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Attempt To Murder /Culpable Homicide
Sec. 307. Attempt to Commit Murder - According to Section 307, if a person performs any act with the intention or knowledge that if the act caused death, it would constitute murder, they can be sentenced to up to 10 years in prison and fined.
If the act causes harm to any person, the offender may face either life imprisonment or the aforementioned punishment. If the offender is already serving a life sentence when the act causes harm, they may be subject to the death penalty.
The four illustrations appended to this section make its scope clear:
A shoots at Z with intention to kill him, under such circumstances that if death ensued, A would be guilty of murder and liable to be punished under this section.
A with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence, and if he wounds Z, he is liable to the punishment provided by the latter part of the paragraph of this section.
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 servant to place it on Z’s table. A has committed the offence.
Sec. 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.”
Illustration: A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.
Sections 307 and 308 of the IPC address the offences of "attempt to murder" and "attempt to commit culpable homicide" respectively. Both sections use similar language and should therefore be interpreted similarly.
Determining what constitutes an attempt to commit murder under Section 307 has been a subject of judicial debate. In the case of Reg v Francis Cassidy (1867) Bom HCR 17, it was held that the act must be capable of causing death in the natural and ordinary course of events to constitute an offence under Section 307.
However, this view was later questioned in Emperor v V.B. Gogate (1932) 59 Bom 434, where it was suggested that for an offence under Section 307, the accused must perform an act with such intention and knowledge that, but for some intervening act, it would have amounted to murder.
In this case, despite firing two shots at close range, the accused failed to cause harm due to a defect in the ammunition, yet was held guilty under Section 307.
Under Sections 307 and 308, the offence is complete regardless of whether harmful consequences such as death occur. An "act" also includes illegal omissions.
The court must assess whether the act, regardless of its outcome, was performed with the intention or knowledge specified in the section.
To convict under Section 307, it is not necessary for the injury caused to be sufficient to cause death under normal circumstances. The intention or knowledge is not solely determined by the seriousness of the resulting injury, but by all surrounding circumstances.
Distinction between Sec. 307 and Sec. 511
The exact scope of Sec. 307 and Sec. 511 has been a matter of contention, particularly regarding whether Sec. 511 encompasses all types of punishable attempts under the Code, including attempt to murder under Sec. 307.
According to the Bombay High Court in Reg v Francis Cassidy (1867) Bom HCR 17, Sec. 511 is broad enough to cover various attempts, including those not falling within Sec. 307.
Conversely, the Allahabad High Court in Queen Empress v Nidha (1891) ILR 14 All 38 argued that Sec. 511 does not apply to attempted murder cases exclusively provided for in Sec. 307.
The discrepancy arises from differing interpretations: while Sec. 307 is perceived to require the act to be capable of causing death and to be the last proximate act necessary for the completed offence, Sec. 511 allows for any act in the course of attempt towards the offence's commission.
This controversy was resolved by the Supreme Court's decision in the Om Prakash case. In State of Maharashtra v Balram Bama Patil, 1983 Cr LJ 331 (SC), the Supreme Court clarified that for an attempt under Sec. 307 to be criminal, it need not be the penultimate act; intent coupled with some overt act suffices.
In summary, Sec. 511 serves as a residual provision, applicable when there is no specific provision for a particular attempt under the Code. Since Sec. 307 specifically addresses attempt to murder, it is considered exhaustive, and its scope cannot be diminished by Sec. 511.
Leading Case Laws
Om prakash v. State of Punjab [AIR 1961 SC 1782]: In this case, the appellant was prosecuted under Secs. 307 and 511 for systematically starving his wife with the intention to cause her death. Despite her escape preventing the completion of his plan, the court ruled that his actions constituted an attempt to commit murder under Sec. 307.
The court clarified that an attempt under Sec. 307 occurs when there is intent to commit murder and an act towards its commission, regardless of whether it's the penultimate act.
The court emphasised that the act must be done with the requisite intent or knowledge for murder, regardless of whether death occurs immediately or later. The ruling affirmed that Sec. 511 is not applicable to attempts to commit murder exclusively covered under Sec. 307.
Attempt To Suicide
Sec. 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.”
The essential ingredients of Sec. 309 are:
The person must have been unsuccessful in an attempt to commit suicide.
The person does ‘any act’ towards the commission of suicide.
Suicide is not a crime under the Indian Penal Code, but attempting suicide is punishable. If the attempt is successful and the person dies, they cannot be punished, but if they survive, they face punishment for attempting suicide.
The term 'suicide' refers to the voluntary act of self-inflicted cessation of life, with full awareness of the consequences. Intent is a crucial element.
It's important to note that in cases of attempted suicide, the act must be intentional and not a result of mistake, accident, or intoxication to be punishable under Sec. 309.
Constitutionality of Section 309 IPC
The legality of Section 309 of the Indian Penal Code, which criminalizes attempted suicide, has been debated over the years. While some courts have deemed it unconstitutional, others have upheld its validity. The Supreme Court, in various rulings, has alternately declared it unconstitutional and then reversed its decision.
In recent years, there has been a push towards decriminalizing attempted suicide, with recommendations from the Law Commission of India and judicial pronouncements emphasizing the right to die with dignity. In 2011, the Supreme Court allowed passive euthanasia under certain circumstances, acknowledging the right to die with dignity.
Furthermore, the concept of a "living will" has been introduced, allowing individuals to express their desire for passive euthanasia in case of irreversible vegetative states.
The Supreme Court has emphasised the right to refuse treatment and die without suffering as a fundamental aspect of the right to life and dignity under Article 21 of the Constitution.
Despite these developments, Section 309 remains in force in India. However, there is a growing recognition of the need for compassion and support for individuals experiencing severe stress leading to suicidal tendencies.
The Indian Mental Healthcare Act, 2017, emphasizes providing treatment and rehabilitation rather than punishment for attempted suicide cases, signaling a shift towards a more humane approach.
Leading Case Law
GIAN KAUR v STATE OF PUNJAB [(1996) 2 SCC 648]: The Supreme Court, in a landmark case, addressed the question of whether the right to life under Article 21 includes the right to die, and whether Section 309 of the Indian Penal Code violates constitutional provisions. It was ruled that the right to life does not encompass the right to die, as suicide contradicts the essence of life. The court held that Section 309 is not unconstitutional, stating that any change should be legislated by the appropriate authority.
Another significant case before the Bombay High Court debated the individual's capacity to decide to end their life. The court ruled that the right to live includes the right to die, striking down Section 309 as unconstitutional. However, the Supreme Court, in a subsequent case, reversed this decision, stating that the right to life does not entail the right to die.
The Court emphasised that while the right to life includes the right to live with dignity until natural death, it does not permit unnatural termination of life.
The debate over euthanasia and assisted suicide remains unresolved, with the court maintaining that both practices are unlawful in India and can only be legalized through legislation.
Additionally, the Court clarified that Section 309 is not discriminatory and does not violate Article 14 of the Constitution.
The severity of the provision is mitigated by discretionary sentencing and the possibility of probation, showing compassion towards those convicted under the law.
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