Attempt to Murder or Culpable Homicide under BNS: Sections 109 and 110 with Landmark Cases

Where a person tries to kill another and fails, the criminal law reaches him through the specific attempt provisions. The Bharatiya Nyaya Sanhita, 2023, provides two distinct provisions: Section 109 for attempt to murder, and Section 110 for attempt to commit culpable homicide not amounting to murder. Both are more severe than the residual attempt provision of Section 62 BNS: attempt to murder can attract life imprisonment or, in specified aggravated cases, death. The doctrinal challenges are familiar: distinguishing preparation from attempt, distinguishing attempt to murder from attempt to culpable homicide, and applying the Virsa Singh test to the attempt context. This module walks through Sections 109 and 110, the ingredients of each, the case law from Om Prakash to State of Maharashtra v Balram Bama Patil, and the sentencing considerations in modern practice.

1. Introduction

Attempt in the homicide framework

The criminal law of homicide punishes not only completed killings but attempts to kill. The rationale is clear: the person who tries to kill has the same moral culpability as the person who succeeds. His failure often results from circumstances beyond his control (the victim moved, the weapon misfired, medical assistance arrived in time), and to punish only completed killings would create arbitrary distinctions based on chance.

Sections 109 and 110 overviewed

Distinction from the residual Section 62

Section 62 BNS is the residual attempt provision. It punishes any attempt to commit an offence for which no express provision is made. For most attempts, Section 62 applies with a maximum of one-half of the substantive offence's punishment. For attempts at homicide, however, Sections 109 and 110 are the specific provisions and displace Section 62. Their punishments are correspondingly more severe than the residual Section 62 framework would allow.

2. Section 109 BNS: Attempt to Murder

Text of Section 109

Section 109(1): the ordinary case

Section 109(1) is the general provision on attempt to murder. Two features distinguish it:

• Ordinary punishment: imprisonment up to ten years and fine.
• Enhanced punishment where hurt is caused: life imprisonment, in addition to the ordinary punishment.

The distinction between attempts with hurt and attempts without hurt reflects the graduated severity. Where the attempt caused actual hurt, the harm is real; where no hurt resulted, the harm is potential only. The punishment tracks this distinction.

Section 109(2): life convict aggravation

Section 109(2) addresses the case where the accused is already under sentence of imprisonment for life at the time of the attempt to murder. Where hurt is caused, the punishment is death or life imprisonment meaning natural life. The rationale is that the accused has demonstrated an inability to be deterred by imprisonment: he has committed a serious offence while already serving a life sentence.

Section 109(3): group attack on discriminatory grounds

Section 109(3) is a new provision introduced by the BNS. It addresses group attempts to murder committed on discriminatory grounds. Ingredients:

• Five or more persons acting in concert.
• Committing attempt to murder.
• On the ground of race, caste, community, sex, place of birth, language, personal belief, or similar grounds.

Each member is punishable with a minimum of seven years, extending to life imprisonment, and fine. This provision responds to the reality of communal, sectarian, and identity-based violence in India and imposes a specific aggravation on group attacks.

3. Ingredients of Attempt to Murder

The act

Attempt to murder requires an act. Mere intention or preparation is not enough. The accused must have done something that, in furtherance of his intention, went beyond preparation into attempt. The Abhayanand Mishra principle (the act need not be penultimate) applies: it is enough that the accused has taken a step towards commission.

Intention or knowledge of Section 101

The section requires that the act be done with such intention or knowledge as would, if death resulted, make the offence murder under Section 101 BNS. This means the accused must have had one of the four murder mental elements:

• Intention to cause death (Section 101(a)).
• Intention to cause bodily injury known to be likely to cause death of the specific victim (Section 101(b)).
• Intention to cause bodily injury sufficient in the ordinary course of nature to cause death (Section 101(c)).
• Knowledge that the act is imminently dangerous and must in all probability cause death (Section 101(d)).

The Virsa Singh framework applies as much to attempt to murder as to murder itself. Where the accused fired a gun at the victim, aimed at a vital area, and only missed by chance, all four murder mental elements are potentially satisfied.

But for the intervening cause, murder would result

The classical formulation is that but for some intervening cause (the victim's escape, the failure of the weapon, prompt medical assistance), the accused's act would have resulted in death, and the offence would have been murder. This does not require proof that death would certainly have resulted; it requires that the act was of such a nature that death was a probable consequence.

Punishment structure

4. Section 110 BNS: Attempt to Culpable Homicide

Section 110 mirrors Section 109 in structure but for culpable homicide not amounting to murder:

• The act must be done with intention or knowledge that would, if death resulted, make the offence culpable homicide (not murder).
• Ordinary punishment: up to three years or fine or both.
• Enhanced punishment where hurt is caused: up to seven years or fine or both.

The distinction between Sections 109 and 110 mirrors the distinction between murder and culpable homicide not amounting to murder in the completed offence context. Where the mental element would satisfy Section 101 (murder), Section 109 applies. Where it would satisfy Section 100 but not Section 101 (or where an Exception to Section 101 applies), Section 110 applies.

5. Distinguishing Attempt to Murder from Attempt to Culpable Homicide

In practice, prosecutions often charge Section 109 initially, and the court determines on the evidence whether the higher or lower attempt provision applies. Where the intention to cause death is not clearly established, the court may reduce the charge from Section 109 to Section 110.

6. Preparation and Attempt in the Homicide Context

The general framework of preparation vs attempt applies to homicide attempts. Where the accused has:

• Purchased a weapon: preparation.
• Approached the victim's location: preparation.
• Drawn the weapon and pointed it at the victim: attempt.
• Fired the weapon and missed: attempt with a completed act.

The classical tests (proximity, locus poenitentiae, equivocality, on-the-job) apply. Where the accused has committed himself to the criminal course, and cannot withdraw without active reversal, he has crossed into attempt. Where he could still turn back without doing anything, he is at preparation.

7. Judicial Elaboration and Landmark Cases

Om Prakash v. State of Punjab

Discussed above. Continuing conduct as attempt to murder. The foundational modern case.

State of Maharashtra v. Balram Bama Patil

Jai Narain Mishra v. State of Bihar

Rambabu Singh v. State of Madhya Pradesh

8. Sentencing Considerations

9. Distinction from Adjacent Provisions

10. Consolidated Landmark Judgments

• Om Prakash v. State of Punjab, AIR 1961 SC 1782. Continuing conduct of starvation as attempt to murder. Foundational case.
• State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28. Prompt medical assistance does not negate attempt.
• Jai Narain Mishra v. State of Bihar, AIR 1972 SC 1764. Framework for distinguishing Section 307 from Section 308.
• Rambabu Singh v. State of Madhya Pradesh, (1998) 4 SCC 71. Firing at vital area from lethal range.
• State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554. Life imprisonment under Section 307(1) for serious attempts.
• Kishore Singh v. State of Madhya Pradesh, (1977) 4 SCC 524. Circumstantial evidence for mental element.
• Sarju Prasad v. State of Bihar, AIR 1965 SC 843. Distinction from grievous hurt.
• Vasant Vithu Jadhav v. State of Maharashtra, (2004) 5 SCC 210. Family context not mitigating.
• State of Madhya Pradesh v. Kashiram, (2009) 4 SCC 26. Attempt to murder in a group setting.
• State of Rajasthan v. Kalki, (1981) 2 SCC 752. Sentencing under Section 307 IPC in serious cases.
• R. Prakash v. State of Karnataka, (2004) 9 SCC 27. Application of Section 307 in stabbing cases.
• State of Maharashtra v. Ravinder Krishnarao Nikam, (2020) 12 SCC 553. Modern application of Section 307.
• Devender Kumar v. State (NCT of Delhi), (2014) 15 SCC 348. Attempt to murder by firing multiple shots.
• Sarabjeet Singh v. State of Uttar Pradesh, (1983) 1 SCC 353. Attempt to murder with a knife.
• Bishen Singh v. State of Punjab, AIR 1974 SC 1181. Framework for attempt to murder proof.

Frequently Asked Questions

What is Section 109 BNS?

Section 109 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 307 IPC), punishes attempt to murder. Section 109(1) provides imprisonment up to ten years and fine, extending to life imprisonment where hurt is caused. Section 109(2) provides for death or life imprisonment meaning natural life where the accused is under sentence of imprisonment for life at the time of the attempt with hurt caused. Section 109(3), a new provision, enhances punishment (minimum 7 years, extending to life) for group attempts of five or more persons on discriminatory grounds.

What is the difference between Section 109 and Section 110 BNS?

Section 109 requires that the accused's mental element would, if death resulted, make the offence murder under Section 101 BNS (satisfying one of the four clauses of Section 101). Section 110 requires that the mental element would, if death resulted, make the offence culpable homicide not amounting to murder under Section 100 (either not satisfying Section 101, or an Exception to Section 101 would apply). Section 109 punishments are significantly more severe: up to 10 years or life if hurt; Section 110 punishments are up to 3 years or 7 years if hurt.

What are the ingredients of attempt to murder?

Three ingredients: (i) the accused did an act; (ii) the act was done with the intention or knowledge that would make the offence murder if death resulted (satisfying one of the four clauses of Section 101 BNS); and (iii) the act was such that, but for some intervening cause, death would have resulted. The classical Virsa Singh test applies: where the accused caused an injury sufficient in the ordinary course of nature to cause death, and death was prevented only by chance, attempt to murder is made out.

What did Om Prakash v State of Punjab (1961) decide?

The accused had systematically starved his wife over an extended period, intending to kill her. She managed to escape. The Supreme Court held that the continuing conduct of starvation constituted attempt to murder under Section 307 IPC (now Section 109 BNS). The intention to kill combined with acts committed towards the killing (systematic starvation) satisfied the requirements of the section. The judgment is the foundational Indian case on attempt to murder through continuing conduct.

Can attempt to murder be committed even where no hurt is caused?

Yes. Section 109(1) BNS punishes attempt to murder even where no hurt is caused. The offence is committed by doing the act with the requisite intention or knowledge; the actual outcome (whether the victim is hurt, or unhurt because he ducked or the weapon missed) is not the basis of the offence. Where hurt is caused, the punishment is enhanced (life imprisonment is available). Where no hurt is caused, the ordinary punishment (up to ten years and fine) applies.

What is the punishment for group attempts to murder on discriminatory grounds?

Section 109(3) BNS is a new provision. Where a group of five or more persons acting in concert commits attempt to murder on grounds of race, caste, community, sex, place of birth, language, personal belief, or similar grounds, each member is punishable with imprisonment for a minimum of seven years, extending to life imprisonment, and fine. This provision addresses group violence with an identity-based motivation, imposing a specific aggravation on such attacks.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Murder under BNS: Section 101 with the four clauses and Section 103 punishment framework.
• Culpable Homicide under BNS: Section 100 with the three limbs distinguished from Section 101.
• Attempt under Section 62 BNS: the residual attempt provision that applies where no specific attempt section exists.
• Preparation vs Attempt: the doctrinal tests applied to distinguish preparation from attempt in the homicide context.