224

Asgarali Pradhania v. Emperor

AIR 1933 Cal 893

LORD WILIAMS, J. - The appellant was convicted under Section 312/511, I.P.C., of an
attempt to cause a miscarriage. The complainant was 20 years of age, and had been married
but divorced by consent. She was living in her father’s house, where she used to sleep in the
cook shed. The appellant was a neighbour who had lent money to her father, and was on
good terms with him. He was a married man with children. According to the complainant he
gave her presents, and promised to marry her. As a result sexual intercourse took place and
she became pregnant. She asked him to fulfill his promise, but he demurred and suggested
that she should take drugs to procure a miscarriage. One night he brought her a bottle half
full of a red liquid, and a paper packet containing a powder. After he had gone she tasted
the powder, but finding it salty and strong, spat in out. She did not try the liquid. The
following night the appellant came again and finding that she had not taken either the
powder or the liquid, he pressed her to take them, but she refused saying that she was
afraid for her own life, and that the powder irritated her tongue. Thereupon he asked her to
open her mouth, and approached her with the bottle, and took hold of her chin. But she
snatched the bottle from him and cried out loudly, and her father and some neighbours
came, and the appellant fled. The police were informed, and upon analysis, sulphate of
copper was detected in the powder, but the amount was not ascertained. No poison was
detected in the liquid. According to the medical evidence, copper sulphate has no direct
action on the uterus, and is not harmful unless taken in sufficiently large quantities, when it
may induce abortion. One to three grains may be used as an astringent, two to ten grains as
an emetic, one ounce would be fatal. According to Taylor’s Medical Jurisprudence (Edn. 5),
p. 166.
there is no drug or combination of drugs which will, when taken by the mouth, cause a
healthy uterus to empty itself, unless it be given in doses sufficiently large to seriously
endanger, by poisoning, the life of the woman who takes it or them.
The defence was a denial of all the facts, some suggestion that the complainant was of loose
character, and a statement that the prosecution was due to enmity. Two points have been
raised on behalf of the appellant, one being that the complainant was an accomplice and
that her evidence was not corroborated, that she was willing to destroy the foetus but was
afraid of the consequences to herself. On the facts stated I am satisfied that the complainant
cannot be regarded as an accomplice and in any case there is some corroboration of her
evidence, in the discovery of the drugs and the appellant’s flight which was observed by
225

several witnesses. The other is a point of some importance, namely, that the facts proved do
not constitute an attempt to cause miscarriage. This depends upon what constitutes an
attempt to commit an offence, within the meaning of Section 511 I.P.C., which provides as
follows:
Whoever attempts to commit an offence punishable by this Code with transportation 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 be punished etc.
Illustrations: (A) A makes an attempt to steal some jewels by breaking open a box,
and finds after so opening the box, that there is no jewel in it. He has done an act
towards the commission of theft, and therefore is guilty under this section.
(B) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket.
A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty
under this section.
It is argued that as there was no evidence to show that either the liquid or the powder
was capable of causing a miscarriage, the appellant cannot be convicted of an attempt to do
so. This contention depends upon a correct definition of the word “attempt’ within the
meaning of the section. In R. v. McPherson [(1857) D & B 202] the prisoner was charged
with breaking and entering the prosecutor’s house and stealing therein certain specified
chattels and was convicted of attempting to steal those chattels. Unknown to him those
chattels had been stolen already. Cockburn, C.J. held that the conviction was wrong because
the word ‘attempt’ clearly conveys with it the idea that if the attempt had succeeded
the offence charged would have been committed. An attempt must be to do that, which
if successful, would amount to the felony charged, but here that attempt never could
have succeeded.
In R. v. Cheeseman [(1862) 5 LT 717] Lord Blackburn said:
There is not doubt a difference between the preparation antecedent to an offence and
the actual attempt. But if the actual transaction had commenced which would have
ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
In R. v. Collins [(1864) 10 LT 581] Cockburn, C.J., following McPherson’s case held that if
a person puts his hand into the pocket of another, with intent to steal what he can find
there, and the pocket is empty, he cannot be convicted of an attempt to steal. Because an
attempt to commit felony can only in point of law be made out where, if no interruption had
taken place, the attempt could have been carried out successfully, so as to constitute the
offence which the accused is charged with attempting to commit. It is clear however from
 226

the illustrations to S. 511, that Lord Machulay and his colleagues who drafted the Indian
Penal Code, which was enacted in 1860, did not intend to follow these decisions, and I agree
with the remarks upon this point made in Mac Crea’s case [(1983) 15 All. 173]. The Calcutta
High Court in Empress v. Riasat Ali [(1881) 7 Cal 352] held that the definitions in
McPherson’s case and Cheeseman’s case were sound. In England the decisions were
reconsidered in R. v. Brown [(1889) 24 QBD 357] and R v. Ring [(1892) 17 Cox 491]. The
Judges expressed dissatisfaction with the decisions in R. v. Collins and with that in R. v. Dodd
[(1877) Unreported] which proceeded upon the view that a person could not be convicted of
an attempt to commit an offence which he could not actually commit, and expressly
overruled them saying that they were no longer law. The judgment in Brown’s case however
has been criticised as unsatisfactory, and it has been contended that R. v. Brown and R. v.
Ring have not completely overruled R. v. Collins [Pritchard’s Quarter Sessions (Edn.2)]. In
Amrita Bazar Patrika Press, Ltd. [AIR 1920 Cal 478] the decision in R. v. Collins was again
quoted with approval, apparently in ignorance of the fact that it had been expressly
overruled in the English Courts. Mookerjee, J., held that in the language of Stephen [Digest
of Criminal Law, Art. 50]:
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. To put the matter differently, 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 a 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 decision in McPherson’s and Collin’s case are clearly incompatible with illustrations
to S. 511, and in my opinion are not law either in India or in England. Nevertheless, the
statements of law to which I have referred are correct, so far as they go, and were not
intended to be exhaustive or comprehensive definitions applicable to every set of facts
which might arise. So far as the law in England is concerned, in the draft Criminal Code
prepared by Lord Blackburn, and Barry, Lush, and Stephen, JJ., the following definition
appears (Art.74):
An attempt to commit an offence is an act done or omitted with intent to commit that
offence, forming part of a series of acts or omissions which would have constituted the
offence if such series of acts or omission had not been interrupted either by the
voluntary determination of the offender not to complete the offence or by some other
227

cause. *Everyone who believing that a certain state of facts exists does or omits an act
the doing or omitting of which would, if that state of facts existed, be attempt to
commit an offence, attempts to commit that offence, although its commission in the
manner proposed was by reason of the non-existence of that state of facts at the time
of the act or omission impossible.
To this definition the Commissioners appended a note to the effect that the passage
between the asterisks “declares the law differently from R. v. Collins” which at the date of
the drafting of the Code had not been overruled. The first part of this definition was
accepted in R. v. Laitwood [(1910) 4 Cri App Rep 248 at 252] and purporting to be in
accordance with the latter part, it was held by Darling, J., that if a pregnant woman,
believing that she is taking a “noxious thing” within the meaning of the offences against the
Poison Act, 1861, S. 58, does with intent to procure her own abortion take a thing in fact
harmless, she is guilty of attempting to commit an offence against the first part of that
section : R. v. Brown [(1899) 63 JP 790]. In Russell on Crimes [Edn. 8, Vol. 1 at p. 145] two
American definitions are quoted from Bishop :
Where the non-consummation of the intended criminal result is caused by an
obstruction in the way, or by the want of the thing to be operated upon, if such an
impediment is of a nature to be unknown to the offender, who used what seemed
appropriate means, the punishable attempt is committed. Whenever the laws make
criminal one step towards the accomplishment of an unlawful object done with the
intent or purpose of accomplishing it; a person taking that step with that intent or
purpose and himself capable of doing every act on his part to accomplish that object,
cannot protect himself from responsibility by showing that by reason of some fact
unknown to him at the time of his criminal attempt it could be fully carried into effect in
the particular instance.
So far as the law in India is concerned, it is beyond dispute that there are four stages in
every crime, the intention to commit, the preparation to commit, the attempt to commit,
and if the third stage is successful, the commission itself. Intention alone, or intention
followed by preparation are not sufficient to constitute an attempt. But intention followed
by preparation, followed by any “act done towards the commission of the offence” is
sufficient. “Act done towards the commission of the offence” are the vital words in this
connection.
Thus, if a man thrusts his hand into the pocket of another with intent to steal, he does
an act towards the commission of the offence of stealing, though unknown to him the
pocket is empty. He tries to steal, but is frustrated by a fact, namely the emptiness of the
pocket, which is not in any way due to any act or omission on his part. He does an act
 228

towards the commission of the offence of pocket picking, by thrusting his hand into the
pocket of another with intent to steal. Similarly, he may fail to steal the watch of another
because the latter is too strong for him, or because the watch is securely fastened by a
guard. Nevertheless he may be convicted of an attempt to steal. Blackburn, and Mellor, JJ.:
R. v. Hensle [11 Cox 570 at p. 573].
But if one who believes in witchcraft puts a spell on another, or burns him in effigy, or
curses him with the intention of causing him hurt, and believing that his actions will have
that result, he cannot in my opinion be convicted of an attempt to cause hurt. Because what
he does is not an act towards the commission of that offence, but an act towards the
commission of something which cannot, according to ordinary human experience result in
hurt to another, within the meaning of the Penal Code. His failure to cause hurt is due to his
own act or omission, that is to say, his act was intrinsically useless, or defective, or
inappropriate for the purpose he had in mind, owing to the undeveloped state of his
intelligence, or to ignorance of modern science. His failure was due, broadly speaking, to his
own volition. Similarly, if a man with intent to hurt another by administering poison prepares
and administers some harmless substance, believing it to be poisonous, he cannot in my
opinion, be convicted of an attempt to do so. And this was decided in Empress v. Mt. Rupsir
Panku [(1895) 9 CPLR (Cri) 14] with which I agree. The learned Judicial Commissioner says:
In each of the illustrations to S. 511, there is not merely an act done with the intention
to commit an offence which is unsuccessful because it could not possibly result in the
completion of the offence, but an act is done ‘towards the commission of the offence,’
that is to say the offence remains incomplete only because something yet remains to be
done, which the person intending to commit the offence is unable to do, by reason of
circumstances independent of his own volition. It cannot be said that in the present case
the prisoner did an act towards the commission of the offence.’ The offence which she
intended to commit was the administration of poison to her husband. The act which she
committed was the ‘administration of a harmless substance’.
This reasoning is applicable to the case now under consideration. The appellant
intended to administer something capable of causing a miscarriage. As the evidence stands,
he administered a harmless substance. This cannot amount to an “act towards the
commission of the offence” of causing a miscarriage. But if A, with intent to hurt B by
administering poison, prepares a glass for him and fills it with poison, but while A’s back is
turned, C who has observed A’s act, pours away the poison and fills the glass with water,
which A in ignorance of what C has done, administers to B, in my opinion A is guilty and can
be convicted of an attempt to cause hurt by administering poison. His failure was not due to
any act or omission of his own, but to the intervention of a factor independent of his own
229

volition. This important distinction is correctly stated by Turner, J., in Ramsaran’s case (1872)
4 NWP 46, at pp. 47 and 48, where he observes that
To constitute an attempt there must be an act done with the intention of committing an
offence and in attempting the commission. In each of the illustrations to S. 511 we find
an act done with the intention of committing an offence, and immediately enabling the
commission of the offence, although it was not an act which constituted a part of the
offence, and in each we find the intention of the person making the attempt was frustrated
by circumstances independent of his own volition.
In Queen-Empress v. Luxman Narayan Joshi [(1900)2 Bom LR 286] Sir Lawrence Jenkins,
C. J., defined “attempt” as:
An intentional preparatory action which failed in object through circumstances
independent of the person who seeks its accomplishment. And in Queen-Empress v.
Vinayak Narayan (1900) 2 Bom LR 304 the same learned Judge defined “attempt” as
when a man does an intentional act with a view to attain a certain end, and fails in his
object through some circumstance independent of his own will..
These also are good definitions so far as they go, but they fail to make clear that there
must be something more than intention coupled with mere preparation. As was said in
Raman Chettiar v. Emperor [AIR 1927 Mad 77, at p. 96 (of 28 Cr. L.J.)] :
The actual transaction must have begun and an act to bear upon the mind of the victim
must have been done before a preparation can be said to be an attempt.” Here it is
necessary to observe the distinction that ‘an act to bear’ is not the same thing as ‘an act
which has borne.
In Empress v. Ganesh Balvant [(1910) 34 Bom 378] it was said that:
some external act, something tangible and ostensible of which the law can take hold as
an act showing progress towards the actual commission of the offence is necessary to
constitute an offence. It does not matter that the progress was interrupted.
In Queen-Empress v. Gopala [(1896) Rat Un Cri Cases 865] Parsons and Ranade, JJ., stated
that, in their opinion, a person physically in capable of committing rape cannot be found
guilty of an attempt to commit rape, because his acts would not be acts “towards the
commission of the offence.” In the American and English Encyclopaedia of Law [Vol. 3 p.
250, (Edn. 2)] “attempt” is defined as:
an act done in part execution of a criminal design, amounting to more than mere
preparation, but falling short of actual consummation, and possession, except for failure
to consummate, all the elements of the substantive crime.
In Russell on Crimes [(Edn. 8) Vol. 1, pp. 145 and 148] the following definitions are given:
 230

No act is indictable as an attempt to commit felony or misdemeanour, unless it is a step

towards the execution of the criminal purpose, and is an act directly approximating to or
immediately connected with, the commission of the offence which the person doing it
has in view. There must be an overt act intentionally done towards the commission of
some offence, one or more of series of acts which would constitute the crime if the
accused were not prevented by interruption, or physical impossibility, or did not fail, for
some other cause, in completing his criminal purpose.

The question in each case is whether the acts relied on constituting the attempt
were done with intent to commit the complete offence, and as one or more of a series
of acts or omissions directly forming some of the necessary step towards completing
that offence, but falling short of completion by the intervention of causes outside the
volition of the accused or because the offender of his own free will desisted from
completion of his criminal purpose for some reason other than mere change of mind.
I do not propose to embark upon the dangerous course of trying to state any general
proposition, or to add to the somewhat confusing number of definitions of what amounts to
an “attempt.” within the meaning of Section 511 Penal Code. I will content myself with
saying that, on the facts stated in this case, and for the reasons already given the appellant
cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an
“act done towards the commission of the offence” of causing a miscarriage. Neither the
liquid nor the powder being harmful, they could not have caused a miscarriage. The
appellant’s failure was not due to a factor independent of himself. Consequently, the
conviction and sentence must be set aside and the appellant acquitted.

*****
231

Abhayanand Mishra v. State of Bihar

(1962) 2 SCR 241: AIR 1961 SC 1698

RAGHUBAR DAYAL, J. - This appeal, by special leave, is against the order of the High Court at
Patna dismissing the appellant’s appeal against his conviction under Section 420, read with
Section 511 of the Indian Penal Code.
2. The appellant applied to the Patna University for permission to appear at the 1954
MA examination in English as a private candidate, representing that he was a graduate
having obtained his B.A. degree in 1951 and that he had been teaching in a certain school. In
support of his application, he attached certain certificates purporting to be from the
Headmaster of the School, and the Inspector of Schools. The university authorities accepted
the appellant’s statements and gave permission and wrote to him asking for the remission of
the fees and two copies of his photograph. The appellant furnished these and on April 9,
1954, proper admission card for him was dispatched to the Headmaster of the School.
3. Information reached the University about the appellant’s not being a graduate and
not being a teacher. Inquiries were made and it was found that the certificates attached to
the application were forged, that the appellant was not a graduate and was not a teacher
and that in fact he had been de-barred from taking any university examination for a certain
number of years on account of his having committed corrupt practice at a university
examination. In consequence, the matter was reported to the police which on investigation
prosecuted the appellant.
4. The appellant was acquitted of the charge of forging those certificates, but was
convicted of the offence of attempting to cheat inasmuch as he, by false representations,
deceived the University and induced the authorities to issue the admission card, which, if
the fraud had not been detected, would have been ultimately delivered to the appellant.
5. Learned counsel for the appellant raised two contentions. The first is that the facts
found did not amount to the appellant’s committing an attempt to cheat the University but
amounted just to his making preparations to cheat the University. The second is that even if
the appellant had obtained the admission card and appeared at the M.A. examination, no
offence of cheating under Section 420 IPC would have been committed as the University
would not have suffered any harm to its reputation. The idea of the University suffering in
reputation is too remote.
6. The offence of cheating is defined in Section 415 IPC, which reads:
 232

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or to consent that any person shall
retain any property, or intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to ‘cheat’.
Explanation— A dishonest concealment of facts is a deception within the meaning of this
section.
The appellant would therefore have cheated the University if he had (i) deceived the
University; (ii) fraudulently or dishonestly induced the University to deliver any property to
him; or (iii) had intentionally induced the University to permit him to sit at the MA
examination which it would not have done if it was not so deceived and the giving of such
permission by the University caused or was likely to cause damage or harm to the University
in reputation. There is no doubt that the appellant, by making false statements about his
being a graduate and a teacher, in the applications he had submitted to the University, did
deceive the University and that his intention was to make the University give him permission
and deliver to him the admission card which would have enabled him to sit for the MA
examination. This card is property. The appellant would therefore have committed the
offence of cheating if the admission card had not been withdrawn due to certain
information reaching the University.
7. We do not accept the contention for the appellant that the admission card has no
pecuniary value and is therefore not property. The admission card as such has no pecuniary
value, but it has immense value to the candidate for the examination. Without it he cannot
secure admission to the examination hall and consequently cannot appear at the
examination.
8. In Queen-Empress v. Appasami [(1889) ILR 12 Mad 151] it was held that the ticket
entitling the accused to enter the examination room and be there examined for the
Matriculation test of the University was ‘property’.
9. In Queen-Empress v. Soshi Bhushan [(1893) ILR 15 All 210] it was held that the term
property in Section 463 IPC included the written certificate to the effect that the accused
had attended, during a certain period, a course of law lectures and had paid up his fees.
10. We need not therefore consider the alternative case regarding the possible
commission of the offence of cheating by the appellant, by his inducing the University to
permit him to sit for the examination, which it would not have done if it had known the true
facts and the appellant causing damage to its reputation due to its permitting him to sit for
233

the examination. We need not also therefore consider the further question urged for the
appellant that the question of the University suffering in its reputation is not immediately
connected with the accused’s conduct in obtaining the necessary permission.
11. Another contention for the appellant is that the facts proved do not go beyond the
stage of preparation for the commission of the offence of cheating, and do not make out the
offence of attempting to cheat. There is a thin line between the preparation for and an
attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence,
then makes preparation for committing it and thereafter attempts to commit the offence. If
the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his
control, he is said to have attempted to commit the offence. Attempt to commit an offence,
therefore, can be said to begin when the preparations are complete and the culprit
commences to do something with the intention of committing the offence and which is a
step towards the commission of the offence. The moment he commences to do an act with
the necessary intention, he commences his attempt to commit the offence. This is clear from
the general expression attempt to commit an offence and is exactly what the provisions of
Section 511 IPC, require. The relevant portion of Section 511 IPC is:
Whoever attempts to commit an offence punishable by this Code ... or to cause such a
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 attempt, be punished....
These provisions require that it is only when one, firstly, attempts to commit an offence and,
secondly, in such attempt, does any act towards the commission of the offence, that he is
punishable for that attempt to commit the offence. It follows, therefore, that the act which
would make the culprit’s attempt to commit an offence punishable must be an act which, by
itself or in combination with other acts, leads to the commission of the offence. The first
step in the commission of the offence of cheating, therefore, must be an act which would
lead to the deception of the person sought to be cheated. The moment a person takes some
step to deceive the person sought to be cheated, he has embarked on a course of conduct
which is nothing less than an attempt to commit the offence, as contemplated by Section
511. He does the act with the intention to commit the offence and the act is a step towards
the commission of the offence.
12. It is to be borne in mind that the question whether a certain act amounts to an
attempt to commit a particular offence is a question of fact dependent on the nature of the
offence and the steps necessary to take in order to commit it. No exhaustive precise
 234

definition of what would amount to an attempt to commit an offence is possible. The cases
referred to make this clear.
13. We may refer to some decided cases on the construction of Section 511 IPC In
Queen v. Ramsarun Chowbey [(1872) 4 NWP 46]. It was said at p. 47:
To constitute then the offence of attempt under this Section (Section 511), there must
be an act done with the intention of committing an offence, and for the purpose of
committing that offence, and it must be done in attempting the commission of the
offence.

Two illustrations of the offence of attempt as defined in this Section are given in the
Code; both are illustrations of cases in which the offence has been committed. In each
we find an act done with the intent of committing an offence and immediately enabling
the commission of the offence, although it was not an act which constituted a part of
the offence, and in each we find the intention of the person making the attempt was
frustrated by circumstances independent of his own volition.

From the illustrations it may be inferred that the legislature did not mean that the
act done must be itself an ingredient (so to say) of the offence attempted....
The learned Judge said, further at p. 49:
I regard that term (attempt) as here employed as indicating the actual taking of those
steps which lead immediately to the commission of the offence, although nothing be
done, or omitted, which of itself is a necessary constituent of the offence attempted.
14. We do not agree that the “act towards the commission of such offence” must be “an
act which leads immediately to the commission of the offence”. The purpose of the
illustration is not to indicate such a construction of the section, but to point out that the
culprit has done all that is necessary for the commission of the offence even though he may
not actually succeed in his object and commit the offence. The learned Judge himself
emphasized this by observing at p. 48:
The circumstances stated in the illustrations to Section 511 of the Indian Penal Code,
would not have constituted attempts under the English law, and I cannot but think that
they were introduced in order to show that the provisions of Section 511 of the Indian
Penal Code, were designed to extend to a much wider range of cases than would be
deemed punishable as offences under the English law.
15. In the matter of the petition of R. MacCrea [ILR 15 All 173] it was held that whether
any given act or series of acts amounted to an attempt which the law would take notice of or
merely to preparation, was a question of fact in each case and that Section 511 was not
235

meant to cover only the penultimate act towards the completion of an offence and not acts
precedent, if those acts are done in the course of the attempt to commit the offence, and
were done with the intent to commit it and done towards its commission. Knox, J., said at p.
179:
Many offences can easily be conceived where, with all necessary preparations made, a
long interval will still elapse between the hour when the attempt to commit the offence
commences and the hour when it is completed. The offence of cheating and inducing
delivery is an offence in point. The time that may elapse between the moment when the
preparations made for committing the fraud are brought to bear upon the mind of the
person to be deceived and the moment when he yields to the deception practised upon
him may be a very considerable interval of time. There may be the interposition of
inquiries and other acts upon his part. The acts whereby those preparations may be
brought to bear upon her mind may be several in point of number, and yet the first act
after preparations completed will, if criminal in itself be beyond all doubt, equally an
attempt with the ninety and ninth act in the series.
Again, the attempt once begun and a criminal act done in pursuance of it towards
the commission of the act attempted, does not cease to be a criminal attempt, in my
opinion, because the person committing the offence does or may repent before the
attempt is completed.
Blair, J., said at p. 181:
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, shall be punishable. The term
‘any act’ excludes the notion that the final act short of actual commission is alone
punishable.
We fully approve of the decision and the reasons therefor.
16. Learned counsel for the appellant relied on certain cases in support of his
contention. They are not much to the point and do not in fact express any different opinion
about the construction to be placed on the provisions of Section 511 IPC. Any different view
expressed has been due to an omission to notice the fact that the provisions of Section 511
IPC, differ from the English law with respect to “attempt to commit an offence”.
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17. In Queen v. Paterson [ILR 1 All 316] the publication of banns of marriage was not
held to amount to an attempt to commit the offence of bigamy under Section 494 of the IPC.
It was observed at p. 317:
The publication of banns may, or may not be, in cases in which a special license is not
obtained, a condition essential to the validity of a marriage, but common sense forbids
us to regard either the publication of the banns or the procuring of the license as a part
of the marriage ceremony.
The distinction between preparation to commit a crime and an attempt to commit it was
indicated by quoting from Mayne’s Commentaries on the Indian Penal Code to the effect:
Preparation consists in devising or arranging the means or measures necessary for the
commission of the offence; the attempt is the direct movement towards the
commission, after the preparations have been made.
18. In Regina v. Padala Venkatasami [(1881) ILR 3 Mad. 4] the preparation of a copy of
an intended false document, together with the purchase of stamped paper for the purpose
of writing that false document and the securing of information about the facts to be inserted
in the document, were held not to amount to an attempt to commit forgery, because the
accused had not, in doing these acts, proceeded to do an act towards the commission of the
offence of forgery.
19. In In the matter of the petition of Riasat Ali [(1881) ILR 7 Cal 352] the accused’s
ordering the printing of one hundred receipt forms similar to those used by a company and
his correcting proofs of those forms were not held to amount to his attempting to commit
forgery as the printed form would not be a false document without the addition of a seal or
signature purporting to be the seal or signature of the company. The learned Judge observed
at p. 356:
... I think that he would not be guilty of an attempt to commit forgery until he had done
some act towards making one of the forms a false document. If, for instance, he had
been caught in the act of writing the name of the Company upon the printed form and
had only completed a single letter of the name, I think that he would have been guilty of
the offence charged, because (to use the words of Lord Blackburn) ‘the actual
transaction would have commenced, which would have ended in the crime of forgery, if
not interrupted’.
The learned Judge quoted what Lord Blackburn said in Reg. v. Chessman Lee & Cave’s
Rep 145 :
237

There is no doubt a difference between the preparation antecedent to an offence and

the actual attempt; but if the actual transaction has commenced, which would have
ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
He also quoted what Cockburn, C.J., said in Mc’Pherson case Dears & B, 202:
The word ‘attempt’ clearly conveys with it the idea, that if the attempt had succeeded,
the offence charged would have been committed. An attempt must be to do that which,
if successful, would amount to the felony charged.
20. It is not necessary for the offence under Section 511 IPC that the transaction
commenced must end in the crime or offence, if not interrupted.
21. In re: Amrita Bazar Patrika Press Ltd. [(1920) ILR 47 Cal 190] Mukherjee, J., said at p.
234:
In the language of Stephen (Digest of Criminal Law, Article 50), an attempt to commit a
crime is an act done with an intent to commit that crime and forming part of a series of
act which would constitute its actual commission if it were not interrupted. To put the
matter differently, 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 denned as that which if not prevented would have resulted in the full
consummation of the act attempted: Reg. v. Collins (1864) 9 Cox 497.
22. This again is not consistent with what is laid down in Section 511 and not also with
what the law in England is.
23. In Stephen’s Digest of Criminal Law, 9th Edn. “attempt” is defined thus:
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.

The offence of attempting to commit a crime may be committed in cases in which the
offender voluntarily desists from the actual commission of the crime itself.
 238

In In re: T. Munirathnam Reddi (AIR 1955 A.P. 118) it was said at p. 122:
The distinction between preparation and attempt may be clear in some cases, but, in
most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction.
The crucial test is whether the last act, if uninterrupted and successful, would constitute
a crime. 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 murder. The illustrations in the section (Section 511)
bring out such an idea clearly. In both the illustrations, the accused did all he could do
but was frustrated from committing the offence of theft because the article was
removed from the jewel box in one case and the pocket was empty in the other case.
The observations “the crucial test is whether the last act, if uninterrupted and successful,
would constitute a crime” were made in connection with an attempt to commit murder by
shooting at the victim and are to be understood in that context. There, the nature of the
offence was such that no more than one act was necessary for the commission of the
offence.
24. We may summarise our views about the construction of Section 511 IPC, thus: 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.
25. In the present case, the appellant intended to deceive the University and obtain the
necessary permission and the admission card and, not only sent an application for
permission to sit at the university examination, but also followed it up, on getting the
necessary permission, by remitting the necessary fees and sending the copies of his
photograph, on the receipt of which the University did issue the admission card. There is
therefore hardly any scope for saying that what the appellant had actually done did not
amount to his attempting to commit the offence and had not gone beyond the stage of
preparation. The preparation was complete when he had prepared the application for the
purpose of submission to the University. The moment he despatched it, he entered the
realm of attempting to commit the offence of “cheating”. He did succeed in deceiving the
University and inducing it to issue the admission card. He just failed to get it and sit for the
examination because something beyond his control took place inasmuch as the University
was informed about his being neither a graduate nor a teacher.
239

26. We therefore hold that the appellant has been rightly convicted of the offence under
Section 420, read with Section 511 IPC, and accordingly dismiss the appeal.

****
 240

Om Parkash v. State of Punjab

(1962) 2 SCR 254: AIR 1961 SC 1782

RAGHUBAR DAYAL, J. - This appeal, by special leave, is against the order of the Punjab High
Court dismissing the appellant’s appeal against his conviction under Section 307 IPC.
2. Bimla Devi, PW 7, 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 under-nourishment. 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. She
managed to go out of the house in April 1956, but Romesh Chander and Suresh Chander,
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.
3. 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, PW 2, 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 to Ludhiana and, after learning all facts, sent information to the police station by
letter on June 16, 1956. In his letter he said:
My sister Bimla Devi Sharma is lying in death bed. Her condition is very serious. I am told
by her that deliberate attempt has been made by her husband, mother-in-law and
brother-in-law and sister-in-law. I was also told that she was kept locked in a room for a
long time and was beaten by all the above and was starved.

I therefore request that a case may be registered and her statement be recorded,
immediately.

The same day, at 9.15 p.m. Dr Miss Dalbir Dhillon sent a note to the police saying. “My
patient Bimla Devi is actually ill. She may collapse any moment”.
241

4. Shri Sehgal, Magistrate, PW 9, recorded her statement that night and stated in his
note:
Blood transfusion is taking place through the right forearm and consequently the right
hand of the patient is not free. It is not possible to get the thumb impression of the right
hand thumb of the patient. That is why I have got her left hand thumb-impression.
5. The impression formed by the learned Judge of the High Court on seeing the
photographs taken of Bimla Devi a few days later, is stated thus in the judgment:
The impression I formed on looking at the two photographs of Bimla was that at that
time she appeared to be suffering from extreme emaciation. Her cheeks appeared to be
hollow. The projecting bones of her body with little flesh on them made her appearance
skeletal. The countenance seemed to be cadaverous.
After considering the evidence of Bimla Devi and the doctors, the learned Judge came to the
conclusion:
So far as the basic allegations are concerned, which formed the gravamen of the
offence, the veracity of her statement cannot be doubted. After a careful scrutiny of her
statement, I find her allegations as to starvation, maltreatment, etc. true. The
exaggerations and omissions to which my attention was drawn in her statement are
inconsequential.
After considering the entire evidence on record, the learned Judge said:
After having given anxious thought and careful consideration to the facts and
circumstances as emerge from the lengthy evidence on the record, I cannot accept the
argument of the learned counsel for the accused, that the condition of acute emaciation
in which Bimla Devi was found on 5th of June, 1956, was not due to any calculated
starvation but it was on account of prolonged illness, the nature of which was not
known to the accused till Dr Gulati had expressed his opinion that she was suffering
from tuberculosis.
He further stated:
The story of Bimla Devi as to how she was ill-treated, and how, her end was attempted
to be brought about or precipitated, is convincing, despite the novelty of the method in
which the object was sought to be achieved.... The conduct of the accused and of his
mother on 5th of June, 1956, when soon after Bimla Devi’s admission in the hospital
they insisted on taking her back home, is significant and almost tell-tale. It was not for
better treatment or for any treatment that they wanted to take her back home. Their
real object in doing so could be no other than to accelerate her end.
 242

6. The appellant was acquitted of the offence under Section 342 IPC, 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 Section 307 IPC, had been established or not. He held it proved.
7. Mr. Sethi, learned counsel for the appellant, has challenged the correctness of this
view in law. He concedes 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. In view of the finding of the
court below about Bimla Devi’s being confined and being deprived of regular food in
pursuance of a scheme of regularly starving her in order to accelerate her end, the
responsibility of the appellant for the condition to which she was brought up to the 5th of
June, 1956, is clear. The findings really go against any suggestion that the appellant had
actually provided food and funds for his wife Bimla Devi.
8. The next contention for the appellant is that the ingredients of an offence under
Section 307 are materially different from the ingredients of an offence under Section 511
IPC. The difference is that for an act to amount to the commission of the offence of
attempting to commit an offence, it need not be the last act and can be the first act towards
the commission of the offence, while for an offence under Section 307, it is the last act
which, if effective to cause death, would constitute the offence of an attempt to commit
murder. The contention really is that even if Bimla Devi had been deprived of food for a
certain period, the act of so depriving her does not come under Section 307 IPC, 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. We do not agree with this contention.
9. Both the sections are expressed in similar language. If Section 307 is to be interpreted
as urged for the appellant, Section 308 too should be interpreted that way. Whatever may
be said with respect to Section 307 IPC, being exhaustive or covering all the cases of
attempts to commit murder and Section 511 not applying to any case of attempt to commit
murder on account of its being applicable only to offences punishable with imprisonment for
life or imprisonment, the same cannot be said with respect to the offence of attempt to
commit culpable homicide punishable under Section 308. An attempt to commit culpable
homicide is punishable with imprisonment for a certain period and therefore but for its
243

being expressly made an offence under Section 308, it would have fallen under Section 511
which applies to all attempts to commit offences punishable with imprisonment where no
express provisions are made by the Code for the punishment of that attempt. It should
follow that the ingredients of an offence of attempt to commit culpable homicide not
amounting to murder should be the same as the ingredients of an offence of attempt to
commit that offence under Section 511. We have held this day in Abhayanand Mishra v.
State of Bihar [Criminal Appeal No. 226 of 1959] that a person commits the offence of
attempting to commit a particular offence, when he intends to commit that particular
offence and, having made preparations and with the intention to commit that offence does
an act towards its commission and that 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 such
offence. It follows therefore that a person commits an offence under Section 308 when he
has an intention to commit culpable homicide not amounting to murder and in pursuance of
that intention does an act towards the commission of that offence whether that act be the
penultimate act or not. On a parity of reasoning, a person commits an offence under Section
307 when he has an intention to commit murder and, in pursuance of that intention, does
an act towards its commission irrespective of the fact whether that act is the penultimate
act or not. It is to be clearly understood, however, that the intention to commit the offence
of murder means that the person concerned has the intention to do certain act with the
necessary intention or knowledge mentioned in Section 300. The intention to commit an
offence is different from the intention or knowledge requisite for constituting the act as that
offence. The expression “whoever attempts to commit an offence” in Section 511, can only
mean “whoever: intends to do a certain act with the intent or knowledge necessary for the
commission of that offence”. The same is meant by the expression “whoever does an act
with such intention or knowledge and under such circumstances that if he, by that act,
caused death, he would be guilty of murder” in Section 307. This simply means that the act
must be done with the intent or knowledge requisite for the commission of the offence of
murder. The expression “by that act” does not mean that the immediate effect of the act
committed must be death. Such a result must be the result of that act whether immediately
or after a lapse of time.
10. The word “act” again, does not mean only any particular, specific, instantaneous act
of a person, but denotes, according to Section 33 of the Code, as well, a series of acts. 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, and would therefore
come within the purview of Section 307 of the Code.
 244

11. Learned counsel for the appellant has referred us to certain cases in this connection.
We now discuss them.
12. The first is Queen-Empress v. Nidha [(1892) ILR 14 All 38]. Nidha, who had been
absconding, noticing certain chowkidars arrive, brought up a sort of a blunderbuss he was
carrying, to the hip and pulled the trigger. The cap exploded, but the charge did not go off.
He was convicted by the Sessions Judge under Sections 299 and 300 read with Section 511,
and not under Section 307 IPC, as the learned Judge relied on a Bombay case - Regina v.
Francis Cassidy [Bom HC Reps Vol. IV, P. 17] - in which it was held that in order to constitute
the offence of attempt to murder, under Section 307 IPC, the act committed by the person
must be an act capable of causing, in the natural and ordinary course of events, death.
Straight, J., both distinguished that case and did not agree with certain views expressed
therein. He expressed his view thus, at p. 43:
It seems to me that if a person who has an evil intent does an act which is the last
possible act that he could do towards the accomplishment of a particular crime that he
has in 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, and this because his own
set volition and purpose having been given effect to their full extent, a fact unknown to
him and at variance with his own belief, intervened to prevent the consequences of that
act which he expected to ensue, ensuing.
Straight, J. gave an example earlier which itself does not seem to fit in with the view
expressed by him later. He said:
No one would suggest that if A intending to fire the stack of B, goes into a grocery shop
and buys a box of matches, that he has committed the offence of attempting to fire the
stack of B. But if he, having that intent, and having bought the box of matches, goes to
the stack of B and lights the match, but it is put out by a puff of wind, and he is so
prevented and interfered with, that would establish in my opinion an attempt.
The last act, for the person to set fire to the stack would have been his applying a lighted
match to the stack. Without doing this act, he could not have set fire and, before he could
do this act, the lighted match is supposed to have been put out by a puff of wind.
13. Illustration (d) to Section 307, itself shows the incorrectness of this view. The
illustration is:
A intending to murder Z, by poison, purchases poison and mixes the same with food
which remains in A’s keeping; A has not yet committed the offence in this section. A
245

places the food on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has
committed the offence defined in this section.
A’s last act, contemplated in this illustration, is not an act which must result in the murder of
Z. The food is to be taken by Z. It is to be served to him. It may not have been possible for A
to serve the food himself to Z, but the fact remains that A’s act in merely delivering the food
to the servant is fairly remote to the food being served and being taken by Z.
14. This expression of opinion by Straight, J., was not really with reference to the offence
under Section 307 IPC, but was with reference to attempts to commit any particular offence
and was stated, not to emphasize the necessity of committing the last act for the
commission of the offence, but in connection with the culprit taking advantage of an
involuntary act thwarting the completion of his design by making it impossible for the
offence being committed. Straight, J., himself said earlier:
For the purpose of constituting an attempt under Section 307 IPC, there are two
ingredients required, first, an evil intent or knowledge, and secondly, an act done.
15. In Emperor v. Vasudeo Balwant Gogte [(1932) ILR 56 Bom 434] a person fired
several shots at another. No injury was in fact occasioned due to certain obstruction. The
culprit was convicted of an offence under Section 307 IPC. Beaumont, C.J., said at p. 438:
I think that what Section 307 really means is that the accused must do an act with such a
guilty intention and knowledge and in such circumstances that but for some intervening
fact the act would have amounted to murder in the normal course of events.
This is correct. In the present case, the intervening fact which thwarted the attempt of the
appellant to commit the murder of Bimla Devi was her happening to escape from the house
and succeeding in reaching the hospital and thereafter securing good medical treatment.
16. It may, however, be mentioned that in cases of attempt to commit murder by fire-
arm, the act amounting to an attempt to commit murder is bound to be the only and the last
act to be done by the culprit. Till he fires, he does not do any act towards the commission of
the offence and once he fires, and something happens to prevent the shot taking effect, the
offence under Section 307 is made out. Expressions, in such cases, indicate that one
commits an attempt to murder only when one has committed the last act necessary to
commit murder. Such expressions, however, are not to be taken as precise exposition of the
law, though the statements in the context of the cases are correct.
17. In Mi Pu v. Emperor [(1909) 10 Cri LJ 363] a person who had put poison in the food
was convicted of an offence under Section 328 read with Section 511 IPC, because there was
no evidence about the quantity of poison found and the probable effects of the quantity
 246

mixed in the food. It was therefore held that the accused cannot be said to have intended to
cause more than hurt. The case is therefore of no bearing on the question under
determination.
18. In Jeetmal v. State [AIR 1950 MB 21] it was held that an act under Section 307, must
be one which, by itself, must be ordinarily capable of causing death in the natural ordinarily
course of events. This is what was actually held in Cassidy case and was not approved in
Nidha case or in Gogte case.
19. We may now refer to Rex v. White [(1910) 2 KB 124]. In that case, the accused, who
was indicted for the murder of his mother, was convicted of attempt to murder her. It was
held that the accused had put two grains of cyanide of potassium in the wine glass with the
intent to murder her. It was, however, argued that there was no attempt at murder because
“the act of which he was guilty, namely, putting the poison in the wine glass, was a
completed act and could not be and was not intended by the appellant to have the effect of
killing her at once; it could not kill unless it were followed by other acts which he might
never have done”. This contention was repelled and it was said:
There seems no doubt that the learned Judge in effect did tell the jury that if this was a
case of slow poisoning the appellant would be guilty of the attempt to murder. We are
of opinion that this direction was right, and that the completion or attempted
completion of one of a series of acts intended by a man to result in killing is an attempt
to murder even although this completed act would not, unless followed by the other
acts, result in killing. It might be the beginning of the attempt, but would nonetheless be
an attempt.
This supports our view.
20. We therefore hold that the conviction of the appellant under Section 307 IPC, is
correct and accordingly dismiss this appeal.

*****
247

State of Maharashtra v. Mohd. Yakub

(1980) 3 SCC 57: AIR 1980 SC 1111

R.S. SARKARIA, J. - This appeal by special leave preferred by the State of Maharashtra, is
directed against a judgment, dated November 1, 1973, of the Bombay High Court.
2. Mohd. Yakub Respondent 1, Shaikh Jamadar Mithubhai Respondent 2, and Issak
Hasanali Shaikh Respondent 3, were tried in the court of the Judicial Magistrate First Class,
Bassein, Bombay, in respect of three acts of offences punishable under Section 135 read
with Section 135(2) of the Customs Act, 1962. The first charge was the violation of Sections
12(1), 23(1) and 23(d) of the Foreign Exchange Regulation Act, 1947, the second was
violation of Exports (Control) Order No. 1 of 1968 E. T.C. dated March 8, 1968; and the third
was the contravention of the provisions of Sections 7, 8, 33 and 34 of the Customs Act, 1962.
They were also charged for violation of the Exports (Control) Order No. 1 of 1968 E.T.C.
dated March 8, 1968 issued under Sections 3 and of the Imports and Exports (Control) Act,
1947 punishable under Section 5 of the said Act. The gist of the charges was that the
respondents attempted to smuggle out of India 43 silver ingots, weighing 1312.410 kgs.,
worth about Rs 8 lakhs, in violation of the Foreign Exchange Regulation Act, the Imports and
Exports (Control) Act, 1947, and the Customs Act.
3. On receiving some secret information that silver would be transported in Jeep No.
MRC-9930 and Truck No. BMS-796 from Bombay to a coastal place near Bassein, Shri Wagh,
Suprintendent of Central Excise, along with Inspector Dharap and the staff proceeded in two
vehicles to keep a watch on the night of September 14, 1968 at Shirsat Naka on the National
Highway No. 8, Bombay City. At about midnight, the aforesaid jeep was seen coming from
Bombay followed by a truck. These two vehicles were proceeding towards Bassein. The
officers followed the truck and the jeep which, after travelling some distance from Shirsat
Naka, came to a fork in the road and thereafter, instead of taking the road leading to
Bassein, proceeded on the new National Highway leading to Kaman village and Ghodbunder
creek. Ultimately, the jeep and truck halted near a bridge at Kaman creek where after the
accused removed some small and heavy bundles from the truck and placed them aside on
the ground. The customs officers rushed to the spot and accosted the persons present there.
At the same time, the sound of the engine of a mechanised sea-craft, from the side of the
creek, was heard by the officers. The officers surrounded the vehicle and found four silver
ingots on the footpath leading to the creek. Respondent 1 was the driver and the sole
occupant of the jeep, while the other two respondents were the driver and cleaner of the
truck. The officers sent for Kana and Sathe, both residents of Bassein. In their presence,
 248

Respondent 1 was questioned about his identity. He falsely gave his name and address as
Mohamed Yusuf s/o Sayyed Ibrabim residing at Kamathipura. From the personal search of
Respondent 1, a pistol, knife and currency notes of Rs 2,133 were found. Fifteen silver ingots
concealed in a shawl were found in the rear side of the jeep and twenty-four silver ingots
were found lying under sawdust bay in the truck. The truck and the jeep, together with the
accused-respondents and the silver ingots, were taken to Shirsat Naka where a detailed
panchnama was drawn up. Respondent 1 had no licence for keeping a pistol. Consequently,
the matter was reported to Police Station, Bassein, for prosecuting the respondent under
the Arms Act.
4. The respondents and the vehicles and the silver ingots were taken to Bombay on
September 15, 1968. The statements of the respondents under Section 108 of the Customs
Act were recorded by Shri Wagh, Superintendent of Central Excise. The Collector, Central
Excise, by his order dated May 28, 1969, confiscated the silver ingots. After obtaining the
requisite sanction, the Assistant Collector, Central Excise made a complaint against all the
three accused in the court of the Judicial Magistrate, Bassein, for trial in respect of the
aforesaid offences.
5. The plea of the accused was of plain denial of the prosecution case. They stated that
they were not aware of the alleged silver and that they had just been employed for carrying
the jeep and the truck to another destination. They alleged that they were driven to the
creek by the police.
6. The trial Magistrate convicted the accused of the aforesaid offences and sentenced
Accused 1 to two years’ rigorous imprisonment and a fine of Rs 2000 and, in default, to
suffer further six months’ rigorous imprisonment. Accused 2 and 3 were to suffer six
months’ rigorous imprisonment and to pay a fine of Rs 500 and, in default, to suffer two
months’ rigorous imprisonment.
7. The accused preferred three appeals in the court of the Additional Sessions Judge,
Thana, who, by his common judgment dated September 30, 1973, allowed the appeals and
acquitted them on the ground that the facts proved by the prosecution fell short of
establishing that the accused had ‘attempted’ to export silver in contravention of the law,
because the facts proved showed no more than that the accused had only made
‘preparation’ for bringing this silver to the creek and “had not yet committed any act
amounting to a direct movement towards the commission of the offence”. In his view, until
silver was put in the boat for the purpose of taking out of the country with intent to export
it, the matter would be merely in the. stage of preparation falling short of an ‘attempt’ to
249

export it. Since ‘preparation’ to commit the offence of exporting silver was not punishable
under the Customs Act, he acquitted the accused.
8. Against this acquittal, the State of Maharashtra carried an appeal to the High Court,
which, by its judgment dated November 1, 1973, dismissed the appeal and upheld the
acquittal of the accused-respondents. Hence, this appeal.
9. In the instant case, the trial Court and the Sessions Judge concurrently held that the
following circumstances had been established by the prosecution:
(a) The officers (Shri Wagh and party) had received definite information that silver
would be carried in a truck and a jeep from Bombay to Bassein for exporting from
the country and for this purpose they kept a watch at Shirsat Naka and then followed
the jeep and the truck at some distance.

(b) Accused 1 was driving the jeep, while Accused 2 was driving the truck and Accused 3
was cleaner on it.

(c) Fifteen silver ingots were found concealed in the jeep and 24 silver ingots were
found hidden in the truck.

(d) The jeep and the truck were parked near the Kaman creek from where they could be
easily loaded in some sea-craft.

(e) Four silver ingots from the vehicle had been actually unloaded and were found lying
by the side of the road near the footpath leading to the sea.

(f) On being questioned, Accused 1 gave his false name and address.

(g) The accused were not dealers in silver.

10. The trial Magistrate further held that just when the officers surrounded these
vehicles and caught the accused, the sound of the engine of a mechanised vessel was heard
from the creek. The first appellate Court did not discount this fact, but held that this
circumstance did not have any probative value.
11. The question, therefore, is whether from the facts and circumstances, enumerated
above, it could be inferred beyond reasonable doubt that the respondents had attempted to
export the silver in contravention of law from India?
12. At the outset, it may be noted that the Evidence Act does not insist on absolute
proof for the simple reason that perfect proof in this imperfect world is seldom to be found.
That is why under Section 3 of the Evidence Act, a fact is said to be ‘proved’ when, after
 250

considering the matters before it, the court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists. This definition of ‘proved’ does not draw any
distinction between circumstantial and other evidence. Thus, if the circumstances listed
above establish such a high degree of probability that a prudent man ought to act on the
supposition that the appellant was attempting to export silver from India in contravention of
the law that will be sufficient proof of that fact in issue.
13. 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, 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 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 [AIR 1961 SC 1698] 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.
14. Now, let us apply the above principles to the facts of the case in hand. The intention
of the accused to export the silver from India by sea was clear from the circumstances
enumerated above. They were taking the silver ingots concealed in the two vehicles under
the cover of darkness. They had reached close to the sea-shore and had started unloading
the silver there near a creek from which the sound of the engine of a sea-craft was also
heard. Beyond the stage of preparation, most of the steps necessary in the course of export
by sea had been taken. The only step that remained to be taken towards the export of the
251

silver was to load it on a sea-craft for moving out of the territorial waters of India. But for
the intervention of the officers of law, the unlawful export of silver would have been
consummated. The clandestine disappearance of the sea-craft when the officers intercepted
and rounded up the vehicles, and the accused at the creek reinforces the inference that the
accused had deliberately attempted to export silver by sea in contravention of law.
15. It is important to bear in mind that the penal provisions with which we are
concerned have been enacted to suppress the evil of smuggling precious metal out of India.
Smuggling is an anti-social activity which adversely affects the public revenues, the earning
of foreign exchange, the financial stability and the economy of the country. A narrow
interpretation of the word “attempt” therefore, in these penal provisions which will impair
their efficacy as instruments for combating this baneful activity has to be eschewed. These
provisions should be construed in a manner which would suppress the mischief, promote
their object, prevent their subtle evasion and foil their artful circumvention. Thus construed,
the expression “attempt” within the meaning of these penal provisions is wide enough to
take in its fold any one or series of acts committed, beyond the stage of preparation in
moving the contraband goods deliberately to the place of embarkation, such act or acts
being reasonably proximate to the completion of the unlawful export. The inference arising
out of the facts and circumstances established by the prosecution, unerringly pointed to the
conclusion, that the accused had committed the offence of attempting to export silver out of
India by sea, in contravention of law.
16. For reasons aforesaid, we are of opinion that the High Court was in error in holding
that the circumstances established by the prosecution fell short of constituting the offence
of an ‘attempt’ to export unlawfully, silver out of India. We, therefore, allow this appeal, set
aside the acquittal of the accused-respondents and convict them under Section 135(1)(a) of
the Customs Act, 1962 read with Section 5 of the Imports and Exports (Control) Act, 1947
and the order issued thereunder, and sentence them as under:
17. Accused-Respondent 1, Mohd. Yakub is sentenced to suffer one year’s rigorous
imprisonment with a fine of Rs 2000 and, in default, to suffer six months’ further rigorous
imprisonment. Accused-Respondents 2 and 3, namely Shaikh Jamadar Mithubhai and Issak
Hasanali Shaikh are each sentenced to six months’ rigorous imprisonment with a fine of Rs
500 and, in default to suffer two months’ further rigorous imprisonment.
CHINNAPPA REDDY, J. (concurring) - I concur in the conclusion of my brother Sarkaria, J. in
whose judgment the relevant facts have been set out with clarity and particularity. I wish to
add a few paragraphs on the nature of the actus reus to be proved on a charge of an
attempt to commit an offence.
 252

19. The question is what is the difference between preparation and perpetration?
20. An attempt to define ‘attempt’ has to be a frustrating exercise. Nonetheless a search
to discover the characteristics of an attempt, if not an apt definition of attempt, has to be
made.
21. In England Parke, B. described the characteristics of an ‘attempt’ in Reg. v. Eagleton
[(1855) Dears CC 515] as follows:
The mere intention to commit a misdemeanour is not criminal. Some act is required,
and we do not think that all acts towards committing a misdemeanour indictable. Acts
remotely leading towards the commission of the offence are not to be considered as
attempts to commit it, but acts immediately connected with it are . . .
22. The dictum of Parke, B. is considered as the locus classic us on the subject and the
test of ‘proximity’ suggested by it has been accepted and applied by English courts though
with occasional but audible murmur about the difficulty in determining whether an act is
immediate or remote. Vide, Lord Goddard, C.J. in Gardner v. Akeroyd [(1952) 2 All ER 306] ”.
. . it is sometimes difficult to determine whether an act is immediately or remotely
connected with the crime of which it is alleged to be an attempt ’. Parke, B., himself
appeared to have thought that the last possible act before the achievement of the end
constituted the attempt. This was indicated by him in the very case of Reg. v. Eagleton
where he further observed:
. . . and if, in this case . . . any further step on the part of the defendant had been
necessary to obtain payment . . . we should have thought that the obtaining credit . . .
would not have been sufficiently proximate to the obtaining of the money. But, on the
statement in this case, no other act on the part of the defendant would have been
required. It was the last act, depending on himself towards the payment of the money,
and therefore it ought to be considered as an attempt.
As a general principle the test of ‘the last possible act before the achievement of the end’
would be entirely unacceptable. If that principle be correct, a person who has cocked his gun
at another and is about to pull the trigger but is prevented from doing so by the intervention
of someone or something cannot be convicted of attempt to murder.
23. Another popular formulation of what constitutes ‘attempt’ is that of Stephen in his
DIGEST OF THE CRIMINAL LAW where he said:
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.
253

While the first sentence is an attempt at defining ‘attempt’, the second sentence is a
confession of inability to define. The attempt at definition fails precisely at the point where it
should be helpful. See the observations of Parker, C.J. in Davey v. Lee [(1968) 1 QB 366] and
of Prof. Glanville Williams in his essay on Police Control of Intending Criminal in 1955
Criminal Law Review.
24. Another attempt at definition was made by Professor Turner in (1934)5 Cambridge
Law Journal 230, and this was substantially reproduced in Archbold’s CRIMINAL PLEADING,
EVIDENCE AND PRACTICE (36th Edn.). Archbold’s reproduction was quoted with approval in
Davey v. Lee and was as follows:
. . . the actus reus necessary to constitute an attempt is complete if the prisoner does an
act which is a step towards the commission of a specific crime, which is immediately and
not merely remotely connected with the commission of it, and the doing of which
cannot reasonably be regarded as having any other purpose than the commission of the
specific crime.
25. We must at once say that it was not noticed in Archbold’s (36th Edn.) nor was it
brought to the notice of the Divisional Court which decided Davey v. Lee [RUSSEL ON CRIME
(12th Edn.) edited by Prof. Turner, p. 18] that Prof. Turner was himself not satisfied with the
definition propounded by him and felt compelled to modify it, as he thought that to require
that the act could not reasonably be regarded as having any other purpose than the
commission of the specific crime went too far and it should be sufficient “to show prima
facie, the offender’s intention to commit the crime which he is charged with attempting”.
26. Editing 12th edition of Russell on Crime and 18th edition of Kenny’s OUTLINES OF
CRIMINAL LAW, Professor Turner explained his modified definition as follows:
It is therefore suggested that a practical test for actus reus in attempt is that the
prosecution must prove that the steps taken by the accused must have reached the
point when they themselves clearly indicate what was the end towards which they were
directed. In other words the steps taken must themselves be sufficient to show, prima
facie, the offender’s intention to commit the crime which he is charged with attempting.
That there may be abundant other evidence to establish his mens rea (such as a
confession) is irrelevant to the question of whether he had done enough to constitute
the actus reus.
We must say here that we are unable to see any justification for excluding evidence
aliunde on the question of mens rea in considering what constitutes the actus reus. That
would be placing the actus reus in too narrow a pigeon-hole.
 254

27. In Haughton v. Smith, [1975 AC 476 492], Hailsham, L.C. quoted Parke, B. from the
Eagleton case and Lord Parker, C.J. from Davey v. Lee and proceeded to mention three
propositions as emerging from the two definitions:
(1) There is a distinction between the intention to commit a crime and an attempt to
commit it .... (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 acts which would
constitute the actual commission of the offence if it were not interrupted . . . . (3) The
act relied on as constituting the attempt must not be an act merely preparatory to
commit the completed offence, but must bear a relationship to the completion of the
offence referred to in Reg. v. Eagleton, as being ‘proximate’ to the completion of the
offence in Davey v. Lee as being ‘immediately and not merely remotely connected with
the completed offence . . .
28. In Director of Public Prosecutions v. Stonehouse [(1977) 2 All ER 909] Lord Diplock
and Viscount Dilhorne, appeared to accept the ‘proximity’ test of Parke, B., while Lord
Edmund-Davies accepted the statement of Lord Hailsham as to what were the true
ingredients of a criminal attempt. Whatever test was applied, it was held that the facts
clearly disclosed an attempt in that case.
29. In India, while attempts to commit certain specified offences have themselves been
made specific offences (e.g.;. Sections 307, 308, Indian Penal Code etc.), an attempt to
commit an offence punishable under the Penal Code, generally, is dealt with under Section
511, Indian Penal Code. But the expression ‘attempt’ has not been defined anywhere.
30. In Abhayanand Mishra v. State of Bihar, Raghubar Dayal and Subba Rao, JJ.,
disapproved of the test of last act which if uninterrupted and successful would constitute a
criminal offence and summarised their views as follows:
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.
31. In Malkiat Singh v. State of Punjab [(1969) 2 SCR 663, 667] a truck which was
carrying paddy, was stopped at Samalkha 32 miles from Delhi and about 15 miles from the
Delhi-Punjab boundary. The question was whether the accused were attempting to export
paddy from Punjab to Delhi. It was held that on the facts of the case, the offence of attempt
had not been committed. Ramaswami, J., observed:
255

The test for determining whether the act of the appellants constituted an attempt or
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 In the present case it is quite possible that the appellants may have
been warned that they had no licence to carry the paddy and they may have changed
their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and
not have proceeded further in their journey.
We think that the test propounded by the first sentence should be understood with
reference to the facts of the case. The offence alleged to be contemplated was so far
removed from completion in that case that the offender had yet ample time and
opportunity to change his mind and proceed no further, his earlier acts being completely
harmless. That was what the court meant, and the reference to the appellants in the
sentence where the test is propounded makes it clear that the test is propounded with
reference to the particular facts of the case and not as a general rule. Otherwise, in every
case where an accused is interrupted at the last minute from completing the offence, he
may always say that when he was interrupted he was about to change his mind.
32. Let me now state the result of the search and research: 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. For instance, in the instant case, had the truck been stopped
and searched at the very commencement of the journey or even at Shirsat Naka, the
discovery of silver ingots in the truck might at the worst lead to the inference that the
accused had prepared or were preparing for the commission of the offence. It could be said
that the accused were transporting or attempting to transport silver somewhere but it
would not necessarily suggest or indicate that the intention was to export silver. The fact
that the truck was driven up to a lonely creek from where the silver could be transferred into
a sea-faring vessel was suggestive or indicative though not conclusive, that the accused
wanted to export the silver. It might have been open to the accused to plead that the silver
was not to be exported but only to be transported in the course of inter-coastal trade. But,
 256

the circumstance that all this was done in a clandestine fashion, at dead of night, revealed,
with reasonable certainty, the intention of the accused that the silver was to be exported.
33. In the result I agree with the order proposed by Sarkaria, J.
*****
257

Smt. Gian Kaur v. State of Punjab

(1996) 2 SCC 648

J.S. VERMA, J. Leave granted in special leave petitions.

2. The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial
Court under Section 306, Indian Penal Code, 1860 (for short "IPC") and each sentenced to six
years R.I. and fine of Rs. 2,000/-, or, in default, further R.I. for nine months, for abetting the
commission of suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both
has been maintained but the sentence of Gian Kaur alone has been reduced to R.I. for three
years. These appeals by special leave are against their conviction and sentence under
Section 306, IPC.
3. The conviction of the appellants has been assailed, inter alia, on the ground that
Section 306, IPC is unconstitutional. The first argument advanced to challenge the
constitutional validity of Section 306, IPC rests on the decision in P. Rathinam v. Union of
India [(1994) 3 SCC 394] by a Bench of two learned Judges of this Court wherein Section 309,
IPC has been held to be unconstitutional as violative of Article 21 of' the Constitution. It is
urged that ‘right to die’ being included in Article 21 of the Constitution as held in P.
Rathinam declaring Section 309, IPC to be unconstitutional, any person abetting the
commission of suicide by another is merely assisting in the enforcement of the fundamental
right under Article 21; and, therefore, Section 306. IPC penalising assisted suicide is equally
violative of Article 21. This argument, it is urged, is alone sufficient to declare that Section
306, IPC also is unconstitutional being violative of Article 21 of the Constitution.
4. One of the points directly raised is the inclusion of the `right to die' within the ambit
of Article 21 of the Constitution, to contend that any person assisting the enforcement of
the `right to die' is merely assisting in the enforcement of the fundamental right under
Article 21 which cannot be penal; and Section 306, IPC making that act punishable,
therefore, violates Article 21. In view of this argument based on the decision in P. Rathinam,
a reconsideration of that decision is inescapable.
5. In view of the significance of this contention involving a substantial question of law as
to the interpretation of Article 21 relating to the constitutional validity of Section 306, I.P.C.
which requires reconsideration of their decision in [Link], the Division Bench before
which these appeals came up for hearing has referred the matter to a Constitution Bench for
deciding the same. This is how the matter comes before the Constitution Bench.
6. In addition to the learned counsel for the parties the learned Attorney General of
India who appeared in response to the notice, we also requested Shri Fali S. Nariman and
 258

Shri Soli J. Sorabjee, Senior Advocates to appear as amicus curiae in this matter. All the
learned counsels appearing before us have rendered great assistance to enable us to decide
this ticklish and sensitive issue.
7. We may now refer to the submissions of the several learned counsel who ably
projected the different points of view.
8. Shri Ujagar Singh and Shri B.S. Malik appeared in these matters for the appellants to
support the challenge to the constitutional validity of Sections 306 and 309, IPC. Both the
learned counsels contended that Section 306 as well as Section 309 are unconstitutional.
Both of them relied on the decision in P. Rathinam. However, Shri Ujagar Singh supported
the conclusion in P. Rathinam of the constitutional invalidity of Section 309, IPC only on the
ground of violation of Article 14 and not Article 21. Shri B.S. Malik contended that Section
309 is violative of Articles 14 and 21. He strongly relied on the ground based on Article 21 in
P. Rathinam for holding Section 309 to be invalid. He urged that “right to die” being
included within the ambit of Article 21, assistance in commission of suicide cannot be an
offence and, therefore, Section 306 IPC also is violative of Article 21. He contended that
Section 306 is unconstitutional for this reason alone. Shri S.K. Gambhir appearing in one of
the connected matters did not advance any additional argument.
9. The learned Attorney General contended that Section 306 IPC constitutes a distinct
offence and can exist independently of Section 309 IPC. The learned Attorney General did
not support the decision in P. Rathinam and the construction made of Article 21 therein to
include the “right to die”. Shri F.S. Nariman submitted that Sections 306 and 309 constitute
independent substantive offences and Section 306 can exist independently of Section 309.
Shri Nariman then contended that the desirability of deleting Section 309 from the IPC is
different from saying that it is unconstitutional. He also submitted that the debate on
euthanasia is not relevant for deciding the question of constitutional validity of Section 309.
He submitted that Article 21 cannot be construed to include within it the so called 'right to
die' since Article 21 guarantees protection of life and liberty and not its extinction. He
submitted that Section 309 does not violate even Article 14 since the provision of sentence
therein gives ample discretion to apply that provision with compassion to an unfortunate
victim of circumstances attempting to commit suicide. Shri Nariman referred to the reported
decisions to indicate that the enforcement of this provision by the courts has been with
compassion to ensure that it is not harsh in operation. Shri Nariman submitted that the
decision in P. Rathinam requires reconsideration as it is incorrect. Shri Soli J. Sorabjee
submitted that Section 306 can survive independently of Section 309, IPC as it does not
violate either Article 14 or Article 21. Shri Sorabjee did not support the construction made of
259

Article 21 in P. Rathinam to include therein the 'right to die' but he supported the
conclusion that Section 309 is unconstitutional on the ground that it violates Article 14 of
the Constitution. Shri Sorabjee submitted that it has been universally acknowledged that a
provision to punish attempted suicide is monstrous and barbaric and, therefore, it must be
held to be violative of Article 14 of the Constitution. Shri Sorabjee's argument, therefore, is
that Section 306, IPC must be upheld as constitutional but Section 309 should be held as
unconstitutional, not as violative of Article 21 as held in P. Rathinam but being violative of
Article 14 of the Constitution. He also sought assistance from Article 21 to support the
argument based on Article 14.
10. At this stage, it would be appropriate to refer to the decisions wherein the question
of constitutional validity of Section 309, IPC was considered.
11. Maruti Shripati Dubal v. State of Maharashtra [(1987) Cri.L.J. 743] is the decision by
a Division Bench of the Bombay High Court. In that decision, [Link], J., as he then was,
speaking for the Division Bench held that Section 309 IPC is violative of Article 14 as well as
Article 21 of the Constitution. The provision was held to be discriminatory in nature and also
arbitrary so as to violate the equality guaranteed by Article 14. Article 21 was construed to
include the ‘right to die’, or to terminate one's own life. For this reason it was held to violate
Article 21 also.
12. State v. Sanjay Kumar Bhatia [(1985) Cri.L.J. 931] is the decision of the Delhi High
Court. Sachar, J., as he then was, speaking for the Division Bench said that the continuance
of Section 309 IPC is an anachronism unworthy of human society like ours. However, the
question of its constitutional validity with reference to any provision of the Constitution was
not considered. Further consideration of this decision is, therefore, not necessary.
13. Chenna Jagadeeswar v. State of Andhra Pradesh [1988 Cr.L.J.549] is the decision by
a Division Bench of the Andhra Pradesh High Court. The challenge to the constitutional
validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the
‘right to die’ was rejected. It was also pointed out by Amarethwari, J. speaking for the
Division Bench that the Courts have sufficient power to see that unwarranted harsh
treatment or prejudice is not meted out to those who need care and attention. This
negatived the suggested violation of Article 14.
14. The only decision of this Court is [Link] by a Bench of two learned Judges.
Hansaria, J. speaking for the Division Bench rejected the challenge to the constitutional
validity of Section 309 based on Article 14 but upheld the challenge on the basis of Article 21
of the Constitution. The earlier decisions of the Bombay High Court and the Andhra Pradesh
High Court were considered and agreement was expressed with the view taken by the
 260

Andhra Pradesh High Court as regards Section 309 qua Article 14. The decision then
proceeds to consider the challenge with reference to Article 21 of the Constitution. It was
held that Article 21 has enough positive content in it so that it also includes the 'right to die'
which inevitably leads to the right to commit suicide. Expressing agreement with the view of
the Bombay High Court in respect of the content of Article 21, it was held as under:
Keeping in view all-the above, we state that right to live of which Article 21 speaks of
can be said to bring in its trail the right not to live a forced life.
The conclusion of the discussion was summarised as under:
On the basis of what has been held and noted above, we state that Section 309 of the
Penal Code deserves to be effaced from the statute book to humanize our penal laws. It
is a cruel and irrational provision, and it may result in punishing a person again (doubly)
who has suffered agony and would be undergoing ignominy because of his failure to
commit suicide. Then an act of suicide cannot be said to be against religion, morality or
public policy, and an act of attempted suicide has no baneful effect on society. Further,
suicide or attempt to commit it causes no harm to others, because of which State's
interference with the personal liberty of the persons concerned is not called for.
We, therefore, hold that Section 309 violates Article 21, and so, it is void. May it be said
that the view taken by us would advance not only the cause of humanization, which is a
need of the day, but of globalization also, as by effacing Section 309, we would be
attuning this part of our criminal law to the global wavelength. (Page 429)
15. At this stage it may be mentioned that reference has been made in [Link] and
the Bombay High Court decision to the debate relating to euthanasia, the sociological and
psychological factors contributing to suicidal tendencies and the global debate on the
desirability of not punishing 'attempt to commit suicide'. The absence of provisions to
punish attempted suicide in several jurisdictions has also been noticed. The desirability of
attempted suicide not being made a penal offence and the recommendation of the Law
Commission to delete Section 309 from the Indian Penal Code has also been adverted to. We
may refer only to the recommendation contained in the 42nd Report (1971) of the Law
Commission of India which contains the gist of this logic and was made taking into account
all these aspects. The relevant extract is, as under:
16.31 Section 309 penalizes an attempt to commit suicide. It may be mentioned that
suicide was regarded as permissible in some circumstances in ancient India. In the
Chapter on "The hermit in the forest", Manu's Code (See: Laws of Manu, translated by
George Buhler, Sacred Books of the East edited by [Link] Muller, (1967 Reprint) Vol.25,
page 204,J Shlokas 31 ad 32) says –
261

‘31. Or let him walk, fully determined and going straight on, in a north-easterly
direction, subsisting on water and air, until his body sinks to rest.
32. A Brahmana having got rid of his body by one of those modes (i.e. drowning,
precipitating burning or starving) practised by the great sages, is exalted in the
world of Brahamana, free from sorrow and fear.’
Two commentators of Manu, Govardhana and Kulluka (See Medhatithi's commentary
on Manu), say that a man may undertake the mahaprasthana (great departure) on a journey
which ends in death, when he is incurably diseased or meets with a great misfortune, and
that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid
suicide (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited
by [Link] Muller, (1967 Reprint) Vol.25, page 204, footnote 31). To this Max Muller adds a
note as follows :- (See: Ibid)
From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a
voluntary death by starvation was considered the befitting conclusion of a hermit's life.
The antiquity and general prevalence of the practice may be inferred from the fact that
the Jaina ascetics, too, consider it particularly meritorious.
16.32 Looking at the offence of attempting to commit suicide, it has been observed by
an English writer: (See: [Link] Fedden: Suicide (London, 1938), page 42).
It seems a monstrous procedure to inflict further suffering on even a single individual
who has already found life so unbearable, his chances of happiness so slender, that he
has been willing to face pain and death in order to cease living. That those for whom life
is altogether bitter should be subjected to further bitterness and degradation seems
perverse legislation.
Acting on the view that such persons deserve the active sympathy of society and not
condemnation or punishment, the British Parliament enacted the Suicide Act in 1961
whereby attempt to commit suicide ceased to be an offence.
16.33 We included in our Questionnaire the question whether attempt to commit
suicide should be punishable at all. Opinion was more or less equally divided. We are,
however definitely of the view that the penal Provision is harsh and unjustifiable and it
should be repealed." (emphasis supplied)
16. A Bill was introduced in 1972 to amend the Indian Penal Code by deleting Section
309. However, the Bill lapsed and no attempt has been made as yet to implement that
recommendation of the Law Commission.
17. The desirability of retaining Section 309 in the statute is a different matter and non-
sequitur in the context of constitutional validity of that provision which has to be tested with
 262

reference to some provision in the Constitution of India. Assuming for this purpose that it
may be desirable to delete Section 309 from the Indian Penal Code for the reasons which led
to the recommendation of the Law Commission and the formation of that opinion by
persons opposed to the continuance of such a provision, that cannot be a reason by itself to
declare Section 309 unconstitutional unless it is held to be violative of any specific provision
in the Constitution. For this reason, challenge to the constitutional validity of Section 309
has been made and is also required to be considered only with reference to Articles 14 and
21 of the Constitution. We, therefore, proceed now to consider the question of
constitutional validity with reference to Articles 14 and 21 of the Constitution. Any further
reference to the global debate on the desirability of retaining a penal provision to punish
attempted suicide is unnecessary for the purpose of this decision. Undue emphasis on that
aspect and particularly the reference to euthanasia cases tends to befog the real issue of the
constitutionality of the provision and the crux of the matter which is determinative of the
issue.
18. In P. Rathinam it was held that the scope of Article 21includes the 'right to die'. P.
Rathinam held that Article 21 has also a positive content and is not merely negative in its
reach. Reliance was placed on certain decisions to indicate the wide ambit of Article 21
wherein the term life' does not mean 'mere animal existence' but right to live with human
dignity' embracing quality of life. Drawing analogy from the interpretation of freedom of
speech and expression' to include freedom not to speak, freedom of association and
movement' to include the freedom not to join any association or to move anywhere,
freedom of business' to include freedom not to do business, it was held in P. Rathinam that
logically it must follow that right to live would include right not to live, i.e., right to die or to
terminate one's life. Having concluded that Article 21 includes also the right to die, it was
held that Section 309. IPC was violative of Article 21. This is the only basis in P. Rathinam to
hold that Section 309, IPC is unconstitutional.
'Right to die' - Is it included in Article 21?
19. The first question is: Whether, the scope of Article 21 also includes the 'right to die’?
Article 21 is as under: Article 21
21. Protection of life and personal liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law."
20. A significant part of the judgment in P. Rathinam on this aspect is as under:
If a person has a right to live, question is whether he has right not to live. The
Bombay High Court stated in paragraph 10 of its judgment that as all the
fundamental rights are to be read together, as held in R.C. Cooper v. Union of India
263

[(1970) 1 SCC 248] what is true of one fundamental right is also true of another
fundamental right. It was then stated that is not, and cannot be, seriously disputed
that fundamental rights have their positive as well as negative aspects. For example,
freedom of speech and expression includes freedom not to speak. Similarly, the
freedom of association and movement includes freedom not to join any association
or move anywhere. So too, freedom of business includes freedom not to do
business. It was, therefore, stated that logically it must follow that the right to live
will include right not to live, i.e., right to die or to terminate one’s life.
Two of the above named and critics of the Bombay judgment have stated that the
aforesaid analogy is "misplaced", which could have arisen on account of superficial
comparison between the freedoms, ignoring the inherent difference between one
fundamental right and ,the other. It has been argued that the negative aspect of the
right to live would mean the end or extinction of the positive aspect, and so, it is not
the suspension as such of the right as is in the case of 'silence' or 'non-association'
and 'no movement'. It has also been stated that the right to life stands on different
footing from other rights as all other rights are derivable from the right to live.
The aforesaid criticism is only partially correct inasmuch as though the negative
aspect may not be inferable on the analogy of the rights conferred by different
clauses of Article 19, one may refuse to live, if his life be not according to the person
concerned worth living or if the richness and fullness of life were not to demand
living further. One may rightly think that having achieved all worldly pleasures or
happiness, he has; some thing to achieve beyond this life. This desire for
communion with God may very rightly lead even a very healthy mind to think that
he would forego his right to live and would rather choose not to live. In any case, a
person cannot be forced to enjoy right to life to his detriment, disadvantage or
disliking.
* * *
Keeping in view all the above, we state that right to live of which Article 21 speaks of
can be said to bring in its trail the right not to live a forced life.
In this context, reference may be made to what Alan A. Stone, while serving as
Professor of Law and Psychiatry in Harvard University stated in his 1987 Jonas
Robitscher Memorial Lecture in Law and Psychiatry, under the caption ‘The Right to
Die: New Problems for Law and Medicine and Psychiatry’. (This lecture has been
printed at pp.627 to 643 of Emory Law Journal, Vol.37, 1988). One of the basic
theories of the lecture of Professor Stone was that right to die inevitably leads to
the right to commit suicide." (emphasis supplied) (Pages 409-410)
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21. From the above extract, it is clear that in substance the reason for that view is, that
if a person has a right to live, he also has a right not to live. The decisions relied on for taking
that view relate to other fundamental rights which deal with different situations and
different kind of rights. In those cases the fundamental right is of a positive kind, for
example, freedom of speech, freedom of association, freedom of movement, freedom of
business etc. which were held to include the negative aspect of there being no compulsion
to exercise that right by doing the guaranteed positive act. Those decisions merely held that
the right to do an act includes also the right not to do an act in that manner. It does not flow
from those decisions that if the right is for protection from any intrusion thereof by others
or in other words the right has the negative aspect of not being deprived by others of its
continued exercise e.g. the right to life or personal liberty, then the converse positive act
also flows there from to permit expressly its discontinuance or extinction by the holder of
such right. In those decisions it is the negative aspect of the right that was invoked for which
no positive or overt act was required to be done by implication. This difference in the nature
of rights has to be borne in mind when making the comparison for the application of this
principle.
22. When a man commits suicide he has to undertake certain positive overt acts and the
genesis of those acts cannot be traced to, or be included within the protection of the 'right
to life' under Article 21. The significant aspect of 'sanctity of life' is also not to be overlooked.
Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch
of imagination can extinction of life be read to be included in ‘protection of life'. Whatever
may be the philosophy of permitting a person to extinguish his life by committing suicide, we
find it difficult to construe Article 21 to include within it the right to die as a part of the
fundamental right guaranteed therein. 'Right to life' is a natural right embodied in Article 21
but suicide is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of right to life. With respect and in all humility, we find no
similarity in the nature of the other rights, such as the right to freedom of speech etc. to
provide a comparable basis to hold that the 'right to life' also includes the 'right to die'. With
respect, the comparison is inapposite, for the reason indicated in the context of Article 21.
The decisions relating to other fundamental rights wherein the absence of compulsion to
exercise a right was held to be included within the exercise of that right, are not available to
support the view taken in P. Rathinam qua Article 21.
23. To give meaning and content to the word 'life' in Article 21, it has been construed as
life with human dignity. Any aspect of life which makes it dignified may be read into it but
not that which extinguishes it and is, therefore, inconsistent with the continued existence of
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life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent
with the ‘right to life’ as is ‘death’ with ‘life’.
24. Protagonism of euthanasia on the view that existence in persistent vegetative state
(PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of
'sanctity of life' or the right to live with dignity' is of no assistance to determine the scope of
Article 21 for deciding whether the guarantee of ‘right to life’ therein includes the ‘right to
die’. The right to life' including the right to live with human dignity would mean the
existence of such a right upto the end of natural life. This also includes the right to a
dignified life upto the point of death including a dignified procedure of death. In other
words, this may include the right of a dying man to also die with dignity when his life is
ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or
equated with the right to die an unnatural death curtailing the natural span of life.
25. A question may arise, in the context of a dying man, who is, terminally ill or in a
persistent vegetative state that he may be permitted to terminate it by a premature
extinction of his life in those circumstances. This category of cases may fall within the ambit
of the 'right to die' with dignity as a part of right to live with dignity, when death due to
termination of natural life is certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only of accelerating conclusion of
the process of natural death which has already commenced. The debate even in such cases
to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that
the argument to support the view of permitting termination of life in such cases to reduce
the period of suffering during the process of certain natural death is not available to
interpret Article 21 to include therein the right to curtail the natural span of life.
26. We are, therefore, unable to concur with the interpretation of Article 21 made in P.
Rathinam. The only reason for which Section 309 is held to be violative of Article 21 in P.
Rathinam does not withstand legal scrutiny. We are unable to hold that Section 309 I.P.C. is
violative of Article 21.
27. The only surviving question for consideration now is whether Section 309 IPC is
violative of Article 14, to support the conclusion reached in [Link].
28. The basis of the decision in P. Rathinam, discussed above, was not supported by any
of the learned counsel except Shri B.S. Malik. On the basis of the decision in [Link] it
was urged that Section 306 also is violative of Article 21, as mentioned earlier. On the view
we have taken that Article 21 does not include the right to die' as held in P. Rathinam, the
first argument to challenge the constitutional validity of Section 306, IPC also on that basis
fails, and is rejected.
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Article 14 - Is it violated by Section 309, I.P.C.?

29. We would now consider the constitutional validity of Section 309 with reference to
Article 14 of the Constitution. In substance, the argument of Shri Ujagar Singh, Shri B.S.
Malik and Shri Soli J. Sobrajee on this point is that it is a monstrous and barbaric provision
which violates the equality clause being discriminatory and arbitrary. It was contended that
attempted suicide is not punishable in any other civilized society and there is a strong
opinion against the retention of such a penal provision which led the Law Commission of
India also to recommend its deletion. Shri Sorabjee contended that the wide amplitude of
Article 14 together with the right to live with dignity included in Article 21, renders Section
309 unconstitutional. It is in this manner, invoking Article 21 limited to life with dignity (not
including therein the right to die) that Shri Sorabjee refers to Article 21 along with Article 14
to assail the validity of Section 309, IPC. The conclusion reached in P. Rathinam is supported
on this ground.
30. We have formed the opinion that there is no merit in the challenge based even on
Article 14 of the Constitution. The contention based on Article 14 was rejected in P.
Rathinam also. It was held therein as under:
The Bombay High Court held Section 309 as violation of Article 14 also mainly because
of two reasons. First, which act or acts in series of acts will constitute attempt to suicide,
where to draw the line, is not known – some attempts may be serious while others non-
serious. It was stated that in fact philosophers, moralists and sociologists were not
agreed upon what constituted suicide. The want of plausible definition or even
guidelines, made Section 309 arbitrary as per the learned Judges. Another reason given
was that Section 309 treats all attempts to commit suicide by the same measure
without referring to the circumstances in which attempts are made.
The first of the aforesaid reasons is not sound, according to us, because whatever
differences there may be as to what constitutes suicide, there is no doubt that suicide is
intentional taking of one's life, as stated at p.1521 of Encyclopaedia of Crime and
Justice, Vol. IV, 1983 Edn. Of course, there still exists difference among suicide
researchers as to what constitutes suicidal behavior, for example, whether narcotic
addiction, chronic alcoholism, heavy cigarette smoking, reckless driving, other risk-
taking behaviors are suicidal or not. It may also be that different methods are adopted
for committing suicide, for example, use of fire-arm, poisoning especially by drugs,
overdoses, hanging, inhalation of gas. Even so, suicide is capable of a broad definition,
as has been given in the aforesaid Webster's Dictionary. Further, on a prosecution being
launched it is always open to an accused to take the plea that his act did not constitute
suicide where-upon the court would decide this aspect also.
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In so far as treating of different attempts to commit suicide by the same measure is

concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the
nature, gravity and extent of attempt may be taken care of by tailoring the sentence
appropriately. It is worth pointing out that Section 309 has only provided the maximum
sentence which is up to one year. It provides for imposition of fine only as a punishment.
It is this aspect which weighed with the Division Bench of Andhra Pradesh High Court in
its aforesaid decision to disagree with the Bombay view by stating that in certain cases
even Probation of Offenders Act can be pressed into service, whose Section 12 enables
the court to ensure that no stigma or disqualification is attached to such a person. …
We agree with the view taken by the Andhra Pradesh High Court as regards Section 309
qua Article 14. (Page 405) (emphasis supplied)
With respect, we are in agreement with the view so taken qua Article 14, in P. Rathinam.
31. We have already stated that the debate on the desirability of retaining such a penal
provision of punishing attempted suicide, including the recommendation for its deletion by
the Law Commission are not sufficient to indicate that the provision is unconstitutional being
violative of Article 14. Even if those facts are to weigh, the severity of the provision is
mitigated by the wide discretion in the matter of sentencing since there is no requirement of
awarding any minimum sentence and the sentence of imprisonment is not even compulsory.
There is also no minimum fine prescribed as sentence, which alone may be the punishment
awarded on conviction under Section 309, IPC. This aspect is noticed in P. Rathinam for
holding that Article 14 is not violated.
32. The reported decisions show that even on conviction under Section 309, IPC, in
practice the accused has been dealt with compassion by giving benefit under the Probation
of Offenders Act, 1958 or Section 562 of the Code of Criminal Procedure, 1908
corresponding to Section 360 of the Criminal Procedure Code, 1973 : Barkat v. Emperor, AIR
1934 Lah. 514; Emperor v. Dwarka Pooja, 14 Bom.L.R. 146; Emperor v. Dhirajia, AIR 1940 All
486; Ram Sunder v. State of Uttar Pradesh, AIR 1962 All. 262; Valentino v. State, AIR 1967
Goa 138; Phulbhai v. State of Maharashtra, 1976 Cr.L.J. 1519; Maharani v. State of M.P.,
AIR 1981 SC 1776; Rukhmina Devi v. State of U.P., 1988 Cr.L.J. 548. The above quoted
discussion in P. Rathinam qua Article 14 is sufficient to reject the challenge based on Article
14.
33. We may briefly refer to the aid of Article 21 sought by Shri Sorabjee to buttress the
challenge based on Article 14. We have earlier held that right to die is not included in the
`right to life' under Article 21. For the same reason, right to live with human dignity cannot
be construed to include within its ambit the right to terminate natural life, at least before
commencement of the natural process of certain death. We do not see how Article 21 can
 268

be pressed into service to support the challenge based on Article 14. It cannot, therefore, be
accepted that Section 309 is violative either of Article 14 or Article 21 of the Constitution.
34. It follows that there is no ground to hold that Section 309, IPC is constitutionally
invalid. The contrary view taken in P. Rathinam on the basis of the construction made of
Article 21 to include therein the right to die cannot be accepted by us to be correct. That
decision cannot be supported even on the basis of Article 14. It follows that Section 309, IPC
is not to be treated as unconstitutional for any reason.
Validity of Section 306 I.P.C.
35. The question now is whether Section 306, IPC is unconstitutional for any other
reason. In our opinion, the challenge to the constitutional validity of Section 309, IPC having
been rejected, no serious challenge to the constitutional validity of Section 306 survives. We
have already rejected the main challenge based on P. Rathinam on the ground that ‘right to
die’ is included in Article 21.
36. It is significant that Section 306 enacts a distinct offence which is capable of
existence independent of Section 309, IPC. Sections 306 and 309 read as under:
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.
309. Attempt to commit suicide - Whoever attempts to commit suicide and does any act
towards the commission of such offence shall be punished with simple imprisonment
for a term which may extend to one year or with fine, or with both.
37. Section 306 prescribes punishment for abetment of suicide while Section 309
punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the
purview of Section 306 and it is punishable only under Section 309 read with Section 107,
IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal
offence yet the abettor is made punishable. The provision there provides for the punishment
of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where
the punishment for attempt to commit suicide is not considered desirable, its abetment is
made a penal offence. In other words assisted suicide and assisted attempt to commit
suicide are made punishable for cogent reasons in the interest of society. Such a provision is
considered desirable to also prevent the danger inherent in the absence of such a penal
provision. The arguments which are advanced to support the plea for not punishing the
person who attempts to commit suicide do not avail for the benefit of another person
assisting in the commission of suicide or in its attempt. This plea was strongly advanced by
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the learned Attorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee.
We find great force in the submission.
38. The abettor is viewed differently, inasmuch as he abets the extinguishment of life of
another persons and punishment of abetment is considered necessary to prevent abuse of
the absence of such a penal provision. The Suicide Act, 1961 in the English Law contains the
relevant provisions as under:
1. Suicide to cease to be a crime. – The rule of law whereby it is a crime for a person to
commit suicide is hereby abrogated.
NOTE
Suicide. "Felo de se or suicide is, where a man of the age of discretion, and compos
mentis, voluntarily kills himself by stabbing, poison or any other way" and was a
felony at common law: see 1 Hale PC 411-419, This section abrogates that rule of
law, but, by virtue of s 2(1) Post, a person who aids abets, counsels or procures the
suicide or attempted suicide of another is guilty of a statutory offence.
The requirement that satisfactory evidence of suicidal intent is always necessary to
establish suicide as a cause of death is not altered by the passing of this Act : see R.
v. Cardiff Coroner, ex p Thomas [1970] 3 All ER 469, [1970] 1 WLR 1475.
2. Criminal liability for complicity in another's suicide. – (1) A person who aids, abets,
counsels or procures the suicide of another, or an attempt by another to commit
suicide, shall be liable on conviction on indictment to imprisonment for a term not
exceeding fourteen years." (emphasis supplied)
39. This distinction is well recognized and is brought out in certain decisions of
other countries. The Supreme Court of Canada in Rodriguez v. B.C. (A.G.) [107 D.L.R. (4th
Series) 342] states as under:
Sanctity of life, as we will see, has been understood historically as excluding freedom of
choice in the self-infliction of death and certainly in the involvement of others in
carrying out that choice. At the very least, no new consensus has emerged in society
opposing the right of the state to regulate the involvement of others in exercising power
over individuals ending their lives. (at page 389)
40. Airedale N.H.A. Trust v. Bland [1993 (2) W.L.R. 316 (H.L.)] was a case relating to
withdrawal of artificial measures for continuance of life by a physician. Even though it is not
necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to
this decision cited at the Bar may be made. In the context of existence in the persistent
vegetative state of no benefit to the patient, the principle of sanctity of life, which it is the
concern of the State, was stated to be not an absolute one. In such cases also, the existing
 270

crucial distinction between cases in which a physician decides not to provide, or to continue
to provide, for his patient, treatment or care which could or might prolong his life, and those
in which he decides, for example, by administering a lethal drug, actively to bring his
patient's life to an end, was indicated and it was then stated as under: (All ER p.867: WLR
p.368)
But it is not lawful for a doctor to administer a drug to his patient to bring about his
death, even though that course is prompted by a humanitarian desire to end his
suffering, however great that suffering may be [see R. v. Cox (unreported), 18
September, 1992] per Ognall, J. in the Crown Court at Winchester. So to act is to cross
the Rubicon which runs between on the one hand the care of the living patient and on
the other hand euthanasia -actively causing his death to avoid or to end his suffering.
Euthanasia is not lawful at common law. It is of course well known that there are many
responsible members of our society who believe that euthanasia should be made lawful
but that result could, I believe, only be achieved by legislation which expresses the
democratic will that so fundamental a change should be made in our law. and can, if
enacted, ensure that such legalized killing can only be carried out subject to appropriate
supervision and control…. .(emphasis supplied) (at page 368)
41. The desirability of bringing about such a change was considered to be the function
of the legislature by enacting a suitable law providing therein adequate safeguards to
prevent any possible abuse.
42. The decision of the United States Court of Appeals for the Ninth Circuit in
Compassion in Dying v. State of Washington [49 F.3d 586] which reversed the decision of
United States District Court. W.D. Washington reported in 850 Federal Supplement 1454,
has also relevance. The constitutional validity of the State statute that banned physician
assisted suicide by mentally competent terminally ill adults was in question. The District
Court held unconstitutional the provision punishing for promoting a suicide attempt. On
appeal. that judgment was reversed and the constitutional validity of the provision was
upheld.
43. This caution even in cases of physician assisted suicide is sufficient to indicate that
assisted suicides outside that category have no rational basis to claim exclusion of the
fundamental of sanctity of life. The reasons assigned for attacking a provision which
penalizes attempted suicide are not available to the abettor of suicide or attempted suicide.
Abetment of suicide or attempted suicide is a distinct offence which is found enacted even
in the law of the countries where attempted suicide is not made punishable. Section 306
I.P.C. enacts a distinct offence which can survive independent of Section 309 in the I.P.C. The
271

learned Attorney General as well as both the learned amicus curiae rightly supported the
constitutional validity of Section 306 I.P.C.
44. The Bombay High Court in Naresh Marotrao Sakbre v. Union of India [1895 Crl.L.J.
96] considered the question of validity of Section 306 I.P.C. and upheld the same. No
decision holding Section 306 I.P.C. to be unconstitutional has been cited before us. We find
no reason to hold either Section 309 or Section 306 I.P.C. to be unconstitutional.
45. For the reasons we have given, the decisions of the Bombay High Court in Maruti
Shripati Dubal v. State of Maharashtra [1987 Crl. L.J. 743] and of a Division Bench of this
Court in P. Rathinam, wherein Section 309 I.P.C. has been held to be unconstitutional, are
not correct. The conclusion of the Andhra Pradesh High Court in Chenna Jagadeeswar v.
State of Andhra Pradesh [1988 Crl.L.J. 549] that Section 309 I.P.C. is not violative of either
Article 14 or Article 21 of the Constitution is approved for the reasons given herein. The
questions of constitutional validity of Sections 306 and 309 I.P.C. are decided accordingly, by
holding that neither of the two provisions is constitutionally invalid.
46. These appeals would now be listed before the appropriate Division Bench for their
decision on merits in accordance with law treating Sections 306 and 309 I.P.C. to be
constitutionally valid.
*****