JUDGMENT Cecil Henry Walsh, Acting C.J. 1. This is an appeal by Government against an acquittal. The charge is u/s 302, but the Government Advocate asked us only for a conviction under s 304. The case belongs to that class in which parents, or persons in loco parentis, are charged in a Criminal Court with causing the death of their child, or of the child committed to their charge, not by one act, about which there can be no question, either as to the factum or as to its legal character, but by a series of acts, or rather by a continued course of treatment, mainly hidden from the outside world, culminating in a final act which did in fact produce death, because the victim had already, by the previous course of conduct, been reduced to a condition of health which predisposed her to collapse and rendered her unable to resist the culminating act as a normally healthy child might have done. 2. The case appears to me to raise a question of grave public importance, particularly in view of the treatment to which women generally, and particularly young girls, and old widows, are too often submitted in this country. It has led to unfortunate differences of opinion between the various legal Tribunals, the evidence, which is voluminous, being partly direct and partly circumstantial. 3. The Committing Magistrate took the view that the death of Musammat Shakuran, a poor and helpless girl, was due to the merciless acts and omission of the two accused in whose care and custody she was for six months, which finally resulted in her death", and he committed both the accused to Sessions u/s 304. I agree with this view, which seems to me the most merciful one open to us. What mean is that I think the facts would support a. conviction u/s 302. 4. The Sessions Judge himself amended the charge to one u/s 302, and then acquitted the accused of everything. He does not appear to have considered any al tern active case, either u/s 304, or u/s 323, or to have invited the opinion of the Assessors upon either of these alternative cases. 4. The Sessions Judge himself amended the charge to one u/s 302, and then acquitted the accused of everything. He does not appear to have considered any al tern active case, either u/s 304, or u/s 323, or to have invited the opinion of the Assessors upon either of these alternative cases. As he held the accused to be morally responsible for the ill-health of the girl, which the medical evidence proves to have accelerated her death, or to have predisposed her to succumb to the beating, I am unable to follow his reasoning, and I think it right to say that I deprecate a Judge enlarging the charge, and then acquitting, without considering the alternative minor charge upon which the accused has been properly committed, when the facts in both cases are the same. 5. Unfortunately a difficulty has arisen in the course of the hearing this appeal, inas much as while my brother is prepared on the evidence to convict only u/s 323, I am of opinion that a charge u/s 304 is clearly made out, and that a conviction u/s 302 would not be wrong. 6. The history of the case is painfully clear. The deceased was 14. She went to live with her husband, and with her husband's parents, the two accused. When she left her home, she was according to her father Kallu, as well as to the overwhelming evidence of the accused's neighbours, in good health. She showed no signs of organic disease. She had no fits. The evidence of the neighbours is overwhelming that she was starved, ill-treated and overworked. Ismail, P.W. No. 3, says: "she was fat and fresh", and became rather weak". Musammat Bhuria says: "she was well and strong", and "that her physical state has deteriorated". It is superfluous to recite the details of this evidence. The following witnesses speak either to isolated acts of violence, or to constant violence: Ismail P.W. No. 3, Musammat Bhuria P.W. No. 4, Musammat Sukhdei P.W. No. 6, Musammat Alladia P.W. No. 7, Hakimullah P.W. No. 16, Niadar P.W. No. 17. It is superfluous to recite the details of this evidence. The following witnesses speak either to isolated acts of violence, or to constant violence: Ismail P.W. No. 3, Musammat Bhuria P.W. No. 4, Musammat Sukhdei P.W. No. 6, Musammat Alladia P.W. No. 7, Hakimullah P.W. No. 16, Niadar P.W. No. 17. The following speak to the steady decline in her appearance of health, and strength: The father Kallu P.W. No. 1, Ismail P.W. No. 3, Musammat Bhuria P.W. No. 4, Musammat Zamurrud, P.W. No. 5, Rahmatullah P.W. No. 14, Niadar P.W. No. 17, and Nanwan P.W. No. 18, It would be difficult to find a more convincing body of evidence, if trustworthy, and while it corresponds generally, it is by no means a series of repetitions suggesting an artificial creation of deliberate invention. The witnesses are said to be hostile to the accused, and I am prepared to assume that they are. This line of attack is often pushed beyond the limits of reason within which scepticism ought to be restrained. There is no reason why the credit due to the prosecution witnesses should be con-lined to those who are friends of the accused or indifferent, and if this class of case is ever true, witnesses to the truth, if they are possessed of ordinary humanity, can with difficulty restrain their indignation and hostility. 7. The deceased's father had provided her with ten suits of clothing, but Musammat Bhuria says that she had ''no cold weather clothes, that she was kept with taklif as to food and clothes, and wore dirty clothes which she brought from home". Musammat Zamurrud says: "when the girl came from Delhi she was fat, but before she died she was reduced. She was ill-treated by the woman who kept her short of food and clothes. She had to do all the work which is done by several". 8. The evidence is also overwhelming that the accused were conscious of this inhuman state of things. Muhammad Jan, the brother, who went twice to try and see the girl and bring her home, was refused access to her by the accused. The first time he went he was allowed to see her, after Ismail and several others had interceded. He was not allowed to talk with her. He found the deceased healthy enough. The second time, two months later, he was not allowed to see her. The first time he went he was allowed to see her, after Ismail and several others had interceded. He was not allowed to talk with her. He found the deceased healthy enough. The second time, two months later, he was not allowed to see her. This incident is confirmed by the Kotwal a witness who had accepted the defence of the accused and was certainly not unfriendly to the accused. It is not unlikely that he thought they were acting within their rights. The day before her death the deceased was beaten once for a fault about spilling oil, and according to the view of the Judge, almost certainly twice. She stood meekly still and did not runaway. I infer from this that she had been reduced to complete submission and defenselessness. Most of the witnesses called, who were neighbours, say that they expostulated in vain and were told to go away and mind their own business. 9. The beating or beatings took place shortly before death. There was nothing in the beating to cause death, except from shock to an enfeebled system. The Civil Surgeon says that death was due to shock from several blows on an ill-nourished girl suffering from chronic liver disease. After death the lungs were found congested and chronically inflamed, and the abdominal wall was very thin and showed hardly any fat. He says that the condition of the body might have been caused by starvation, exposure and overwork. In my view there is nothing else in the case to account for it. There is not a shred of evidence to suggest that the girl was wasting before she left home; or that she had already began to suffer from neglect; or that the six months spent with her mother-in-law were merely the progressive development of an earlier cause. The direct evidence is entirely inconsistent with this theory. The Doctor, it is true, agreed that it might have had a longer history then six months.' Of course it might. How could he say less? The duration of symptoms of such a character must depend on the rapidity with which the cause operates, and on the degree of the neglect and violence which set them up. The medical evidence is in no way inconsistent with the history given by the witnesses, and strongly supports it. How could he say less? The duration of symptoms of such a character must depend on the rapidity with which the cause operates, and on the degree of the neglect and violence which set them up. The medical evidence is in no way inconsistent with the history given by the witnesses, and strongly supports it. The accused did their best by burying the body and by other means to conceal the cause of death from the father and to propagate in the village and to the Kotwal a false account. The man denied any beating and alleged epilepsy. At the trial both made the false and ludicrous suggestion that the deceased was epileptic and met her death by falling down stairs, and they called witnesses to support this cock and bull story. The wife denies the beating. The evidence that this denial is untrue, is overwhelming. But curiously enough the Judge seems to think that there was another beating just before the death, and that the one which the witnesses speak of, was pot sufficient to cause the death, and does not correspond with the Doctor's post mortem observations. 10. The Judge holds the accused morally responsible for the ill-health of the girl and probably for her death. I agree with this finding, except that, in my opinion, the medical evidence makes them certainly, and not merely probably, responsible for the death. 11. I am, therefore, convinced beyond doubt that a case is in fact established against the accused of having submitted an infant girl, for whose support they were responsible, to a continuous, and severe course of ill-treatment and starvation, which could only have one end if persisted in, and would certainly have terminated in her death from natural causes if they had not accelerated it by beating her. They must be taken to have seen and known that they were jeopardizing her life by their calculated neglect, as well as by their active brutality and violence to her young and feeble frame. I cannot accept the view that on such facts, the only crime committed under the Indian Penal Code is an assault u/s 323. They must be taken to have seen and known that they were jeopardizing her life by their calculated neglect, as well as by their active brutality and violence to her young and feeble frame. I cannot accept the view that on such facts, the only crime committed under the Indian Penal Code is an assault u/s 323. By Section 32 an omission is just as illegal as an act, and the combind causes which were responsible for the death in this case, appear to me to be covered, if legislative enactment is necessary to make their criminal effect intelligible, by Section 36 of the Indian Penal Code with the illustration given thereunder. The combined effect of these to sections and the definition of culpable homicide u/s 299, seem to me to cover this case. 12. There is abundant evidence of motive in the way of pecuniary gain. There is always some pecuniary gain to a parent who starves her child and allows it to die of neglect. Negligence in the view of the law is frequently only economy carried beyond legal limits to the stage when risk to others is incurred. But the annals of crime show that this class of torture of defence less children is by no means confined to the poor, or to those who have some paltry pecuniary profit to make out of it. It manifests itself particularly in some women who suffer from a kind of hate-hunger. There is no half-way house. A woman either loves and nurtures a child, or she does neither, and the present case presents all the features of an unreasoning and callous brutality pushed to a degree which could only end either in slow decay or death from excessive violence. 13. I would convict both accused u/s 304 and sentence each of them to transportation for life: 14. Alternatively I would agree to the conviction and punishment decided by my brother. Ryves, J. 15. Chanda, an oil-man residing in the City of Meerut and his wife Musammat Ramzano were committed to the Court of Sessions at Meerut charged of an offence u/s 304 of the Indian Penal Code. The learned Sessions Judge amended this charge by charging the accused of murder u/s 302 instead of Section 304. At the end of a careful trial he in concurrence with the three Assessors found the accused not guilty and ordered their acquittal. The learned Sessions Judge amended this charge by charging the accused of murder u/s 302 instead of Section 304. At the end of a careful trial he in concurrence with the three Assessors found the accused not guilty and ordered their acquittal. He added that he was satisfied that both the accused were "morally responsible for the ill-health of the girl and probably for her death." Government has appealed from this order of acquittal, and we have heard the learned Government Advocate on behalf of the Crown and Mr. Ram Nama Prasad for the accused. 16. Up to a point there can be no dispute as to the facts. The accused appear to have been considered well-to-do in comparison with their neighbours. They had a son Majid, who as is usual among such people was married while still a child to Musafii-mat Shakuran, the daugther of a caste-fellow named Kallu, a resident of Delhi; At the time of the marriage Chanda executed, two documents and gave them to Kallu. One was a deed of dower promising to pay. Musammat Shakuran Rs. 1,000, the other was an agreement binding himself to pay Musammat Shakuran Rs. 5 a month, pocket money, until her husband was able to support her. The marriage is said to have taken place some four years ago, and a day or two after the marriage the girl went back to live with her parents in Delhi. Some five or six months before the girl's death, which occurred on the 17th of January' 1924, that is somewhere about July 1923, the girl came to live with her husband in his parents' house. There seems to be no doubt that from the time of her arrival she was treated very harshly by her husband's parents. 17. There can, I think, be no doubt that she was not properly fed or properly clothed or looked after with any maternal care but was treated simply as a drudge, and was frequently physically ill-treated. The father-in-law was most anxious to get out of his promise to pay the dower. In August he actually had a document registered which at any rate, purported to have been executed by Musammat Shakuran renouncing her claim to dower. In this document she was described as 22 years of age. The father-in-law was most anxious to get out of his promise to pay the dower. In August he actually had a document registered which at any rate, purported to have been executed by Musammat Shakuran renouncing her claim to dower. In this document she was described as 22 years of age. The document was registered and I cannot help thinking that the Sub-Registrar must have been deceived about the identity of the girl, because it is hard to believe from the Doctor's evidence as to the appearance of the girl, that if she herself was produced before the Registrar he could have been satisfied that she was of age. There is, however, no evidence that the document was executed by the girl herself. Muhammad Afzal Khan who wrote it says that some persons came to him to get it written, whom he did not know and whom he cannot identify, that having written it he read it over to the woman who was in a dooli and her thumb mark was taken. Ilahi Baksh witnessed the document. What he says is that: "it was written on behalf of Shaukuran, but not in my presence. Chanda the accused brought it to me saying his daughter-in-law had renounced her dower. I signed it at my shop. The woman did not come. I went to the kutcherry. Chanda had a dooli with him. We come to the Sub-Registrar's office and I identified the woman. 1 had seen her at Chanda's house 8 or 10 days before. I thought her age was 16 or 17". 18. This is the only evidence to connect Musammat Shakuran with the document and if it were necessary to find as a fact that she had in fact executed the document, I should have difficulty in holding it proved, f do not, however, think the point is really very material. She may have been coerced or cajoled into executing this document and admitting it before the Sub-Registrar. This was in August. It appears that Kallu, the father of the girl, made two or three attempts to get the girl back, but neither he nor his son were allowed to talk to the girl and were only permitted to see her on one occasion owing to the remonstrance of the neighbours. This was in August. It appears that Kallu, the father of the girl, made two or three attempts to get the girl back, but neither he nor his son were allowed to talk to the girl and were only permitted to see her on one occasion owing to the remonstrance of the neighbours. Chanda said that he was afraid that Kallu might take the girl away and he was unwilling that she should leave the house until all claim to her dower was given up. 19. We now come to the 16th of January. On that day it appeals that Musammat Shakuran spilt some oil and that her mother-in-law, infuriated by the loss of perhaps a pice worth of oil, seized a stick, which is described by one witness as a yard long and as thick as one's thumb, (another witness describes it by saying the slick was as thick as a thumb and was a. twig from a tree) and beat her with it about the head and shoulders and back. There can be no doubt that this was a severe beating, so much as, that the neighbours expostulated. Next morning Rahmat Ullah, a neighbour, whose house is just across the lane says that he saw the girl at 6 A.M. doing her ordinary work, that is to say, she was carrying cowdung cakes to the zanana. This shows, as the Judge points out, that the beating on the day before at any rate was not severe enough to incapacitate her. About 8 O'clock the girl seems to have suddenly collapsed and died. 20. Nanwa a witness for the prosecution says that at 10 o'clock the same morning Chanda came to him and asked him to send a wire to the father of the girl to summon him as the girl was dead. This witness goes on to say that Chanda told him that he would not bury the girl till Kallu came. He says he did not ask Chanda what she had died of and that he had no suspicion then. It seems, however, that the neighbours were not at all satisfied about the death of the girl and disbelieved Chanda when he said that the girl had died in an epileptic fit, because so far as they knew she had never suffered in this way before. It seems, however, that the neighbours were not at all satisfied about the death of the girl and disbelieved Chanda when he said that the girl had died in an epileptic fit, because so far as they knew she had never suffered in this way before. What seems to have aroused their suspicion was because it was so sudden and unexpected. It was known that the girl had been habitually harshly treated and it was suspected apparently that there, had been some foul play. It seems, however, fairly clear that the death was not attributed at the time to the beating which the girl had received the day before. 21. Niadar, one of the witnesses, says that people were saying that Chanda had killed the girl. A report was made at the Police Station in the course of the day and Kirpa Ram the Sub-Inspector personally made local inquiries and it was not till that afternoon that the body was taken for burial. The father arrived the next day and the District Magistrate, had the body exhumed and sent to the Civil Surgeon for examination. The post mortem examination was conducted by the Civil Surgeon. He deposes to the finding of bruises on the head, back and arm. In his opinion death was due "to shock from several blows on an unnourished girl suffering from chronic lung disease." 22. I think we may take this as proving that the girl died from the effects of the beating which she received on the 16th of January, and 1 think it is also clear from medical evidence that that beating if administered to an ordinary healthy girl of 15 or 16 years of age would not: cause very serious injury and would not be expected by any reasonable person to cause such injury. 23. The Doctor says that the probable age of the girl was about 15 or 16 years and that the body was very emaciated. He found chornic adhesions of the pleura on both sides and both lungs were congested and chronically inilamed. He found the heart smaller than usual, the abdominal wall very thin showing hardly any fat. The stomach and intestines were empty. The liver was congested, the kidneys were small and one was contracted. He found chornic adhesions of the pleura on both sides and both lungs were congested and chronically inilamed. He found the heart smaller than usual, the abdominal wall very thin showing hardly any fat. The stomach and intestines were empty. The liver was congested, the kidneys were small and one was contracted. No doubt, he says that the disease of the lungs could be caused by starvation, exposure and over work, but he goes on to say that although he could not tell the duration of the lung disease, it was probably more than four or five months. His general opinion as to the smallness of the heart, the contraction of kidneys and the absence of fat in the body was that they were due to ill-nourishment which probably extended for several months and might have extended for a year or more. The Civil Surgeon was not asked whether, assuming the girl was normally healthy six months before he examined her corpse, he would have expected the symptoms which I have just described, to have been caused by ill-nourishment, exposure and over-work within the last six months only. 24. Reading the evidence as a whole, it seems to me that the girl was in a bad state of health before she came to live in Meerut. It may be that her condition became worse owing to the treatment she received there. But I cannot believe that her condition was entirely due to what she had undergone within the last six months. The father says that when she left Delhi she was not ill and all he says about her condition was that when he saw her body it was rather thinner than when she left home. 25. It is true no doubt that a number of neighbours tried to make out that when she came she was in excellent health and that she rapidly got worse during her stay in Meerut, but I am not prepared to take the evidence of these witnesses at its face value. There can be no doubt that, some of them at least were prejudiced against the accused. For instance Hakim Ullah whose house adjoins the accused deposes that the girl was very well when she came from her home, but she was thin before she died. There can be no doubt that, some of them at least were prejudiced against the accused. For instance Hakim Ullah whose house adjoins the accused deposes that the girl was very well when she came from her home, but she was thin before she died. In cross-examination he admitted that he had never, seen her face and that he had heard that she was thin. 26. Kirpa Ram, the Sub Inspector, who that very day went to the spot and made inquiries has proved the report which he wrote at 4 p.m. He recorded that there was enmity among the Telis and that the people of the mohallah gave out that the day before yesterday her father-in-law beat her on her. spill ting oil. Some say that there was a quarrel between the mother-in-law and the daughter-in-law and in the said quarrel the latter received injury and died of it. He says, another witness told him, (as Chanda had) that she had been suffering from epilepsy. At any rate, it was known that she had prepared cowdung cakes on the day on which she died. He said that he had made inquiries from the Chaudhri of the butchers and learnt that on account of the bitter enmity amongst the Telis, the rumour (i.e. of foul play) has been spread. He, therefore, took no further steps. 27. I have tried to set out the bare facts relating to the death of the girl as dispassionately and coldly as I can. 28. The learned Judge has come to the conclusion that the evidence does not disclose that the accused had any intention or wish to cause the death of the girl. He goes on to say "they seem to have been hard and unimaginative people who regarded their daughter-in-law as a useful drudge." In this summary of the evidence I agree. I hold it proved that death was due to shock from several blows on an ill-nourished girl suffering from chronic lung disease. I agree with the learned Judge in thinking that neither of the accused had any wish or intention to kill the girl. On the contrary I think they wished the girl to live in order that she might be useful to have in a menial capacity. 29. I agree with the learned Judge in thinking that neither of the accused had any wish or intention to kill the girl. On the contrary I think they wished the girl to live in order that she might be useful to have in a menial capacity. 29. I hold it proved that her death was the result of the beating she received from the hands of Musammat Ramzano on the 16th of January and that under the circumstances Chanda must be held to have abetted that beating. 30. I hold, therefore, that they are responsible for the death of the girl. It remains to be seen what offence, if any, they have committed under the Penal Code. 31. In my opinion no serious question of law arises at all in this case. The law is clearly set out ins. 299 of the Indian Penal Code and is to the effect that "whoever causes death by doing an act with the intention of causing death, or with the intention 01 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". 32. I have already held that neither of the accused beat, this girl with the intention of causing her death. Having regard to the way in which the beating was inflicted as described by the eye witnesses and the nature of the actual injury caused as disclosed by the post mortem examination hold that it is not proved that their intention in beating this girl was to cause such bodily injury as is likely to cause death. 33. There remains the last clause of the section. Can it be said that they must be imputed with the knowledge that it was likely that their beating would cause death? This is to my mind a pure question of fact, and must be decided on the evidence just like any other fact. There can be no doubt that both the accused must have known that the girl was in ill-health. That she was delicate and thin must have been apparent to anybody. This is to my mind a pure question of fact, and must be decided on the evidence just like any other fact. There can be no doubt that both the accused must have known that the girl was in ill-health. That she was delicate and thin must have been apparent to anybody. But taking into consideration the fact that, in my opinion, they did not wish, to cause her death and that the beating was administered before a number of witnesses I do not think I can hold that it is proved beyond a reasonable doubt, to which even these miserable inhuman people are entitled, that they knew that what they were doing was likely to cause the unfortunate girl's death. The beating itself was not followed immediately by any serious consequences. It is proved that the next day she was able to do her work, and I am afraid that on more than one occasion before they had probably administered as severe a beating without any very serious consequences. I hold that this particular beating was not a part of a calculated course of ill-treatment which they knew or must be taken to have known to be likely to cause the death of the girl. In that case I would have had no hesitation in holding that the accused were guilty at least of culpable homicide not amounting to murder. 34. In my opinion this beating was due to the unfortunate fact that the girl had spilt some of their precious oil. I cannot, there-fore, hold that the Court and the Assessors were wrong in acquitting the accused of the charge u/s 304 of the Indian Penal Code. In my opinion, however, there is Evidence to prove that on the 16th of January Musammat Ramzano with the active connivance of Chanda did beat this girl with the result that she died. 35. I would, therefore, convict both of them, u/s 323 and having regard to the fact that the girl was weak and ill, I think that they should be awarded the maximum sentence under that section. I would convict them u/s 323 and sentence them each to one year's rigorous imprisonment. Daniels, J. 36. This case has been referred to me u/s 429 of the Cr.P.C. on account of a difference of opinion between two Judges of this Court. I would convict them u/s 323 and sentence them each to one year's rigorous imprisonment. Daniels, J. 36. This case has been referred to me u/s 429 of the Cr.P.C. on account of a difference of opinion between two Judges of this Court. The case relates' to the death of the girl named Musammat Shakuran who was married to the son of s the two accused Chanda and Musammat s Ramzano. The girl came to their house to reside as the wife of their son six or seven months before her death. Her age at the time of her death was 15 or 16 years. At the post mortem examination the Civil Surgeon found an absence of fat in the body and other appearances which pointed to ill-nourishment extending over several months. The parties are Muhammadan Telis. It is established that on the day before her death, namely, on 17th January last, the deceased had spilt some oil and her mother-in-law, the accused Musammat Ramzano, gave her a beating. The thing was done openly at about 8 A.M. in the view of a number of neighbours. The stick used is described as a twig or a branch of a tree. Several of the witnesses, both male and female, describe it as about as thick as their thumbs. The only witnesses who give any details Ismail and Musammat Zamurrad, say respectively that the blows were struck oil the arms and back and on the back and shoulder. The girl's father-in-law, the accused Chanda, sat by and did hot interfere. 37. No one realised at the time that the girl had received any serious injuries. She is not even said to have fallen down as the result of the beating. Next morning she was up and about fetching cowdung cakes as usual. About 8 A. M. (the time is given in thetelegram sent to the girl's, father by Chanda accused) she collapsed and died. The Civil Surgeon's evidence is that death was due to "shock from several blows on an ill-nourished girl suffering from chronic lung disease". 37. The accused was committed to the Sessions Court on a charge u/s 304 of the Indian Penal Code. The Sessions Judge altered the charge to one u/s 302 but in the end acquitted both accused altogether. The Civil Surgeon's evidence is that death was due to "shock from several blows on an ill-nourished girl suffering from chronic lung disease". 37. The accused was committed to the Sessions Court on a charge u/s 304 of the Indian Penal Code. The Sessions Judge altered the charge to one u/s 302 but in the end acquitted both accused altogether. The acquittal of Musammat Ramzano is incomprehensible, as on the Judge's own finding an offence u/s 323 of the Indian Penal Code was established against her. The Local Government has appealed, and the learned Government Advocate has pressed for a conviction u/s 301 of the Indian Penal Code, or failing that, for a conviction u/s 323. The learned Acting Chief Justice was of opinion that the evidence established the offence of murder, though in view of the attitude of the Crown, he was content to convict u/s 304 of the Indian Penal Code and to sentence both accused to transportation for life. His view is that the accused subjected the deceased to "a continuous and severe course of ill-treatment and starvation which could only have one end if persisted in, and would certainly have terminated in her death from natural causes if they had not accelerated it by beating her". Mr. Justice Ryves after an elaborate analysis of the evidence, came to the conclusion that the accused certainly did not intend to cause the girl's death, and further that it was not proved beyond reasonable doubt, that they knew that they were doing what was likely to cause it. He held that both the accused are guilty u/s 323 of the Indian Penal Code (the male accused on the ground that he was present and abetting the offence), and in view of the previous ill-treatment and the "fact that death did result in consequence of the beating, lie considered that the maximum sentence allowed by the section, namely, one year's rigorous imprisonment, should be imposed. The case has been re-argued before me, and I have read the entire evidence; and I may say at once that on the evidence it appears to me impossible to hold that the accused either intended or contemplated the death of the deceased as a result of the beating which was inflicted on her. The case has been re-argued before me, and I have read the entire evidence; and I may say at once that on the evidence it appears to me impossible to hold that the accused either intended or contemplated the death of the deceased as a result of the beating which was inflicted on her. It is clear enough that Musammat Ramzano had taken a dislike to her daughter-in-law, that she under fed her, kept her short of clothes, and used at times to beat her. I may note at this point that the evidence as to previous beatings is more scanty than one would expect. Most of the women who appear as witnesses, all of whom live in the vicinity, say that they had not seen the accused beat her before. A woman is more likely to be a witness of these beatings than a man. When, therefore, Hakim Ullah (P.W. No. 16) says that he had seen Ramzano beating the deceased " scores of times " and Niadar (P.W. No. 17) "tens of times," one may suspect a certain exaggeration. That the female accused had beaten the deceased on previous occasions is, however, undoubtedly the fact. 38. The only motive suggested in argument why the accused should have desired to make away with the girl is that they would thereby get rid of paying the allowance of Rs. 5 a month by way of pin money which they had agreed at her marriage to pay to her. This suggestion will not bear a moment's examination. There is not the slightest evidence that this allowance had ever in fact been paid, and it is most unlikely in the circumstances that it ever had been. The suggestion that the motive may have been "economy carried beyond legal limits" is pure surmise. The probability is that the assistance in the house which the accused got from the deceased was worth more to them than her keep. If they thought she was a burden on them they had only to send her back to her parents, who would have been only too glad to have her. It is highly probable that the refusal to allow her brother to see her on the last occasion when he came was due to a fear that she might run away with him. 39. It is highly probable that the refusal to allow her brother to see her on the last occasion when he came was due to a fear that she might run away with him. 39. The circumstances in which the beating took place formed the strongest evidence that the accused did not realise that it was anything out of tie ordinary or might produce serious consequences. If they had thought for a moment that there was any danger of serious consequences ensuing, it would have been easy for them to have taken her into her room and taken steps to stifle her cries. No less than five witnesses outside the family witnessed the beating, and though they say they remonstrated, it is clear that they did not attach any great importance to it at the time. According to their ideas, it was quite in the ordinary course that a girl who spilt valuable oil should get a beating from that domestic; tyrant, her mother-in-law. Then, again, the fact that the accused himself without any delay sent a telegram to the girl's father calling him to the funeral and saying that it was being kept waiting for him, is strongly against the theory that there had been any deliberate attempt to do the girl to death. The witness Nanwau says he suggested to the accused that he should send the telegram, but this does not do away with the inference. It may be argued that the telegram was sent to save appearances, but, if so, one would expect that either a letter would be sent or the telegram would be delayed until it was no longer possible for the girl's father to arrive in time to see the body. Kallu took the singular course of wiring to find out what was the disease of which the girl died, waited for a reply, and only left Delhi for Meerut on the following day, when he arrived after the funeral. 40. No argument can be based on the fact that the accused put in a false defence. Ramzano had at any rate beaten the deceased severely on the day before her death and thereby committed an offence punishable with imprisonment. The accused knew that they were in for trouble and took the common course of denying every fact which might tell against them. Ramzano had at any rate beaten the deceased severely on the day before her death and thereby committed an offence punishable with imprisonment. The accused knew that they were in for trouble and took the common course of denying every fact which might tell against them. I can find no evidence, medical or other, to support the view that the ill-treatment of the accused would certainly have terminated in her death from natural causes if the accused had not accelerated it by beating her. The local witnesses do not say it; there is nothing in their evidence to show that they regard her life as in any way in danger. There is not a word in the Civil Surgeon's evidence to show that the state of under-nutrition in which he found the body was sufficiently grave to be likely to produce fatal results apart from this particular. beating. Had there been any such evidence, there might have been a reasonable case for conviction on the graver charge: without it there is none. 41. This brings me to that Civil Surgeon's evidence. It is to be regretted that the Civil Surgeon was not re-called in the Sessions Court to clear up one or two points, which were, left vague in his evidence before the committing Magistrate. He states that when he examined the body about two days after the death there were no wounds on it, but there were abrasions or bruises three or four days old on the chin, forehead, cheek, breast bone, back and thighs, The marks on the back were due to a stick, the other marks might be due either to a stick, or a fist. The blow on the forehead must have been struck with considerable force. The body was very emaciated. The heart was unusually small. The kidneys were small and there was hardly any fat in the abdominal wall. These facts indicated ill-nourishment extending over several months, possibly a year or more. Both lungs were congested and chronically inflamed. This might in the Civil Surgeon's opinion have been caused by starvation, exposure and overwork, but he does not state, and apparently was not asked, whether it was likely to have been so caused. These facts indicated ill-nourishment extending over several months, possibly a year or more. Both lungs were congested and chronically inflamed. This might in the Civil Surgeon's opinion have been caused by starvation, exposure and overwork, but he does not state, and apparently was not asked, whether it was likely to have been so caused. Congestion of the lungs may be due to so many causes that it would not be fair to assume that it was due to under-nutrition unless the Civil Surgeon indicates at least a preponderating probability in this direction. As I have already said, the Civil Surgeon does not state that the lack of nutrition had reached a point which was in itself dangerous, or which suggested a deliberate attempt to starve the girl. 42. I find, therefore, that the evidence does not establish an offence u/s 304, still less u/s 302, against either accused. I agree with Mr. Justice Ryves in convicting Musammat Ramzano of an offence u/s 323 of the Indian Penal Code and in imposing the-maximum penalty under that section. 43. Against the male accused I find that no offence is established. He never struck the girl at all. He said nothing to encourage his wife to do so. Indeed, even on the former occasions on which the girl was beaten the witnesses are unanimous that it was always her mother-in-law who struck her and never her father-in-law. The only fact alleged against Chanda is that he was sitting' near by when the beating was inflicted and that he did not stop it. This is not sufficient to constitute an abetment. If it were so, every spectator, of an assault, unless he actively interfered, would be an accomplice and, therefore, a tainted witness. To constitute, abetment there must be u/s 107 of the Indian renal Code either, (1) instigation, (2) conspiracy or (3) actual aid either by an actor an illegal omission. 44. Although it may be a moral duty of a person who sees a second person beat a (sic) to interfere, it is not a legal duty (sic) the sense that the omission to do so is punishable. 44. Although it may be a moral duty of a person who sees a second person beat a (sic) to interfere, it is not a legal duty (sic) the sense that the omission to do so is punishable. A private person is entitled to interfere to prevent the commission of au offence, but he is not in general legally bound to do so, and it is only in the case of a non-cognizable and non-bailable offence that he is entitled of his own motion to arrest the offender. I might hesitate to differ from my learned brothers on a point on which they are apparently agreed, but that u/s 429 of the Cr.P.C., the responsibility for the final decision rests with me, and it is obviously impossible for me to convict an accused against whom there is no evidence that he either committed the offence charged or abetted it. In the view taken by the learned Chief Justice the question did not arise, as if there was a conspiracy both accused were equally, guilty. In the judgment of Ryves, J., the position of the male accused has not been considered in detail. 45. I accordingly allow the Government Appeal against Musammat Ramzano to this extent that convict her of an offence u/s 323 of the Indian Penal Code and sentence her to one year's rigorous imprisonment. Against the accused Chanda the appeal is dismissed and he will be set at liberty.