Section 308 IPC: Attempt to Commit Culpable Homicide
Section 308 of the Indian Penal Code, 1860 dealt with an attempt to commit culpable homicide not amounting to murder. The provision applied where a person performed an act with such intention or knowledge and in such circumstances that, had death resulted, the person would have been guilty of culpable homicide not amounting to murder.
What was Section 308 IPC?
Section 308 criminalised an unsuccessful attempt to commit culpable homicide not amounting to murder. Its application depended principally on the accused's intention or knowledge, the act performed in pursuance of that state of mind, and the circumstances in which the act occurred.
The provision has to be understood with Section 299 IPC, which defined culpable homicide. The central question under Section 308 was whether, if the act had caused death, the accused would have been guilty of culpable homicide not amounting to murder.
Text of Section 308 IPC - 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.
Essential ingredients of Section 308 IPC
For the offence of attempt to commit culpable homicide to be established, the following matters were material:
- An act must be done: there must be conduct going beyond mere intention or preparation and directed towards commission of the contemplated offence.
- Requisite intention or knowledge: the act must be accompanied by the intention or knowledge necessary for culpable homicide.
- Relevant circumstances: the act must occur in circumstances in which, if death resulted, the accused would be guilty of culpable homicide not amounting to murder.
- Death must not have resulted: Section 308 concerns an attempt. If death actually results, liability has to be examined under the provisions governing the completed homicide.
Meaning of intention or knowledge under Section 308
Section 308 did not punish every assault or every act causing injury. The prosecution had to establish the particular intention or knowledge contemplated by the provision. That mental element could be inferred from the totality of the circumstances, including the nature of the act, weapon or means used, part of the body targeted, force employed, nature of injuries, motive, words spoken and conduct of the accused.
Accordingly, the mere fact that a person suffered an injury, even a serious injury, did not by itself establish Section 308. Conversely, actual hurt was not essential to the basic offence if the necessary intention or knowledge and an act amounting to an attempt were otherwise established.
Section 299 IPC and culpable homicide
Under Section 299 IPC, culpable homicide involved causing death by doing an act with one of the specified mental states: intention to cause death; intention to cause such bodily injury as is likely to cause death; or knowledge that the act is likely to cause death. Section 308 dealt with an attempt made with the relevant criminal state of mind in circumstances where the completed offence would be culpable homicide not amounting to murder.
Statutory illustration to Section 308 IPC
Illustration: A, on grave and sudden provocation, fires a pistol at Z under such circumstances that, if A thereby caused death, A would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in Section 308.
The illustration demonstrates why the legal character of the intended completed offence matters. The hypothetical death would amount to culpable homicide not amounting to murder; therefore the unsuccessful attempt falls under Section 308 rather than Section 307.
Punishment under Section 308 IPC
| Situation | Punishment |
|---|---|
| Attempt to commit culpable homicide where hurt is not caused | Imprisonment of either description up to 3 years, or fine, or both. |
| Hurt is caused by the act | Imprisonment of either description up to 7 years, or fine, or both. |
Is injury necessary for Section 308 IPC?
No. The first part of Section 308 did not require actual hurt. It punished the attempt where the requisite intention or knowledge and circumstances were proved. Where hurt was actually caused by the act, the second part provided a higher maximum term of imprisonment.
Difference between Section 307 and Section 308 IPC
| Section 307 IPC | Section 308 IPC |
|---|---|
| Attempt to commit murder. | Attempt to commit culpable homicide not amounting to murder. |
| If death had resulted, the act would constitute murder. | If death had resulted, the act would constitute culpable homicide not amounting to murder. |
| The basic punishment could extend to 10 years and fine; where hurt was caused, imprisonment for life could be imposed. | The basic punishment could extend to 3 years, or fine, or both; where hurt was caused, imprisonment could extend to 7 years, or fine, or both. |
The distinction therefore did not depend merely on whether an injury was serious. It depended on the intention or knowledge and circumstances that would determine the character of the offence if death had actually resulted. See also Section 307 IPC - Attempt to Murder.
Preparation and attempt
A criminal intention standing alone is not an attempt. Preparation ordinarily involves arranging the means for commission of the offence. An attempt arises when, after preparation and with the requisite criminal intention or knowledge, the person performs an act towards commission of the offence. The act need not necessarily be the final possible step before completion, but it must have moved beyond mere preparation into execution of the criminal design.
Important points about Section 308 IPC
- The offence required proof of the requisite intention or knowledge; negligence alone was not sufficient.
- Actual hurt was not necessary to constitute the basic attempt.
- If hurt was caused, the maximum imprisonment increased from three years to seven years.
- The nature and location of injury were relevant circumstances but were not the sole legal test.
- The provision had to be distinguished from Section 307 IPC by asking what offence would have resulted if death had occurred.
- Each case depended on its particular facts, including the act, circumstances and proved mental element.
Legal note: This page describes the Indian Penal Code position immediately before commencement of the Bharatiya Nyaya Sanhita, 2023. For an actual case, the date of the alleged conduct and applicable saving or transitional provisions should be considered.