Attempt to murder

Introduction

Imagine you want to murder your enemy and in furtherance to this thought, you buy a snake and leave that in the car of the person you want to kill. Now, if the snake bites him you are liable for murder and even if it does you are going behind the bars for attempt to murder. Attempt to murder is defined in Section 307 of the Indian Penal Code. In this article, we are going to discuss the crime of Attempted Murder. This is a crime that is supposed to result in the murder of a person but failed because of whatever reason.

Explanation of Section 307

The Indian Penal Code defines Attempt to Murder in section 307 stating-                               

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 such punishment as is hereinbefore mentioned. Attempts by life convict.

[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]”

Explanation:

Anyone who does any act with the knowledge or intention that his act will cause death to another person and the commission of his act would hold him liable for guilty of murder, then:

  • that person would be punished with imprisonment of at least 10 years with or without fine or both,
  •  if the act causes hurt, the offender shall be liable to imprisonment for life or,
  •  if the person committing the offence of attempt to murder is already under life imprisonment then he would be punished with death penalty.

Attempt to murder is an offence where the importance is given more to mens rea than actus rea, it is based on the intention to commit crime rather than executing the crime. Attempt to murder is:     

  • A cognizable offence {arrest without warrant}
  • Non-bailable offence{i.e police cannot grant bail whereas the Court considering the gravity of the offence can do so if bail is applied}
  • Can undergo trial by a Court of Sessions.

Stages of crime 

“There is always a gap between intention and action.”

Paulo Coelho

For example, a person held liable under Section 307 of the Indian Penal Code, the following stages are to be present, and if any of the stages is absent the offender cannot be punished under attempt to murder.

Stage 1: Intention

The very first step towards committing a crime is the thought or intent or mens rea to perform it but mere intention does not imply or constitutes as a commitment. An intent to kill a specific person must be proven to hold the offender liable of attempt to murder. It is important to prove that the intent was to kill because if the intention was just to frighten or scare someone then it does not come under this offence.
For example: A and B got involved in an argument which led to a thought of A killing B. Now this mere thought does not amount to crime whereas if A goes ahead and purchases a gun to kill B, then A has moved to stage two.

In Munshi and Ors. v. State of Rajasthan[1] it was stated that there is a distinction between the act of the accused and its result. The Court is certainly required to see that irrespective of its results, the act was done with intention and knowledge to kill a person. It is sufficient in law if there is intent coupled with some overact in execution then the accused is to be held liable under section 307.

The aforesaid case speaks about the importance of intent in the execution of an act to kill a person irrespective of its results.

 In Sarju Prasad v. State of Bihar[2], it was observed that injury inflicted by the accused did not cut any vital organ of the victim and is not by itself sufficient to take the act out of the purview of section 307. The determinative question is intention or knowledge and not the nature of the injury. 

 In State of Madhya Pradesh v. Kedar Yadav[3], it was stated that the injury caused to the victim does not need to cause, under ordinary circumstances, the death of the victim. The court has to see intent and not the result, the attempt to be called an attempt to murder. 

Stage 2: Preparation

The next stage is when intent leads to preparation to commit the crime, preparation is when the offender arranges or plots things to further his intent. Mere preparation also does not constitute a crime, but preparing to wage a war against the State or to commit dacoity are punishable at this stage itself.
For example: When A has an intent to kill B and further purchases a gun to accomplish his intent,  in doing so, he has moved to stage 2. Mere purchasing of the gun does not constitute an offence.

In Manik Bandu  Gawali v. State of Maharashtra[4], it was stated for an offence to be punishable, it has to pass from the stage of preparation to attempt and mere preparation does not constitute an offence. In this case, the accused poured flammable substance on the victim, therefore, passing the stage of preparation to attempt and making the accused liable under Section 307.

Stage 3: Attempt

The third stage in the offence of attempting to murder is when the offender tries to kill the victim that is when a direct step is taken towards the execution of the intent. This stage is equivalent to actus rea. The act should be proficient enough to kill a person, merely harming the victim does not make the accused liable under Section 307 of IPC.
For example: A has a gun and is yet not liable for any offence. The moment A points a loaded gun towards B, he has made an attempt has been made irrespective of if he pulls the trigger or not. If the gun is unloaded and incapable of causing death then the accused can not be convicted under Section 307.

In Om Prakash v. State of Punjab[5],  it was observed in paragraph 16 that in cases of attempt to murder by firearm, the act amounting to an attempt to commit Murder is bound to be the only and last act to be done by the culprit. Unless he fires there is no offence committed, but once he fires the shot attempt has been made under Section 307 IPC.

In Walmik v. State of Maharashtra[6],  it was stated that the mere Act of pointing the weapon towards the prosecution witness would not itself be sufficient to bring home the guilt of the appellant under Section 307.

In Rajendra Narayan Nalwade v. State of Maharashtra[7],  it was said in the judgement that every crime passes through three stages: those are-intent, preparation and attempt. It is only when the attempt is successful crime is committed. There is a very thin line between attempt and preparation, moreover, this is decided by the court based on facts that were an attempt or mere preparation.

In Sagayam v. State of Karnataka[8], the accused had threatened to kill a police officer and tried to pierce him with a sword. However, the court indicated that there was only threat to assault and not to commit murder, similarly in Nachhatar Singh v. State of Punjab[9], the accused was trying to escape after committing an offence, he inflicted a person with a knife who was trying to stop him. The court held that since injuries were minor and the intention to kill was not present, the accused cannot be held liable for attempt to murder.

Stage 4: Commencing of the act

The fourth stage is to note whether the intention is accomplished or not. If the accused kills the victim, he will be liable for murder whereas failure to do so will book him for attempt to murder. Attempt to Murder in section 307 states all those cases where the intent was succeeded by preparation along with an attempt to kill a person but the act wasn’t accomplished due to whatever reason, resulting in some harm or no harm to the victim.

For example: A shot B by pointing the gun at him, but B was saved by C, therefore making A liable under section 307 since his attempt to kill B failed. Whereas if A would have been successful in his act then he might have been booked for murder.

Defences

Although it is difficult for the accused to defend himself in a case of Attempt to Murder, in certain cases specific defences are available which may not be applicable in other circumstances or cases. The defences are as follows:

  • Impossibility of the commission of the act. This is when the accused says that even after everything was as per the plan, yet the ultimate act of killing someone would have never happened.

For example: If the gun used to point at the victim was unloaded, it would then amount to the fact that the murder would never have happened at first place.

  • If the accused proves that even after taking one step during stage three, he decided to withdraw the plan.

For example, M wanted to kill L and to accomplish this he bought poison and mixed it with L’s food and served it to L. If after serving the food, M decided to withdraw his plan and take the food away, he will not be held guilty of attempt murder.

In Awadesh Mahto and others v. State of Bihar,[10] it was clear from the facts that the accused had not fired from the pistol; instead he was only levelling a loaded pistol at Chaka Gorain so it could only be termed as an attempted discharge through a loaded gun. Since there was impossible cause of death as there was no fire, hence, there’s no case under Section 307.

In  Hari Singh v. Sukhbir Singh[11], it was observed that the accused had no intention to kill, it was a fight and the actions were a mere result of the flare-up. It was also stated that under Section 307 for conviction the intention is a primary requirement but here the intention was due to the accident owing to sudden quarrel.

Punishment

Murder is considered one of the most serious crimes in any part of the world, punishment under murder can be life imprisonment or  death penalty but for attempted murder, the gravity of punishment varies. Punishments under Section 307 are as follows:

  • The gravity of the attempt of murder and circumstances varies from the punishment of imprisonment to 10 years to life along with fine.
  • If the accused is already under the sentence of life imprisonment then he would be punished by death penalty.

 In Karamjit Singh v. State (Delhi administration)[12] it was observed that punishment in criminal cases is both punitive and reformative, the purpose of punishment is to make the person found guilty of offence repent over his actions and deter him from repeating such actions in future.

Difference between Murder and Attempt to Murder

The very basic difference between Murder and Attempted Murder is that in murder, the victim is dead whereas in an attempt to murder the fortunately victim survives. The accused takes all the steps required to achieve his goal and if everything goes by the plan and victim is killed, then it is murder whereas even if everything is as per the plan and the victim survives then the accused is said to have attempted murder.

Conclusion

“And yet, sometimes facts are no more than pitiful consequences, because guilt does not reside in our acts but in the intentions that give rise to our act. Everything turns on our intentions.”

Sándor Márai, Embers

Attempt to murder is an offence which gives weightage to intention more than the action or consequences of the action. The intention is based on the internal thinking of any person which would depend on the facts and the circumstances to prove whether there was a guilty mind or not. Attempt to murder is, on the whole, a failure to commit a  murder. The offender wanted to kill the victim but fortunately the victim survived.

References


[1] Munshi andOrs. v/s State of Rajasthan(MANU/RH/0622/2008)

[2] Sarju Prasad v/s State of Bihar(MANU/SC/0342/1964)

[3] State of Madhya pradesh v/s Kedar yadav(MANU/SC/8609/2006)

[4] Manik Bandu  Gawali v/s State of Maharashtra(MANU/MH/0549/1998)

[5]Om Prakash v/s State of Punjab(MANU/SC/0125/1961)

[6] Walmik v/s State of Maharashtra(MANU/MH/0360/2019)

[7] Rajendra Narayan Nalwade v/s State of Maharashtra(MANU/MH/0163/2001)

[8] Sagayam v/s State of karnataka(MANU/SC/0304/2000)

[9] Nachhattar Singh v/s State of Punjab(MANU/PH/0955/1997)

[10] Awadesh Mahto and others vs State of Bihar(MANU/BH/0166/1979)

[11] Hari Singh v/s Sukhbir Singh(MANUSC/0183/1988)

[12] Karamjit Singh v/s State (Delhi administration)(MANU/SC/0333/2000)

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