Dear Mr. Anil Kumar
I have just come across another case law on the point raised by you. For your convenience it is posted here.
Chintoji Balaiah
v
State of Andhra Pradesh, Represented By Its Public Prosecutor High Court of Andhra Praedesh
RAMESH RANGANATHAN
05 Jan 2007
BENCH
RAMESH RANGANATHAN
COMPARATIVE CITATIONS
2007 (2) ALT(Cr) 92, 2007 INDLAW AP 27
CASES REFERRED TO
State of Maharashtra v Mohd. Yakub and Others 1980 Indlaw SC 2
Malkiat Singh and Another v State of Punjab 1968 Indlaw SC 166
ACTS REFERRED
Indian Penal Code, 1860[s. 309, s. 511]
Code of Criminal Procedure, 1973 (as amended by Act No. 25 of 2005 & Act No. 2 of 2006.)[s. 173]
CASE NO
Criminal Petition No.4857 of 2005
LAWYERS
K. Balagopal
.JUDGMENT TEXT
The Order of the Court was as follows :
1. This criminal Petition is filed to quash the charge sheet, in C.C.No.569 of 2003, on the file of the Judicial Magistrate of I Class, Sircilla, Karimnagar District in Cr.No.29 of 2003 of Mustabad Police Station, for the offence under Section 309 Indian Penal Code, 1860.
2. The allegations in the charge sheet are that the petitioner herein, a resident of Mustabad village, had attempted to commit suicide demanding sanction of a Government Junior College at Mustabad Mandal Headquarters. On 15-8-203 at 10.00 hours the Mandal Revenue Officer. Mustabad made a complaint stating that on the same day the petitioner herein had given him a call that he would commit suicide jumping down from the Telephone tower, Mustabad at or before 12.00 hours on 15-8-2003 if the Junior College was not sanctioned to Mustabad Mandal Headquarters and that he had also demanded that the functioning of the Junior College be commenced immediately from ZPSS school on a shift basis. The sub-Inspector of Police, Mustabad P.S. (L.W.7) rushed to the telephone exchange at Mustabad, made systematic and tactful efforts and got the accused down from the telephone exchange tower at 15-35 hours. The confession statement of the accused was recorded and a bottle of petrol and a match box were seized from his possession. L.Ws. 1 :o 4 were examined and their detailed statements recorded. As the accused had complained of chest pain he was immediately sentto Sircilla for treatment. While undergoing treatment the petitioner absconded from the hospital. On 29-8-2003 he was apprehended at his residence and, on interrogation, is said to have admitted his guilt. He was arrested, brought to the police station, issued an arrest card and the formalities of his arrest was completed.
3. According to the charge sheet, from the facts collected during investigation, it was established that the accused had earlier organized a fast- unto-death demanding sanction of a Government Junior College at Mustabad Mandal Headquarters. The Chairman, Zilla Parishad, Karimnagar had assured him that he would seek sanction from the Hon'ble Chief Minister and had persuaded to him to call off his stir. As there was no response to his request, that a college be established at Mustabad Mandal Headquarters, the petitioner-accused had decided on self-immolation burning himself with petrol and jumping from the top of the Microwave Tower. Accordingly on 15-8-2003 he had sent a notice to the Mandal Revenue Officer and had climbed on top of the Telephone exchange tower, at Mustabad at 0800 hours, with a bottle of petrol demanding sanction orders from the government as well as an announcement by the Chief Minister of Andhra Pradesh through Radio and T.V. channels regarding sanction of a Government Junior College at Mustabad Headquarters. On intervention by the police his plan was foiled. The witnesses, examined during investigation, stated that the accused was cleverly brought down from the tower and the petrol can taken away from him.
4. Sri K. Balagopal, learned Counsel for the petitioner, would submit that an attempt to commit an offence involves three stages, the first is where the idea or the intention to commit the offence is entertained, the second when preparation is made to commit the offence and the third when deliberate overt steps are taken to commit the offence. Learned Counsel would submit that such overt acts, in order to constitute an offence, must be an act during the course of committing that offence, and that it is necessary that such act or acts must be deliberately done and must manifest a clear intention to commit the offence reasonably proximate to the consummation of the offence. Learned Counsel would submit that in this case, while the petitioner-accused had informed everybody that he was going to commit suicide on 15th August 2002 at 12.00 noon and had climbed on top of the Tower at 8.00 AM with a can of petrol in his hand, he was persuaded to come down at 15-35 hours. Learned Counsel would submit that the very fact that the petitioner did not commit suicide by 12.00 noon and had not carried out his threat till 1.30 p.m., would show that at the proximate point of time, the intention to commit suicide was not manifest. Learned Counsel would further submit that the investigating officer had himself stated that he had made systematic and tactful efforts to get the accused down which would establish that the accused was not physically, or through the use of force, prevented from committing the offence, but was persuaded to change his mind and come down from the top of the tower. Learned counsel would submit that the test, to attract the ingredients of the offence of attempting to commit suicide under Section 309 Indian Penal Code, 1860 is the manifestation of a clear intention to commit the offence reasonably proximate to its consummation. Learned counsel would contend that as such an intention to commit suicide is not manifested, even on a reading of a charge-sheet as a whole and accepting the allegations made therein as true, the ingredients of Section 309 Indian Penal Code, 1860 are not attracted. Learned Counsel would place reliance on Ramamoorthy @ Vannia Adikalar v. Sfafe 1992 CrLJ 2074 (Madras High Court)] Ram Sunder Dubey v. State 1962 AIR(All) 262 Mangeram Bhairuram v. Lal Chhatramohansingh 1951 AIR(Nag) 315, State of U.P. v. Ram Charan 1962 AIR(All) 359, Malkiat Singh v. State of Punjab 1968 Indlaw SC 166 ] and State of Maharashtra v. Mohd Yakub 1980 Indlaw SC 2.
5. Before examining these contentions, it is necessary to note Section 309 Indian Penal Code, 1860 which reads thus:
Now the judgments relied upon on behalf of the petitioner.
6. In Ramamoorthyl), on 8-12-1986 at 3.00 pm the petitioner had commenced a fast-unto-death before Ambur town police station demanding that the Inspector of Police, Ambur town, and the District Collector, be suspended and Sri Subramani, who was detained, be set at liberty. The petitioner was arrested, at 5.30 p.m on 10-12-1986, after Dr. Sekhar of the Ambur Government Hospital and examined him. The petitioner was given medical treatment in the hospital which he did not refuse and was ultimately prosecuted for attempting to commit suicide in respect of the incidents which had occurred between 8-12-1986 and 10-12-1986. The prosecution alleged that a placard was kept at the place of the fast and that pamphlets had also been distributed. In this context the Madras High Court observed.
In our country, fasting is undertaken for several causes. It cannot be disputed that the peculiar difficulty about suicide by starvation is that it is a long drawn out process, could be interrupted or given up at any stage. Unless there is some overt declaration by the accused of his opinion to fact-unto-death, coupled with such conduct, to positively show that the he intended to persevere to the bitter end. The provision of S.309 Indian Penal Code, 1860 will not come into play. Even if there be such intention in the beginning, one may have always to make an allowance for the possibility of the change in mind and breaking the fast before it becomes dangerous in this case, it is fairly clear, that the petitioner abstained from taking food for approximately three days with the object of bringing pressure to bear upon the authorities, so as to force them to remedy his grievances, and his life was never actually in danger up to the time he broke his fast and further his subsequent conduct would categorically proclaim that he had never intended to carryon fasting up to the point of death....." (Emphasis supplied)
7. In Ram sunder Dubey (2 supra), the petitioner-accused, and employee in the Mental Hospital, Bareilly, on his being suspended from service, was said to have attempted to commit suicide resorting to a hunger strike. Alleging that his being placed under suspension was unfair and discriminatory, and demanding that he be reinstated into service, the petitioner went on a hunger strike on 27th of February, 1960. On 1 -3-1960, the Station House Officer of Bareilly Kotwali, on finding that the conditions of the accused had deteriorated, transferred him to the hospital. While admitting that he had gone on a hunger strike the accused denied that he intended to fast onto death. He produced evidence to show that he was taking lemon juice during the continuation of this fast. The Allahabad High Court observed.
I find therefore that there is no evidence of any clear intention on the part of the accused to kill himself; signs of starvation had only just begun to appear when he was arrested; and it would seem that eventually he himself voluntarily gave up the fast that he had undertaken. In the circumstances I am unable to agree with the findings arrived at by the Courts below, for there appears to be no justification for holding that the accused actually attempted to commit suicide. All that the evidence on record proves is that he abstained from taking food for three or four days with the object of bringing pressure to bear on the authorities so as to force them to remedy his grievances. It does not appear that his life was every actually in danger up to the time when he broke his fast and there is nothing on the record that would show that he had ever intended to carry on casting to the point of death......" (emphasis supplied)
8. In Mangeram Bhairuram (3 supra), the Nagpur High Court held:-
This is view is reinforced by the illustrations to S. 511, Penal Code. In illus. (a) the accused had done an act towards the commission of the theft of jewels by breaking open a box which he found to be empty. That is, the theft would have been committed but for the circumstances that a factor independent of his own volition intervened to inhibit it. The same applies to illus. (b) in which the accused thrust his hand into another man's pocket and found that there was nothing init. Similarly, as Blackburn and Mellor JJ. Decided in Regina v. Hensler, (1870) 11 Cox C.C. 570 an accused may be convicted of an attempt to steal a watch although he is frustrated by the fact that the watch was securely fastened by a guard....." (emphasis supplied)
In Ram Charan (5 supra), the Division Bench of the Allahabad High Court observed:
9. What constitutes an attempt to commit an offence 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, all 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 preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such an 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. 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 heave to be done towards the commission of the offence, and, third, such act must be proximate to the intended result.
110. 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. Attempt begins where preparations ends. 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; must be an act during the course of committing that offence (Mohd. Yakub 6).
11. An attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. An attempt 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. The test for determining whether the act constitutes an attempt or mere preparation is whether the overt acts already done are such that if the offender changes his mind, and does not proceed further in its progress, the acts already, done would be completely harmless (MalkiatSingh5).
12. In the present case the petitioner, without any demur, came down from the tower. The attitude of the petitioner in coming down from the tower, on being persuaded to do so, and after having come down to have forgotten his earlier vow to commit suicide, would indicate that the petitioner did not have the mens rea to kill himself by committing Suicide. To attract the ingredients of an offence under S.309 Indian Penal Code, 1860 it must be shown that the act of the accused amounted to an attempt and that attempt was complete by doing an act towards the commission of the offence. In this case, the proposed act of committing suicide had commenced with certain demands and, even before they were conceded, the petitioner chose to give up on his own volition, albeit with some persuasion, which only indicates that there was neither sufficient intention nor the will to put an end to his life. It does not appear that the petitioner's life was ever actually in danger upto the time when he was persuaded to come down from the tower nor can it be said that he intended to carry out his threat to the point of death. An accused is liable for attempt when his failure to commit an offence is not due to any act or omission of his own volition, but due to the intervention of some factor independent of his own volition. An intentional act which a person does towards the commission of an offence but which fails in its object through circumstances, independent of the volition of that person, is "attempt". In the present case, the petitioner abandoned his attempt to commit suicide not due to external force or through circumstances independent of his own volition. The allegation in the charge sheet, that he was persuaded to come down from the tower, would indicate that, on being persuaded to do so, the petitioner on his own volition came down from the tower.
13. Even on a reading of the allegations in the charge sheet as a whole and in its entirety, and accepting them as true, it cannot be said that the ingredients attracting the offence under Section 309 Indian Penal Code, 1860 are made out. The proceedings in C.C.No.569 of 2003, on the file of the Judicial Magistrate of First Class, Sircilla, Karimnagar are accordingly quashed.
14. The Criminal Petition is allowed.
