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The Public Prosecutor Vs. Mushunooru Suryanarayana Moorty - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.833
AppellantThe Public Prosecutor
RespondentMushunooru Suryanarayana Moorty
Cases ReferredThe Queen v. Latimer
Excerpt:
penal code (act xlv of 1860), section 299, 300, 301 - murder--death of the person hilled need not be intended. - ralph benson, j.1. this is an appeal by the public prosecutor on behalf of government against the acquittal of one suryanarayana murthi, on a charge of having murder the girl, rajalakshmi.2. the facts of the case, so far as it is necessary to state them for the purposes of this appeal, are ps follows:the accused, with the intention of killing appala narasimhulu (on whose life he had effected large insurances without appala narasimhulu's knowledge, and in order to obtain the sums for which he was insured), gave him me sweetmeat (hah a) in which a poison containing arsenics and mercury in soluble form had been mixed. appala narasimhulu ate a portion of the sweetmeat, and threw the rest away. this occurred at the house of the accused's brother-in law where the accused had asked appala.....
Judgment:

Ralph Benson, J.

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

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

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

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

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

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

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

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

8. It follows that the accused in the present, case is guilty of murder, and this is rendered still more clear by Section 300 of the Code. The cases in which culpable homicide is murder under Section 300 are not confined to cases in which the by which the death is caused is done with the intention of causing death. Section 300 specifies other degrees of intention or knowledge which may cause the act to amount to murder, and then Section 301 enacts, that if a person, by doing any thing which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends rot knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.'

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

10. This conclusion is in accord with the view of Norman, Offg. C.J., and Jackson, J., in the case reported in Letter No. 151, dated the 9th February 1870 13 W.R. Cr. Letters 2, where it is said: 'The prisoner gave some poisoned rice water to an old woman who drank part herself and pave part to a little girl who died from the effect of poison. The offence of the prisoner, under Section 301 of the Indian Penal Code, is murder.' That the present accused would be guilty of murder under English law is clear from the case of Agnes Gore. In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband, which he ate but which did rot kill him, but afterwards killed the Apothecary, who to vindicate his reputation lasted it himself, having first stirred it a about. It was resolved by all the Judges that lie said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous in intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence caused; (sic) the death of the said Martin is the event, quia eventus est qui ex causa segitur, et dicuntur eventus qui ex causis eveniunt, and the stirring of the electuary by Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death.' (King's Bench. 77 English Reports, page 853, at page 854).

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

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

13. The accused was originally sentenced to 7 years' rigorous imprisonment for having attempted to murder Appala Narasimhulu. This sentence was enhanced to one of transportation for life by this Court act it g as a Court of Revision in December 1910, when this appeal was not before them. Looking to these facts, I am unwilling to now impose a, sentence of death, though it would have been appropriate if the accused had been convicted of murder at the original trial.

Sundara Aiyar, J.

14. In this case the accused Snryanarayana Murthi was charged by the Sessions Court, of Garjim with the murder of a young girl named Rajalakshmi and with attempt to murder one Appala Narasimhulu by administering poison to each of them on the 9th February 1910. He was convicted by the Sessions Court on the latter count, but was acquitted on the former count and was sentenced to 7 years' rigorous imprisonment. He appealed against the conviction and sentence in Criminal Appeal No. 522 of 1910, and this Court confirmed the conviction and enhanced the sentence to transportation for life. The present appeal is by the Government against his acquittal on the charge of murdering Rajalakshmi.

15. The facts, as found by the lower Court, are that the accused, who was a clerk in the Settlement Office at, Chicacole, got the life of Appala Narasimhulu, the Prosecution 1st witness, insured in two Insurance Companies for the sum of Rs. 4,000 in all, having paid the premia himself; that the 2nd premium for one of the insurances fell due on the 12th January 1910, and the grace period for its payment would elapse on the 2th February 1910 ; that the Prosecution 1st witness being at the same t me badly pressed for means of subsistence asked the accused for money on the morning of 9th February; that the latter asked him to meet him in the evening at the house of his (the accused's) brother-in-law, the Prosecution 8th witness; that at that house the accused gave the Prosecution 1st witness a white substance which he called 'halva' but which really contained arsenic and mercury in soluble form that the Prosecution 1st witness having eaten a portion of the halva threw aside the rest; that it was picked up by the daughter of the Prosecution 8th witness, the deceased Rajalakshmi, who ate a portion of it herself and gave another portion to a child of a neighbour, and that both Rajalakshmi and the other child were seized with vomiting and putting and finally died, Rajalakshmi some 4 days after she ate the halva and the other child 2 days earlier. After the Prosecution 1st witness had thrown away the halva, both he and the accused went to the bazaar and the accused gave Prosecution 1st witness some more halva. The Prosecution 1st witness suffered in consequence for a number of days but survived. The accused, as already stated, had been sentenced to transportation for life for attempting to murder the Prosecution 1st witness.

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

17. It is clear that the accused bad no intention of causing the death of the girl, Rajalakshmi. But it is contended that the accused is guilty of murder as he had the intention of causing the death of the Prosecution 1st witness, and it is immaterial that he had not the intention of causing the death of the girl herself. Section 299, Indian Penal Code, enacts that 'whoever causes death by doing an act with the intention of causing death, or with the knowledge, that ha unlikely by such act to cause death commits the offence of (sic) homicide.' Section 300 say: 'culpable homicide is murder, if the sat by which the death is caused is done with the intention of causing death.' Section 301 lays down, that 'if a person, by doing anything which ho intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if ho had caused the death of the person whose death he intend or knew himself to be likely to cause.' The contention of the learned Public Prosecutor, to put it very shortly, is (1) that it was the accused's act that caused the death of the girl, and (2) that the accused had the intention of causing death when he gave the poison to the Prosecution 1st witness and was, therefore, guilty of arty death that resulted from, his act. He urges that the Sections of the Penal Code practically reproduce the English law, according to which the causing of death with malice afore though, though the malice may not be directed against a particular individual whose death ensues, would amount to murder. Before referring to the English law, I shall consider the provisions of the Penal Code bearing on the subject. If Mr. Napier's contention be sound, it would make no difference whether Appala Narasimhulu, the Prosecution 1st witness, also died in consequence of the poison or not; nor would it make any difference if, instead of the poison being picked up by the girl and even by herself, she gave it to some one else and that one to another again and so on if in changed any number of hands. The accused would be guilty of the murder of one and all of the persons who might take the poison, though it might have been impossible for him to imagine that, it would change hands in the manner that, it did. The contention practically amounts to saying that the intervention of other agencies and of any number of them, before death results, would (sic) no difference in the guilt of the accused, that causing death does not mean being the proximate cause of death, but merely being a link in the chain of the causes or events leading to the death, and that, further, any knowledge on the part; of the accused that such a chain of events might result from his act is quite immaterial. It is prima facie difficult to uphold such an argument. Now is there anything in the Sections of the Penal Code to support Section 39 provides that 'A person is said to cause an effect 'voluntarily' when he causes it by means whereby be intended to (sic), or by means which, at the time of employing those means, he knew or bad reason to believe to b) likely to cu nit.' The illustration to the Section is that if a person sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery, and thus causes the death of a person, he would be taken to have caused the death voluntarily if he knew that he was likely to came it even though he may not have intended to cause death and may even be sorry that death had been earned by his act. The Section and the illustration both show that causation with respect to any event involves that the person should have knowledge that the event was Ilk sly to result from his act. Section 299, Indian Penal Code, in my opinion, does not lead to a different conclusion. But, before dealing with it, I must turn to Section 301, Indian Penal Code. That Section apparently applies to a case where the death of the person whose death was intended or known to be likely to occur by the person doing the act, does not, as a fact, occur, but the death of some one else occurs at the result of the act done by him. It evidently does not apply where the death both of the person whose death was in, contemplation and of another person or persons, has occurred. Can it be said that, in such a case, the doer of the act is guilty of homicide with reference to those whose death was not intended by him and could not have bean foreseen by him as likely to occur? Are we to hold that a man who knows that his act is likely to cause the death of one person is guilty of the death of all the others who happen to dif, but whose death was far beyond his imagination? Such a proposition it is impossible to maintain in Criminal Law. Section 301 of the Indian Penal Code has reference to a case where a person intending to cause the death of A., say by striking or shooting him, kills B. because B. is in the place where he imagined A. to be for B. rushes in to save A. and receives the injury intended for A. The reason for not exculpating the wrong doer in such cases is that he must take the risk of same other person being in the place where he expected to find A., or, of some one else intervening between him and A. The Section is a qualification of the rule laid down is Section 299 and is evidently confined to cases where the death of the person intended or known to be likely to be killed does not result. If the Public Prosecutor's general proposition were right, Section 301 of the Indian Penal Code would seem to be unnecessary as Section 299 would be quite enough. If a person is intended by Section 239 to be held to be guilty for deaths which are not known to be likely to occur, then that Section might itself have been worded differently so as to show that the particular death caused need not have been intended or foreseen and, what is more important, Section 301 of the Indian Penal Court would not be limited to cases where the death of the particular individual intended or foreseen does not occur. The gereral theory of the Criminal Law is that the doer of an act is responsible only for the consequences intended or known to be likely to ensue; for otherwise he could not be said to have caused the effect 'voluntarily,' and a person is not responsible for the involuntary effects of his acts. Illustrations A. and B., it my opinion, support this view. Sections 323 and 324 show that a person is responsible in the case of hurt or grievous hurt only for what he causes voluntarily; and Section 321 shows that hurt to the particular person in question must have been intended or foreseen. In the eye of the law, no doubt, a man will be taken to have foreseen what an ordinary individual ought to foresee, and it will not be open to him to plead that he himself was so foolish as, in fact, not to foresee the consequence of his act. A person might in soma cases be responsible for effects of which his act is not the proximate cause where the effect is likely to arise in the ordinary course of events to result from the act. This rule will certainly hold good where a persons act set in motion only physical causes which lead to the effects actually occurring; when the effect is not due merely to physical causes set in operation by an act, but other persons' wills intervening are equally necessary causes with the original act to lead to the result, it is more difficult to decide whether the act in question can be said to be the cause of the effect finally produced. The Code throws very little light on the question. Ordinarily, a man is not criminally responsible for the acts of another person, and ordinarily, his act should not be held to bi the cause of a consequence which would not result without the intervention of another human agency. Sir J. (sic) James Stephen, in his History of the Criminal Law of England, Vol. III, p. 8, say: 'A more remarkable set of cases are those in which death is caused by some act which does unquestionably cause it, but does so through the intervention of the independent voluntary act of some other person. Suppose, for instance, A. tells B. of facts which operate as a motive to B. for the murder of C. It would be an abase of language to say that A. had killed C., though, no doubt, re has been the remote cause of C.'s death.' The learned author proceeds to point out that, even when a person counsels, procures or commands another to do an act, he would be only guilty as an abettor but not as a principal offender whose act caused the result, say murder. This is the well settled principle of the English Law, though there appear to be one or two exceptions, to be hereafter pointed out. No such exceptions are mentioned in the Indian Code. They may, perhaps, be recognised where the doer of the act knew that it would be likely that his own act would lead other persons, not acting wrongfully, to act in such a manner as to cause the effect actually produced. But the scope of the exceptions cannot cover those cases where the doer could not foresee that other persons would act in the manner indicated above. This is the principle adopted in determining civil liability for wrongs. See the discussion of the question in Baker v. Snell (1908) 2 K.B. 825 : 77 L.J.B. 100, 24 T.L.R. 811 : 99 L.T. 753 : 21 Cox. C.C. 716. A stricter rule cannot by applied in cases of criminal liability.

18. Now, can it be said that the accused in this case knew it to be likely that the Prosecution 1st witness would give a portion of the halva to the girl Rajalakshmi? According to Section 26 of the Indian Penal Code, 'A person is said to have 'reason to believe' a thing if he has sufficient cause to believe that thing but not otherwise.' A trader who sells a basket of poisoned oranges may be said to have sufficient 'reason to believe' that the buyer would give them to various persona to eat; but one who gives a slice of an orange to another to eat on the spot could not be said to have 'sufficient reason to believe,' that he would give half of that slice to another person to eat or that he would throw away a portion and that another would eat it. The poison was thrown aside here not by the acused but by the Prosecution 1st witness. The girl's death could not have been caused but for the intervention the Prosecution 1st witness's agency. The case, in my opinion, is not one covered by Section 301 of the Indian Penal Code. The conclusion, therefore, appears to follow that the accused is not guilty of culpable homicide by doing an act which caused the death of the girl. Mr. Napier, as already mentioned, has contended that the law in this country on the question is really the same as in England; and he relies on two English cases in support of his contention, viz., Saunders case and Agues Gore's case. I may preface my observations on the English Law by citing Mr. Mayne's remark that culpable homicide is perhaps the one branch of Criminal Liw in which an Indian student must be most careful in accepting the guidance of English authorities.' According to the English Law, 'Murder is the unlawful killing, by any person of sound memory and discretion, of any person under the King's peace, with malice aforethought, either express or (sic) by Law. This malica aforethought which distinguishes murder from other species of homicide is not limited to particular ill-will against the person slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of Social duty, and deliberately bent upon mischief. Any formed design of doing mischief may be called malice; and, therefore, not only killing from premeditated hatred or revenge against the person killed; but also, in many other cases, killing accompanied with circumstances that show the heart to be previously wicked, is adjudged to be killing of malice aforethought and, consequently, murder'--Russell on Crimes and Misdemeanours, 7th Edition, Volume 1, page 655. It will be observed that, in this definition, malice is made an essential requisite and all cases have to be brought under it. Knowledge that the act is likely to cause death is not part of the definition. Nor have we any words to import is what contained in the explanations to Section 299 of the Indian Penal Code, or in Clauses 2, 3 and 4 of Section 300. The law was worked out in England to its present condition by a series judicial decisions. This accounts for tie statement that general malice is enough and that it need not be directed against the particular individual killed. Hence, also, the proposition that wicked intention to injure is enough and intention to kill the individual is not necessary. See Roscoe's Criminal Evidence, 13th Edition, pages 617 to 619. Malice, again, is explained to mean malice implied by law as well as malice in fact. The result is, the law in England is not as different fro n that in India as a comparison of the definitions might, at first sight, indicate. This is apparent from the statement of the English Law at pages 20--22, Volume 3 of Stephen's History of the Criminal Law. The statement, however, shows that the law is not identical in both countries. In England an intention to commit any felony will make the act murder if death results Again,' if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a crime, the inciter is the principal ex necessitate, though absent when the thing was done. In point of law the act of the innocent, agent is as much the act of the procurer as if he were present and did the act himself.' See Russell on Grimes, Vol. I, page 104. The Indian law does not make the abetter guilty of the principal offence in such circumstances. There is also a presumption in the English Law that 'All homicide is malicious and murder, until the contrary appears from circumstances of alleviation, execute, or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and Jury, unless they arise out of the evidence produced against him.' See Russell on Crimes, Vol. I, page 657. There is no such presumption here. In Sounder's case, as stated in Roscoe's Criminal Evidence, page 154, where the prisoner intending is poison his wife gave her a poisoned apple which she, ignorant of its nature, gave to a child who took it and died. This was held murder in the husband although being present be endeavoured to dissuade his wife from giving it to the child. In Hale's Pleas of the Crown, Vol. I, 436, it is not stated that the prisoner endeavoured to dissuade his wife from giving the apple to the child. On the other hand, the author say: 'if A commands or counsels B. to kill C. and before the fact is done A. repents and comes to B. and expressly discharges him from the fact and countermands it, if after the countermand B. does it, it is murder in B., but A. is not accessory.' The decision apparently proceeded on the English rule that the innocence of intervening agents had the effect of holding the prisoner liable as the principal offender. In Agnes Gore's case, 77 English Reports, 65 3, the wife who mixed ratsban in a portion sent, by the Apothecary to her husband which did not kill him but killed the Apothecary win, to vindicate his reputation, tasted it himself, having first stirred it up, was held guilty of murder because the wife had the intention of killing the husband though not of killing the Apothecary. It is possible that an Indian Court may hold in such a, case that it was the duty of the wife to warn and prevent the Apothecary from tasting the portion and that she was guilty of an illegal omission in not doing so. Whether the case might not come under Section 30, Indian Penal Code, also, it is unnecessary to consider. In The Queen v. Liatime 17 Q.B.D. 350 'the prisoner, in striking at, a man, struck and wounded a woman beside him. At the trial of an indictment, against the prisoner under 24 and 25 Vic. c. 103, Section 20, for unlawfully and maliciously wounding her, the Jury found that the blow was unlawful and malicious and did, in fac1, wound her, but that the striking of her was purely accidental, and not such a consequence of the blow as the prisoner ought to have expected.' The Court of Crown Oases Reserved held that the prisoner was guilty. The decision proceeded upon the words of the statute. Section 18 enacted that 'Whosoever shall unlawfully and maliciously cause any grievous bodily harm to any person with malicious intent shall be guilty of felony.' Then, Section 20, leaving out the intent, provided that whosoever shall unlawfully, and maliciously wound or inflict any grievous bodily harm upon any other parson shall be guilty of misdemeanour. Lord Coleridge, C.J., pointed out that, the language of Sections 18 and 20 was different and that the earlier statute had been altered which provided that the intention should be against the person injured. In Regina v. Michael 9 Car. & P. 356 : 2 M.C.C. 120 where a bottle containing poison was put on the mantle-piece where a little child found it and gave part of the contents to the prisoner's child who soon after died, the Judges were of opinion that 'the administering of the poison by the child was, under the circumstances of the case, as much in point of law an administering by the prisoner as if the prisoner had actually administered it with her own hand.' This decision also, no doubt, proceeded on the ground of want of discretion in the intervener, the child. The Indian Courts may hold that a person who keeps poison at a place where others might have access to it must be taken to know that death is likely to result from the act. It is clear that English decisions are not always a safe guide in deciding cases in this country where the provisions of the Penal Code must be applied. In Shanker Balkrishna v. Emperor 32 C.K 73 : 8 C.W.N. 645 : 1 Cri. L.J. 634 the Calcutta High Court held that the prisoner in the case, an Assistant Railway Station Master, was not liable where death would not have resulted if the Guard had not acted carelessly, as the prisoner could not be taken to know that the accident to the train, which resulted in the loss of humin life, was likely to lead to death. In Empress v. Sahae Rae 3 C.P 623 : 2 C.L.R. 304 which maybe usefully compared with The Queen v. Latimer 17 Q.B.D. 359 and where also the prisoner was held guilty, the decision was put on the ground that the prisoner knew it to be likely that the blow would fall on a person for whom he had not intended it. Holding, as I do, that, in the circumstances of this case, the prisoner could not be said to have known that it was likely that the Prosecution 1st witness could throw aside the halva so as to be picked up and eaten by some one else and that the prisoner was not responsible, in-the circumstances, for the voluntary act of Prosecution. 1st witness, I must come to the conclusion that the prisoner is not guilty of the murder of the girl Rajalakshmi. It is not contended that there was a legal duty on the part of the accused to prevent the girl from eating the halva and that he was guilty of murder by an illegal omission.

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

Benson, J.

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

21. This appeal coming on for hearing on Thursday, the 23rd of November 1911, under the provisions of Section 429 of the Code, of Criminal Procedure, and having stood over for consideration till this day, the Court delivered the following


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