Attempt to commit murder and culpable homicide
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This article is written by Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, Section 307 and Section 308 of the Indian Penal Code, 1860 have been discussed. These sections talk about the attempt to commit murder and attempt to commit culpable homicide.

Introduction

Culpable homicide and murder are defined in Section 299 and Section 300 of the Indian Penal Code respectively. There is a very thin line between the two offences. 

Furthermore, an attempt to commit the same is also an offence under the Indian Penal Code. Their attempts are respectively defined under Section 307 and 308. Under both the Section a lot of weightage has been given to the intention and knowledge to commit such offence and both the Sections requires a proper analysis while convicting any person under this.

Meaning of Attempt

Section 511 of the Indian Penal Code talks about the punishments relating to an attempt to commit any offense but it does not define the term “Attempt”.

If the crime is impossible to commit, then it will not be considered as an offence. This is with the exception that, instigating or manipulating someone in order to make him commit the crime is not an offence.

 It is an offence under the attempt to commit a crime.

Stages of a crime

If a person commits a crime voluntarily or even if he prepares to commit a crime, the following four stages of a crime should be present.

Stage 1: Intention

Intention to commit a crime is a mental stage. It is the willingness of a person to commit an act. The law does not consider the importance of intention. Like mere intention to commit an offence without any physical act done, does not constitute a crime. The guilty mind or evil intent should be visible. 

Stage 2: Preparation

This stage involves the arrangements to execute a crime. One should keep in mind that at this stage, no offence has been committed yet.

As preparation for any purpose is not a crime. But certain acts under the Indian Penal Code can be prosecuted at this stage.

For example- Preparation to wage war against the state and preparation to commit dacoity are punishable at this stage. 

An illustration for this stage is- If ‘L’ purchases a pistol in order to kill his enemy ‘S’ and keeps it in his pocket and does nothing. This is not a crime, this is just a preparation to commit the crime. 

Stage 3: Attempt 

The attempt of crime occurs when preparing for it, is done. The attempt is a direct action towards the committing of an offence.

Most of the sections of the Indian Penal Code makes the attempt of any crime, a punishable offence. 

Stage 4: Completion or Accomplishment

To make it a complete offence or a complete crime, the completion of the crime is very important. If a person attempts to commit a crime and eventually succeed in it, then he will be held guilty.

Through an illustration, we’ll summarize the 4 stages-

Stage 1: Intention ‘X’ makes a plan to kill ‘Y’. 

Stage 2: Preparation Buys a pistol to kill him. 

Stage 3: Attempt X points the pistol at Y and shoots him.

Stage 4: Completion Y is killed because of the gunshot.

Then X will be held guilty of murder.

But if Y is only injured then X will be held guilty of attempt to commit murder.

Scope of Section 307 and Section 308

Section 307 of the Indian Penal Code addresses an attempt to commit murder.

Whoever does the act with guilty intention or knowledge, and the person knows that the act is likely to cause death or has a knowledge that by the act or injury the result will be death, only then he would be held guilty of murder.

For example- Mr. T is planning to murder Mr. P. He collects some toxic chemicals with an intention to mix it in Mr. P’s food. 

Until Mr. T has served the food, he hasn’t committed any offence. 

But if he places the poisoned food on Mr. P’s table, or gives it to Mr. P’s servant, then Mr. T has committed an offence of attempt to murder.

Ingredients of this offence

  • The nature of the act done.
  • Intention or knowledge of committing an offence.
  • The performing or executing of an offence towards it.
  • The act in the ordinary course of nature will cause death.

The two most important ingredients

Knowledge or intention to commit an offence

To decide upon any act done under Section 307, the 3 essentials are- 

  • Nature of an act done. 
  • Intention or knowledge of committing an offence. 
  • Performing or executing of an offence towards it.

The objective of this section is that the intention or knowledge of the accused is significant. 

To constitute an offence of murder, intention or knowledge is necessary.

Without any intention or knowledge, it is difficult to determine whether there was an ‘attempt to murder’.

The performance or executing of an offence towards it

Just wrong and evil intent to do an act is not enough to constitute a crime. To make the act punishable, a physical and voluntary act or omission must be visible. The act done should also be capable of causing death in the ordinary course of nature. 

Punishment under Section 307 of IPC

Imprisonment may extend to ten years. The offender might also be liable to pay a fine.

In an attempt to commit murder, if it results in injury to any person, then the offender shall be imprisoned for a time period that may vary from 10 years to life imprisonment. It may also be accompanied by any amount of penalty.

If any person is already convicted for life imprisonment, hurts someone again with the intent to commit murder, then he will be punished with death penalty.

Section 308 of the Indian Penal Code talks about the attempt to commit culpable homicide. 

Whoever does any act with intention or knowledge,that by such an act he is likely to cause death, he would be held guilty of culpable homicide.

For example- P shoots D as he got provoked by the words of D. If D dies, then P will be held for culpable homicide. Whereas If D does not die then P will be held guilty for an attempt to commit culpable homicide under this section.

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Ingredients of this offence

  • Nature of an act. 
  • Intention or knowledge of the offence.
  • Likely to cause death.
  • Executing their act or performing their act towards it. 
  • Culpable homicide not amounting to murder.

Punishment under Section 308 of IPC

Section 308 states that anyone accused under this Section will be sentenced to either imprisonment which may extend to three years, fine, or both.

If a person is injured in the attempt to commit culpable homicide, then the offender will be sentenced to imprisonment for a term which may extend to seven years, or fine, or with both. 

Is an attempt to commit murder and culpable homicide a bailable and cognizable offence?

Bailable Offences- Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police has the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR. 

Attempt to commit murder and culpable homicide are both non-bailable and cognizable offences. 

Case laws

Liyakat Mian and Ors. V. The State of Bihar, 1973

The four appellants were held guilty under Section 395 of the IPC by the Sessions Court for committing dacoity in the house of Hardeo Mahton. 

During the trial, it was held that appellant No. 2 will also be charged for attempt to commit murder under Section 307 of IPC. While the appellants were committing dacoity, appellant No. 2 fired a gun at Burhan Mahton which injured him gravely.

The Sessions Court held that Burhan Mahton died because he succumbed to the injuries caused by accused No. 2 and the accused No.2 would be held guilty of attempt to murder under Section 307.

The Trial Court convicted the accused under Section 395 for dacoity and under Section 307 for an attempt to murder. He punished all the accused of dacoity and gave them nine years imprisonment. The accused was also sentenced to nine years of rigorous imprisonment. It was held that accused no. 2 will serve both punishments simultaneously.

The four convicts filed for an appeal before the High Court. The High Court upheld the decision of the Trial Court and dismissed their plea.

The Apex Court considered all the evidence and dismissed their appeals.

Bishan Singh & Anr Vs. The State [2007] Insc 1015 (9 October 2007)

Facts of the case

Bishan Singh and Govind Ballabh were convicted for the commission of an offence under Section 147 and 308/149 of the Indian Penal Code. Out of a group of 6, they were the only two who had survived. Harish Bhatt, the plaintiff, was assaulted by the accused with lathis. They also took out Rs.400 out of his pocket. In order to save him, the plaintiff’s brother Ghanshyam intervened. But all of the accused attacked Harish Bhatt with an intention to kill him. As a result, Harish Bhatt did not die but received several grievous injuries because of their attack.

Trial Court

The trial judge convicted the appellant under Section 147 IPC for rioting and under 308/149 of IPC. The court sentenced them to imprisonment for one year under Section 147 IPC and four years under Section 308/149 IPC. 

In his FIR, the informant said they were threatened by the accused. They argued that the act was done with the intention of murder, but the offence was recorded under 147 and 323 of IPC when it should be recorded under Section 308.

The judge after analysing the non-presence of the ingredient of Section 308, convicted them under Section 323 and 325.

Rambabu vs The State Of Madhya Pradesh on 1 April 2019

In this case, the appellant was convicted under Section 307 of India Penal Code. The court sentenced him to five years of imprisonment and charged him of Rs. 5000 as a penalty. 

The court held that the appellant was guilty under Section 307 and the bail will not be granted. The Court also held that injuries on the other person, regardless of their severity, would attract punishment under Section 307. All the injuries will be considered as an offence and the person committing will be held guilty.

Conclusion

After the analysis of Section 307 and 308, it has been well established that not only committing an offence, but attempt is also punishable. But it should be kept in mind that for an attempt to be punishable, the presence of an intention and preparation of the crime is important. 

The need to reform this section arises when an analysis of Section 307 and 308 is done with Section 511. Under Section 511, all the crimes, regardless of the possibility to perform, are considered as an offence, and are punishable under this act. In Section 307 and 308, the intention, knowledge, and means to perform it, are elements the courts deem essential for an act to become a crime. 

For example- If a man threatens to kill another person by using a child’s pop gun. No offence is committed here because it lacks the necessary arrangements or proper means to perform it. But similarly in some situations, if someone fires a gun at something thinking it to be a person where actually there is nobody, then the previous example will be held punishable under Section 511. Whereas the latter example will not be held punishable under Section 307 this is because it is an impossible attempt and the means or proper preparation to commit such offence is missing.

References

  1. http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html
  2. https://legodesk.com/legopedia/section-307-ipc-attempt-to-murder/
  3. https://lawtimesjournal.in/section-511-of-the-indian-penal-code/
  4. http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html
  5. https://devgan.in/ipc/section/308/
  6. https://www.lawnn.com/stages-of-crime/
  7. https://www.lawteacher.net/free-law-essays/criminal-law/the-attempt-and-not-the-deed-confounds-us-law-essay.php

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