Om Parkash v State of Punjab 1962

हिन्दी में पढ़ने के लिए यहाँ पर क्लिक करिए

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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 Section 307 IPC.

2. Bimla Devi, PW 7, was married to the appellant in October 1951. Their relaons 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 under-nourishment. In 1956, she was deliberately starved and was not allowed to leave the house and only somemes 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 aer 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 hold of her and forcibly dragged her inside the house where she was severely beaten. Thereaer, she was kept locked inside a room.

3. 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, PW 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 maer and informed the brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, aer learning all facts, sent informaon to the police staon by leer on June 16, 1956. In his leer he said: My sister Bimla Devi Sharma is lying in death bed. Her condion is very serious. I am told by her that deliberate aempt 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 me 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”.

4. Shri Sehgal, Magistrate, PW 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 paent is not free. It is not possible to get the thumb impression of the right hand thumb of the paent. That is why I have got her le hand thumb-impression.

5. 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 photographs of Bimla was that at that me she appeared to be suffering from extreme emaciaon. Her cheeks appeared to be hollow. The projecng bones of her body with lile flesh on them made her appearance skeletal. The countenance seemed to be cadaverous. Aer considering the evidence of Bimla Devi and the doctors, the learned Judge came to the conclusion:
So far as the basic allegaons are concerned, which formed the gravamen of the offence, the veracity of her statement cannot be doubted. Aer a careful scruny of her statement, I find her allegaons as to starvaon, maltreatment, etc. true. The exaggeraons and omissions to which my aenon was drawn in her statement are inconsequenal. Aer considering the enre evidence on record, the learned Judge said:
Aer having given anxious thought and careful consideraon 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 condion of acute emaciaon in which Bimla Devi was found on 5th of June, 1956, was not due to any calculated starvaon but it was on account of prolonged illness, the nature of which was not known to the accused ll Dr Gula had expressed his opinion that she was suffering from tuberculosis.He further stated:
The story of Bimla Devi as to how she was ill-treated, and how, her end was aempted 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 beer 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.

6. The appellant was acquied of the offence under Secon 342 IPC, by the Addional 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 queson and came to a different conclusion. Having come to these findings, the learned Judge considered the queson whether on these facts an offence under Secon 307 IPC, had been established or not. He held it proved.

7. 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 aer himself that the person having control over him is legally bound to look aer 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 condion to which she was brought up to the 5th of June, 1956, is clear. The findings really go against any suggeson that the appellant had actually provided food and funds for his wife Bimla Devi.

8. The next contenon for the appellant is that the ingredients of an offence under Secon 307 are materially different from the ingredients of an offence under Secon 511 IPC. The difference is that for an act to amount to the commission of the offence of aempng 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 Secon 307, it is the last act which, if effecve to cause death, would constute the offence of an aempt to commit murder. The contenon 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 Secon 307 IPC, as that act could not, by itself, have caused her death, it being necessary for the period of starvaon to connue for a longer period to cause death. We do not agree with this contenon.

9. Both the secons are expressed in similar language. If Secon 307 is to be interpreted as urged for the appellant, Secon 308 too should be interpreted that way. Whatever may be said with respect to Secon 307 IPC, being exhausve or covering all the cases of aempts to commit murder and Secon 511 not applying to any case of aempt 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 aempt to commit culpable homicide punishable under Secon 308. An aempt to commit culpable homicide is punishable with imprisonment for a certain period and therefore but for its being expressly made an offence under Secon 308, it would have fallen under Secon 511 which applies to all aempts to commit offences punishable with imprisonment where no express provisions are made by the Code for the punishment of that aempt. It should follow that the ingredients of an offence of aempt to commit culpable homicide not amounng to murder should be the same as the ingredients of an offence of aempt to commit that offence under Secon 511. We have held this day in Abhayanand Mishra v. State of Bihar [Criminal Appeal No. 226 of 1959] that a person commits the offence of aempng to commit a parcular offence, when he intends to commit that parcular offence and, having made preparaons and with the intenon to commit that offence does an act towards its commission and that such an act need not be the penulmate act towards the commission of that offence, but must be an act during the course of comming such offence. It follows therefore that a person commits an offence under Secon 308 when he has an intenon to commit culpable homicide not amounng to murder and in pursuance of that intenon does an act towards the commission of that offence whether that act be the penulmate act or not. On a parity of reasoning, a person commits an offence under Secon 307 when he has an intenon to commit murder and, in pursuance of that intenon, does an act towards its commission irrespecve of the fact whether that act is the penulmate act or not. It is to be clearly understood, however, that the intenon to commit the offence of murder means that the person concerned has the intenon to do certain act with the necessary intenon or knowledge menoned in Secon 300. The intenon to commit an offence is different from the intenon or knowledge requisite for constung the act as that offence. The expression “whoever attempts to commit an offence” in Section 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 intenon or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder” in Section 307. This simply means that the act must be done with the 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 commied must be death. Such a result must be the result of that act whether immediately or aer a lapse of me.

10. The word “act” again, does not mean only any particular, specific, instantaneous act of a person, but denotes, according to Secon 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 compleng the series, and would therefore come within the purview of Secon 307 of the Code.

11. Learned counsel for the appellant has referred us to certain cases in this connecon. We now discuss them.

12. The first is Queen-Empress v. Nidha [(1892) ILR 14 All 38]. Nidha, who had been absconding, nocing 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 Secons 299 and 300 read with Secon 511, and not under Secon 307 IPC, as the learned Judge relied on a Bombay case – Regina v. Francis Cassidy [Bom HC Reps Vol. IV, P. 17] – in which it was held that in order to constute the offence of aempt to murder, under Secon 307 IPC, the act commied by the person must be an act capable of causing, in the natural and ordinary course of events, death. Straight, J., both disnguished 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 parcular crime that he has in his mind, he is not entled to pray in his aid an obstacle intervening not known to himself. If he did all that he could 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 volion 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 commied the offence of aempng 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 isso prevented and interfered with, that would establish in my opinion an aempt. 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.

13. Illustraon (d) to Secon 307, itself shows the incorrectness of this view. The illustraon 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 commied the offence defined in this secon. 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.

14. This expression of opinion by Straight, J., was not really with reference to the offence under Secon 307 IPC, but was with reference to aempts to commit any parcular offence and was stated, not to emphasize the necessity of comming the last act for the commission of the offence, but in connecon with the culprit taking advantage of an involuntary act thwarng the compleon of his design by making it impossible for the offence being commied. Straight, J., himself said earlier: For the purpose of constung an aempt under Secon 307 IPC, there are two ingredients required, first, an evil intent or knowledge, and secondly, an act done.

15. In Emperor v. Vasudeo Balwant Gogte [(1932) ILR 56 Bom 434] a person fired several shots at another. No injury was in fact occasioned due to certain obstrucon. The culprit was convicted of an offence under Secon 307 IPC. Beaumont, C.J., said at p. 438: I think that what Secon 307 really means is that the accused must do an act with such a guilty intenon 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 aempt 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 thereaer securing good medical treatment.

16. It may, however, be menoned that in cases of aempt to commit murder by fire- arm, the act amounng to an aempt 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 Secon 307 is made out. Expressions, in such cases, indicate that one commits an aempt to murder only when one has commied the last act necessary to commit murder. Such expressions, however, are not to be taken as precise exposion of the law, though the statements in the context of the cases are correct.

17. In Mi Pu v. Emperor [(1909) 10 Cri LJ 363] a person who had put poison in the food was convicted of an offence under Secon 328 read with Secon 511 IPC, because there was no evidence about the quanty of poison found and the probable effects of the quanty 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 queson under determinaon.

18. In Jeetmal v. State [AIR 1950 MB 21] it was held that an act under Secon 307, must be one which, by itself, must be ordinarily capable of causing death in the natural ordinarily course of events. This is what was actually held in Cassidy case and was not approved in Nidha case or in Gogte case.

19. We may now refer to Rex v. White [(1910) 2 KB 124]. In that case, the accused, who was indicted for the murder of his mother, was convicted of aempt 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 aempt at murder because “the act of which he was guilty, namely, pung the poison in the wine glass, was 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 contenon 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 aempt to murder. We are of opinion that this direcon was right, and that the compleon or aempted compleon of one of a series of acts intended by a man to result in killing is an aempt 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 aempt, but would nonetheless be an aempt. This supports our view.

20. We therefore hold that the convicon of the appellant under Secon 307 IPC, is correct and accordingly dismiss this appeal.