|Court||Supreme Court of India|
|Name||Om Prakash v. State Of Punjab|
|Citation||(2001) 2 AICLR 623|
|Area Of Law||S. 307 IPC (Criminal Law)|
The relation between a husband and a wife is considered to be a contract in the legal terms. With this contract comes an ocean of duties and responsibilities which are to be discharged by both counter-parts, i.e., husband as well as the wife. For example – It is obligatory for a husband to provide food, shelter and clothing to his wife. It is a well-established fact that an offence may be caused either by causing an act or by omitting an act.
So, what would be happen in the case where a husband omits his duty to provide food to his wife or allowances for the same, with the intention of starving her to death? Would it be a considered a case of murder or would it be a simple breach of duty? The judgement passed by the Hon’ble Supreme Court of India in the case of Om Prakash spurred up the same debate. In the following case it came into question that whether it is the duty of husband to spoon feed his wife. Another major question that arose was about the basic difference between the conviction of a criminal under S. 307 (Attempt to murder) and S. 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment). The Supreme Court illustrated the principle of Last Act Test to differentiate the same.
The case of Om Prakash v. State of Punjab, a much-celebrated case that dealt with the question of Section 307 of the Indian Penal Code, the intent of murder and the culpable homicide was discussed in this case. This case is famous for the nature of the judgement that was taken under review about the possibility of the intention for committing murder. Section 307 of Indian Penal Code refers to attempt to murder and a lot of weightage is given to the intention and knowledge of the accused and preparation before committing the crime.
Section 307 of IPC that says that “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”.
To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
The judgement passed by the Hon’ble Supreme Court of India in the case of Om Prakash2 spurred up the same debate. In the following case it came into question that whether it is the duty of husband to spoon feed his wife. Another major question that arose was about the basic difference between the conviction of a criminal under S. 307 (Attempt to murder) and S. 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment). The Supreme Court illustrated the principle of Last Act Test to differentiate the same.
Background Of The Case
Bimla Devi, was married to the appellant in October, 1951. Their relations got strained by 1953 and she went to her brother’s place and stayed there for about a year, when she returned to her husband’s place at the assurance of the appellant’s maternal uncle that she would not be maltreated in future. She was, however, ill-treated and her health deteriorated due to alleged maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. She was denied food for days together and used to be given gram husk mixed in water after five or six days.
She managed to go out of the house in April 1956, brothers of the appellant, caught hold of her and forcibly dragged her inside the house where she was severely beaten. Thereafter, she was kept locked inside a room. On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband away and availing of the opportunity, went out of the house and managed to reach the Civil Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings. The appellant and his mother went to the hospital and tried their best to take her back to the house, but were not allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the brother of Bimla Devi, one Madan Mohan, who came down of Ludhiana and, after learning all facts, sent information to the Police Station by letter on June 16, 1956 registering a case. The same day, Dr. Dhillon sent a note to the police saying ‘My patient Bimla Devi is actually ill. She may collapse any moment’. Magistrate recorded her statement that night.
The impression formed by the learned Judge of the High Court on seeing the photographs taken of Bimla Devi a few days later stated that she appeared to be suffering from extreme emaciation. The projecting bones of her body with little flesh on them made her appearance skeletal. The countenance seemed too cadaverous. After considering the evidence of Bimla Devi and the Doctors, the learned Judge came to the conclusion that the real object of the defendants in doing so could be no other than to accelerate her end. The appellant was acquitted of the offence under s. 342,
Indian Penal Code, by the Additional Sessions Judge, who gave him the benefit of doubt, though he had come to the conclusion that Bimla Devi’s movements were restricted to a certain extent. The learned Judge of the High Court considered this question and came to a different conclusion. Having come to these findings, the learned Judge considered the question whether on these facts an offence under s. 307, Indian Penal Code, had been established or not. He held it proved.
There were two basic contentions which were raised in front of the Hon’ble Supreme Court:
1) Will a husband be liable for death of his wife in case she doesn’t eat food voluntarily or in other words, is it the duty of a husband to spoon-feed his wife?
2) Even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her does comes under s. 307 or not?
Decision By The Supreme Court
Answering the two contentions raised by the appellants the Supreme Court explained:
1) Only when a person is helpless and is unable to look after himself that the person having control over him is legally bound to look after his requirements. Such persons do not include wife and it is not part of a husband’s duty to spoon feed his wife. However, the victim had being confined and being deprived of regular food, starved in order to accelerate her end.
2) The ingredients of an offence under S.511 are materially different from S.307. In S.511, it not need to be the last act towards the commission while for an offence under S.307, it is the last act which is effective to cause death. The court held that under S.307, a person commits an offence when he has intention to commit murder and in pursuance of that intention does an act towards its commission irrespective the fact whether that act is the penultimate act or not. Thus, the conviction of the appellant under S. 307 was held to be correct on grounds of the ‘illegal omission’ and the appeal was dismissed.
Analysis Of The Sections Applied
The case during all its proceedings of the Sessions Court, High Court and Supreme Court rests on three sections of the Indian Penal Code, 1980. These three are: Section 307 Section 307 of the Indian Penal Code goes as “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 or 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 here in before mentioned.” Thus, to prove the convict guilty under the following section there are three basic ingredients. These are:
- Act Must be One Capable of Causing Death: To justify a conviction under S. 307, it is not essential that bodily injury capable of causing death have been inflicted. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present intent coupled with some overt act in execution thereof. The court can ascertain intention from other circumstances, even without reference to actual wounds. In the case at hand, the victim, i.e., Mrs. Bimla Devi didn’t suffer any such assault but she was victimised by omission of a duty which was to be performed by the appellant and thus, this essential is quite relevant here. The word ‘act’ again, does not mean only any particular, specific, instantaneous act of a person, but denotes, as well, a series of acts. The course of conduct adopted by the appellant in regularly starving Bimla Devi comprised a series of acts and therefore acts falling short of completing the series,
- Intention: The word intention referred here is defined in the S. 300 of the IPC. It means –
a) Intention to cause death;
b) Intention to cause such bodily injury, which the offender knows is sufficient in ordinary course of nature to cause death;
c) Intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death. Once, the necessary intention to commit murder is established, the ultimate result of the attempt will be immaterial, unless of course, the attempt results in murder, in which case, it will fall under S. 300 of the IPC. In the present case, the intention of the appellant to murder the victim through starvation is quite visible. And thus, this ingredient is also satisfied.
- Knowledge: The term ‘knowledge’ is used in S. 304 (d) of the IPC. The term ‘knowledge’ refers to the knowledge of the offender that the act done by him is so imminently dangerous that it must in all probability cause death. In Liyakat Mian & Ors v. State of Bihar the accused person shot a person from very close quarters causing injuries on the abdomen and the left arm. It was held that these circumstances, the knowledge could be imputed to the accused and thus the accused was convicted under S. 308 of the IPC. In the case of Om Prakash, the knowledge that by starving a person for a long span of time the person could die could be easily imputed and hence, this also fulfils the ingredient of knowledge.
The Section 511 states – “Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”
This Section invites the applicability of “Last Act Test” in the following case. It didn’t apply the test to the case as it seemed impractical but gave a brief illustration over it. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder.
In the case of State of Maharashtra v. Mohd. Yakub, the court stated that “In order to constitute an attempt, first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate to the intended result.
The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative or suggestive of the intention.” In the following case, the proximity of the last act was that of intention and thus, the test of last act couldn’t be applied here. And the offence would that be under S. 307 and not S. 511.
Section 342 of the code deals with ‘Punishment for Wrongful Confinement’. Wrongful Confinement is defined as: “Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings circumscribing limits, is said “wrongfully to confine” that person.” The Sessions Court in the following case, adjudged the appellants on the same section and said that they were liable of wrongful confinement. However, the High Court said that they had a lack of evidence and thus, gave them the benefit of doubt by acquitting them of offence under this section. However, the evidences were quite clear on the fact that the movement of the appellant was restricted to some certain extent. The Supreme Court did not review this part of the High Court’s judgement and thus, there the High Court showed lack of reasonability by acquitting them of the offence of wrongful confinement.
Analysis Of The Contentions Raised
In the following case, the two contentions which were raised from the appellant’s side were:
- It was conceded that it is only when a person is helpless and is unable to look after himself that the person having control over him is legally bound to look after his requirements and to site that he is adequately fed. Such persons, according to him, are infants, old people and lunatics. He contends that it is no part of a husband’s duty to spoon-feed his wife, his duty being simply to provide funds and food.
- Even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her does not come under s. 307, as that act could not, by itself, have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death. The rejection of the first contention was on reasonable grounds. The court agreed with the appellants on the point that it is not the duty of husband to spoon-feed his wife but the court also stated the fact that the woman was not taken care of and she was not provided any allowances, which is the duty of a husband and was kept starving voluntarily in order to accelerate her end.
Thus, this contention was rejected by the court and reasoning applied by the court is quite reasonable as all the evidences produced during the trial suggest that the victim was actually starved with the purpose of killing her. Here, the act was done voluntarily. Moving on to the next contention about the application of the last act test the court stated that, the test was not practical and here, the most essential element of Attempt to murder was being fulfilled, i.e., intention. And any act done in furtherance with knowledge and intention would make a person guilty.
The Hon’ble SC cited the case of Queen Empress v Nidha where the bench had held that a person who has an evil intent does an act which is the last possible act that he could 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. The court some other judgements like Gogte’s case, Rex’s case.
In the following case, the stand of the Supreme Court was quite clear and the judgement was reasonable and in accordance with the law. However, the Supreme Court failed to review the acquittal of the appellants under S. 342 and this represents lack of research and high court’s inability to go in accordance with the facts. The High Court went with the accordance of law but their facts weren’t in accordance. And thus, this judgement is partially good and partially ignorant.
But on many fronts the judgement is said to have covered all the important aspects of the issue at that time. This case is considered to be the much-celebrated case that is now used as reference in many murder cases. A recent similar incident also occurred in Uttar Pradesh where a man kept his wife captive for about a year and she was rescued by an NGO, so incidents like these keep happening irrespective of the fact that our Hon’ble courts try to provide justice.
Q 1: What Is The Difference Between Culpable Homicide And Murder?
Ans: Culpable homicide is wider than the term murder. Culpable homicide is therefore considered as the genus while as murder is regarded as a species.
Q 2: What Is The Definition Of Voluntary According To The Indian Penal Code?
Ans : S. 39 of the IPC defines voluntarily as – “A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing, those means, he knew or had reason to believe to be likely to cause it.”
Q 3: What Is Wrongful Confinement?
Ans: Wrongful Confinement is defined under section 342 as: “Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings circumscribing limits, is said “wrongfully to confine” that person.
Q 4: What Is Last Act Test?
Ans: The last act test looks at whether an attempt has occurred, at least by the time a person has performed all the acts believed to be necessary to commit the target offense. For example, an attempted robbery does not occur until the robber displays his or her gun and demands property
Q 5. What Does Section 307 Of The IPC Say?
Ans : The section 307 of the Indian Penal Code says that 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.
 S. 342, Indian Penal Code, 1860 – “Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
 4 S. 307, IPC, 1860 – “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 or 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 here in before mentioned.”
 PSA Pillai, Criminal Law 29 (LexisNexis, Gurgaon, 13th edn, 2017).
 Girijia Shankar v State of Uttar Pradesh, AIR 2004 SC 1808.
 Bipin Bihari v. State of Madhya Pradesh, (2006) 8 SCC 798.
 Supra, note 2
 10 Supra, note 1.
 Section 33, The Indian Penal Code, 1860.
 AIR 1973 SC 807
 (1980) 3 SCC 57.
 S. 39 of the IPC
 ILR (1892) 14 All. 34.
 Emperor v. Vasudeo Balwant Gogte, ILR (1932) 56 Bom. 434