Section 307 IPC vs Section 109 BNS — Attempt to Murder

In India, Section 109 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Section 307 of the Indian Penal Code, 1860 (IPC) on 1 July 2024. The offence and the ten-year or life punishment are unchanged; the one change is for life convicts, who may now receive whole-life imprisonment as an alternative to death.

At a glance

The CrPC First Schedule classified Section 307 IPC as cognizable, non-bailable and triable by the Court of Session (its row reads "Ditto" in each column, traced upward to the Section 302 to 306 rows). The classification is unchanged.

What changed

• Identical — the offence (Section 109(1), IPC 307 first paragraph). "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" is repeated word for word. So are the punishment of up to ten years and fine, and the enhanced liability to "imprisonment for life" where hurt is caused. The IPC words "imprisonment for life" were themselves substituted for "transportation for life" by Act 26 of 1955 (footnote 1 to Section 307 in the India Code text). The paragraph is now numbered as sub-section (1).
• Minor edit — cross-reference in the life-convict provision. "When any person offending under this section" becomes "When any person offending under sub-section (1)".
• Expanded — punishment for a life convict (Section 109(2)). Section 307 IPC: "he may, if hurt is caused, be punished with death." Section 109(2) BNS: "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." The IPC separately headed this paragraph "Attempts by life-convicts"; the BNS makes it a sub-section with no separate heading.
• Minor edit — Illustration (c). The wounded-victim example referred to "the latter part of the first paragraph of this section"; it now refers to "the latter part of sub-section (1)". Illustrations (a), (b) and (d) are unchanged.
• Unchanged — classification and compounding. Every limb remains cognizable, non-bailable and triable by the Court of Session. Attempt to murder is not compoundable under Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), as it was not under Section 320 of the Code of Criminal Procedure, 1973 (CrPC).

Statutory text (relevant extract)

Extract, Section 307 IPC (repealed from 1 July 2024), second paragraph:

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

Extract, Section 109 BNS:

(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.

How it works — the ingredients

Section 109(1) is built by reference to murder. The prosecution has to show:

1. An act. Under Section 2(1) BNS, "act" denotes "as well a series of acts as a single act" (Section 33 IPC said the same). A course of conduct can therefore be the act.
2. The mental element of murder. The act must be done "with such intention or knowledge" that, had it caused death, the offender "would be guilty of murder". The mental states are those in Section 101 BNS (murder, formerly Section 300 IPC), including its Exceptions: if death would only have been culpable homicide not amounting to murder, the offence is Section 110 BNS, not Section 109.
3. The circumstances. The act must be done "under such circumstances" that death, had it followed, would have been murder.

Death need not follow, and hurt is not an ingredient of the basic offence — hurt (defined in Section 114 BNS as causing "bodily pain, disease or infirmity") only raises the maximum to imprisonment for life.

The Illustrations as worked examples

• (a) A shoots at Z intending to kill him, in circumstances where death would have made him guilty of murder. A is liable under the section.
• (b) A exposes a child of tender years in a desert place intending its death. The offence is complete though the child does not die.
• (c) Buying and loading a gun is not yet the offence; firing it at Z is. If the shot wounds Z, the higher punishment in the latter part of sub-section (1) applies.
• (d) Mixing poison into food that stays in A's keeping is not yet the offence; placing it on Z's table, or handing it to Z's servants to place there, is.

Illustrations (c) and (d) mark the line between preparation and attempt. For attempts at other offences, Section 62 BNS (formerly Section 511 IPC) is the general provision; Section 109 is the specific provision for murder.

What this means in practice

For the victim or informant

• Attempt to murder is a cognizable offence, so the police may arrest without warrant (Section 2(1)(g) BNSS) and the information goes on record as an FIR. The case is exclusively triable by the Court of Session: after cognizance, the Magistrate commits it under Section 232 BNSS, and the proviso to that section requires committal proceedings to be completed within ninety days of cognizance, extendable to not more than one hundred and eighty days for reasons recorded in writing.
• The offence cannot be settled by compromise. Section 359(9) BNSS says no offence shall be compounded except as provided by that section, and Section 109 is not in either table.

For the accused and defence advocate

• The dispute is usually about intention or knowledge. Where the material shows only an intention to cause hurt, the charge should be tested against the hurt offences; where it shows the mental element of culpable homicide not amounting to murder, against Section 110 BNS.
• Bail is discretionary. Under Section 480(1)(i) BNSS, a court other than the High Court or Court of Session shall not release a person where there appear reasonable grounds for believing he is guilty of an offence punishable with death or imprisonment for life, subject to the provisos for a child, a woman, or a sick or infirm person. The last proviso to Section 480(1) requires the Court to give the Public Prosecutor an opportunity of hearing before granting bail for an offence punishable with death, life imprisonment or seven years or more.
• Section 479(1) BNSS (release after detention for one-half of the maximum term) excludes "an offence for which the punishment of death or life imprisonment has been specified as one of the punishments". Section 109(1) specifies imprisonment for life where hurt is caused, so on a reading of the text the attempt-with-hurt limb is excluded. The text does not say expressly how the exclusion applies where no hurt is caused; that is a question for the court.

For the investigating officer and prosecutor

• The evidence needed is evidence of intention: the weapon, where and how the blows landed, words used, motive and conduct before and after. Jage Ram (below) lists these circumstances. The medical record matters mainly as evidence of intention and of whether hurt was caused.
• For a charge under Section 109(2), the accused's status as a person already "under sentence of imprisonment for life" must be proved, and hurt must have been caused.

Judgments that still matter

Om Parkash v. State of Punjab, [1962] 2 S.C.R. 254 (1961 INSC 179) — 24 April 1961. A husband was convicted under Section 307 IPC for deliberately starving his wife; she escaped and survived. Raghubar Dayal J., for a Bench with K. Subba Rao J., rejected the argument that only the last act capable of causing death falls within Section 307. The Court held that a person who intends to commit murder commits the offence under Section 307 when, in pursuance of that intention, he "does an act towards its commission irrespective of the fact whether that act is the penultimate act or not." It relied on Section 33 IPC ("act" includes a series of acts) and on Illustration (d). The report shows no paragraph numbers. Section 2(1) BNS and Illustration (d) to Section 109 repeat both texts.

State of Madhya Pradesh v. Saleem @ Chamaru and Anr., [2005] Supp. 1 S.C.R. 562 (2005 INSC 291) — 13 July 2005. Arijit Pasayat and S.H. Kapadia JJ. heard the State's appeal against a High Court order that had reduced sentences under Sections 307 and 333 IPC to the period already served, and remitted the question of sentence to the High Court. The Court held that to justify a conviction under Section 307 "it is not essential that bodily injury capable of causing death should have been inflicted", and that an accused "cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt". It added: "The determinative question is intention or knowledge, as the case may be, and not nature of the injury." (report pages 567-568; no paragraph numbers).

Jage Ram & Ors. v. State of Haryana, [2015] 11 S.C.R. 1004 (2015 INSC 70) — 28 January 2015. V. Gopala Gowda and R. Banumathi JJ. upheld a conviction under Section 307 IPC for pharsi blows to the head in a dispute over reeds. At para 12 the Court held that the prosecution must establish "(i) the intention to commit murder and (ii) the act done by the accused", and that intention is gathered from circumstances such as the weapon used, the words spoken, motive, the part of the body struck, the nature of the injury and the severity of the blows. It confirmed the conviction at para 14 but, given the lapse of time, reduced the sentence to the period already undergone and directed compensation of Rs. 7,50,000 to the injured man (paras 18, 20).

These judgments construe words that Section 109(1) BNS repeats without change, so on a reading of the text their reasoning remains relevant to the new section.

Which law applies to your case

Section 358(2) BNS provides that the repeal of the IPC does not affect any penalty or punishment incurred under it, and that proceedings may be instituted, continued or enforced "as if that Code had not been repealed". On a reading of that text, an attempt to murder committed before 1 July 2024 is charged under Section 307 IPC, and investigations or trials pending on that date continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars a penalty greater than the one in force when the offence was committed; on a reading of that Article, the whole-life alternative in Section 109(2) would not be imposed for earlier conduct. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS section for attempt to murder? Section 109 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 307 of the Indian Penal Code, 1860 from 1 July 2024. Section 109(1) repeats the offence and its punishment word for word, and Section 109(2) deals with an attempt by a person already under sentence of imprisonment for life.

What is the punishment for attempt to murder under Section 109 BNS? Under Section 109(1) BNS the punishment is imprisonment of either description for up to ten years and fine. If hurt is caused to any person by the act, the offender is liable to imprisonment for life or to the ten-year punishment. Under Section 109(2), a life convict who causes hurt may be punished with death or with imprisonment for life meaning the remainder of that person's natural life.

Is attempt to murder bailable under the BNS? No. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 lists every limb of Section 109 BNS as cognizable, non-bailable and triable by the Court of Session. The CrPC First Schedule classified Section 307 IPC the same way. Under Section 480(1)(i) BNSS, a court other than the High Court or Court of Session may not release a person on bail where there are reasonable grounds to believe he is guilty of an offence punishable with death or imprisonment for life, subject to the provisos.

Can a person be convicted of attempt to murder if the victim suffered only a simple injury? Yes. In State of Madhya Pradesh v. Saleem (2005 INSC 291) the Supreme Court held that an accused charged under Section 307 IPC cannot be acquitted merely because the injuries were simple, because the determinative question is intention or knowledge, not the nature of the injury. Section 109(1) BNS uses the same words, so on a reading of the text that reasoning bears on the new section.

Does attempt to murder require the last act towards killing? No. In Om Parkash v. State of Punjab (1961 INSC 179) the Supreme Court held that a person commits the offence when, intending murder, he does an act towards its commission, whether or not it is the penultimate act. Illustration (d) to Section 109 BNS, carried over from Section 307 IPC, shows the offence complete when poisoned food is placed on the victim's table.

Can attempt to murder be compromised between the parties? No. Section 109 BNS does not appear in either compounding table in Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Section 359(9) says no offence shall be compounded except as provided by that section. Section 307 IPC was likewise not listed in Section 320 CrPC.

What changed for life convicts under Section 109(2) BNS? Section 307 IPC said a life convict who commits the offence and causes hurt may be punished with death. Section 109(2) BNS allows death or imprisonment for life, which shall mean the remainder of that person's natural life. The BNSS First Schedule lists the Section 109(2) punishment in those terms.

Which law applies to an attempt to murder committed before 1 July 2024? Section 358(2) BNS saves any penalty or punishment incurred under the IPC and lets proceedings be instituted or continued as if it had not been repealed, so on a reading of that text an attempt committed before 1 July 2024 is charged under Section 307 IPC. Pending investigations and trials continue under the CrPC by Section 531(2)(a) BNSS.

Related

• Murder: IPC 302 vs BNS 103
• Culpable homicide and murder: IPC 299-300 vs BNS 100-101
• Common intention: IPC 34 vs BNS 3(5)
• A fight causing hurt or grievous hurt: BNS 115-117
• Bail provisions — old vs new
• Offence before 1 July 2024 — which law applies
• IPC to BNS master table
• Section 511 IPC vs Section 62 BNS — Attempt to Commit Offences
• Sections 6–52A IPC vs Sections 2–3 BNS — General Explanations and Definitions

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text; s.109 cross-checked against the official BNS text): Sections 2(1), 62, 101, 109, 110, 114 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 33, 307 (with footnotes and Illustrations), 308 and 511.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(g), 232, 359, 479, 480 and 531, and the First Schedule entries for Sections 109 and 110 BNS.
• Code of Criminal Procedure, 1973: the First Schedule entries for Sections 307 and 308 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Om Parkash v. State of Punjab (1962_2_254_265_EN.md); State of Madhya Pradesh v. Saleem @ Chamaru (S_2005_1_562_568_EN.md); Jage Ram v. State of Haryana (2015_11_1004_1015_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.