Bakhshish Singh vs The State

Teja Singh, C.J.—This is a revision petition directed against the order of the Sessions Judge, whereby the petitioner''s appeal from an order of Magistrate convicting him u/s 307, I.P.C. and sentencing him to 31/2 years'' rigorous imprisonment and also requiring him.

to execute a bond with a surety in the sum of Rs. 5,000/- for undertaking to keep peace and to be of good behaviour for a period of one year after his release from Jail was dismissed.

The facts of the case he within a narrow compass. The prosecution alleged that on 19-6-48 P/W Gurdev Singh and a number of other persons were proceeding from Malerkotla to their village Kothala. On the way, they were accosted by the appellant and four other persons. The petitioner asked one of Gurdev Singh''s companions to get aside because he had to settle his account with Gurdev Singh, Teja Singh and Sadhu Singh. Gurdev Singh and his friends tried to save themselves by taking shelter under bushes but, as they were doing so, Bakhshish and his companions started firing upon them. Gurdev Singh who was also carrying a gun fired back upon his opponents. The exchange of shots went on for sometime but no one was injured and since the noise attracted the attention of the village that was situated nearby the petitioner and his companions made good their escape. The report to the Police Station was made on the following day.

The prosecution maintained that the intention of the petitioner was to kill Gurdev Singh and that he had a motive for this. The father of Gurdev Singh had been murdered sometime before the present occurrence and for this a case had been registered and put in court against Bakhshish Singh and some other persons. Bakhshish Singh became an absconder but the proceedings in the case were going on against the other accused. We are told that Gurdev Singh, Sadhu Singh and Teja Singh had been cited in that case as eyewitnesses and at the time they were attacked they were returning from Malerkotla where they had gone to give evidence.

Bakhshish Singh denied his guilt and stated that he never went to the place where Gurdev Singh and others were fired at. Some of the witnesses who were produced by him in defence stated that the persons who exchanged fire with Gurdev Singh and his companions were strangers and Bakhshish Singh was not one of them. Both the trial court and the learned Sessions Judge rejected the petitioner''s plea and after taking into consideration the entire evidence produced by the prosecution came to the conclusion that the version given by the prosecution was fully established and there could be no doubt of the petitioner''s guilt. After hearing the petitioner''s counsel I do not find any reason to interfere with the concurrent finding of the Courts below.

It was then urged by the petitioner''s counsel that the offence did not fall within the purview of Section 307, I.P.C. He argued that according to the evidence of Gurdev Singh and other witnesses, who corroborated his testimony, the distance between the petitioner and Gurdev Singh at the time the former is alleged to have opened fire was 50 to 60 Karams and since it was impossible for the shots to hit Gurdev Singh from that distance it cannot be said that the petitioner''s act amounted to attempt to murder. The words of section 307 are:

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 transportation for life or to such punishment as is hereinbefore mentioned.

Counsel laid particular stress upon the words "under such circumstances" and contended that the use of these words in the section indicated that unless the act committed by the accused was capable of causing death, it could not amount to attempt to murder. As I read the section, it appears to me that these words have nothing to do with the question "whether the act committed by the accused could or could not cause death", but relate to the nature of the offence which the accused would have committed, if his act did cause death. I am further of opinion that the Legislature considered it necessary to use these words, because every act which results in causing death is not punishable as murder and in order that it be so punishable, it must, in the first place, satisfy requirements of intention or knowledge according to the provisions of section 300, and, secondly, it should not fall within one of the exceptions to the said section.

If those requirements are not satisfied or the case comes within any of the exceptions, even if death results from the act it merely amounts to culpable homicide not amounting to murder. It will be noticed that the words "under such circumstances" are also used in section 308 which relates to attempt to commit culpable homicide and the reason is the same, because before an act can amount to culpable homicide not amounting to murder, circumstances under which it is committed and the intention or knowledge with which it is accompanied are required to be proved.

The other important fact is that both in section 307 and in section 308 the phrase "under such circumstances" does not stand by itself and it has to be read in conjunction with "such intention or knowledge". What I mean is that according to the words of these sections, before we can hold that the act committed by the accused amounts to attempt to murder or attempt to commit culpable homicide, we should be satisfied that the act was committed with such intention or knowledge and under such circumstances that if it had caused death, it would have amounted, in one case, to murder and in the other case, to culpable homicide not amounting to murder. This means that "intention or knowledge" and the "circumstances under which the act is committed" have to be considered for the same purpose and the only purpose i.e. to find out what the nature of the offence would have been if death had been caused.

I was referred to ''JIWAN DAS v. EMPEROR'', 30 Pun Re Cr 1904. The facts found in that case were that two persons, G.M. and S.M., were proceeding towards a town. There was ill-will between G.M. and the accused and certain remarks made by the former against the accused on a previous occasion were resented by him. When G.M. and. S.M. came opposite to a shop, the accused came running up after them holding an axe on his shoulder and ready to strike. He called out to G.M. from a distance of some four kadams "I, the pagal, have come, take care of yourself", whereupon G. M. ran off and took refuge in the shop, accused meanwhile being seized and disarmed by his brother and one Bahawala who came from the opposite side. The question was whether the offence committed by the accused amounted to attempt to murder. It was held that the act punishable under this section is an act which is capable of causing death or in other words, section 307 only applies when the accused has done an act which if carried to its utmost possible limits without any interference from without, would have caused death. But while coming to this conclusion the learned Judge did not refer to the phrase "under such circumstances" and observed: "In the case before me, the acts which were done by the accused were (1) running after the complainant with an axe in hand and (2) raising the axe to the shoulder when about four kadams from the complainant. Neither of the acts could ''per se'' possibly cause death. Had the accused gone further and had he struck at the complainant with the axe he would no doubt have done an act capable of causing death, and if he had done that act with such intention or knowledge that if by that act he had actually caused death he would be guilty of murder, he would clearly have committed an offence u/s 307 if death had not in fact been caused simply because some cause independent of his volition had prevented death from being so caused. But, on the facts as established, the accused did not do any act which could itself have caused death, etc."

Now if intention and knowledge are relevant only with a view to finding out whether the act committed by the accused would ultimately have amounted to murder, if death had been caused, my opinion is that the same is the case with the phrase "under such circumstances." For the sake of an example, let us take a case in Which A is attacked by B with a dangerous weapon and it becomes clear to him that unless he defends himself he is likely to be killed by B. On this A whips out his pistol and fires at B with the object of killing him, but the shot misses B. Taking into consideration the weapon used and the relative positions of A and B, there can be no doubt that A''s intention was to kill B and he had also the knowledge that if the shot fired by him took effect, it would mean B''s death, but the circumstances which led to the firing were such that if B had died as a result of the shot,.A would not have been guilty of murder. Consequently, A''s act could not be described as attempt to murder.

The petitioner''s counsel also relied upon ''REG v. FRANCIS CASSIDY'', 4 Bom H.C.R. 17. In that case, the accused presented an uncapped rifle, believing it to be capped, at the complainant, but was prevented from pulling the trigger. It was held that he could not be convicted under B. 307 I.P.C. The observations made by Couch C.J. were as follows:

Now it appears to me, looking at the terms of this section, as well as at the illustrations to it, that it is necessary, in order to constitute an offence under it, that there must be an act done under such circumstances that death might be caused if the act took effect. The act must be capable of causing death in the natural and ordinary course of things; and, if the act complained of is not of that description, a prisoner cannot be convicted of an attempt to murder under this section.

This case was dissented from by the Allahabad High Court in ''QUEEN EMPRESS v. NIDDHA'', 14 All. 38. This is what the learned Judge said-

Now the difficulty is made in the Bombay case to which I have referred by the words of S. 307 which say ''whoever does any act etc... The learned Judges of Bombay lay very great stress upon the words "under such circumstances." With the utmost respect for them, I think they have attached too much importance to those words. The words "under such circumstances" have, in my opinion, no other meaning than this, that the act must be done in such a way and with such ingredients that if it succeeded, and death was caused by it, the legal result would be murder according to Ss. 299 and 300. The same words are used in the section dealing with the attempt to commit culpable homicide and I cannot read them as requiring me to go the length of Sir Richard Couch in the second paragraph of the judgment delivered by him in the case of Cassidy. Still it may be that the learned Judge''s remarks were applied to the particular facts of that particular case, and possibly they ought not to be read as having any application beyond the facts that were then before the Court.

The same view was taken by a Bench of the Bombay High Court in ''EMPEROR v. VASUDEO'' 56 Bom. 434 in Which ''NIDHA''S CASE'', 14 All 33, was followed. After referring to the above mentioned case and quoting a passage from the judgment of that case, this is what Beaumont C.J., remarked.

I myself prefer the reasoning of Mr. Justice Straight in that case to the reasoning of this Court in "REG v. FRANCIS CASSIDY'', 4 Bom. H.C.R. 17 although, as I have pointed out it is not necessary for us to differ from the latter decision, which is indeed binding upon us, because the facts in that case were quite different from the facts with which we have to deal. I think that what section 307 really means is that the accused must do an act with such a suilty 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. I think that the words "under such circumstances" have not such a wide meaning as was given to them in ''REG v. CASSIDY''. Those words, in my opinion, refer to facts which would introduce a defence to a charge of murder, such as, for instance, that the accused was acting in self-defence or in the course of military duty. But if you have an act done with a sufficiently guilty intention and knowledge and in circumstances which do not from the nature afford a defence to a charge of murder, and if the act is of such a nature as would have caused death in the usual course of events but for something beyond the accused''s control which prevented that result, then it seems to me that the case falls within section 307.

With these remarks I respectfully agree. After having disposed of the contention of the petitioner''s counsel as regards the exact import of the phrase "under such circumstances" used in section 307, the question to be considered is whether the petitioner could even otherwise be convicted u/s 307. The argument of his counsel was that only that act could be described as attempt to murder which if it had been carried to its logical sequence would have resulted in death and since in the present case the distance between the petitioner and his intended victim was such that the shots fired at by the former could not hit the latter at all, no death could have resulted. In support of this contention also, he relied upon ''CASSIDY''S CASE'', (4 Bom. H.C.R. 17) and upon ''JIWAN DAS v. EMPEROR'', < 30 Pun. Re. Cr. 1904) which I have already noticed, and also upon ''MARTU VITHOBA PRABHU v. EMPEROR'', (21 Ind. Cas. 881 Bom.) and '' Jeetmal Vs. State,

In the former case, the accused struck his wife on her neck with an axe and caused a simple incised wound. He was convicted u/s 307 I.P.C. On appeal, the High Court held that upon the facts of the case, the accused should have been convicted u/s 324 I.P.C. The learned Judges relied upon ''CASSIDY''S CASE'', and observed that it seems clear from the words of S. 307, and also from the illustrations appended to the section that the only act which could fall within the purview of the section is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events. In ''JEETMAL''S CASE'', the weapon used was an axe and the injuries caused were simple. The learned Judges held that the offence was punishable u/s 324 I.P.C, and made the following observations:

An act contemplated by section 307, Penal Code, is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events. To sustain conviction u/s 307, it is necessary that there must be an act done under such circumstances as death might be caused if the act took effect. The act must be capable of causing death in the natural and ordinary course of things; and if the act complained of is not of that description, the assailant cannot be convicted of an attempt to commit murder u/s 307. Here from the nature of injuries discussed by me above, it appears to me that it was not the intention of the accused nor he had knowledge that it was likely to cause death. For the purposes of section 307, what is material is the intention or knowledge, not the consequence of the actual act done for the purpose of carrying out the intention.

The counsel for the State on the other hand relied upon ''QUEEN EMPRESS v. NIDDHA'', (14 All. 38) and ''EMPEROR v. VASUDEO'', (56 Bom. 434) also noted above. The following observations made by Straight J., in ''NIDDHA''S CASE'', can be quoted with advantage: "For the purpose of constituting an attempt u/s 307, Indian Penal Code, there are two ingredients required, first, an evil intent or knowledge, and secondly, an act done, I guard myself by saying that not every act done would be sufficient, as has been pointed in the well known case of ''REG v. BROWN'', (1883 10 QBD 381). No one could 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.

It seems to me that if a person who has an evil intent does an act which is the last possible act that he would 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 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, to their full extent, a fact unknown to him and variance with his own belief intervened to prevent the consequences of that act which he expected to ensuing.

It may be mentioned here that in that case Ram Lai and Nidha accused were absconding criminals against whom a warrant had been granted for arrest upon a charge of dacoity Certain chowkidars received information of their whereabouts and went to fields accompanied by some other persons for the purpose of taking them into custody. As soon as the accused perceived the men advancing they jumped up and Ram Lal fired a gun straight at them. This missed. Nidha then brought up a sort of blunderbuss he was carrying to the hip and pulled the trigger. The cap exploded but the charge did not go off. After that, there was a struggle between the two parties and Niddha was arrested It was proved that the blunderbuss or the carbine that Niddha was carrying was loaded when captured. No cap was found but the hammer was fitted with the nipple. The question was whether in view of these facts, Niddha had committed an offence of attempt to murder. The learned Judge answered this question in the affirmative. His words are-

In the present case, looking to all the facts, I have no doubt that the appellant had had his carbine capped, that at the time he pulled the trigger and the hammer fell he believed it to be capped, that whether it was or was not capped at that time, the failure to discharge the weapon was wholly independent of any action of his; and that not only did he have the intent to shoot the ''chowkidar'' and his party who were attempting to arrest him, but that he did the last proximate act that he could do to the completion of the full act that was within his intention and knowledge.

In ''VASUDEO''S CASE'', (56 Bom. 434) it was proved that the accused fired shots at his intended victim at point blank range, but they failed to take effect owing to some defect in the ammunition or to the intervention of a leather wallet and folded currency notes in the pocket of the coat which the latter happened to be wearing. The argument addressed by the petitioner''s counsel was that since the act of the accused could not have caused death in the ordinary course, he was not guilty of attempt to murder and reliance was placed by him on ''CASSIDY''S CASE'', (4 Bom. H.C.R. 17). Some of the observations made by Beaumont C.J. have already been quoted above. As regards the question, namely, whether it was necessary that before an act could amount to attempt to murder it should be capable of causing death in the ordinary course, this is what His Lordship observed:

If the reasoning of the learned Judges in that case ''(CASSIDY''S CASE)'', be right as to the construction of section 307, and if the act committed by the accused must be an act capable of causing death in the ordinary course, it seems to me that logically the section could never have any effect at all. If an act is done which in fact does not cause death, it is impossible to say that that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in section 307 is merely a question of degree. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder, it is no doubt certain that no death will result from the act. But equally certain is it that no death will result if the accused fires a revolver at his enemy in such circumstances that in fact, whether through defect of aim, or the activity of the target, the bullet and the intended victim Will not meet. If, however, section 307 does not cover the case of a man who fires a gun at his enemy with intent to kill him but misses his aim, it is difficult to see how the Section can ever have any operation.

Following these authorities, I hold that if a man commits an act with such intention and knowledge and under such circumstances that if death had been caused the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual course of events but for something beyond his control which prevented that result his act would be punishable as an attempt to murder.

Coming now to the facts of the present case. As I have already observed, it has been established beyond doubt by the prosecution that the accused fired at his opponents with his gun, and taking into consideration the fact that the firing went on for sometime it cannot be denied that either the intention of the accused was to cause death or he had knowledge that death would be caused. The contention that the intention of the accused was merely to scare away his opponents cannot be correct, because according to the evidence of the prosecution witnesses as soon as he fired the first shot his opponents ran in older to take shelter under the bushes but the accused still went on firing.

As regards the distance between the two parties the evidence is not very clear. No doubt some of the prosecution witnesses stated that it was 50 to 60 karams but it was only approximate distance that they gave and, it would not be right to accept their statements on this point as gospel truth, particularly when D/W 2 gave the distance as 25 karams and some other defence witnesses as 35 karams. The mere fact that firing between the parties went on for sometime would go to show that each one of them believed that they were within the range of fire, and if the shots had hit Gurdev Singh he would have been killed in the usual course of events. The reason, why the shots missed may have been that the ammunition used was defective or the accused was unable to take the correct aim and since both these matters were beyond his control the offence committed by him amounted to attempt to commit murder.

The last point urged by the petitioner''s counsel was that the Magistrate''s order calling upon the accused to furnish security in the sum of Rs. 5,000/- to keep peace and be of good behaviour for a period of one year, and, in default to undergo one year''s further rigorous imprisonment was erroneous in law. His objections were twofold; one, that the Magistrate gave no reasons in support of the action that he took and second, that the accused could be called upon to execute a bond with or without surety only for keeping the peace and not for being of good behaviour. Both the objections appear to me to be well-founded. As regards the first it is clearly mentioned in Section 108 Cr. P. Code, under which the Magistrate evidently made the order, that a court may order an accused person when he is convicted of an offence punishable under Chapter VIII, Penal Code, or of any other offence involving breach of the peace, etc. to execute a bond for a sum proportionate to his means, if it is of opinion that it is necessary to require such person to execute a bond for keeping the peace but the Magistrate in his order has not said a single word on the point.

As regards the bond that can be taken under the Section, the words of the Section show that it can only be for keeping the peace, but the Magistrate as mentioned above, has called upon the accused to execute a bond not only to keep peace but also to be of good behaviour. In addition, I wish to point out that since the accused has been sentenced to a substantial term of imprisonment, there appears to be no reason why he should have been required to furnish a bond for keeping the peace. The condition would have been quite different if it had been alleged on the part of the prosecution that the accused was by temperament violent or there were other reasons to think that he was likely to indulge in a crime of this nature after his release, but no such allegation appears to have been made either in the course of the trial or before me.

The result is that the Revision fails on merits and is dismissed, but the last part of the Magistrate''s order requiring the accused to execute a bond with a surety in the sum of Rs. 5,000/- is set aside.