1. The appellant is a Police Officer who was the guara of a Sub-Inspector attached to the District Intelligence Branch in Barisal. He was carrying on an intrigue with a prostitute named Bimala. There can be no doubt that the jury accepted her evidence that he shot her in three places with his revolver. There was also evidence to show that he was drunk at the time. He was placed on his trial on charges under Sections 307 and 326, I.P.C. The jury found him guilty under both. The only point taken on his behalf is that the learned Judge misdirected the jury with regard to the law relating to drunkenness. What he said was in these terms:
If an act is done in a state of intoxication and that intoxication is voluntarily incurred, he is equally liable before the law as if he had done that act in a state of sobriety.
2. Now, in my opinion, that direction is entirely inadequate as a statement of the law on the point. The learned Judge should have told the jury that, as far as knowledge was concerned, it must be taken that the accused had the same knowledge as he would have had if he had not been intoxicated. There is, however, no such presumption with regard to intention. The learned Judge should then have directed the jury that, if they were satisfied that he was intoxicated at the time, they should take that fact and the other facts into consideration in determining whether they were satisfied that the intention alleged by the prosecution had been made out. This was not done and we really do not know upon what view of the facts the jury brought in a verdict of guilty under Section 307. We have reached the conclusion that this failure to direct the jury properly has not led to any miscarriage of justice so far as the conviction under Section 326 is concerned. It was not necessary for the prosecution to establish any intention here. It was enough to show that the appellant knew that he was likely to cause grievous hurt. In order to succeed on this point, therefore, Mr. Guha would have to satisfy us, that a properly instructed jury would be prepared to hold that a sober man, who fired three shots into a woman, would not know that he was likely thereby to cause grievous hurt. In my opinion it is quite impossible to suppose that any jury could come to such a conclusion. We are not prepared to interfere with this conviction.
3. The learned Deputy Legal Remembrancer attempted to support the conviction under Section 307 on the supposition that the case comes within the fourth part of 'murder' as defined in Section 300. One difficulty in accepting this view is that the learned Judge read the whole of the section to the jury, and, as my Lord pointed out during the argument, we do not know upon what view of the facts they were led to take this to be a case of attempted murder. In my opinion the learned Judge ought not to have referred to the fourth part of the section at all. The appellant fired three shots at the woman and hit her three times. It is, therefore, quite clear that his action was deliberately aimed at her. In order to convict him of murder the prosecution would have to establish one of the intentions set out in Section 300. As example, the fourth part of the section is to be found in Illus. (d): in my opinion this provision applies to a person who commits an act of that nature and has no intention of causing an injury to any particular individual. In my opinion that provision was never intended to apply to cases of this kind. If the prosecution case had been that the accused had no intention of causing any injury to this girl at all and that he was merely discharging his revolver in a reckless manner, then this fourth part of the section might apply; but on the evidence such a case would be quite unreasonable. We therefore set aside the conviction and the sentence passed under Section 307; but we maintain the conviction and the sentence under Section 326, I.P.C. With this modification the appeal is dismissed.
4. I agree.