JUDGMENT
1. This is an appeal by Government against an acquittal of a family of three persons, namely, Balwant Singh, his wife Mt. Durga, and their married daughter Mt. Har Piari, who were acquitted by the Sessions Judge of Mainpuri on a charge of having poisoned Har Piari’s husband. If it were not that the learned Judge has expended upon this quite short case more than 7 solid printed pages of matter, we should have said that the case was free from any difficulty, and we have no hesitation in agreeing with all the assessors in finding that the wife administered the dhatura poison of which her husband undoubtedly died.
2. Before turning to the express findings of the learned Judge, which we shall have to mention in a moment, we may say broadly what is really elementary in connexion with cases of circumstantial evidence, that a violent presumption arises-perhaps one of the strongest presumptions known to the law-when a man dies in his own house surrounded by his own family, and poisoned shortly after eating food which must have been prepared for him by his wife, and no explanation is forthcoming from the occupants of the household as to what had happened to him to cause his death. It is not too much to say that there is hardly one of us, if our own wife or close relation living under our roof suddenly died, and the corpse were found buried in our house, who would not expect to be immediately called upon by the authorities for a clear explanation of the occurrence, and who would not be surprised, in the event of our being unable to give it, if we were charged with having caused the death. Where, in addition to such violent presumption, the persons accused-are proved to have been guilty of persistent lying in an attempt to account for the absence of the deceased, and are also shown to have hidden the corps to save themselves, the presumption becomes a certainty. The learned Judge has set out more or less correctly, though framed in verbiage which sometimes detracts from the value of the fundamental facts, six items of circumstantial evidence which were disclosed by the evidence at the trial against the accused. He has discarded at least two on grounds which to our minds are quite inadequate. We refer to the motive, which we think is clearly established, that this young woman was of a loose disposition and quite prepared to get rid of her husband; and the other the evidence of Hoti Lal, who said quite casually that he had seen the wife picking dhatura seed from some shrub outside the village and had naturally remarked upon it at the time, and against whom there is really nothing except what one may describe as fanciful suggestion, or, even as my brother said during the argument, the mere fact that he is appearing as a witness for the prosecution.
3. We see no reason whatever for recklessly charging this man, who is an independent person and a Brahman, with deliberate invention of what is after all a small piece of evidence. The learned Judge has omitted from his list one significant fact, which is no reproach to him, because it is one of those facts which require training and experience in criminal investigation to appreciate at its true value, but it is a significant fast that the stomach at the post mortem examination was found to contain about one pound of partly digested rice. The Government Advocate has drawn our attention to a statement in Lyon’s Medical Jurisprudence that rice has been shown by experiment to be digested in about an hour. We have no medical testimony to assist us, and, therefore, we can only speculate. It is possible that if a doctor were asked, he would agree that in a parson suffering from dhatura poisoning, which undoubtedly affects the nervous system, the blood is thrown in to such a condition that the process of digestion is much retarded, and therefore it is necessary that one should make a substantial addition to the period of an hour in dealing with a person suffering from dhatura poisoning. But the presumption is irresistible that he died within a very short time and by that we mean at the most two hours of his last evening meal. Under the circumstances we have no hesitation in holding that the appeal succeeds, and that all the three persons are guilty of having caused the death of Beni Singh.
4. We now come to consider the legal question involved in that finding, and with due respect to this very able Judge with great experience particularly in sessions, work, we cannot but express our surprise at the maze of logical fallacies in which by a superabundance of technical considerations he has drifted, throwing commonsense to the winds. He says that if there had been only one person in the house instead of three, it would not have been at all difficult to fix the guilt. It is consoling to be assured by him that in such a case he would have experienced no difficulty. But inasmuch as fixing the guilt is merely another way of applying what the law calls a violent presumption, which justifies conviction in the absence of any explanation, he overlooks the fact that the same logical process applied to one applies to all, except those who are prepared with an instant explanation of their conduct consistent with innocence.
5. It might at least have occurred to the learned Judge, as he felt himself in a difficulty that there was another violent presumption drawn from one’s knowledge of human nature and of Indian village life which it is the duty of a tribunal in such a case to apply, namely, that the food partaken at the evening meal by a husband in an ordinary constituted house is prepared for him and served to him by his wife. The learned Judge on this case had the advantage of the fact that the wife has never denied, if indeed she has not admitted, that she did in fact serve, if not prepare, the evening meal. The most that she suggests, and this seems to be the only point urged on her behalf by Mr. H.K. Mukerji, her vakil, which I was able to follow is that the curd came from the nephew Pokhi. But unless the whole dish of which the mixture was composed were prepared by Pokhi that fact raised no presumption against him, and indeed, if anything raises a presumption in his favour, because the natural property of dhatura being bitterness, and curd being itself sour, gur, or something equivalent, is required, as a vehicle for the poison if its presence is to be sufficiently concealed from the victim to induce him to consume it.
6. The learned Judge seems to have tied himself up into a logical impose, so far as we can follow him in the following way, that inasmuch as there are three persons, one of whom undoubtedly administered the poison, as nobody else was present, it is impossible for any human being to say which of them did it; and assuming that there was one principal and two abettors, it is impossible to convict either of the three of abetting, because it is impossible to say which of them abetted the third; and inasmuch as one is unable to say which was the principal and which was the abettor, although you are quite certain that the three contained both the principal and the abettor, the law compels you to say that the three contain neither. Such a method of reasoning would, especially in cases of murder at night by armed gangs of dacoits, render conviction in a great number of cases a practical impossibility, and would leave large portions of the population at the mercy of armed dacoits. It ignores the well-established principle that if two men go out at night to waylay a third and to rob him, and undoubtedly rob him, because both are found with portions of his property afterwards in their possession, and the third man’s corpse is also found in the neighbourhood, although both of them undoubtedly were engaged in the murder, neither of thorn can be convicted of murder, because no human being can say which of them did it. That fallacy has been destroyed both by the principles of English criminal law as laid down for generations, and also by the appropriate section in the Penal Code, if it were worth while to refer to it.
7. Unfortunately we are compelled to deal with one or two other legal fallacies contained in the learned Judge’s judgment. Having arrived is a series of fallacies at the paradox that, although he was satisfied that the three accused before him were the only ones who could be possibly guilty of the offence with which they were charged, it was impossible to convict either of them, he seems to have been somewhat startled by the consequence of his own reasoning, and he sought to apply, as a kind of subsidiary refuge from an illogical position. Section 201, which makes concealment of the corpse or the removal of traces of the corpse or the removal of traces of the crime, punishable per se. But here again, owing to two decisions which he cites with accuracy in his judgment, he was confronted with the paradox, which pursued him as a kind of spectre of his own previous decision that all three contained the murderer though he could not convict any one of murder, because he found himself unable to convict either of them for concealing the corpse, although they undoubtedly did so, because by his own finding either of them might be the murderer, and the Allahabad High Court had told him that the section could not apply to a murderer. He also found that if he used Section 201 at all, he might by accident be applying it to a murderer when the Allahabad High Court has told him not to. We do not agree with this reasoning. We think that it lacks both logic and commonsense, but as a matter of fact we think it right inasmuch as the decisions referred to, namely the case of Empress v. Kishna (1879) 2 All 713, and the case of Queen-Empress v. Dungar (1886) 8 All 252, have been seriously questioned and dissented from, if not absolutely overruled by two Benches, of which one member of this Bench happened to have been a member on both occasions. The matter seems to come up with such frequency that we think it desirable to express our opinion definitely upon it. It is necessary for the purpose of our decision, because she Government have appealed on Section 201, and the appeal, therefore, involves the question whether if the Judge were right in acquitting under Section 302, he was justified in acquitting under Section 201. We hold definitely that; both these cases, or at any rate the dicta about to be referred to, which are found therein, cannot be accepted as good law.
8. The first point, namely whether Section 201 applies to the actual culprit in a case of murder, is obviously academic. None the less we are unable to agree with the view that a person who has actually committed a crime himself, whether murder or any other crime, is any the less guilty of removing traces thereof if it is proved against him that he has done so, because he was the person who actually committed the offence. If the Legislature intended to provide such an exception they would undoubtedly have said so in express language. This was the point decided in the case of Queen-Empress v. Dungar (1886) 8 All 252 and we hold definitely that it was wrongly decided. Further, we agree with the decision in the case of Emperor v. Autar AIR 1925 All 315, in holding that the mere removal of a body from one place to another so as to remove traces of the place where the murder took place, or indications which might implicate a particular individual, even though such removal does not remove undoubted evidence that a murder has taken place, is within the section.
9. We are further bound to disagree with the learned Judge in his holding that the confession in this case was inadmissible and irrelevant. We say nothing to throw doubt on the proposition that a confession made to another person in the presence of a police officer, who has asked or instructed that other person to take the confession in such a way as to be his agent, where the confession takes place under such circumstances that the police officer is in such proximity as to make his presence likely to affect the mind of the confessing person, is in substance a confession to a police officer. That is not this case. The confession was made to the Mukhia. Why the learned Judge holds it to be inadmissible we do not know. It certainly was not induced by any promise, because, although the Mukhia is undoubtedly a man in authority, and would appeal to a villager as a person who was able, or likely to able, to promise him a pardon or some other inducement, in this case Balwant Singh, who made the statement, volunteered to make the statement if he could get some assurance from the Mukhia that he, the Mukhia, would do his best to help him. In our view that is not an inducement proceeding from the person in authority within the meaning of the section so as to make the confession either inadmissible or irrelevant.
10. We have therefore, to allow the appeal, and the further question arises what we ought to do. We come definitely to the conclusion on this evidence that the wife was guilty of poisoning her husband and must be convicted under S, 302, Indian Penal Code. Whether her parents were parties to her act as principals is not so clear, although there is evidence upon which any jury might; find that they were. Upon that we give them the benefit of the doubt; but we hold upon their subsequent conduct, the lies which Balwant Singh told, the undoubted fact that they concealed the death, buried the corpse and showed great signs of fear and uneasiness when the constable spent the night in their house, that they must be held to have abetted the crime under Section 302 and to be guilty as abettors. We therefore convict thorn under Section 114 read with Section 302.
11. With regard to the sentence, we feel that we have no alternative but to do our duty in this matter. We have reason to think that murders by poisoning of husbands by their wives in Indian villages are much too common, and more frequent than the criminal statistics in the provinces indicate. We see no reason to apply the lesser alternative in the case of any woman who cruelly and cold-bloodedly administers poison to the man whom it is her duty to assist, protect and serve. We, therefore, order Mt. Har Piari to be hanged by the neck until she be dead, The other two, Balwant Singh and Mt. Durga, we sentence to transportation for life.
12. On the question of Section 201, we are bound to record a conviction, although having regard to the sentence already passed, this matter does not appear to be of any importance. If occasion should arise the case must be put up before us again for sentence.
