Revisiting the Jurisprudence on Charges under Section 308 IPC

Revisiting the Jurisprudence on Charges under Section 308 of the Indian Penal Code

I. Introduction

Section 308 of the Indian Penal Code, 1860 (“IPC”) penalises an attempt to commit culpable homicide not amounting to murder. Although conceptually placed between the offences of simple hurt and attempted murder, its practical application has generated considerable controversy. Courts are routinely asked to determine whether the facts alleged justify a charge under Section 308 or a lesser charge under Sections 323–326 IPC, or a graver charge under Section 307 IPC. This article critically analyses the statutory text, leading Supreme Court and High Court authority, and pertinent procedural issues surrounding the framing, alteration, and sustenance of a charge under Section 308 IPC.

II. Statutory Framework

  • Section 308 IPC: “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…”
  • Section 511 IPC: Provides generic punishment for attempts where no specific provision exists. Section 308, however, is a self-contained attempt provision for culpable homicide not amounting to murder.
  • Sections 299 & 300 IPC: Define culpable homicide and murder, supplying the requisite mens rea benchmarks.

III. Essential Ingredients

The Supreme Court in Om Prakash v. State of Punjab[1] distilled three cumulative elements:

  1. Accused must possess intention or knowledge that his act is likely to cause death and thereby constitute culpable homicide not amounting to murder;
  2. There must be an overt act towards commission — it need not be the penultimate act;[2]
  3. The result (hurt/no hurt) is immaterial; the focus is on the quality of the act and the mens rea.

Consequently, the gravity of injury, though evidentially relevant, is not determinative. The emphasis lies on whether the act, judged objectively, was potentially lethal if carried to fruition.

IV. Judicial Elaboration of Mens Rea

A. Supreme Court

  • Sunil Kumar v. NCT of Delhi[3]: Clarified that Section 308 covers attempts that may result in hurt or none at all; qualitative distinction exists between Section 308 and the hurt provisions.
  • Shoeyb Raja v. State of M.P.[4]: Reaffirmed that bodily injury capable of causing death is not sine qua non; intent coupled with an overt act suffices.
  • State of M.P. v. Saleem (cited in Kashiram) recognises proportional sentencing premised on societal abhorrence of violent attempts.

B. High Courts

  • Hanif Usmanbhai Kalva v. State of Gujarat[5]: Acquittal merely on the ground of simple injuries was reversed; adequacy of injuries is not a valid defence when lethal intent is inferable.
  • Sunil v. State (NCT of Delhi)[6] & Tilak Raj v. State of H.P.[7]: Upheld charges where stones/rods were used on the victim’s head, a vital part, evidencing lethal intent.

V. Threshold for Framing a Charge (Ss. 227–228 CrPC)

At the charging stage the court must enquire whether a prima facie case exists, without undertaking meticulous evidence evaluation (Amit Kapoor v. Ramesh Chander[8]). Decisions consistently hold that:

  • Where allegations disclose use of dangerous weapons on vital parts, Section 308 should ordinarily be invoked (Hasin Khan v. State of Rajasthan[9]).
  • Conversely, where injuries are demonstrably simple and mens rea is doubtful, courts may refuse or quash a Section 308 charge (Abzal Ahmad v. State of U.P.[10]).

VI. Alteration of Charge (S. 216 CrPC)

The power is wide but evidence-dependent. In Suman v. State of U.P.[11] the Allahabad High Court declined to convert Section 308 to Section 307 mid-trial for want of additional material beyond that considered at the original framing. Conversely, Jagmohan v. State of U.P.[12] compelled addition of Section 308 when trial evidence revealed head injuries “sufficient in the ordinary course to cause death”.

VII. Inter-se Distinction: Sections 307 & 308 IPC

Both provisions penalise attempts, yet differ in the ultimate felony intended:

Provision Ultimate Offence Intended Sentence Illustrative Authority
Section 307 Murder (S. 300 IPC) Imprisonment up to life State of M.P. v. Kashiram[13]
Section 308 Culpable homicide not amounting to murder (S. 299 read with 304) Up to 10 years; life if hurt caused Om Prakash[1]; Sunil Kumar[3]

The distinction operates on the degree of mens rea. Where intention to kill is absent yet a potentially fatal blow is delivered, Section 308 is the appropriate charge.

VIII. Procedural Incidents: Bail and Revision

  • Bail: Although Section 308 is non-bailable, High Courts have recognised that an accused already on bail for lesser offences may continue on the same bonds when Section 308 is added (Karan Singh v. State of U.P.[14]).
  • Revisionary Hearing: The accused has limited locus at the stage of complaint restoration or dismissal (Gurdeep Singh v. State of Haryana[15]); however, once cognisance is taken, the right to be heard on framing/alteration of charge crystallises.

IX. Evidentiary Considerations

A. Nature of Weapon and Seat of Injury

Use of a scissor (Mahender Singh v. State (NCT)[16]) or iron rod on the back of the head (Sunil[6]) has been treated as indicative of lethal intent.

B. Medical Opinion

While not conclusive, a doctor’s statement that the injury was “sufficient to cause death if uncontrolled” powerfully supports a Section 308 charge (Jagmohan[12]).

C. Cross-Cases & Defensive Evidence

Existence of a counter-case does not ipso facto negate the prosecution’s case (Hasin Khan[9]); the focus remains on the prima facie elements against the accused.

X. Policy Considerations

Indiscriminate use of Section 308 may dilute its deterrent value, whereas undue reluctance may embolden violent conduct. Judicial vigilance at the charging stage, coupled with the flexibility of Section 216 CrPC, strikes a balance between the rights of the accused and societal interest in controlling violent attempts.

XI. Conclusion

Section 308 IPC occupies a nuanced space within the Indian criminal law landscape. Jurisprudence underscores that the mens rea and the potential lethality of the act — not the resultant injuries alone — govern its invocation. Courts must guard against both over-inclusion and under-inclusion by applying settled principles from Om Prakash, Sunil Kumar, and subsequent authorities. Procedural safeguards under the CrPC permit course-correction through alteration of charge and revisionary oversight, ensuring that only conduct truly meriting the stigma of a Section 308 prosecution is subjected to it.

Footnotes

  1. Om Prakash v. State of Punjab, 1961 SCC OnLine SC 72.
  2. See also Shoeyb Raja v. State of M.P., 2024 SCC OnLine SC.
  3. Sunil Kumar v. NCT of Delhi, (1997) SCC OnLine SC – order quashing High Court’s dilution of Section 308.
  4. Shoeyb Raja v. State of M.P., 2024 SCC OnLine SC (para 11).
  5. Hanif Usmanbhai Kalva v. State of Gujarat, 2015 SCC OnLine Guj 3884.
  6. Sunil Petitioner v. State (NCT of Delhi), 2012 SCC OnLine Del 1410.
  7. Tilak Raj v. State of H.P., 2011 SCC OnLine HP 798.
  8. Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460.
  9. Hasin Khan v. State of Rajasthan, 2011 SCC OnLine Raj 1112.
  10. Abzal Ahmad v. State of U.P., 2010 JIC 3 192 (All).
  11. Suman v. State of U.P., 2024 SCC OnLine All.
  12. Jagmohan v. State of U.P., 2014 SCC OnLine All 81626.
  13. State of M.P. v. Kashiram, (2009) 4 SCC 26.
  14. Karan Singh v. State of U.P., 2005 SCC OnLine All 614.
  15. Gurdeep Singh v. State of Haryana, 2001 SCC OnLine P&H 121.
  16. Mahender Singh v. State (NCT of Delhi), 2010 SCC OnLine Del 885.