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JUDGMENT Davies, J.
1. Upon the further evidence given by the District Medical Officer, Dr. Lancaster, who was present at the post mortem, we have no reason to doubt that the death of Kalan was due to the injuries done to his testicles, and not to disease or other cause. And the evidence, as well as the admissions of his wife, Kaliyani, the prisoner, make it clear that it was she who caused those injuries by squeezing the testicles with her hand.
2. But in convicting her of murder and sentencing her to death, the Sessions Judge has not sufficiently taken into consideration whether the woman could have been aware that her act would in all probability lead to a fatal result, and so intended it.
3. The gripping and squeezing of the testicles is well known to be a very common form of assault in this country among the lower classes of the people, but in a lengthened experience of twenty-seven years as a Magistrate and Judge, I have never heard until now of a single case in which that particular form of assault, unattended by other violence, has proved fatal. And in the various works on Medical Jurisprudence that I have consulted, I have been able to find only one reported case of the kind. The case of Moobrack in 1845 (vide page 479 of Chevers' medical Jurisprudence). How then can we rightly attribute to this woman a knowledge that by her act--one so frequently committed among people of her class without ill effects--she would cause death or even be likely to cause it? In my opinion, it is impossible to hold her responsible for so unforeseen a result, and I would acquit her altogether of any charge of culpable homicide.
4. The next question is whether she ought to be found guilty of causing hurt or grievous hart. The only kind of grievous hurt that she might have intended to cause was emasculation, but that, like causing death is not shown to be at all a probable result of squeezing the testes merely by the hand, and therefore it cannot be taken that she contemplated it.
5. The fact is that she and her husband were having a fight, in the course of which she attacked him in the way stated. That has been her account from the beginning, and here again it seems to me the Sessions Judge has done her scant justice in not giving some weight to the provocation she undoubtedly received. Her husband was ill and was trouble some in consequence. She tried to keep him quiet by pushing him down. He bit the little finger of her right hand, and they fell together by a raggi stone where a knife lay. Her husband seized this knife and made a dash at her throat with it. She then proceeded to maul him in the way described while he tore at her hair, and it was in this encounter that they were seen by the two eye-witnesses and separated. The rest of the woman's story is well corroborated by the eyewitnesses and the medical evidence. The second witness, Aaron, admits that the woman complained to him that her thumb (it really was the little finger) had been bitten, and, though he professes to have seen no marks of the bite, the Hospital Assistant did find marks on her little finger which he says may have been caused by a bite. The third witness, Karuppan, further states that the woman told him that her husband had cut her with a knife on the throat and that he saw a slight mark there which was bleeding--and the Hospital Assistant, who saw this mark also, says it may have been inflicted with a knife. There was, in fact, a knife lying at the spot, which the prisoner at once pointed out as the knife that had been used. Though the Hospital Assistant is of opinion that the wound on the neck was self-inflicted, because it was 'fine,' his opinion is entitled to no weight in the face of the fact, that the wound was seen in existence by the third witness at the termination of the fight before there was time for concoction, and after the fight the woman was kept under guard and had no opportunity to cause the wound without being detected. So that I am satisfied that the woman's story is substantially true.
6. The only point remaining is whether in the circumstances she was justified in using the violence she did to her husband. The effect of that violence, according to the evidence of Dr. Lancaster, was much bruising of the glands and their reduction to a pulpy condition. Considering that her husband was admittedly in an enfeebled condition and not fit to move about according to the prisoner's own statement, that she appears to have commenced the assault, and that the injuries she received were trifling and her husband was not strong enough to do her any serious harm, I consider that she was not entitled to resort to the extreme measure she adopted to defend herself from his feeble attacks--she being as described a woman of strong physique. Whatever provocation she received from her husband, she appears to have brought upon herself by a too hasty temper (I am taking her own account, the only one we have of the origin of the quarrel) and that provocation was not really grave enough to excuse her in inflicting what must have been the most excruciating pain upon a man already suffering from severe sickness. I would, therefore, find her guilty of the offence of voluntarily causing hurt under Section 323 of the Penal Code and sentence her to six months' rigorous imprisonment, to count from this date. The maximum sentence for the offence is one year and she has already been in jail for more than four months.
7. In this case a woman named Kaliyani has been convicted of having murdered her husband, Kalan, and has been condemned to death.
8. The facts of the case are briefly as follows:
Kalan was a postal runner, and lived with his wife, the accused, on the Coffee Estate of Mr. Beaver at Kollakombe. The wife worked as a cooly on the estate. On the 22nd of February last Kalan was seized with violent vomiting and purging which continued up to the 28th February. At 6 A.M. on that day Aaron, the second witness, who lives within five or six yards of Kalan's house, and who is both a school master and a writer on the estate, heard Kalan cry out "Ey-Eyoh, she is biting my testicles," and on running to Kalan's hut, saw him lying at the entrance on his back. The accused was sitting on Kalan's chest, holding his throat with her right hand and twisting and pulling his testicles with her left hand. Her hair was waving in Kalan's face, and he was pulling it and crying out "Ey-Eyoh!" Aaron called on her three times to let go her hold of her husband's testicles, but she would not. He then threatened to send in the Pariah, Karuppan, (third witness) who had come with him and finally did send him to the door, whereupon she loosed her hold. Kalan then stood up, with difficulty, and reached the door, where he fell down with a cry of pain, pointing to his testicles and saying "See, sir, she has bitten me." This is the account given by Aaron. He looked at the testicles and noticed some bleeding. Substantially the same account of the occurrence is given by the cooly, Karuppan, (third witness) who ran to the spot at the same time with Aaron, but he denies that Kalan said his testicles were bitten. He says that the words used by Kalan were "Sir, she had seized and twisted the testicles: they are paining and wounded: bring some water that I may pour it on the wound." Aaron adds that he asked the accused what was the cause of the quarrel, and she replied "Look at my thumb: he has bitten me." He looked at her thumb, but could not notice any mark of a bite on it, or any injuries on the woman. Aaron then ordered Karuppan to keep watch over Kalan and his wife, and he himself went to call the roll on the estate. After he had gone, Karuppan asked Kaliyani why she had acted in this way to her husband, who was already sick, and she replied "Sir, he came to cut me with a knife: it is true I twisted his testicles," and she pointed to the front part of her throat where there was a slight slit, which was slightly bleeding. She also showed a knife near the door with which she said that Kalan came to stab her. After rollcall Aaron told Mr. Beaver what had happened, and they then, at 8 A.M., went to Kalan's hut. Mr. Beaver found him in a very weak state. Kalan told him that "his wife had assaulted him grievously that morning--sitting on his chest and strangling him with one hand, and subsequently biting him on his testicles." Mr. Beaver asked the accused if she had done so, and she said that she had pinched but not bitten them. Mr. Beaver asked Kalan the reason of the assault, and he said that, being very cold in the morning, he asked his wife to make a tire for him, whereupon she got in a great temper and assaulted him as above described. The accused did not say to Mr. Beaver that she had been assaulted by her husband, and made no complaint of ill-treatment by him, and, though present when Kalan told his story, made no objection to it except by denying that she took certain money. Mr. Beaver thought that Kalan was dying, and, knowing that he had saved money, asked him if he wished him to take charge of it. Kalan said that he had Rs. 300 in two tins in the house. They searched for it, but could not find it. Kalan then accused his wife for having made away with it, but she emphatically denied knowing anything about it. Kalan was then removed to the Post office and died the same morning at 11-30 o'clock. Karuppan was left in charge of the accused at Kalan's hut. About noon she asked leave to go and case herself, and, on her return, she showed Karuppan two tins of rupees saying, "This is the money we have earned: I have got it with me." The tins contained over Rs. 200, and were made over to the Magistrate who arrived soon afterwards, Kalan's body was taken to Coonoor, and a post mortem examination was made by the Hospital Assistant and Surgeon-Lieutenant-Colonel, Lancaster, the District Medical Officer of the Nilgiris. Only the former was examined at the trial before the Sessions Court, but, after the case was referred to this Court, we desired the Sessions Judge to obtain the evidence of Dr. Lancaster also. It shows that there was a wound on the front part of the scrotum, probably produced by a wrench or twist. There were no marks of any teeth on the scrotum, but the wound was covered with dried blood. On opening the scrotum, the testicles, or glands proper were found to be "very much bruised and reduced to a pulpy condition." There was no apparent disease of the testicles. Their condition was due not to disease but to injury, and Dr. Lancaster considered that a prolonged severe squeeze of the testicles, even with the left hand of the accused, would have been sufficient to produce the appearances which he saw at the post mortem. He considered that the injury to the testicles was the cause of Kalan's death, and added that, even if the man had been in sound health, the injury would have caused his death. The Hospital Assistant says that the testicles were "almost absolute pulp. No solid parts remained," and was positive that shock from injury to the testicles was the sole cause of death.
9. Such is the evidence for the prosecution. The accused called no witnesses for her defence, but it is now necessary to examine her various statements. Those made to the witnesses have been already noticed. On the 28th February, just after Kalan's death, she was examined by the Magistrate, and she then stated that Kalan was leaning against the wall and she hit him on the shoulder to make him lie down. She adds, "He bit the last finger of my right hand on account of anger. I pressed and seized his cheek, mouth, asking him to let off my hand. As soon as I seized his mouth he seized the hair of my head with his right hand, sat down and pushed me down. I had placed the knife now shown me on the ragi stone. He took that knife and wounded me in the neck. I felt, saying 'he cuts the neck.' Nothing was got. His testicle's came in contact with my hand. I pinched the testicles with my nail and pulled." On the 25th March she again made a statement to the Magistrate. In it she said nothing about having hit her husband, but stated that he fell more than once in the fire, and that, on her picking him up a second time, he bit her little finger, and she then details the quarrel in much the same language as before. Her statement at the trial was to the same effect.
10. As to the character of the offence committed by the accused, it must be determined mainly by reference to her intention and the knowledge which she had as to the probable effect of her violence. The Sessions Judge has found her guilty of murder, being of opinion that "the horrible nature of the injury (having regard especially to the relationship of the parties), and the persistent force which must have been used, point clearly to an intention to cause death." He also thought that some weight should be given to the fact that Kalan, after having eaten of food prepared by the accused on the 22nd February, at once showed signs of having been poisoned, and to the fact that traces of arsenic were found in his stomach and kidneys and liver after death. Apparently the suggestion is that the accused intended to poison Kalan, and that it is therefore to be inferred that she intended to kill him when she grievously assaulted him. On this point I think the Judge is in error. The accused was not charged with having given poison to her husband, and had no opportunity of meeting the suggestion or of explaining the symptoms indicative of poison. It may be that the deceased was taking some native medicine in which, as is well known, arsenic often forms an ingredient. No doubt Aaron says that Kalan refused medical aid, and seemed to think that his wife was killing him, and it may be that enquiry would elicit sufficient grounds for charging Kaliyani with having attempted to poison him. But for the purpose of the present trial, I think the indications of poisoning should be put aside altogether, for the reasons already stated, and the intention and knowledge of the accused should be gathered from the other facts and probabilities of the case.
11. I agree with the Sessions Judge in finding that the accused's version of the affair, viz., that she acted in self-defence when her husband pushed her down and attempted to cut her throat with a knife, cannot for a moment be accepted. It is to be observed that she said nothing about the knife to Aaron when he questioned her as to the cause of the quarrel, but drew his attention to an alleged bite on her thumb, of which, however, Aaron could find no trace. It was not until after Aaron had gone away that she apparently saw a knife lying by the ragi stone, and then told Karuppan that the deceased had come to cut her with the knife, and pointed to a slight bleeding scratch on the front of her throat. The nature of this injury is accurately stated in the certificate and evidence of the Hospital Assistant who examined the woman. In his certificate he describes it as consisting of "six very fine linear scratches in front of the throat, 1¼ inches long, but very superficial, and another linear scratch below it," and he gives a diagram of the injury thus-
___________________ ___________________ ___________________ ___________________ ___________________ ___________________ In front of throat.
12. In his evidence the Hospital Assistant described them as "like thread marks," and he saw no blood on them. I examined the knife in Court and found the edge smooth and incapable of inflicting such a wound, apart from the extreme improbability of an angry man being able to do so much, and no more, when armed with a knife and engaged in a deadly struggle with a woman. I have no doubt at all but that these scratches were inflicted with the human nail, rough and serrated as it would probably be in the case of persons of the accused's rank in life. They may have been self-inflicted as the Hospital Assistant thought, or they may, as I think is more probable, have been inflicted by Kalan in struggling with the woman. It is to be observed that the accused said nothing about the knife when Mr. Beaver questioned her as to the case of the quarrel. Mr. Beaver understands Canarese, the language of the parties, well, and spoke to them in that language. He was the employer of the accused, and she would certainly have told him if she had any such justification for her assault. She not only made no such plea, but did not deny the version given in her presence by Kalan, viz., that when he asked her to make a fire she got in a great temper and assaulted him in the manner stated. Lastly, I observe that she makes no reference to the knife in the account of the occurrence given in her appeal memorandum. I conclude then that the allegation regarding the knife is wholly false. As to the minor injuries, she complains of having been bitten by the deceased, but Aaron did not see any injury on her. She made no complaint of injury to Mr. Beaver, and the Hospital Assistant describes the so-called bite as "three small bruises on the little finger," which he thinks might have been a bite, or might have been caused in the struggle. The bruises, however caused, were quite trifling injuries, and could form no justification for the grievous assault committed by her. There is, apparently, no reason to doubt the truth of the statement made by the deceased to Mr. Beaver that when he asked the" accused to light the fire for him she got into a great temper and assaulted him. The reason for the assault no doubt seems hardly sufficient, but I think it probable that she was angry with him for his intention of sending away his money to his village instead of giving it to her. He seems to have known that he was going to die, and he asked Aaron on the previous evening to send the money to his village by Post office order. The accused's statements show that she claimed the money jointly with her husband, and was only prepared to let his brother have a little of it as a matter of grace. Even on the morning of the assault, and before Kalan's death, she had made away with the money, though protesting that she knew nothing about it. Throughout her statements the money has occupied a most prominent place. It may well have occurred to her that if her husband should die, she would be able to secure all the money, instead of allowing it to be sent away to Kalan's village in Mysore. However that may be, it is certain that in the quarrel with Kalan she resorted to a form of attack not very uncommon among women of her class, and did so with such force and persistence that she reduced the man's testicles to pulp and killed him by the shock thus given to the nervous system. If she was then thinking of the money, and intended to kill the man or knew that death would most probably result from the act, she would be undoubtedly guilty of murder. It was, however, suggested that this form of attack is so common and so rarely fatal that she could have had no such intention or knowledge and ought to be found guilty only of having voluntarily caused hurt. Norman Chevers, however, says that this form of assault is "extremely liable to prove fatal" (Medical Jurisprudence, p. 478, Ed. of 1870), and Surgeon-Lieutenant-Colonel Lancaster says that the injuries would have proved fatal even "if the man had been in sound health." I think, too, that great weight must be given to the fact that the man was then in an extremely weak condition, having been vomiting and purging continuously for six days. All this was well known to the accused. He was so weak, as she herself says, that he fell several times that morning when trying to move about before the assault. When the woman seized his testicles she must have done so because she knew that they were a vulnerable part where she could cause him the maximum of pain, and when she continued to squeeze and pull and twist them, notwithstanding his cries, and notwithstanding the interference of Aaron and Karuppan, it seems difficult to say that she did not intend to cause his death or know that she was likely to do so. Looking, however, to the ignorance of women of her class, and to their indifference to physical pain, I am disposed to give her the benefit of the doubt, and to acquit her on the graver charge of murder. She may, perhaps, not have intended to kill her husband, or have known that death would most probably result from her assault. She must, however, in my opinion, have known that death would be a probable, if not the most probable, result of her act. She was, therefore, in my judgment, guilty, at the least, of culpable homicide not amounting to murder. I would alter the conviction accordingly, and, looking to all the facts of the case, I would sentence her to seven years' rigorous imprisonment.
13. In consequence of the difference of opinion between their Lordships the Honourable Mr. Justice Davies and the Honourable Mr. Justice Benson, the case was referred to a Third Judge, the Honourable Mr. Justice Subeamania Ayyar, as provided by Sections 378 and 429 of the Criminal Procedure Code.
Subramania Ayyar, J.
14. The facts of the case have been so fully referred to by my learned colleagues that it is unnecessary for me to repeat them. It is indisputably established that Kalan died in consequence of the injuries inflicted upon him by his wife, the accused, on the 28th February last. As to the charge of murder as well as the question whether the accused intended to cause Kalan's death, my learned colleagues are agreed that the finding should be in her favour. Though my mind is not quite free from doubt on the point, yet I assume that the unanimous conclusion arrived at by my colleagues is binding upon me. Even if it were otherwise, considering that the circumstances which chiefly create the doubt in my mind, viz., the fact that the violent vomiting and purging from which the deceased suffered for several days commenced shortly after he took the food given to him by the accused on the 22nd February, his belief that he was poisoned and lastly the discovery of traces of arsenic in his stomach, kidney and liver, were in the course of the preliminary enquiry and the trial not directly brought forward by the prosecution, as they ought to have been, so as to give the accused a full and proper opportunity of meeting them, I feel I cannot but, particularly at this very later stage of the case, leave those circumstances entirely out of my consideration. The chief question is what offence then did the accused's act amount to? In determining this question it is necessary to bear in mind the nature and extent of the injuries, together with the circumstances in which they were inflicted, and the knowledge to be attributed to the accused with reference to the consequences likely to flow from such injuries, according to general experience. Now at the time the deceased was attacked by the accused he was, she well knew in an extremely weak state of health, since he had been suffering from violent vomiting and purging continuously from the 22nd up to the date of the offence. The evidence shows that he was scarcely able to move about. In this very enfeebled condition he was found on the morning of the day of his death stretched on the ground, with the accused, a woman of strong physique, sitting on his chest, pressing his throat with one hand and twisting his testicles with the other. The witnesses, Aaron and Karuppan, who came to the spot in consequence of the cries of the deceased, asked her to desist, but she would not and did not stop the twisting until Karuppan went in for the purpose of preventing further injury. That the pulling and wrenching by the accused must have been attended with considerable force and persisted, in for a comparatively longtime is manifest from the almost absolutely pulpy condition in which the medical witnesses found the parts injured. In acting so as to produce such an extraordinary result, can it be reasonably said that the accused did not know she, was likely to cause the death of her husband? The argument on her behalf is that, similar assaults are frequent in this country, but yet they rarely, if at all, prove fatal, and therefore a knowledge that death will; probably result from such injuries ought not to be attributed to the accused. I am unable to accede to this argument, for it is impossible to deny, as pointed out by Dr. Chevers in his work on Medical Jurisprudence, that this form of assault is extremely liable to prove fatal. That such assaults have resulted in death is shown by the cases referred to in the work above cited and by others which have come to my notice. One specific recent instance which I have been able to trace is Criminal Appeal No. 391 of 1893, and curiously enough it came from the very district in which the present case happened. There the body of the deceased bore marks of violence on the throat and the scrotum, which latter was swollen to the size of a cocoanut. The Hospital Assistant, who conducted the post-mortem examination, thought that the immediate cause of death was strangulation, but he added that the swelling in the scrotum should have resulted from squeezing, which was enough to have caused death independently of any other violence. The first accused in the case who, the evidence showed, must have had a share in the infliction of the injury was convicted of murder by the Sessions Judge. On appeal, the learned Chief Justice and Shephard, J., upheld the conviction, observing that the medical evidence showed that the man, in all probability, died of injury to the scrotum. I should also not omit to remark that the knowledge that injuries like those in question are highly dangerous to life is not confined to medical men, since the same is shared widely by other people as well. I doubt whether any person of ordinary sense and understanding, even among the lower orders in this country, is really ignorant that violent blows or kicks administered on the parts in question might and would probably result in death.
15. In these circumstances, it seems to me unsafe to hold that a person who so effectually destroys the delicate parts of a man's body, as the accused did here, does nothing more than what in law would amount to hurt. There may be cases in which the Courts would be bound to say that a person who inflicts such injury should be taken to have known that death would be the most probable consequence. In such cases the act may amount to murder. Here I certainly think that the accused should be held to have known that death would at all events be a probable, if not the most probable, consequence, and I have, therefore, no hesitation in agreeing with Benson, J, that she should be found guilty of culpable homicide not amounting to murder.
16. Next as to the question of sentence. Here also I am unable to take a lenient view of the case against the accused. No doubt her story that she was acting in self-defence was put forward from the very commencement. But the different versions given by her from time to time as to what is said to have taken place are, in some very material respects, contradictory. The most important of her allegations, viz., that the deceased attacked her with a knife and hurt her, I totally disbelieve, and I think that the superficial scratches found on her throat and said to have been caused by the knife were, probably, as surmised by Benson, J., produced by the deceased's nails in the course of the struggle. The probable explanation for the slight wound on one of her fingers is perhaps similar. And, considering the extremely poor condition in which the deceased was on the 28th in consequence of his prolonged and exhausting illness, it is difficult to suppose he could have then done anything so as to produce on her mind the apprehension that he was about to do serious harm to her parson. What, in truth, displeased and prompted her to attack the deceased appears to have been the direction given by him on the 27th to one of the witnesses in the case to send away to his (the deceased's) brother the cash in the house amounting to over Rs. 200. This direction the accused seems to have much resented and the fact that, before she attacked him, she had without his knowledge taken possession of the money and secreted it, suggests that her brutal treatment of the man was not altogether really due to any grave provocation given by him at the time of the attack. In these circumstances, any punishment less than that proposed by BENSON, 0., would, ill my opinion, be inadequate.