(1) 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 imprisonment for life, or to such punishment as is hereinbefore mentioned.
(2) When any person offending under sub-section (1) is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life.
Illustrations.
- A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
- A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
- A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of sub-section (1).
- A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined in this section.
Explanation: Section 109 of the Bharatiya Nyaya Sanhita (BNS) 2023, defines the offence of attempt to murder. Attempt to murder is regarded as almost as serious an offence as murder itself. This is because the law rightly recognizes that even if a person does not actually cause death, the mere act that threatens the life of another person, while it may not have fatal consequences, poses a serious risk, or “danger,” to the public and should be prosecuted. This dangerous conduct is liable for serious sentencing.
The section deals with situations where a person, with intent to kill or knowledge, that his act may cause death, does something that, if the action had caused death, would have been murder. Effectively, the legislation recognizes the offender’s criminal intention and the dangerousness associated with their conduct of an attempt, as abuse of power is common to each.
For example, if someone shoots another person, with intent to kill, yet that person survives, the shooter is still guilty of attempt to murder in accordance with section 109 of the BNS. Similarly, poisoning someone with the intent to kill, stabbing someone with the intent to kill even if he survives another offence will still legally constitute an attempt to murder, and exposure of a vulnerable person to life-threatening situations.
Essential Ingredients
- Overt Act: The defendant must commit some overt act towards the murder. It is not sufficient to just take steps of preparation like acquiring poison or a weapon; there must be some act of execution.
- Intention or Knowledge: The prosecution must prove that the accused either had the intent to kill the victim, or the accused acted with the knowledge that his act was likely to cause death. Without this element, the offence will fall under a lesser section like causing it to be hurt, or grievous hurt.
- Circumstances Similar to Murder: The way in which the act is performed must be so that, had death actually taken place, the accused would have been guilty of murder.
- Effect (Hurt or No Hurt): If the act results in some hurt to the victim, the punishment is aggravated. Where there was no hurt, punishment is still available, but could be much less.
Punishment
The law defines the punishment according to the seriousness of an act:
- An attempt without causing hurt – Imprisonment for 10 years, or fine.
- An attempt to cause hurt – Imprisonment for life or imprisonment for 10 years or a fine.
- If committed by a life prisoner – A person serving a life sentence. If guilty of an attempt to murder and causing hurt, then he is subject to the death penalty or for the term of his natural life.
This graded punishment system provides a fair approach to a law that addresses unsuccessful attempts and more serious cases where injury has occurred.
Explanation of Illustrations
- Aiming to murder – If A aims to kill Z and fires at him, he’s guilty, even if Z survives. This demonstrates that intent and action are enough.
- Abandoning a child in a desert – If A places a small child in a deserted location intending to leave it to die, A is guilty even if the child is rescued. This illustrates intent, and no actual death is required.
- Loading a gun vs. firing a gun- If A buys and loads a gun with intent to kill Z, he has done nothing more than prepare to act, and has not attempted to kill Z, but if he fires, he has attempted to kill Z. This serves to emphasize the difference between merely preparing to act and attempting to act.
Landmark Cases
- State of Maharashtra v. Kashirao (2003) – The Supreme Court explained that an intention or knowledge of a person in executing an act that results in a state of affairs where there is a probability that grievous hurt could result is not enough to establish an intention to kill. Consciously causing grievous hurt must be equated with intent to kill, but mere infliction of grievous hurt is not intent to kill, and it would be incorrect to say otherwise.
- Koppula Venkat Rao v. State of Andhra Pradesh (2004) – The Court made a distinction between “preparation” and “attempt”. Buying poison for a potential application to harm others is ‘preparation’. Mixing the poison in food or drink and offering it to someone to consume is an ‘attempt’.
- Om Prakash v. State of Punjab (1961) – The accused attempted to commit murder by setting his wife on fire while she was asleep. The Court viewed the situation as an attempt to murder since the act of lighting the lighter was, in itself an act sufficient to end a life.
- Sarju Prasad v. State of Bihar (1965) – The Court stated that an action could amount to an attempt to murder depending on (1) the nature of the weapon, (2) how the weapon was applied to victim, and (3) which part of the body weapon was applied, all indicators of an attempt to murder.