Gyarsibai v. The State [1953 M.B.]

The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14-8-1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7years, 5years and 1½ years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai's harassment.

The facts have been amply established by the prosecution evidence.

On these facts the only question that arises for consideration is whether act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses. 1, 2 and 3 of Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300, Penal Code, which then remains for consideration, is the 4th clause. This clause says:

If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability cause death, then the act is not murder as is defined in clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed "without any excuse for incurring the risk of causing death or such bodily injury". The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was "without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in clause 4 of Section 300, Penal Code.

Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any knowledge of the nature of her act.

Every sane person – and in this case we are bound to take it that the appellant was sane – is presumed to have some knowledge of the nature of his act. This knowledge is not negative by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and her sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant's act of jumping into a well with her children.

The words used in clause 4 to Section 300, Penal Code are “without any excuse for incurring the risk of causing death or such injury as aforesaid”. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death. Here there is no material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant's act is clearly murder under clause 4 of Section 300, Penal Code.

But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law's attitude towards her.

As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into a well, she did so in a conscious effort to take her own life.

The appellant has been sentenced to transportation for life under Section 302, Penal Code. This is the only sentence which could legally be passed in this case. But having regard to the facts and circumstances of the case and also to the fact that the appellant, though not legally insane, was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to Government to commute the sentence of transportation for life to one of three years’ rigorous imprisonment. The sentence of six months' simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate.