In Re: Palani Goundan vs Unknown on 7 April, 1919

Madras High Court

In Re: Palani Goundan vs Unknown on 7 April, 1919
Equivalent citations: 51 Ind Cas 164
Author: Napier
Bench: J Wallis, S Aiyar, C Trotter

ORDER Napier, J.

1. The accused has been convicted of the murder of his wife. The evidence shows that on Wednesday
the 23rd of October 1918 at about 4 or 5 raligais before sunset she was seen by prosecution 6th
witness weeping and she said that her husband had beaten her. The witness told her to go home,
promised to send for her father and then went to the father himself, who lived in another hamlet of
the same village a mile away a little before sunset, and told him of the occurrence. After sunset the
father, prosecution witness No. 2, sent his son, prosecution witness No. 3, and his son in law,
prosecution witness No. 4, to the house where his daughter was living. Their evidence is that they
arrived at the house at 4 or 5 nalig is after sunset and that Just outside the door they found the
mother and the brother of the accused in the vasal and that the mother was remonstrating with her
son inside, saying 'do not beat a woman' According to their evidence they did not hear any cries
inside the house at that time After they waited a few minutes the accused opened the door and came
out. They say they went inside and found Ramayee lying dead on the floor with a ploughshare lying
near her. They say they at once went and told Rasa Gaundan, who lives two doors off from the
accused's house, to go and call their father, prosecution witness No 2. Rasa Gaundan, prosecution
witness No. 5, says that he went and informed prosecution witness No. 2, who at once came and
found his daughter lying dead at about 10 or 11 o'clock in the night. Prosecution witness No, 2, says
that he taxed the accused with the murder of his daughter and the accused said she hanged herself.
Prosecution witness No. 2 further says that he went to the Monigar and reported, but the Monigar
was busy with a procession and only promised to report. He thought that the Monigar was
endeavouring to hush the matter up, so he went to report the matter to the Police himself at
Kodumudi 3 or 4 miles away and laid a complaint. This complaint was recorded at 9. 15 a.M. the
next morning. That the Monigar was endeavouring to hush the matter up there can he no doubt, for
it is clear that he sent no report to the Police what scever as was his duty to do. The accused told a
story to the effect that he came bark early in the evening to get his meals and found his wife banging
with a rope sied to the roof, and he calls two witnesses who say that the accused came and told them
that his wife would not let him in and they went in with him and found his wife hanging from a
beam. I do not think there can be any doubt that the deceased was hanged, but the evidence of the
two defence witnesses is so discrepant that it is impossible to believe their version of the occurrence.
The medical evidence shows that the woman had received a severe blow on the side of her head
which would probably have rendered her unconscious, and it also shows that she died of
strangulation which may have been the effect of hanging. That she hanged herself is impossible
because, as pointed out by the Medical Officer, the blow on the head must have produced
unconsciousness, and therefore, she could not hang herself. I am satisfied on the evidence of the
following facts: that the accused struck his wife a violent blow on the head with the ploughshare
which rendered her unconscious, that it is not shown that the blow was likely to cause death and I
am also satisfied that the accused hanged his wife very soon afterwards under the impression that

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

she was already dead, intending to create fale evidence as to the cause of the death and to conceal
his own crime. The question is, whether this is murder.

2. Section 299 of the Indian Penal Code provides: Whoever causes death by doing an act with the
intention of causing...such bodily injury as is likely to cause death...commits the offence of culpable
homicide," and Section 300, Clause 3, provides that "if it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be indicted is sufficient in the ordinary course
of nature to cause death," then in such cases culpable homicide is murder. Now, the hanging of a
woman who dies from the effect of the hanging is on the face of it causing bodily injury which is
sufficient in the ordinary course of nature to cause death, and the section only requires that there
should be homicide, namely, the causing of death, to make this murder. It cannot, I think, be
disputed that the accused intended to cause bodily injury, for he intended to hang and did hang
whether the body was alive or dead, if he bad stabbed her or shot her intending it to be believed that
she had stabbed or shot herself, I cannot see that he would have done other wise than intended to
cause the wounds which he did cause. In this case the bodily injury was strangulation by hanging. It
is, however, suggested that there is a necessary limitation, namely, that the person on whom the
bodily injury is infected must be a person who is to the knowledge of the accused capable of being
killed and that, therefore, if the accused thinks that the person is dead already he cannot be
convicted of culpable homicide. One limitation of the strict words of the section and the difficulty is
to say what that limitation is to be.

3. The protection would seem to be found in English Law by the application of the doctrine of mens
rea, though this might again be affected by the doctrine of malice in law which makes the killing in
the course of a felony homicide. This doctrine of mens rea, though extremely difficult of definition,
operates to protect persons who have no wrongful intention or other blameworthy condition of
mind. To what extent it would operate to protect persons who knew that they were committing a
criminal offence, namely, concealment of murder, is a question which I do not propose to consider,
though the decision in R. v. Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13
Cox. C.C. 138 referred to by the Public Prosecutor would seem to apply the mens rea to a person who
intended to do an unlawful act but not the unlawful act which he in fact did. This is in fact the
argument of the Public Prosecutor who asks us to apply this doctrine. I do not think, however, that it
arises for consideration.

4. Mr. Mayne is quite clear that under the Penal Code the maxim is wholly out of place. He says that
every offence is defined and the definition states not only what the accused must have done but his
state of mind in regard to his act when he was doing it. The whole of his discussion in Sections 8, 9
and 10 on mens rea and knowledge is worthy of very close consideration, and he seems to be quite
clear that all the protections found in the English Criminal Law are reproduced in the Chapter of
General Exceptions in the Penal Code. Sections 79, 80 and 81 would seem to cover all cases where a
person is not acting with a criminal intent. Now it seems to me that the particular clauses in
Sections 299 and 300 which we have to interpret do create what I am tempted to call constructive
murder. The first Clause of Section 299 requires the intention of causing death; the third Clause
requires a knowledge that he is likely by such act to cause death. In the same way the first Clause of
Section 300 requires an intention to cause death, the second Clause requires an intention to cause

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

such bodily injury as the offender knows to be likely to cause death, and the fourth Clause requires
the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or
is likely to cause death and the act is committed without any excuse for incurring the risk. In all
these we have intention, knowledge and recklessness directed towards the causing of death. On the
other hand, in the second Clause to Section 299 the intention is directed towards the bodily injury
and in the third Clause to Section 300 the intention is the same. What makes the offence murder is
that the bodily injury should in fact be likely to cause death entirely apart from intention or
knowledge. The Legislature has thought fit to make the offence murder without proof of intention or
knowledge directed towards death on the principle, of course, that a person must be deemed to
intend the natural result of the injury which he inflicts; that is to say, if he inflicts an injury which is
likely to cause death and that person dies, he must take the consequences of his action. But the
intention provided for is confined to he bodily injury and not to the death. That is the law which we
have to apply, and unless a person can be protected by one of the General Exceptions, I cannot see
for myself how he is to escape from the larguage of the section. Apart from the actual offence of
concealing a murder, it is the grossest violation of natural rights to stab, shoot or hang a person
without absolute knowledge that that person is dead, unless of course it is done innocently, and I see
no reason why the offender should not suffer the consequences of this act.

5. I shall now refer to the cases. The first is Gour Gobindo Thakoor, In re 6 W.R.Cr. 55. The facts are
very similar. There one Gour Gobindo struck the deceased Dil Muhammad a blow which knocked
him down, and then he and others, without enquiry as to whether he was dead or not, in haste hung
him up to a tree so as to make it appear that he committed suicide. The accused were all convicted of
hurt but the High Court quashed the proceedings and directed the accused to be re tried on charges
of murder, culpable homicide not amounting to murder and hurt. Mr. Justice Seton Karr says, "if,
however, the deceased was not actually killed by the blow, but was killed by the suspension, then
Gour Gobindo himself and also all the other Thakoors who took part in hanging him up to the tree,
would be clearly liable to a charge of culpable homicide amounting to murder; for, without having
ascertained that he was actually dead, and under the impression that he was only stunned, they
must have done the act with the intention of causing death, or bodily injury likely to cause death,
and without the exceptions provided by the law, or they might have been committed for culpable
homicide not amounting to murder." Mr. Justice Norman fays: "Suppose, secondly, that the
Thakoors had no intention of killing the deceased, but, finding him insensible, without enquiry
whether he was dead or alive, or giving him time to recover, under an impression that he was dead,
hung him to the tree, and thereby killed him. It appears to me that they might all have been put on
their trial, under Section 304, for culpable homicide not amounting to murder. I think a Jury might
fairly presume against them that they must have known that they were likely by that act to cause
death". The difficulty in this case is that the learned Judges did not wish to decide the case, and,
therefore, their language is hypothetical. Mr. Justice Norman says that a Jury might fairly presume
knowledge that they were likely to cause death, hereby introducing a limitation which is not to be
found in the clauses we have under consideration. Certainly Seton-Karr, J., thinks the offence to be
culpable homicide.

6. The next case is Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131. In that case it was
found that the accused struck the deceased three blows on the head with a stick with the intention of

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

killing him. The accused, believing him to be dead, set fire to the hut in which he was lying with a
view to remove all evidence of the crime. The medical evidence showed that the blows were not
likely to cause death and did not cause death and that death was really caused by injuries from
burning. Mr, Justice Bird wood states the provisions of Section 299 and says, it is not as if the
accused had intended, by setting fire to the shed, to make the deceased's death certain," and,
therefore, acquits him of murder though be convicts him of an attempt to commit murder because of
the accused's own admission that he intended by the blow to kill. With great deference the learned
Judge gives no reason for the view he takes. Mr. Justice Parsons took the view that the whole
transaction, the blow and the burning, must be treated as one and that, therefore, the original
intention to cause death applied to the act of burning which did cause death. The Chief Justice
disagreed with Mr. Justice Parsons as to the transaction being one and without giving any other
reason acquitted. With the greatest deference to the learned Judges I do not find any assistance
from the manner in which they disposed of the case. Mr. Mayne deals with this case in Section 414
of his notes and is inclined to agree with the dissenting Judge that the intention should be treated as
continuing up to the burning.

7. The last case is Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. In that
case, the accused assauped his wife by kicking her below the navel. She fell down and became
unconscious. In order to create an appearance that the woman bad committed suicide, he took up
the unconscious body and, thinking it be a dead body, hung it by a rope. The post mortem
examination showed that death was due to hanging. The Court, I think, assumed that at the time he
struck her be was not intending to cause death, and, I think, we may also take it that the injury was
not in fact likely to cause death. The learned Judges say that as he thought it to be adead body, he
could not have intended to kill her if he thought that the woman was dead, and seem to assume that
the intention to cause death is a necessary element in the offence of murder. With very great
deference to the learned Judges, they seem to have ignored the language of Sections 299 and 300
and accordingly I can find no assistance from this case. That being the state of the authoreies, it
seems to me to be advisable to get a definite pronouncement from this Court and I would, therefore,
refer to a Full Bench the question whether on the facts found by us in this case the offence of murder
has been committed.

Sadas. V. Ayyar, J.

8. I agree in referring the question to a Pull Bench as proposed by my learned brother. I shall,
however, give my own opinion shortly on the matter referred. I do not think that the case of R. v.
Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13 Cox. C.C. 138 relied on
strongly by Mr. Osborne has much relevancy in the consideration of the question before us. In that
case the decision mainly deoended upon the wording of the Statute 24 and 25 Vict. C. 100, Section
55, which made the taking unlawfully of an unmarried girl, being under the age of 16 years, out of
the possession of the father a misdemeanour. The majority held in that case that there was no lawful
excuse for taking her away, and the accused's ignorance of her age did not make it not unlawful. We
have simply to construe the definition of culpable homicide in Section 299. The intention "to cause
such bodily injury as is hkely to cause death" cannot, in my opinion, mean anything except 'bodily
injury' to a living human body. If this is not so, then, according to the strict letter of the definition,

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

the relatives who burn the body of a man believing it to be dead would be guilty of culpable homicide
; I may even say that it is remarkable that the words "of a human being" are not added in the body of
the definition after "death" and as the definition stands, the causing of the death of anything with
intention will be culpable homicide which of course is a contradiction in terms. I think after the
words 'bodily injurs' the following words most he understood, namely, 'to some living human body
or other' [it need not be a particular person's body according to illustration (a) and it may even be
the body of another living person than the one intended actually that received the injury]. The case
in Emperor v. D alu Saraar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 is almost exactly a
similar case to the present. Though (as my learned brother points out) the Judges refer only to the
intention to kill and not the intention to cause bodily injury hkely to cause death, the two stand
clearly on the same footing.

9. As regards Mr. Osborne's argument that a person who dees an unlawful act such as trying to
conceal a murder should take the cor sequences of the same if the act done in furtherance of that
unlawful intention results unintentionally in homicide, I need refer only to illusiation (c) to Section
299, which indicates that the Indian Legislature did not wish to import the artificial rules of the
English Law of Felony into the Indian Criminal Law.

10. A similar case in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 contains
observations by Sargent, C.J., and Bud wood, J., that "what occurred from first to last cannot be
regarded as one continuous act done with the intention of killing the deceased" and I agree with
them respectfully. As regards the case, Gour Gobindo Thakoor, In re (3), no final opinion was
expressed and the fact that the accused hastily and recklessly came to the conclusion that the
woman was dead might make him liable for punishment under Section 30A (causing death by doing
rash or negligent act) but not under culpable homicide, Sections 300 and 304 having the same
relation to each other as Section 325 and Section 338 relating to grievous hurt.

11. This case came on for hearing in pursuance of the above Order of Reference to a Full Bench on
the 17th March 1919.

12. Mr. E.R. Osborne, Public Prosecutor, for the Crown.--It is doubtful whether the English Law
should be followed in India, If in fact death was caused by the act of hanging, is the knowledge of the
accused material? Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 is a case in point. See
also Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 and Gour Gobindo
Thakoor, In re (3). I do not propose, however, to argue that the act of the accused does constitute the
offence of murder or culpable homicide.

[Wallis, C.J.

13. Suppose the offence is not under Section 300, Indian Penal Code, does it fall under Section
304A?]

14. The act is neither rash nor negligent. The act of hanging is a deliberate act.

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

15. Mr. V. R. Ponnusowmy Aiyangar, for the Accused, was not called upon.

16. Opinion.--The accased was convicted of murder by the Sessions Judge of Coim-batore. He
appealed to this Court, which took a different view of the facts from that taken by the learned
Sessions Judge and has referred to us the question whether on the facts, as found by the learned
Judges who composed it, the accused has in law committed the offence of murder. Napier, J.,
inclined to the view that he had: Sadasiva Aiyar, J., thenght he had not. The facts as found are these:
the accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He
believed her to be dead and in order to lay the foundation for a false defence of suicide by hanging,
which he afterwards set up, proceeded to hang her on a beam by a rope. In fact the first blow was
not a fatal one and the cause of death was asphyxiation by hanging, which was the act of the
accused.

17. When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did
not propose to contend that the facts as found by the learned referring Judges constitute the crime
of murder or even culpable homicide. We think that he was right in doing so: but as doubts have
been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By
English Law this would clearly not be murder but manslaughter, on the general principles of the
Common Law. In India every offence is defined, both as to what must be done and with what
intention it must be done, by the section of the Penal Code which creates it a crime. There are
certain general exceptions laid down in Chapter IV, but none of them fits the present case. We must,
therefore, turn to the defining Section 299. Section 299 defines culpable homicide as the act of
causing death with one of three intentions:

(a) of causing death,

(b) of causing such bodily injury as is likely to cause death,

(c) of doing something which the accused knows to be likely to cause death.

18. It is not necessary that any intention should exist with regard to the particular person whose
death is caused, as in the familiar example of a shot aimed at one person killing another, or poison
intended for one being taken by another. 'Causing death' may he paraphrased as putting an end to
human life: and thus all three intentions must be directed either deliberately to putting an end to a
human life or to some act which to the knowledge of the accused is likely to eventuate in the putting
an end to human life. The knowledge must have reference to the particular circumstances in which
the accused is placed. No doubt if a man outs the head off from a human body, he does an act which
he knows will put an end to life, if it exis's. But we think that the intention demanded by the section
must stand in some relation to a person who either is alive, or who is believed by the accused to be
alive. If a man kills another by shooting at what he believes to be a third person whom he intends to
kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide.
This is because, though he had no criminal intention towards any human being actually in existence,
he had such an intention towards what he believed to be a living human being. The conclusion is
irresistible that the intention of the accused must be judged, not in the light of the actual

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 In Re: Palani Goundan vs Unknown on 7 April, 1919

circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is
not guilty of culpable homicide, if his intention was directed only to what he believed to be a lifeless
body. Complications may arise when it is arguable that the two acts of the accused should be treated
as being really one transaction, as in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 or
when the facts suggest a doubt whether there may not be imputed to the accused a reckless
indifference and ignorance as to whether the body he handled was alive or dead, as in Gour
Gobindo's case. 6 W.R. Cr. 55. The facts as found here eliminate both these possibilities, and are
practically the same as those found in Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15
Cr.L.J. 709. We agree with the decision of the learned Judges in that case, and with clear intimation
of opinion by Sargent, C.J., in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131.

19. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder
or culpable homicide, he can, of course, be punished both for his original assault on his wife, and for
his attempt to create false evidence by hanging her. These, however, are matters for the
consideration and determination of the referring Bench.

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