Back
1979 Supreme(Pat) 35
PATNA HIGH COURT
M.P.Singh, J.
Awadhesh Mahto
Versus
State Of Bihar
Criminal Appeal No. 311 of 1972 ;
Decided On : FEBRUARY 6, 1979
An attempt to murder by firearm requires the firing of the weapon. Aiming a loaded pistol at someone is not an attempt to murder unless the pistol is fired.
Headnote:
ATTEMPT TO MURDER - S. 307, INDIAN PENAL CODE - ACT OF AIMING LOADED PISTOL AT VICTIM - NOT AN ATTEMPT TO MURDER - CONVICTION UNDER S. 307 SET ASIDE - CONVICTION UNDER S. 352 FOR ASSAULT MAINTAINED.
Fact of the Case:
A quarrel broke out between A-1 to A-3 and P. W. 6 Dhaka Gorain over the construction of a Karha. A-1 drew a loaded pistol and pointed it at Dhaka Gorain, but before he could fire, the Chawkidars snatched the pistol from him. A-1 was charged with attempt to murder under S. 307 of the Indian Penal Code (IPC), while A-2 and A-3 were charged with abetment under S. 307/109 IPC. A-4, a Sarpanch, was charged with rescuing A-1 from lawful custody under S. 225 IPC.
Finding of the Court:
The court held that the act of A-1 aiming the loaded pistol at Dhaka Gorain did not amount to an attempt to murder under S. 307 IPC. The court reasoned that an attempt to murder requires an act that is capable of causing death, and that in cases of attempt to cause death by firearm, the act must be the only and last act to be done by the culprit. Since A-1 had not fired the pistol, his act was merely an attempt to discharge a loaded arm, which is not an offence under the IPC.
Issues: 1. Whether the act of A-1 aiming the loaded pistol at Dhaka Gorain amounted to an attempt to murder under S. 307 IPC? 2. Whether A-2 and A-3 could be convicted of abetment under S. 307/109 IPC? 3. Whether A-4 could be convicted of rescuing A-1 from lawful custody under S. 225 IPC?
Ratio Decidendi: 1. The court relied on the illustrations to S. 307 IPC and the decision in Om Parkash V/s. State of Punjab to hold that an attempt to murder by firearm requires the firing of the weapon. Since A-1 had not fired the pistol, his act did not amount to an attempt to murder. 2. Since A-1 was not guilty of attempt to murder, A-2 and A-3 could not be convicted of abetment. 3. The court held that the word "intentionally" is not required to be read with the word "rescue" in the second part of S. 225 IPC. Therefore, A-4's act of untying the turban and rescuing A-1 from the Chawkidars was an offence under S. 225 IPC, even if he did not intend to obstruct the lawful apprehension of A-1.
Final Decision: The court set aside the convictions of A-1, A-2, and A-3 under S. 307 and S. 307/109 IPC, respectively. A-1 was convicted under S. 352 IPC for assault and sentenced to pay a fine of Rs. 300. A-2 and A-3 were convicted under S. 352/109 IPC and sentenced to pay a fine of Rs. 100 each. A-4 was convicted under S. 225 IPC and sentenced to pay a fine of Rs. 100.
1. This is an appeal by four persons from a decision of the First Assistant Sessions Judge, Biharsharif. I shall refer to them by the serial numbers assigned in the memo of appeal as A-1, A-2 and so on. A-1 was sentenced to suffer 5 years rigorous imprisonment under S. 307 of the Indian Penal Code (briefly the Code). He was further sentenced to 3 years rigorous imprisonment under S. 27 of the Indian Arms Act, 1959, A-2 and A-3 were each sentenced to two years rigorous imprisonment under Sec.307/109 and A-4 to six months rigorous imprisonment under S. 225.
2. The occurrence took place on 24th March 1969 at about 5 p.m. at village Bhadawa, Police Station Rahui in the District of Patna (now Nalanda). The incident was reported at the Police Station on the next day (25-3-1969 at 9 a.m.) by P. W. 6 Dhaka Gorain. The evidence is that A-1 to A-3 had a quarrel with P. W. 6 Dhaka Gorain over the construction of a Karha, that A-2 and A-3 ordered to assault. A-1 drew a loaded pistol from his Dhoti and pointed it at P. W. 6 Dhaka Gorain who was constructing the Karha for irrigating his land from the tube-well but before he had time to do anything further the Chawkidar Ram Nandan Paswan (P. W. 1) immediately snatched the Pistol from his hand and he was at once arrested. Another Chawkidar Tokhi Paswan (P. W. 1) who was also present there tied him with his turban and then the two Chawkidars began to take him to the Police Station. A-2 and A-3 fled from the spot. A-4 who was a Sarpanch and had in the beginning tried to pacify the quarrel between the parties untied the turban and, thus, rescued A-1 from the custody of the Chawkidars. The question is whether on this evidence the charge under S. 307 is sustainable. That section deals with attempt to murder and provides :
"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 etc."
On a perusal of the above it is quite clear that act which is punishable under S. 307 must be an act which is itself capable of causing death. Does the act of A-1 aiming the loaded pistol at Dhaka Gorain amount to "an attempt to murder" within the meaning of S. 307 ? It is clear to me that it cannot because in a situation like this that section will apply when there has not been merely a commencement of an execution of the purpose but something little short of a complete execution, the consummation being hindered by circumstances independent of the will of the author. As observed in Om Parkash V/s. State of Punjab, AIR 1961 SC 1782 at p. 1787 : 1961 (2) Cri LJ 848:
".........in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and last act to be done by the culprit. Till he fires, he does not do any act towards, commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under S. 307 is made out."
The matter is also clear from the illustrations (a) and (c) of S. 307. Illustration (a) runs as under
"(a) A shoots at Z with intention to kill him, under such circumstances, that, if death ensued, A would be guilty of murder. A is liable to punishment under this section."
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section."
From these two illustrations it may reasonably be inferred that the legislature intended that in cases of attempt to cause death by fire arm, the arm must be fired and till it is fired, no offence of attempt to murder as contemplated by S. 307 is committed. In the present case A-1 had not fired the pistol. It is not a case of misfire. His act was nothing more than levelling a loaded pistol at Chaka Gorain and it coul
