MANU/TN/0083/1912

Equivalent Citation: (1912)22MLJ333

IN THE HIGH COURT OF MADRAS

Decided On: 02.01.1912
Appellants: Emperor
Vs.
Respondent: Mushnooru Suryanarayana Murthy
Case Note:
Criminal - Appeal from acquittal - Intention - Whether accused was guilty of
murder of one - Held, accused did cause death of R and was guilty of her
murder - Accused's action was efficient cause of girl's death - Cases in
which culpable homicide was murder under Section 300 were not confined
to cases in which act by which death was caused was done with intention
of causing death - Accused was guilty of murder as defined in Sections 299
to 301 of Indian Penal Code, 1860 - Appeal allowed.
JUDGMENT
Benson, J.
1 . This is an appeal by the Public Prosecutor on behalf of Government against the
acquittal of one Suryanarayana Murthi, on a charge of having murdered the girl,
Rajalakshmi.
2 . The facts of the case, so far as it is necessary to state them for the purposes of
this appeal, are as follows:
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.

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3. I am of opinion that the accused did cause the death of Rajalakshmi and is guilty
of her murder. The law on the subject is contained in Sections 299 to 301 of the
Indian Penal Code and the whole question is whether it can properly be said that the
accused "caused the death" of the girl, in the ordinary sense in which those words
should be understood, or whether the accused was so indirectly or remotely
connected with her death that he cannot properly be said to have "caused" it. It is not
contended before us that the accused intended to cause the death of the girl, and we
may take it for the purpose of this appeal that he did not know that his act was even
likely to cause her death. But it is clear that he did intend to cause the death of
Appala Narasimhulu. In order to effect this he concealed poison in a sweetmeat and
gave it to him eat. It was these acts of the accused which caused the death of the
girl, though no doubt her own action, in ignorantly picking up and eating the poison,
contributed to bring about the result. Section 299 of the Indian Penal Code says : "
Whoever causes death by doing an act with the intention of causing death, or with
the intention of Causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.'' It is to be observed that the section does not require that the
offender should intend to kill (or know himself to be likely to kill) any particular
person. It is enough if he "causes the death" of any one by doing an act with the
intention of "causing death" to any one, whether the person intended to be killed or
any one else. This is clear from the first illustration to the section, "A lays sticks and
turf over a pit, with the intention of thereby causing death, or with the knowledge
that death is likely to be thereby caused Z believing the ground to be firm, treads on
it, falls in and is killed. A has committed the offence of culpable homicide."
4 . Nor is it necessary that the death should be caused directly by the action of the
offender, without contributory action by the person whose death is caused or by
some other person. That contributory action by the person whose death is caused will
not necessarily prevent the act of the offender from being culpable homicide, even if
the death could not have occurred without such contributory action, is clear from the
above illustration, and that contributory action by a third person will not necessarily
prevent the act of the offender from being culpable homicide, even if the death could
not have occurred without such contributory action, is clear from the second
illustration, viz., "A knows Z to . be behind a bush. B does not know it. A, intending
to cause, or knowing it to be likely t6 cause, Z's death, induces B to fire at the bush.
B fires and kills Z. Here B may be guilty of no offence ; but A has committed the
offence of culpable homicide.
5. The language of the section and the illustration seem to me to show that neither
the contributory action of Appala Narasimhulu in throwing away part of the
sweetmeat, nor the contributory action of the girl in picking it up and eating it
prevent our holding that it was the accused who caused the girl's death. The Indian
Law Commissioners in their report (1846) on the Indian Penal Code call attention to
the unqualified use of the words "to cause death " in the definition of culpable
homicide, and rightly point out that there is a great difference between acts which
cause death immediately, and acts which cause death remotely, and they point out
that the difference is a matter to be considered by the courts when estimating the
effect of the evidence in each case. Almost all, perhaps all, results are caused by a
combination of causes, yet we ordinarily speak of a result as caused by the most
conspicuous or efficient cause, without specifying all the contributory causes. In
Webster's Dictionary " cause " is defined as " that which produces or effects a result;
that from which anything proceeds and without which it would not exist " and again "
the general idea of cause is that without which another thing, called the effect,

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cannot be; and it is divided by Aristotle into lour kinds known by the name of the
material, the formal, the efficient and the final cause. The efficient cause is the agent
that is prominent or conspicuous in producing a change or result."
6. In the present case 1 think that the accused's action was the efficient cause of the
girl's death, though her own action in picking up and eating the poison was also
necessary in order to effect her death ; just as in the illustration given in the Code
the man who laid the turf and sticks over the pit with the intention of causing death
was held to be the cause of the death of the man who ignorantly fell into the pit ;
although the death would not have occurred if he had hot of his own free will walked
to the spot where the pit was. The Code says that the man who made the pit is guilty
of culpable homicide, and, in my opinion, the accused in the present case, who mixed
the poison in sweetmeat and gave it to be eaten, is equally guilty of that offence. The
mens rea which is essential to criminal responsibility existed with reference to the act
done by the accused in attempting to kill Apala Narasimhulu, though not in regard to
the girl whose death he, in fact, caused, and that is all that the section requires. It
does not say " whoever voluntarily causes death," or require that the death actually
caused should have been voluntarily caused. It is sufficient if death is actually, even
though involuntarily, caused to one person by an act intended to cause the death of
another. It is the criminality of the intention with regard to the latter that makes the
act done and the consequence which follows from it an offence.
7. Turning now to Section 300, Indian Penal Code, we find that culpable homicide is
murder if the act by which death ' is caused is done with the intention of causing
death, and does not fall within certain specified exceptions, none of which are
applicable to the present case.
8 . It follows that the accused in the present case is guilty of murder, and this is
rendered still more clear by Section 301 of the Code. The cases in which culpable
homicide is murder under Section 300 are not confined to cases in which the act by
which the death is caused is done with the intention of causing death. Section 300
specifies other degrees of intention or knowledge which may cause the act to amount
to murder, and then Section 301 enacts that " if a person, by doing anything which
he intends or knows to be likely to cause death, commits culpable homicide by
causing the death of any person, whose death he neither intends nor knows himself
to be likely to cause, the culpable homicide committed by the offender is of the
description of which it would have been if he had caused the death of the person
whose death he intended or knew himself to be likely to cause."
9 . The section does not enact any rule not deducible from the two preceding
sections, but it declares in plain language an important rule deducible, as we have
seen, from those sections, just as an explanation to a section does. The rule could
not well be stated as an explanation to either Section 299 or Section 300 as it relates
to both. It was, therefore, most convenient to state the rule by means of a fresh
section., The rule makes it clear that culpable homicide may be committed by causing
the death of a person whom the offender neither intended, nor knew himself to be
likely, to kill, a rule which though it does not lie on the surface of Section 299, yet is,
as we have seen, deducible from the generality of the words '' causes death" and
from the illustration to the section ; and the rule then goes on to state that the
quality of the homicide, that is, whether it amounts to murder or not, will depend on
the intention or knowledge which the offender had in regard to the person intended
or known to be likely to be killed or injured, and not with reference to his intention
or knowledge with reference to the person actually killed, a rule deducible from the

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language of the Sections 299 and 300 though not, perhaps, lying on their very
surface. The conclusion, then, at which I arrive is that the accused in this case is
guilty of murder as defined in Sections 299 to 301, Indian Penal Code.
10. This conclusion is in accord with the view of Norman Offg., C.J., and Jackson, J.,
in the case reported in 13 W. R. 2 where it is said: "The prisoner gave some poisoned
rice water to an old woman who drank part herself and gave part to a little girl who
died from the effect of the poison. The offence of the prisoner, under Section 301 of
the Indian Penal Code, is murder." That the present accused would be guilty of
murder under English Law is clear from the case of Agnes Gore. In that case Agnes
Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband,
which he ate but which did not kill him, but afterwards killed the Apothecary, who to
vindicate his reputation, tasted it himself, having first stirred it about. " It was
resolved by all the Judges that the said Agnes was guilty of the murder of the said
Martin, for the law conjoins the murderous intention of Agnes in putting the poison
into the electuary to kill her husband, with the event which thence ensued; i.e., the
death of the said Martin; for the putting of the poison into the electuary is the
occasion and cause ; and the poisoning and death of the said Martin is the event,
quia eventus est qui ex causa sequitur, et dicuntur eventus quia ex causis eveniunt,
and the stirring of the electuary by Martin with his knife without the putting in of the
poison by Agnes could not have been the cause of his death." (King's Bench 77 ER
854.
11. A number of other English cases have been referred to, but it is unnecessary to
discuss them as we must decide the case in accordance with the provisions of the
Indian Penal Code, and these are not necessarily the same as the English Law.
12. In the result, I would allow the appeal by Government and convict the accused of
the murder of Rajalakshmi.
13. The accused was originally sentenced to seven years' rigorous imprisonment for
having attempted to murder Appala Narasimhulu. This sentence was enhanced to one
of transportation for life by this court acting as a court of revision in December,
1910, when this appeal was not before them. Looking to these facts I am unwilling to
now impose a sentence of death, though it would have been appropriate if the
accused had been convicted of murder at the original trial.
Sundara Aiyar, J.
1 4 . In this case the accused Suryanarayana Murthi was charged by the Sessions
Court of Ganjam with the murder of a young girl named Rajalakshmi and with
attempt to murder one Appala Narasimhulu by administering poison to each of them
on the 9th February 1910. He was convicted by the Sessions Court on the latter count
but was acquitted on the former count and was sentenced to seven years' rigorous
imprisonment. He appealed against the conviction and sentence in Criminal Appeal
No. 522 of 1910, and this court confirmed the conviction and enhanced the sentence
to transportation for life. The present appeal is by the Government against his
acquittal on the charge of murdering Rajalakshmi.
15. The facts as found by the lower court are that the accused, who was a clerk in
the Settlement Office at Chicacole, got the life of Appala Narasimhulu, the
prosecution 1st witness, insured in two Insurance Companies for the sum of Rs.
4,000 in all, having paid the premia himself; that the 2nd premium for one of the
insurances fell due on the 12th January, 1910, and the grace period for its payment

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would elapse on the 12th February, 1910; that the prosecution 1st witness being at
the same time badly pressed for means of subsistence asked the accused for money
on the morning of 9th February ; that the latter asked him to meet him in the evening
at the house of his (the accused's) brother-in-law, the prosecution 8th witness; that
at the house the accused gave the prosecution 1st witness a while substance which
he called ' halva' but which really contained arsenic and mercury in soluble form ;
that the prosecution 1st witness having eaten a portion of the halva threw aside the
rest; that it was picked up by the daughter of the prosecution 8th witness, the
deceased Rajalakshmi, who ate a portion of it herself and gave another portion to a
child of a neighbour ; and that both Rajalakshmi and the other child were seized with
vomiting and purging and finally died, Rajalakshmi some four days after she ate the
halva and the child two days earlier. After the prosecution 1st witness had thrown
away the halva both he and the accused went to the bazaar and the accused gave
prosecution 1st witness some more halva. The prosecution 1st witness suffered in
consequence for a number of days but survived. The accused, as already stated, has
been sentenced to transportation for life for attempting to murder the prosecution 1st
witness.
16. The case for the prosecution with reference to the poisoning of Rajalakshmi was,
as sworn to by the prosecution 1st witness, that, when the accused gave him the
halva, the girl asked for a piece of it and that the accused, though he reprimanded
her at first, gave her a small portion. But I agree with the learned Sessions Judge
that this story is improbable. The girl was the accused's own niece being his sister's
daughter. He and her father (the prosecution 8th witness) were on good terms. He
had absolutely no motive to kill her, and there was no necessity for giving her the
halva. The accused, in his statement to the Magistrate (the prosecution 22nd witness)
soon after the occurrence, said that the girl had picked up the halva and eaten it. He
had made a similar statement to the prosecution 8th witness when the latter returned
to his house on the evening of the 9th immediately after the girl had eaten it. This
statement is in accordance with the probabilities of the case, and I accept the
Sessions Judge's finding that the halva was not given to the girl by the accused but
picked up by her after the prosecution 1st witness had thrown it way. The question
we have to decide is whether, on these facts, the accused is guilty of the murder of
the girl. At the conclusion of the arguments we took time to consider our judgment,
as the point appeared to us to be one of considerable importance, but we intimated
that, even if the accused should be held to be guilty of murder, we would not
consider it necessary, in the circumstances, to inflict on him the extreme penalty of
the law.
1 7 . It is clear that the accused had no intention of causing the death of the girl
Rajalakshmi. But it is contended that the accused is guilty of murder as he had the
intention of causing the death of the prosecution 1st witness, and it is immaterial that
he had not the intention of causing the death of the girl herself. Section 299, Indian
Penal Code, enacts that whoever causes death by doing an act with the intention of
causing death, or with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide." Section 300 says "culpable homicide is
murder, if the act by which the death is caused is done with the intention of causing
death.'' Section 301 lays down that " if a person, by doing anything which he intends
or knows to be likely to cause death, commits culpable homicide by causing the
death of any person, whose death he neither intends nor knows himself to be likely
to cause, the culpable homicide committed by the offender is of the description of
which it would have been if he had caused the death of the person whose death he
intended or knew himself to be likely to cause." The contention of the learned Public

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Prosecutor, to put it very shortly, is (1) that it was the accused's act that caused the
death of the girl and (2) that the accused had the intention of causing death when he
gave the poison to the prosecution 1st witness and was, therefore, guilty of any
death that resulted from his act. He urges that the sections of the Penal Code
practically reproduce the English Law according to which the causing of death with
malice aforethought, though the malice may not be directed against a particular
individual whose death ensues, would amount to murder. Before referring to the
English Law, I shall consider the provisions of the Penal Code bearing on the subject.
If Mr. Napier's contention be sound it would make no difference whether Appala
Narasimhulu, the prosecution 1st witness, also died in consequence of the poison or
not; nor would it make any difference if, instead of the poison being picked up by the
girl and eaten by herself, she gave it to some one else and that one to another again
and so on if it changed any number of hands. The accused would be guilty of the
murder of one and all of the persons who might take the poison, though it might'
have been impossible for him to imagine that it would change hands in the manner
that it did. The contention practically amounts to saying that the intervention of other
agencies, and of any number of them, before death results, would make no difference
in the guilt of the accused, that causing death does not mean being the proximate
cause of death, but merely being a link in the chain of the cause or events leading to
the death and that further any knowledge on the part of the accused that such a chain
of events might result from his act is quite immaterial. It is, prima facie, difficult to
uphold such an argument. Now is there anything in the sections of the Penal Code to
support it? Section 39 provides that " a person is said to cause an effect' voluntarily '
when he causes it by means whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had reason to believe to be likely to
cause it." The illustration to the section is that if a person sets fire by night to an
inhabited house in a large town for the purpose of facilitating robbery, and thus
causes the death of a person, he would be taken to have caused the death voluntarily
if he knew that he was likely to cause it even though he may not have intended to
cause death and may even be sorry that death had been caused by his act. The
section and the illustration both show that causation with respect to any event
involves that the person should have knowledge that the event was likely to result
from his act. Section 299, Indian Penal Code, in my opinion, does not lead to a
different conclusion. But before dealing with it, I must turn to Section 301, Indian
Penal Code. That section apparently applies to a cause where the death of the person
whose death was intended or known to be likely to occur by the person doing the act,
does not, as a fact, occur but the death of some one else occurs as the result of the
act done by him. It evidently does not apply where the death both of the person
whose death was in contemplation and of another person or persons, had occurred.
Can it be said that, in such a case, the doer of the act is guilty of homicide with
reference to those whose death was not intended by him and could not have been
foreseen by him as likely to occur ? Are we to hold that a man who knows that his act
is likely to cause the death of one person is guilty of the death of all the others who
happen to die, but whose death was far beyond his imagination? Such a proposition
it is impossible to maintain in criminal law. Section 301 of the Indian Penal Code has
reference to a case where a person intending to cause the death of A, say by striking
or shooting him, kills B because B is in the place where he imagined A to be, or B
rushes in to save A and receives the injury intended for A. The reason for not
exculpating the wrong-doer in such cases is that he must take the risk of some other
person being in the place where he expected to find A, or, of some one else
intervening between him and A. The section is a qualification of the rule laid down in
Section 299 and is evidently confined to cases where the death of the person

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intended or known to be likely to be killed does not result. If the Public Prosecutor's
general proposition were right, Section 301 of the Indian Penal Code would seem to
be unnecessary, as Section 299 would be quite enough. If a person is intended by
Section 299 to be held to be guilty for deaths which are not known to be likely to
occur, then that section might itself have been worded differently so as to show that
the particular death caused need not have been intended or foreseen and what is
more important, Section 301 of the Indian Penal Code would not be limited to cases
where the death of the particular individual intended or foreseen does not occur. The
general theory of the criminal law is that the doer of an act is responsible only for the
consequences intended or known to be likely to ensue; for otherwise he could not be
said to have caused the effect " voluntarily," and a person is not responsible for the
involuntary effects of his acts. Illustrations A and B, in my opinion, support this view.
Sections 323 and 324 show that a person is responsible in the case of hurt or
grievous hurt only for what he causes voluntarily ; and Section 321 shows that hurt
to the particular person in question must have been intended or foreseen. In the eye
of the law, no doubt, a man will be taken to have foreseen what an ordinary
individual ought to foresee, and it will not be open to him to plead that he himself
was so foolish as, in fact, not to foresee the consequence of his act. A person might,
in some cases, be responsible for effects of which his act is not the proximate cause
where the effect is likely to arise in the ordinary course of events to result from the
act. This rule will certainly hold good where a person's act set in motion only
physical causes which lead to the effects actually occurring ; when the effect is not
due merely to physical causes set in operation by an act, but other persons' wills
intervening are equally necessary causes with the original act to lead to the result, it
is more difficult to decide whether the act in question can be said to be the cause of
the effect finally produced. The Code throws very little light on the question,
Ordinarily, a man is not criminally responsible for the acts of another person, and
ordinarily his act should not be held to be the cause of a consequence which would
not result without the intervention of another human agency. Sir J. Fitz James
Stephen in his 'History of the Criminal Law of England,' Vol. III, p. 8, says : " A more
remarkable set of cases are those in which death is caused by some act which does
unquestionably cause it, but does so through the intervention of the independent
voluntary act of some other person. Suppose, for instance, A tells B of facts which
operate as a motive to B for the murder of C. It would be an abuse of language to say
that A had killed C, though no doubt he has been the remote cause of C's death." The
learned author proceeds to point out that, even when a person counsels, procures or
commands another to do an act, he would be only guilty as an abettor but not as a
principal offender whose act caused the result, say murder. This is the well settled
principle of the English Law, though there appear to be one or two exceptions, to be
hereafter pointed out. No such exceptions are mentioned in the Indian Code. They
may perhaps be recognised where the doer of the act knew that it would be likely
that his own act would lead other persons, not acting wrongfully, to act in such a
manner as to cause the effect actually produced. But the scope of the exceptions
cannot cover those cases where the doer could not foresee that other persons would
act in the manner indicated above. This is the principle adopted in determining civil
liability for wrongs. See the discussion of the question in Baker v. Snell (1908) 2
K.B. 825. A stricter rule cannot be applied in cases of criminal liability.
18. Now, can it be said that the accused, in this case, knew it to be likely that the
prosecution 1st witness would give a portion of the halva to the girl Rajalakshmi?
According to Section 26 of the Indian Penal Code " a person is said to have 'reason to
believe' a thing if he has sufficient cause to believe that thing but not otherwise." A
trader who sells a basket of poisoned oranges may be said to have sufficient ' reason

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to believe' that the buyer would give them to various persons to eat; but one who
gives a slice of an orange to another to eat on the spot could not be said to have
sufficient ' reason to believe' that he would give half of that slice to another person to
eat or that he would throw away a portion and that another would eat it. The poison
was thrown aside here not by the accused but by the prosecution 1st witness. The
girl's death could not have been caused but for the intervention of the prosecution 1st
witness's agency. The case, in my opinion, is not one covered by Section 301 of the
Indian Penal Code. The conclusion, therefore, appears to follow that the accused is
not guilty of culpable homicide by doing an act which caused the death of the girl.
Mr. Napier, as already mentioned, has contended that the law in this country on the
question is really the same as in England; and he relies on two English cases in
support of his contention, viz., Saunder's case and Agnes Gore's case. I may preface
my observations on the English Law by citing Mr. Mayne's remark that "culpable
homicide is perhaps the one branch of criminal law in which an Indian student must
be most careful in accepting the guidance of English authorities." According to the
English Law " murder is the unlawful killing, by any person of sound memory and
discretion, of any person under the King's peace, with malice aforethought, either
express or implied by law. This malice aforethought which distinguishes murder from
other species of homicide is not limited to particular ill-will against the persons slain,
but means that the fact has been attended with such circumstances as are the
ordinary symptoms of a wicked, depraved, and malignant spirit ; a heart regardless
of social duty, and deliberately bent upon mischief. Any formed design of doing
mischief may be called malice ; and therefore, not only killing from premeditated
hatred or revenge against the person killed, but also, in many other cases, killing
accompanied with circumstances that show the heart to be previously wicked is
adjudged to be killing of malice aforethought and, consequently, murder."-RUSSELL
on Crimes and Misdemeanors, 7th Edition, Volume I, page 655. It will be observed
that, in this definition, malice is made an essential requisite, and all cases have to be
brought under it. Knowledge that the act is likely to cause death is not part of the
definition Nor have we any words to import what is contained in the explanations to
Section 299 of the Indian Penal Code or in Cls. 2, 3 and 4 of Section 300. The law
was worked out of England to its present condition by a series of judicial decisions.
This accounts for the statement that general malice is enough and that it need not be
directed against the particular individual killed. Hence also the proposition that
wicked intention to injure is enough and intention to kill that individual is not
necessary. See ROSCOE'S Criminal Evidence, 13th Edition, pages 617 to 619. Malice
again is explained to mean malice implied by law as well as malice in fact. The result
is, the law in England is not as different from that in India as a comparison of the
definitions might, at first sight, indicate. This is apparent from the statement of the
English Law at pp. 20-22, Vol. III of Stephen's History of the Criminal Law. The
statement, however, shows that the law is not identical in both countries. In England
an intention to commit any felony will make the act murder if death results. Again " if
a child under years of discretion, a madman, or any other person of defective mind,
is incited to commit a crime, the inciter is the principal ex necessitate, though absent
when the thing was done. In point of law, the act of the innocent agent is as much
the act of the procurer as if he were present and did the act himself." See RUSSELL
on Crimes, Vol. I, page 104. The Indian law does not make the abettor guilty of the
principal offence in such circumstances. There is also a presumption in the English
Law that " all homicide is malicious and murder, until the contrary appears from
circumstances of alleviation, excuse, or justification ; and it is incumbent upon the
prisoner to make out such circumstances to the satisfaction of the Court and Jury,
unless they arise out of the evidence produced against him." See Russell on Crimes,

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Vol. I, page 657. There is no such presumption here. In Saunder's case as stated in
Roscoe's Criminal Evidence, p. 154, the prisoner intending to poison his wife gave
her a poisoned apple which she, ignorant of its nature, gave to a child who took it
and died. This was held murder in the husband, although being present he
endeavoured to dissuade his wife from giving it to the child. In Hale'S Pleas of the
Crown, Vol. I, p. 436, it is not stated that the prisoner endeavoured, to dissuade his
wife from giving the apple to the child. On the other hand, the author says : '' If A
commands or counsels B to kill C and before the fact is dose A repents and comes to
B and expressly discharges him from the fact and countermands it, if after this
countermand B does it, it is murder in B; but A is not accessory." The decision
apparently proceeded on the English rule that the innocence of the intervening agent
had the effect of holding the prisoner liable as the principal offender. In Agnes Gore's
case (1614) 77 E.R. 853 the wife who mixed ratsbane in a potion sent by the
apothecary to her husband which did not kill him but killed the apothecary who, to
vindicate his reputation, tasted it himself, having first stirred it up, was held guilty of
murder because the wife had the intention of killing the husband though not of killing
the apothecary. It is possible that an Indian court may hold in such a case that it was
the duty of the wife to warn and prevent the apothecary from tasting the potion and
that she was guilty of an illegal omission in not doing so. Whether the case might not
come under Section 301, Indian Penal Code, also it is unnecessary to consider. In
The Queen v. Latimer (1886) 17 Q.B.D.359 " the prisoner, in striking at a man, struck
and wounded a woman beside him. At the trial of an indictment against the prisoner
under 24 and 25 Vic. C 100, Section 20, for unlawfully and maliciously wounding her,
the Jury found that the blow ' was unlawful and malicious and did in fact wound her,
but that the striking of her was purely accidental and not such a consequence of the
blow as the prisoner ought to have expected.' The Court of Crown Cases Reserved
held that the prisoner was guilty. The decision proceeded upon the words of the
statute. Section 18 enacted that "whosoever shall unlawfully and maliciously cause
any grievous bodily harm to any person with malicious intent shall be guilty of
felony." Then Section 20, leaving out the intent, provided that whosoever shall
unlawfully and maliciously wound or inflict any grievous bodily harm upon any other
person shall be guilty of misdemeanour. Lord Coleridge, C.J., pointed out that the
language of Sections 18 and 20 was different and that the earlier statute had been
altered which provided that the intention should be against the person injured. In
Regina v. Michael, where a bottle containing poison was put on the mantel-piece
where a little child found it and gave part of the contents to the prisoner' child who
soon after died, the Judges were of opinion that " the administering of the poison by
the child was under the circumstances of the case as much in point of law an
administering by the prisoner as if the prisoner had actually administered it with her
own hand." This decision also, no doubt, proceeded on the ground of want of
discretion in the intervenor, the child. The Indian courts may hold that a person who
keeps poison at a place where others might have access to it must be taken to know
that death is likely to result from the act. It is clear that English decisions are not
always a safe guide in deciding cases in this country where the provisions of the
Penal Code must be applied. In Shankar Balkrishna v. King-Emperor I.L.R. (1904)
Cal. 73 the Calcutta High Court held that the prisoner in the case, an Assistant
Railway Station Master, was not liable where death would not have resulted if the
guard had not acted carelessly, as the prisoner could not be taken to know that the
accident to the train which resulted in the loss of human life was likely to lead to
death. In In re The Empress v. Sahae Rae I.L.R. (1877) Cal. 623 which may be
usefully compared with The Queen v. Latimer (1886) 17 Q.B.D.359 and where also
the prisoner was held guilty, the decision was put on the ground that the prisoner

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knew it to be likely that the blow would fall on a person for whom he had not
intended it. Holding, as I do, that, in the circumstances of this case, the prisoner
could not be said to have known that it was likely that the prosecution 1st witness
would throw aside the halva so as to be picked up and eaten by some one else and
that the prisoner was not responsible, in the circumstances, for the voluntary act of
prosecution 1st witness, I must come to the conclusion that the prisoner is not guilty
of the murder of the girl Rajalakshmi. It is not contended that there was a legal duty
on the part of the accused to prevent the girl from eating the halva and that he was
guilty of murder by an illegal omission.
19. I would uphold the finding of acquittal of the lower court and dismiss the appeal.
Benson, J.
20. As we differ in our opinion as to the guilt of the accused, the case will be laid
before another Judge of this court, with our opinions under Section 429, Criminal
Procedure Code.
21. This appeal coming on for hearing under the provisions of Section 429 of the
Code Criminal Procedure
The Court delivered the following
Rahim, J.
22. The question for decision is whether the accused Suryanarayanamurti is guilty of
an offence under Section 302, Indian Penal Code, in the following circumstances He
wanted to kill one Appala Narasimhulu on whose life he had effected rather large
insurances and for that purpose gave him some halva (a sort of sweet meat), in
which he had mixed arsenic and mercury in a soluble form, to eat. This was at the
house of the accused's brother in-law, where Appala Narasimhulu had called by
appointment. The man ate a portion of the halva, but not liking its taste threw away
the remainder on the spot. Then, according to the view of the evidence accepted by
my learned brothers Benson and Sundara Aiyar JJ., as well as by the Sessions Judge,
a girl of 8 or 9 years named Rajalakshmi, the daughter of the accused's brother-in-
law, picked up the poisoned halva, ate a portion of it herself, and gave some to
another child of the house. Both the children died of the effects of the poison, but
Appala Narasimhulu, the intended victim, survived though after considerable
suffering. It is also found as a fact, and I agree with the finding, that Rajalakshmi
and the other girl ate the halva without the knowledge of the accused, who did not
intend to cause their deaths. Upon these facts Benson J. would find the accused
guilty of the murder of Rajalakshmi, while Sundara Aiyar J., agreeing with the
Sessions Judge, holds a contrary view.
2 3 . The question depends upon the provisions of the Indian Penal Code on the
subject as contained in Section 299 to 301. The first point for enquiry is whether the
definition of culpable homicide as given in Section 299 requires that the accused's
intention to cause death or his knowledge that death is likely to be caused by his act
in question must be found to exist with reference to the particular person whose
death has actually been caused by such act, or is it sufficient for the purposes of the
section if criminal intention or knowledge on the part of the accused existed with
reference to any human being, though the death oi the person who actually fell a
victim to the accused's act was never compassed by him. I find nothing in the words
of the section which would justify the limited construction. Section 299 says:

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"Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide." The language is perfectly general; all that it requires is that there
should be an intention to cause death or a knowledge that death is likely to be the
result, and there is nothing in reason which, in my opinion, would warrant us in
saying that the homicidal intention or knowledge must be with reference to the life of
the person whose death is actually caused. The law affords protection equally to the
lives of all persons, and once the criminal intention, that is, an intention to destroy
human life, is found, I do not see why it should make any difference whether the act
done with such intention causes the death of the person aimed at or of some one
else. Illustration (a) to Section 299 makes it quite clear that the legislature
deliberately employed general and unqualified language in order to cover cases
where the person whose death is caused by the act of the accused was not the person
intended to be killed by him but some other person. Section 301 also supports this
construction as it assumes that the accused in such cases would be guilty of culpable
homicide; and I may here point out that the object of this section is to lay down that
the nature of culpable homicide of which the accused in these cases would be guilty,
namely whether murder or not, would be the same as he would have been guilty of,
if the person whose death was intended to be brought about had been killed. Now the
first paragraph of Section 300 declares that culpable homicide shall be deemed to be
murder if the act by which death is caused is done with the intention of causing
death, using so far the very words of Section 299. In the 2nd and 3rd paragraphs of
Section 300 the language is not quite identical with that of the corresponding
provisions in Section 299, and questions may possibly arise whether where the fatal
act was done not with the intention of causing death but with the intention of causing
such bodily injury as as likely to cause death, or with the knowledge that the accused
is likely by such act to cause death, the offence would be one of murder or culpable
homicide not amounting to murder. But it is not necessary for me to express any
opinion on these matters as in the present case the prisoner undoubtedly intended to
cause death.
24. The next point for consideration is whether the death of Rajalakshmi was caused
by the accused's act within the meaning of Section 299. The question is really one of
fact or of proper inference to be drawn from the facts. That girl's death was caused
by eating the sweetmeat in which the accused had mixed poison and which he
brought to the house where the girl lived in order to give it to the man for whom it
was intended. It was given to him, but he, not relishing the taste of it, threw it down.
The deceased girl soon afterwards picked it up and ate it, But the accused was not
present when Rajalakshmi ate it, and we may even take it that, if the accused had
been present, he would have prevented the girl from eating the sweetmeat. These
being the facts, there can be, however, no doubt, that the act of the accused in
mixing arsenic in the halva and giving it to Appala Narasimhalu in Rajalakshmi's
house was one cause in the chain of causes which brought about the girl's death. The
question then is whether this act of the accused was such a cause of Rajalakshmi's
death as to justify us in imputing it to such act. In my opinion it was. Obviously it is
not possible to lay down any general test as to what should be regarded in criminal
law as the responsible cause of a certain result when that result, as it often happens,
is due to a series of causes. We have to consider in each case the relative value and
efficiency of the different causes in producing the effect and then to say whether
responsibility should be assigned to a particular act or not as the proximate and
efficient cause. But it may be observed that it cannot be a sufficient criterion in this
connection whether the effect could have been produced in the case in question

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without a particular cause, for it is involved in the very idea of a cause that the result
could not have been produced without it. Nor would it be correct to lay down
generally that the intervention of the act of a voluntary agent must necessarily
absolve the person between whose act and the result it intervenes. For instance, if A
mixes poison in the food of B with the intention of killing B and B eats the food and
is killed thereby, A would be guilty of murder even though the eating of the poisoned
food which was the voluntary act of B intervened between the act of A and B's death.
So here the throwing aside of the sweetmeat by Appala Narasimhulu and the picking
and the eating of it by Rajalakshmi cannot absolve the accused from responsibility for
his act. No doubt the intervening acts or events may sometimes be such as to deprive
the earlier act of the character of an efficient cause. Now, suppose, in this case
Appala Narasimhulu had discovered that the sweetmeat was poisoned and then gave
it to Rajalakshmi to eat, it is to his act that Rajalakshmi's death would be imputed
and not to the accused's. Or suppose Appala Narasimhulu, either suspecting that the
sweetmeat was poisoned or merely thinking that it was not fit to be eaten, threw it
away in some unfrequented place so as to put it out of harm's way and Rajalakshmi
happening afterwards to pass that way, picked it up, and ate it and was killed, the act
of the accused in mixing the poison in the sweetmeat could in that case hardly be
said to have caused her death within the meaning of Section 299. On the other hand,
suppose Appala Narasimhulu, finding Rajalakshmi standing near him and without
suspecting that there was anything wrong with the sweetmeat, gives a portion of it to
her and she ate it and was killed, could it be said that the accused who had given the
poisoned sweetmeat to Appala Narsimhulu was not responsible for the death of
Rajalakshmi ? I think not. And there is really no difference between such a case and
the present case. The ruling reported in 13 W.R. 2 also supports the view of the law
which I have tried to express.
25. 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.

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