Author: Shreya Chandra
INTRODUCTION
Section 307 IPC of Chapter XVI refers to ‘attempt to murder’ and in the section, a lot of weightage has been given to the intention and the knowledge of the accused and the preparation that he takes before committing the crime. How is this intention determined? Is there any hard and fast rule that the courts can apply to decide the intention? And is the nature of injury important to convict a person under this section?
Section 307 Attempt to Murder-
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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.][1]
Illustrations
- a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
- b) 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 ensure.
- c) 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 defined in this section and if such firing he wounds Z, he is liable to the punishment provided by the latter part of this section.
- d) A, intending to murder Z, by poison, purchase poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defines in this section.
Amendment– The words “imprisonment for life” were substituted for the words “transportation for life” by Act 26 of 1955, Section 117 and Sch. (with effect from 1.1.1956). The clause within brackets has been added by the Indian Penal Code Amendment Act, 1870 (27 of 1870).[2]
Attempt to Murder
To justify a conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds.
The section makes a distinction between an act of the accused and its result, if any. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of a person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the knowledge or intention and under circumstances mentioned in the section.
History of Criminal Attempt
The doctrine of criminal attempt, it is commonly supposed, took birth in the court of Star Chamber and after the abolition of the court of Star Chamber, its jurisdiction was taken over by common law courts and this doctrine developed there.[3]
In India, the Penal Code has made extensive provisions at different places for attempt to commit offences punishable according to the nature and gravity of the offence attempted.
Essential Ingredients
To attract the provision of section 307, IPC all the ingredients of murder short of death must exist,-
- that the death of a human being must be attempted.
- that such death was attempted to be caused by, or in consequences of the act of the accused; and
- that such an act must be done with the intention of causing death, or it be done with the intention of causing such bodily injury as-
- the accused knew to be likely to cause death, and
- was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause
- death, or
- such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.[4]
The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonments up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore causes hurt, it is punishable with imprisonment for life.[5]
Element of Liability
To constitute an attempt at common law there must be evidence of some overt act as well as evidence of mens rea. The burden is therefore on the prosecution to show:
- the actus reus, that the accused had done something which in point of law marked the commission of the offences, and
- the mens rea, that in taking this step he was inspired by the intention to go to reach a definite objective[6] (an intent to cause death) which would constitute a specific offence.
The intention or mens rea to kill needs to be proved clearly beyond doubt, for this purpose the prosecution can make use of the circumstances like an attack by dangerous weapons on vital parts of the body however the intention to kill cannot be gauged simply by the seriousness of the injury caused.[7] The intention and the knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under section 307.
A person commits an offence under section 307, IPC where (i) he has an intention to commit murder, and (ii) in pursuance of the intention does an act towards its commission irrespective of the fact whether the act is a penultimate act or not. Thus in order to constitute an offence under section 307, IPC there must be an act done under such circumstances:
- that death might be caused if the act took effect,
- that the act complained of must be capable of causing death in the natural and ordinary course of events.
If the act was not of that description, a person could not be convicted of an attempt to murder under section 307; though the act was done with the intention of causing death was likely in the belief of the prisoner to cause death.[8]
Intention
A held in Om Prakash v. State of Punjab[9], a person commits an offence under Section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is a penultimate act or not.
Om Prakash v. State of Punjab, (1961)[10]
In this case, the Supreme Court reiterated its earlier view and held that the offence under Section 307, IPC is committed, when with the intention to commit murder, the offender does any act or series of acts towards the commission of murder. It is not necessary that the act done must be last or penultimate act to be done for committing murder. Regular and systematic course of starvation (of accused’s wife) which would ultimately result of death amounts to an attempt to murder, even though it is thwarted by a happening not expected by the offender, and even though a further period of starvation was needed before death would result.
The accused-appellant was charged and convicted by the session court under section 307 IPC, for an attempt to murder his wife, Bimla Devi by deliberately and systematically starving her for days together. The High Court on appeal confirmed the conviction.
It was contended that the ingredients of the offence under section 307, IPC are materially different from those of the offence under section 511, IPC. The difference is that for an act to be designated as an attempt to commit offences under section 511, the act need not be the last act towards the commission of the offence, while under section 307 it is the last act alone, which if it becomes effective to cause death, would constitute the offences attempt to murder. In effect, the contention of the appellant was that the act of the accused depriving his wife for food for a certain period does not fall under section 307 IPC, as by itself it could not have caused her death, it is necessary for causing death that the period of starvation should continue for a further period of time.
Rejecting the appellant’s contention, the Apex Court observed that the expression ‘whoever attempts to commit an offence’ in section 511, IPC can only mean whoever intends to do a certain act with such intention or knowledge necessary for the commission of that offence. The same is the meaning of the expression ‘whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder under section 307, IPC.
This simply means that the act must be done with the intention or knowledge required for the commission of the offences of murder. The expression ‘by that act’ does not mean that the immediate effect of the act committed must be death, whether immediately or after a lapse of time.
Act
The act must be done with such knowledge or intention or under such circumstances that if death be caused by the act, the offences of murder will emerge.[11] Initially, it was opined by the Bombay High Court that Section 307 is not exhaustive and the general provision of attempt to commit offences Section 511 may also be pressed into action to punish attempt to murder cases where the act of the accused did not result in any injury to the victim or that the act, in fact, was not sufficient to cause death, although the accused thought otherwise.[12]
Under such circumstances
In Section 307 and 308, the words “under such circumstances” have used to distinguish “attempted” murder from “attempted culpable homicide not amounting to murder”. An offence under Section 307 can be committed where there is no intention is proved but only knowledge the act is imminently dangerous that it must in all probability cause death and that an offence under Section 308 can be committed where there is no intention proved but only the knowledge of the offender that he is likely to cause death by the act.
In so far as the words “attempt” is used in marginal notes to section may be held to connote intention but it should not receive weight in construing the section itself.
Sarju Prasad v. State of Bihar (1965)[13]
The brief facts of the present case were that on February 23, 1961, Madan Mohan Sinha and Shankar Prasad Srivastava were attacked while they were passing through the Dhaaiman Chowl at about 01:30 p.m. by Sushil Chand Jain with churra (knife), as a result of which Madan Mohan and Shankar Prasad sustained grievous hurt and that these injuries were inflicted upon them by Sushil Chand Jain with such intention ort knowledge and under such circumstances that if they had resulted in death the offence would have been that if murder, and thus, the offence would fall under section 307, IPC.
In the above-mentioned case, the Supreme Court held that mere fact that the injury actually inflicted did not wholly cut any vital organ of the injured is not by itself sufficient to take the act out of the purview of section 307, IPC. But the prosecution must establish that his intention was one of the three kinds mentioned in clause 1 to 3 of section 300, IPC. The state of mind of the accused has to be deduced from the surrounding circumstances and the motive would be relevant circumstances.
Punishment and Procedure
Under section 307 if the act is done with the intention or knowledge and under such circumstances that of the offender caused death he would be guilty of murder, the punishment is imprisonment up to 10 years and fine and if hurt is caused to any person the punishment is imprisonment for life or lesser imprisonment i.e. imprisonment up to 10 years. Attempt to commit murder by a life convict under such intention may be punishable with death.
The offence is cognizable, non-bailable, non-compoundable and triable by a Court of Session.
CONCLUSION
After looking at the judgments of different cases, it can be seen that section 307 Indian Penal Code, 1860 is confounding in so far as the premise of the conviction of accused is concerned. There is a common ingredient which is required for the conviction under this section and that element is “intention” along with the “knowledge” and the ramifications of the act done. Every court in all cases concurs that the intention to commit murder and the preparation for the act must be there. Anyway, the element where the courts vary with one another is the matter of proving the intention in the case. The distinction being that courts express that to prove the intention of the accused, the nature of the damage, the nature of the weapon used, readiness considered are taken in account, surprisingly the courts touch the base at various ends with respect to these realities. That is now and again the courts have to decide that regardless of whether the weapon utilized was unsafe yet caused a basic injury, there would be no conviction under section 307 and for another situation the court decides that regardless of whether no damage is caused the blamed can be put if the intention to kill is proved. This is contradicting in nature. The scrutinizing of the protected legitimacy of this section was a real issue which was settled by a basic answer by the Andhra Pradesh High Court. The conclusion that we can make is that there is no fixed rule about the procedure of proving the intention of the charged, that may change from case to case and it is the duty of the judge to take discernment of the certainties presented before him and choose the intention of the accused and it is the intention which matters the most in conviction. The idea of the injuries, weapons used are simply the clues that our judicial system uses to reach to a decision about the intention of the convicted person.
[1] Section 370, Indian Penal Code, 1860.
[2] Indian Penal Code, N.D.Basu, 11th Edition.
[3] Sayre History of Criminal Attempts, (1927-28) 41 Harvard LR 821-859.
[4] Chimanbhai Jagabhai Patel vs. State of Gujarat, AIR 2009 SC 3223: (2009) 11 SCC 273.
[5] Pasupuleti Siva Ramakrishna Rao v. State of Andhra Pradesh, 2014 (2) SCALE 417: (2014) 5 SCC 369.
[6] R. v. Linnekar, (1995) 3 All ER 69: 1995 QB 250: (1995) 2 WLR 237 CA.
[7] Sarju Prasad vs State of Bihar.AIR 1965 SC 843
[8] R. v. Cassidy, (1867) 4 BHC (Cr C) 17.
[9] AIR 1961 SC 1782: (1961) 2 Cri LJ 848: (1962) 2 SCR 254.
[10] AIR 1961 SC 1782: (1962) 2 SCR 254: (1961) 2 SCJ 189: (1981) 2 Cr LJ 848.
[11] Rekha Mandal v. State of Bihar, 1968 SCD 208: 1967 Cri App R 108.
[12] R v. Francis Cassidy, (1867) 4 Bom HCT (Cri) 17.
[13] AIR 1965 SC 843: 1965 (2) SCJ 126: (1965) 1 SCWR 284: (1965) 1 Cr LJ 766.
About the Author: Shreya is a 2017-22 batch student at Gujarat National Law University, Gandhinagar.
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