Attempt to crimes

There are several sections which mention Attempt some of them are produced below.

121. Waging, or attempting to wage war, or abetting waging of war, against the
Government of India1.

Section 121 enlisted in CHAPTER VI deals with the offences against the state, this section
concerns itself with the crime of Waging, or attempting to wage war, or abetting waging of war,
against the Government of India. The section has been subjected to criticism by the judiciary a
number of times. Originally, the words used in the section punished any an act or an attempt of
waging war against the queen which was substituted by the expression “Government of India” 2,
later in the Mohammed Ajmal Mohammad Amir Kasab and Ors. Vs. State of Maharashtra and
Ors.3Supreme court noted that the expression “Government of India” shall mean against the state
or the people of the country.

What is an attempt to wage war?

In the State (NCT of Delhi) v Navjot sandhu @ Afsan guru 4 Hon’ble Supreme court explained
that organizing, or taking part in an insurgence, against the Government of India shall also mean
an act or attempt of war. It further explained that a thin line exists between a terrorist activity and
waging war, it explained that it is the difference in the degree of intent, magnitude of acts done
or attempted to be done would assume if a terrorist insurgency amounted to “waging war”.

There have been many cases where the section has been invoked, in the parliament attack case,
the court explained that the factor that thrusts an act towards an act or attempt to wage war
against the government is the target of attack chosen by terrorists, the place in this case was the
Parliament a symbol of sovereignty, and the attempt if succeeded would have been a disaster of
whole nation hence this attempt amounted to waging war against the government.5

1
Indian Penal code,1860, § 121, No. 45, Acts of parliament,1949 (India).
2
Subs. By the A.O 1950, for “queen”.
3
Mohammed Ajmal Mohammad Amir Kasab and Ors. Vs. State of Maharashtra and Ors, (2012) 9 SCC 1.
4
State (NCT of Delhi) v Navjot sandhu @ Afsan guru, (2005) 11 SCC 600.
5
Id.
The section explains that waging or attempting or abetting war against the government of India
shall be Punished with death, life imprisonment and shall also be liable to fine, major cases
which invoked this section include State (NCT of Delhi) v Navjot sandhu @ Afsan guru6,
Mohammed Ajmal Mohammad Amir Kasab and Ors. Vs. State of Maharashtra and Ors 7., Mohd.
Arif v. state of NCT of Delhi8and etc.

307. Attempt to murder. Attempts by life-convicts9.

Section 307 lays down the punishment for attempt to murder it states “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 1 [imprisonment for life], or to such
punishment as is hereinbefore mentioned”

Attempt under this section include intentional preparatory action which fails in its objective, the
failure such caused is independent of the person committing such an act 10. However mere threat
of an overt act is not included within the ambit of this section11

This section punishes an act which is not merely a commencement of an act but it punishes an
act which fell short of its final execution. Injury is not a sine qua non for invoking this section, in
the case of Manik Bandu Gawali v state of Maharashtra12, the court explained that to injury is
not necessary to constitute an offence under this section, an attempt coupled with intention is
itself sufficient, and the intention to murder can also be identified from the state of affairs.
Supreme Court has reiterated time to time that injury is not the determinative factor rather the
determinative factor is knowledge or intention13 same decision was reiterated by the court in

6
Id.
7
Mohammed Ajmal Mohammad Amir Kasab and Ors. Vs. State of Maharashtra and Ors, (2012) 9 SCC 1.
8
Mohd. Arif v. state of NCT of Delhi, (2011) 13 SCC 621.
9
Indian Penal code,1860, § 307, No. 45, Acts of parliament,1949 (India).
10
Luxman,(1899) 2 Bom LR 286.
11
Sagayam v state of Karnataka, AIR 2000 SC 2161.
12
Manik Bandu Gawali v state of Maharashtra, 1998 CrLJ 2256 (Bom).
13
Ratan Singh V state of MP, (2009) 12 SCC 585.
Jage Ram v State of Haryana14. However, the nature of injuries is also helpful in determining the
intention of the accused15.

The major constituent of Attempt to murder under section 307 are-

a) The attempted act must be such that, if not avoided or intercepted, results in the death of
the victim.
b) The intention to kill must be demonstrated beyond any doubt, the Plaintiff can make use
of circumstances such as an attack with dangerous weaponries on vital parts of the body
to prove the guilt of defendant beyond the doubt, but the intention to kill cannot be
determined solely by the severity of the injury caused16.

The presence of Intention is most important aspect to prove an offence within the ambit of
section 307, the court in Hari Singh case17 explained that intention or the knowledge of the
accused is indispensable to comprise murder, without this constituent being established there can
be no offence of attempt to murder…The intention is to be mustered from all occurrences, and
not simply from the outcomes that supervene.

As described earlier presence of fatal injury is not an essential to establish crime under section
307, while calculating the offence the court in Pulicherla Nagaraju v state of AP 18 laid down
several factors to be weighed while deciding conviction Under section 307 , which include
nature of weapon used, whether the blow coupled with enough force was aimed at a vital part of
body which under normal circumstances is likely to cause death, any kind of pre mediation,
provocation , heat of passion, whether undue advantage of injury of the victim was taken to
cause death, and the list further goes on.

A crime which is likely to cause death can also fall under the ambit of the section 307 even if the
act is a different specific crime under IPC, in state of Maharashtra v Umesh Krishna Pawar19,
the accused raped a 4-year-old girl the accused was also held liable under section 307. Also, self-

14
Jage Ram v State of Haryana, (2015) 11 SCC 366.
15
Kaluram vs State of Assam, (2000) 10 SCC 324.
16
Sarju Prasad vs State of Bihar. AIR 1965 SC 843.
17
Hari Singh, (1998) 4 SCC 1.
18
Pulicherla Nagaraju v state of AP, (2006) 11 SCC 444.
19
Maharashtra v Umesh Krishna Pawar, 1994 Cr LJ 774 (Bom).
defense has been held as a valid defense if the act by the accused was to save himself from any
grievous injury20.

The section also deals with the Attempts by life convicts it explains if any attempt for the
purpose of section 307 is made by a person is under sentence of imprisonment of life, he/she
shall be punished with death.

308. Attempt to commit culpable homicide21

The section 308 of Indian Penal code 1860 explains, “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”.

A major difference between section 307 and 308 exists between the quantum of punishment, the
punishment under the section 308 is not as severe as the punishment under section 307.however
similar ingredients namely the perquisite intention or knowledge 22. In Tukaram Gundu Naik v
state of Maharashtra23 the court stated that if the defendant can only be credited with knowing
that inflicting such harm could likely result in death, and the attempt to commit such a crime
would be punishable under Section 308 IPC, 1860.

Likewise, the section 307, it is not necessary under this section that harm be caused to the
plaintiff, this section punishes any act with such an intent or knowledge that is likely to cause
death would be guilty of the offence of attempt to commit homicide, and it is not necessary that
any injury be caused to the victim. It is also important to differentiate the offences under sections
325 and 326 with that listed section 308 it is the likelihood of causing death which matters.

Further likewise in the section 307, self-defense has been held a valid defense to avoid any kind
of conviction under the section24.

20
Rehmat v state of Haryana, AIR 1997 SC 1526.
21
Indian Penal code,1860, § 308, No. 45, Acts of parliament,1949 (India).
22
Bishan Singh V state, AIR 2008 SC 131.
23
Tukaram Gundu Naik v state of Maharashtra, (1994) 1 SCC 465.
24
Shaukat vs state of Uttaranchal, (2010) 10 SCC 68.
309. Attempt to commit suicide25.

This is another controversy marred section of the Indian penal Code, this section explains that
“Whoever attempts to commit suicide and does any act towards the commission of such offence,
shall be punished with simple imprisonment for a term which may extend to one year 3 or with
fine, or with both.”

There has been a long-standing debate between the The right to die and the section 309 of the
Indian penal code court in CA Thomas Master v UOI26, the court highlighted that a person cannot
voluntarily cannot claim his life because he thinks he has lived it to the fullest, any such act of
ending one’s life shall be attempt to suicide and would attract the provisions of sections 306 and
309.

The constitutionality of the section 309 was challenged before the courts a numerous of times
however two most important landmark judgements being P Rathinam v UOI27 and the Gian
Kaur v State of Punjab 28 . the court in P Rathinam tested the constitutionality of the sections 306
and 309, the court while ruling that the expression “Right to live” is also inclusive of “Right to
die” the bench called for the deletion of the section 309 of IPC, stating that the provision
infringes upon the right construed under article 21 of the constitution and that a person cannot be
forced to live to his detriment, disadvantage or disliking.

Finding the reasoning relied by the court in the abovementioned case erroneous the court in the
Gian Kaur v State of Punjab overruled the judgement pronounced by the court in P Rathinam
case, it stated that right to live in no way means right to Die, further the existence of both right to
live and right to die together would be incompatible and inconsistence, it further held that section
309 IPC is not unconstitutional. The court in the same case also differentiated between
euthanasia and suicide, it held Euthanasia might fall under the ambit of Right to live with
dignity, but suicide doesn’t. Further the court in Lokendra singh V state of Madhya Pradesh29
upon deciding on the same question explained that the provision under 309 does not offends
article 14 because while deciding the cases pertaining to section 309 the courts have discretion to

25
Indian Penal code,1860, § 309, No. 45, Acts of parliament,1949 (India).
26
CA Thomas Master v UOI, AIR 1994 SC 1844.
27
P Rathinam v UOI, 1994 3 SCC 394.
28
Gian Kaur v State of Punjab, AIR 1996 SC 946.
29
Lokendra singh v. state of Madhya Pradesh, 1996 2 SCC 648.
award suitable punishment to the offender rather than having compulsion to impose harsh
punishment, this flexibility protects section 309 of the IPC from being unnecessarily harsh.

Section 115 of the Mental healthcare act, 201730, explains that any person who tries to perpetrate
suicide shall be presumed, except if proven otherwise, to be under acute strain and shall not be
tried and penalized under the said code, and it shall be the responsibility of the concerned
government to cater care, medication and rehabilitation to a person, to avoid any such occurrence
again.

30
Mental healthcare act, 2017, § 115, No. 10, Acts of parliament,2017 (India).