Whether an assault is attempt to murder (Section 307 IPC) or attempt to commit culpable homicide (Section 308) is often fought at the charge-framing stage — and often, wrongly, on the medical chart alone. In Abhishek v. State of Rajasthan (Criminal Appeal No. 4767 of 2026, 2026 INSC 1093, decided 7 October 2026), the Supreme Court — hearing the injured complainant's appeal by special leave — restored a Section 307 charge that the Rajasthan High Court had reduced to Section 308 because the injuries sat on non-vital parts. The Court reaffirmed two propositions trial courts apply daily: the location of injuries does not by itself exclude Section 307, and charge framing is not a mini-trial.
The incident and the procedural journey
In November 2020, in an agricultural field in District Nagaur, the accused allegedly drove a tractor at speed towards the appellant’s family, striking his mother, after which the accused party attacked with axes. The appellant and his father suffered incised wounds, some bone-deep. The Additional Sessions Judge framed a charge under Section 307 read with Section 34 IPC in November 2023. On a revision by the accused, the Rajasthan High Court set aside the Section 307 charge in April 2025, reasoning that the injuries were on non-vital parts, and directed a Section 308 charge instead. The injured complainant carried the matter to the Supreme Court by special leave.
The Supreme Court’s analysis
The Court leaned on the line of authority in State of M.P. v. Kashiram and Jage Ram: “It is not essential that bodily injury capable of causing death should have been inflicted.” The provision punishes the attempt with the murderous mind, not the success of the attempt. For offences after 1 July 2024, the same law continues under Section 109 of the BNS (attempt to murder) and Section 110 (attempt to commit culpable homicide); this 2020 incident remains governed by the IPC.
Why victims’ appeals like this succeed
This was a complainant’s appeal — a reminder that the Supreme Court’s Article 136 jurisdiction is open to victims aggrieved by dilution of charges, not only to accused persons aggrieved by their framing. Revisional orders that re-grade offences at the threshold are particularly vulnerable where they rest on a single factor (injury situs, simple-versus-grievous labels, weapon recovery gaps) rather than the composite intention inquiry the section demands.
For prosecution and complainants: at the charge stage, marshal the totality — the weapon, the aim, repeated blows, threats uttered — and resist reduction arguments built solely on the MLC. Section 216 CrPC / Section 239 BNSS protects the accused if the evidence later softens; it equally protects the prosecution’s right to begin at the correct level.
For the defence: the genuine battleground for a Section 307-to-308 argument is the trial record, not a revision that invites the superior court to weigh injuries prematurely. A discharge or re-grading plea must show that even the prosecution’s material, taken at face value, cannot sustain the murderous intention.
For both sides: charge-framing orders travel well in revision only when the lower court applied the wrong test. Where the Sessions Judge applied the right prima facie standard, appellate interference — in either direction — is the exception.
Provisions at a glance
| IPC provision | Offence | BNS equivalent (post-1 July 2024) |
|---|---|---|
| Section 307 | Attempt to murder | Section 109 |
| Section 308 | Attempt to commit culpable homicide | Section 110 |
| Section 216 CrPC | Alteration of charge | Section 239 BNSS |
| Sections 227–228 CrPC | Discharge; framing of charge | Sections 250–251 BNSS |
Frequently Asked Questions
What distinguishes Section 307 from Section 308 IPC?
Both punish incomplete offences; the difference is the mental element the completed act would have attracted. If death caused would have been murder, the attempt is Section 307; if it would have been culpable homicide not amounting to murder, the attempt is Section 308. The question is intention or knowledge gathered from the weapon, the force, the body part targeted, repeated blows and the surrounding circumstances — never from the injury chart alone.
Is actual grievous injury necessary for Section 307?
No. The Supreme Court reiterated — quoting its earlier rulings — that it is not essential that bodily injury capable of causing death should have been inflicted. A shot that misses can still be attempt to murder. Conversely, a serious wound inflicted without the requisite intention may fall short of Section 307.
What is the court's role at the charge-framing stage?
Limited to seeing whether the material on record discloses a prima facie case or grave suspicion. The court is not required to hold a mini-trial or weigh evidence as at a final hearing — standards drawn from Sections 227 and 228 CrPC, now Sections 250 and 251 BNSS. The High Court erred precisely by conducting a "summary and technical assessment of the injuries" to displace the Sessions Court's framing.
Can the charge be changed later if the evidence points to a lesser offence?
Yes. Section 216 CrPC (now Section 239 BNSS) lets the trial court alter the charge at any time before judgment. The Supreme Court expressly noted this safety valve: framing Section 307 now does not prejudice the accused, since the trial court can step the charge down to Section 308 if the evidence so warrants.