Punjab-Haryana High Court
Satvir Singh And Ors. vs State Of Punjab And Anr. on 2 July, 1997
Equivalent citations: 1998CRILJ405
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
ORDER V.S. Aggarwal, J.
1. Man from the very beginning of the human civilisation has been of a polygamous nature and that is why the family life is the bedrock and backbone of the entire development of the society. Mahabharata emphasised in unmistakable terms that those who live in their family life will attain highest fulfilment of the human existence. Unequivocally the solemnization of marriage is the spinal cord of the body of a family life. The marriage as a sacrament is necessary for regeneration of a man and the only sacrament in the woman. Solemnisation of marriage is an important social function among the followers of all religions and classes. In Indian Society marriage apart from its natural individual significance has still more social significance, as it creates a bond not only between two individuals but between two families. However, Bentham in his Theory of Legislation has said that the end of man in this institution of marriage might be only the gratification of a transient passion and that if passion satisfied, he would have had all the advantages of the Union without any of its inconveniences. Further his theory states that it is not the same with woman; the engagement has, for her, very durable and very burdensome consequences. But under whatever point of view the institution of marriage is considered it is a universal truth, relevant today also, that nothing can be more striking than the utility of this noble contract, the tie of society and the basis of civilisation and that to perceive its benefits, it is only necessary to imagine for a minute 'What men would be without this institution.'
2. From times immemorial the respectable type of marriage in India has been commemorated by giving away one's daughter or sister at a wedlock with self-dedicated gifts of ornaments, cash or articles one could easily afford to give. In ancient and medieval India, what a parent or guardian volunteered to present to 'the bride' was that he could easily afford, and neither there was any element of constitution for bestowing anything nor the same was considered a condition essential to the marriage. The element of monetary 'bargain' into marriage was not at all present and the main considerations for the marriage were caste, status, the social and economic position of the families and the compatibility of the horoscopes of the bride and the bridegroom. Hindu Shastras treated marriage as Samskara, a sacrament and the phenomenon of 'dowry' was unknown. This system of dowry originally incepted in the form of giving affectionate gifts at marriages, came to be prevented and replaced by the demands and commercial transactions. Dowry, in its real significance was a voluntarily given gift to a daughter or sister, but today, the meaning and extent of dowry have perfectly changed and it implies the presence of a demand or compulsion, exercised by either side to a marriage against its other counterpart, who has almost no option under the social pressure but to bow down to the demand or compulsion. This commercial transaction of dowry has become a type of bargain between bride's parents and bridegroom's parents.
3. It is an evident fact that the reminiscences of the ages have although paved way to the brilliancy of our ideological progress, yet a degenerated working upon, in many aspects, have created many problems to our social and individual institutions contributing in major proportions ' against our social and national solidarity. Telling with the above ideology the problem and evil of dowry crept into the institution of marriage. And for insufficiency of dowry, all sorts of indignities from humiliations to mal-treatment, taunts, and teasing to burning alive are the evil phenomena prevailing in the society with an increasing tendency even in this space age. This is the pitiable tragic and pathetic plight of the young brides in our society, who start their matrimonial lives with sweet dreams of having their own houses with small kids and loving and caring husbands and leave their own paternal houses with the feeling that in that house they were the 'Amanat' of the matrimonial families.
4. Thus dowry, a 'Slur' on society and stigma on present generation attached to the sacred institution of marriage tremendously requires a new line of thought and absence of any awakened consciousness would leave us far behind. This social evil, taking away precious lives of brides rarely noticed, deserves much preventive and stringent legislations.
5. Section 304-B and Section 498-A with other provisions were inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1983 with effect from 23rd December 1983. The amendments suggest the anxiety of the Parliament to extend protection to the weaker spouse. Earlier short of physical cruelty the mental cruelty made the life of the house-wife miserable. Successful suicide as a result of harassment was beyond the pale of municipal law. There was no adequate provision.
6. The facts of the present case to appreciate the question in controversy can well be delineated. Tejinder Pal Kaur complainant was married to Satbir Singh on 15-11-1992. In the complaining statement of Tejinder Pal Kaur it has been recited that at the time of the marriage, the parents of the complainant had given sufficient dowry. It included a colour Television, Double bed, sofa set, paity, dressing table, clothes and ornaments. After about five months of the marriage, the petitioners namely husband of the complainant, her mother-in-law and father-in-law started complaining that the father of the complainant had not given a car and a bunglow; On account of the said fact, the deceased was being taunted from time to time. They even started saying that clothes given at the time of the marriage were useless ragsi the deceased had brought these facts to the knowledge of his father and brother. Whenever the father of the complainant came to see her, she was allowed to met him for a minimum period. When the complainant wanted to meet her parents, she was physically assaulted by the petitioners. The complainant used to give this information to her father and brother on telephone, when they came to her house. She gave birth to two children. In November, 1995 Rs. 20,000/- were given to the complainant with a view to please petitioner Satbir Singh (husband of the complainant) but the greed continued. The complainant was made to do the household work. On 16-6-1996 there was excessive salt sprinkled on the Salad. On this Satbir Singh petitioner started assaulting the complainant while her father-in-law and mother-in-law abused her. She was told that many trains were plying and that she should put an end to her life by jumping under some train. The complainant decided not to cause further problem to her parents. On 17-6-1996 she went to the railway line and made an attempt to commit suicide. As the luck would have it, she was saved but her left arm was cut.
7. The learned Sessions Judge, Amritsar vide order dated 11-1-1997 held prima facie that besides the offence punishable under Section 498-A, IPC, the charge is liable to be framed under Section 304-B read with Section 511, IPC and Section 306 read with Section 116, IPC. It is the said order which is being challenged by the petitioners in the present revision petition.
8. There is no controversy being raised in this Court with respect to the charge being framed with respect to the offence punishable under Section 498-A, IPC. The sole controversy pertained to the other charges framed which have already been mentioned above namely Sections 304-B read with Section 511, IPC and Section 306 read with Section 116, IPC.
9. Sections 227 and 228 of the Code of Criminal Procedure provides the guidelines as to when a person is to be discharged or when charge is to be framed in a trial before a Court of Session. The relevant provisions are being reproduced below for the sake of facility :-
227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
* * *
228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
2. Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
These provisions have been the subject-matter of consideration more often than once. In the case of State of Bihar v. Ramesh Singh AIR 1977 SC 2018 : 1977 Cri LJ 1606 the Supreme Court considered the scope of Sections 227 and 228 of the Code of Criminal Procedure. It was held that at the initial stage the evidence has not to be adjudged meticulously. The weight is not to be attached to the probable defence of the accused. It was concluded that if at the initial stage there is strong suspicion which leads the Court to think that there is ground for presuming that accused has committed the offence, the charge can be framed. The Court concluded (at page 1607 of Cri LJ) :-
It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.
Same question was again considered in the case of Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : 1979 Cri LJ 154. It was held that Court must apply its judicial mind and is not a mouth-piece of the prosecution. For the limited purpose the evidence can be shifted. In paragraph 10 the conclusions drawn were (at pages 157 & 158 of Cri LJ):-
Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
A year later in the case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52 : 1979 Cri LJ 1390 the same question was considered and it was held that at the time when charge is to be framed, the material collected by the Investigating Officer has to be seen and considered. The standard of proof required for convicting an accused is not to be looked into at the initial stage. In paragraph 18 the findings recorded were (at page 1393 of Cri LJ) :-
It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh AIR 1977 SC 2018 : 1977 Cri LJ 1606, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sections 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of the charge against the accused in respect of the commission of that offence.
Lastly, reference with advantage may be made to the decision of the Supreme Court in the case of State of Maharashtra v. Som Nath Thapa 1996 (2) Rec Cri R 480 : 1996 Cri LJ 2448. It was conclused that where a Court comes to the conclusion that the offence is probable consequence, a charge can be framed. In Paragraph 33 the Supreme Court provided the following guidelines : -
The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable con sequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
It is obvious from aforesaid that while framing the charge, the Court has simply to see if there is ground to presume that accused has committed (he offence or not. If there is sufficient ground found to proceed, the charge can be framed but if on basis of the assertions made and the evidence collected by the prosecution, there is no case that is drawn, in that event, the charge need not be framed. With this backdrop, one can revert to the contentions raised at the bar.
10. In the first instance it had been contended that Section 306 read with Section 116 of the Indian Penal Code would not be attracted because there cannot be any abetment to commit suicide when suicide by itself has not been committed. On behalf of the State on the contrary the contention of the State as put forward before the learned Sessions Judge were repeated. It was argued that offence under Section 306 read with Section 116, IPC would be drawn when there is an abetment irrespective of the fact whether the offence is committed or not.
11. It is well known that basically Section 306 of the Indian Penal Code had been enacted to prevent the system of Sati that was prevalent at the relevant time in India. However, it would be folly to state that scope of Section 306 which is widely worded is confined to the said system of Sati. Section 306, IPC reads :-
306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
It is obvious from aforesaid that necessary ingredients to attract Section 306, IPC are that:-
a) a person must commit suicide;
b) the accused may abet the commission of such suicide.
We know from the decision in the case of Wazir Chand v. State of Haryana (1989) 1 SCC 244 : 1989 Cri LJ 809 that before Section 306, IPC is to be attracted, commission of suicide must be proved. If a lady is unnecessarily harassed, it derives her to commit suicide, in such event Section 306 would be attracted.
12. In the present case the suicide attempt failed. The scheme of the Indian Penal Code concerning abetment has been mentioned in Chapter V of the said Code. Abetment of a thing has been explained in Section 107 of the Indian Penal Code and reads :-
107. Abetment of a thing.- A person abets the doing of a thing, who-
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
On the strength of this provision, on behalf of the respondent, it was urged that there was instigating and aiding to commit the offence and, therefore, expression "Abettor" would be attracted. But before proceeding further, one can take note of other provisions of Chapter V of the Indian Penal Code. Under Section 108 of the Code, a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Section 109, IPC further provides that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made in the Code, shall be punished with punishment provided for the offence. Section 113 deals with the liability of abettor for an effect caused by the act abetted different from that intended by the abettor. But Section 116, IPC that has been pressed in to service deals with abetment of offence punishable with imprisonment if offence be not committed. It reads as under:-
116. Abetment of offence punishable with imprisonment if offence be not committed.- Whoever abets an, offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both;
(if abettor or person abetted be a public servant whose duty it is to prevent offence) and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.
The said expression "instigating" has been considered by the Division Bench of this Court in the case of Raj Kumar v. State of Punjab 1983 (1) Chand LR 660 : 1983 Cri LJ 706 and while referring to the said expression ft was held (at page 708 of Cri LJ):-
Expression 'instigate' in the Concise Oxford Dictionary is defined as 'urge on, incite, bring about by persuasion and in Webster, it has been defined as 'urge forward, provoke with synonyms of stimulate, urge, spur, provide tempt, incite, impel, encourage, animate. The word 'instigate' in common parlance would mean to go, to urge forward or to provoke, incite or encourage to do an act.
The retort made by the accused when the deceased threatened to commit suicide if Rajinder . Kumar did not agree to her request, did not amount to instigation by any stretch of imagination. If such a retort is accepted to be constituting instigation, then, to cite only one example, the parents would be guilty of abetment of suicide if' even when most unreasonable demand is made by their child, which they are not in a position to comply with, on the threat of committing suicide and they were to retort that the child could do so as they were not in a position to agree to his/her request. The framers of the Code surely could never have intended this to happen.
The Supreme Court also elucidated it in the case of Gurbachan Singh v. Satpal Singh 1989 (4) JT (SC) 38 : 1990 Cri LJ 562 by holding that "Abetment does not involve the actual commission of the crime abetted, it is a crime apart". Can in the facts of the present case it be termed that when the suicide did not succeed, Section 116 read with Section 306, IPC would be attracted? The answer in the considered opinion must be held to be in the negative. Section 116 which has been reproduced above, specifically deals with the situation where offence is not committed in consequence of the abetment. But matter for consideration before the Court is that there should be no express provision made in the Code. Herein Section 498-A of the Penal Code deals with such situation. It is being reproduced below for the sake of facility :-
498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term Which may extend to three years and shall also be liable to fine.
Explanation- For the purposes of this section, "cruelty" means-
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Clause (a) of the Explanation clinches the issue in favour of the petitioners. It deals with situations where there is cruelty, meaning thereby that there is a conduct which is likely to derive the woman to commit suicide. In other words, Section 498-A prescribes punishments for situations where there is such a cruelty mentioned above. In that event Section 116, IPC will not be attracted.
13. In the present case it is alleged that there is demand of dowry and the complainant was being harassed. She did not succeed in her attempt to put an end to her life. Section 306, IPC will not be attracted because when there is specific provision for such harassment in the form of Section 498-A IPC, Section 116 Penal Code will not be attracted. Thus, to that extent the charge could not be framed against the petitioners.
14. The second limb of the arguments advanced was to the effect that though by the grace of God Tejinderpal Kaur survived but immediately before her attempt, she was subjected to cruelty and harassment in connection with demand of dowry and if she had died, the petitioners would have been guilty of the offence punishable under Section 304-B, IPC. The learned trial Court held that it would be an offence punishable under Section 304-B/511, IPC. Learned counsel for the petitioners urged that in the facts there could not be any attempt with respect to the contemplated offence under Section 304-B, IPC. On behalf of the respondent a contention to the contrary was vehemently urged.
15. Section 304-B, IPC was inserted by Central Act 43 of 1986 w.e.f. 19-11-1986. A new offence popularly termed as dowry death had been incorporated and added in the Indian Penal Code. The same had been enacted to provide for punishment in cases where a woman is subjected to cruelty by persistent demand of dowry by her husband or relatives of the husband. If her death is caused by bodily burn or otherwise, than under normal circumstances within 7 years of her marriage and soon before her death she was subjected to cruelty, it was termed as dowry death. The question that seeks an answer is as to whether in the facts there was or could be an attempt for dowry death. One of the best known definitions available pertaining to attempts is by Stephen in his book Digest of the Criminal Law. In Chapter IV at pages 26-27 in Article 29 the learned Author says :-
An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted.
The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case.
An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime.
This had been considered by the House of Lords in Reg v. Smith 1975 Appeal Cases 476. The question as to what would be an attempt was again considered and it was observed to the following effect:-
Before proceeding further, I desire to make an observation on the expression "actus reus" used in the quotation above. Strictly speaking, though in almost universal use, it derives I believe, from a mistranslation of the Latin aphorism, "Actus non facit reum nisi mens sit rea." Properly translated, this means "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the actus which is "reus," but the man and his mind respectively. Before the understanding of the Latin tongue has wholly died out of these islands, it is as well to record this as it has frequently led to confusion. From the two definitions cited above, I derive the following propositions relevant to the present appeal.
(1) There is a distinction between the intention to commit a crime and an attempt to commit it. Thus, in this case, the respondent intended to commit a crime under Section 22 of the Theft Act. But this dishonest intention does not amount to an attempt. This distinction has not always been observed in the discussion of cases on the law affecting attempts.
(2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of act which would constitute the actual commission of the offence if it were not interrupted.
In this process a clear distinction was drawn between intention to commit a crime and an attempt to commit the same. It is well known that intention does not amount to an attempt.
16. The viewpoint in India has never been much different. In one of the earliest decisions from Lahore High Court in the case of Kishen Singh v. Emperor AIR 1927 Lahore 580 : 28 Cri LJ 663 the following paragraph of the decision from Calcutta High Court in matter of Amrita Bazar Patrika reported as (1920) 54 Ind Cas 578 : (21 Cri LJ 98) was approved and is being reproduced below for the sake of facility :-
Attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.
The ratio drawn from the aforesaid decision is that attempt is an act done in part execution of a criminal design. An intention will not make it so. A Division Bench of the Patna High Court in the case of Province of Bihar v. Bhagwat Prasad 50 Cri LJ 682 : AIR 1949 Pat 326 also considered the same that a stress that an attempt is an act which leads inevitably to the commission of the offence and some event prevented the same. At page 683 it was held ;-
An attempt to commit an offence is, as I understand it, an act, or series of acts, which leads inevitably to the commission of the offence unless something which the doer of the act or acts neither foresaw nor intended, happens to prevent this. An act done towards the commission of an offence, which does not lead inevitably to the commission of the offence unless it is followed or, perhaps, preceded by other acts, is merely an act of preparation.
A few years later in the decision in the case of Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal AIR 1973 SC 2655 : 1973 Cri LJ 1798 the statement of Blair, J. in the case of R. Maccrea (1893) ILR 15 All 173, was approved. The same reads :-
It seems to me that that section (Section 511) uses the word 'attempt' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable. The term 'any act' excludes the notion that the final act short of actual commission is alone punishable.
Lastly reference with advantage may be made to the decision in the case of State of Maharashtra v. Mohd. Yakub AIR 1980 SC 1111 : 1980 Cri LJ 799. In paragraph 13 the Supreme Court held:-
Well then, what is an "attempt"? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control." This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, ail crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preprarations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such, overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar (1962) 2 SCR 241 : 1961 (2) Cri LJ 822 there is a distinction between 'preparation' and 'attempt'. Attempt begins where preparation ends. In sum, a person commits the offence of attempt to commit a particular offence" when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
17. It is obvious from the aforesaid that before there can be an attempt to commit the crime, there has to be an intention to commit the crime may be preparation. Attempt would be a final assault towards the commission of the crime which may be prevented by some unforeseen events. We know that generally there are two classes of crimes. Crimes requiring mens rea and crimes that are committed by negligence. But there are now added the crimes of strict responsibility. They are added by the acts of Parliament. But in order to commit a criminal attempt, two things are necessary i.e. an intention to commit an indictable crime and overt act that accused thinks would further that intent. For purposes of criminal liability, it is sufficient if the attempt had gone so far that the crime would have been contemplated but for extraneous intervention which frustrated its consummation.
18. What would be the effect of aforesaid on the facts of the present case. At this stage, one would hasten to add that in a given case a fact shows that harassment was with an intention to ensure that victim will commit dowry death. It may in those facts be taken as an offence punishable under Section 304-B read with Section 511, IPC But herein the facts are different. It is not the prosecution case that the persistent demand of dowry was with a view that Tejindersal Kaur would commit dowry death. The demand was being made to get more dowry. It is not the prosecution case that petitioners were driving her intentionally to put an end to her life. It was a greedy act by the petitioners. They wanted to enrich themselves by harassing her, once it is not inferred that they were intentionally doing, this act that she would put an end to her life, it will not be presumed that there was an attempt in this regard. The last act when there was a dispute about excessive salt on Salad only provided ammunition to give vent to their feelings. Still by no stretch of imagination it could be termed to ensure that she should put an end to her life. Casual remarks alleged, is not an attempt. Maxwell in his Book the Interpretation of Statutes tells us at page 208 that:-
A sense of the possible injustice of an interpretation ought not to induce judges to do violence to well-settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. Whenever the language of the legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifest in plain words. "If the Court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice." But the possibility of injustice which leads the Court to adopt a particular construction must be a real one : if the injustices suggested in argument are purely hypothetical, and may never or only rarely occur in practice, the Court will remain unmoved.
Herein neither the statutory rule is being flouted nor injustice caused. It is plain reading of the! prosecution case. It cannot be termed that there was an intention to put an end to her life. No positive attempt was made. In that direction, in this regard the charge could not be drawn.
19. However, there was no dispute raised that with respect to the offence punishable under Section 498-A, IPC, the petitioners have to be tried.
20. For these reasons given above, the revision petition is partly allowed. The order by virtue of which the charge was framed against the petitioners with respect to offences punishable under Sections 306/116 and 304/511, IPC are quashed. The case should be remitted to a Judicial Magistrate of the district concerned for trial with respect to the offence punishable under Section 498A, Indian Penal Code.