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What is Section 308 under Indian Penal Code?

Introduction:

Section 308 of the Indian Penal Code lays down punishment for “attempt to commit culpable homicide.” To understand “attempt to commit culpable homicide” as provided under Section 308 of IPC, it is important to understand culpable homicide, attempt to commit culpable homicide and its difference from murder.

Culpable Homicide under Section 299 of Indian Penal Code-

Section 299 of Indian Penal Code defines culpable homicide as “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

For example, A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

Culpable homicide may be broadly classified into two classes:

  1. Culpable homicide amounting to murder (Section 300 of Indian Penal Code), and
  2. Culpable homicide not amounting to murder (Exceptions to Section 300 of Indian Penal Code)
  • Culpable homicide amounting to murder-

It is dealt with under Section 300 of IPC, according to which, culpable homicide is murder-

  1. if the act by which the death is caused is done with the intention of causing death or
  2. if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
  3. if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in­flicted is sufficient in the ordinary course of nature to cause death, or
  4. if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

For example, A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Consequently, Z dies. Here, A is guilty of murder, although he may not have intended to cause Z’s death.

  • Culpable homicide not amounting to murder-

It is dealt with under exceptions 1-5 to Section 300 of IPC, according to which, culpable homicide is not murder in certain conditions-

  1. Grave and sudden provocation. However, this provocation should not be sought voluntarily. It should not be given by anything done in obedience of the law and in the lawful exercise of private defence.

For example, Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homi­cide, but A is guilty of murder

  1. Right of private defence of person or property.
  2. A public servant or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law.
  3. Committed without premeditation in a sudden fight in the heat of passion.
  4. When the person, whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

For example, A instigates and voluntarily causes, Z, a person under eighteen years of age to commit suicide. But since Z was a minor, he was incapable of giving consent to his death; A has therefore abetted murder.

If any act committed comes under these five exceptions of Section 300, then it will not be considered as murder, rather culpable homicide not amounting to murder.

In furtherance to this, “attempt to commit” culpable homicide has been covered under Section 308 of IPC, which penalizes its attempt.

Attempt to commit Culpable Homicide under Section 308 of Indian Penal Code-

Section 308 of the Indian Penal Code deals with the attempt to commit culpable homicide and provides punishment for the same. It deals with punishment for attempting to commit culpable homicide under which if the hurt is caused then imprisonment up to seven years or fine or both and if no hurt is caused then imprisonment up to three years or fine or both. The offence under this section is cognizable, non-compoundable and triable by the Court of Sessions.

In Harendra Nath Borah v. State of Assam, the Apex Court stated that Section 308 of IPC is similar to Section 307 of IPC; however, the only difference is that Section 307 of IPC applies to culpable homicide amounting to murder.

“Attempt to commit” a crime can be defined as an act done with an intent to commit that crime, and constituting a part of series of acts which would constitute its actual commission if it were not interrupted. As held in Tukaram Gundu Naik v. State of Maharashtra, when the accused can be ascribed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be punishable under Section 308 of Indian Penal Code.

According to Section 308 of IPC:

“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.”

An illustration is also given to understand the attempt to commit culpable homicide better:

“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.”

In Om Prakash v. the State of Punjab, the Hon’ble Supreme Court stated that to invoke Section 308 of IPC, intention to commit culpable homicide not amounting to murder must be established i.e., it is should be established that if the act had been committed, it would have resulted in culpable homicide and not murder. This can be proved by facts and circumstances of that particular case.

In Ali Zaman v. State, accused used a revolver but it did not result in anyone’s death, it was held that the accused was liable for the attempt to commit culpable homicide; however, if the shot had killed someone, the offence would have been a culpable homicide, which is punishable under Section 304 of IPC. Similarly, in Ajay Singh v. State (Govt. of NCT of Delhi), a bus conductor was held guilty under Section 308 because he pushed the injured out of the moving bus. It was observed that the serious nature of injuries and the place of fall showed that it was not an accident but a deliberate act.

Since the nature and gravity of the offence is huge in the case of culpable homicide, the Code has made a different and explicit provision to punish its attempt under Section 308 IPC instead of dealing with it under Section 511 of IPC, which punishes attempts to commit offences punishable with imprisonment for life or other imprisonments.

Conclusion:

Attempt to commit an offence is different from committing an offence, and therefore, the two acts are penalized and dealt with in different manners. In a similar manner, culpable homicide not amounting to murder and attempt to commit culpable homicide not amounting to murder are dealt in different manners and the two have different punishments as well. Punishment for culpable homicide not amounting to murder is provided under Section 304 of IPC, on the other hand, punishment for its attempt is provided under Section 308 of IPC.

Both Sections 307 and 308 of IPC are similar in nature, as both penalize attempt of offences. Section 307 of IPC deals with the attempt of murder, in a similar manner, Section 308 of IPC deals with the attempt to commit culpable homicide. However, both are on the same footing and have the same wording.

Since both murder and culpable homicide are grievous in nature, they have been put separately from the attempt of other offences as covered under Section 511 of IPC. This has been done to provide more gravity and stringency to the punishments of these offences.

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by Shambhavi Tripathi

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