Case ID: 1257

Judgment:
minal 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. 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 section 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 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: "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 section 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 section 307 are materially different from the ingredients of an offence under section 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 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	 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 section 307 is to be interpreted as urged for the appellant	 section 308 too should be interpreted that way. What ' ever may be said with respect to section 307	 being exhaustive or covering all the 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 260 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. We have held this day in Abhayanand Mishra vs 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 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 (1) ; 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 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. Learned counsel for the appellant has referred us to certain cases in this connection. We now discuss them. The first is Queen Empress vs 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 sections 299 and 300 read with section 511	 and not under section 307	 Indian Penal Code	 as the learned Judge relied on a Bombay Case Regina vs Francis Cassidy (1) in which it was held that in order to constitute the offence of attempt to murder	 under section 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) All. (2) (1867) Bom. H.C. Reps. 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 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. 263 This expression of opinion by Straight	 J.	 was not really with reference to the offence under section 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 section 307	 Indian Penal Code	 there are two ingredients required	 first	 an evil intent or knowledge	 and secondly	 an act done." In Emperor vs 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 section 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 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 (1) 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 vs Emperor (1) a person who had put poison in the food was convicted of an offence under section 328 read with section 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 vs State (2) it was held that an act under section 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 vs 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) (2) A.I.R. 1950 Madhya Bharat 21. (3) (1867) Bom. H. C. Reps. IV	 p. 17 (Crown Cases). (4) All. (5) (1032) I.L. R. (6) 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 section 307	 Indian Penal Code	 is correct and accordingly dismiss this appeal. Appeal dismissed.

Summary:
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 section 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 section 307 Of the Indian Penal Code. On behalf of the appellant it was contended	 inter alia	 that whereas under section 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 section 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 section 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 section 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 vs The State of Bihar	 [1962] 2 S.C.R. 241	 followed. Rex vs White	 	 relied on. Queen vs Nidha	 All. 38 and Emperor vs Vasudeo Balwant Gogte	 BOM. 434	 considered	 255 Jeetmal vs State	 A.I.R. 1950 Madhya Bharat 21	 disapproved. The word 'act ' in section 307 did not mean only a particular act of a person	 but denoted	 according to section 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 section 307 Of the Indian Penal Code. The High Court was	 therefore	 right in convicting the appellant under that section.