Emperor v. Mt.

Dhirajia

Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby.
They lived together in the village and we can accept it as a fact from the evidence that the husband
did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel
between the husband and wife and that the husband Jhagga had uttered threats against his wife that
he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her
parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his
wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing.
He went out in pursuit of them and then he reached a point close to the railway line he saw making
her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic,
ran a little distance with the baby girl in her arms and then either jumped or fell into an open well
which was at some little distance from the path. It is important to observe that obviously she did this
in panic because we have the clearest possible evidence that she looked behind her and was evidently
running away from her husband. The result was, to put it briefly, that the little child died while the
woman was eventually rescued and suffered little or no injury. Upon these facts Mr. Dhirajia was, as
we have said, charged with the murder of her baby and with an attempt to commit suicide herself.

To our minds, the word ‘attempts’ connotes some conscious endeavour to do the act which is the
subject of the particular section. In this case the act was the act of committing suicide. We ask
ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take
her own life. We do not think she did. She did so in an effort to escape from her husband. The taking
of her own life was not, we think, for one moment present to her mind. For that reason we think that
Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned,
therefore, the result of the appeal is that the appellant’s conviction under Section 302, I.P.C. is set
aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned
Judge’s reference to us is concerned, we are unable to accept it and the verdict of not guilty passed
by the jury must stand.

Emperor v. Mushnooru Suryanarayana Murthy

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 some sweetmeat (halva) in which a poison containing arsenic and mercury in
soluble form had been mixed. Appala Narasimhulu ate a portion of the sweetmeat, and threw the rest
away. This occured 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 it 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
transpiration for life for having attempted to murder Appala Narasimhulu. 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.

Reference has been made to the English law on the point and though the case must be decided solely
upon the provisions of the Indian Penal Code, I may observe that there can be no doubt that under the
English Law as well the accused would be guilty of murder. In English Law it is sufficient to show
that the act by which death was caused was done with malice aforethought, and it is not necessary
that malice should be towards the person whose death has been actually caused. This is well
illustrated in the well-known case of Agnes Gore (1614) 77 E.R. 853 and in Saunder's case I. Hale
P.C. 431 and also in Regina V. Michael 9 C & P. 356. No doubt" malice aforethought," at least
according to the old interpretation of it as including an intention to commit any felony, covers a
wider ground in the English Law than the criminal intention or knowledge required by Sections 299
and 300, Indian Penal Code, but the law in India on the point in question in this case is undoubtedly,
in my opinion, the same as in England.

26. Agreeing therefore with Benson J., I set aside the order of the Sessions Judge acquitting the
accused of the charge of murder and convict him of an offence under Section 302, Indian Penal
Code. I also agree with him that, in the circumstances of the case, it is not necessary to impose upon
the accused the extreme penalty of the law, and I sentence the accused under Section 303, Indian
Penal Code, to transportation for life.

Gyarsibai v. The State

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 7years, 5years 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 sister-in-law Kaisar Bai's
harassment

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 304-A. 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 a 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 facts 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.

In Re Thavamani

The appellant here was accused 2 prosecuted before the learned Sessions Judge of Ramnad for the
murder of a woman named Meenakshi Achi on the evening of the 26 th September last. The deceased
was admittedly murdered in her flower garden about6 11/2 furlongs away from the village. Her dead
body was found on 27th September in a well in the garden. Two persons were prosecuted for the
murder. Accused 1 who was eventually acquitted, was the gardener employed in the garden. Accused
2 was an acquaintance of his, who was in need of money at the time. There is no direct evidence of
from the post mortem certificate or the testimony of the doctor as to the cause of death. The body
when found had marks of three punctured wounds upon the head; but those wounds by themselves
according to the doctor would not be sufficient to cause death. The principal evidence upon which
accused 2 was convicted comes from his own conduct. He has given a statement to the police as a
result of which he has informed them of the existence of P.W. 15, who confirms his story that the
two accused sold to him (P.W. 15) part of a chain which had been worn by the deceased at the time
of her death. The evidence of P.W.15 and P.W. 16 taken together shows that the proceeds of the sale
of this portion of the chain were divided between the two accused.

Whatever therefore may have been the intention of the accused in striking those blows, that intention
had not been effected. The action of the appellant and accused 1 in throwing the body into the well
could not possibly be in pursuance of an intention to cause her death, as they already believed that
she was dead.
Reliance in support of this position is placed upon the decision in 42 Mad. 547. The
learned Sessions Judge however has refused to follow that ruling and has followed instead the later
ruling reported in 57 Mad. 158. It is true that in this later case there was no definite plea by the
accused that at the time when he put the body of the deceased upon the railway line he thought she
was dead, whereas here according to the argument the confession does contain a statement equivalent
to the expression of a belief that the deceased was already dead when the body was thrown into the
well. But that is not the most important point of distinction between 42 Mad. 547 and 57 Mad. 158 at
p. 171. The main point of distinction between the two cases is this, that in 42 Mad. 547 there was
never at any time an intention to cause death. The original intention was only to cause injury. The
second intention was only to dispose of a supposedly dead body in a way convenient for the defence
which the accused was about to set up. In 57 Mad. 158, however, and, in the present case, it is clear
that there was at the beginning an intention to cause death. This intention was apparently completely
carried into effect but in fact was not. Even if the intention at the second stage of the transaction had
been merely to dispose of a dead body, as is pointed out in 57 Mad. 158, the two phases of the same
transaction are so closely connected in time and purpose that they must be considered as parts of the
same transaction. The result of the actions of the accused taken as a whole clearly is to carry out the
intention to kill with which they began to act. It seems to us that there is no satisfactory reason for
distinguishing the facts of the present case from the ruling in 57 Mad. 158 and that the learned
Sessions Judge rightly relied upon that ruling in holding that, even if at the time when the woman
was thrown into the well she was alive, and even if the appellant then thought her dead he would be
guilty of murder. The conviction of the appellant for murder must therefore stand. There are clearly
no extenuating circumstances of any kind in this case and the sentence of death is the only one
appropriate to the circumstances. We accordingly confirm the sentence and dismiss the appeal.

K. M. Nanavati v. State of Maharashtra

The accused, at the time of the alleged murder, was second in command of the Indian Naval
Ship "Mysore". He married Sylvia in 1949 in the registry office at Portsmouth, England.
They have three children by the marriage, a boy aged 9½ years, a girl aged 5½ years and
another boy aged 3 years. Since the time of marriage, the couple were living at different
places having regard to the exigencies of service of Nanavati. Finally, they shifted to
Bombay. In the same city the deceased Ahuja was doing business in automobiles and was
residing, along with his sister, in a building called "Shrevas" till 1957 and thereafter in
another building called "Jivan Jyot" on Setalvad Road. In the year 1956, Agniks, who were
common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavatis.
Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a
Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and
children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which
culminated in illicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati
of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his
ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false
pretext, loaded the same, went to the flat of Ahuja, entered his bed-room and shot him dead.
Thereafter, the accused surrendered himself to the police. He was put under arrest and in due
course he was committed to the sessions for facing a charge under Section 302 of the Indian
Penal Code.
 Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed
to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will
assume that he had momentarily lost his self-control. But, if his version is true-for the
purpose of this argument we shall accept that what he has said is true-it shows that he was
only thinking of the future of his wife and children and also of asking for an explanation
from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only
regained his self-control, but, on the other hand, was planning for the future. Then he drove
his wife and children to a cinema, left them there, went to his ship, took a revolver on a false
pretext, loaded it with six rounds, did some official business there, and drove his car to the
office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him
dead. Between 1.30 p.m., when he left his house, and 4.20 p.m., when the murder took place,
three hours had elapsed, and therefore there was sufficient time for him to regain his self-
control, even if he had not regained it earlier. On the other hand, his conduct clearly shows
that the murder was a deliberate and calculated one. Even if any conversation took place
between the accused and the deceased in the manner described by the accused-though we do
not believe that-it does not affect the question, for the accused entered the bed-room of the
deceased to shoot him. The mere fact that before the shooting the accused abused the
deceased and the abuse provoked an equally abusive reply could not conceivably be a
provocation for the murder. We, therefore, hold that the facts of the case do not attract the
provisions of Exception 1 to Section 300 of the Indian Penal Code.

22. In the result, the conviction of the accused under Section 302 of the Indian Penal Code
and sentence of imprisonment for life passed on him by the High Court are correct and there
are absolutely no grounds for interference.

The appeal stands dismissed.

Palani Goundan v. Emperor

The accused has been convicted of the murder of his wife. The evidence shows that on Wednesday,
the 23rd of October 1918, at about four or five naligais before sunset she was seen by prosecution
witness No. 6 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 four or five naligais 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 Goundan, who lives two doors off from the
accused's house to go and call their father, prosecution witness No. 2. Rasa Goundan, 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, three or four miles away, and laid a complaint.

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.

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 be 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 a
human life. The knowledge must have reference to the particular circumstances in which the accused
is placed. No doubt if a man cuts the head off from a human body, he does an act which he knows
will put an end to life, if it exists. 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 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 is Queen-Empress v. Khandu
[(1891) I.L.R. 15 Bom. 194] 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 case [(1866) 6 W.R. (Cri R.) 55]. The facts as the same as those found in
The Emperor v. Dalu Sardar [(1914) 18 CWN 1279]. We agree with the decision of the learned
Judges in that case and with clear intimation of opinion by Sargeant, C.J. in Queen-Empress v.
Khandu [(1891) I.L.R. 15 Bom. 194]. 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.
[When the case came on again for hearing before the Division Bench, the court
convicted the accused of grievous hurt under section 326, Indian Penal Code.-Ed.].
 Priya Patel v. State of M.P.

Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending
a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the
accused appellant) met her at the railway station and told her that her father has asked him to pick her up
from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu
Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife,
the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving
her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the
complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap
Patel was charged for offences punishable under Sections 323 and 376 IPC the appellant, as noted above,
was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC. The revision
filed before the High Court questioned legality of the charge framed so far as the appellant is concerned,
relatable to Section 376 (2)(g) IPC. It was contended that a woman cannot be charged for commission of
offence of rape. The High Court was of the view that though a woman cannot commit rape, but if a
woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she can be
prosecuted for "gang rape".

A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The
section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain
categories of serious cases of rape as enumerated therein attract more severe punishment. One of them
relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape"
shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a
group of persons acting in furtherance of their common intention each such person shall be deemed to
have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing
rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons
act in furtherance of their common intention to rape a woman, each person of the group shall be deemed
to have committed gang rape. By operation of the deeming provision, a person who has not actually
committed rape is deemed to have committed rape even if only one of the group in furtherance of the
common intention has committed rape.

"Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by
several persons in furtherance of the common intention of all, each of such persons is liable for that act in
the same manner as if it was done by him alone. "Common intention" denotes action in concert and
necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in
action. The acts may be different and vary in character, but must be actuated by the same common
intention, which is different from same intention or similar intention. The sine qua non for bringing in
application of Section 34 IPC that the act must be done in furtherance of the common intention to do a
criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation
to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to
commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot
be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

The residual question is whether she can be charged for abetment. This is an aspect which has not been
dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a
course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in
that regard.
The appeal is allowed to the aforesaid extent.

Sowmithri Vishnu v. Union of India

The petitioner filed a petition for divorce against her husband on the ground of desertion. The trial court
dismissed that petition, holding that the petitioner herself had deserted the husband and not the other way
about. Thereafter, the husband filed a petition for divorce against the petitioner on two "grounds: firstly, that
she had deserted him and secondly, that she was living in adultery with a person called Dharma Ebenezer. The
petitioner conceded in that petition that in view of the finding recorded in the earlier proceeding that she had
deserted her husband a decree for divorce may be passed against her on the ground of desertion. So far so
good, but, the petitioner contended further that the Court should not adjudicate upon the question of adultery
since it was unnecessary to do so. That plea was opposed by the husband. He contended that he was entitled to
obtain a decree of divorce against the petitioner not only on the ground of desertion but also on the ground of
adultery and that, there was no reason why he should be denied an opportunity to show that the petitioner was
living in adultery. The husband's contention was accepted by the trial court but, in a revision application filed
by the petitioner, the High Court accepted her plea and held that since, the finding recorded in the earlier
petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the
ground of desertion and that, it was unnecessary to inquire into the question of adultery. We are informed at
the Bar that, pursuant to the High Court's view, a decree for divorce has already been passed in favour of the
husband on the ground that the petitioner had deserted him.

. Instead of embarking upon this discussion, we could have as well dismissed the writ petition by relying upon
the decision of a Constitution Bench of this Court in Yusuf Abdul Aziz v. The State of Bombay. [1954] 1 SCR
930 which held that Section 497 of the Penal Code does not offend Articles 14 and 15 of the Constitution.
However, the petitioner's counsel had many more arguments to advance and since, more than 30 years have
gone by since the decision in Yusuf Abdul Aziz was given we thought that we might examine the position
afresh, particularly in the light of the alleged social transformation in the behavioural pattern of women in
matters of sex.

12. Though it is true that the erring spouses have no remedy against each other within the confines of Section
497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy
against the other under the civil law, for divorce on the ground of adultery. 'Adulter' under the civil law has a
wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497
will be obliterated from the statute book and adulterous relations will have a more free play than now. For
then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the
interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of
marriages is not an ideal to be scorned.

13. There was general agreement before us that since the petitioner's husband has already obtained divorce
against her on the ground of desertion; no useful purpose will be served by inquiring into the allegation
whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a
complaint under Section 497 of the Penal Code. Accordingly, we quash that complaint and direct that no
further proceedings will be taken therein.

14. In the result, the writ petition is dismissed. There will be no order as to costs.
 Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr.

The appellant urged before the Magistrate that the medical evidence produced by the prosecution, does
not make out any case against him to proceed with the trial. The learned magistrate in deciding to proceed
with the trial recorded following reasons in the impugned order dated 28.11.1998 passed by him :-

"Postmortem report is very categorical and very clear and it has been clearly mentioned therein that death
was due to the complication arising out of the operation. That operation was conducted by both the
accused persons. It is also clear from the material on record that deceased was young man of 38 years
having no cardiac problem at all and because of the negligence of the doctors while conducting minor
operation for removing nasal deformity, gave incision at wrong part due to that blood seeped into
the respiratory passage and because of that patient immediately collapsed and died and it was also
attempted to show by the accused persons that he was alive at that time and was taken to Ganga Ram
Hospital for further medical attention. .....

......

It is clear from the record that patient had actually died at the clinic of the accused and therefore, I am of
the opinion that there are sufficient grounds on record to make out a prima facie case against both the
accused for commission of offence under Section 304A IPC. Let notice be served accordingly."

See the following concluding observations of the learned authors in their book on medical negligence
under the title 'Errors, Medicine and the Law' [by Alan Merry and Alexander McCall Smith at pg. 247-
248]. The observations are apt on the subject and a useful guide to the courts in dealing with the doctors
guilty of negligence leading to death of their patients :-

"Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for
criminal conviction in the absence of moral blameworthiness only in very limited circumstances.
Conviction of any substantial criminal offence requires that the accused person should have acted with a
morally blameworthy state of mind. Recklessness and deliberate wrong doing, levels four and five are
classification of blame, are normally blameworthy but any conducted falling short of that should not be
the subject of criminal liability. Common-law systems have traditionally only made negligence the
subject of criminal sanction when the level of negligence has been high - a standard traditionally
described as gross negligence. .....

.....
.....

Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has
an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive
relations between people. So e of life's misfortunes are accidents for which nobody is morally responsible.
Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and
constitute grounds for compensation and at times, for punishment. Distinguishing between these various
categories requires careful, morally sensitive and scientifically informed analysis."

28. After examining all the medical papers accompanying the complaint, we find that no case of
recklessness or gross negligence has been made out against the doctor to compel him to face the trial for
offence under Section 304A of the IPC. As a result of the discussion aforesaid on the factual and legal
aspect, we allow this appeal and by setting aside the impugned orders of the Magistrate and of the High
Court, quash the criminal proceedings pending against the present doctor who is accused and appellant
before us.

Tukaram v. State of Maharashtra

Mathura (P.W. 1) is the girl who is said to have been raped. Her parents died when she
was a child and she is living with her brother, Gama (P.W. 3). Both of them worked as
labourers to earn a living. Mathura (P.W. 1) used to go to the house of Nunshi (P.W.
2) for work and during the course of her visits to that house, came into contact with
Ashok, who was the sister's son of Nunshi (P.W. 2) and was residing with the latter.
The contact developed into an intimacy so that Ashok and Mathura (P.W. 1) decided
to become husband and wife.

3. On the 26th of March, 1972, Gama (P.W. 3) lodged report Ex-P8 at police station
Desai Gunj alleging that Mathura (P.W. 1) had been kidnapped by Nunshi (P.W. 2),
her husband Laxman and the said Ashok. The report was recorded by Head Constable
Baburao (P.W. 8) at whose instance all the three persons complained against as well as
Mathura (P.W. 1) were brought to the police station at about 9 p.m. and who recorded
the statements of the two lovers. By then it was about 10-30 p.m. and Baburao (P.W.
8) told them to go after giving them a direction that Gama (P.W. 3) shall bring a copy
of the entry regarding the birth of Mathura (P.W. 1) recorded in the relevant register
and himself left for his house as he had yet to take his evening meal. At that time the
two appellants were present at the police station.

4. After Baburao (P.W. 8) had gone away, Mathura (P.W. 1), Nunshi (P.W. 2), Gama
(P.W. 3) and Ashok started leaving the police station. The appellants, however, asked
Mathura (P.W. 1) to wait at the police station and told her companions to move out.
The direction was complied with. Immediately thereafter Ganpat appellant took
Mathura (P.W. 1) into a latrine situated at the rear of the main building, loosened her
under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri
which serves the main building as its back verandah. In the chhapri he felled her on
the ground and raped her in spite of protests and stiff resistance on her part. He
departed after satisfying his lust and then Tukaram appellant, who was seated on a cot
nearby, came to the place where Mathura (P.W. 1) was and fondled her private parts.
He also wanted to rape her but was unable to do so for the reason that he was in a
highly intoxicated condition.

5. Nunshi (P.W. 2), Gama (P.W. 3) and Ashok, who had been waiting outside the
police station for Mathura (P.W. 1) grew suspicious when they found the lights of the
police station being turned off and its entrance door being closed from within. They
went to the rear of the police station in order to find out what the matter was. No light
was visible inside and when Nunshi (P.W. 2) shouted for Mathura (P.W. 1) there was
no response. The noise attracted a crowd and some time later Tukaram appellant
emerged from the rear of the police station and on an enquiry from Nunshi (P.W. 2)
stated that the girl had already left. He himself went out and shortly afterwards
Mathura (P.W. 1) also emerged from the rear of the police station and informed
Nunshi (P.W. 2) and Gama (P.W. 3) that Ganpat had compelled her to undress herself
and had raped her.

6. Nunshi (P.W. 2) took Mathura (P.W. 1) to Dr. Khume (P.W. 9) and the former told
him that the girl was subjected to rape by a police constable and a Head Constable in
police station Desai Gunj. The doctor told them to go to the police station and lodge a
report there.

7. A few persons brought Head Constable Baburao (P.W. 8) front his house. He found
that the crowd had grown restive and was threatening to beat Ganpat appellant and
also to burn down the police station. Baburao (P.W. 8), however, was successful in
persuading the crowd to disperse and thereafter took down the statement (Ex. 5) of
Mathura (P.W. 1) which was registered as the first information report.

8. Mathura (P.W. 1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of
March 1972. The girl had no injury on her person. Her hymen revealed old ruptures.
The vagina admitted two fingers easily. There was no matting of the pubic hair. The
age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of
the public hair and two vaginal-smear slides were sent by the doctor in a sealed packet
to the Chemical Examiner who found no traces of semen therein. Presence of semen
was however detected on the girl's clothes and the pyjama which was taken off the
person of Ganpat appellant.

The section itself states in clauses Thirdly and Fourthly as to when a consent would
not be a consent within the meaning of clause Secondly. For the proposition that the
requisite consent was lacking in the present case, reliance on behalf of the State can be
placed only on clause Thirdly so that it would have to be shown that the girl had been
put in fear of death or hurt and that that was the reason for her consent. To this aspect
of the matter the High Court was perhaps alive when it talked of "passive submission"
but then in holding that the circumstances available in the present case make out a
case of fear on the part of the girl, it did not give a finding that such fear was shown to
be that of death or hurt, and in the absence of such a finding, the alleged fear would
not vitiate the consent. Further, for circumstantial evidence to be used in order to
 prove an ingredient of an offence, it has to be such that it leads to no reasonable
inference other than that of guilt. We have already pointed out that the fear which
clause Thirdly of Section 375 speaks of is negatived by the circumstance that the girl
is said to have been taken away by Ganpat right from amongst her near and dear ones
at a point of time when they were, all leaving the police station together and were
crossing the entrance gate to emerge out of it. The circumstantial evidence available,
therefore, is not only capable of being construed in a way different from that adopted
by the High Court but actually derogates in no uncertain measure from the inference
drawn by it.

6. In view of what we have said above, we conclude that the sexual intercourse in
question is not proved to amount to rape and that no offence is brought home to
Ganpat appellant.

7. The only allegation found by the High Court to have been brought home to
Tukaram appellant is that he fondled the private parts, of the girl after Ganpat had left
her. The High Court itself has taken note of the fact that in the first information report
(Ex. 5) the girl had made against Tukaram serious allegations on which she had gone
back at the trial and the acts covered by which she attributed in her deposition to
Ganpat instead. Those allegations were that Tukaram who had caught hold of her in
the first instance, had taken her to the latrine in the rear of the main building, had lit a
torch and had stared at her private parts in the torch-light. Now if the girl could alter
her position in regard to these serious allegations at will, where is the assurance that
her word is truthful in relation to what she now says about Tukaram ? The High Court
appears to have been influenced by the fact that Tukaram was present at the police
station when the incident took place and that he left it after the incident. This
circumstance, in our opinion, is not inculpatory and is capable of more explanations
than one. We do not, therefore, propose to take the girl at her word in relation to
Tukaram appellant and hold that the charge remains wholly unproved against him.

8. In the result, the appeal succeeds and is accepted. The judgment of the High Court
is reversed and the conviction recorded against as well as, the sentences imposed upon
the appellants by it are set aside.

S. Varadarajan v. State of Madras

Savitri became friendly with the appellant Varadarajan who was residing in a house next door to that of S.
Natarajan. The appellant and Savitri used to carry on conversation with each other from their respective
houses. On September 30, 1960 Rama found them talking to each other in this manner at about 9.00 A.M.
and also been her talking like this on some previous occasions. That day she asked Savitri why she was
talking with the appellant. Savitri replied saying that the she wanted to marry the appellant. Savitri's
intention was communicated by Rama to their father when he returned home at about 11.00 A.M. on that
day. Thereupon Natarajan questioned her. Upon being questioned Savitri started weeping but did not utter
word. The same day Natarajan took Savitri to Kodambakkam and left her at the house of a relative of his
K. Natarajan, P.W. 6, the idea being that she should be kept as far away from the appellant as possible for
some time.

4. On the next day, i.e., on October 1, 1960 Savitri left the house of K. Natarajan at about 10.00 A.M. and
telephoned to the appellant asking him to meet her on a certain road in that area and then went to that road
herself. By the time she got there the appellant had arrived there in his car. She got into it and both of
them then went to the house of one P. T. Sami at Mylapore with a view to take that person along with
them to the Registrar's office to witness their marriage. After picking up Sami they went to the shop
Govindarajulu Naidu in Netaji Subhas Chandra Bose Road and appellant purchased two gundus and
Tirumangalyam which were selected by Savitri and then proceeded to the Registrar's office. Thereafter
the agreement to marry entered into between the appellant and Savitri, which was apparently written
there, was got registered. Thereafter the appellant asked her to wear the articles of jewellery purchased at
Naidu's shop and she accordingly did so. The agreement which these two persons had entered into was
attested by Sami as well as by one P. K. Mar, who was a co-accused before the Presidency Magistrate but
was acquitted by him. After the document was registered the appellant and Savitri went to Ajanta Hotel
and stayed there for a day. The appellant purchased a couple of sarees and blouses for Savitri the next day
and then they went by train to Sattur. After a stay of a couple of days there, they proceeded to Sirukulam
on October 4, and stayed there for 10 or 12 days. Thereafter they went to Coimbatore and then on to
Tanjore where they were found by the police who were investigating into a complaint of kidnapping
made by S. Natarajan and were then brought to Madras on November 3rd.

5. It may be mentioned that as Savitri did not return to his house after she went out on the morning of
October 1st, K. Natarajan went to the house of S. Natarajan in the evening and enquired whether she had
returned home. On finding that case she had not, both these persons went to the railway station and
various other places in search of Savitri. The search having proved fruitless S. Natarajan went to the
Nungumbakkam Police Station and lodged a complaint stain there that Savitri was a minor on that day
and could not be found. Thereupon the police took up investigation and ultimately apprehended, as
already stated, the appellant and Savitri at Tanjore.

6. It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st.
The other facts which have already been stated are also not disputed. A two-fold contention was,
however, raised and that was that in the first place Savitri had abandoned the guardianship of her father
and in the second place that appellant in doing what he did, did not in fact take away Savitri out of the
keeping of her lawful guardian.

7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the
further question whether Savitri could, in acting as she did, be said to have abandoned her father's
guardianship may perhaps not be very easy to answer.

Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury's
Laws of England, 3rd edition, Vol. 10. at p. 758 :

"The defendant may be convicted, although he took no part in the actual removal of the girl, if he
previously solicited her to leave her father, and afterwards received and harboured her when she did so.
If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not
persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to
advise her not to come, or to return, and afterwards harboured her."

24. On behalf of the appellant reliance was placed before us upon the decision in Rajappan v. State of
Kerala I.L.R. [1960] Ker 481 and Chathu v. Govindan Kutty I.L.R. [1957] Ker 591. In both the cases the
learned Judges have held that the expression "taking out of the keeping of the lawful guardian" must
signify some act done by the accused which may be regarded as the proximate cause of the person going
out of the keeping of the guardian; or, in other words an act but for which the person would not have gone
out of the keeping of the guardian as he or she did. In taking this view the learned Judge followed,
amongst other decisions, the two English decisions to which we have adverted. More or less to the same
effect is the decision in Nura v. Rex AIR 1949 All 710. We do not agree with everything that has been
said in these decisions and would make it clear that the mere circumstance that the act of the accused was
not the immediate cause of the girl leaving her father's protection would not absolve him if he had at an
earlier stage solicited her or induced her in any manner to take this step.

...27. We are satisfied, upon the material on record, that no offence under s. 363 has been established
against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and
set aside the conviction and sentence passed upon him.

28. Appeal allowed.

Virsa Singh v. State of Punjab

The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian
Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court
but the leave is limited to "the question that on the finding accepted by the Punjab High Court what
offence is made out as having been committed by the petitioner."

2. The appellant was tried with five others. He was also charged individually under s. 302. The
others were acquitted of the murder charge... [and other charges]... on appeal to the High Court. The
appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld
by the High Court.

19. The learned counsel for the appellant referred us to Emperor v. Sardar khan Jaridkhan (1917)
I.L.R. 41 Bom 23, 29 where Beaman J., says that -

“where death is caused by a single bow, it is always much difficult to be absolutely certain what
degree of bodily injury the offender intended." With due respect to the learned Judge he has linked
up the intent required with the seriousness of the injury, and that, as we have shown, is not what the
section requires. The two matters are quite separate an distinct, though the evidence about them may
sometimes overlap. The question is not whether the prisoner intended too inflict a serious injury or a
racial one but whether he intended to inflict the injury that is proved to be present. If he can show
that he did not, or if the totality of the circumstances justify such an inference, then, of course, the
intents that the section requires is not proved. But if there is nothing beyond the injury and the fact
that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he
know of its seriousness, or intended serious consequences, is neither here nor there. The question, so
far as the intention is concerned, is not whether he intended to kill, or to inflict and injury of
particular degree of seriousness, but where he intended or inflict the injury in the question; and once
the existence of the injury is proved the intention to cause it will be presumed unless the evidence or
the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of
fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a
totally separate and distant question and has nothing to do with the question whether the prisoner
intended to inflict the injury in question.

20. It is true that in a given case the enquiry may be linked up with the seriousness of the injury,. For
example, if it can be proved, or if the totality of the circumstances justify an inference, that the
prisoner only intended a superficial; scratch and that by accident this victim stumbled and fell on the
sword or spear that was used, then of course the offence is not murder. But that is not because the
prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but
because he did not intend to inflict the injury in question at all. His intention in such a case would be
to inflict a totally different injury. The difference is not one of law but one of fact; and whether the
conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all
reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and
fanciful conjecture.

21. The appeal is dismissed.

22. Appeal dismissed.

Yusuf Abdul Aziz v. The State of Bombay

The appellant is being prosecuted for adultery under section 497 of the Indian Penal Code. As soon as the
complaint was filed he applied to the High Court of Bombay to determine the constitutional question
mentioned above under article 228 of the Constitution. The High Court decided against him but granted
him a certificate under articles 132(1) and 134(1)(c).

It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot
be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into
the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence
to commit the offence of which punishment has been prohibited.

8. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental
rights. Sex is a sound classification and although there can be no discrimination in general on that ground,
the Constitution itself provides for special provisions in the case of women and children. The two articles
read together validate the impugned clause in section 497 of the Indian Penal Code.
9. The appellant is not a citizen of India. It was argued that he could not invoke articles 14 and 15 for that
reason. The High Court held otherwise. It is not necessary for us to decide this question in view of our
decision on the other issue.

10. The appeal is dismissed.