AWADHESH MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(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-l was sentenced to suffer five years rigorous imprisonment under section 307 of the Indian Penal Code (briefly, 'the Code). He was further sentenced to three years' rigorous imprisonment under section 27 of the Indian Arms Act. 1959, A-2 and A-3 were each sentenced to two years' rigorous imprisonment under Section 307/109 and A-4 to six months' rigorous imprisonment under section 225.

(2.) The occurrence took place on 24th March, 1969 at about 5 p. m. at village Bhadawa, Police Station Rahul in the district of Patna (now Nalanda,) The incident was reported as the Police Station on the next day (25.3.1969 at 9 p. m.) by P. W. 6 Dhaka Garain. The evidence is that A- to A-3 had a quarrel with P. W. 6 Dhaka Garain over the construction of a Karha, that A-2 and A-3 ordered to assault. A-l drew a loaded pistol from his Dhoti and pointed it at P. W. 6 Dhaka Corain who was constructing the Karha for irrigating his land from the tube-well but before he had time to do anything further the Chaukidar Ram Nandan Paswan (P. W. 1) immediately enacted the pistol from his hand and he was at once arrested. Another Chaukidar Tokhni Paswan (P. W. 1) who was also present there tied him with his turban and then the two Chaukidar began to taken him to the police station. A-2 and A-3 filed from the spot. A-4 who was Sarpanch and had in the beginning tried to pacify the quarrel between the parties untied the turban and, thus, rescued A-l from the custody of the Chawkidars. The question is whether on this evidence the charge under section 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 section 307 must be an act which is itself capable of causing death Does the act of A-l aiming the loaded pistol at Dhaka Garain amount to "an attempt to murder" within the meaning of section 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 consumation being hindered by circumstances independent of the will of the author. As observed in, Om Prakash v. State of Punjab, AIR 1961 SC 1782 at 1787: (1961) II Criminal V. Law Journa l848:

(3.) Counsel for the State cited the case of Reg. v Duckworth, (1892) n R sV f!891-2) 40WeeMy Reporter 448 and on the basis of this decision that offence under section 507 was made out, I do not agree with Contention In that case the prisoner was convicted upon the fifth count of"SbSStnt under section 8 of 24 & 25 Viet. c. 100, which runs as