The cases of Palani Goundan, In re1 and Thavamani v. Emperor2 are part of case material prescribed by the Faculty of Law, University of Delhi for the study of criminal law under the heading of “Mens rea and actus reus relationship”. Back in 2013-14 while studying them, the cases seemed incredulous as even with such stark facts which would lead even a layman to conclude that the accused is clearly guilty of murder, the courts proceeded to acquit the accused of charges of culpable homicide amounting to murder and instead, convict for grievous hurt or negligence or culpable homicide not amounting to murder.
There is a whole line of similar cases. The most celebrated of these cases in India is the Full Bench decision of the Madras High Court in Palani Goundan case3. An illustrative list of such cases is:
Palani Goundan, In re4.
Thavamani v. Emperor5.
Queen Empress v. Khandu Valad Bhavani6.
In Re Gour Gobindo Thakur7.
Queen Empress v. Kangla8.
Emperor v. Dalu Sardar9.
Emperor v. Gajjan Singh10.
Kaliappa Goundan, In re11.
King Emperor v. Nehal Mahto12.
Budha v. State13.
Lingraj Das v. King Emperor14.
Karan Singh v. State15.
Tirumalasetty Narayana Murthy, In re16.
Sarthi v. State of M.P.17.
Rajan v. State18.
Wang Wenfeng v. Public Prosecutor19.
Thabo Meli v. R.20.
Regina v. Church21.
Regina v. Le Brun22.
For convenience, the facts are being taken from Palani Goundan case23. The accused struck his wife a blow on the head with a ploughshare which rendered her unconscious. Believing her to be dead, and in order to make it appear that she had committed suicide by hanging, he proceeded to hang her from a beam with a rope. In the medical evidence, it was not shown that the blow was likely to cause death. The death was the result of asphyxiation by hanging. The accused was under the impression that his wife was already dead because of the blow when he hung her from a rope only to create false evidence. The accused was convicted by the trial court under Section 30224 and awarded death sentence. When the matter came up for confirmation of death sentence before the High Court, due to a difference in opinion by a Division Bench, matter was referred to a Full Bench which concluded that the accused was not guilty of either murder or culpable homicide not amounting to murder. The accused was finally convicted for grievous hurt under Section 32625 after remand.
The Court primarily reasoned that the intention demanded by Section 29926 must stand in relation to a person who is either alive or believed by the accused to be alive and the intention of the accused must be judged, not in the light of actual circumstances, but in the light of what he supposed were the circumstances. An argument was raised on behalf of the prosecution that the two acts i.e. the blow on the head and hanging by the rope, should be treated as part of one transaction as was done in Khandu case27 by Charles Sargent, C.J. The Court brushed aside the argument opining that the facts in the present case eliminate this possibility. The Court gave no findings on the “same transaction” argument which was also accepted in Kaliappa Goundan case28.
The present discourse seeks to put forth a fresh perspective on behalf of the prosecution based on a slightly more fundamental elaboration of “same transaction” argument based on the book “An Introduction to the Principles of Morals and Legislation” by Jeremy Bentham (1780)29 and authorities of courts of other jurisdiction. Although Bentham is best known as the founder of principle of utilitarianism, he greatly influenced Thomas Babington Macaulay, the man behind codification of the Penal Code30. The book is an exhaustive exposition of not just morals, but contains extensive ideas on sentencing, motive, pleasure, pain and in general, human disposition. In each paragraph, the book uses terms which are defined in the previous chapters or paragraphs. Although a comprehensive reading of the book is required to fully appreciate the genius of Bentham, due to obvious limitations, the attempt is to utilise only the portions which are relevant for the present purposes without omitting anything material while at the same time maintaining the scope of this discussion. The “same transaction” argument will also be revisited in light of the Privy Council judgment in Thabo Meli case31. The discussion would also cover the “alive” and “good faith” arguments used in Waryam Singh v. Emperor32 and Rajan case33 which are elaborated below.
A word of caveat here is appropriate. The above cases can be broadly classified into two categories. First, where the initial assault, which the accused inflicted, satisfies the test that it was sufficient to cause death or the accused knew that it was likely to cause death, but the victim survived. Secondly, where the assault was not likely to cause death or the accused did not intend to cause death. The present discourse is limited to the second situation as ensuring a conviction in the first case would be comparatively less onerous on the prosecution. The second situation can be broken down into the following subsets:
(a) The accused inflicted a blow which was not sufficient to cause death, or the accused knew is not likely to cause death;
(b) the accused proceeded to the next step without ascertaining whether the victim was alive or dead or forming a belief that the victim is dead based on unconscious nature of the victim;
(c) the accused proceeded to dispose of the perceived body either to give a false impression that an unnatural death has occurred because of reasons other than an assault or to cause destruction of evidence of his assault; and
(d) death had resulted because of the second act of the accused.
“Same transaction” argument
In my view, Parsons, J., was right. If the intention is to kill and a killing results, the accused succeed in doing that which they intended to do and if the acts follow closely upon one another and are intimately connected with one another such as they were in the Bombay case36, then in my opinion the offence of murder has been committed.37
The accused in this case had, since from the very inception, intended to kill the woman. They strangled her with that intention and then put her on a railway line to obliterate all traces of the crime. Although the medical witness stated that the death was due to strangulation, the court witness opined that it was due to decapitation. But let us proceed on an assumption that the accused did not intend to cause death in the first place. The same argument was also accepted in Thavamani case38 observing that:
… the two phases of the same transaction are so closely connected in time and purpose that they must be considered part of the same transaction.
Bentham in Chapter VII “Of Human Actions in General”, Paras VI and VII exposits:
VI. In an action are to be considered: 1. The act. 2. The circumstances. 3. The intentionality. 4. The consciousness. In every transaction, therefore, which is examined with a view to punishment, there are four articles to be considered: 1. The act itself, which is done. 2. The circumstances in which it is done. 3. The intentionality that may have accompanied it. 4. The consciousness, unconsciousness, or false consciousness that may have accompanied it.
VII. 5. The motives. 6. The disposition. There are also two other articles on which the general tendency of an act depends: and on that, as well as on other accounts, the demand which it creates for punishment. These are,
1. The particular motive or motives which gave birth to it.
2. The general disposition which it indicates.
Section 33 IPC39 provides that:
33. “Act”, “Omission”. — The word “act” denotes as well a series of acts as a single act: the word “omission” denotes as well a series of omissions as a single omission.
In Bentham’s book, Chapter VIII “Of Intentionality”, Para XII provides:
XII. Intentionality of the act with respect to its stages, how far material. It is to be observed, that an act may be unintentional in any stage or stages of it, though intentional in the preceding: and, on the other hand, it may be intentional in any stage or stages of it, and yet unintentional in the succeeding. But whether it be intentional or no in any preceding stage, is immaterial, with respect to the consequences, so it be unintentional in the last. The only point, with respect to which it is material, is the proof. The more stages the act is unintentional in, the more apparent it will commonly be, that it was unintentional with respect to the last. If a man, intending to strike you on the cheek, strikes you in the eye, and puts it out, it will probably be difficult for him to prove that it was not his intention to strike you in the eye. It will probably be easier, if his intention was really not to strike you, or even not to strike at all.
In Bentham’s terms, the second act of the accused in disposing of the body may be called a misadvised act massed on mis-supposal. Chapter IX, “Of Consciousness”, Para VI provides:
VI. A misadvised act, what — A mis-supposal. Again. Whether a man did or did not suppose the existence or materiality of a given circumstance, it may be that he did suppose the existence and materiality of some circumstance, which either did not exist, or which, though existing, was not material. In such case the act may be said to be misadvised, with respect to such imagined circumstance: and it maybe said, that there has been an erroneous supposition, or a mis-supposal in the case.
Chapter XII, “Of the Consequences of a Mischievous Act”, Para II provides:
II. Mischief of an act, the aggregate of its mischievous consequences. The tendency of an act is mischievous when the consequences of it are mischievous; that is to say, either the certain consequences or the probable. The consequences, how many and whatsoever they may be, of an act, of which the tendency is mischievous, may, such of them as are mischievous, be conceived to constitute one aggregate body, which may be termed the mischief of the act.
When a series of acts together form a crime, the principle of causation has to be considered with reference to all the acts taken together. A factor is said to have caused a particular event, if, without the factor, the event would not have happened. Thus, a man is said to have caused the actus reus of crime, if, that actus would not have a good without his participation in what was done.40 A series of distinct acts may, in some circumstances, be regarded as forming part of a larger transaction; and it will suffice if the accused had the necessary mens rea at some point in the transaction, even if it did not coincide precisely in time with the actus reus, the act which ultimately caused death. It is not necessary that the mens rea should be with respect to consequences which ultimately ensued if the tendency of the act is mischievous from beginning to the end as a whole. The second act may be a misadvised one, but the accused cannot escape the liability of it if it is closely connected in time and purpose to his first act. As Bentham has put it, it will be difficult for him to prove that he did not intend to hit at all rather than to prove that he did not cause the death or caused the death under a false presumption. In Palani Goundan41, one of the referring Judges, Napier, J., observed that:
Apart from the actual offence of concealing a murder, it is the grossest violation of natural rights to stab, shoot or hang a person without absolute knowledge that that person is dead, unless of course it is done innocently, and I see no reason why the offender should not suffer the consequences of this act.
It is a fundamental principle of criminal law that there must be a concurrence between the actus reus and mens rea for an offence to be established. That is, the fault element of a crime to coincide in point of time with the physical elements in order for the accused to be convicted of the crime charged. A general rule was established by the English court in Regina v. Smith42 that generally, intervening acts cannot break the chain of causation. This principle was given an exception in Thabo Meli case43. The facts of this case are closest to the one at hand. The case arose out of “Basutoland”, a former British colony in South Africa.
In accordance with a preconceived plan, the accused men took the victim to a hut and gave him beer so that he was partially intoxicated. They then hit the victim on the back of the head and took him out of the hut and, believing him to be dead, rolled him over a cliff to create a false appearance of an accident. The victim was, in fact, still alive at that stage and later died due to the fall. The defence argued that the second act of rolling him over a cliff was not accompanied by fault element and there was no intention to kill at that point of time. The Privy Council held that it was impossible to divide up what was really a series of acts in this way. The Judges preferred to regard the whole of the conduct as one indivisible transaction of causing death or as one continuing act. On this reading, the fault element and physical element coincided because the accused possessed the requisite fault element at the time, they started the series of acts. Lord Reid stated:
The point of law which was raised in this case can be simply stated. It is said that two acts were done: first, the attack in the hut; and, secondly, the placing of the body outside afterwards — and that they were separate acts. It is said that, while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it is said that the accused are not guilty of murder, though they may have been guilty of culpable homicide. It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which caused the man’s death. It appears to Their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. … there can be no separation such as that for which the accused contend. Their crime is 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.44
The Thabo Meli45 approach was approved by the English Court in Regina v. Church46. Decision in Thabo Meli47 was rendered in 1954. None of the decisions in India rendered after it, refer to it, except Sarthi case48 by the Madhya Pradesh High Court. The “same transaction” argument was also accepted in Rajan case49, but the conviction was altered from Section 302 to one under Section 304 Part II50 on facts.
Second act — Further divisible
Actus reus can either be a positive act or an omission. Section 33 recognises both. The second act of the accused in disposing of the body can be further broken down into two sub-acts. One, an omission or a failure to ascertain whether, as a result of the first assault inflicted, the victim is dead or alive and second, a positive act of disposing of the body. The Court in Palani Goundan case51 observed that the intention of the accused must be judged, not in the light of actual circumstances, but in the light of what he supposed were the circumstances. The observation appears to be unsustainable. Necrophilia is not yet an offence in India. Take for instance, if a man assaults a woman on the head rendering her unconscious and then commits sexual assault on her on a mistaken presumption that she is dead, who is in fact, only unconscious and later abandons her, can it be said that the man cannot be convicted of rape if the woman later survives? Section 43 IPC52 provides that:
43. “Illegal”, “legally bound to do”. — The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit.
It would be far off to argue that if an accused, in order to dispose of the body, either hangs it (Palani Goundan case53), throws it in a well (Thavamani case54), burns it alive (Khandu case55 & Rajan case56), puts it on a railway track to be run over by a train (Kaliappa Goundan case57 & Nehal Mahto case58) or buries it alive (Budha case59) is not perceptible to the fact that his act, even taken independently as a standalone act separate from the first act, is so inherently dangerous that it will cause death of any human being, and therefore is not legally bound to check whether the person is alive or not. Section 3260 provides that in every part of the Code, except where a contrary intention appears from the context, words which refer to acts done also extend to illegal omissions. This can be also said to be an extension of the principle of reasonable foresight or the principle of a prudent man. A man is said to intend the natural consequences of an act. In IPC, the definition of “voluntarily” in Section 3961 itself embodies this principle. A man is said to have voluntarily caused an effect if at that time, while doing the act, he knew, or had reason to believe that it is likely to be caused. Section 3662 makes the principle aptly clear:
36. Effect caused partly by act and partly by omission. — Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.
A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
The Madhya Pradesh High Court in Sarthi case63 observed that:
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 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.
“Alive” and “good faith” arguments
The bedrock of reasoning in Palani Goundan case64 is that intention demanded by Section 299 must stand in relation to a person who is either alive, or who is either believed by the accused to be alive. That a man is not guilty of culpable homicide if his intention is directed towards what he believed to be a lifeless body. The law has evolved in this aspect. Facts of 1926 case of Waryam Singh65 are very disturbing. It was alleged that Waryam Singh had three children who all died during their infancy. The last child a boy, died on 7-11-1925. It was suggested to his wife, Mt Radbi, that if she wanted her future children to live, she should go and bathe on the tomb of her child who had recently been buried in the cremation ground. Consequently, both husband and wife went to the grave. When she was being bathed by Waryam Singh, the deceased Phagga Singh appeared. Waryam Singh assaulted him with a stick with 10 blows. 4 of them were on the head. They ran back to the village and informed one person that they just killed a ghost. Waryam Singh went back to the cremation ground with two other persons to see the ghost but saw an injured Phagga Singh. They left him near a pond. Phagga Singh died 5 days later. During prosecution, the statement of the accused was based on the prevalent superstition that ghosts generally visit the cremation grounds on dark nights and especially when people go there on their unnatural missions. The Sessions Court convicted Waryam Singh under Section 302. The Lahore High Court held that the accused acted in “good faith” and proceeded to acquit him altogether.
“Good faith” is defined under IPC under Section 5266 in negative terms:
52. “Good faith”. — Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
It was held in S.K. Sundaram, In re67 that:
29. See the language of the law in this regard. It starts in the negative tone excluding all except what is allowed to be within its amplitude. Insistence sought to be achieved through the commencing words of the definition “nothing is said to be done or believed in good faith” is that the solitary item included within the purview of the expression “good faith” is what is done with “due care and attention”. Due care denotes the degree of reasonableness in the care sought to be exercised. In Black’s Law Dictionary, “reasonable care” is explained as
“such a degree of care, precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject-matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent person would exercise under the conditions existing at the time he is called upon to act”.
Failure to act in a positive manner with due care and diligence cannot be termed as “good faith”. The shift in law can be seen from the judgment in Ashok Laxman Sohoni v. State of Maharashtra68. In this case, the appellant-accused was under a hallucination that his wife is a witch and is practising sorcery. He gave her merciless beatings with a stick and then hurriedly cremated her. The Sessions Court awarded him the death sentence. While the case is an authority on corpus delicti, the Supreme Court upheld the conviction observing that the apprehension that Shubhangi was a witch was totally unfounded. That no reliable evidence has been led by the defence to show that there was any substantial ground for entertaining this belief. Hallucination is part of the plea of insanity and the onus is always on the accused to prove the same.69
In Rajan case70 as well, putting kerosene after the assault and setting fire to the deceased was held to be reckless and without good faith. Criminal liability for recklessness has always been problematic. This is because carelessness has been understood differently by scholars and Judges.71 But there is an argument to be made in these types of cases that the degree of due care and negligence expected for doing a voluntary positive act is of a slightly higher degree and courts would lean against showing any leniency as it did in Ashok Laxman Sohoni case72.
† Advocate-on-Record practising before the Supreme Court of India. Author can be reached at email@example.com.
7. 6 WR 55 Cr.
19.  SGCA 47 (Singapore).
29. Jeremy Bentham, An introduction to the Principles of Morals and Legislations (Clarendon Press, Oxford, 1789).
40. P.S.A. Pillai, Criminal Law (11th Edn., LexisNexis, 2012) p. 29.
71. B.B. Pandey, “ Paradoxes in Common Law of Crime: A Comparative Analysis of Criminal Law of United Kingdom, Hong Kong and India” (2008) Vol. 50 Journal of Indian Law Institute 303.