P (PLP)

Ayub Ali Shah, Naib Court (P. W. 4) was attached to the Court of the City Magistrate and was present at the time of the occurrence. He stated that between 3 and 4 p. m Bimal Chancier Duff came running into the Court room pursued by the accused who was armed with the dagger, Ex. P. 1. and tried to hit Bimal Chander Dutt with the dagger but, before he could do so, Bimal Chander Dutt ran up to the dais of the City Magistrate and Talib Hussain pointed his revolver at the accused who was then arrested. Bimal Chander Dutt had come into the Court room bleeding. In cross‑examination he said that the door : as flung open violently, that it was hot bolted but the leaves were jammed and one of the panes of glass was broken by the opening of the door. Fazal Hussain, Head-Constable, Police Station Anarkali (P. W. 5), stated that he had received at telephone message from Iltaf Hussain, Lower Mall Police Station, that some people had been stabbed in the precincts of the District Court and fie recorded the first information report, Ex. P. D. Mirza Muhammad Rafiq, A S I., gave hint the sealed parcel of the dagger which he sent to the Chemical Examiner Abdul Rashid, Foot Constable (P. W. 6) took the parcel. Muhammad Shafi (P. W. 7) prepared the plan. Muhammad Rafiq, A.S.I. (P. W. 8) investigated the case and recorded the statement; Ex. D. A. Dr. Nazir Din Ahmad (P. W. 9) examined Bimal Chander Dutt at 5 p.m., on the 27th August, 1947, and found (1) a stab wound over the left loin 1" x " and (2) a superficial incised wound, " x ", on the balm of the left hand. Dr. M S. Chaudhry, Casualty Medical Officer Mayo Hospital, Lahore (P. W. 10) stated that Bimal Chander Dutt was brought to his ward at about 5.15 p.m., on the 27th August, 1947, and on probing the wound on the left loin of Bimal Chander Dutt it was found to be A" deep. The patient wars discharged from tide hospital after about a fortnight: With this evidence the case, for the prosecution was closed. The accused was examined again. He denied his guilt and produced no evidence. The learned Session Judge held that the facts established did not constitute an offence under section 307 Indian Penal Code. The accused in the words o the learned Sessions judge, was armed " merely " with a dagger and if be had succeeded in his attempt he would, in all probability, have been guilty of voluntarily causing hurt with dangerous weapon and his offence would have been punishable under section 324 Indian Penal Code. This view, in the opinion of the trial Court, was justified by the nature of the injuries which were actually found on the person of Bimal Chander Dutt. They were both simple. The accused was, therefore, convicted under section 324/511, Indian Penal Code and sentenced to one year's rigorous imprisonment. He has appealed. The facts that Bimal Chander Dutt rushed into the Court room of the City Magistrate after having been stabbed that the appellant followed him with a blood‑stained dagger in his hand that he was told to stop by Talib Hussain, Sub‑Inspector and was threatened to be shot with the revolver if he did not and that the magistrate shouted to the people present in Court to catch the accused, in order to prevent him from stabbing Bimal Chander Dutt, are not denied by the learned counsel for the appellant. His only contention is that the facts mentioned above constitute a criminal assault, punishable under section 352 Indian Penal Code and not an attempt to cause even a simple injury with sharp‑edged weapon, punishable under section 324/511 Indian Penal Code. Stress was laid by the learned counsel on the omission in the police statement of the City Magistrate of grappling by the accused with Bimal Chander Dutt. Tile incident of grappling was ignored by the trial Court but the City Magistrate has definitely stated drat the accused had tried to 'stab' Bimali Chander Dutt it and was prevented from doing so by the show of a revolver. This statement was not contradicted by the police statement of the Magistrate and was fully supported by the evidence of Talib Hussain, Sub -Inspector and Ayub Ali Shah, Naib Court, Fayyaz Hussain, P. S. I., also stated that wrier he returned to the Court room he saw Talib Hussain pointing the revolver at the accused who then surrendered himself. These are the `fact's on which the nature of the crime committed by the appellant has to be determined. In every crime there are four stages: first, the intention to commit it; second, the preparation; third, the attempt and fourth, the crime. If the attempt fails the crime is not complete but the attempt is punishable because it creates alarm which of itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. An attempt to commit a crime must be distinguished from the intention r the preparation to commit it. Intention is inferred by the direction of conduct towards the object. Will is not taken for the deed unless there be some external act which shows that progress has been made it the direction of the deed. Preparation consists in devising or arranging the means or measure's necessary for the commission of the offence. It differs widely froth attempt which is the direct movement towards the commission, after preparation has been made. The question whether a certain act is merely one of preparation or one committed in the course of an attempt is a question of fact. 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. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination in attempt as compared with preparation and such greater degree of, determination may be estimated in various ways. Where an act towards the commission (of an offence is illegal Per se, it is a proof of fixed determination. Where the act is open and not hidden, that is a further proof of determination. The act of the accused in this case, i.e., the chasing of Bimal Chander Dutt with dagger in hand, was illegal per se, and indicated a high degree of open determination to stab hint The, difference between mere preparation and attempt was explained by the author, of the Code with the following illustrations (a) A, intending to murder Z by means of a spring gun, purchases such a gun. A has not yet committed the offence of attempt to commit murder. A sets the gun loaded in Z's path, and leaves it there. A has committed the offence. (b) 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. A 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. In Queen v. Paterson I L. R (1876) 1 All 316, Pearson, J., followed the American rule that an attempt can only be manifested by acts which would end in the consummation of the offence but for the intervention of circums tances independent of the will, of the 'party. It has been held in several authorities that when a main 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, that man has attempted to effect the object at which he aimed. All that is necessary to constitute an attempt is 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. It does not matter fhat'the progress is interrupted. In Stephen's Digest, of 'Criminal' Law an attempt to commit a crime has been defined as an act done 'with intent to commit that crime 'and forming pait 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 begin cannot be defined; it depends upon the circumstances of each particular case. Attempt has also been defined in the American and English Encyclopaedia of Law, Volume III, p. 250 (2nd Edn.) as an act done in part‑execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation. It was laid down by Plowden, J, in Ghulam Muhammad v. The Crown 13 P R (Cr.) 1879, that it must in every case be a question depending upon the circumstances whether a particular act, done with the requisite intention, towards the commission of an offence is sufficiently proximate to constitute an attempt, or is so remote as to merely constitute preparation for its commission. The Illustrations of the offence of attempt given under section 511 Indian Penal Code are.‑ (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. Ire 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 having nothing in his pocket. A . is guilty under this section. In both the Illustrations it will be noticed that the acts com mitted did not constitute the ingredients of the offence attempted, inasmuch as there was no removal of property. There is a clear difference between the definition of attempt in section 511 and that given in section 307 Indian Penal Code. To convict a person of an attempt to murder under section 307, it must be shown that he has done some act with such intention that if by that act he caused death he would be guilty of murder, i.e., the act must have been capable of causing death and if it had not fallen short of its object, it would have constituted the offence of murder. But under section 511 it is only necessary to prove an act done in the attempt towards the commission of the offence. In Jiwan Das v. King Emperor 30 P .R‑ (Cr.), 1904, it was held by Rattigan, J., that section 511 was in terms much wider than section

307. Under the last mentioned section the act done must be, one capable of causing death and it must also be the last proximate act necessary to constitute the completed offence; under section 511 the act may be any act in the course: of the attempt towards the commission of the offence. In Abdullah v. Crown 14 PR (Cr.) 1914 it was held that an attempt to commit an offence may be committed, even though, in order to the, completion of the offence something more remained to be done by the accused. In The Crown v. Shib Charan. I L R (1929) 10 Lah. 253, it was laid down that the view that an attempt to commit an offence is not punishable under section 511 unless the final act short of actual commission of that, offence has been accomplished, is erroneous. King Emperor v. Raghunath alias Rain Singh I L R (1940) Luck. 191, it is said that for a conviction under section 511 it is not necessary that the accused should complete ''every stage in the actual offence except the final stage. It is enough if in the attempt he did any act towards the commission of the offence. The words of section 511 are themselves quite clear and say, that whoever attempts to commit an offence punishable by this Code ..and in such attempt does any act towards the commission of the offence shall be punishable, Etc, etc. Attempt, according to the wording of the section, is not complete unless some act is done towards the commission of the offence; and when such an act is done the offence of attempt is complete. The act must however, be one immediately and directly tending to the execution of the principal .crime. In MacCrea's case I. L. A. (1Q‑93) 15 All, 173, Knox, J., said that it was very difficult to frame a satisfactory and exhaustive definition which shall lay down for all cases where preparation to commit an offence ends and an attempt to commit; that offence begins. The attempt once begun; and a criminal act one in pursuance of it towards the commission of the act attempted, does not cease to be criminal attempt because the person‑committing the offence does or may repent before the attempt is completed. The question whether the act is an act of preparation or an act in, the attempt and; towards. commission, is a fact to be determined upon the evidence. It was, however, emphatically held by the learned Judge; that section 511 was never meant to cover only the penultimate act towards completion of an offence and‑not acts precedent if those acts, are done in the course of the attempt to commit the offence and are done with the intent to commit it and are directed towards its commission. In the same judgment Blair, J., observed that the word " attempt " in section 511, was used in a very large sense and it. seemed to imply that, such an attempt may be made up, of a series of acts and that any one of those acts is done towards the commission of the deuce, i.e., conducive towards its commission, is punishable as an attempt. The words "any act", in the opinion of the learned Judge, excluded the notion that the final act; short of actual commission, alone was punishable: The views expressed in this case were approved by the Privy Council in Ex‑Parts MacCrea L. R. (1893) 20 I. A.

90. The acts proved in this case are:‑ (1) The appellant was armed with a blood‑stained dagger. (2) He came rushing into the Court room after Bimal Chander Dutt who was bleeding from a wound which he had already received outside the Court room. (3) The appellant tried to stab Bimal Chander Dutt in the Court room. He was prevented from doing so by the Sub‑Inspector who pointed a revolver at him and made him drop the dagger and by the Magistrate Who shouted at the appellant to stop and asked the people present in Court to seize him. These facts taken together clearly show that the appellant had gone beyond the stage of preparation. His acts constitute more than mere criminal assault. He attempted to cause, at least simple hurt with a sharp‑edged weapon to Bimal Chander Dutt and he was rightly convicted under section 324/511, Indian Penal Code. The sentence of one year's rigorous imprisonment is not excessive in the circumstances of this case. I, therefore, dismiss the appeal. K. M. A. Appeal dismissed.