EMPEROR Vs. VASUDEO BALWANT GOGTE

JUDGEMENT

(1.) This is an appeal by the accused against his conviction by the verdict of a jury for an offence under Section 307 of the Indian Penal Code for which he was sentenced to eight years rigorous imprisonment, and against his conviction also under Secs.19(e) and (f) of the Indian Arms Act by the Sessions Judge of Poona sitting with assessors. The sentences passed under the Indian Arms Act were shorter than the sentence under Section 307 of the Indian Penal Code, and as the sentences were to run concurrently, it is not necessary to consider the propriety of the conviction under the Indian Arms Act if the conviction under Section 307 of the Indian Penal Code stands, This being an appeal from the verdict of a jury, the appellant's case must be limited to points of law, and Mr. Patwardhan on behalf of the accused has adopted a course which follows, I think a wise rule of advocacy and one which I wish were adopted more frequently in these Courts, of confining his argument to what are really the important points.

(2.) The facts, so far as it is necessary to state them for the purposes of dealing with the points of law, are extremely few and simple, His Excellency Sir Ernest Hotson, the Acting Governor of Bombay, was on the date of the offence paying a visit to the Fergusson College, Poona, and in the course of the visit, he in company with the Principal of the College and certain of the Professors and his Aide de- camp went to the College Library. Whilst there, and whilst the party was engaged in inspecting some portraits in the Library, two revolver shots were fired at His Excellency. The evidence of the prosecution, which was accepted by the jury, is that the accused fired two shots from a revolver which was immediately taken from him and was found to be a powerful weapon-380 calibre. Although two shots were fired at His Excellency at point blank range, and the two bullets were afterwards found in the lining of his cost, no injury was in fact occasioned to His Excellency, and the first and principal point taken by Mr. Patwardhan is that that being so, no offence was committed under Section 307 of the Indian Penal Code. That section reads in this way:- 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 as there provided.

(3.) Mr. Patwardhan says that the meaning of that section is that the act done must be such that it is capable of causing death, and that, from the fact that neither of these two shots, tired at point blank range and which in fact hit His Excellency, caused death, we must infer that, owing to some defect in the ammunition or for some unexplained reason, the act was not in fact capable of causing death. In support of his contention Mr. Patwardhan refers us to a decision of this Court in Reg. V/s. Cassidy (1867) 4 B.H.C.R. (Cr.C.) 17. In that case the facts were that the prisoner presented a gun which he believed to be capped but which in fact was not capped at a Drum-Major with the intention of murdering him, but before he could pull the trigger the gun was knocked out of his control; so that in fact in that case the trigger was not pulled, and as the gun was not capped it was not capable of doing any harm. It Was held that no offence bad been committed under Section 307, Indian Penal Code. The case is clearly distinguishable on the facts from the present case, but the learned Judges gave certain reasons for their decision which I find it rather difficult to follow. The learned Chief Justice in giving judgment says that to bring the case within Section 307 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 attempt to murder under this section; and then he holds that the gun not having been in fact capped the act of the prisoner was not one which could have caused death. He went on, however, to hold that the case could be brought within Section 511 of the Indian Penal Code, and the accused was convicted under that section. 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. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder (which is Cassidy's case), it is no doubt certain that no death will result from the act But equally certain is it that no death will result if the accused tires a revolver at his enemy in such circumstances that in fact, whether through defect of aim, or the activity of the target, the bullet and the intended victim will not meet. If, however, Section 307 does not cover the case of a man who fires a gun at his enemy with intent to kill him but misses his aim, it is difficult to see how the section can ever have any operation. The case of Reg. v. Cassidy was considered by Mr. Justice Straight in Queen-Empress V/s. Niddha (1891) I.L.R. 14 All. 38, and he differs from the reasoning of the Bombay High Court. He sums up his conclusion in these words. He says (p. 43) :- It seems to me that if 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 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, X do not think he can escape criminal responsibility, and this because, his own set volition and purpose having been given effect to heir full extent, a fact unknown to him and at variance with his own belief intervened to prevent the consequences of that act which he expected be ensue, ensuing.