Allahabad HC Explains Ingredients To Constitute Offence U/S 308 IPC [Attempt To Commit Culpable Homicide Not Amounting To Murder]

In an order passed last week in a criminal revision, the Allahabad High Court explained the essential ingredients to constitute an offence punishable under Section 308 IPC [attempt to commit culpable homicide not amounting to murder].

At the outset, the Bench of Justice Subhash Vidyarthi observed that Section 308 of IPC is divided into two parts and the section intends to deal with two separate situations.

For the ease of our readers, we are breaking the section into two parts:

SECTION 308 FIRST PART —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

SECTION 308 SECOND PART —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

The Bench observed that any hurt being caused is not an essential condition to attract the provisions of Section 308 IPC. In other words, the Court opined that even if there is no hurt caused to anyone, still, an offence under Section 308 IPC could be constituted, if someone does an act only 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 (FIRST PART OF SECTION 308 IPC)

In this regard, the Court noted that the essential ingredients of the first part of Section 308 I.P.C. are that

(i) a person does any act

(ii) with intention or knowledge to commit culpable homicide not amounting to murder,

(iii) that the offence was committed under such circumstances that if by that act the accused caused death, he would be guilty of culpable homicide not amounting to murder.

It may be noted that in doing such an act (explained in the first part of the section) if no hurt is caused then it would fall under the first part and it would entail imprisonment which may extend to three years, or with fine, or with both.

However, if hurt is caused to any person by an act which falls within the purview of Section 308, then such a person would be liable for aggravated punishment i.e., imprisonment extending to seven years, or with a fine, or both.

In this regard, the Court read the entire section conjointly and remarked thus:

"A combined reading of both the parts of Section 308 clarifies that the legislative mandate in Section 308 is that 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, but inspite of the effort made by him he completely fails to achieve his goal of committing culpable homicide not amounting to murder, he shall still be held guilty of committing an offence under Section 308 I.P.C. and he shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. However, if by his attempt hurt is caused to any person by such act, shall yet be guilty of committing an offence under Section 308 I.P.C. and in such a situation a higher punishment of imprisonment of either description for a term which may extend to seven years, or fine, or both will be inflicted upon the accused."

Applying the law to the facts of the case at hand, the bench observed that even though the evidence on record showed that the injured in the case had not suffered any injury on any vital body of his body, even then, the Court added, prima facie it appeared that the accused-revisionist had committed an act with an 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.

In other words, the Court clarified that even if the accused-respondent in the case had failed completely in his attempt and he could not inflict any hurt on the body of the injured, the accused would still be guilty of committing an offence punishable under the first part of Section 308 I.P.C. and he has to face a trial for the said offence.

In view of this, the Court dismissed the revision plea filed and upheld the order of the Sessions Judge, Gonda, rejecting the accused application under Section 228 (1) (a) Cr.P.C for transferring the case from the Court of Sessions to a Court of Magistrate on the ground that no offence under Section 308 I.P.C. had been made out against him.

Case title - Vijay Mishra v. State Of U.P. Thru. Secy. Home Deptt. Lko. And Another [CRIMINAL REVISION No. - 584 of 2022]

Citation: 2022 LiveLaw (AB) 281

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