Om Parkash v. State of Punjab [1961 SC] | Current Affairs & General Knowledge - CLAT PDF Download

Facts of the case

Bimla Devi 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 under-nourishment. 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 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 Civil Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar, 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.

Learned counsel for the appellant 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 Section 307 are materially different from the ingredients of an offence under Section 511 IPC. The difference is that for an act to amount to 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 Section 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 Section 307 IPC, 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.

If Section 307 is to be interpreted as urged for the appellant, Section 308 too should be interpreted that way. Both the sections are expressed in similar language. Whatever may be said with respect to Section 307, being exhaustive or covering all cases of attempts to commit murder and Section 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 Section 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 Section 308, it would have fallen under Section 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 Section 511.

It follows that a person commits an offence under Section 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 Section 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 Section 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 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 intention 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 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 Section 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 Section 307 of the Code.

In Regina v. Francis Cassidy [Bom] it was held that in order to constitute the offence of attempt to murder under Section 307 IPC, the act committed by the person must be an act capable of causing, in the natural and ordinary course of events, death.

Example given by Straight, J. for the last act:

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 Section 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.

In Emperor v. Vasudeo Balwant Gogte [1932 Bom] 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 Section 307 IPC. Beaumont, C.J., said:

I think 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 Section 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act 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.

Rex v. White supports our view. We therefore hold that the conviction of the appellant under Section 307 IPC is correct and accordingly dismiss this appeal.