Attempt to Murder and Culpable Homicide- Section 307 & 308

Section 307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

In order to constitute an offence under this section, two elements are essential:

  1. Intention or knowledge to commit murder
  2. Actual act of trying to commit the murder

Thus, it requires both mens rea as well as actus reus.

Act must be one capable of causing death

To sustain a conviction under this section, it is necessary to establish that had the accused succeeded in his attempt, it would have caused death of the victim as punishable under section 302, IPC.

In Jai Narain Mishra v State of Bihar[1],the accused was responsible for causing injury to the head of the victim with a farsa. The injury was described as a simple injury and hence even though the weapon was one likely to cause death, the Supreme Court held that the accused was not guilty under this section. Thus, even if an act was done with intention to commit murder, but if the act was not capable of causing death, the offence will not fall under this section but may be made punishable under section 300 read with season 511, IPC.

However, an accused charged under section 307 cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt. This is so because the accused is punished for his intention.

Intention

The intention required in this section is the same intention as required in section 300 i.e.,

  1. Intention to cause death
  2. Intention to cause such bodily injury, which the offender knows is likely to cause death
  3. Intention to cause such bodily injury as is likely in the ordinary course of nature to cause.

If intention is not proved, the offence under this section cannot be made out. However, intention has to be inferred from the circumstances of each case such as the nature of weapon used, the motive of the accused, severity of the blows given etc.

In Sarju Prasad v State of Bihar[2], the Supreme Court did not convict the accused under this section because the prosecution was unable to prove his intention kill the victim, or the knowledge, from the circumstances.

Knowledge

The term knowledge here refers to the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death (i.e. the same knowledge as required in section 300).

In Liyakat Mian v State of Bihar[3], the accused shot a person from a very close quarters causing injuries on the abdomen and the left arm. It was held that from these circumstances, the knowledge that the injury caused by him would result in death could be imputed to the accused and hence he was convicted under section 307, IPC.

Meaning of attempt

There is a thin line of demarcation between the preparation for, and an attempt to, commit an offence. A culprit first intends to commit an offence, then makes necessary preparations for the same and thereafter actually attempts to commit the offence. If the attempt succeeds, he successfully commits the offence; if it fails due to reasons beyond his control, he is said to have attempted it. 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. Such an act need not be the penultimate act towards the commission of the offence, but must be an act during the course of committing that offence.[4]

The act towards commission of the murder need not be a single act. Nor does it mean that the immediate effect of the act committed must be death. The word ‘act’ does not mean only any particular specific instantaneous act of a person, but denotes, according to section 33, a series of actions as well.

In Om Prakash v State of Punjab[5], the accused deliberately starved his wife and denied her food for days and didn’t allow her to leave the house. It was held that this conduct of the accused comes under the purview of section 307 even though there is no one independent act of the accused.

Section 308. Attempt to commit culpable homicide.—Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

A reading of the provisions of section 307 and section 308 shows that while section 307 is linked with the offence of murder defined under section 300, IPC, section 308 is linked with the offence of culpable homicide defined under section 299, IPC. This section and section 307 are expressed in similar language and are to be interpreted in the same way with the only difference that the ‘intention’ and ‘knowledge’ required in section 308 is to be understood in the light of section 299 IPC.

[1] AIR 1972 SC 1764.

[2] AIR 1965 SC 843

[3] AIR 1973 SC 807

[4] Abhayanand Mishra v State of Bihar AIR 1961 SC 1698

[5] AIR 1961 SC 1782

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