According to section 308 of Indian penal code, 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.

Offence	Punishment	Cognizance	Bail	Triable
Attempt to commit culpable homicide	3 Years or Fine or Both	Cognizable	Non-Bailable	Court of Session
If such act causes hurt to Any person	7 Years or Fine or Both	Cognizable	Non-Bailable	Court of Session

Offence : Attempt to commit culpable homicide

Punishment : 3 Years or Fine or Both

Cognizance : Cognizable

Bail : Non-Bailable

Triable : Court of Session

Offence : If such act causes hurt to Any person

Punishment : 7 Years or Fine or Both

Cognizance : Cognizable

Bail : Non-Bailable

Triable : Court of Session

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Indian Law, from the word go, had taken note of this uncivil brutality that humans routinely (and without remorse) unleash on each other and in its wisdom had clearly identified under the Indian Penal Code, 1860 (“IPC”), violent behaviours – provoked or planned – as criminal in nature and hence liable to punishment.

Attempt to Culpable Homicide is one such offence which must be taken closer note of.

Given its similarity with the offence of Attempt to Murder it is all the more important that we understand when an assault is indeed an Attempt to commit Culpable Homicide and not an Attempt to Murder.

WHAT IS 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.

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UNDERSTANDING SECTION 308, IPC.

To put it simplistically, an Attempt to commit Culpable Homicide is an act of committing Culpable Homicide short of death i.e., all the legal ingredients which go into establishing the guilt for Culpable Homicide also go into establishing the guilt for an Attempt to commit Culpable Homicide except the ultimate causation of death.

In other words, if the person Attempting to commit Culpable Homicide is successful in his efforts, it leads to the Culpable Homicide of the victim. But if because of the intervention of external factors (which are out of the power and control of the offender) he couldn’t succeed in his efforts of putting the victim to death, it amounts to Attempt to commit Culpable Homicide on his part.

To understand what is Culpable Homicide? Read here.

- Culpable Homicide takes place when the offender kills the victim.

- Attempt to commit Culpable Homicide takes place when the offender tries to kill the victim but fails at it.

Making an Attempt to commit Culpable Homicide is considered almost as grave as committing Culpable Homicide itself.

In order to understand Section 308, IPC better, let us imagine the following –

A, on grave and sudden provocation (criminal mind), fires a pistol at Z (criminal act), under such circumstances that if he there by caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence under Section 308, IPC.

UNDERSTANDING CRIMINAL LIABILITY UNDER IPC

Generally, for any criminal liability to arise i.e., for a person to be held guilty for any offence under the IPC, it is important that he/she fulfils the essential criminal ingredients or criteria stipulated under IPC for that offence.

Broadly, IPC defines offences by laying down two of its essential components –

a. Actus Reus i.e., the criminal act which the accused must have compulsorily performed.

AND

b. Mens Rea i.e., the criminal mind which the accused must have compulsorily entertained while performing the above-stated criminal act.

It is when the accused performs a criminal act under the influence of a criminal mind, that he can be said to have committed the offence in the eyes of law.

In other words, the criminal act should co-exist with a criminal mind in order for an act to be an offence and for the criminal liability to arise thereunder.

Consult: T op Criminal Lawyers in India

WHEN CAN A PERSON BE HELD GUILTY UNDER SECTION 308, IPC?

For a person to be held guilty for the offence of Attempt to commit Culpable Homicide under Section 308, IPC it is important for the prosecution to compulsorily prove the following:

A. Nature of the criminal act for Attempt to commit Culpable Homicide:

The accused must have committed an act under the following circumstances:

That death might be caused if the act took effect;

AND

That the act must be capable of causing death in the natural and ordinary course of events.

In other words, the act should be of such a nature that if not prevented or intercepted – by extraneous circumstances outside of the offender’s control – it would have ordinarily (and naturally) led to the death of the victim.

If the act was not of the above description, it is not a criminal act for the purpose of Section 308, IPC. Failing such act, a person could not be convicted of the offence of Attempt to commit Culpable Homicide.

B. Nature of the criminal mind for Attempt to commit Culpable Homicide:

The accused must have committed the above criminal act while entertaining either of the following criminal minds (criminal mind for Attempt to commit Culpable Homicide is same as the criminal mind necessary for committing Culpable Homicide):

a) The act must be done with the intention of causing death;

b) The act must be done with the intention of causing such bodily injury as is likely to cause death;

c) The act must be done with the knowledge that he is likely by such act to cause death.

To prove the essential ingredient of say, intention of causing death, the prosecution generally makes use of the circumstances surrounding the offence for inferring intention –

- like shooting a person at a very close range – intention is established;

- like mixing poison in the victim’s food and serving him upfront – intention is established.

C. Performance of the criminal act accompanied by the criminal mind i.e., execution of the offence

While entertaining the above-stated criminal mind (intention or knowledge) the accused must have committed the above-stated criminal act. This would constitute the offence of Attempt to commit Culpable Homicide.

The co-existence of the criminal mind and the criminal act should be proved by the prosecution in order to establish guilt under Section 308, IPC.

D. Additional instances of Attempt to commit Culpable Homicide

There are a set of five situations enumerated as Exceptions under Section 300, IPC (i.e., Murder) which categorically prescribe (specific) instances marking the commission of the offence of Culpable Homicide.

Having said that, apart from the composite fulfilment of the above-stated three conditions which constitute the offence of Attempt to commit Culpable Homicide, the same can also be committed if the act of the offender corresponds with any of the above-mentioned five Exceptions provided it stops short of causation of death.

These Exceptions are:

1. Grave and Sudden Provocation

The act of the offender amounts to Attempt to commit Culpable Homicide if the offender, while being deprived of the ability of self-control by grave and sudden provocation, attempts to cause the death of the person who delivered the provocation or of any other person by mistake or accident.

For example –

Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, but misses the aim. Here A has committed Attempt to commit culpable homicide of Y.

This exception is subject to three exceptions of its own:

a. The provocation should not have been sought voluntarily by the offender as a justification for killing or harming anybody.

b. The provocation should not be caused by an act carried out in accordance with the law or by a public official in the lawful exercise of his powers.

c. The provocation is unrelated to any actions taken in the exercise of one’s right to self-defence.

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2. Right of private defence

The act of the offender amounts to Attempt to commit Culpable Homicide if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and attempts to causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

For example –

Z tries to horsewhip A, but not in a way that causes him serious injury. A pulls a handgun from his pocket. The attack against Z continues. A, believing in good faith that there is no other way to avoid being horsewhipped, aims at Z and fires the gun. However, A misses his aim and Z gets saved. A has committed an Attempt to commit Culpable Homicide.

Before this exception is invoked, it must be established that the accused has the Right to a Private Defence under Sections 96-106 of the IPC.

The question of whether the accused has exceeded his right to private defence will arise only once the existence of the right has been proved. If it seems that the accused does not have the right to a private defence in the first instance, then this provision will not apply.

3. Lawful act of a public servant

The act of the offender amounts to Attempt to commit Culpable Homicide if the offender, while acting as a public servant or assisting a public servant acting for the benefit of public justice, exceeds the powers granted to him by law and attempts to cause death by doing an act that he, in good faith, believes to be lawful and necessary for the proper discharge of his duty as such public servant and without malice toward the person who is killed.

For example –

X, a suspected thief is apprehended by Y, a police officer and is being transported to a railway station. X is able to flee his arrest. Y continues to chase him. Y fires at him in order to re-arrest him. However, the bullet shot by Y grazes past Z, a fireman present at the scene and injures him in the process. Y has committed an Attempt to Culpable Homicide.

4. Sudden conflict

The act of the offender amounts to Attempt to commit Culpable Homicide if the offender attempts to commit death without premeditation in a sudden fight in the heat of emotion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

5. Death with consent

The act of the offender amounts to Attempt to commit Culpable Homicide if the person who is subject to such attempt is beyond the age of eighteen years and suffers or risks death with his consent.

For example –

A and B are two friends in their middle-age. B has been detected with stage IV lung cancer. B has no family to turn to. His health is deteriorating on a daily basis. A is a witness to his dying friend. One day, while B is in tremendous pain, he expresses to A his desire to die and be freed of the pain. B urges A to give him poison and end his life. A mixes in B’s food, baking soda, thinking it to be poison and serves the same, upfront to B. B survives. A has committed Attempt to commit Culpable Homicide of B.

UNDERSTANDING THE ‘INTENTION’ UNDER SECTION 308, IPC

In order to convict a person under Section 308, IPC it is more important to prove the requisite criminal mind – intention or knowledge – of the accused to kill the victim than to prove the ultimate criminal act of killing the victim. In other words, in order to convict a person under Section 308, IPC, the offender’s attempt to kill the victim must arise out of either a specific intention/desire to kill the victim or some knowledge that his act is likely to kill the victim - as is required for the offence of Culpable Homicide not amounting to murder.

According to 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”, he shall be liable to punishment under Section 308, IPC.

The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where injury is inflicted is all taken into consideration to determine the intention of the accused under this section. Therefore, in a case where the accused had a dangerous weapon but he inflicted only minor injuries on the victim showing that he had no intention to kill the victim, the accused will not be convicted under Section 308, IPC. Similarly, where the accused stabs the victim in the stomach near the navel region with a big knife blade in such a manner that it doesn’t kill the victim, the accused would be liable to be punished for an Attempt to commit Culpable Homicide under Section 308, IPC.

However, the nature of the injury is not always the basis to ascertain the intention as a very serious injury need not be necessarily caused in an Attempt to commit Culpable Homicide. In some cases, even if the injury is not grave but has been inflicted with an intention to kill a person, it would be reason enough to convict the accused under Section 308, IPC. Under Section 308, IPC the offence is complete even though the death of the victim does not take place. It will still be a crime under this Section when no harm is inflicted upon the victim. But the Section implies that the act of the accused must be capable of causing Culpable Homicide not amounting to murder. An accused charged under this section cannot be acquitted merely because the injury inflicted on the victim was in the nature of simple hurt.

Thus, without establishing the intention or knowledge (on part of the accused) of the nature required for the offence of Culpable Homicide, an offence of Attempt to commit Culpable Homicide cannot be made out under the Indian Penal Code.

Consult: T op Criminal Lawyers in India

UNDERSTANDING EXECUTION OF THE ACT (I.E. ATTEMPT) UNDER SECTION 308, IPC

A mere malintent to do an act is not enough to hold an individual guilty of a crime.

A physical (and voluntary) action must be visible.

Thus, an attempt to commit the crime must be done in furtherance of the intention in order to hold that action as a crime. For Section 308, IPC to be applied, it is important that the act in the ordinary course should be capable of causing death of another person.

CAN A POLICE-OFFICER MAKE AN ARREST UNDER SECTION 308, IPC WITHOUT WARRANT?

Yes, a police officer can arrest a person suspected to have committed an offence under Section 308, IPC without warrant from the Court (a warrant is a Court-order authorising a police officer to carry out an arrest).

THE OFFENCE UNDER SECTION 308, IPC, BAILABLE?

No, the offence under Section 308, IPC is not bailable.

HOW TO GET BAIL IF CHARGED UNDER SECTION 308, IPC?

Getting bail in a case as serious as an Attempt to commit Culpable Homicide is not an easy task for obvious reasons. The severity of the offence is so much that the crime has been characterized as a non-bailable offence.

In order to get bail in such cases, an accused would require very strong reasons.

Depending on the stage of the case, the accused can either apply for a regular bail after he has been arrested or can ideally apply for an anticipatory bail before the arrest is made. The court will consider various essentials such as antecedents of the accused, his status in the society, the motive for the offence, police charge sheet, etc. After considering all the essentials if the reasons favour accused bail will be granted.

It is crucial to take assistance from an experienced criminal lawyer in cases like these.

REGULAR-BAIL

1.In order to apply for regular bail when one is wrongfully accused under Section 308 IPC, the alleged accused will have to submit an application for bail in the court of Area Magistrate.

2.The court will then send the summons out to the other party and will fix a date for the hearing.

3. On the date of hearing, the court will hear arguments from both sides and would give a decision based on the facts and circumstances of the case.

ANTICIPATORY-BAIL

1. In case the accused has an apprehension of an arrest under Section 308 of the IPC, he or she can also file an application for anticipatory bail with the help of a criminal lawyer.

2.The lawyer will file the anticipatory bail application in the requisite court having the authority to adjudge the particular criminal matter along with a vakalatnama.

3. The court will then notify a public prosecutor about the anticipatory bail application and would ask him to file objections, if any.

4. Thereafter, the court will appoint a date of hearing and after hearing the final arguments of both the parties would give a judgment based on the facts and circumstances of the case.

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IS THE OFFENCE UNDER SECTION 308, IPC, COMPOUNDABLE?

The offence under Section 308, IPC is not compoundable i.e., law does not allow for a compromise to be recorded between the victim and the offender.

It is a serious offence and the law requires that the offender be put to trial and punished.

WHAT IS THE PUNISHMENT PROVIDED UNDER SECTION 308, IPC?

Under Section 308, two kinds of punishments have been stated, depending upon whether, during the attempt, hurt is caused or not.

If no hurt is caused, the offender shall be punished with imprisonment upto 3 years, and if hurt has been caused, he/she shall be punished with imprisonment for a maximum of 7 years.

WHAT TO DO IF INVOLVED IN AN ATTEMPT TO COMMIT CULPABLE HOMICIDE CASE?

A crime as serious as an Attempt to commit Culpable Homicide is a critical case to deal with, both for the victim and the accused.

A person accused under an Attempt to commit Culpable Homicide case can face severe penalties, if convicted. On the other hand, it is equally difficult for the prosecution to prove the charges levied by it against such accused.

This is why it is important for both the prosecution and the defence to thoroughly prepare for the case.

A person involved in such a case must know all his/her rights before and after an arrest. For this purpose, one must take the help of his/her lawyer.

One should also prepare a timeline of events and take it down on a piece of paper so that it is easier to brief the lawyer about the case. This will also help the lawyer to formulate a strategy to successfully conduct the trials and convince the court to adjudge in your favour. The lawyer will be able to guide you on the available defences, pleas and bargains likely to be offered and the expectant result of the trial, depending upon the facts and circumstances of your case.

Further, it is important to have a fair understanding of the law involved in an Attempt to Murder case. One must sit with his/her lawyer and understand the procedure as well as the law governing the case. It is also critical to perform your own research and understand the risks involved and how you can overcome the same.

One must also be aware of the rights of a person if he/she is arrested under Section 308 for an attempt to murder.

The rights that are guaranteed by the Constitution of India and even the Code of Criminal Procedure (CrPC) have been stated below:

1. Right to be informed of grounds of arrest which has been made – Section 50(1) of the CrPC and Article 22(1) of the Constitution of India enforce this right.

2. Right to inform the relatives/ friends – Police officer making arrest has to immediately give the information regarding such arrest and the place where the arrested person is being held to any of his/her friends, relatives or such other persons as may be disclosed or nominated by the arrested person, as per Section 50A of the CrPC.

3. It is also the duty of the police officer to inform the person arrested of his/her rights.

4. Right to be informed of right to bail as per Section 50(2) of the CrPC. The arrested person also has a right to be released on bail, when arrested without warrant for an offence other than a non-cognizable offence.

5. Right to be produced before a magistrate without delay – It is illegal to keep a person in detention for more than 24 hours without the orders of the Magistrate as per Section 56 of CrPC. and Article 22(2) of the Constitution of India. Right of not being detained for more than twenty-four hours is also covered in Section 76 of CrPC.

6. Right to consult a legal practitioner – This right begins from the moment the arrest is made. It is required that the arrested person should contact his lawyer without any delay. This right is also covered under Article 22(1) of the Constitution of India, along with Section 41D of CrPC, and Section 303 of CrPC.

7. Manhandling and Handcuffing – It is illegal to manhandle a person at the time of arrest.

8. Search of arrested person who is female – In case of a women offender only a female police can search another female. The search should be carried out in a decent manner. A male police officer cannot search a female offender. He can however search a woman’s house.

9. Also there exists a right to be examined by a medical practitioner.

10. Arrested person has a right to legal aid and fair trial. Article 39-A states that the government in an effort to secure justice should endeavour to provide free legal aid to people in need.

11. Right to remain silent is also an important right. This has been ensured in CrPC and even the Indian Evidence Act.

12. Right against Handcuffing and Torture.

13. If your personal items are kept by the police, you have a right to receive a receipt for the same so that you can take them later when you are released on bail.

If you have been accused in an attempt to murder case and are preparing your version of events with the lawyer, it is important to be aware of the Attorney-client privilege. This means the statements that are made in confidence to the lawyer/advocate are protected. The attorneys are restricted to share this confidential information that the client shares with him/her. Therefore, being honest and open to your attorney’s questions is the best route of mounting a sound legal defence.

Consult: T op Criminal Lawyers in India

WHAT TO DO IF INVOLVED IN A FALSE ATTEMPT TO COMMIT CULPABLE HOMICIDE CASE?

There may be instances where an individual may have been falsely accused of an Attempt to commit Culpable Homicide. In such cases, the accused must talk to his/her lawyer and explain the entire scenario to him/her without even minor alterations as such changes can have a big impact on the case. You should discuss the case thoroughly with the lawyer, even multiple times if you believe that you were not able to make your lawyer understand some of the technicalities involved in the case earlier. You must also do your own research about the case and prepare yourself accordingly for the trials with the help of your lawyer. You should follow your lawyer’s instructions properly and take advice for things even as minor as your appearance in the court.

WHY DO YOU NEED THE HELP OF A LAWYER FOR A SECTION 308 CASE?

If you are filing or defending your case under Section 308 of the Indian Penal Code, you will need the help of a criminal lawyer. A good criminal lawyer is a prerequisite to ensuring that you are guided properly and in the right direction. A lawyer having substantial experience in handling criminal cases can guide you through the court procedure and can help you prepare a solid defence for your case. He can prepare you for cross-examinations and guide you on how to answer the prosecution’s questions. A criminal lawyer is an expert in dealing with criminal cases knows how to tackle a particular case owing to his years of experience. Having a good criminal lawyer by your side you can ensure a successful result in your case in the minimum time possible.