JUDGMENT
G.P. Singh, J.
1. This judgment shall also dispose, of Criminal Appeals Nos. 121 and 122 of 1970. The appellants in these three appeals, Sarthi, Bhqklu and Nanhi, have been convicted under Section 302 read with Section 34 of the Penal Code and sentenced to imprisonment for life for the murder of one Noharsai.
2. The incident resulting in the death of Noharsai happened at about 12 noon on 28th August, 1969, in village Godhi, Police Station Tamnar, District Raigarh. The first information report was lodged by Rabi (P.W. 3) son of the deceased at about 2.30 p.m. B. K. Singh (P.W. 12), Sab-Inspector, Police, went to the spot and found the dead body of Noharsai suspended from the ceiling of the house of Majhi with the help of a piece q cloth tied round the neck. The, postmortem examination of the dead body was carried out on 29th August by Dr. A. G. Shesh (P.W. 7). He found one abrasion on the lower part of the left side of the back and another abrasion over the lateral side of the left knee. These abrasions were antemortem but of little significance.
The doctor further found an antemortem ligature mark 1″ in thickness above the level of thyroid cartilege extending obliquely backwards and disappearing behind the left ear. In the opinion of the doctor death was due to asphyxia resulting from hanging. The doctor did not find any nail injuries on the neck of the deceased. The stomach contents of the deceased showed that he had consumed alcohol. The doctor did not accept the suggestion that the hanging was suicidal for, in his opinion, it is not possible for a person under intoxication to commit suicide by hanging. The doctor’s evidence leads to the definite conclusion that the death was caused by hanging and that in all probability the hanging was homicidal and not suicidal.
3. Majhi in whose house the dead body of Nohirsai was found was a cousin of the deceased. Majhi had died some time before the incident leaving behind his widow Dasmat alias Dolo (P.W. 5) as his heir in whose favour he had execute ed a will (Ex. P-2) on 23rd July, 1969. Majhi and Dasmat both had become invalid and were helped by the deceased and his son Babi for cultivating the lands. It is said that during his lifetime Majhi bad orally declared Rebi to be his successor. Dasmat being invalid had called Sukanti, daughter of accused Sarthi, for preparing her meals and looking after the household. It is suggested by the prosecution that Noharsai felt that Sukanti noay prove to be an obstacle in the way of his son Babi in ultimately getting the property of Dasmat and this had led to an ill feeling between him and Sarthi.
4. The eye-witness account of the entire happening is furnished by Dujeram (P.W. 1). Dujeram is Kotwar of village Amaghat which is at a distance of about one and half mites from Gogh. Dujeram happened to come to Godhi on Mtth August, 19Wj in connection with some work. While returning to Amaghat he, passed to front of the bungee of Majhi. pogrom heard some noise and he found that accused Nanhi and Bhoklu were sitting in front of the house and the deceased and accused Sarthi were grappling with each other in the courtyard. Dujeram saw Sarthi slapping the deceased. This quarrel ended for a short while when Sarthi was dragged outside by Kirti who was also tried along with the accused-appellants but was acquitted by the trial Court. Thereafter the deceased shouted from inside Majhi’s house challenging Sarthi that he will not allow Sarthi’s daughter to live in the house and to take the property of Dasmat. On hearing this the accused-appellants entered the house of Majhi crying that they will kill the deceased. Sarthi felled the deceased. He then slapped and fisted the deceased and also pressed his neck with one hand. Bhoklu caught hold of the hands of the deceased and Nanhi caught hold of his legs. The deceased became unconscious. All the three accused then tied a piece of cloth around his neck and hanged him from the ceiling of the house.
Dujeram’s statement has been relied upon by the trial Court and we find no reason to take a different view of his evidence. Nothing has been brought out in his lengthy cross-examination to discredit his testimony. Govind (P.W. 2) reached the house of Majhi when Sarthi was beating the deceased with one hand and pressing his neck with the other hand. Govind also saw that Bhoklu had caught hold of the hands of the deceased and Nanhi had caught hold of his legs. Govind found1 that the accused were intoxicated having consumed liqupr, Govind further saw that the deceased had become unconscious. At this stage Govind became afraid and ran away from the place of occurrence. Govind was soon thereafter informed by Dujeram (P.W. 1) that the accused had hanged the deceased. The deceased’s son Rabi (P.W. 3) also reached the place of occnrrence when Sarthi was pressing the neck of deceased with one’ hand and was hitting him with the other hand. Rabi was chased away by the other two accused. Rabi then complained to Mandhar (P.W. 4) and some others. When Rabi again reached the place of occurrence he found the deceased’s body hanging. Mandhar had reached somewhat earlier and he saw the accused running away from the place. We have no hesitation in accepting the story narrated by Dujeram (P.W. 1) and supported by these witnesses.
5. The prosecution has thus been able to prove the following facts; The deceased and all the three accused had on the fateful day consumed liquor and they were prone to pick up a quarrel at tiie slightest provocation. To begin with, there was grappling between the deceased and Sarthi and the latter slapped the former. This quarrel ended for a short while as the deceased and Sarthi were separated by Kirti. The deceased then shouted from Majhi’s house that he will not allow Sarthi’s daughter to live in that house and to take the property of Dasmat. This provoked Sarthi who with the other two accused again came to Majhi’s house and overpowered the deceased. Sarthi pressed the neck of the deceased and slapped him. Bhoklu caught hold of the hands of the deceased and Nanhi caught hold of his legs. When the deceased became unconscious, all the three hanged him from the ceil’ng by tying a rope round his neck. The deceased died as a result of hanging.
6. Now let us take a closer view of these facts. There is no suggestion that the liquor was administered to the accused without their knowledge or against their will. We must, therefore, attribute to the accrued the same knowledge of the consequence of their acts as if they were quite sober. The evidence does hot also disclose that the degree of intoxication was such that the accused were beside their minds altogether. It must, therefore, be presumed that they intended the natural consequences of their acts: Section 86, Penal Code; Basdev v. State of Pepsu . However, the facts do not show that there was any strong motive for the accused to kill the deceased. Pressure on the neck by hand was not applied with great force. It only made the deceased unconscious and did not lead to his death. No finger marks on the neck were noticed in post mortem examination. Therefore, the act of the accused Sarthi in overpowering the deceased and in pressing his neck with one hand end slapping him with the other hand while the other two accused were holding his hands and feet cannot be said to have been done with the intention of causing his death or with the intention of causing such bodily injury as was likely to cause death, or with the knowledge that the accused were likely to cause death. But the act of pressing the neck of a person who is overpowered and made helpless is an act endangering life and the acts of the accused up to the stage the deceased became unconscious clearly I fell under the definition of grievous hurt.
We now come to the stage when the deceased became unconscious. It appears that the accused then became panicky. They probably thought that the deceased if not already dead may die soon and, therefore, with the intention of concealing what they had earlier done they hanged the deceased. There is no material to hold that the accused believed the deceased to be already dead when they hanged him, They took no steps to ascertain whether he was alive or dead. No attempt was made to feel his pulse or to find out whether he was breathing or his heart was beating. The best that can be said in favour of the accused is that after the deceased became unconscious, they, hanged him in a panic unmindful of whether he was alive or dead. The accused may not have been certain that the deceased was alive but they were also not certain that he was really dead. In hanging the deceased in such a situation they acted with reckless indifference to the consequences.
7. What then is the offence which the accused have committed ? In cases where the accused from the beginning acts with the intention or knowledge referred to in Section 299 of the Penal Code and death results the offence is culpable homicide not amounting to murder or murder (depending upon the quality of intention or knowledge) even if in the later stages the accused is labouring under a mistaken impression that he is disposing of a dead body. The two stages of the acts in such cases are so closely connected in time and purpose that they are considered as parts of the same transaction: See In re Kaliappa Goundan AIR 1933 Mad 798 :34 Cri LJ 1109); In re Thayamani AIR 1943 Mad 571; Lingual v. Emperor AIR 1945 Pat 470 and Thabo Meli v. Reginam, (1954) 1 All ER 373 (PC). In the Privy Council case of Thabo Meli (supra) the appellants in accordance with a preconceived plan to kill took a man to a hut, gave him beer so that he was partially intoxicated and then hit him on the head. They then believing him to be dead rolled him over a low cliff, dressing up the scene to make it look like an accident. The medical evidence disclosed that the deceased was alive, though unconscious when he was left at the foot of the cliff and that he died of exposure.
The appellants, who were convicted of murder, argued before the Privy Council that there was absence of menses or intention to kill from the point of time the appellants thought that the man was already dead and, therefore, they could not be convicted of murder. In rejecting this argument Lord Reid said that “it was impossible to divide up what was really one series of acts” and that the crime was not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot. Commenting upon this case Prof. Williams has observed. “In these cases the accused intends to kill and does kill; his only mistake is as to the precise moment of death and as to the precise act that effects death. Ordinary ideas of justice and commonsense require that such a case shall be treated as murder.” (Criminal Law 2nd Edition, p. 174). The Privy Council case of Thabo Meli (1954) 1 All ER 373 and the observations of Prof. Williams were followed by the Court of Criminal Appeal in R, v. Church (1965) 2 All ER 72, where the accused was convicted of man slaughter on a lenient direction to the Jury by the trial Judge. The instant case does not fall in this class of cases for here, to begin with, the accused did not act with the intention or knowledge referred to in Section 299.
8. There is another class of cases where the original intention of the accused is to cause hurt simple or grievous and after hurt is caused the accused mistakenly believes that the victim has died and in that mistaken belief he does a further act to obliterate the traces of his crime and it is this later act which causes death of the victim-
In this class of cases one view is that the accused is only guilty of the offence of causing hurt or grievous hurt and he cannot be convicted for the offence of culpable homicide or murder: See In re Palani Goundan AIR 1920 Mad 862 :20 Cri LJ 404) (FB); Emperor v. Dalu Sardar AIR 1915 Cal 221 :15 Cri LJ 709); In re Chinnathambi, (1952) 2 Mad LJ 550 : 1953 Cri LJ 449. In Palani Goundan’s case the accused struck his wife a blow on the head with a plough share which knocked her senseless. The accused believed her to be dead and in order to lay a false defence of suicide by hanging proceeded to hang her by a rope. The blow on the head was in fact not fatal and the cause of death was asphyxiation by hanging. On these facts the accused was held guilty of the offence under section 326 as his intention to begin with was not to cause death or such bodily injury as it likely to cause death and the subsequent act of hanging the senseless victim was done under the belief that he was hanging merely a lifeless body. On similar facts, however, Patna High Court found the accused guilty under Section 304, Part 2 on the finding that in hastily believing the victim dead the accused acted recklessly with gross negligence and must be imputed the knowledge required under the third clause of Section 299. See The King v. Sreenarayan (1948) ILR 27 Pat 67.
On similar facts but where the degree of negligence was comparatively less the accused was convicted under Section 304A by the Rajasthan High Court: Buddha v. State (1959) ILR 9 Raj 762. It will be seen that the difference of opinion in this class of cases is for the reason that the Madras and Calcutta cases do not take notice of the principle that a person acting recklessly or with gross-negligence can be imputed the knowledge that he is likely by his act to cause death of the victim. This principle which is relied upon by the Patna and Rajasthan High Courts is open to one objection that when the accused really believes the victim to be dead (howsoever negligently he may have got this belief), he does not in fact have the knowledge that he is likely to cause death of the victim by the act of burning or hanging the victim’s body. The fact that the accused did not take necessary steps to ascertain whether the victim was dead or alive may go tp show that he did not really believe that the victim was dead: See Nannhu v. State, 1960 Cri LJ 605 (Madh Pra). But if a finding is reached that the accused did believe the victim t6 be dead, his negligence in reaching that belief is irrelevant for the question whether he had the knowledge referred to in the third clause of Section 299.
We do not, however, find it necessary to express any final opinion on this point because on the facts found in the instant case the accused acted recklessly unmindful of whether the victim was alive or dead. The Court in this class of cases may be faced with three fact situations, The accused may believe the victim to be dead, he may believe the victim to be alive or as in the present case he may be unmindful of whether the victim is alive or dead. Whatever may be the outcome when the accused believes the victim to be dead, we have no doubt that it would be clearly murder if the accused with the knowledge that the victim is alive hangs him with the object of concealing the earlier crime. Similarly, we have no doubt that if the accused, unmindful- of whether the victim is alive or dead hangs him and thereby causes his death, the accused must be attributed the knowledge that he may by the act of hanging was likely to cause death. On the facts of the instant case the accused, to begin with, had only the intention of causing grievous hurt, but when the deceased became unconscious they became panicky and, unmindful of whether the deceased was alive or dead, they hanged him causing his death. In hanging the deceased, the accused must be attributed the knowledge that they were likely to cause death. The accused although not liable for the offence of murder are clearly liable to be punished for the offence under Section 304, Part 2.
9. The appeals are partly allowed. The accused-appellants are acquitted under Section 302 read with Section 34 of the Penal Code and the sentences of life imprisonment are set aside. But they are each convicted under Section 304, Part 2, read with Section 34 and sentenced to 8 (eight) years’ rigorous imprisonment.
