Om Parkash vs The State of Punjab
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 177 of 1959
Decision Date: 24 April 1961
Coram: RAGHUBAR DAYAL
In this matter, Om Parkash was the petitioner and the State of Punjab the respondent. The judgment was delivered by the Supreme Court of India on 24 April 1961. The bench comprised Justice Raghubar Dayal, with Subbarao K. also listed. The case is reported in 1961 AIR 1782, 1962 SCR (2) 254, and cited in R 1965 SC 843 (6). The dispute concerned a criminal charge under the Indian Penal Code, Act 45 of 1860, specifically sections 307, 308 and 511, dealing with the attempt to murder by means of gradual starvation.
The factual backdrop recounted that the woman identified only as B married the appellant in October 1951. By 1953 the marital relationship had deteriorated, and B suffered ill‑treatment that led to a decline in her health through maltreatment and inadequate nourishment. In 1956 the appellant deliberately confined B within their home and denied her regular food, providing only occasional morsels comparable to alms given to beggars. On 5 June 1956 B escaped the residence and sought assistance at the Civil Hospital in Ludhiana. Upon learning of these events, B’s brother travelled to Ludhiana and lodged a complaint with the police. The attending physician sent a note to the police indicating that B was gravely ill and could collapse at any moment. Consequently, the appellant was prosecuted under section 307 of the Indian Penal Code for attempting to murder B. The trial court acquitted him, but the Punjab High Court, on appeal, examined the evidence and concluded that the appellant’s purpose was to imprison B and deprive her of regular sustenance as part of a systematic starvation plan intended to hasten her death. The High Court therefore convicted the appellant under section 307.
The appellant contended, inter alia, that while section 511 of the Code allows an act that is not the final act to constitute an attempt, section 307 requires the last act, which if effective would cause death, to be the basis of an attempt to murder. He argued that even though B had been denied food for a period, the act of depriving her food could not, by itself, cause death because the starvation needed to continue longer to be fatal, and thus the conduct fell outside section 307. The Court held that a person commits an offence under section 307 when he possesses the intention to murder and, in furtherance of that intention, performs any act directed toward its commission, irrespective of whether the act is the penultimate one. The Court relied on the precedent set in Abhayanand Mishra v. State of Bihar, [1962] 2 SCR 241, and also referred to Rex v. White, [1910] 2 KB, affirming that the series of acts constituting the systematic starvation fell within the ambit of section 307, and therefore the High Court’s conviction was upheld.
The Court noted that the authorities cited in paragraph 124, namely Queen v. Nidha, [1892] I.L.R. 14 All. 38 and Emperor v. Vasudeo Balwant Gogte, (1932) I.L.R. 56 BOM. 434, were considered, while the decision in Jeetmal v. State, A.I.R. 1950 Madhya Bharat 21, was expressly disapproved. The Court explained that the term “act” in section 307 of the Indian Penal Code does not refer solely to a single, isolated act performed by a person. Rather, under section 33 of the Code, “act” also embraces a series of acts. Applying this principle to the present case, the Court observed that the appellant’s pattern of regularly starving his wife, identified as B, consisted of a series of conduct that, although it did not culminate in a complete series sufficient to cause her death, nevertheless fell within the scope of section 307. Consequently, the High Court’s conviction of the appellant under that provision was affirmed as correct.
The matter proceeded before the Criminal Appellate Jurisdiction in Criminal Appeal No. 177 of 1959, which was entertained by special leave from the judgment and order dated 23 May 1958 of the Punjab High Court in Criminal Appeal No. 515 of 1957. Counsel for the appellant appeared, as did counsel for the respondent. The judgment was delivered on 24 April 1961 by Justice Raghu Bar Dayal. This appeal by special leave challenged the order of the Punjab High Court that had dismissed the appellant’s challenge to his conviction under section 307 of the Indian Penal Code. The factual matrix involved Bimla Devi, who was examined as witness 7. She had married the appellant in October 1951. By 1953 their relationship had deteriorated, leading her to reside with her brother for approximately one year. She later returned to the appellant’s household after receiving assurance from the appellant’s maternal uncle that she would not be mistreated. Despite this assurance, she alleged ongoing ill‑treatment and a progressive decline in health caused by deliberate under‑nourishment. In 1956, the appellant is alleged to have starved her deliberately, restricting her movement from the house and providing only occasional morsels akin to alms given to beggars. She was denied food for several consecutive days and was sometimes given gram husk mixed in water after five or six days without nourishment. In April 1956 she managed to leave the house, but was intercepted by Romesh Chander and Suresh Chander, the appellant’s brothers, who forcibly dragged her back and subjected her to severe beating. Subsequently she was confined within a locked room. On 5 June 1956 she discovered her room unlocked, found her mother‑in‑law and husband absent, seized the opportunity, escaped the house and reached the Civil Hospital in Ludhiana, where she consulted Dr. Mrs. Kumar, witness 2, and disclosed the maltreatment she had suffered. The appellant and his mother went to the hospital and attempted to retrieve her, but Dr. Kumar refused to allow her removal. Social workers intervened, informed Bimla Devi’s brother, Madan Mohan, who traveled to Ludhiana in response to the circumstances.
After learning all the facts, the brother of Bimla Devi wrote to the police station on 16 June 1956 and sent the information by letter. In that letter he declared, “My sister Bimla Devi Sharma is lying on her death‑bed. Her condition is very serious. She has told me that a deliberate attempt on her life has been made by her husband, mother‑in‑law, brother‑in‑law and sister‑in‑law. She also informed me that she was kept locked in a room for a long period, was beaten by the persons mentioned, and was starved. I therefore request that a case be registered and that her statement be recorded immediately.” On the same day, at about 9 minutes past 3 p.m., Dr Miss Dalbir Dhillon forwarded a note to the police stating, “My patient Bimla Devi is actually ill. She may collapse at any moment.” Shri Sehgal, the Magistrate handling PW 9, documented Bimla Devi’s statement that night and included in his note the observation that a blood transfusion was being administered through her right forearm, rendering the right hand unavailable for a thumb impression; consequently, he obtained an imprint of the thumb of her left hand. A few days later, the learned High Court judge examined photographs taken of Bimla Devi and recorded his impression, observing that the two photographs showed a woman suffering from extreme emaciation, with hollow cheeks, prominently projecting bones, scant flesh, a skeletal appearance, and a countenance that seemed cadaverous. After reviewing the testimony of Bimla Devi together with the doctors’ evidence, the learned judge concluded that the basic allegations forming the gravamen of the offense were trustworthy and that the veracity of her statement could not be doubted. He noted that a careful scrutiny of her declaration confirmed her allegations of starvation and maltreatment, and that any exaggerations or omissions identified did not affect the core truth of her narrative. Subsequently, having given anxious thought and meticulous consideration to the facts and circumstances emerging from the extensive evidence on record, the judge rejected the argument advanced by counsel for the accused that the acute emaciation observed on 5 June 1956 resulted not from calculated starvation but from a prolonged, unknown illness, a condition that the accused only learned of after Dr Gulati expressed an opinion that she suffered from tuberculosis. He further affirmed that Bimla Devi’s account of the ill‑treatment she endured and the attempt to bring about her death was convincing, notwithstanding the novelty of the method employed to achieve that end, and that the conduct of the accused and his mother on 5 June 1956, when they soon…
After Bimla Devi was admitted to the hospital, the accused and his mother repeatedly demanded that she be taken back to their home. The court observed that this insistence was not motivated by any desire to secure better medical care or any other legitimate treatment. Rather, the court found that their true purpose was to hasten her death. The additional Sessions Judge had previously acquitted the accused of the offence punishable under section 342 of the Indian Penal Code, granting him the benefit of doubt even though the judge concluded that Bimla Devi’s movements had been somewhat restricted. On appeal, the High Court examined the same factual matrix and reached a different conclusion. The High Court judge held that, on the basis of the evidence, an offence under section 307 of the Indian Penal Code had been established. Accordingly, the appellate court affirmed the finding that the accused had committed the offence of attempting to cause death. The appellant’s counsel, Mr Sethi, challenged this view, arguing that the legal duty to care for a person arises only when that person is helpless, such as an infant, an elderly individual, or a lunatic. He further contended that a husband’s legal obligation is limited to providing money and food, not to spoon‑feed his wife. The court, however, rejected these submissions, emphasizing that the findings of the trial court demonstrated that Bimla Devi had been confined and deliberately denied regular nourishment as part of a scheme to starve her, thereby accelerating her demise.
The appellant also argued that the elements of an offence under section 307 differ materially from those of an offence under section 511 of the Indian Penal Code. He maintained that, for an attempt offence, the prohibited act may be the first step toward the intended crime, whereas for section 307 the prohibited act must be the final act that, if successful, would cause death. Accordingly, the counsel asserted that depriving Bimla Devi of food, even for a period, could not fall within section 307 because that act alone could not cause death; the continued starvation would be required. The court disagreed with this contention. It observed that section 307 of the Indian Penal Code provides: “Whoever does any act with such intention or knowledge, and under such circumstances”. This provision, the court held, encompasses conduct that creates a situation in which death is the probable result, even if the fatal outcome is not immediate. Consequently, the court concluded that the accused’s acts of confinement and systematic starvation satisfied the statutory requirements of section 307, and the appellant’s arguments on this point were rejected.
The Court noted that Section 307 of the Indian Penal Code states: “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 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 is expressed in similar language and 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.” The Court observed that because the two sections are worded alike, any interpretation advanced for Section 307 in favour of the appellant must also be applied to Section 308. The Court further explained that arguments suggesting Section 307 is exhaustive of all attempts to commit murder and that Section 511 does not apply because it is limited to offences punishable with life imprisonment or imprisonment are not relevant to the offence of attempt to commit culpable homicide under Section 308. An attempt to commit culpable homicide is punishable by a definite term of imprisonment; consequently, if Section 308 had not been expressly created, such an attempt would fall within the ambit of Section 511, which covers attempts to commit any offence that is punishable by imprisonment where the Code provides no specific provision for the attempt. Therefore, the Court held that the elements constituting an attempt to commit culpable homicide not amounting to murder must be identical to those required for an attempt under Section 511. Relying on its earlier decision in Abhayanand Mishra v. The State of Bihar, the Court reiterated that a person commits the offence of attempting to commit a particular offence when he intends to commit that offence, makes preparations, and, with that intention, performs an act directed toward its commission. Such an act need not be the penultimate step but must be an act performed during the course of committing the intended offence. Accordingly, the Court concluded that a person commits an offence under Section 308 when he possesses the intention to cause culpable homicide not amounting to murder and, in pursuance of that intention, performs an act toward the commission of that offence.
In this case the Court explained that a person commits an offence under section 307 of the Indian Penal Code when he intends to murder and, in furtherance of that intention, performs any act directed toward the commission of the murder, regardless of whether that act is the penultimate step in the series of acts leading to the crime. The Court clarified that the intention to commit murder requires the individual to have the intention to do a certain act with the specific intention or knowledge that is enumerated in section 300 of the Code. This intention to commit the offence is distinct from the intention or knowledge that is required for the act itself to constitute the offence.
The Court observed that the phrase “whoever attempts to commit an offence” in section 511 can be understood to mean “whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence.” The same interpretation applies to the wording in section 307 which states “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.” This language indicates that the act must be performed with the intention or knowledge required for murder, but it does not demand that the immediate result of the act be death. The death may occur immediately or after a lapse of time as a consequence of the act.
The Court further explained that the term “act” under the Code is not limited to a single, instantaneous movement of a person. According to section 33, “act” can also denote a series of conduct. The appellant’s conduct of regularly depriving Bimla Devi of food constituted a series of acts. Because the series was incomplete, the appellant’s conduct fell within the scope of section 307 of the Code.
The appellant’s counsel referred the Court to several authorities. The first authority discussed was the case of Queen Empress v. Nidha. In that case the accused, while on the run, saw some chowkidars approaching, raised a blunderbuss to his hip and pulled the trigger. The cap exploded but the charge did not fire. The Sessions Judge convicted the accused under sections 299 and 300 read with section 511, not under section 307. The learned Judge relied on the Bombay case Regina v. Francis Cassidy, which held that for an offence of attempt to murder under section 307, the act must be capable of causing death in the ordinary course of events.
Justice Straight, however, distinguished the Cassidy case and rejected some of the views expressed therein. He articulated his position at page 43 of the report, stating that the offence of attempt to murder does not require the act to be the last possible act before the crime is completed, but rather that the intention and the act directed toward the crime are sufficient, even if the act does not immediately result in death.
In the passage under consideration, the judge observed that when a person harbours a malicious intent and performs the final possible act that could lead to the achievement of the crime he has contemplated, he cannot invoke an unforeseen obstacle that he did not anticipate as a defence. The judge stated that if the individual has done everything within his power and has completed the only remaining proximate act available to him, he should not be allowed to escape criminal liability merely because an unexpected circumstance, unknown to him and contrary to his belief, intervened to prevent the result that his act was intended to produce. The judge further explained that the individual’s own will and purpose have been fully actualised, and an intervening fact that the accused could not have foreseen does not relieve him of responsibility. The judge referred to an earlier example that appeared inconsistent with his later view. He illustrated that no one would argue that a person who intends to set fire to a stack of goods and first purchases a box of matches in a grocery shop has already committed an attempt. However, if that same person, after acquiring the matches, proceeds to the stack, lights a match, and the match is extinguished by a sudden puff of wind, the judge held that such interference would constitute an attempt. The judge clarified that the last act required to set fire to the stack would be the act of applying the lit match to the stack, and without this act the fire could not be started; the wind‑caused extinguishment prevented the completion of that act. He then referred to illustration (d) to section 307, which demonstrates the flaw in this reasoning. The illustration states that a person, A, intending to murder Z by poisoning, purchases poison, mixes it with food kept by A, and then places the food on Z’s table or delivers it to Z’s servants for placement on the table. At this stage A has not yet committed the offence defined in the section, yet the illustration declares that A has already committed the offence. In this scenario, A’s last act – delivering the food to the servant – is not an act that must directly result in Z’s death; the food must still be taken and consumed by Z. Although A may not have been in a position to serve the food himself, the act of delivering it remains remote from the eventual consumption by Z. The judge’s opinion was therefore not directed specifically at the offence under section 307, but rather at attempts to commit any particular offence, and it was expressed to underscore the necessity of performing the final act that would lead to the commission of the intended crime.
In this case, the Court observed that the offence under section 307 of the Indian Penal Code required two elements: first, an evil intent or knowledge, and second, an act performed toward the commission of the offence. The Court noted that the purpose of the provision was to punish an attempt to commit murder when the accused, by his guilty intention and knowledge, performed an act that would have resulted in murder had it not been for an intervening circumstance. The Court cited Emperor v. Vasudeo Balwant Gogte (1) where a person fired several shots at another but the shots failed to cause injury because of an obstruction, and the accused was convicted under section 307. Beaumont, C. J., was quoted as stating that the accused must do an act with such guilty intention and knowledge that, but for some intervening fact, the act would have amounted to murder in the normal course of events. The Court agreed with this formulation.
The Court then applied this principle to the present facts, explaining that the intervening fact which prevented the appellant’s attempt to murder Bimla Devi was her escape from the house, her successful arrival at a hospital, and the receipt of appropriate medical treatment. The Court further explained that in attempts to commit murder by firearm, the act constituting the attempt is the final act of the perpetrator. Until the firearm is discharged, no act toward the commission of the offence is deemed to have occurred; once the shot is fired, the attempt is complete even if some circumstance later prevents the shot from taking effect. The Court emphasized that expressions indicating that an attempt to murder occurs only when the last act necessary to cause death has been performed are not precise definitions of law, although they are correct in the context of the cited cases.
The Court considered the decision in Mi Pu v. Emperor (1), where a person who had placed poison in food was convicted under section 328 read with section 511 because the quantity of poison and its probable effects were not established, leading to the conclusion that the accused could not be said to have intended more than hurt. The Court held that this case was not relevant to the question before it. Similarly, the Court referred to Jeetmal v. State (2), which held that an act under section 307 must, by itself, be ordinarily capable of causing death in the natural ordinary course of events. The Court noted that this principle was applied in Cassidy’s Case (3) but not approved in Niddha’s Case (4) or Gogte’s Case (4). Finally, the Court mentioned Rex v. White (6), where the accused, indicted for the murder of his mother, was convicted of an attempt to murder, illustrating that the completion or attempted completion of one act in a series intended to result in death satisfies the requirement of an attempt.
It was established that the accused placed two grains of potassium cyanide into his mother’s wine glass with the intention of killing her. The defense contended that no attempt at murder had occurred because the act of putting the poison into the glass constituted a completed act that was not intended to cause immediate death; the defense argued that the poison could not cause death unless it were followed by further acts which the appellant might never have performed. The Court rejected this argument. In its reasoning the Court observed that the trial judge had clearly instructed the jury that, if the case involved a slow‑acting poisoning, the appellant would be liable for an attempt to murder. The Court affirmed that this instruction was appropriate. It further held that the completion, or the attempted completion, of any one step in a sequence of acts that a person intends to bring about the death of another qualifies as an attempt, even though that single step, taken alone, would not cause death without subsequent acts. The Court cited earlier authorities, namely (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; and (6) 1910 2 K.B. 124, to support the proposition that the beginning of the intended series of acts constitutes an attempt. Accordingly, the Court concluded that the conviction of the appellant under section 307 of the Indian Penal Code was proper. The appeal was therefore dismissed, and the order of conviction was affirmed.