Case Title: Vijay Mishra v. State Of U.P. Thru. Secy. Home Deptt. Lko. And Another
The Allahabad High Court in the present case, explained the essential ingredients to constitute an offence punishable under Section 308 IPC [attempt to commit culpable homicide not amounting to murder].
For convenience and clarity, the Court divided the sections into 2 parts, The essential ingredients of the first part of Section 308 I.P.C. are -
(i) a person does any act
(ii) with intention or knowledge to commit culpable homicide not amounting to murder,
(iii) that the offence was committed under such circumstances that if by that act the accused caused death, he would be guilty of culpable homicide not amounting to murder.
The Court further observed that, “The first part of Section 308 does not make any inference to any hurt being caused by the accused persons and, therefore, any hurt being caused is not an essential condition to attract the provisions of Section 308 I.P.C. The second part of Section 308 provides that if hurt is caused to any person by an act which falls within the purview of the Section, the accused shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
A combined reading of both the parts of Section 308 clarifies that the legislative mandate in Section 308 is that 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, but inspite of the effort made by him he completely fails to achieve his goal of committing culpable homicide not amounting to murder, he shall still be held guilty of committing an offence under Section 308 I.P.C. and he shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. However, if by his attempt hurt is caused to any person by such act, shall yet be guilty of committing an offence under Section 308 I.P.C. and in such a situation a higher punishment of imprisonment of either description for a term which may extend to seven years, or fine, or both will be inflicted upon the accused.
Dismissing the revision petition, the Court held that whether the accused has committed the offence punishable under Section 308 I.P.C. or not and if yes, whether his act would fall under the first part of Section 308 or in the second part thereof, are matters to be decided during the trial and at this stage only this much can be said that the accused has to face trial for the offence under Section 308 I.P.C., which is triable by a Court of Sessions and, therefore, the case cannot be transferred to a Court of a Magistrate.