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PETITIONER: OM PARKASH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 24/04/1961

BENCH: DAYAL, RAGHUBAR BENCH: 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-nourish- ment.  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

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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.

JUDGMENT: 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

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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  emacia-               tion  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:

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             "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

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             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

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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

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             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

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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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