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Judgment
Beaslsy, C.J.—The two appellants were charged in the Sessions Court of Coimbatore with having murdered a woman named Muthayee,
the wife of the Ist, appellant on September 16 of last year and also with having caused evidence of the said offence to disappear by placing her
body on the Railway line with the intention of screening themselves from legal punishment. They were thus charged firstly, u/s 302, Indian Penal
Code and, secondly, u/s 201, Indian Penal Code. The learned Sessions Judge convicted them of the offence of attempt at murder u/s 337, Indian
Penal Code, under the first count and sentenced them to transportation for life. The appellants appeal against that conviction. The Public
Prosecutor has presented a Memorandum of Criminal Appeal against that order of the learned Sessions Judge on the following grounds, namely,
that the appellants ought to have been convicted of murder and that the learned Sessions Judge having found in para. 18 of his judgment that there
was no doubt that the appellants intended to kill their victim, was wrong In convicting them only of an offence u/s 307, Indian Penal Code. It was
in consequence of observations which &11 from us when the appellant''s appeal first came before us that the'' Public Prosecutor presented his
Criminal Appeal.
The prosecution case was that the 1st appellant who is a cart-driver arid the 2nd appellant a cooly are related to each other and that the two
appellants decoyed the 1st appellant''s wife Muthayee under pretence of taking her to see a sick relation of the 1st appellant at Koneripatti,
strangled her on the way and put her dead body on the Railway line between Somanur and Vanjipalayam so that the train might run over it and
obliterate all traces of their crime There is the evidence of P. W. Nos. 4 and 5, the former the mother of the deceased and the latter her father, that
the 1st appellant had been married for about 15 years and that he was addicted to drink and used to ill-treat the deceased causing her often to
seek refuge in their house. At about noon on the day of the occurrence the deceased took her two children to her parents, left them at their house
and went away with the 1st appellant saying that she was going on a visit to Koneripatti where a relation of the 1st appellant lay ill. She, never
reached Koneripatti and her body was discovered across the Railway line between Somanur and Vanjipalaym stations, Her head had been
severed from her body and lay at some distance away. It is clear that her head was cut off by a passing train and that this train was the Blue
Mountain Express. The deceased woman was last seen in company with the appellants at about 5-30 p. m. by P. W. No. 9 on a country road
along (he southern side Of the Railway line. On this road he met Muthayee and the two appellants,, He asked them where they were going and
they replied that they were'' going to Pollachi. Previously to this the deceased is shown to have been in the company of the appellants on a shuttle
train which left Erode at 2-15 p. m. and arrived at Vanjipalayam at about 4 p. m. Then there is evidence that at Vanjipalayam the deceased was in
the company of the appellants in a petty [shop belonging to P. W. No. 8. A little later the two appellants drank toddy at a toddy-shop half a mile
away. At about 7-30 p. m. P. W. Nos. 10 and 11 arrived by c train at Somanur Railway Station. Together they started eastwards along the
Railway line to go to their villages. Having gone about a mile they saw two persons getting down from the Railway track on its southern side. At
this time P. W. No. 11 saw something black lying across the rails and drew his companion''s attention to it. Immediately afterwards the Blue
Mountain Express came past them and they found that what had appeared to them to be something black lying across the line was the dead body
of a woman subsequently identified to be Muthayee. The body'' was naked and headless, the head being discovered about 60 feet away. A
woman''s cloth lay south of the line. They then ran after the two persons whom they had previously seen and these two persons began to run.
Prosecution Witnesses Nos. 12 and 13 also pursued them and they were eventually caught at a level crossing by P. W. Nos. 14 and 15. These
two men Avere the appellants: They are said to have been tipsy at the time. An examination Was made of the site and the land nearby and marks
of a struggle were discovered by the Sub-Inspector at D and D-1 on the plan where also was found M. C. a thali string. This place is on the
country road 9 1/2 feet below the line to the south and there were marks of something having been dragged towards the Railway line. The
prosecution case, therefore, was that the appellants intended to murder the deceased and that they decoyed her away to this spot and strangled
her and then put her body across the Railway line so that it could be run over by a passing train and thus the traces of strangulation on the
deceased''s body would be obliterated and death appear to be the result either of suicide or accident.
On the question, of the murder of Muthayee by strangulation, in support; there was evidence of P. W. No. 1, the Sub-Assistant Surgeon in
charge of: the Local Fund Dispensary at Palladami who conducted the post mortem examination and in Ex. G, the postmortem-certificate,
expressed it as his opinion that, the death of the deceased was dueto-asphyxia. That being the medical opinion as to the cause of death, the
prosecutions case was death by strangulation and not; by decapitation. There were of course no actual eye-witnesses to the crime and;; therefore,
as regards the cause of death; the prosecution had to proceed on theory -although prima facie the evidence of witnesses other than P. W. No. 1
would, establish the case of murder by decapitation on the Railway line. Having regard to the fact that the deceased woman''s head was cut off at
the neck, it seems to me that all objective signs of strangulation on that part of the woman''s body, if,'' there had been any, would have been
obliterated by the decapitation. A different view of the cause of death was taken by Lieutenant Colonel Fraser, I. M. S. who was examined as a
Court Witness as from the evidence of P. W. No. 1 it appeared that the death of the woman had probably been caused by decapitation--at least
that witnesses evidence appeared to the learned Sessions Judge to suggest that. Lieutenant Colonel Fraser stated as his definite'' view) that the
case that the deceased was-first strangled to death and then decapitated by the train was inconsistent with the)'' appearances described in Ex. G-1.
The""-learned Sessions Judge came to the conclusion that it could be safely taken that the deceased woman was alive when she was run over by
the Blue Mountain'' Express and, therefore, that the prosecutions case that she had already been killed was; incorrect.
The defence story that the deceased woman was killed by accident, namely, in rushing across from one side v of the line to the other in front of
the passing train cannot possibly be accepted and was rightly rejected by the learned Sessions Judge. It is opposed to the evidence of P. W. Nos.
10 and 11. It does not fit in with the marks of a struggle near the road nor with the discovery of the deceased''s thali on that, spot nor with the fact
that the deceased''s clothing had been removed before she got across the line. The defence story, however, does show that the two accused and
the deceased woman were together at that spot and the accused have no explanation as to how the deceased''s body got across the rails.
Turning to the medical evidence, it may be that P. W. No, 1''s opinion expressed in the post mortem certificate was correct and that the
deceased was strangled. If that is so, of course the accused were guilty of murder, but, having regard to Lieutenant Colonel ''Fraser''s evidence
which has been accepted by the learned Sessions Judge, the deceased did not die of strangulation but as a result of decapitation on the line.
Accepting that position, what offence has been committed by the appellants? The learned Sessions Judge thinks that the appellants intended to
murder the deceased and tried to do so by strangling her, that they did not succeed in killing her although they thought that they had done so and
that, believing that she was already dead, they put her body across the line in order to hide the traces of the crime which they thought they had
committed. It is perfectly clear that the appellants did intend to kill the deceased and that it was in pursuance of a deliberately planned transaction
that she was taken to the spot where the marks of a struggle were; and it is beyond question of course that the deceased died as a result of the
appellants'' act. If, as the prosecution first thought, she was strangled by the appellants, then it was that act of the appellant which caused her death.
If the case accepted by the learned Sessions Judge is correct, it was the act of the appellants in putting her body on the line which caused her
death. The question before us is whether, on the case accepted in the Sessions Court, the appellants can escape a conviction on the murder
charge. In this High Court the view has been taken by at least two Criminal Benches of which 1 was a member of both that, if persons intend to
cause the death of another or others and do an act in furtherance of that intention, which act does not in fact cause the death of that person or the
other persons, and in the belief that the act has caused death, those persons do another act, for example, for the purpose of hiding, the traces of
their crime, and such act results in death, the offenders cannot be convicted of murder but of some lesser offence. This view has been taken in
consequence of a Full Bench decision of this High Court, namely, Pulani Goundan v. Emperor 51 Ind. Cas. 164 : 42 M 547 : 20 Cr L. J. 404 : 37
ML 17 : (1919) MWN 310 : 10 LW 45 : 26 MLT 68. There an accused struck his wife a blow on her head with a plough-share which, though
not shown to be a blow likely to cause death, did in fact render her unconscious and believing her to be dead, in order to lay the foundation of a
false defence of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation; and it was held
by the Full Bench that the accused was not guilty of either murder or culpable homicide not amounting to murder. In view of this decision, in the
two Criminal Bench cases referred to, no argument was addressed to the Bench that the offence was murder although one of these cases my
learned brother and I agreed with Counsel for the appellant who had been convicted in the Sessions Court of murder that the offence of murder
had not in the circumstances of that case been committed because an unconscious person believed to be dead through the act of the appellant was
killed by the appellant''s act in endeavouring to screen his offence. When the present case first came before us, it appeared to us to be necessary to
consider whether in all such cases it is right to hold that- the offenders are guilty of a lesser offence than murder particularly so as it also appeared
to us that Palani Goundan v. Emperor 51 Ind. Cas. 164 : 42 M 547 : 20 Cr L. J. 404 : 37 M L 17 : (1919) M W N 310 : 10 L W 45 : 26 M L T
68 was distinguishable certainly from the present case. In that case it was not shown that the blow on the deceased''s head with a plough-share
was likely to cause death though it certainly rendered her unconscious and in the end, after the Full Bench decision, when the case came before the
Division Bench, it resulted in the conviction of the appellant of grievous hurt u/s 326, Indian Penal Code, only. It must be observed also that of the
two referring Judges Napier, J., was of the opinion that even on the facts of that case the accused was guilty of murder. In the course of his
judgment he makes one observation at p. 552 Page of 42 M---[Ed.] with which I entirely agree and it is:
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 his act.
He then refers to In re Gour Gobindo Thakoor 6 WR 55 Cr. There one Gour Gobind struck the deceased a blow which knocked him down
and then he and others without inquiry 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 qusshed the proceedings and directed the-accused to be retried on charges of
murder, culpable homicide not amounting to murder and hurt. Seton-Karr, J., 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, to 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.
The next case to which reference is made by Napier, J., is Queen-Empress v. Khandu 15 B 184. In that case it was found that the accused
struck the deceased three blows on the head with a stick with the intention of 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. The Bombay High Court was of the opinion that the offence
committed was attempt to murder and not murder. In this view the Judges were not unanimous. Parsons J., 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. With this view Napier, J., agreed and for reasons which I will presently state I do also and expressed the opinion that
Queen-Empress v. Khandu 15 B 184 was wrongly decided. Another case referred to in the judgment of Napier, J., is Emperor v. Dalu Sardar 26
Ind. Cas. 157 : 18 CWN 1279 : 15 Cr. L.J. 709. There the accused assaulted his wife by kicking her below the navel. She fell down and became
unconscious. In order to create an appearance that the woman had committed suicide, he took up the unconscious body and, thinking it to be a
dead body hung it by a rope. The post mortem examination showed that death was due to hanging. The - court held that as the accused thought it
to be a dead body he could not have intended to kill her if he thought that the woman was already dead, the offence was not murder. Sadasiva
Ayyar, J., the other referring Judge, considers the latter case correctly decided and is of the opinion that the intention in Section 299, Indian Penal
Code, ""to cause such bodily injury as is likely to cause death"" cannot mean anything except ""bodily injury"" to a living human body. When the case
came before the Full Bench, the Public Prosecutor did not contend that the facts as found by the referring Judges constituted the offence of murder
or even culpable homicide. The Full Bench, however, gave ah opinion upon the matter and Wallis, C. J., in his judgment says:
The conclusion is irresistible that the intention, of the accused must be judged not in the light of the actual 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 184 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 Gobindos case 6 WR 55 Cr. The facts as found here
eliminate both these possibilities, and are practically the same as found in Emperor v. Dalu Sardar 26 Ind. Cas. 157 : 18 CWN 1279 : 15 Cr. L.J.
709.
It is clear, therefore, that the Full Bench distinguish the two former cases from the case which was before them and seem to indicate an opinion
that in these cases the offence committed might have been murder. In my opinion, we are therefore free to consider the present case, - which is, in
my opinion, as near a case as could be found to Queen-Empress v. Khandu 15 B 184 as not being covered by the decision in Palani Goundan v.
Emperor 51 Ind. Cas. 164 : 42 M 547 : 20 Cr L. J. 404 : 37 M L 17 : (1919) M W N 310 : 10 L W 45 : 26 M L T 68. Accordingly I will refer
again to Queen-Empress v. Khandu 15 B 184. In that case the accused confessed to having struck his father-in-law the deceased three blows with
a stick one on the back and one on each ear. The injured man immediately fell down on the ground and the accused said that he died. The accused
then set fire to the hut. It was found that the deceased man died from the. burns received and that the blows struck by the accused were not likely
to cause death and did not do so. Birdwood, J., and Sargent, C. J., to whom the case was referred owing to a difference; of opinion between
Birdwood and Parsons, JJ., held that as the accused had not intended to cause the death of the deceased by setting fire to the shed but had only
done'' so after he thought that the deceased was dead, the act of setting fire to the sheds by which the death was caused was not done with such
intent or knowledge as is contemplated in Section 299, Indian Penal Cole, Parsons, J., took a different view. On p. 203 Page of 15 B.---[Ed.] he
says:
It is true that the accused says that immediately after he dealt the three blows, his father-in-law died and fell down on the ground, but he does not
say that he in any way satisfied himself that he was actually dead or even that he thought that he was dead, still less does he say that his intention in
setting fire to the hut was to conceal his crime. He does not say what his intention was. This being so, I think the presumption of law is that in all
that he did he was actuated throughout by one arid the same intention. There is no evidence or proof of any, change therein. There is then the
intention of the accused to cause death and there are two acts committed by him which together have caused death acts-so closely following upon
and so intimately connected with each other that they cannot be separated and assigned the one to one intention and the other to another, but must
both be ascribed to the original intention which prompted the commission of those acts and without which neither would have been done. In my
opinion, the accused in committing those acts is guilty of murder.
In my view, Parsons, J., was right. If the intention is to kill and a killing results, the accused succeed in doing that which they intended to do and
if the acts follow closely upon one another and are intimately connected with one another such as they were in the Bombay case, then, in my
opinion, the offence of murder has been committed. Similarly when the facts suggest that the accused acted with a reckless indifference and
ignorance as to whether the body he handled was alive or dead. It is* only right also to say that in the present case, unlike the other cases referred
to, there is no evidence of what the acts of the appellants were at the place where there were marks of a struggle beyond the fact that it is likely
that a struggle took place there. In all the other cases the act which the accused though had caused the death of the murdered person was proved
either by the accused''s own statement or by the eveidence of eye-witnesses. Here it has not been shown that the appellants thought that the
deceased woman was dead when they put her body across the rails. It is not the appellant''s case that they thought so and the court is merely
asked to infer that they did so because there were marks of a struggle and signs of an attempt at strangulation both of which are quite consistent
also with the alternative that the appellants merely intended to make the woman unconscious in order to make it easy for them to put her body on
the line, or another alternative that they did not know or care whether she was dead or not and put her body across the line. There is also another
alternative which presents itself, namely, that the woman''s body was put across the line in order to finish her off. When the court has facts before it
such as in this case that the appellants deliberately put the woman''s body across the line and that she was killed by a passing train, then it certainly
seems to me that very much stronger facts are required than there are present in this case to prove the case which has been accepted in the
Sessions Court. In the absence of such proof, I will go so far as to say that no proof of that case is to be found and0it was not the case put
forward by the appellants. Even assuming the case to be as accepted by the learned Sessions Judge, I am strongly of the opinion that the offence
committed was murder. In support of my view inaddition to the view expressed by Parsons, J., in Queen-Empress v. Khandu 15 B 184 there is a
decision of the Allahabad High Court, namely, Emperor v. Khubi 25 Cr. L. J. 703 . There the accused, a full grown man, beat his child wife, an
invalid and weak girl, so recklessly with a lathi that he thought he had killed her. He then threw her down a dry well 33 feet deep, an act which, if
she was not already dead'' must inevitably have killed her. He was convicted in the Sessions Court u/s 304, Indian Penal Code and it was held
however by Walsh and Ryves, JJ., in the High Court that the accused was probably guilty of an offence u/s 302, Indian Penal Code. Walsh J., in
the course of his judgment expressed the opinion that the difference of opinion in Queen-Empress v. Khandu 15 B 184 between Parsons, J., and
the majority of Bench was a difference of fact and not of law. Later on he states:
His subsequent conduct indicates that he felt no surprise and showed no remorse. Instead of going to his friends or her friends or anybody in
authority to explain this accident which he had brought about, if it was an accident though in my opinion he must be taken within the meaning of the
Code to have known suite well that what he was doing was likely to cause her death, he surreptitiously by night carried what he thought was her
dead body and threw it down a well leaving it there presumably m the hope, of covering up the traces of enquiry I am by no means satisfied with
the inference drawn by the learned Judge which I think is too merciful and too improbable that he really thought that she was dead 1 think he must
have known when he was carrying the body that she was still alive; but in ether case in the peculiar circumstances of his conduct, it seems to me to
make no difference. He either beat her till she was dead or he beat her until her chances of recovery were slight and finished her off by throwing
her down a dry well 33 feet deep. If I had tried him, he would have been convicted u/s 302, Indian Penal Code, and sentenced to death.
And later:
To sum up my reason it is this, that one common intention of inflicting such injuries upon her as he must have known to be likely to cause her death
if present through out the case from the beginning to the end, and if this s the case I agree with Mr. Justice Parsons in his view of the facts in the
Bombay case.
Ryves, J., agrees with Walsh, J. There is also a decision of the Lahore High Court viz Emperor v Gajjan Singh M Cr. L. J. 483 (b). There the
accused struck the deceased two or three-times on the head and when the latter fell down unconscious threw him face downwards into a pool
containing a few inches of water, removed the contents of his pockets and covered the body with the branches of a tree accused carried the body
of the deceased madhoti and threw it into a canal. The Sessions Judge held that the offence of murder had not been made out and convicted the
accused under Sections 325 and 379 Indian Penal Code. On appeal it was held that the action being continuous and it being impossible to re-solve
the two incidents into two wholly separate actions, inspired by different motives and committed for different reasons, the accused must be treated
as having done one act with the intention of causing death and as having succeeded in carrying out his object and he was therefore guilty of murder.
The learned Judges in that case in dealing with the act proved to have been committed by the accused observe that
the one thing that can be said with positive certainty is that, after he had lain face downwards in the pool of water for some hours, and before he
was removed to the canal, Bhagwan Das was dead. There is another difference between this case and the facts of the two authorities relied upon
Queen-Empress v. Khandu 15 B 184 and Palani Goundan v. Emperor 51 Ind. Cas. 164 : 42 M 547 : 20 Cr L.J. 404 : 37 ML 17 (1919) MWN
310 : 10 LW 45 : 26 MLT 68 and that is that there was no definite break in the events of the first two chapters. The incidents ran into each other
and the action was continuous. The accused struck Bhagwan Das and, as soon as he fell, he removed him and put him into the pool and, after
taking what money there was on him, covered him with the branches of the ak bush. The action being continuous etc.
To sum up this case: (1) an intention to kill Muthayee was clearly proved; (2) that it was in pursuance of a deliberate plan; (3) that the
appellants placed Muthayee''s body across the Railway line; (4) that it was that act which caused her death; (5) the appellants have not put
forward the case that they believed Muthayee to be dead when they put her body across the line; (6) the marks of a struggle and the body being
dragged and the discovery of the woman''s that at that, spot prove nothing more than a struggle and (7) there is some slight medical evidence
regarding marks of strangulation. This, however, was not the cause of Muthayee''s death. The conclusions I arrive at from the before mentioned
facts are that the appellants had a struggle with the decesed woman during which her that fell off of was removed, that an attempt may have been
made to strangle her, that she was immediately dragged either in an unconscious or semi-conscious condition on to the Railway line and placed in
front of the train, the intention throughout being to kill Muthayee, that the intention with which the accused struggled with Muthayee cannot be
separated from the intention with which they put her body across the line, that the two acts were intimately connected with each other and the latter
act followed immediately upon the former, that both the acts of the appellants must be treated as being only one transaction, the transaction being
to kill Muthayee, and that the most favourable inference that could possibly be drawn in favour of the appellants is that they acted with a reckless
indifference and ignorance as to whether Muthayee was alive or dead. Even this inference, in my view, is not such a reasonable one aa the former
but it is the most favourable one which could be drawn. All this leads me to one conclusion and one conclusion only, namely, that the appellants
were guilty of the offence of murder. They have been acquitted on that charge in the Sessions Court. The � question is whether we should
interfere with that acquittal. I am clearly of the opinion that we should do so firstly because the learned Judge''s view of the legal position is
incorrect and secondly because I can see nothing which could reasonably justify the learned Sessions Judge in drawing the inference that the
appellants thought that Muthayee was dead when they placed her body on the Railway line. It seems to me to be a pure guess and nothing more.
There is evidence that the appellants were tipsy when they were arrested. They cannot have been so drunk as not to know what they were doing
because they dragged Muthayee on to the line, put her body across the line in such away that her neck lay across the rails and then ran away. The
probablity is, as the evidence shows, that they took some drink before the occurrence in order to screw themselves up to the necessary pitch for
the performance of the murder. In my opinion, the acquittal of the appellants on the charge of murder must be set aside and the appellants must be
convicted of the '' offence of murder. As regards the sentence, the murder was a deliberately planned one and a very cruel one. There are no
mitigating circumstances whatever and no reason for not inflicting the ordinary sentence which the law requires, that is to say, the sentence of death.
Bardswell, J.
I agree.
The sentence of the court is that the two accused be hanged by the neck until they are dead.