Patna High Court
Sk. Mansuri Nizamuddin vs The State on 14 December, 1954
Equivalent citations: AIR1955PAT330, 1955CRILJ1092, AIR 1955 PATNA 330
JUDGMENT Banerji, J.
1. The appellant has been convicted under Section 307, I.P.C. and sentenced to undergo rigorous imprisonment for seven years by Mr. F. Khan, a Magistrate, with powers under Section 30, Cr. P.C. He has, also, been convicted under Section 19(f), Arms Act, and sentenced to undergo rigorous imprisonment for one year with the direction that the two sentences should run concurrently.
2. On 7-2-1954, which was a Sunday, Kashinath Tripathi (P.W. 2), Kameshwar Tewari (P.W. 3) and Maldeo Tewari (P.W. 4) had gone to a place called Chianki in the district of Palamau to cut grass. They saw the accused sitting on a bundle-and either reading or singing with reference to a cinema-book. The three witnesses, on seeing a stranger in that locality, accosted him and he replied that he had come there to arrange a marriage of his sister and then enquired if there was a rich Brahman in the village who would be desirous of entering into a marriage negotiation. As this man, the accused, had a book, which he was reading, which happened to be in Urdu, the witnesses suspected that he was telling a lie and that, most probably he was not a Hindu but was a Muhammadan.
P.W. 1 then saw something projecting from the bundle which appeared to him like the barrel of a pistol. He drew the attention of his companions and they, also, saw the barrel-end of the pistol sticking out of the bundle. The accused, on being further questioned, stood up, took out the pistol and pointed the same to these three witnesses. The witnesses stepped back and, when they were at some distance, the accused fired several rounds and then started running away from the spot. The three witnesses commenced chasing him and raised a hue and cry which drew the attention of other villagers and they including Sheonandan Singh (P.W. 5) and Nagina Singh (P.W. 6), joined in the chase and, subsequently, at a distance of two miles from Chianki in village Bhusahi, the accused was arrested and, because he was struggling, he was assaulted with lathis by the villagers.
While running away, the accused threw away two chhuras with scabbards (Exs. IV and IV/1), a sendhmarni (Ex.- III) and some other articles in order to facilitate his flight. When he was, at last, overpowered, a search of his person was taken by the villagers and a pistol and several live cartridges were recovered. The villagers, also, recovered two empty cartridges which were found on the way from Chianki and they produced the accused before R.N. Dutta (P.W. 7), Sub-Inspector of police of Daltonganj, at 5-30 P.M. They produced also the pistol, the cartridges and the other articles, which the accused had thrown away while he was being chased by the villagers. The sub-Inspector noticed that the pistol was giving out fresh smell of gun powder and its butt was in a damaged condition. He went to Bhusahi, where the accused was said to have been arrested and inspected the field belonging to one Ramkhelawan Singh. It was in this field that the accused is said to have been ultimately overpowered and arrested by the villagers. The Sub-Inspector found blood stains on some clods of earth in this field and, also found the wooden piece which fitted with the butt of the pistol produced by the villagers at the police station. He sent the firearm and the ammunition to the Police Laboratory Arms expert in a sealed packet through Constable Lachhmi Narain Choudhary (P.W. 13) and obtained sanction of the Deputy Commissioner of Palamau for the prosecution of the accused under Section 19 (f), Indian Arms Act.
The Fire Anns Expert of the Government, to whom the firearm and the ammunition were sent is Babu Gurupada Bhattacharaya (P.W. 15). According to him, the pistol (Ext. V) was a country-made one and the cartridge cases (Exs. VI and VI/1) and the misfired cartridge (Ex. VI/3) had been fired or attempted to be fired from the pistol (Ex. V). The pistol was in a perfect working order and could effectively be used as a firearm. The barrel of the pistol was examined on 17-2-1954 and was found coated with soft fouling which indicated that the pistol had been used for firing within the course of the last month. The piece of wood (Ex. VIII) recovered by the Sub-Inspector in the field of Ramkhelawan fitted in the butt of the pistol and, according to the Expert, it was actually a part of that weapon. This, in short, was the prosecution story.
3. After investigation and after obtaining the sanction of the Deputy Commissioner to Palamau, the accused was tried by the court below with the result mentioned above.
4. On these facts, the accused was charged under Section 307, I. P. C., and Section 19 (f), Indian Arms Act. He pleaded not guilty and when examined by the learned Magistrate stated that he would file a written statement. No written statement however, was filed on behalf of the accused. It was suggested to P. Ws. 2, 3 and 4 that they had robbed the accused of Rs. 700/- in cash which he was carrying for the purchase of biri leaves from the merchants of the locality and when he became unconscious after receiving numerous blows from lathis, these three witnesses, in order to save themselves from a possible charge of robbery and attempted murder, planted the pistol and cartridges on him and produced them before the officer in charge of Daltonganj Police station falsely informing the officer that he was arrested after a chase and that he had fired several times at them. There was no explanation about the two empty cartridges, the two daggers with sheaths and the sendhmanni which were said to have been thrown away by him while in hot pursuit. Two defence witnesses were examined. One is his own father (D.W. 2) and the other is Muhammad Islam (D.W. 1) who is said to be a biri merchant and whom the accused is alleged to have visited prior to this arrest.
5. After perusing the depositions of the witnesses, I am left without any speck of doubt that the prosecution witnesses were giving a true version of the occurrence. It is hardly probable that P.W.'s 2, 3 and 4 would try to commit robbery in broad-day-light when they could be detected by other villagers of different villages with which they had no concern. In the ordinary circumstances, they would not have the courage to take the accused with them to the Police station and, thereby, invite an investigation which might very well go against them. P. Ws. 5 and 6 are of a different village and there is no suggestion to them that they, also, participated in the alleged robbery or that they could be influenced by those witnesses, namely, P. Ws. 2, 3 and 4. Muhammad Islam (D.W. 1) admitted that the accused gave him a letter and said that his father had sent him for purchasing biri leaves. This letter was not produced in the court below. D. W. 1 failed to produce any register to show that he had any transaction with the father of the accused in respect of biri leaves. Although he came to know of the arrest of the accused, he remained inactive all along and did not go to the police station and tell the investigating officer that the charge against the accused was based on statements which were a tissue of lie.
According to the defence the accused was carrying seven hundred rupees notes besides some change but D.W. 2 has not disclosed the source from which he could get so much money to send his son with a mission to purchase biri leaves in Daltonganj which is another district. No books of account have been produced to show that D.W. 2, the father of the accused, is a dealer in biri leaves, or that he is a person who can invest Rs. 700/-in cash. There is no witness to the payment of this sum by D.W. 2 to the accused and even the letter, which is said to have been, written by D.W. 2 to D.W. 1, has not been produced. All these facts and circumstances go to show that, the prosecution witnesses were telling the truth when they narrated the occurrence from the time they accosted the accused at Chianki and till he was arrested in another village two miles away. The two defence witnesses have deposed in order to save the accused and, regard being had to the discussions mentioned above, they can hardly be believed. I have no hesitation, therefore, in rejecting the rival defence theory of the occurrence. Accordingly, the accused was rightly convicted for being in possession of an unlicensed pistol and cartridges for which, also, he held no licence from any licensing authority.
6. Mrs. Dharamshila Lall, appearing on behalf of the appellant, has argued that, on the facts, as stated, the conviction under Section 307, P.C., cannot be sustained. In order to grasp the weight of this argument, it is necessary to discuss what the witnesses have said with reference to this point. According to P.W. 2, the accused stood up on being questioned and began to brandish his pistol, on which he and his companion receded a little and the accused shot at them 6 or 7 times. In cross-examination the witness gave some idea as to how far they receded and said that he and his companions removed themselves twenty to fifty steps away and raised alarm. There is no indication from his deposition as to the distance from which the accused is said to have fired his pistol. P.W. 3 said that the accused went a bit behind and began to shoot at them with pistol and that he fired five or six times. In his case, too, one cannot be definite as to the distance from which fire was opened. P. W. 4 is the only witness who gave some idea about the distance from which the accused opened fire. He said, "Accused opened one fire in the air and one fire at us. We were at about 100 yards when he had fired at us."
P. W. 5 stated in examination-in-chief that he tried to catch the accused from his front but he fired his pistol. He, too, did not give any idea about the distance. The prosecutor, unfortunately, did not take from the witnesses the distance from which the accused is said to have fired his pistol both at the time when he was accosted by the villagers at Chianki and at the time when he was being pursued by them and other villagers. This, he should have done. He should have, also, extracted expert opinion from P. W. 15 regarding the distance which this country-made pistol was able to reach with the projectiles fired with it. Usually, a country made pistol, without proper rifling inside the barrel, is not capable of throwing projectiles more than 40 or 50 yards and, in this case I am inclined to believe the evidence of P. W. 3 who said in cross-examination that the shots fell at about 25 steps, which will be roughly, about 15 to 20 yards. It is significant that, although, the accused was being pursued by a number of villagers who approached him from close quarters and presented a broad target, not one of them was injured. To my mind, the accused at first, discharged his pistol in order to scare away the villagers and when he aimed his pistol, on them, the distance between him and the villagers was about a 100 yards.
On these considerations it is difficult to conclude that the accused was actuated by any intention to cause the death of a villager or villagers. It is also difficult to hold that he had the knowledge that he was going to cause death by this sort of random firing from beyond the range, of his weapon. To constitute an attempt to murder, there must be some overt act combined with evidence of mens rea. The burden is always on the prosecution to prove, first, the actus reus, that is, the accused had done something which in point of law marked the commission of the offence, and, second, the mens rea, that is, in taking this step he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. In this case, the prosecution has certainly discharged the onus concerning the actus reus but it is difficult to say whether it has been able to prove the mens rea, which is nothing more than a clear intention to perform the actus reus of some other crime.
Kenny, in his Outlines of Criminal Law (Sixteenth Edn.) at p. 80, has rightly pointed out that considerations of the mental attitude, which is described as 'recklessness', have no place in the crime of attempt. A man cannot be convicted for an attempt to murder or to comit any other offence, if the evidence discloses that he was rash, negligent or reckless. The words 'rash' and 'rashness' are sometime used to indicate same mental attitude as 'recklessness', although, there is some subtle distinction between them. It is pointed out by Kenny that intention cannot exist without foresight but foresight can exist without intention; for a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; nonetheless, if he persists on his course, he knowingly runs the risk of bringing about the unwished result Continuing, he has, further, said that a man who is reckless may prefer that the contemplated event shall "not happen, or, he may not care whether it happens or not; but in either case he does not desire it to happen and, therefore, does not act with the purpose that it shall happen.
The nice distinction between rashness, negligence and recklessness or heedlessness has been pointed out in Austin's Jurisprudence (fifth edn.), vol. I, pp. 428-431. According to him 'Negligence' and 'Heedlessness' suppose unconsciousness. In the first case the party does not think of a given act; in the second case, the party does not think of a given consequence. To quote further;
"The party who is guilty of rashness thinks of given consequence; but, by reason of a missup-
position arising from insufficient advertence, he concludes that the given consequence will not follow the act in the given instance. Now if he surmise (though never so hastily and faintly), that his missupposition is unfounded, he intends the consequence. For he thinks of that consequence; he believes that his missupposition may be a missupposition; and he, therefore, believes that the consequence may follow his act". At page 431, the celebrated author deals with these three attitudes of mind and says that though they are closely allied, or are modes of the same notion, they are broadly distinguished by differences. He then, sets out what those differences are; "In cases of Negligence, the party performs not an act to which he is obliged. He breaks a positive duty.
In cases of Heedlessness or Rashness, the party does an act from which he is bound to forbear. He breaks a negative duty.
In cases of Negligence, he adverts not to the act, which it is his duty, to do.
In cases of Heedlessness, he adverts not to consequences of the act which he does.
In cases of Rashness, he adverts to those consequences of the Act; but by reason of some assumption which he examines insufficiently, he concludes that those consequences will not follow the act in the instance before him."
In Russell on Crime, 10th edn., pages 35-36, it has been observed that a different state of mind from that of inadvertence is needed for criminal liability and, quoting Austin, it is further observed that the state of mind which amounts to mens rea is that of man who conceives the future event, and believes that there is a chance of its following his volition or act. The words 'recklessness and 'heed-lessness', as used by Austin to indicate a particular state of mind, according to this treatise, have been approved by the Courts in modern cases. Judging by these standards, therefore, it is not possible on the facts and circumstances of the case to hold that the accused had the mens rea, that is, he had in-tended to cause death, or, knew that, in the circumstance, his act of firing was going to cause death, to any of the villagers.
7. Mr. Varma, on behalf of the State, has cited the case of -- 'Sudheendrakumar Ray v. Emperor', AIR 1933 Cal 354 (A), where it is argued in similar circumstances, their Lordships held that the act of the accused amounted to an offence under Section 307, I.P.C. Their Lordships did not discuss this point raised on behalf of the appellant in detail but observed as follows:
"Certain persons are clearly in fear of being apprehended by the police. When they find that they are being followed, they turn round and fire at the constables. In these circumstances, it is a great strain on one's imagination to suppose that they were using revolvers loaded with blank cartridges when there is no evidence to indicate that they were so doing. The circumstance that they did not succeed in hitting anybody is no reason for supposing that the cartridges were blank. ..... We have it that the persons turned round and deliberately fired, though they did not hit anybody. That is no reason for supposing that they were not attempting to hit. It is much more likely that they wanted to hit. I am not impressed by the argument that because the bullets have not been found we ought to assume that no case has been made out under Section 307, I. P. C."
The facts of that case appear to be that two constables saw four men getting into a boat. Two of them got to the top of the ferry 'ghat' and, on seeing that they were being followed, fired a revolver-one shot each from the top of the ferry ghat at their pursuers. In the course of the chase, the appellant fired some shots but nobody was hit and no bullets were found. Apparently, it was conceded that the exchange of fire was within the range and both the constables could be wounded by the bullets ejected from the revolver used by the appellant. It was not argued in that case that, at the time of the firing by the appellant, the two constables were beyond the range of fire and could not, possibly, receive any injury.
In 'Dhanwantri v. Emperor', AIR 1933 Lah 852 (B), the appellant is said to have turned round and fired the pistol at the constable chasing him; the bullet struck the whistle that the constable had in his pocket and, then, passing through the side remained lodged inside. His Lordship, Dalip Singh J., observed as follows:
"I therefore consider that on the merits he has been rightly convicted under Section 307,. I.P.C., for it is obvious from the place where the bullet struck that the shot was aimed with the intention of seriously injuring the police constable who was chasing the appellant and with reckless disregard as to whether his life was or was hot endangered by doing so. When a man uses a deadly weapon like a pistol in such a fashion the presumption against him is that he intended to cause death. I see no reason why the presumption should not be drawn against the appellant in this case".
The facts in the Lahore case are different from those in the present one, as the constable was shot at, evidently, from a point-blank range and, therefore the observation made in that decision was quite appropriate. It was not the defence there that the accused was firing his pistol recklessly without any intention or knowledge of causing the death of, or even of causing ordinary hurt to, anybody. On the other hand, the facts in this case if more deeply examined, would indicate that the accused was shooting 'at random' for the purpose of frightening his pursuers and would be captors.
In 'R. v. Hufflett', (1919) 84 JP 24 (C), referred to in Russell on Crime, 10th edn., Vol. I, pp. 680-681, the indictment was for shooting at a police constable with intent to murder him, which contained other counts, and the defence was that the accused purposely shot wide in order to frighten the constable. The jury were directed that, if they believed this, that is, the accused shot wide in order to frighten the constable, they should find him guilty only on the count which charged him with resisting or obstructing the police constable in the execution of his duty. In the case before me, there is no charge under Section 336, I.P.C., against the accused. It will not be proper at this stage therefore to alter the charge and convict the accused under this section.
8. The accused, accordingly, is entitled to acquittal under Section 307, I.P.C. His conviction and sentence under Section 307, I.P.C., are accordingly, set aside. The conviction under Section 19 (f), Indian Arms Act and the sentence awarded are maintained. The appeal is partly allowed.