Attempt to Commit Culpable Homicide in India

An Analysis of Attempt to Commit Culpable Homicide under the Indian Penal Code, 1860

I. Introduction

The Indian Penal Code, 1860 (IPC) meticulously defines and penalizes various offences against the human body. Among these, homicide offences are of paramount significance. Culpable homicide, defined under Section 299 IPC, forms the genus for unlawful killings, with murder under Section 300 IPC being its aggravated species.[1] The IPC not only punishes completed offences but also penalizes attempts to commit them, recognizing the culpability inherent in acts that demonstrate a criminal resolve and pose a societal danger. Section 308 IPC specifically addresses the offence of 'attempt to commit culpable homicide'. This article seeks to provide a comprehensive analysis of this provision, delving into its constituent elements, the requisite mens rea and actus reus, and its interpretation by the Indian judiciary. It will further distinguish this offence from related provisions such as attempt to murder (Section 307 IPC) and offences of causing hurt.

II. Conceptual Framework: Culpable Homicide and Criminal Attempts

A. Culpable Homicide under Section 299 IPC

Section 299 of the IPC defines culpable homicide as causing death by doing an act with one of three possible mental states: (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that the act is likely to cause death.[2] The Supreme Court in Anda And Others v. State Of Rajasthan emphasized that intent and knowledge, as ingredients of Section 299, "postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence."[3] Culpable homicide becomes murder under Section 300 IPC if the act meets further specified criteria of intention or knowledge, subject to certain exceptions.[1] What remains of culpable homicide after excluding the specific characteristics of murder is culpable homicide not amounting to murder, punishable under Section 304 IPC.[4]

B. The Doctrine of Attempt in Indian Criminal Law

An attempt to commit a crime is generally understood as an act done with intent to commit that crime, carried beyond mere preparation, but short of actual commission.[5] The Supreme Court in Koppula Venkat Rao v. State Of A.P. noted that "mere intention to commit an offence or preparation made for its commission is not enough to constitute an offence."[6] There must be an overt act directed towards the actual commission of the offence. In State Of Maharashtra v. Mohd. Yakub And Others, concerning an attempt to smuggle, the Court held that for an attempt, "there must be overt acts indicating a clear intention to commit the offence" and these actions must be "sufficiently connected to the completion of the offence."[7] Similarly, in Abhayanand Mishra v. Tate Of Bihar, the Court, dealing with an attempt to cheat, stated that an attempt involves "any act towards committing an offense, with the necessary intention... even if the offense is not completed... once the application was sent... he had embarked on the path of committing the offense."[8] Section 511 IPC is the general provision for punishing attempts to commit offences punishable with imprisonment, where no express provision is made for the punishment of such attempt. However, specific offences like attempt to murder (Section 307) and attempt to commit culpable homicide (Section 308) have their own dedicated provisions.

Crucially, the Supreme Court in Om Prakash v. State Of Punjab (1961) clarified that an act in an attempt "need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing such offence."[9] This principle applies to Section 308 as well.

III. Section 308 IPC: Attempt to Commit Culpable Homicide

A. Statutory Language and Essential Ingredients

Section 308 IPC reads: "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."

The essential ingredients of an offence under Section 308 IPC are:

  1. The accused did an act.
  2. The act was done with the intention or knowledge that if it caused death, it would amount to culpable homicide not amounting to murder.
  3. The act was done under such circumstances that if death had been caused, the accused would be guilty of culpable homicide not amounting to murder.

B. Mens Rea: Intention or Knowledge

The cornerstone of Section 308 IPC is the specific mens rea – the intention or knowledge referable to culpable homicide not amounting to murder as defined in Section 299 IPC. This typically aligns with clauses (b) or (c) of Section 299: an intention to cause such bodily injury as is likely to cause death, or knowledge that the act is likely to cause death. The Supreme Court in Bishan Singh And Another v. State highlighted the necessity of proving this intention or knowledge for a conviction under Section 308 IPC.[10]

In Om Prakash v. State Of Punjab (1961), the Court drew a distinction: "The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence."[9] For Section 308, the accused must intend to do an act with the intention or knowledge that such an act is likely to cause death (as per Section 299), but not necessarily meeting the higher culpability thresholds of murder (Section 300). The Delhi High Court in Shiv Singh v. State observed that intention is a question of fact gathered from the acts committed, and knowledge means awareness of the consequences of the act.[11] In Shamsher Khan v. State (Nct Of Delhi), the Supreme Court, while acquitting the accused of charges under Section 308 for manufacturing bombs, emphasized that the prosecution must establish that the act was done with the knowledge that such act *by itself* was likely to cause death.[12]

C. Actus Reus: The Nature of the Act

The actus reus for Section 308 IPC is "any act" done in furtherance of the aforementioned intention or knowledge. This act must transcend mere preparation and be a step towards the commission of culpable homicide.[7], [8] As established in Om Prakash v. State Of Punjab (1961), the act need not be the penultimate one.[9]

A critical aspect highlighted in Shiv Singh v. State is that "the words ‘if he by that act caused death’ used in Section 308 of the Code imply that the act committed by the accused must be capable of causing death."[11] In that case, throwing an injured person behind bushes to screen an offence of rash driving was not deemed an act capable of causing death under Section 308. The actual causing of hurt is not a prerequisite for an offence under Section 308, though if hurt is caused, the punishment can be enhanced.[13] The Supreme Court in Sunil Kumar v. N.C.T Of Delhi And Others clarified that "An attempt of that nature may actually result in hurt or may not."[14] The nature of injuries, if any, can be a relevant circumstance in determining intention, but is not conclusive.[15] The principle from Maragatham Alias Lakshmi v. State, where an intervening accident caused death before the accused's act could, suggests that if the chain of causation is broken but the actus reus for attempt is complete, a conviction for attempt may still stand.[16]

IV. Judicial Interpretation and Application

A. Distinguishing Attempt to Commit Culpable Homicide (S.308) from Attempt to Commit Murder (S.307)

The distinction between Section 307 IPC (attempt to murder) and Section 308 IPC lies primarily in the degree of mens rea. Section 307 requires an intention or knowledge that, if death were caused, the offence would be murder under Section 300 IPC. Section 308, conversely, requires an intention or knowledge referable to culpable homicide not amounting to murder under Section 299 IPC. In Sarju Prasad v. State Of Bihar, the Supreme Court, while dealing with a charge under Section 307, held that mere infliction of injury to a vital part does not automatically bring the act under Section 307; it requires establishing an intent or knowledge that death could be a likely outcome qualifying as murder.[17] This reasoning applies analogously to distinguish the intent for Section 308. The Kerala High Court in John Alias Eunjueutty v. State Of Kerala reiterated that Section 307 requires that the act must be done with such intention or knowledge that if death is caused, the offence of murder will emerge.[18] In Sharda Nand v. State Of Punjab, the Punjab & Haryana High Court converted a conviction from Section 307 to Section 308 IPC, finding that in a sudden fight, the intention to commit murder was absent, but an attempt to commit culpable homicide was made out.[15]

B. Distinguishing Attempt (S.308) from Causing Hurt (Ss. 323, 324, 325, 326 IPC)

Offences of causing hurt (simple or grievous) are distinct from an attempt to commit culpable homicide. Section 308 IPC focuses on the intention or knowledge related to causing death, not merely on the injury inflicted. The Supreme Court in Sunil Kumar v. N.C.T Of Delhi And Others stated that offences under Section 308 and those for hurt are "qualitatively different."[14] The High Court in that case had erroneously reduced a charge under Section 308 IPC to Section 323 IPC. The Delhi High Court in P.K. Ghosh v. State Another, citing Sunil Kumar, affirmed that "Merely because the injury inflicted in the incident was simple in nature, it did not absolve the accused from the charge under Section 308 IPC."[13] While the nature of the injury, the weapon used, and the part of the body targeted are relevant factors, they are primarily indicative of the underlying intent or knowledge regarding the likelihood of causing death.[17]

C. Evidentiary Considerations

Proving the requisite intention or knowledge for Section 308 IPC is often a matter of inference from the facts and circumstances of the case. This includes the nature of the act, the weapon used (if any), the manner of its use, the part of the body targeted, the severity of injuries (if caused), any prior enmity, and the conduct of the accused.[10], [11], [12] The prosecution must establish circumstances from which a court can reasonably infer that the accused acted with the specific mens rea that, had death ensued, they would have been guilty of culpable homicide not amounting to murder.

V. Analysis of Specific Scenarios from Case Law

The application of Section 308 IPC is highly fact-dependent. In Sunil Kumar v. N.C.T Of Delhi And Others, the Supreme Court restored a charge under Section 308 IPC, emphasizing that the High Court erred in quashing it based on the view that the injuries did not require hospitalization, as the core issue is the attempt to commit culpable homicide, which may or may not result in actual hurt.[14]

Conversely, in Shiv Singh v. State, the Delhi High Court found Section 308 IPC not applicable where the accused, after an accident, threw the injured victim behind bushes. The court reasoned that the act was intended to screen the accused from the offence of rash and negligent driving, not to commit culpable homicide, and the act itself was not intrinsically capable of causing death in the context of Section 308.[11]

In Shamsher Khan v. State (Nct Of Delhi), the Supreme Court set aside a conviction under Section 308 IPC for manufacturing bombs because the prosecution failed to prove that the mere act of manufacturing bombs was done with the knowledge that it was likely to cause death, or that the appellant had knowledge that by such manufacturing, death would possibly be caused without any further intervening act.[12] This underscores that the act itself, coupled with the specific knowledge, must point towards culpable homicide.

The Allahabad High Court in Bablu And Another v. State Of U.P. acquitted an appellant under Section 308 IPC where, despite the accused possessing a sharp-edged weapon, no injury was caused by it, and the court found a lack of intention or knowledge to commit culpable homicide.[19]

VI. Conclusion

Section 308 of the Indian Penal Code, 1860, which penalizes the attempt to commit culpable homicide not amounting to murder, plays a crucial role in addressing acts that endanger human life, even if death does not result. The provision requires a careful assessment of both the actus reus – an act beyond mere preparation and capable of leading to culpable homicide – and the specific mens rea – an intention to cause such bodily injury as is likely to cause death, or knowledge that the act is likely to cause death. Judicial pronouncements have consistently emphasized that the actual causing of injury is not determinative; rather, it is the underlying criminal intent or knowledge directed towards an act that could result in culpable homicide that forms the crux of the offence.

The distinction between Section 308 IPC and related offences like attempt to murder (Section 307 IPC) or offences of causing hurt (Sections 323-326 IPC) hinges on the precise nature and degree of this mens rea. Courts must meticulously analyze the evidence in each case to ascertain whether the prosecution has proved beyond reasonable doubt that the accused's actions, if they had resulted in death, would have constituted culpable homicide not amounting to murder. This nuanced approach ensures that the law is applied justly, holding individuals accountable for dangerous acts that fall short of completed homicide but nevertheless demonstrate a culpable disregard for human life.

VII. References