Sarju Prasad vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 20 August, 1964

Coram: A.K. Sarkar, Raghubar Dayal, J.R. Mudholkar

In the appeal titled Sarju Prasad versus State of Bihar, decided on 20 August 1964, the Supreme Court of India, with Justice J.R. Mudholkar authoring the judgment and a bench comprising Justices A.K. Sarkar, Raghubar Dayal and J.R. Mudholkar, exercised a special leave jurisdiction to hear a question framed by the Court. The special leave that was granted was limited expressly to the single issue of whether the appellant’s conduct constituted an offence punishable under Section 307 of the Indian Penal Code. The factual background, as determined by the trial court and affirmed by the Patna High Court, recorded that on 23 February 1961 two persons, namely Madan Mohan Sinha (identified as plaintiff‑in‑person 1) and Shankar Prasad Shrivastava (plaintiff‑in‑person 3), were assaulted while traversing Dharman Chowk at approximately one‑thirty in the afternoon. The assailant, Sushil Chand Jain, employed a chhura (a type of knife) to inflict grievous injuries on both victims. The investigation concluded that the injuries were inflicted by Sushil Chand with such intent, knowledge and under circumstances that, had they resulted in death, the offences would have fallen within the ambit of Section 307. The appellant, Sarju Prasad, was also found to have taken part in the same incident and to have caused injuries of a similar nature to Shankar Prasad, acting with a comparable intent. Consequently, both Sushil Chand and Sarju Prasad were convicted by the Second Assistant Sessions Judge, Arrah, under Section 324 and Section 307 of the Indian Penal Code. Sarju Prasad received a rigorous imprisonment term of seven years together with a monetary fine. Both of their appeals against conviction and sentence were dismissed by the Patna High Court, after which Sarju Prasad approached this Court seeking special leave. It is noted that a separate special leave petition filed by Sushil Chand, while he was in custody, was summarily rejected by this Court.

The record also shows that the parties concurred that the act for which the appellant was convicted under Section 307 involved inflicting an injury on a vital region of Shankar Prasad’s body, although no vital organ was actually severed as a result of that injury. Counsel for the appellant therefore argued that the injury should be characterised as a simple wound, and because it was not of the type that, in the ordinary course of nature, would be expected to cause death, the proper charge should be under Section 324 rather than Section 307 of the Indian Penal Code. According to the appellant’s counsel, establishing liability for an attempted murder under Section 307 requires the prosecution to prove that the act committed by the accused was of a nature that would, under ordinary circumstances, be likely to cause death. Since the injury in question was simple and did not involve damage to any vital organ, the counsel contended that the statutory requirement for Section 307 was not satisfied. The counsel further relied upon the precedent set in Reg v. F. Cassidy, reported in the fourth volume of the Bombay High Court Criminal Reports at page 17, a decision that was subsequently followed in the case of Martu v. Emperor, reported in the fifteenth volume of the Bombay Law Reporter at page 991, to support the proposition that for a conviction under Section 307 the act must be capable of causing death in the ordinary course of nature. The Court was therefore invited to consider whether the facts of the present case met that legal threshold.

In this case, the Court referred to the decision in Emperor, 15 Bom LR 991, which held that for a person to be convicted under Section 307 of the Indian Penal Code, the act must be done under circumstances that could cause death if the act succeeded; that is, the act must be capable of causing death in the natural and ordinary course of events. The Court noted, however, that this reasoning was not followed by the same High Court in Wasudeo Balwant Gogte v. Emperor, ILR 56 Bom 434 (AIR 1932 Bom 27.9). The Court observed that many other High Courts had decided in the same way as the Gogte decision. In that case, Chief Justice Beaumont, referring to the Cassidy case, 4 Bom HC (Cr.) 17, remarked that if the reasoning in Cassidy about the construction of Section 307 were correct—namely that the act must be capable of causing death in the ordinary course—then the section would never have any effect. He explained that when an act in fact does not cause death, it is impossible to say that the same precise act might have caused death; only a change in the act could produce a different result, and the degree of change required to create the hypothetical death contemplated by Section 307 is merely a question of degree. Chief Justice Beaumont gave the example of a man who points at his enemy a gun he believes to be loaded but which is actually empty, intending to commit murder, as in Cassidy. He stated that it is certain that no death will result from that act. He added that it is equally certain that no death will result if the accused fires a revolver at his enemy and, because of a mis‑aim or the movement of the target, the bullet does not strike the intended victim. He continued that if Section 307 does not cover a man who fires a gun with the intent to kill but misses his aim, it is difficult to see how the section could ever operate. After pointing out that the Allahabad High Court had not followed this reasoning in Queen Empress v. Niddha, ILR 14 All 38, the learned Chief Justice explained that the words “under such circumstances” refer to situations that would provide a defence to a charge of murder, such as self‑defence or acts committed in the course of military duty. He further stated that when an act is done with a guilty intention and knowledge, in circumstances that do not, by their nature, afford a defence to murder, and when the act is of such a nature that it would have caused death in the usual course of events but for some intervening circumstance beyond the accused’s control, then the case falls within Section 307.

In this case, the Court observed that the learned Chief Justice had explained that for an act to fall within Section 307 of the Indian Penal Code, it must be shown that, but for some intervening circumstance beyond the accused’s control, the act would have caused death. The Chief Justice further clarified that the phrase “under such circumstances” referred to situations that would ordinarily give a defence to a murder charge, such as self‑defence or lawful military duty. However, when the act is performed with a guilty intention and knowledge, and in circumstances that do not themselves afford a defence, the act must be of a nature that would ordinarily result in death unless prevented by an external factor. The Court noted that if such an external factor prevented the fatal result, the offence would still be covered by Section 307. Applying this principle to the present facts, the Court found that there was no evidence that a fatal injury or an injury to a vital organ had been averted by any intervening circumstance. Consequently, the requirement that the act would have resulted in death but for such an intervening fact was not satisfied in the present case.

The Court then turned to the authority previously considered by this Court in Om Prakash v. State of Punjab and examined the views expressed in several other decisions. Although Cassidy’s case, reported in 4 Bom HC (Cr.) 17, had not been expressly dissented from, the Court indicated that its reasoning aligned more closely with the opinion of Beaumont C.J. in Gogte’s case, reported in ILR 56 Bom 434 (AIR 1932 Bom 279), as well as with the view of the Allahabad High Court in Niddha’s case, reported in ILR 14 All 38. In Gogte’s case, the victim, Sir Ernest Hotson, the then acting Governor, escaped injury because a certain obstruction prevented the shot from striking him. Nonetheless, the Court held the assailant liable under Section 307 because the act of firing the shot was carried out with a guilty intention and knowledge, and because, but for the intervening obstruction, the act would have amounted to murder in the normal course of events. This reasoning was approved by this Court. The present Court therefore concluded that the mere fact that the injury actually inflicted by the appellant did not penetrate a vital organ of Shankar Prasad was not, by itself, sufficient to exclude the act from the operation of Section 307.

Finally, the Court emphasized that the burden of proof remained on the prosecution to demonstrate that the appellant’s intention in causing the particular injury to Shankar Prasad fell within any of the three categories of intention specified in Section 300 of the Indian Penal Code. Unless the prosecution satisfied this burden, the charge under Section 307 could not be sustained. The Court explained that the appellant’s state of mind had to be inferred from the surrounding circumstances, and that the existence of a motive to cause death would be a relevant circumstance, as correctly pointed out by counsel. However, the prosecution had produced no evidence from which a motive to kill Shankar Prasad could be inferred. Moreover, the appellant had no personal enmity with the victim, the two parties did not know each other, and the appellant’s only purpose in striking Shankar Prasad was to compel him to release the wrist of Sushil, who was in the act of stabbing Madan Mohan. Accordingly, the Court found that no intention to cause death, nor any intention to cause an injury likely to result in death, could be deduced from the evidence, and consequently the prosecution’s case under Section 307 failed.

The judgment observed that the prosecution had alleged that, approximately a week before the incident, Sushil had issued a threat to Madan Mohan, indicating that a lesson would be taught to him. According to the prosecution’s version, Sushil and the appellant, Sarju, were said to have lain in wait for Madan Mohan at the chowk on the day in question, each armed with a chhura, and with the purpose of murdering him. The prosecution further sought to infer that the two conspirators also intended to kill any person who might come to Madan Mohan’s rescue. However, the judgment noted that, based on the facts that had been established, it could not be said that the appellant possessed the intention to cause the death of Shankar Prasad or of any individual who might intervene on behalf of Madan Mohan. The judgment added that, had the appellant entertained such an intention, a material circumstance might have arisen that could have deterred him: namely, that Madan Mohan and Shankar Prasad were not alone at the scene but were accompanied by other persons. Moreover, the incident had taken place in broad daylight at a chowk, an area that is ordinarily well frequented. In light of these surrounding circumstances, the judgment found it difficult to assume that the appellant could have intended to commit an offence for which the law prescribed the death penalty.

The judgment then turned to the remaining issue of whether the appellant had intended to cause an injury that he knew was likely to result in death, or whether he had intended to inflict an injury sufficient in the ordinary course of nature to cause death, or whether he knew that his act was so imminently dangerous that it would, in all probability, cause death or an injury likely to cause death. It was acknowledged that witnesses had testified that the appellant had used a chhura, and that the injury had been inflicted on a vital part of the body. Nevertheless, the judgment emphasized that no vital organ had been injured by the blow. In the absence of information regarding the size of the chhura, the judgment concluded that it could not be said with certainty that the weapon was large enough to penetrate the abdomen deeply enough to reach a vital organ, an injury that would ordinarily be fatal. The chhura itself had not been recovered, and the prosecution had failed to elicit from the witnesses any particulars concerning its dimensions. Consequently, the judgment was unable to determine with any degree of certainty that the appellant possessed the requisite intention or knowledge under the relevant statutory provision. It was also pointed out that Shankar Prasad had not asserted that, after releasing Sushil’s wrist, the appellant had inflicted or even attempted to inflict any further injury upon him. In view of the state of the evidence, the judgment held that the prosecution had not succeeded in establishing that the offence committed by the appellant fell squarely within the ambit of Section 307 of the Indian Penal Code.

In this case the Court examined the nature of the offence alleged against the appellant under the Indian Penal Code. After reviewing the evidence, the Court concluded that the conduct described could be sustained only under Section 324 of the Indian Penal Code and did not rise to a higher provision. Counsel for the appellant, identified as Mr Kohli, then drew the Court’s attention to the appellant’s age, stating that he was younger than twenty‑one years at the time of the alleged act. The counsel argued that, because of the appellant’s minority, Section 6 of the Probation of Offenders Act 1958 barred the Court from imposing a term of imprisonment for an offence that is not punishable with death or life imprisonment. The Court noted that the State of Bihar had adopted the provisions of the Probation of Offenders Act by way of Notification No DPS/118‑JL dated 4 June 1959. Relying on this statutory framework and on the earlier decision of this Court in Ramji Missar v State of Bihar, the Court held that it could not order a custodial sentence against the appellant. Consequently, while allowing the appeal in part, the Court directed that the matter be sent back to the High Court for it to determine the appropriate order, applying the provisions of Section 6 of the Probation of Offenders Act.