MANU/MP/0011/1952

Equivalent Citation: AIR1953MP61, 1953C riLJ588

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Decided On: 23.10.1952
Appellants: Gyarsibai
Vs.
Respondent: The State
Hon'ble Judges/Coram:
P.V. Dixit and B.K. Chaturvedi, JJ.
Case Note:
Criminal - Convicted - Attempt to suicide - Appellant had been convicted by
the Sessions Judge under Section 302, 309, Penal Code 1860, for the
murder of her three children and for an attempt to commit suicide - She
jumped into the well with her three children - Hence, the present appeal -
Whether, the appellant is guilty of the offence of murder of the three
children and of attempt to suicide - Held, the circumstances of the
Appellant shows that she had no intention to cause the death of any of her
children - she jumped into the well with the intention of committing suicide
- Section 300(1)(2)(3) of Penal Code could not be applied to the present
case - The appellant was not in a normal state of mind when she jumped
into a well with her three children - Therefore, Applicant did not deserved
severe punishment - The sentence of six months' simple imprisonment was
awarded to the appellant for the offence under Section 309 was appropriate
- Appeal dismissed.
JUDGMENT
P.V. Dixit, J.
1. The appellant has been convicted by the Sessions Judge of Shajapur of an offence
under Section 302, Penal Code, for the murder of her three children and also of an
offence under Section 309, Penal Code, for an attempt to commit suicide. She has
been sentenced to transportation for life under Section 302 Penal Code, and to six
months simple imprisonment under Section 309, Penal Code. Both these sentences
have been directed to run concurrently. She has now preferred this appeal from Jail
against the convictions and sentences.
2. The facts of this case are very simple. The prosecution alleged that the appellant,
her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside
together. There were constant quarrels between the appellant and her sister-in-law
and very often Jagannath used to slap the appellant for picking up a quarrel with her
sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning
of 14.8.1951 when Jagannath was away from his home. In this quarrel Kaisar Bai
asked the appellant to leave the house. Thereupon, the appellant left the house,
taking her three children aged 7 years, 5 years and 1½ years and saying that on
account of her sister-in-law she would jump into a well. Soon after, the appellant
went to a well in the village and threw herself into the well along with her three
children. A few hours after, some inhabitants of the village found Gyarasibai
supporting herself on an edge of the well and the three children dead in the well. The
appellant admitted before the Committing Magistrate as well as before the Sessions
Judge that she jumped into the well together with her children on account of her

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sister-in-law Kaisar Bai's harassment.
3 . The facts have been amply established by the prosecution evidence. From the
statement of Kaisar Bai and Narayan it is Clear that on the morning of the day ox
occurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai, and during this
quarrel when Kaisar Bai asked the appellant to leave the house, she left the house
with her three children, saying that she would jump into a well. Kaisar Bai also
admits that some times Jagannath used to give two or three slaps to the appellant for
quarrelling with her. The other prosecution witnesses deposed to the recovery of the
bodies of three children and to the rescue of the appellant. There is no eye-witness of
the fact that the appellant jumped down the well herself together with her three
children. But from the statements of Kaisar Bai, Narayan and the statement of the
appellant herself before the Committing Magistrate and the Sessions Judge, I am
satisfied that the version given by the appellant in her own statement is correct and
that she jumped into the well herself along with her three children in order to escape
harassment at the hands of her sister-in-law Kaisar Bai.
4 . On these facts the only question that arises for consideration is whether the
appellant is guilty of the offence of murder of the three children and of attempted
suicide. The learned Sessions Judge has found her guilty under Section 302, Penal
Code, but he has not stated under which clause of Section 300, Penal Code, the act of
the appellant in jumping down into a well together with her three children is murder.
I think this act of the appellant clearly falls under the 4th clause of Section 300,
Penal Code, which defines murder. On the facts it is clear that the appellant Gyarasi
Bai had no intention to cause the death of any of her children and she jumped into
the well not with the intention of killing her children but with the intention of
committing suicide. That being so, Clauses 1, 2 and 3 of Section 300, Penal Code,
which apply to cases in which death is caused by an act done with the intention of
causing death or causing such bodily injury as is likely to cause the death of person
or sufficient in the ordinary course of nature to cause death cannot be applied to the
present case. The only clause of Section 300. Penal Code, which then remains for
consideration is the 4th clause. This clause says:
If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death, or such bodily injury as is likely
to cause death and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid.
5. It will be seen from this clause that if death is caused merely by doing an act with
the knowledge that it is so imminently dangerous that it must, in all probability,
cause death, then the act is not murder as is defined in Clause 4, but is mere
culpable homicide not amounting to murder. In order that an act done with such
knowledge should constitute murder, it is essential that it should have been
committed "without any excuse for incurring the risk of causing death or such bodily
injury". The question, therefore, is whether when the appellant jumped into the well
together with her three children, she had the knowledge that her act was so
imminently dangerous, as to cause in all probability the death of her children and
further whether if she had such knowledge her act in jumping into a well with her
children was "without any excuse for incurring the risk of causing death or such
bodily injury as is mentioned in Clause 4 of Section 300, Penal Code. Now I think it
cannot be said in the present case, with any degree of force that when the appellant
jumped into a well with her children she had not the knowledge that her act was so
imminently dangerous as to cause the death of her children. Her life might have
become unbearable owing to domestic troubles and perhaps on account of these
troubles, she decided to take her own life. I am also prepared to hold that on account

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of the discord in the house, the appellant was subjected to severe exasperation and
to a long course of conduct causing suffering and anxiety. But when on account of all
these reasons, she left the house on the day of the occurrence saying that she would
jump into a well with her children, it cannot be said that she was in such an
abnormal state of mind that could not have any Knowledge of the nature of her act.
Every sane person - and in this case we are bound to take it that the appellant was
sane - is presumed to have some knowledge of the nature of his act. This knowledge
is not negatived by any mental condition short of insanity. In my opinion, the act of
the appellant in jumping into a well with her children is clearly one done by the
appellant knowing that it must in all probability cause the death of her children. I do
not find any circumstances to come to the conclusion that the appellant had some
excuse for incurring the risk of causing the death of her children. The fact that there
were quarrels between the appellant and sister-in-law and that her life had become
unbearable on account of this family discord, cannot be regarded as a valid
justification for appellant's act of jumping into a well with her children.
The words used in Clause 4 of Section 300, Penal Code are "without any excuse for
incurring the risk of causing death or such injury as aforesaid". These words indicate
that the imminently dangerous act is not murder if it is done to prevent a greater evil.
If the evil can be avoided without doing the act, then there can be no valid
justification for doing the act which is so imminently dangerous that it must, in all
probability, cause death or such injury as is likely to cause death. Here there is no
material, whatsoever, to come to the conclusion that the appellant could not have
escaped the harassment at the hands of her sister-in-law except by jumping herself
into a well with her three children. I am, therefore, inclined to think that the
appellant's act is clearly murder under Clause 4 of Section 300, Penal Code.
6. I must, however, notice two cases in which the question of the offence constituted
by an act of a woman deliberately jumping into a well with a child in circumstances
somewhat different to those present in this case has been considered. The first case
is one reported in - Emperor v. Dhirajia MANU/UP/0154/1940 : ILR (1940) All 647.
In this case a village woman left her home with her six months old baby in her arms
on account of her husband's ill treatment; after she had gone some distance from the
home, she turned round and saw her husband pursuing her. She became panicky and
jumped down into a well nearby with the baby in her arms. The baby died, but the
woman survived. On these facts, the learned Judges of the Allahabad High Court held
that an intention to cause the death of the child could not be attributed to the
woman, though she must be attributed with the knowledge that such an imminently
dangerous act as jumping down the well was likely to cause the child's death.
But the learned Judges held that considering the state of panic she was in, the
culpable homicide did not amount to murder as there was an excuse for incurring the
risk of causing death. Mst. Dhirajia was thus found guilty under Section 304, Penal
Code. It is not necessary to consider whether upon the facts of that case, the
conclusion that the woman was guilty of culpable homicide not amounting to murder
was justified. But it must be observed that the learned Judges of the Allahabad High
Court thought that the fear of her husband and the panic into which she was thrown
could be an excuse for incurring the risk of causing death. Here there is no question
of any panic or fright of the appellant. It is, no doubt, true, as the learned Judges of
the Allahabad High Court say that in assessing what is excuse or is not excuse, we
must consider the state of mind in which the accused person was.
But I think in considering the question we must take into account the state of mind of
a reasonable and legally sane person and then determine whether the risk of causing

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death could have been avoided. On this test, there can be no room for thinking in the
present case that the appellant was justified in jumping into a well with her three
children merely on account of her sister-in-law's attitude towards her. The other
decision is of the Bombay High Court in - Supadi Lukada v. Emperor
MANU/MH/0031/1925 : AIR 1925 Bom 310. In that case too, a girl of about 17 years
of age who was carrying her baby on her back jumped into a well because her
husband had ill-treated her and had prevented her from returning to her parents.
The learned Judges of the Bombay High Court held that when the girl attempted to
commit suicide by jumping into a well she could not be said to have been in a normal
condition and was not, therefore, even aware of the child's presence and that as she
was not conscious of the child, there was not such knowledge as to make Section
300(4) applicable. The learned Judges of the Bombay High Court found the girl guilty
under Section 304A. The Bombay case is clearly distinguishable on the facts. In the
present case when the evidence shows that the appellant left her home saying that
she would jump into a well with her three children, it cannot clearly be held that she
was not aware that her children were with her. In my opinion, these two cases are
not of much assistance to the appellant.
7. As regards the conviction of the appellant for an attempt to commit suicide, I think
she has been rightly convicted of that offence. When she jumped into the well, she
did so in a conscious effort to take her own life.
8 . The appellant has been sentenced to transportation for life under Section 302,
Penal Code, This is the only sentence which could legally be passed in this case. But
having regard to the fact and circumstances of the case and also to the fact that the
appellant though not legally insane was not and could not be in a normal state of
mind when she jumped into a well with her three children, I think this is not a case
deserving of a severe punishment. I would, therefore, recommend to the Government
to commute the sentence of transportation for life to one of three years rigorous
imprisonment. The sentence of six months' simple imprisonment awarded to the
appellant for the offence under Section 309 is appropriate.
9. In the result this appeal is dismissed.
B.K. Chaturvedi, J.
10. I agree.

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