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cide not amounting to murder, and as the finding corresponded to the
words " the act is done with the kn<»wledge that it is likely to cause death '*
in section 304 of the Indian Penal Code, the utmost punishment to which
the accused was liable on a conviction on such finding was rigorous im-
prisonment for ten years or transportation in lieu of imprisonment for a
like term.

The finding, however, appears to me to be inappropriate to a case like
the present in which death has been caused by an act done in the inten-
tional causing of bodily injury to a particular individual,

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350 The ('rtmikal Law Jovrnal Reports. [Vol. Ill


In sueli a ease the (juostion to be c^nsidorod is with what intention
(lid tho accused coiniiiit the act. His knowledge of the probable results
of his act must almost ne<*essarily be a matter to lie considered ali»o, since
knowledge and intention are usually closely bound up together. Whore
the act has been done in pursuance of an intention to do bodily harm to
another, the case must, in my opinion. Ikj decided according to the inten-
tion which must l>e attributed to the offender in doing the act, and the
words and clause of section 299 and section 300 of the Indian Penal
(ode, which deal with knowledge, have no direct application to j^uch
a case.

The provisions of the In<lian Penal C*ode regarding murder and cul-
pable homici<li« not amounting to murder are undoubtedly somewhat obscure,
and the distinct ion** JK^tween the cases stated are in some instances very
fine. Taking as an example illustration (c) to section 300, which is obvi-
ously the illustration intended for a case falling within the third clause
of the section, it appears to me that any ordinary person would reason-
ably and justifiably come to the conclusion that A in doing the act stated
intended to kill Z. and in such case his act would fall under the first clause
c»f the section. Tlicre may, however, be cases in which there may be a
])roader distinction than that afforded by illustration (r), and in which
an intention to cause actual death might Ik* negatived, while an intention
to inflict what I will shortly call vital injury might be found.

The distinctions between the two offences of murder and culjwble
homicide are most clearly set out in the judgment of Melvill, J. in lietj. v.
(rorhida ( 1 ). \ accept the learned Judge's view as correct in ever}* detail,
buf would add that the cases stated in section 299 and section 300 in which
' knowledge " is made the determining constituent of the offence, appear
to me to refer to cases in which the doer of the act constituting the crime
had no intention of injuring any one in particular, but in which he ha:*
caused death by doing a reckless or rash act, which he must have known
would either in all probability endanger human life, or would be likely to
endanger human Iif(». The 4th clause of section .WO must, I think, 1)0
read as a whole, and the last words of it, Wc. : *• and commits such act
without any excuse for incurring the risk of causing death or such injun' a^
aforesaid '' appear to me to show that that clause was intended for a ease
of the nature, I have referred to above. Illustration ((/) to the section
strengthens this view.

The ( ^ode affords no good illustration of an offence of culpable bonu-
cide not amounting to murder by an act done with the knowledge oiioie
part of the doer that h(» was likely to cause death, but without the inten-
U)Cl^7r,). I. L. K.. 1 Horn.. 342.

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Vol. Ill] The Ckiminal I.aw Jul rkal Hkpouts. 3.j/


tion of causing death or Ixxlily injury likely to oau.se death. Part of illus-
tration (a) to section 299 covers such a case. To illustrate my view of a
crime falling within this category, I venture to offer the following illustra-
tion. The engine driver of a railway passenger train noticing a danger
signal against him, but seeing no signs of danger on the line ahead of him
runs his train past the danger signal, with the consequence that the train
is upset and lives are lost. The engine driver's offence might not he held
so culpable as to fall within the 4th clause of section 300, but it might
clearly be a case punishable under the last part of section vW4 of the

I have expressed my views on the meaning and application of the
parts of sections 299, 300 and 304 of the Code dealing with •' knowledge *'
in order to make it clear why I think that in a case in which bodily injury
intended for a particular individual has resulted in death those parts of
the sections need not be considered.

Before arriving at a conclusion as to what the intention of the doer o£
an act causing death was, it is, I think, a good [dan, to put l)efore one-
self the whole category of intentions expressed in the (.Vde in connection
with offences causing bodily injury. They are, taking them from the most
grievous downwards : —

1st. — .1/1 intention of caasinri deaths which I take to refer to an actual
intention that death should be the result of the botlily injury which the
oft'ender inflicted.

2nd. — .1/* intention of vausinij such hodih/ Injnn/ us the ojfender lueic
to he likelt/ to cause the death of the person to ichoni the harm wag caused t
Illustration (b) to section 300 illustrates the sort of case to which the 2nd
clause of section 300 would apply, r/c, a sj)ecial case in which there exist-
ed some weakness or defect in the person injured such that an injury
which would not in the ordinary course of nature kill a person of ordinary
health, would be likely to kill him, an<l the offender knew would be likely
to kill him.

3rd. — An intention of causintj hodih/ injury sufficient in the ordinar/j
course of miture to cause death,

4th. — .1/1 intention of causing/ such Ifodih/ injurt/ as is likely to cause

5th.— ,1/t intention of causinii (jrierous hurt, but grievous hurt wliich
\vas not likely to endanger life.

tUh.— .4/1 intention of causimj hurt merely.

There are cases in which although an offender has actually caused
death as a consequence of bodily injury inflicted by him, he has been

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858 The Criminal Law Journal Reports [Vol. Ill


held liable for only one or other of the minor offences of grievous hurt
or hurt.

To justify a conviction of culpable homicide of any sort against an
offender who has committed an intentional act causing bodily injury to
another and which act was intended for some particular individual, there
nmst at least be a finding that the offender intended by his act to cause
hodilt/ iujury likely to cause death.

The first three degrees of intention stated above make the offence in
the act causing death murder, unless one or more of the exceptions stated
in section 300 applies or apply. If no exception applies, the sentence
nmst be in accordance with section 302. If an exception applies, the first
part of section 304 regulates the punishment to be given.

If the offence has been committed w ith the fourth intention in tlie
above category, the offence is culpable homicide not amounting to murder,
and the punishment is also regulated by the first part of section 304, being
covered by the words " if the act by which the death is caused is done
with the intention of causing such bodily injurv as is likely to cause

Great difficulty may be experienced in deciding whether a case falls
within the 3rd or the 4th category. The distinction between the degrees
of bodily injury intended is fine, but it is appreciable. That it exists and
was intended to exist is, I think, shown by the wording " with the inten-
tion of causing such bodily injury as is likely to cause death" in section
299, and the wording *' bodily injury sufficient in the ordinary course of
nature to cause death " in the third clause of section 300.

In Reg. v. Govinda (1) Melvill, J. said : —
It is a question of degree of probability. Practically, I think, it will generally resolve
itself into a consideration of tlie nature of the weapon used. A blow from the fist or stick on
a vital part may be likely to cause death : a wound from a sword in a vital part is sufficient
in the onlinary course of natui-e to cause death.'*

These words I take to be merely illustrative of the learned Judge's

In Queen v. (ionxchand Gope (2) Campbell, J. also recognized the
fine distinction between the intentions referred to in sections 299 and 300,
and said that an act which had caused death and had been done with
the intention of causing such bodily injury as was likely to cause death
tallied more exactly with the definition of culpable homicide than with that
of murder.

Not only may the degree of bodily injury intended be a matter of
much difficulty, but often the whole question of the accused's intention

(2-) (18fi«> B. L. n.. Full Bench Rulings, Sup. Vol., 413.

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V'ol Iff] tflE Criminal Law Journj^i. Ueports. 359

SHWE EIN r. emperor.

may present difficulties. In the absence of an expression o£ his intention
by the accused previous to or after or at the time of committing the act,
his intention can only be inferred from the act itself and the circumstances
under which it was done. In making an inference as to the accused's in-
tention, the knowledge which must be attributed to him must usually be a
matter for consideration. As Mr. Mayne says in paragraph 201 of his
Criminal Law of India : —

" luteution is sometimes a presumption of law : sometimes it is a mere fact, to be proved
like any other fact. A man is assumed to intend the natural or necessary consequences of his
own act, and in the majority of cases the question of intention is merely the question of know-
ledge. If I strike a man on the hea<l with a loadetl club, I am assumed to know that the act
will probably cause death, and if that result follows, I am assumed to have intended that it
should follow."

Thus in a case like the present in which death has been caused by
intentional bodily injury inflicted by the accused on the deceased, the ques-
tion of what knowledge must be attributed to the accused comes in as a
means of arriving at his intention when he committed the act which caused
the death, and for that purpose, and not for the purpose of deciding
whether the case falls within the 4th clause of section 300 or the last part
of section 304 must the question be considered.

Applying the above considerations to the present case in which in a
moment of anger the accused struck the deceased one blow on the head
with a piece of wood 20 inches long, 8 inches in circumference and 78 1
tolas in weight, the question is what must be assumed to have been the
accused's intention when he struck the blow.

The circumstances do not warrant a conclusion that the accused
actually intended to kill the deceased, nor does the act itself call for such
a conclusion. The second clause of section 300 has no application to the

The decision must rest upon whether he must be held to have intended
to cause bodily injury sufficient in the ordinary course of nature to cause
death, or whether he only intended to cause such Ix)dily injury as was
likely to cause death. I do not think an intention of causing a less degree
of injury than that last mentioned can properly be attributed when such
an instrument as that described above was used, for any sane man would
know that in striking at another's head with such a weapon he was at least
likely to cause death.

I think, however, it would be going too far to hold that he must have
known that ho would probably cause death or vital injury, and to conclude
that he intended to cause bodily injury sufficient in the ordinary course of
nature to cause death. It is common knowledge that heads have stood
blows with far more formidable weapons than the one used in this case*

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Ill Shice I I la L^ V. Kiiuj-Emperor (3) I liavo set out (|iiotations from tho
works of learned medic^il authors showing how capricious injuries to the
liead arc in their after-effects and results. In the i)resent case the primarj'
result of the accused's hlow was only a slight fracture of the left tem[)oral
bone, but extravasation of blood on the Dura Mater, and compresf*ion of
tlie brain ensued, and the latter was the cause of death.

The case no doubt conies near the border line between the 3rd and
4th of the intentions I have referred to |)reviously, but under the circuiii-
stances I do not think the intention to be imputed to the accused should be
more than the less grave of tlie two.

1 AVould accordingly actjuit the accused of murder, reverse the sen-
tence for that offenc(», l)ut would find him guilty of culpable liomicide not
amounting to murder for that he culpably caused the death of Nga Aw by
an act done with the intention of causing such bodily injury as was likely
to cause death.

For this offence I would sentence the accused under the first part of
section 304 coupled with section 59 of the Indian Penal Code to transpor-
tation for 10 years.

Triein, J» — Appellant does not deny that he struck Xga Aw, nor does
lie deny that Nga Aw died from the effects of that blow, but he says he
had no intention to kill, he was instigated to the deed by Po Me and he
was drunk.

It does not a|)))ear that he was drunk and the point is of no im-
portance. There is no evidence that Po Me instigated him. Tlie learned
Sessions Judge has not found that appellant intended to cause death. He
found that the blow was struck with a i)iece of wood 20 inches long,
8 inches in circumference an<l weighing 78^ tolas. This finding is not
traverscnl in the appeal, and on the evidence I think it is a proper finding.
The learned Judge says that when a man hits another with such a
weapon he must be presumed to know that by such an act he is likely to
cau<e death ; and he goes on to say that the offence is therefore murder
unless it falls within any o£ the exceptions to section .*iO(). The geneml
])roposition that causing death by doing an act with the knowledge that
it is likely to cause death is murder unless it falls within some of the ex-
ceptions to section 300 is not tenable, as will be seen from a reference to
Mayne's Criminal Law, section 4:^0, in which the distinctions between
murder and culpable homicide not amountuig to murder, as laid down by
Sir Barnes Peacock in Queen v. Goravhand Gope (2) are set forth. But
the illustrations used by the learned Chief Judge in that c^se are entirely
cases of acts in which the offender had no intention of causing hurt, and

(3) (1003) 2 L. \\ R., 12.n

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which were criminal merely hy reason of rash or negligent disregard of
the safety of others. When death is caused by an act done with the in-
tention of causing bodily injury I think the words of clause (4) of section
300 •* knows that it is so imminently dangerous that it must in all pro-
bability cause * * * such bodily injury as is likely to cause death "
are quite as wide as the words of section 299 " with the knowledge that he
is likely by such act to cause death,' ' and I was therefore at first inclined
to think that the learned Sessions Judge's interpretation of the law in this
particular case was correct, but after considering Mr. Justice Fox's lucid
exposition of this very intricate part of the Penal C^ode I agree with him
that the last clause of section 300 must in every case be read as a whole
and that the reference to incurring risk indicates that it is not intended to
apply to any case in which death is caused by an act done with the inten-
tion of caiu^ing bodily injury to any particular person. This being so the
question whether Nga Shwe Ein's act is murder or not must be decided
on a consideration of the third clause of section 300. The blow was struck
with a piece of wood picked up on the spur of the moment, during a
heated altercation. The Sessions Judge has not found that appellant
intended to cause such bodily injury as is sufficient in the ordinary course
of nature to cause death, and under the circumstances such a finding
would hardly l)e justified. I agree with Mr. Justice Fox is finding that
api)ellant intended to cause su'?h injury as would be likely to cause
death, and I concur in the proposed alteration of the conviction and

(3 L, B. /?., 128,)

Sep. 28 [CRIMINAL APPEAL No. 531 of 1905.] 1905.

Present : — Mr. Justice Irwin.

SHWE KO and another v. EMPEROR.

AMHHlting proccMx-^frver when ej-ecnting a icamtnt — Penal (o(fe, s. 333 — in'odndion of
\cnrraHt in rridenee — Eridetn'c Act, 1872^ it. 91 — dttfi/ of Maghtratetf to tutceiiainfactt of case ^
Criminal Procedure Code, WJ8. »«. 344, .54fJ.

The accutsetl were convicted of as^ulting a process-server while executiug a warmnt issueJ
by a CTvil Court. The warrant was not prodiicetl before the Magistrate, and the Magistrate
ilid not re<iuirc its production.

Held—that the contents of the warmnt were an essential part of the case for the pio-
sccution, and that those contents can only be proved in the manner prescribed in section 91,
Evidence Act.

It is a Magistrate's business t«) fnul out the truth, and to supplement defects in the cum;
either of the prosecution or of the tlefence by using the jMJWers to postpone or adjourn pro-
uec<liugf<, and to summon material witnesses, which arc confen-ctl by sections 34 1 an^l 54U of
the Criminal Procedure Code*

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362 The Ckiminal Law Journal Reports. [Vol. Ill


Mr. Villa, for Appellant.

Incin, J, — The appellants have been convicted o£ aj^saultiiig a pro-
cess-server of the Small Cause Court of Rangoon in order to det^r hini
from discharging his duty. The duty was to arrest one Po Ka under a
warrant issued from the Court of Small Clauses. The warrant was not
produced, and there is no legal evidence of the contents of the warrant.
It appears from the judgment that the learned Advocate for the accused
pointed out this defect and argued that without production of the
warrant there could be no conviction. He also objected to the production
of the warrant " at this stage of the proceedings.'' There is nothing to
show what " this stage of the proceeding " means, but it must have been
at some time before judgment, and the objection was not one that should
Ix^ allowed.

It is true that the case for the prosecution should ordinarily be com-
plete before the accused is called on for his defence, but it is the Magis-
trate's business to find out the truth, and provision is made in section 540
for supplementing defects in either the prosecution or the defence. A
criminal trial before a Magistrate is not necessarily conducted by a pro-
secutor. Chapter XXI contains no provision corresponding to section 270
which applies to Sessions trials. The position of a Magistrate therefore
differs materially from that of a Sessions Judge, and he may oft^n have
to make much freer use of sections 540 and 344 than would be proper in
a Court of Session. The Police may make mistakes in preparing a case
for trial through imperfect acquaintiince with the law of evidence. It is
the Magistrate's duty as a rule to take the necessary steps to correct such
mistiikes. In the present case there were strong grounds for supposing
that a warrant of arrest of Po Ka was in existence, and even if the omis-
sion to produce it was noticed only at the conclusion of the defence the
Magistrate would have been justified in requiring its production then, and
even in adjourning the case if necessary in order that it might be produced.
The accused would then be entitled to be heard further.

The Magistrate ruled that it was not necessary to produce the warrant
at all. Here he was certainly wrong. The fact that the process-server
was attempting to discharge his duty as a public servant is an essential
part of the offence, and of that fact there is no legal evidence of any kind
on the record. Under sections 250 and 251 of the Civil Procedure Code
the warrant must be in writing, and therefore under section 91 of the
Evidence Act the fact that the warrant contained authority for Hari Pal
to arrest Po Ka cannot be proved except by production of the warrant or
by secondary evidence of its contents in case secondary evidence is ad-
missible. There are no circumstances appearing on the record which

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Vol. Ill] The Ckiminal Law Journal Reports. 363


would render secondary evidence admissible. The case of Chamier Coonuir
Sen V. Queen-Knipress (l^ is rightly relied on by appellants' Advocate as
showing the necessity of producing the warrant to prove its contents.

The evidence on the record, therefore, does not support the convic-
tion. I do not think it is expedient to take further evidence l>ecause I
think there is doubt about the identity of the offenders. The api>ellants
were arrested in the next house. There were several persons present
when the process-server was obstructed. The Magistrate does not seem
to have weighed the evidence for the defence properly. The mere fact
that accused were guests in Ma Shu's house is not sufficient reason for
saying that she is not an independent witness. The fact that Ma Shu is
Po Ka's sister-in-Law is irrelevant, as accused are merely acquaintances
of Po Ka. It is not necessary to assume that the Crown witnesses have in-
tentionally given false evidence. It may be a case of mistaken identity.

I therefore reverse the convictions and sentences, and acquit the
appellants, and direct that their baill)onds be cancelled.

(26 A. W.X,,9Lj


Feb. 24 [CRIMINAL REVISION No. 53 of 1906.] 1906.

Present : — Mr. Justice Aikman.


7V/w/ Otde (XLV of 1S60), m, 286 and 337—DefiHiturn^Caming hurt by m€ans of a gun
—Eeidence of Hegligence.

Held that the causing of hurt by iiegligeuce in the use of a gun would fall within the
purview of section 337 rather than of section 286 of the Indian Penal Code. But where all
the evidence against the accusetl was that he went out shooting in the month of July when
people were likely to be about in the fields and that a single pellet from his gun struck a man
who was sitting in a field, it was held that this was not sufficient evidence of rashness or
negligence to support a conviction under section 337 of the Code.

The facts of the case, so far as they are necessary for the i)urj>oses of
this report, appear from the judgment of the (Jourt.

Colvin^ for the applicant.

The Assistant Government Advocate (Porter)^ for the C'rowu.

Aikman^ J, — This is an application for the revision of an order of a
Magistrate of the first class convicting the applicant Abdus Sattar of an
ofEence punishable under section 2^^ of the Indian Penal Code and
sentencing him to pay a fine of Rs. 25. That section provides for the
punishment of any person who does any act with an explosive substance so

(1) (1809) 3 C.W.X., «<):,.

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rashly or negligently as to endanger human life or to he likely to cause
hurt or injury to any person, or who knowingly or negligently omits to
take such order with any exi)losivc suhstance in his possession as is suffi-
cient to guard against probable danger to human life from that substance.
It appears that the applicant was out shooting with some friends, and
that a pellet from his gun lodged in the thigh of one Birkhi who was at
work in the corner of his field. According to the evidence for the prosecu-
tion the accused at once went up and gave his name and address. In my
opinion section 28G was never intended to a[)ply to a case like this. The
learned Assistant Government Advocate contends that the case falls within
the purview of section 337, which provides punishment for any person who
causes hurt by doing any act so negligently or so rashly as to endanger
human life or the personal safety of others, and suggests that the finding
should be altered to one under that section. T think that if any section
in the Indian Penal Code were applicable to the facts of the present case
it would be section 337. But in my judgment to sustain a conviction
under that section it is necessary for the prosecution to prove affirmatively

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 67 of 91)