SUPREME COURT ON OM PRAKASH v.
STATE OF PUNJAB:
CASE COMMENT
Submitted by
Rupal Gupta
Roll no. 47, Semester – III (Regular) of
Faculty of Law
Jamia Millia Islamia.
In
November, 2018
Under the guidance of
Dr. Saadiya
Assistant Professor
Faculty of Law
Jamia Millia Islamia
CERTIFICATE
The project entitled “SUPREME COURT ON OM PRAKASH v. STATE OF PUNJAB:
CASE COMMENT” submitted to the Faculty of Law, Jamia Millia Islamia for Law of
Crimes I as part of Internal Assessment is based on my original work carried out under the
guidance of Dr. Saadiya from July to November. The Research work has not been
submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.
I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.
Signature of the Candidate
Date: November 15, 2018
TABLE OF CONTENTS
INTRODUCTION ....................................................................................... 5
BACKGROUND OF THE CASE ................................................................ 5
ISSUES RAISED......................................................................................... 7
DECISION BY THE SUPREME COURT .................................................. 7
ANALYSIS OF THE SECTIONS APPLIED .............................................. 8
Section 307 ............................................................................................... 8
Section 511 ............................................................................................... 9
Section 342 ............................................................................................. 10
ANALYSIS OF THE CONTENTIONS RAISED...................................... 11
CONCLUSION ......................................................................................... 12
INDEX OF AUTHORITIES
1) Wing Commander A.S. Krishna v. Madhukar A. Shah, 1992(3) Karnataka LJ
2) Om Prakash v. State of Punjab, AIR 1961 SC 1782
3) State of Maharashtra v Balram Bama Pate, AIR 1983 SC 305
4) Girijia Shankar v State of Uttar Pradesh, AIR 2004 SC 1808
5) Bipin Bihari v. State of Madhya Pradesh, (2006) 8 SCC 798
6) Liyakat Mian & Ors v. State of Bihar, AIR 1973 SC 807
7) Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698
8) State of Maharashtra v. Mohd. Yakub (1980) 3 SCC 57
9) Queen Empress v Nidha, ILR (1892) 14 All. 34
10) Emperor v. Vasudeo Balwant Gogte, ILR (1932) 56 Bom 434
11) Rex v. White, (1910) 2 K.B. 124.
INTRODUCTION
The relation between a husband and a wife is considered to be a contract in the legal terms.
With this contract comes an ocean of duties and responsibilities which are to be discharged
by both counter-parts, i.e., husband as well as the wife. For example - It is obligatory for a
husband to provide food, shelter and clothing to his wife1.
It is a well-established fact that an offence may be caused either by causing an act or by
omitting an act. So what would be happen in the case where a husband omits his duty to
provide food to his wife or allowances for the same, with the intention of starving her to
death? Would it be a considered a case of murder or would it be a simple breach of duty?
The judgement passed by the Hon’ble Supreme Court of India in the case of Om Prakash2
spurred up the same debate. In the following case it came into question that whether it is
the duty of husband to spoon feed his wife. Another major question that arose was about
the basic difference between the conviction of a criminal under S. 307 (Attempt to murder)
and S. 511 (Punishment for attempting to commit offences punishable with imprisonment
for life or other imprisonment). The Supreme Court illustrated the principle of Last Act
Test to differentiate the same.
BACKGROUND OF THE CASE
Bimla Devi, was married to the appellant in October, 1951. Their relations got strained by
1953 and she went to her brother's place and stayed there for about a year, when she
returned to her husband's place at the assurance of the appellant's maternal uncle that she
would not be maltreated in future. She was, however, ill-treated and her health deteriorated
due to alleged maltreatment and deliberate undernourishment. In 1956, she was
deliberately starved and was not allowed to leave the house and only sometimes a morsel
or so used to be thrown to her as alms are given to beggars. She was denied food for days
together and used to be given gram husk mixed in water after five or six days.
1 Wing Commander A.S. Krishna v. Madhukar A. Shah, 1992(3) Karnataka LJ 1.
2 Om Prakash v. State of Punjab, AIR 1961 SC 1782.
She managed to go out of the house in April 1956, brothers of the appellant, caught hold
of her and forcibly dragged her inside the house where she was severely beaten. Thereafter,
she was kept locked inside a room.
On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband
away and availing of the opportunity, went out of the house and managed to reach the Civil
Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings.
The appellant and his mother went to the hospital and tried their best to take her back to
the house, but were not allowed to do so by the lady Doctor. Social workers got interested
in the matter and informed the brother of Bimla Devi, one Madan Mohan, who came down
of Ludhiana and, after learning all facts, sent information to the Police Station by letter on
June 16, 1956 registering a case.
The same day, Dr. Dhillon sent a note to the police saying 'My patient Bimla Devi is
actually ill. She may collapse any moment'. Magistrate recorded her statement that night.
The impression formed by the learned Judge of the High Court on seeing the photographs
taken of Bimla Devi a few days later stated that she appeared to be suffering from extreme
emaciation. The projecting bones of her body with little flesh on them made her appearance
skeletal. The countenance seemed too cadaverous. After considering the evidence of Bimla
Devi and the Doctors, the learned Judge came to the conclusion that the real object of the
defendants in doing so could be no other than to accelerate her end. The appellant was
acquitted of the offence under s. 3423, Indian Penal Code, by the Additional Sessions
Judge, who gave him the benefit of doubt, though he had come to the conclusion that Bimla
Devi's movements were restricted to a certain extent. The learned Judge of the High Court
considered this question and came to a different conclusion. Having come to these findings,
the learned Judge considered the question whether on these facts an offence under s. 307,
Indian Penal Code, had been established or not. He held it proved.
3 S. 342, Indian Penal Code, 1860 – “Whoever wrongfully confines any person shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine which may extend to
one thousand rupees, or with both.”
ISSUES RAISED
There were two basic contentions which were raised in front of the Hon’ble Supreme
Court:
1) Will a husband be liable for death of his wife in case she doesn’t eat food voluntarily
or in other words, is it the duty of a husband to spoon-feed his wife?
2) Even if Bimla Devi had been deprived of food for a certain period, the act of so
depriving her does comes under s. 307 or not?
DECISION BY THE SUPREME COURT
Answering the two contentions raised by the appellants the Supreme Court explained:
1) Only when a person is helpless and is unable to look after himself that the person
having control over him is legally bound to look after his requirements. Such
persons does not include wife and it is not part of a husband’s duty to spoon feed
his wife. However, the victim had being confined and being deprived of regular
food, starved in order to accelerate her end.
2) The ingredients of an offence under S.511 are materially different from S.307. In
S.511, it not need to be the last act towards the commission while for an offence
under S.307, it is the last act which is effective to cause death. The court held that
under S.307, a person commits an offence when he has intention to commit murder
and in pursuance of that intention does an act towards its commission irrespective
the fact whether that act is the penultimate act or not.
Thus, the conviction of the appellant under S. 3074 was held to be correct on grounds of
the ‘illegal omission’5 and the appeal was dismissed.
4 S. 307, IPC, 1860 – “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 or murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is
here in before mentioned.”
5 PSA Pillai, Criminal Law 29 (LexisNexis, Gurgaon, 13th edn, 2017).
ANALYSIS OF THE SECTIONS APPLIED
The case during all its proceedings of the Sessions Court, High Court and Supreme Court
rests on three sections of the Indian Penal Code, 1980. These three are:
Section 307
Section 307 of the Indian Penal Code goes as “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 or murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is here in before mentioned.”
Thus to prove the convict guilty under the following section there are three basic
ingredients. These are:
i) Act Must be One Capable of Causing Death: To justify a conviction under S. 307,
it is not essential that bodily injury capable of causing death have been inflicted6.
An attempt in order to be criminal need not be the penultimate act. It is sufficient
in law, if there is present intent coupled with some overt act in execution thereof7.
The court can ascertain intention from other circumstances, even without
reference to actual wounds.8
In the case at hand9, the victim, i.e., Mrs. Bimla Devi didn’t suffer any such
assault but she was victimised by omission of a duty10 which was to be performed
by the appellant and thus, this essential is quite relevant here. The word 'act' again,
does not mean only any particular, specific, instantaneous act of a person, but
denotes, as well, a series of acts11. The course of conduct adopted by the appellant
in regularly starving Bimla Devi comprised a series of acts and therefore acts
falling short of completing the series,
6 State of Maharashtra v Balram Bama Pate, AIR 1983 SC 305.
7 Girijia Shankar v State of Uttar Pradesh, AIR 2004 SC 1808.
8 Bipin Bihari v. State of Madhya Pradesh, (2006) 8 SCC 798.
9 Supra, note 2.
10 Supra, note 1.
11 Section 33, The Indian Penal Code, 1860.
ii) Intention: The word intention referred here is defined in the S. 300 of the IPC. It
means –
a) Intention to cause death;
b) Intention to cause such bodily injury, which the offender knows is sufficient
in ordinary course of nature to cause death;
c) Intention to cause such bodily injury, which is sufficient in the ordinary
course of nature to cause death.
Once, the necessary intention to commit murder is established, the ultimate result
of the attempt will be immaterial, unless of course, the attempt results in murder,
in which case, it will fall under S. 300 of the IPC. In the present case, the intention
of the appellant to murder the victim through starvation is quite visible. And thus
this ingredient is also satisfied.
iii) Knowledge: The term ‘knowledge’ is used in S. 304 (d)12 of the IPC. The term
‘knowledge’ refers to the knowledge of the offender that the act done by him is
so imminently dangerous that it must in all probability cause death.
In Liyakat Mian & Ors v. State of Bihar13, the accused person shot a person from
very close quarters causing injuries on the abdomen and the left arm. It was held
that these circumstances, the knowledge could be imputed to the accused and thus
the accused was convicted under S. 308 of the IPC.
In the case of Om Prakash, the knowledge that by starving a person for a long
span of time the person could die could be easily imputed and hence, this also
fulfills the ingredient of knowledge.
Section 511
The Section 511 states - “Whoever attempts to commit an offence punishable by this
Code with [imprisonment for life] or imprisonment, or to cause such an offence to be
committed, and in such attempt does any act towards the commission of the offence,
shall, where no express provision is made by this Code for the punishment of such
12 S. 304(d) – “If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.”
13 AIR 1973 SC 807.
attempt, be punished with [imprisonment of any description provided for the offence,
for a term which may extend to one-half of the imprisonment for life or, as the case
may be, one-half of the longest term of imprisonment provided for that offence], or
with such fine as is provided for the offence, or with both.”
This Section invites the applicability of “Last Act Test” in the following case. It didn’t
apply the test to the case as it seemed impractical but gave a brief illustration over it.
The crucial test is whether the last act, if uninterrupted and successful, would constitute
a crime.14 If the accused intended that the natural consequence of his act should result
in death but was frustrated only by extraneous circumstances, he would be guilty of an
attempt to commit the offence of murder15.
In the case of State of Maharashtra v. Mohd. Yakub16, the court stated that “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 have to be done
towards the commission of the offence, and, third, such act must be proximate to the
intended result. 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; but, that it must be, that is, it must be indicative or suggestive of the
intention.”
In the following case, the proximity of the last act was that of intention and thus, the
test of last act couldn’t be applied here. And the offence would that be under S. 307
and not S. 511.
Section 342
Section 34217 of the code deals with ‘Punishment for Wrongful Confinement’.
Wrongful Confinement is defined as: “Whoever wrongfully restrains any person in
such a manner as to prevent that person from proceedings beyond certain
14 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
15 Ibid.
16 (1980) 3 SCC 57.
17 Supra, note 3.
circumscribing limits, is said "wrongfully to confine" that person 18.” The Sessions
Court in the following case, adjudged the appellants on the same section and said that
they were liable of wrongful confinement. However, the High Court said that they had
a lack of evidence and thus, gave them the benefit of doubt by acquitting them of
offence under this section. However, the evidences were quite clear on the fact that the
movement of the appellant was restricted to some certain extent. The Supreme Court
did not review this part of the High Court’s judgement and thus, there the High Court
showed lack of reasonability by acquitting them of the offence of wrongful
confinement.
ANALYSIS OF THE CONTENTIONS RAISED
In the following case, the two contentions which were raised from the appellant’s side
were:
1) It was conceded that it is only when a person is helpless and is unable to look after
himself that the person having control over him is legally bound to look after his
requirements and to see that he is adequately fed. Such persons, according to him,
are infants, old people and lunatics. He contends that it is no part of a husband's
duty to spoon-feed his wife, his duty being simply to provide funds and food.
2) Even if Bimla Devi had been deprived of food for a certain period, the act of so
depriving her does not come under s. 307, as that act could not, by itself, have
caused her death, it being necessary for the period of starvation to continue for a
longer period to cause death.
The rejection of the first contention was on reasonable grounds. The court agreed with the
appellants on the point that it is not the duty of husband to spoon-feed his wife but the court
also stated the fact that the woman was not taken care of and she was not provided any
allowances, which is the duty of a husband19 and was kept starving voluntarily in order to
accelerate her end.
18 Section 340, The Indian Penal Code, 1860.
19 Supra, note 1.
Thus, this contention was rejected by the court and reasoning applied by the court is quite
reasonable as all the evidences produced during the trial suggest that the victim was
actually starved with the purpose of killing her. Here, the act was done voluntarily20.
Moving on to the next contention about the application of the last act test the court stated
that, the test was not practical and here, the most essential element of Attempt to murder
was being fulfilled, i.e., intention. And any act done in furtherance with knowledge and
intention would make a person guilty.
The Hon’ble SC cited the case of Queen Empress v Nidha21 where the bench had held that
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 his 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, I do not think he can
escape criminal responsibility. The court some other judgements like Gogte’s case22, Rex’s
case23
CONCLUSION
In the following case, the stand of the Supreme Court was quite clear and the judgement
was reasonable and in accordance with the law. However, the Supreme Court failed to
review the acquittal of the appellants under S. 342 and this represents lack of research and
high court’s inability to go in accordance with the facts. The High Court went with the
accordance of law but their facts weren’t in accordance. And thus, this judgement is
partially good and partially ignorant.
20 S. 39 of the IPC defines voluntarily as – “A person is said to cause an effect "voluntarily" when he causes it
by means whereby he intended to cause it, or by means which, at the time of employing, those means, he knew
or had reason to believe to be likely to cause it.”
21 ILR (1892) 14 All. 34.
22 Emperor v. Vasudeo Balwant Gogte, ILR (1932) 56 Bom. 434.
23 Rex v. White, (1910) 2 K.B. 124.
