“Whoever attempt in the legal sense of
“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. Illustration: A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section. An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.
An attempt differs from a mere preparation or a preparatory act. Section 308 applies to attempts to homicide not amounting to murder, in which there has been not merely a commencement of an execution of the purpose, but something short of a complete execution, the consummation being hindered by circumstances independent of the will of the author. It is sufficient if the act was one capable of causing death and there was an intention to cause culpable homicide not amounting to murder. The act must be an attempt in the legal sense of that term (i.e., as stated in Section 511 of IPC). It must, then, be an attempt to commit culpable homicide not amounting to murder.
This can only be proved by providing facts and circumstances, from which it would be justifiable to hold that if the act had been completed, it would have been only culpable homicide, and not murder. This is not difficult to ascertain, for a person may attempt to shoot unnecessarily a burglar, or an intruder who had come to have an intrigue with his wife, or one who resists a public servant in the discharge of his duties, and whom it was possible to overcome otherwise, or indeed, in any of the causes discussed under Sections 299 and 300, in which the completed act would have been culpable homicide and not murder. There may be cases in which the probability of a certain result may be gauged by the nature of the weapon used, or the amount of injury inflicted. In all such cases the attempt will be the attempt to commit culpable homicide, and not murder. In AH Zaman v. State [PLD 1963 SC 152], the use of revolver from accused’s side did not result in death of any one on complainant’s side.
It was held that the accused should be deemed to have attempted to cause culpable homicide not amounting to murder. If it had so happened that one of the persons shot had died in consequence, the offence would have been culpable homicide not amounting to murder. In Mohanlal v. State [AIR 1961 Raj 24], there were a number of injuries including three serious head injuries with underlying fracture of the skull bone; it was held that it could be considered sufficient to bring the case of the deceased under Section 308 IPC because had the injured died, the accused could have been easily convicted under Section 304 IPC.
In Ajay Singh v. State [2002 Cr.LJ 1970 (Del.)], a bus conductor was held guilty under Section 308 when he pushed the injured out of the running bus. The serious nature of injuries and the place of the fall showed that it was not the result of an accident but that of a deliberate act. The punishment provided for the offence of attempt to commit culpable homicide is not severe and 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, the culprit shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. This offence is cognizable and warrant should ordinarily issue in the first instance. It is a bailable but not compoundable offence and is exclusively triable by the Court of Session.