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Sanku Sreedharan Kottukallil Veettil Konathadi Kara Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 326 of 1968 and Criminal Revn. No. 12 of 1968
Judge
Reported inAIR1970Ker98; 1970CriLJ688
ActsIndian Penol Code, 1860 - Sections 40, 88, 89, 92, 307 and 326; Code of Criminal Procedure (CrPC) , 1898 - Sections 439(1) and 439(4)
AppellantSanku Sreedharan Kottukallil Veettil Konathadi Kara
RespondentState of Kerala
Appellant Advocate S. Easwara Iyer and Thomas John, Advs.
Respondent AdvocateState Prosecutor
Cases ReferredIn R. v. Grimwood
Excerpt:
criminal - grievous hurt - sections 40, 88, 89, 92, 307 and 326 of indian penal code, 1860 and section 439 (1) and 439 (4) of criminal procedure code, 1898 - accused acquitted of charge under section 307 - no appeal against that acquittal - having regard to section 439(1) acquittal cannot be converted into to conviction in exercise of revisional powers. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a motor cycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed of by the owner of the.....raman nayar, ag. c.j. 1. the accused person in this case, sreedharan aged 42 was tried by the additional assistant sessions judge, kottayam. on charges under sections 307 and 324 of the indian penal code the charge under section 307 related to an assault with a knife on one balakrishnan, who has been examined as pw. 1 at the trial, and that under section 324 to an assault on balakrishnan's brother, karunakaran, who has been examined as pw. 2. the learned judge came to the conclusion that the mens rea necessary for an offence under section 307 had not been made out -- he seems to have thought that a clear intention to cause death was necessary and, in doing so, he relied on two decisions by a single judge of this court in moidu v. state of kerala, 1967 ker lt 223 and isaac v. state of.....
Judgment:

Raman Nayar, Ag. C.J.

1. The accused person in this case, Sreedharan aged 42 was tried by the Additional Assistant Sessions Judge, Kottayam. on charges under Sections 307 and 324 of the Indian Penal Code The charge under Section 307 related to an assault with a knife on one Balakrishnan, who has been examined as Pw. 1 at the trial, and that under section 324 to an assault on Balakrishnan's brother, Karunakaran, who has been examined as Pw. 2. The learned Judge came to the conclusion that the mens rea necessary for an offence under Section 307 had not been made out -- he seems to have thought that a clear intention to cause death was necessary and, in doing so, he relied on two decisions by a Single Judge of this court in Moidu v. State of Kerala, 1967 Ker LT 223 and Isaac v. State of Kerala, 1967 Ker LT 689, a third more or less on the same lines Krishnan v. Abdulla, 1968 Ker LT 929 has been brought to our notice in the course of the hearing. He found the accused guilty under Section 326 I.P.C. for the assault on Pw. 1 --even so he had to rely on Pw. 1's detention in hospital for over 20 days for folding that the injury, a disembowelling incised wound, was grievous--and under Section 324 I.P.C. for the assault on Pw. 2; and he sentenced the accused to suffer rigorous imprisonment for 18 months for the former offence and for four months for the latter, the (Sentences to run concurrently.

In Calendar revision It was observed that the offence seemed to be really one under Section 307 I.P.C: but obviously in view of the prohibition in Sub-section (4) of Section 439 of the Criminal Procedure Code against the conversion of an acquittal into a conviction and the fact that it was possible to impose an adequate sentence for the offence without altering the finding of the Court below, notice was issued to the accused only to show cause against enhancement of his sentence; however, at the hearing the propriety of the acquittal of the charge under Section 307 I.P.C. and of the conviction actually recorded has been fully canvassed by both sides. The revision case came on for hearing before a Single Judge of this Court. He was of the view that the decisions relied upon by the court below required reconsideration, and in that view, he referred the case to a Division Bench. That is. how the case is now before us. Meanwhile the accused had appealed against his conviction to the Court of Session. That appeal has been withdrawn to this Court and has been heard along with the revision case.

2. The case is really a very simple case. At about 7 P. M. on the 23rd March 1967, when the accused was in the tea-shop of one Kochu Mohamed with his newly married daughter and son-in-law, a verbal altercation arose between the accused on the one side and Pw 2, who was also in the shop, on the other. According to the accused, but not according to Pw. 2, the latter used very abusive language. However that might be, the accused was so incensed that he beat Pw 2. The shopkeeper, Kochu Mohammed, and Pws. 3 and 4, who were also there, intervened and sent the accused and Pw 2 away in different directions. Pw 2 had not gone far when he met his brother, Pw 1 and complained to him of what the accused had done. Pw 1 tried to pacify Pw 2 saying that they could question the accused about it the next day. The accused apparently overheard this and he rushed up to Pws. 1 and 2, pushing aside Pw 4 who tried to stop him, shouting that there was no need to put off the matter. Then ignoring Pw 1's expostulations, the accused drew the knife. M. O. 1. (a sharp, pointed knife with a blade five inches from his waist and stabbed Pws. 1 and 2 with it one after the other. The stab on Pw 1 was in the abdomen, and, as the medical evidence shows, it penetrated the abdominal cavity, cut the small intestines in as many as four places, and brought put the small intestine and mesentery, an injury doubtless sufficient to cause death in the ordinary course of nature but from which Pw 1 luckily recovered after 25 days in hospital The stab on Pw 2 was in the back, and it caused a punctured wound 1' x 1/3' x 11/2' deep with a skin deep tail about 3' long according to the medical evidence a simple injury. Then the accused ran away while Pws. 1 and 2 fell down on the road.

3. Apart from the victims, Pws. 1 and 2, two other persons, Pws. 4 and 5 who were near-by saw the stabbing while another person, Pw 3 saw the accused rushing towards Pws, 1 and 2, and, after the stabbing was over, running away from the scene,

4. Pws. 1 and 2 were removed to the Moovattupuzha hospital where, at 2.30 A. M. on the 24th, Pw 1 made the statement, Ex. P1, to the Head Constable Pw 7, on which the case was registered and investigated. The accused appeared at the police station at 9.15 P.M. on 28-3-1967 with the knife M. O. 1. He was arrested by the Head Constable Pw 8, and the knife was seized from him.

5. When questioned at the preliminary enquiry the accused was content with a bare denial. But, at the trial, he put forward a case of private defence. After the incident in Kochu Mohammed's tea-shop, where he had beaten Pw 2 for insulting him in the presence of his daughter and son-in-law by using abusive language he was proceeding to another shop nearby when Pws. 1 and 2 suddenly came there and assaulted him. To save his life he drew his knife and stabbed them.

6. The accused examined no witness in his defence.

7. On the evidence, and on the very statement of the accused, there can be no doubt that the accused voluntarily stabbed Pws. 1 and 2 inflicting injuries on them. The belated plea of private defence put forward by him is obviously an after-thought, and there is nothing whatsoever in the evidence that gives the least support to that plea. The accused himself suffiered no injury --not that an actual injury is necessary to give rise to the right of private defence; reasonable apprehension is enough and he said nothing whatsoever regarding the nature of the alleged assault on him by Pws. 1 and 2. (vernacular omitted) is the word used by him; but what Pws. 1 and 2 actually did, he did not choose to say. The prosecution evidence, which there is no reason whatsoever to discredit, clearly shows that there was no such assault on the accused, and that the assault by the accused, on Pws. 1 and 2 was not merely without lawful excuse but was unprovoked, such provocation as the accused had, being a thing of the past, in any event, not something that could be described as grave and sudden.

8. The question then is, what is the offence committed by the accused? Is it only the voluntary causing of hurt or does it amount to attempt to murder?

9. Generally speaking, an actor who is a person, an offence consists of three elements or ingredients. First, the act, using the word, 'act' as we think that word is used in the Indian Penal Code as restricted to the bare physical act, namely, the muscular change and what might be called the concomitant circumstances such as, for example, the instrument employed, and as including no part of its consequences, not even the target of the act or, as Kocourek puts it (in relation to tort) as denoting the external manifestation of the actor's will and as not including any of its result not even the most direct, immediate and intended; secondly, the mens rea or the mental element accompanying the act; and, thirdly, the harmful social consequences of the act which is why the law makes it culpable. The definitions in the Indian Penal Code take note of these elements although in some, the first and the third element together constituting what is generally understood by the terms 'actus reus' in English law, are combined in one expression. This analysis of an offence into its three component elements is well exemplified by the definition of, 'culpable homicide' in Section 299.

'299. Culpable homicide:-- Whoever, causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide'.

Here the word, 'whoever' supplies the act or; the word, 'act' denotes the bare physical act (including such concomitant circumstances as the means employed) done by him; the mental element required is the intention of causing death or bodily injury likely to cause death, or knowledge that the act is likely to cause death; while the injurious social consequences which the law seeks to punish is the resultant death. In some cases, however, of which abetment and attempt are instances, the act is made punishable even if the injurious consequences do not follow provided the necessary mental element is present; in other words, the third of the three elements is dispensed with.

10. This is how the offence of attempt to murder is defined and made punishable by Section 307:

'307. Attempt to murder.-- 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. Attempts by Life convicts. -- When any person offending under this section is under sentence of imprisonment for life he may, if hurt is caused, be punished with death'.

Here the offence is complete although the harmful consequence of death does not ensue, indeed even if no harm ensues. But, it seems to us clear that the words, 'if he by that act caused death' necessarily imply that the act must be capable of causing death. An act intrinsically incapable of causing death like witchcraft or the pulling of the trigger of an unloaded gun cannot constitute the offence, whatever may be the actor's belief and intention. This is how Couch C.J. put this aspect of the matter in Keg. v. Cassidy (1867) 4 Bom HCR Cr 17 at p. 21.

'The first two heads are framed under Section 307. The words of that section 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. 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'.

11. This decision was criticised by Beaumont C. J. in Wasudeo v. Emperor, AIR 1932 Bom 279 but his Lordship's conclusion expressed in the following words seems to us much the same:

'But if you have an act done with a sufficiently guilty intention and knowledge and in circumstances which do not from their 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'.

12. It seems to us clear that the act, namely, the bare physical act, must be an act capable of causing death, at any rate, not one intrinsically incapable of causing death. This, as we have already observed, would rule out such acts as the firing of an uncapped gun as in Cassidy's Case, (1867) 4 Bom HCR Cr 17 or of a gun loaded with a blank cartridge even though the actor's intention is to kill and his belief is that the gun is duly loaded. At the same time it would take in instances like those mentioned in the illustrations to Section 511 where the failure of the injurious consequences is not due to any inherent defect in the offender's act but due to the absence of something which is in no sense part of that act. And if it would rope in also the case of a man who, intending to kill his enemy fires at what he thinks is his enemy but happens to be only an animal, that, in our view, is not a consequence to be regretted any more than the case of a failure of the intended result by reason of the actor being a bad shot: In both cases, the act, namely, the bare physical act of discharging a loaded gun no matter where, is capable of causing death of course it need not be of the person Intended to be killed and the matter is well past the stage of mere thought or preparation, the Intention having unequivocally manifested itself in an external act beyond the actor's recall, although, in a practical sense and what the courts administer is practical law it might be possible to say with Rowlatt J. that, in the former case, the man is 'not on the job at all though he thinks he is' he would be very much on the job if, though unknown to him, there was some other person present near enough to be hit while in the latter he is on the job. For, unlike as in the latter case, or in the case of a man who attempts to pick an empty pocket it would, in practice, be difficult to establish the necessary mens rea and therefore well nigh impossible to secure a conviction.

But, in the circumstances of the present case, there can be no question of the accused's offence falling within section 511 if it does not fall within Section 307, there being no question of Impossibility whether absolute or relative indeed the learned Public Prosecutor has expressly stated that he stands or falls by Section 307 and is not inviting recourse to Section 511. Therefore, we are not called upon to decide whether Section 307 only prescribes a special punishment, for an offence under Section 511 in relation to the offence of murder as Sections 121 and 393, for example, do in relating to the offence of waging war against the Government and the offence of robbery (in which case it might be said that it need not have gone to the trouble of specially defining the offence of attempt to murder) or whether, as held in Cassidy's case, (1867) 4 Bom HCR Cri 17 it postulates a higher degree of attempt than Section 511 does so that there can be an attempt to murder which does not come within Section 307 but nevertheless comes within section 511, not being excluded therefrom by the words 'where no express provision is made by this Code for the punishment of such attempt'

13. So much for the physical act necessary for an offence under Section 307. What else is necessary is indicated by the words, 'with such intention or knowledge, and under such circumstances that if he by that act caused death, he would be guilty of murder'. The words, 'such circumstances' like the same words in Section 308 would seem to refer not so much to circumstances pointing to the possibility of death as to the circumstances which would attract any of exceptions to Section 300, perhaps also the general exceptions in Chapter IV, although Section 6 seems to be a sufficient safeguard so far as the latter are concerned.

14. The mental element or mens rea required is the Intention or knowledge necessary for the offence of murder for which we have to go to Section 300:

'300. Murder.--Except in the case hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or-

Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person, to whom the harm is caused, or-

Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid'.

15. Intention and knowledge are a man's state of mind; direct evidence thereof except through his own confession cannot be had; and apart from a confession they can be proved only by circumstantial evidence. In other words, they are matters for inference from all the circumstances of the case such as the motive, the preparations made, the declarations of the offender, and, in the case of homicide, the weapon used, the persistence of the assault, and the nature of the injuries actually inflicted as also their location. In the case of what are generally described as unpremeditated offences or as offences committed on the spur of the moment, intention may be contemporaneous with the physical act, at best of just an instant before, and is generally to be gathered from the nature and consequences of the act and the attendant circumstances. It is here that the much criticised maxim that every man is presumed to intend the natural and probable consequences of his act comes into play.

16. Like most words, the word 'intention' is capable of different shades of meaning. In the Indian Penal Code it is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itself--the voluntariness required to constitute an act is implied by that very word. Thus, in the case of murder, the intention required is (omitting clause secondly of Section 300 which rarely comes into play) the intention of causing death or the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, more or less the malice aforethought of the English law, the former being generally described as specific intent or malice and the latter as implied malice or some times as constructive malice, though the use of the latter term seems open to criticism. It seems to us clear from the illustrations to Sections 88, 89 and 92, that the Code uses the word 'intention', in the sense that something is intentionally done if it is done deliberately or purposely, in other words, is a willed though not necessarily a desired result or a result which is the purpose of the deed. The surgeon of the illustrations certainly does not desire the harm that may be caused; nor is that his purpose. Nevertheless, the provisions of the sections show that he could have intended the harm, and is saved from being a criminal only by those provisions. Likewise a man who shoots another in the heart and kills him in self-defence might not desire, on the contrary might very much dislike, causing the latter's death. His purpose is not to cause death but to save himself. Yet his case falls squarely within the first clause of Section 300 -- he has undoubtedly caused death by doing an act with the intention of causing death--and is saved from being a murderer only by Section 100.

Lang v. Lang 1955 AC 402 rather than Rex v. Steane 1947 KB 997 at p. 1004 or Hosegood v. Hosegood, (1950) 66 TLR 735 illustrates the sense in which the word, intention is used in Section 300 of the Indian Penal Code of course none of these cases was construing that statute. And. once you dispense with desire or purpose, it follows that foresight of the consequences of an act gains the upper hand in determining whether the consequences were intended or not. And the foresight of a particular person is prima facie to be gauged by the foresight of an ordinary, reasonable man, in other words, by what is sometimes disparagingly referred to as the objective test or external stand--as if that were enough to condemn it--of the reasonable and probable consequences of the act.

17. Illustration (a) to Section 106 of the Evidence Act shows that the intention with which a person does an act is generally to be gathered from the character and circumstances of the act It says that

'When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention, is upon him'.

An inference drawn from the character and circumstances of the act is sufficient proof of intention. Thus, if a man uses a knife on another so as to pierce the latter's heart and kill him, the character and circumstances of his act would suggest that he intended to kill him, for, death is the natural and probable, nay, the well-nigh certain, result of such an act. But a surgeon doing this could readily rebut this inference by showing that he did this not with the intention of causing death but with the intention of curing the man of a dangerous disease. Nevertheless the surgeon would still have intentionally caused 'hurt, and can even be said to have intentionally caused bodily injury sufficient in the ordinary course of nature to cause death, and as we have already said, is saved from penal consequences only by reason of the exception in Section 88 of the Code.

18. The maxim to which we have referred, namely, that every person is presumed to intend the natural and probable consequences of his act, is sometimes expressed as if it embodied something more than a permissible inference, something more than the 'may presume of Sections 4 and 114 of the Evidence Act, or at the worst the 'shall presume' of Section 4, and created an irrebuttable presumption, the 'conclusive proof' of Section 4. A form in which it is thus expressed is that every person must be presumed to intend the natural, reasonable, and probable consequences of his acts whether in fact he intended them or not. In this form it is certainly objectionable and it is the belief, some would have it in the mistaken belief, that it was countenanced in this form by the House of Lords in Director of Public Prosecutions v. Smith, 1961 AC 290 as if the mens rea for murder were not the intention in the mind of the alleged offender, but were the foresight of a reasonable man of the likelihood of death, that that decision has come in for so much adverse criticism from quarters both academic and professional. And it is to the maxim in this objectionable, form, 'must be taken to intend' that Wallis C. J. took exception when, basing himself on paragraph 100 of the first report on the Penal Code by the Indian Law Commissioners; he observed in Vullappa v. Bheema Row, ILR 41 Mad 156 at p. 162 = (AIR 1918 Mad 136 (2) at p. 139) (FB) that Macaulay and the other Indian Law Commissioners regarded the maxim as a fiction which should not be recognised in the Penal Code. But surely that the Code draws a clear distinction between 'intent' and 'knowledge of likelihood' is no impediment to the latter leading to an inference regarding the former, or to same circumstance leading to an inference regarding both.

19. But properly viewed, namely as a mere objective test enabling a rebuttable inference to be drawn regarding the mental element attending an act, we think that the maxim is not merely unexceptionable but indispensable. The whole difficulty it seems to us arises from, to borrow the words of Bowen L.J. in Angus v. Clifford, 1821-2 Ch D 441, confusing the evidence from which an inference may be drawn with the inference itself which has to be drawn after you have weighed all the evidence. In this connection the following classic statement by Sir William Holdsworth in the History of the English Law, Vol. III, page 374 is worth quoting:

'The general rule of the common law is that crime cannot be imputed to a man without mens rea. It is, of course, quite another question how the existence of that mens rea is to be established. The thought of man is not triable by direct evidence; but if the law grounds liability upon intent, it must endeavour to establish It by circumstantial evidence. Much of that circumstantial evidence will be directed to showing that a man of ordinary ability, situated as the accused was situated, and having his means of knowledge, would not have acted as he acted without having that mens rea which it is sought to impute to him. In other words, we must adopt an external standard in adjudicating upon the weight of evidence adduced to prove or disprove mens rea. That of course, does not mean that the law bases criminal liability upon an external standard. So to argue is to confuse the evidence for a proposition with the proposition proved by that evidence'.

20. Perhaps, in Indian Law, the objective test of the maxim would cover every degree of mens rea from negligence to intention, depending on the degree of probability of the consequences. If the effect caused by an act is the natural and probable consequence of that act it would, we think, be right to infer that the actor caused that effect voluntarily as that word is defined in Section 39 of the Code. If the degree of probability is so low so that the effect cannot be described as a natural and probable consequence, the inference to be drawn might only be of negligence or rashness; little higher it might be that the actor had reason to believe that he was likely to cause the effect; still higher it would be reasonable to infer that he knew that he was likely to cause it; and if the degree of probability is so high that the effect may be described not merely as a probable but as a natural, natural in the sense ordinary result of the act it would be reasonable to infer that he intended to cause it. It might be noted that it is on the high degree of probability of the effect of death that the intention or knowledge (to be inferred from, among other things, the natural and probable consequences of the act) of clauses secondly, thirdly and fourthly of Section 300 are equated with intention to cause death of the first clause.

21. So far as the English Law is concerned, Section 8 of the Criminal Justice Act of 1967 applies the necessary corrective to the grossness of the rule supposed to have been laid down in 1961 AC 290. This section provides that

'A Court or jury in determining whether a person has committed an offence. -

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequences of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inference from the evidence as appear, proper in the circumstances'.

That is a statement of the law which we would adopt. The natural and probable consequences of a man's act is only one of the factors from which his intention as to the result may be gathered. It is no doubt a very important factor and might sometimes be the only available factor from which the inference of intention is to be drawn. Still, there is no 'must' about it, only 'may' and the Court is not bound in law to infer that a man intended the result of his actions by reason only of its being a natural and probable consequence of those actions. The intention is to be gathered from all the circumstances appearing in the evidence.

22. Much the same thing was said by Denning L. J. in 1950-66 TLR 735 with reference to the animus deserendi, in other words, the intent to bring the married life to an end, necessary to constitute desertion for the purpose of divorce.

'When people say that a man must be taken to intend the natural consequences of his acts, they fall into error; there is no 'must' about it; it is only 'may'. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to Infer that he did foresee and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference then it should not be drawn'.

In their book on Criminal Law, Geanville Williams, one of the foremost critics of 1961 AC 290 and Smith and Mogan themselves no admirers of that decision, regard this as a clear exposition of the true place and value of the presumption in the proof of intention. Denning L. J. then thought (as he later, in the light of 1955 AC 402, confessed, mistakenly) that intent in the context of desertion meant that the party must have the desire or purpose to bring the married life to an end. But, as we have seen, neither the desire nor the purpose to bring about the consequences is necessary to constitute intention within the meaning of Section 300 of the Indian Penal Code. With regard to what we might call this lesser intention the presumption to be drawn from the natural and probable consequences of the act is stronger.

23. In English law, in order to constitute the offence of attempt to murder, the specific intent to cause death is necessary though for the completed offence of murder the lesser mens rea of intent to cause grievous bodily harm suffices. What might be called the implied or constructive intent to cause death of clauses secondly, thirdly and fourthly of Section 300 of our Code is not enough. But, in Indian law. Section 307 of the Code makes it quite clear that the mental element described in any of the four clauses of Section 300 is sufficient and that it is not necessary that the act should have been done with the specific intention of causing death. This difference should not be overlooked. We should not have thought it necessary to voice this caution but that we find that in some Indian decisions and in some commentaries on the Code, English cases are cited to make out that the specific intent to kill is necessary without noticing that Section 307 of the Indian Penal Code lays down the law differently.

24. What is the offence committed by the accused in the instant case? We shall first consider the assault on Pw1. The act committed by the accused is the physical movement of stabbing with a sharp pointed knife having a blade five inches long. This is undoubtedly an act intrinsically capable of causing death, or to put it negatively, not intrinsically incapable of causing death. 'Death', of course, means the death of a human being--see Section 46 of the Code--and if the act be done with the mental element described in Section 300 in relation to any human being and if it, in fact, causes the death of that or any other human being Sections 299 and 300 import the doctrine of transferred malice and Section 301 proceeds on the assumption that culpable homicide is nonetheless culpable homicide for the death caused being of a person other than the person whose death was intended--the actor is guilty of murder. The requirement implied by the clause, 'if he by that act caused death' in Section 307 is here amply satisfied, and the question is whether the mental element and the circumstances attending the act are such that if death had ensued, the accused would be guilty of murder. In other words, so far as this case is concerned, whether the accused had the mens rea defined in Section 300 of the Code and, if so, whether circumstances attracting any of the exceptions to the section were present of course, by reason of Section 105 of the Evidence Act it would be for the accused to show that they were present.

25. There is here no confession and therefore, no direct evidence of the accused's state of mind. That has to be inferred from the circumstances, and, taking all the circumstances into consideration, we feel no doubt whatsoever that the accused did the act with at least the mental element described in clause thirdly of Section 300, namely, the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, if not with that in the first clause, namely, the intention of causing death. The offence may well be described as unpremeditated and, not unnaturally, there is no evidence of any strong or adequate motive. But, it must be remembered that the accused was incensed with PW 2's conduct at Kochu Mahommed's tea shop and was apparently still smarting from the insult he had received from Pw 2 in the presence of his newly married daughter and son-in-law. He seems to have flared up when heard Pw 1 saying that he could be taken to task the next day for having beaten Pw 2. The weapon the accused used was a deadly weapon and he used it on a vital part of Pw 1's body with such force as to pierce the abdominal wall and cut and bring out the intestines. The accused has no case that the stab fell elsewhere then where he directed it, and, having regard to all the circumstances, including the nature of the weapon used, the part of the victim's body chosen for the assault, and the injury actually inflicted, an injury which, by its very nature, must necessarily have endangered life, there can be no doubt that the accused must have intended to cause death, or, at any rate, to cause bodily injury sufficient in the ordinary course of nature to cause death.

26. We do not think that, in the circumstances of the case, any of the exceptions to Section 300 of the Code is attracted. The only exceptions that can conceivably apply are exceptions 1, 2 and 4. So far as exception 1 is concerned, Pw 1 offered little, if any, provocation; and we might add that even the provocation offered by Pw 2 was neither grave enough nor sudden enough to deprive the accused of the power of self control. If we may say so, such provocation as Pw 2 offered had already been sufficiently redressed by the beating which the accused gave him. So far as Exception 2 is concerned, as we have already seen, no assault of any kind was threatened on the accused when he acted as he did, and there can therefore, be no question of his having exercised any right of private defence. Nor was there a sudden fight upon a sudden quarrel so that the accused can be said to have acted in the heat of passion in the course of such fight. Moreover in stabbing an unarmed person in the abdomen with a knife the accused did act in a cruel and unusual manner. Therefore, Exception 4 cannot be attracted.

27. We have no doubt that so far as the assault on Pw 1 is concerned, the offence committed by the accused is one falling within the second part of the first paragraph of Section 307 of the Indian Penal Code.

28. So far as the assault on Pw 2 is concerned, no doubt the physical act committed by the accused was not incapable of causing death. But in a case where the mental element is to be inferred from the nature and circumstances and the consequences of the physical act, there is a difference between the case of an assault with a weapon like a knife where the actor retains control till the last, i.e., till the termination of the assault, and the case of an assault with a weapon like a gun where the actor loses control the moment the gun is fired and must thereafter willy-nilly let the shot take its course. Although, of course, as Section 307 itself makes it plain, the causing of hurt is not a necessary element of the offence of attempt to murder, yet in a case of an assault with a weapon like a knife retained in the hands of the offender till the end and not used as a missile, unless there is something to show that there was some external impediment in the way of consummation of the offender's intention, it might not be reasonable to infer, merely from the harm inflicted that the offender intended to cause graver harm than he actually did inflict The injury that the accused did inflict on Pw 2 was a simple injury not sufficient in the ordinary course of nature to cause death, and there is nothing to show that he intended anything more Therefore, so far as the assault on Pw 2 is concerned, the conviction recorded against the accused under Section 324 of the Indian Penal Code is proper.

29. Every case has to be decided on its own facts and circumstances; no two cases are in all respects alike; the proper inference to be drawn from proved facts and circumstances is not ordinarily a question of law; and, although the inference drawn by experienced Judges from similar facts and circumstances might be a useful pointer, it must be remembered that not all the facts and circumstances that influence the decision in a particular case appear from the judgment. This is why, in reaching the conclusion we have reached regarding the mental element accompanying the accused's acts, we have made no reference to the numerous authorities cited at the bar. But we must say something about the two decisions that have been responsible for the present case coming before us and about the third case that has been brought to our notice in the course of the hearing.

In 1967 Ker LT 223, the accused who had been twice thwarted in his attempt to ravish a woman, on the second occasion, after the woman had, as a result of a struggle, succeeded in freeing herself from his grasp, took a gun which he had kept leaning on a tree near-by--the occurrence took place in a forest where the victim was collecting firewood--and shot her with it in the chest. Thirty-six pellets were found lodged in the victim's body over the abdominal area inside the abdominal muscles. Only one was extracted; the rest left where they were since the doctor thought that that would do no harm. The gun was not before Court but the judgment shows that it was said to be 'a sort of sporting gun generally used to scare away birds and wild beasts from the cultivation'. So far as the judgment discloses, there was nothing to show that a shot with the gun and the ammunition used was incapable of causing death--indeed the medical evidence to the effect that the injury 'would have been serious and that it was a fortuitous escape for the injured' would indicate the contrary. The trial Court found the accused guilty under Sections 307 and 326 of the Indian Penal Code (Also under Section 354 but with that we are not concerned). But, on appeal, this Court found that the offence was only one under Section 324 of the Indian Penal Code deserving only a sentence of simple imprisonment for one month.

30. In 1967 Ker LT 689, the accused a squatter on land belonging to a rubber estate took exception to pits being due In the court-yard of his house by some workmen under the supervision of Pw 5, an Assistant Conductor of the estate. Pw. 5 told the accused firmly that he had come to plant rubber seedlings and that he was determined to do that. The accused after pretending to have submitted to this, and in fact, making a show of helping in the planting, slowly moved backwards towards the verandah of his house, and, picking up an axe, dealt two blows with it on Pw 5's head injuring the right eye with partial protrusion of the eyeball and causing a fracture about 3'x2' of the right parietal bone. The trial Court convicted the accused under Section 307 of the Indian Penal Code but, on appeal, this Court, holding that the blow on the head with the blunt end of an axe could not in the ordinary course of things cause death (a proposition to which we can scarcely subscribe) came to the conclusion that the accused could not have intended to cause the death of the victim -- whether, in the face of the fracture of the skull, it could not be held that the accused intended at least to cause bodily injury sufficient in the ordinary course of nature to cause death was not considered--and that his offence was only one under Section 335 of the Indian Penal Code for which a sentence of two years' rigorous imprisonment was enough.

31. In 1968 Ker LT 929, the accused, in the course of a quarrel, stabbed Pw 1 with a knife in the abdomen inflicting a disembowelling wound which fortunately did not prove fatal but rendered the victim unconscious for three days. It was held that the accused was guilty only of an offence under Section 326 of the Indian Penal Code and not of one under Section 307 of the Indian Penal Code. The reasons for this view were stated thus: -

'The first ingredient in the offence of attempt to murder is the intention to kill. In R. v. Cruse, (1838) 8 C & P 541. Patterson J. told the jury:--

'Before you can find the prisoner guilty of this felony, (attempt to murder) you must be satisfied that when he inflicted this violence on the child, he had in his mind a positive intention of murdering that child. Even if he did it under the circumstances which would have amounted to murder if death had ensued, that will not be sufficient unless he actually intended to commit murder'. So even if the act committed is sufficient in the natural and ordinary course of things to result in death, the accused cannot be charged with attempt to murder unless he had the intention to kill, from the very beginning. So also the converse, that even if the accused had the intention if the act committed is not capable of causing death or that the act was done with such Intention and was not likely in the belief of the accused to cause death he cannot be charged with attempt to murder. Thus we see that the intention is the most Important ingredient and when once that is not made out the accused cannot be convicted of attempt to murder, even if the act committed is sufficient to cause death under normal circumstances.

Applying the principles to the facts of present case it has to be held that since the intention to kill was not there, the accused could not be convicted of attempt to murder'.

32. We have only this to observe. In each of these cases, unless there were facts and circumstances that do not appear in the judgments, we would have had no hesitation in finding the accused guilty of attempt to murder. In the last mentioned case, the learned Judge following the English law, deems to have thought that a specific intention to kill was an essential ingredient of the offence of attempt to murder. We have already shown that that is not so under the Indian Penal Code, Section 307, and that any of the forms of mens rea described in the four clauses of Section 300 is enough.

33. The learned Judge also set out as one of the ingredients to be proved by the prosecution in a case of attempt to murder.

'If the act has taken effect the injury is sufficient in the natural and ordinary, course of things to cause death'.

It is not an essential ingredient of the offence that there should be an injury much less an injury sufficient in the ordinary course of things to cause death.

34. In AIR 1932 Bom 279. Beaumont C. J. criticised what he thought was the view taken in Cassidy's case, 1867-4 Bom HCR Cr 17, namely, that in order to attract Section 307 of the Code it must be possible to say for certain that the offender's act might have caused death. His Lordship demonstrated the absurdity of such a view in the following words:

'If the reasoning of the learned Judges in that 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'.

35. To rely on these observations as was done in 1967 Ker LT 223 and in 1967 Ker LT 689, (only the last two sentences are actually quoted) for holding that 'the offence contemplated in Section 307 of the Indian Penal Code is of a hypothetical nature' and was therefore not made out is, it seems to us, to subscribe to the logical conclusion reached in the process of disproof by reductio ad absurdum.

36. In the ipnstant case the accused was acquitted of the charge under Section 307 of the Indian Penal Code. There was no appeal against that acquittal, and, having regard to Sub-section (4) of Section 439 of the Criminal Procedure Code, we cannot in revision convert the acquittal into a conviction.

We can, of course, set aside the accused's conviction under Section 326, Indian Penal Code, and direct a retrial but, had we thought of adopting such a course, we would not have expressed ourselves so categorically on the merits of the case. Fortunately, the ends of justice do not require an alteration of the conviction, for, it is possible to impose an adequate sentence for the accused's crime even under Section 326 of the Indian Penal Code which permits of as severe a sentence as Section 307 does. Having regard to all the circumstances of the case, and the nature of the injury inflicted by the accused, we think that a sentence of five years' rigorous imprisonment would be proper.

37. In the result we confirm the accused's conviction under Sections 326 and 324 of the Indian Penal Code as also the sentence awarded to him for the latter offence and dismiss his appeal We enhance the sentence awarded to him for the offence under Section 326 of the Indian Penal Code from rigorous imprisonment for 18 months to rigorous imprisonment for five years.

Gopalan Nambiyar, J.

38. Except a few observations I have nothing useful to add to the judgment delivered on behalf of the Bench by My Lord the Chief Justice.

39. It is perhaps difficult to reduce to the form of any statable legal principle the cases of attempts to commit an offence which is impossible of commission in the nature of things and the attendant circumstances. Such are the cases of an attempt to kill with an unloaded gun which the offender believes to be loaded; attempt to shoot at a wax model figure believing it to be a living person in flesh and blood; attempt to cause miscarriage to a woman believed to be pregnant, who in fact is not, or by administering some thing believed to be deleterious which in fact is Innocuous, attempt to pick a pocket that is empty, attempt to steal from a club an umbrella, which ultimately turns out to be one's own. These and similar conundrums which are fruitful enough sources for discussion in the academic atmosphere of the lecture hall hardly present the same difficulties for solution in the practical realities of the Court room. The test propounded in the judgment just pronounced, that the bare physical act of the accused should have been capable of producing the consequence before a person can be convicted of an attempt, seems on the whole, to be safe and satisfactory.

40. In 1968 Ker LT 929, a learned Judge of this Court relied on Patterson J.'s charge to the jury in (1838) 8 C & P 541. The said charge to the jury was as follows:

'Before you can find the prisoner, guilty of this felony (attempt to murder) you must be satisfied that when he inflicted this violence on the child, he had in his mind a positive intention of murdering that child. Even if he did it under circumstances which would have amounted to murder if death had ensued, that will not be sufficient, unless he actually intended to commit murder'.

It is necessary to emphasise that in English law for the offence of murder it is enough to show that the killing was with 'malice aforethought' comprehending all the different types of mens rea comprised in that expression. But, for the crime of an attempt at murder, it is necessary to show that there was a clear intention to kill. Any other type of mens rea covered by the expression 'malice aforethought' will not do. This has been repeatedly laid down in the English decisions, and is clear on the authorities.

41. Patterson J.'s charge to the jury In 1838-8 C & P 541, has already been noticed. In R. v. Whybrow, 1951-35 Crl App 141, the accused by a device constructed by him. administered electric shocks to his wife while she was in a bath. Parker J. directed the jury that if he did so, intending to kill his wife or to do her grievous bodily harm he would be guilty of attempt at murder. The Court of Appeal held that this was a wrong direction. Observing that if the charge is one of attempt at murder, the intention to kill is the principal ingredient of the crime. Lord Goddard, C. J. expressed himself thus:

'Therefore, if one person attacks another inflicting a wound in such a way that an ordinary reasonable person must know that at least grievous bodily harm will result and death results, there is the malice aforethought sufficient to support the charge of murder. But if the charge is one of attempted murder the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder; but if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought which is supplied in law by proving intent to do grievous bodily harm'.

In R. v. Grimwood, 1962-3 All ER 285, the prisoner had been convicted by Paul J. at the Central Criminal Court of attempt to strangle his wife with intent to murder her. No verdict was taken from the jury on two other counts, namely, attempt to suffocate his wife with intent to murder and assault occasioning her actual bodily harm. In the course of his direction to the jury, the learned Judge, basing himself on 1961 AC 290, observed:

'He is put before you by his counsel as an ordinary normal minded man and so you should take it in this case that he is an ordinary normal-minded man. The law is that in the case of an ordinary normal man it does not matter what that man contemplates at the moment at all. The test is whether what he did was of a kind where death might well have been the natural and probable result of what he did'.

On appeal from the above conviction. Lord Parker C. J. delivering the judgment of the Court of Criminal Appeal observed that the Court was clearly of the opinion that nothing that was said in Smith's case, 1961 AC 290, has any application to the offence of attempted murder. Adverting in particular, to the direction to the jury, extracted supra, the Lord Chief Justice observed:

'One further matter should be mentioned and that is that, certainly in regard to the first passage which I have quoted in the summing up, it might well have led the jury to suppose that, even if they were satisfied that all that the appellant intended to do was to cause grievous bodily harm, yet if death might well result from such grievous bodily harm an intent to murder had been proved. That again, if that impression was conveyed, was quite clearly a wrong direction. In 1951-35 Cri App 141, Lord Goddard C. J. dealt with that very point'.

The learned Chief Justice then noticed the decision in Whybrow's ease, 1951-35 Cri App 141, and cited the passage from the judgment of Lord Chief Justice Goddard quoted earlier.

42. The above decisions make It clear that the requirement of a higher degree of mens rea, namely, an intention to kill, and nothing short of that, is a special feature of English law in regard to the offence of attempt at murder. The position has been well brought by text-book writers also. (See for instance, Smith and Hogan's Criminal Law, page 146; Kenny: Outlines of Criminal Law (16th Edition) page 80). Whatever be the posi-sion in English law, the provisions of Section 307 of the Indian Penal Code are, as already pointed out, clearly otherwise. English decisions are therefore not safe guides to follow.

43. As for the much discussed and much criticised maxim, that every person is presumed to intend the natural and/or the probable consequence of his act, I think the scope of its application has been correctly delimited by Section 8 of the Criminal Justice Act of 1967, which we have adopted as laying down a safe rule.


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