Om Parkash Vs. The State of Punjab
[1961] INSC 180 (24 April 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1782 1962 SCR (2) 254
CITATOR INFO :
R 1965 SC 843 (6)
ACT:
Criminal Law-Attempt to murder-Accused
attempting to starve a person gradually to accelerate his death-Ingredients of
the offence-Indian Penal Code (Act 45 of 1860), ss. 307, 308, 511.
HEADNOTE:
B was married to the appellant in October,
1951, but their relations got strained by 1953. She was ill-treated and her
health deteriorated due to maltreatment and under-nourishment. In 1956 she was
deliberately starved and not allowed to leave the house in which they were
living and only sometimes a morsel or so used to be thrown to her as alms are
given to beggars. On June 5,1956, she managed to escape from the house and went
to the Civil Hospital at Ludhiana.
Her brother came down to Ludhiana on learning
of the facts and made a complaint to the police. The doctor who attended on B
sent a note to the police saying that she was seriously ill and might collapse
any moment. The appellant was prosecuted for the offence of attempting to
murder B under s. 307 Of the Indian Penal Code. The trial Court acquitted him
but, on appeal, the High Court came to a finding, on the evidence, that the
object of the appellant was to confine B and deprive her of regular food in
pursuance of a scheme of regular starvation in order to accelerate her end, and
convicted him under S. 307 Of the Indian Penal Code. On behalf of the appellant
it was contended, inter alia, that whereas under S. 511 Of the Code for an Act
to amount to the offence of attempting to commit an offence it need not be the
last act and can be the first act towards the commission of the offence, under
S. 307 it is the last act which, if effective to cause death, would constitute
the offence of an attempt to commit murder, and that even if B had been
deprived of food for a certain period, the act of so depriving her did not come
under s. 307 as that act could not, by itself have caused her death, it being
necessary for the period of starvation to continue for a longer period to cause
death.
Held, that a person commits an offence under
s. 307 Of the Indian Penal Code when he has an intention to commit murder and
in pursuance of that intention does an act towards its commission irrespective
of the fact whether that act is the penultimate act or not.
Abhayanand Mishra v. The State of Bihar,
[1962] 2 S.C.R. 241, followed.
Rex v. White, [1910] 2 K.B. 124, relied on.
Queen v. Nidha, [1892] I.L.R. 14 All. 38 and
Emperor v. Vasudeo Balwant Gogte, (1932) I.L.R. 56 BOM. 434, considered, 255
Jeetmal v. State, A.I.R. 1950 Madhya Bharat 21, disapproved.
The word 'act' in S. 307 did not mean only a
particular act of a person, but denoted, according to S. 33 Of the Code, as
well, a series of acts.
In the present case the course of conduct
adopted by the appellant in regularly starving his wife B, comprised a series
of acts which though they fell short of completing the series sufficient to
kill her, came within the purview Of S. 307 Of the Indian Penal Code. The High
Court was, therefore, right in convicting the appellant under that section.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 177 of 1959.
Appeal by special leave from the judgment and
order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 515
of 1957.
Jai Gopal Sethi and R. L. Kohli, for the
appellant.
B. K. Khanaa, R. H. Debhar and D. Gupta, for
the respondent. 1961. April 24. The Judgment of the Court was delivered by
RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the order of the
Punjab High Court dismissing the appellant's appeal against his conviction
under s. 307, Indian Penal Code.
Bimla Devi, P. W. 7, was married to the
appellant in October, 1951. Their relations got strained by 1953 and she went
to her brother's place and stayed there for about a year, when she returned to
her husband's place at the assurance of the appellant's maternal uncle that she
would not be maltreated in future. She was, however, ill-treated and her health
deteriorated due to alleged maltreatment and deliberate undernourishment. In
1956, she was deliberately starved and was not allowed to leave the house and
only sometimes a morsel or so used to be thrown to her as alms are given to
beggars. She was denied food for days together and used to be given gram husk
mixed in water after five or six days. She managed to go out of the house in
April 1956, but Romesh Chander and Suresh Chander, brothers of the appellant,
caught 256 hold of her and forcibly dragged her inside the house where she was
severely beaten. Thereafter, she was kept locked inside a room.
On June 5, 1956, she happened to find her
room unlocked, her mother-in-law and husband away and, availing of the
opportunity, went out of the house and managed to reach the Civil Hospital,
Ludhiana, where she met lady Doctor Mrs.
Kumar, P. W. 2, and told her of her
sufferings. The appellant and his mother went to the hospital and tried their
best to take her back to the house, but were not allowed to do so by the lady
Doctor. Social workers got interested in the matter and informed the brother of
Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all
facts, sent information to the Police Station by letter on June 16, 1956. In
his letter he said:
"My sister Bimla Devi Sharma is lying in
death bed. Her condition is very serious. I am told by her that deliberate
attempt has been made by her husband, mother-in-law and brother-in-law and
sister-in-law. I was also told that she was kept locked in a room for a long
time and was beaten by all the above and was starved.
I therefore request that a case may be
registered and her statement be recorded, immediately." The same day, at
9-15 p.m., Dr. Miss Dalbir Dhillon sent a note to the police saying 'My patient
Bimla Devi is actually ill. She may collapse any moment'.
Shri Sehgal, Magistrate, P.W. 9, recorded her
statement that night and stated in his note:
"Blood transfusion is taking place
through the right forearm and consequently the right hand of the patient is not
free. It is not possible to get the thumb impression of the right hand thumb of
the patient. That is why I have got her left hand thumb-impression." The
impression formed by the learned Judge of the High Court on seeing the
photographs taken of Bimla Devi a few days later, is stated thus in the
judgment:
"The impression I formed on looking at
the two 257 photographs of Bimla was that at that time she appeared to be
suffering from extreme emaciation. Her cheeks appeared to be hollow.
The projecting bones of her body with little
flesh on them made her appearance skeletal.
The countenance seemed' to be
cadaverous." After considering the evidence of Bimla Devi and the Doctors,
the learned Judge came to the conclusion:
"So far as the basic allegations are
concerned, which formed the gravamen of the offence, the veracity of her
statement cannot be doubted. After a careful scrutiny of her statement, I find
her allegations as to starvation, maltreatment, etc., true. The exaggerations
and omissions to which my attention was drawn in her statement are
inconsequential." After considering the entire evidence on record, the
learned Judge said:
"After having given anxious thought and
careful consideration to the facts and circumstances as emerge from the lengthy
evidence on the record, I cannot accept the argument of the learned counsel for
the accused, that the condition of acute emaciation in which Bimla Devi was
found on 5th of June, 1956, was not due to any calculated starvation but it was
on account of prolonged illness, the nature of which was not known to the
accused till Dr. Gulati had expressed his opinion that she was suffering from
tuberculosis." He further stated:
"The story of Bimla Devi as to how she
was illtreated, and how, her end was attempted to be brought about or
precipitated, is convincing, despite the novelty of the method in which the
object was sought to be achieved.
The conduct of the accused and of his mother on
5th of June, 1956, when soon after Bimla Devi's admission in the hospital they
insisted on taking her back home, is significant and almost tell-tale. It was
not for better treatment or for any treatment that they wanted to take her back
home. Their real object in doing so could be no other than to accelerate her
end." 258 The appellant was acquitted of the offence under s.342, Indian
Penal Code, by the Additional Sessions Judge, who gave him the benefit of
doubt, though he had come to the conclusion that Bimla Devi's movements were
restricted to a certain extent. The learned Judge of the High Court considered
this question and came to a different conclusion.
Having come to these findings, the learned
Judge considered the question whether on these facts an offence under s. 307,
Indian Penal Code, had been established or not. He held it proved.
Mr. Sethi, learned counsel for the appellant,
has challenged the correctness of this view in law. He concedes that it is only
when a person is helpless and is unable to look after himself that the person
having control over him is legally bound to look after his requirements and to
see that he is adequately fed. Such persons, according to him, are infants, old
people and lunatics. He contends that it is no part of a husband's duty to
spoon-feed his wife,, his duty being simply to provide funds and food. In view
of the finding of the Court below about Bimla Devi's being confined and being
deprived of regular food in pursuance of a scheme of regularly starving her in order
to accelerate her end, the responsibility of the appellant for the condition to
which she was brought up to the 5th of June, 1956, is clear.
The findings really go against any suggestion
that the appellant had actually provided food and funds for his wife Bimla
Devi.
The next contention for the appellant is that
the ingredients of an offence under s. 307 are materially different from the
ingredients of an offence under s. 511, Indian Penal Code. The difference is
that for an act to amount to the commission of the offence of attempting to
commit an offence, it need not be the last act and can be the first act towards
the commission of the offence, while for an offence under s. 307, it is the
last act which, if effective to cause death, would constitute the offence of an
attempt to commit murder. The contention really is that even if Bimla Devi had
been deprived of food for a certain period, the act of so depriving her does
not come under s. 307, 250 as that act could not, by itself, have caused her
death, it being necessary for the period of starvation to continue for a longer
period to cause death. We do not agree with this contention.
Section 307 of the Indian Penal Code reads:
"Whoever does any act with such
intention or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also
be liable to fine; and, if hurt is caused to any person by such act, the
offender shall be liable either to imprisonment for life, or to such punishment
as is hereinbefore mentioned.
When any person offending under this section
is under sentence of imprisonment for life, he may, if hurt is caused, be
punished with death." Section 308 reads:
"Whoever does any act with such
intention or knowledge and under such circumstances that, if he by that act
caused death, he would be guilty of culpable homicide not amounting to murder,
shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both;
and, if hurt is caused to any person by such
act, shall be punished with imprisonment of either description for a term which
may extend to seven years, or with fine, or with both." Both the sections
are expressed in similar language. If s. 307 is to be interpreted as urged for
the appellant, s. 308 too should be interpreted that way. What-' ever may be
said with respect to s. 307, being exhaustive or covering all the cases of
attempts to commit murder and s. 511 not applying to any case of attempt to
commit murder on account of its being applicable only to offences punishable
with imprisonment for life or imprisonment, the same cannot be said with
respect to the offence of attempt to commit culpable homicide punishable under
s. 308. An attempt to commit culpable homicide is punishable with imprisonment
for a certain period and therefore but for its being expressly made an offence
under s. 308, it would have 260 fallen under s. 511 which applies to all
attempts to commit offences punishable with imprisonment where no express
provisions are made by the Code for the punishment of that attempt. It should
follow that the ingredients of an offence of attempt to commit culpable
homicide not amounting to murder should be the same as the ingredients of an
offence of attempt to commit that offence under s. 511. We have held this day
in Abhayanand Mishra v. The State of Bihar (1) that a person commits the
offence of attempting to commit a particular offence, when he intends to commit
that particular offence and, having made preparations and with the intention to
commit that offence does an act towards its commission and that such an act
need not be the penultimate act towards the commission of that offence, but
must be an act during the course of committing such offence. It follows
therefore that a person commits an offence under s. 308 when he has an
intention to commit culpable homicide not amounting to murder and in pursuance
of that intention does an act towards the commission of that offence whether
that act be the penultimate act or not. On a parity of reasoning, a person
commits an offence under s. 307 when he has an intention to commit murder and,
in pursuance of that intention, does an act towards its commission irrespective
of the fact whether that act is the penultimate act or not.
It is to be clearly understood, however, that
the intention to commit the offence of murder means that the person concerned
has the intention to do certain act with the necessary intention or knowledge
mentioned in s. 300. The intention to commit an offence is different from the
intention or knowledge requisite for constituting the act as that offence. The
expression 'whoever attempts to commit an offence' in s. 511, can only mean
'whoever intends to do a certain act with the intent or knowledge necessary for
the commission of that offence'. The same is meant by the expression 'whoever
does an act with such intention or knowledge and under such circumstances that
if he, by that act, caused death, he would be guilty of murder' in s. 307.
This simply means that the act must be done
with the (1) [1962] 2 S.C.R. 241.
261 intent or knowledge requisite for the
commission of the offence of murder. The expression by that act' does not mean
that the immediate effect of the act committed must be death. Such a result
must be the result of that act whether immediately or after a lapse of time.
The word 'act' again, does not mean only any
particular, specific, instantaneous act of a person, but denotes, according to
s. 33 of the Code, as well, a series of acts.
The course of conduct adopted by the
appellant in regularly starving Bimla Devi comprised a series of acts and
therefore acts falling short of completing the series, and would therefore come
within the purview of s. 307 of the Code.
Learned counsel for the appellant has
referred us to certain cases in this connection. We now discuss them.
The first is Queen Empress v. Nidha (1).
Nidha, who had been absconding, noticing certain chowkidars arrive, brought up
a sort of a blunderbuss he was carrying, to the hip and pulled the trigger. The
cap exploded, but the charge did not go off. He was convicted by the Sessions
Judge under ss. 299 and 300 read with s. 511, and not under s. 307, Indian
Penal Code, as the learned Judge relied on a Bombay Case Regina v. Francis
Cassidy (1)-in which it was held that in order to constitute the offence of
attempt to murder, under s. 307, the act committed by the person must be an act
capable of causing, in the natural and ordinary course of events, death.
Straight, J., both distinguished that case and did not agree with certain views
expressed therein. He expressed his view thus, at p. 43:
"It seems to me that if a person who has
an evil intent does an act which. is the last possible act that he could do
towards the accomplishment of a particular crime that he has in his mind, he is
not entitled to pray in his aid an obstacle intervening not known to himself.
If he did all that he could (1) (1892) I.L.R. 14 All. 38.
(2) (1867) Bom. H.C. Reps. Vol. IV, P. 17
(Crown Cases).
34 262 do and completed the only remaining
proximate act in his power, I do not think he can escape criminal
responsibility, and this because his own set volition and purpose having been
given effect to their full extent, a fact unknown to him and at variance with
his own belief, intervened to prevent the consequences of that act which he
expected to ensue, ensuing." Straight, J., gave an example earlier which
itself does not seem to fit in with the view expressed by him later. He said:
"No one would suggest that if A
intending to fire the stack of B, goes into a grocery shop and buys a box of
matches, that he has committed the offence of attempting to fire the stack of
B. But if he, having that intent, and having bought the box of matches, goes to
the stack of B and lights the match, but it is put out by a puff of wind, and
he is so prevented and interfered with, that would establish in my opinion an
attempt." The last act, for the person to set fire to the stack, would
have been his applying a lighted match to the stack.
Without, doing this act, he could not have
set fire and, before he could do this act, the lighted match is supposed to
have been put out by a puff of wind.
Illustration (d) to s. 307, itself shows the
incorrectness of this view. The illustration is:
"A, intending to murder Z, by poison,
purchases poison and mixes the same with food which remains in A's keeping; A
has not yet committed the offence in this section. A places the food on Z's
table or delivers it to Z's servants to place it on Z's table. A has committed
the offence defined in this section." A's last act, contemplated in this
illustration, is not an act which must result in the murder of Z. The food is
to be taken by Z. It is to be served to him. It may not have been possible for
A to serve the food himself to Z, but the fact remains that A's act in merely
delivering the food to the servant is fairly remote to the food being served and
being taken by Z.
263 This expression of opinion by Straight,
J., was not really with reference to the offence under s. 307, but was with
reference to attempts to commit any particular offence and was stated, not to
emphasize the necessity of committing the last act for the commission of the
offence, but in connection with the culprit taking advantage of an involuntary
act thwarting the completion of his design by making it impossible for the
offence being committed. Straight, J., himself said earlier:
"For the purpose of constituting an
attempt under s. 307, Indian Penal Code, there are two ingredients required,
first, an evil intent or knowledge, and secondly, an act done." In Emperor
v. Vasudeo Balwant Gogte (1) a person fired several shots at another. No injury
was in fact occasioned due to certain obstruction. The culprit was convicted of
an offence under s. 307. Beaumont, C. J.,said at p. 438:
"I think that what section 307 really
means is that the accused must do an act with such a guilty intention and
knowledge and in such circumstances that but for some intervening fact the act
would have amounted to murder in the normal course of events".
This is correct. In the present case, the
intervening fact which thwarted the attempt of the appellant to commit the
murder of Bimla Devi was her happening to escape from the house and succeeding
in reaching the hospital and thereafter securing good medical treatment.
It may, however, be mentioned that in cases
of attempt to commit murder by fire arm, the act amounting to an attempt to
commit murder is bound to be the only and the last act to be done by the
culprit. Till he fires, he does not do any act towards the commission of the
offence and once he fires, and something happens to prevent the shot taking effect,
the offence under s. 307 is made out. Expressions, in such cases, indicate that
one commits an attempt to murder only when one has committed the last act (1)
(1932) I.L.R. 56 Bom 434.
264 necessary to commit murder. Such
expressions, however, are not to be taken as precise exposition of the law,
though the statements in the context of the cases are correct.
In Mi Pu v. Emperor (1) a person who had put
poison in the food was convicted of an offence under s. 328 read with s. 511,
Indian Penal Code, because there was no evidence about the quantity of poison
found and the probable effects of the quantity mixed in the food. It was
therefore held that the accused cannot be said to have intended to cause more
than hurt. The case is therefore of no bearing on the question under
determination.
In Jeetmal v. State (2) it was held that an
act under s. 307, must be one which, by itself, must be ordinarily capable of
causing death in the natural ordinary course of events. This is what was
actually held in Cassidy's Case (3) and was not approved in Niddha's Case (4)
or in Gogte's Case (4).
We may now refer to Rex v. White (6). In that
case, the accused, who was indicted for the murder of his mother, was convicted
of attempt to murder her. It was held that the accused had put two grains of
cyanide of potassium in the wine glass with the intent to murder her. It was,
however, argued that there was no attempt at murder because 'the act of which
he was guilty, namely, the putting the poison in the wine glass, war, a
completed act and could not be and was not intended by the appellant to have
the effect of killing her at once; it could not kill unless it were followed by
other acts which he might never have done'.
This contention was repelled and it was said:
"There seems no doubt that the learned
judge in effect did tell the jury that if this was a case of slow poisoning the
appellant would be guilty of the attempt to murder. We are of opinion that this
direction was right, and that the completion or attempted completion of one of
a series of acts intended by a man to result in killing is an attempt (1)
(1909) 10 Crl. L.J. 363. (2) A.I.R. 1950 Madhya Bharat 21.
(3) (1867) Bom. H. C. Reps. Vol. IV, p. 17
(Crown Cases).
(4) (1892) I.L.R. 14 All. 48. (5) (1032) I.L.
R. 56 Bom. 434.
(6) (1910) 2 K. B. 124.
265 to murder even although this completed
act would not, unless followed by the other acts, result in killing. It might
be the beginning of the attempt, but would nonetheless be an attempt".
This supports our view.
We therefore hold that the conviction of the
appellant under s. 307, Indian Penal Code, is correct and accordingly dismiss
this appeal.
Appeal dismissed.
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