting his wife against him and misleading her. He also stated that on coming to know that his wife had gone to the hospital, he went there and made arrangements for her food and also purchased some medicines.
It was on 12-6-1956 that he saw her taking meals sent by someone else and she told him that he need not send meals to her any more. It was on 8-6-1956 that he learnt for the first time that she had been suffering from tuberculosis. The above resume of the defence evidence when summarised, suggests that the accused had no inkling that his wife suffered from tuberculosis, and ho had been getting her treated for such ailments of which she complained.
The relations between the husband and the wife were throughout warm and were not marred by any wrangling. The allegations of the prosecution as to deliberate starvation of Bimla Devi by the accused and his mother were strenuously denied. The accused had rested the entire blame on the machinations and intrigues of P. Ws. Smt. Krishna Kumari and Smt. Shanti Devi to whose words Bimla Devi is said to have readily listened.
27. After having given anxious thought and careful consideration to the facts and circumstances as emerge from the lengthy evidence on the record, I cannot accept the argument of the learned counsel for the accused, that the condition of acute emaciation in which Bimla Devi was found on 5-6-1956 was not due to any calculated starvation but it was on account of prolonged illness, the nature of which was not known to the accused till Dr. Gulati had expressed his opinion that she was suffering from tuberculosis.
The condition of Bimla Devi as noticed by the doctors on her admission in the hospital on 5-6-1956, and also as appears from the two photographs taken of her a few days later, was alarming, and almost critical, and this fact could not have been hidden from the accused, even if it be assumed that he was not aware of the nature of the disease.
According to the accused she had been treated by D. W. 15 Kaviraj Guru Parkash Kochhar at his out-door clinic from 26-4-1956 to 2-5-1938 when according to the Vaid she was suffering from fever. It is difficult to believe, that having regard to her visibly serious condition at that time, the accused if he really wanted her to be properly treated, would not have taken her to a qualified and competent medical practitioner as he did an 1955.
Bimla Devi was taken as an indoor patient in the Civil Hospital under the care of lady Dr. H. Kumar and she left the hospital after she was cured. Without doubt, her condition in 1956 during the months preceding her admission to the hospital was of such manifest gravity, which should have impelled the accused to take her to the same hospital and particularly so, when the same doctor who had cured her once before was available. This is on the assumption that his profession of affection for his wife was not a pretence but was genuine.
It is not the case of the accused that he had lost faith in the efficacy of allopathic treatment, and was therefore, giving her Ayurvedic treatment. It is not even suggested that the medical treatment had been tried and despite such medical attention, as was available to the accused, Bimla Devi was given up as a hopeless and incurable case, and therefore, left to her fate.
Bimla Devi has responded to treatment and has been restored to normal health under the care and treatment of the doctors at Ludhiana. The learned Additional Sessions Judge on 18-5-1957 after closing the statement of the accused Om Parkash as D. W. 17 recorded his impression of her condition in the following words:
'I am. however, placing on record my observation about the present appearance of Bimla Devi P. W. 'From outward appearance, she looks quite healthy and fairly stout.'
A year after, that is on 8-5-1938, she was again examined under my order by Dr. Rai as C. W. 1, she said that she was enjoying normal health. Bimla Devi did not bear any child. The story of Bimla Devi as to how she was ill-trented, and how, her end was attempted to be brought about 01 precipitated, is convincing, despite the noveltyof the method in which the object was sought to be achieved.
After the lapse of a number of years, during which, she was said to have suffered from ill health, she presumably became an unmitigated burden, and she could not discharge her wifely duties in respect of the marital claims of her husband. She had not brought any worthwhile dowry and had thereby incurred the displeasure and earned the taunts of her mother-in-law.
The conduct of the accused and of his mother on 5-6-1950 when soon after Bimla Devi's admission in the hospital they insisted on taking her back home, is significant and almost tell-tale. It was not for better treatment or for any treatment that they wanted to take her back home, Their real object in doing so could be no other than to accelerate her end. The ancillary object was not to let her open her lips to the doctors and to sympathetic social workers, and to make known her present condition, and how it had been brought about.
Bimla Devi in the emaciated and anaemic state, in which she was found languishing, could not have lived for long; and if this was the objective sought by the accused the keenness that he and his mother expressed for taking her back home at a time when she needed medical attention the most, cannot be explained on any other reasonable hypothesis, than that they wanted to bring about her death, by the means which they had adopted and had systematically pursued.
The idea of bringing about her end by violent means was fraught with danger, especially when the accused were living in a crowded locality, and with two contiguous neighbours who were avowedly inimical towards Om Parkash and his mother. Her death by starvation would have appeared natural in view of her history of ailments, and would not have roused suspicion, and in any case would have defied detection.
This attitude of mind towards Bimla Devi also explains that two months prior to her admission in the Civil Hospital when Bimla Devi got an opportunity to leave the house she was pursued, caught and forcibly dragged home by the brothers of the accused, and on account of her feeble state of health, she could not offer any effective resistance.
28. The Additional Sessions Judge giving benefit of doubt acquitted the accused of the charge under Section 342, Indian Penal Code. He found that Bimla Devi's movements were restricted to a certain extent but from the evidence on the record he did not feel justified in drawing an inference, that she was wrongfully confined within the contemplation of Section 342, Indian Penal Code. He arrived at this decision because there was evidence that Bimla Devi went up-stairs and the gestures she made to some women in the neighbouring houses presupposed to a certain extent the freedom of movement.
He also thought that during the absence of male members of the family, during office hours, and from the fact, that Dwarki mother of Om Parkash would also be going out at times, opportunities might have been there for Bimla Devi to move about without any restrictions. The trial Court also thought that opportunities should have come for Bimla Devi to be left alone when her movements would not be restrained in any manner.
I do not agree with the finding of the Sessions Judge that the evidence on the record did not disclose commission of the offence of wrongful confinement under Section 342 of the Indian PermCode. He seems to be under the impression that Wrongful confinement connotes actual physical obstruction and at all times.
29. To support a charge of wrongful confinement proof of actual physical obstruction is not essential. It must be proved in each case, that there was at least such an impression produced in the mind of the person confined, as to lead him, reasonably to believe', that he was not free to depart, and that he would be forthwith restrained, if he attempted to do so; see King Emperor v. Shamlal Jairam, 4 Bom LR 79. Bimla Devi, having regard to her. feeble state of health and her helplessness, could be reasonably presumed to believe in the threats that if she left the house, she would not be permitted to do so,
After the incidents of two months prior to her admission in the hospital, when she was pursued and forcibly brought back to the house by the brothers of the accused, she would have had such an impression. It was remarked in Madala Peraiah v. Voruganti Chendriah, 1952 Mad WN 163: (AIR 1954 Mad 247), that physical presence of the obstructor is not necessary; nor is any actual assault necessary and fear of immediate harm restraining a man out of a place where he wishes to be and has a right to be is sufficient to constitute an offence under Section 341, Indian Penal Code.
Same reasoning applies to an offence under Section 342, the emphasis being on the apprehension produced on the mind of the person restrained or confined: see also K. Joggayya v. King, AIR 1931 Orissa 142. In my opinion the domination of the will of the accused and of the other members of his family, upon the mind of Bimla Devi, was sufficiently strong and direct, so as not to leave her no option but to submit to it. It was not necessary for purposes of Section 342 to hold her a prisoner by putting a lock outside her room all the 24 hours.
It was sufficient for purposes of commission of offence of wrongful confinement if she knew the harmful consequences of disobedience if she tried to escape. In such a case a moral force could be as effective as physical coercion, to which it was unnecessary to resort for keeping her within the four walls of the house. What is of importance in such cases is the reasonable apprehension of force, rather than its actual use.
Any effective restraint on the right of freedom whether caused by threats or by actual physical force is sufficient for purposes of commission of an offence, The coercion of the mind can, in certain circumstances, be as effective as coercion of the body, in order to bring the conduct of the wrong-doer within the ambit of Section 341 or of Section 342, Indian Penal Code. Such a restraint may arise out of words, acts, gestures or the like sufficient to induce a reasonable apprehension that failure to submit will result in the use of force.
It is not necessary to constitute the offence under Section 341 or under Section 342, Indian Penal Code, that the person to be deprived of his liberty, should he touched or assaulted or actually arrested or confined within walls, the offence may be committed by words alone or by acts alone, or by both, or by merely operating on the will or by personal violence or both. A person can be deprived of his liberty of locomotion as much by the exercise of force as by the express or implied threat of it. See Riley v. Stone, 94 SE 434 (440).
30. I think the learned Sessions Judge was in error in thinking that the restraint placed upon Bimla Devi during the two months prior to 5-6-1956 did not amount to wrongful confinement. I will not, however, interfere with the order of acquittal of the accused for the offence under Section 342, Indian Penal Code.
31. The next and the most important question in this case is, whether the ingredients of the offence under Section 307, Indian Penal Code, have been substantiated. In other words, whether accused Om Parkash is shown to have done any act with such intention or knowledge, and under circumstances, that if he by that act had caused death, he would be guilty of murder.
32. Section 32 of the Indian Penal Code provides, that in every part of the Code, except! where a contrary intention appears from the contest, words which refer to acts done, extend also to illegal omissions; and evil effect can be caused by a positive act, as well as by inaction and when the law imposes on a person a duty, forbearance from discharging it can render him liable to punishment. The word 'illegal' which is prefixed before the word 'omissions' in Section 32 is of wide import.
Everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action, conies within the ambit of the word 'illegal' (vide Section 43, Indian Penal Code). What is, therefore, to be seen in this case is, whether in terms of Section 43 intentional withdrawing of food from Bimla Devi or under-nourishing her by or at the instance of her husband was prohibited by law, and which failure would have furnished ground for a civil action.
In other words, whether accused Om Parkash was legally bound to feed Bimla Devi and is not discharging this duty, he was guilty of illegal omission. Indian case law does not furnish instances of the commission of attempted murder and no ruling, Indian or Foreign, has been cited at the Bar.
In an old case decided in 1873 'The Queen v. Gunga Singh, 5 NWPH C. R. 44, the, accused had allowed his female child of tender age whose mother had died six months after the child's birth, to languish away and die for want of proper sustenance, and had persistently ignored the wants of the child, although repeatedly warned of its state and the consequences of his neglect of it; the prisoner was in a position to support the child.
The Sessions Judge convicted the prisoner under Section 304 for the offence of culpable homicide not amounting to murder, sentencing him to two years' rigorous imprisonment. It was held that the offence committed was murder and not one under Section 304, I. P. C., Turner J., said--
'If the omission was accompanied by an intention to cause death, or by the knowledge that it must in all probability cause death, the appellant must be held to have committed murder. It must be, I think, presumed that every man who-has arrived at his discretion knows that the omission to supply an infant with proper and sufficient food must' in all probability cause death.'
The next question is, whether the case of a grown up adult from whom sustenance has been withheld could be placed on the same footing as that of a helpless infant. The husband is liable to feed and shelter his wife who is incapable of self-help to the same extent as the parent of a help-less child exclusively depending on him. Lord Macaulay in his report on the Indian Penal Code posed this question and answered it in the following words:
'Early in the progress of the Code it became necessary for us to consider the following question:
When acts are made punishable on the ground that those acts produce, or are intended to produce, or are known to be likely to produce, certain evil effects, to what extent ought omissions which produce, which are intended to produce, or which are known to be likely to produce, the same evil effects to be made punishable?
Two things we lake to be evident; first that some of these omissions ought to be punished in exactly the same manner in which acts are punished; secondly, that all these omissions ought not to be punished. It will hardly be disputed that a galore who voluntarily causes the death of a prisoner by omitting to supply that prisoner with food, or a nurse who voluntarily causes the death of an infant entrusted to her care by omitting to take it out of a tub of water into which it has fallen, ought to be treated as guilty of murder. On the other hand, it will hardly be maintained that a man should be punished as a murderer because he omitted to relieve a beggar even though there might be the clearest proof that the death of the beggar was the effect of this omission, and that the man who omitted to give the alms knew that the death of the beggar was likely to be the effect of the omission. ....Again it appears to us that it may be fit to punish a person as a murderer for causing death by omitting an act which cannot be performed without personal danger or pecuniary loss. A parent may be unable to procure food for an infant without money. Yet the parent, if he has the means, is bound to furnish the infant with food, and if. by omitting to do so, he voluntarily causes its death, he may with propriety be treted as a murderer. A nurse hired to attend a person suffering from an infectious disease cannot perform her duty without running some risk of infection. Yet if she deserts the sick person, and thus voluntarily causes his death, we should be disposed to treat her as a murderer..... ..
We cannot define this rule better than by giving a few illustrations of the way in which it will operate. A omits to give Z food, and by that omission voluntarily causes Z's death. Is mis murder? Under our rule it is murder if A was Z's gaoler, directed by the law to furnish Z with food. It is murder if Z was the infant child of A. and had therefore a legal right to sustenance, which right a Civil Court would enforce against A. It is murder If Z was a bedridden invalid, and A, a nurse hired to feed Z. It is murder if A was detaining Z in unlawful confinement, and had thus contracted (see Clause 338) a legal obligation to furnish Z. during the continuance of the confinement, with necessaries. It is not murder if Z is a beggar, who has no other claim on A than that of humanity.' (See The Complete' Works of Lord Macaulay. Vol. XI, p. 110 et seq).
33. In this case the claim of Bimla Devi wife of Om Parkash accused for sustenance and medical relief did not rest merely on benevolent morality or on humanity or mercy. A wife does not ask for food and raiment ad misericordiam. but on the basis of an obligation which is not placed by morality alone but which is also imposed by law. Stephen states this duty in the following words:
'Every person under a legal duty whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other person, is criminally responsible if death is caused by the neglect of that duty, and if the person to whom the duty is owing, is from age, health, insanity or any other cause, unable to withdraw himself from the control of the person from whom it is due; but not Otherwise.' (See Digest of Criminal Law 5th Ed. Article 234.)
Bimla Devi, in this case, apart from being an invalid, and suffering from advanced anaemia, was also kept under restraint amounting to confinement; a person in her condition was unable to withdraw herself from the control of Om Parkash. When-food is wilfully withheld from a helpless person, under the charge of the accused, with the intention to kill, he is guilty of offence of murder vide Reg v. Conde, (1867) 10 Cox CC (Eng) 547, and Reg v. Bubb, (1850) 4 Cox CC (Eng) 455. Where the wife was in a helpless state and unable to appeal elsewhere for aid, the husband who has the means to provide necessaries for existence, when deliberately withholding them, commits murder and is guilty of murder.
The criminal liability of a husband for causing the death of a wife in such a helpless condition, by withholding necessaries of life from her, is on the same footing as that of a parent towards an infant or of a jailer towards a prisoner or of a person in charge of a lunatic asylum towards its inmate. Similar liability is cast on guardians of helpless persons including nurses attending the sick. In short where there is a legal duty, law imposes a liability.
34. To the rule of culpability for acts of omission of the nature mentioned above there is one rider. The criminal liability of such persons is conditional on their capacity, means, and ability to perform the legal duty but in this case nether there was, nor could there be such a defence. What is the principle? The criminality which attaches to omission to provide food, also applies to failure to provide clothing shelter, medical attention, treatment and to other necessaries of life.
35. If an adult chooses to undertake the charge of a human creatute, helpless either from infancy, sickness, lunacy, or other infirmity, he is bound to execute that charge without wicked negligence: See R v. Nicholls, (1874) 13 Cox CC 75.
36. If a man wilfully abandons his wife to destruction by the elements when he can save her, Or criminally neglects to shelter her, when he is able to do so, and leaves her to perish, he is as much a murderer as if he had assaulted her with a deadly weapon. In Territory v Manton, 19 Pacific Rep 387, the Supreme Court of Montana sustained a verdict of guilty of manslaughter where the evidence was that the prisonel and his wife-had both been drinking; that the husband allowed the wife to lie on the ice all night, poorly clad, outside the house and brought her into the house-next morning when it was too late. She languished speechless until the next day and died. No effort was made to get her medical aid. Even the drunkenness of the husband, was held to be no excuse on his part from discharging his duty towards her as her husband.
37. Though, where a husband and wife had been separated by common consent and he had agreed to allow her a stioulated sum per week, and such sum was regularly paid he might ordinarily refuse to have anything to do with her but if she was ill and without shelter on a cold night, and when informed of her condition, he refused her shelter, and she was found dead the next morning, he is guilty of manslaughter if her death was caused or accelerated by his conduct in refusing shelter.
The fact that the wife in such a case was suffering from a disease which would have shortly caused her death does not relieve him from liability therefor; it is immaterial whether the death of the deceased was actually caused by the act of the accused or only acceleated by it, vide Reg v. Plummer, (1844) 174 ER 954.
38. In the case of Bex v. Chattaway, (1922) 17 Cri App Hep 7, it was held that there was a common law duty to take proper care of an adult sui juris who was helpless and unable for any reason to withdraw himself, from the dominion of those who had charge of him, and neglect in such a State of things may amount to manslaughter.
39. In Westrup v. Commonwealth 93 SWR 646, one Arthur Westrup was convicted of manslaughter of his wife for neglecting to provide medical attention for his wife during, childbirth and thereby causing her death. The principle of law laid down by the Court of Appeal of Kentucky was as under:
'Where the husband neglects to provide necessaries for his wife, or medical attention in case of her illness, he will be guilty of involuntary man-slaugther, provided it appears that she was in a helpless state and unable to appeal elsewhere for aid, and that the death, though not intended nor anticipated by him, was the natural and reasonable consequence of his negligence.''
40. In State v. Rees, 107 Pacific Reporter 893, the facts were, that the accused assaulted a woman, violently threw her on the ground and as a result she became unconscious. He then permitted her to lie on the ground, exposed to the inclemency of the weather and neglected and refused to provide her with necessary clothing, shelter and protection and by reason of which assault and exposure she died.
In these circumstances, it was held that the accused would be guilty of murder, and it was immaterial whether she was his wife or not. A person therefore, can be guilty of murder by doing nothing. Exposure of a person to the unpropitious elements, towards whom, the accused owed a duly of protection may amount to murder or manslaughter according to the circumstances. To the same effect is State v. Behm, 34 NWR 319.
41. In the case of Alexander Gordon Bonny man. (1943) 28 Cri App Rep 131, the accused was a medical man and he married the deceased who was discovered to be a drug addict. In February 1940, she was persuaded by another doctor named Prasad to go into hospital, and her health improved In April 1941, the house in which the accused and his wife were living was destroyed by an air-raid. Mrs. Putnam, a neighbour, found the appellant's wife in a very dirty and neglected condition and she proposed to take her to her home but the accused said that she was too ill to be moved.
Mrs. Putnam warned the accused that he would run the risk of man-slaughter if anything happened to her. Three days later, she was taken to Mrs. Putnam's house. Her condition improved hut the accused did not get her treated though asked to do so. Before she was removed in another house in August 1941, the appellant would not let the doctor who had seen her (Dr. Prasad), go upstairs to see her in bed, but brought her down in his arms. She was then dirty, her hair was matted, and she had open ulcers.
The next day Dr. Prasad wished to see her, but was told by the accused that if his services were required, he would be summoned. Her condition worsened steadily. It was proved that she was physically helpless. , Eventually she was taken to the hospital and died the next clay after her admission. The accused's defence was, that she was stubborn and would not let him do anything for her. The accused was convicted of the manslaughter by negligence of his wife. The appeal was Dismissed by Court of Criminal Appeal. The Lord Chief Justice delivering the judgment of the Court
of Appeal at page 137 observed:
'Can anybody, I ask, who has read the evidence Or heard the evidence in this case, have anydoubt that this unhappy woman was unable towithdraw herself from the care of the appellant, orwas not in a position to give herself any help todeliver herself from her mental and physical ailments? * * *and for the reasons I have mentioned we comeclearly to the conclusion that she was as helplessas a human being could be, and that the plainduty of the appellant Was to have given her aidand treatment, which he withheld.'
42. The above principle of law was also endorsed in Reg v. Smith, (1865) 169 ER 1533, though, on the facts of that case, the mistress was not held to be criminally responsible for the death of her servant aged 23 years, caused by neglecting to supply her with proper food and clothing as the servant was on the evidence, found to be helpless and unable to take care of herself and was not under the dominion and restraint of her mistress as to be unable to withdraw herself from her control. Channell B, at page 1544 observed;
'No doubt there may be cases where a personunder the control of another may go out and befreed from his presence, and yet be, by the relationship between them, so constrained to return asto be actually under the dominion and restraint ofthat other; * * *. Insuch a case, no doubt, there is such a restraint anddominion, as to render the person exercising it liable for such a neglect as is charged in the presentcase;* * *.'
43. In R. . Marriott, (1838) 8 C and P 425, it was held that where the death of an aged and infirm woman is caused by confining her against her will, and not providing her with food, appeal and medicines and other necessaries, and not allowing her the enjoyment of the open air, in breach of an alleged duty, if the neglect is so wilful and gross as to warrant the inference, that the person confining contemplated her death, such a person was guilty of murder but if the death was occasioned by negligence, he was guilty of manslaugher only.
44. In The Queen v. Instan, (1893) I QB 450, the prisoner used to be maintained by her aunt, a woman of seventy-three. During the ten days before her death the aunt suffered from a disease which prevented her from moving or doing anything to procure assistance; during this time the prisoner lived in the house and took in the food supplied by the tradesmen, but gave none to the deceased, nor did she procure for her any medical or nursing attendance, or inform any one of the condition of the deceased, although she had abundant opportunity to do so.
No one but the prisoner bad any knowledge of the condition of the deceased prior to her death, which was substantially accelerated by want or food, nursing, and medical attendance. It was held that a duty was imposed upon the prisoner, under the circumstances, to supply the deceased with sufficient food to maintain her life, and that, the death of the deceased having been accelerated by the neglect of such a duty, the prisoner was guilty of manslaughter. Lord Coleridge C. J. said:
'There is no case directly in point; but it would be a slur upon and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being, within it, The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her, that legal duty the prisoner has wilfully, and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.'
45. Criminal law fastens liability on persons who omit to perform the duty required by law such as to provide food, clothing, shelter, or medical aid to another, but a refusal to perform acts of mere charity or mercy, not coupled with a legal duty, does not entail legal punishment even if death ensues from such refusal or neglect. Applying the above principles it is clear that the law casts upon Om Parkash accused inter alia the duty to provide his wife with food, and medical treatment.
The evidence on the record shows, that he wilfully and deliberately failed to discharge the obligation he owed to her in the matter of food and medical attention. He also possessed the capacity, means and ability to perform the legal duty without which the omission to perform it, is not criminal. If Bimla Devi had died her death in the circumstances of her condition and the treatment meted out to her would not have been imputable to such a failure on the part of Om Parkash.
In this case the failure to provide medical care was not the result of any genuine belief in the inefficacy of the medical treatment. The food in this case was wilfully and intentionally withheld so as to shorten the remaining span of her life. Law does not require an intention to cause the death then and there. It is enough if the facts show that by withholding food to her, death would have resulted surely though gradually.
46. The next question to be considered in cases under Section 307, Indian Penal Code, is, whether the act or omission of the accused person amounted to an attempt to commit the offence. An attempt in order to Be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient, if the attempt had gone so far, that the crime would have been completed, but for extraneous intervention which frustrated its consummation. According to Stephen 'an attempt to commit a crime, is an act done with an intent to commit that crime, and forming part of series of acts which would constitute its actual commission if it were not interrupted'. (See Digest of Criminal Law, Article 67.)
47. In this case it was not a mere preparation, but steps adapted to the purpose intended, had been taken. But for the intervention of the fortuitous circumstances, of the girl having managed to reach the hospital, the accomplishment of the object was, according to the medical opinion, within sight; and. under those conditions Bimla Devi was not expected to survive for long.
The systematic semi-starvation of Bimla Devi, and the deliberate denial of medical treatment, which in her condition, she sorely needed, was a criminal omission, which was immediately and not remotely connected with, and directly tending to, the commission of the offence. The act of omission had gone far. enough towards the accomplishment of me desired result. Applying the principles of law discussed above, to the facts and circumstances of this case, they clearly point to the guilt of Om Parkash, and leave no reasonable doubt in my mind, that he had attempted to murder his wife Bimla Devi.
48. For the reasons discussed above, I agree with the conclusion of the learned Sessions Judge that the accused-appellant has been proved to be guilty of the offence under Section 307, Indian Penal Code. The sentence of three years' rigorous imprisonment is not excessive having regard to the studied and systematic nature of the attempt, steadily pursued for a considerable length of time. I maintain the conviction and the sentence and dismiss the appeal. The accused is onbail. He is ordered to surrender to his bail-bond and to undergo the unserved portion of his sentence.
49. A criminal revision has been filed (Criminal Revision No. 1083 of 1957) praying for enhancement of sentence passed on Om Parkash under Section 307, Indian Penal Code, In the same petition it is also prayed that the order acquitting Om Parkash under Section 342, Indian Penal Code, and also the order of acquittal passed in favour of Dwarki Devi should be set aside. Om Parkash has been awarded a substantial sentence of three years' rigorous imprisonment and I do not consider the sentence to be inadequate.
I have differed from the Sessions Judge regarding his reasoning and conclusion which led him to acquit Om Parkash of the offence under Section 342, Indian Penal Code, hut as he has been found guilty; under Section 307 Indian Penal Code, I do not consider it advisable to set aside the order of his acquittal. Dwarki Devi was given the benefit of doubt and acquitted. I do not consider it proper to interfere with the conclusions of the Sessions Judge. The Criminal revision No. 1083 of 1957 is, therefore, dismissed.