Section 109 of the Bharatiya Nyaya Sanhita, 2023 ("BNS") replaces Section 307 of the IPC for offences committed on or after 1 July 2024. It is one of the most frequently invoked sections in FIRs involving serious assaults, and one of the most frequently contested.
What Section 109 says
Under Section 109(1), a person commits attempt to murder when he does an act with such intention or knowledge, and in such circumstances, that if death had been caused by that act, he would be guilty of murder. The punishment depends on what followed:
- If no hurt is caused: imprisonment up to ten years and fine.
- If hurt is caused: imprisonment for life, or imprisonment up to ten years and fine.
Under Section 109(2), where the offender is already undergoing a sentence of imprisonment for life and hurt is caused, the punishment may be death, or imprisonment for life meaning the remainder of his natural life.
The offence is cognizable, non-bailable, non-compoundable and triable by a Court of Session.
The ingredients
The prosecution has to establish two things:
- The mental element: an intention or knowledge of the kind required for murder. This is the heart of the offence.
- An act towards its commission: the accused must have done an act with that intention or knowledge. Mere preparation is not enough.
An injury is not necessary
A common misunderstanding is that attempt to murder requires a serious, or any, injury. It does not. If a person fires at another with intent to kill and misses, the offence is complete. The Supreme Court in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, held that it is not necessary for a conviction that a bodily injury capable of causing death should have been inflicted. The nature of the injury is relevant evidence of intention, but it is not the test.
A serious injury is not enough either
The reverse is equally true, and it is where many cases are won or lost. A grievous injury does not, by itself, prove an intention to kill. In Roshan Lal v. State of Haryana, 2026 INSC 524, the Supreme Court altered a conviction from attempt to murder to voluntarily causing grievous hurt, holding that the gravity of the injuries alone could not establish the intention or knowledge required, which the prosecution had to prove independently.
Courts infer intention from the surrounding circumstances, usually including:
- the nature of the weapon used;
- the part of the body targeted, and whether it was a vital part;
- the force used and the number of blows;
- any prior enmity or motive, and the conduct of the accused before and after the incident;
- whether the incident was premeditated or arose from a sudden quarrel.
In practice: a single blow with a stick in the course of a sudden fight is a very different case from repeated blows with a sharp weapon aimed at the head or chest, even if the medical reports look similar. Where the circumstances do not show an intention to kill, the appropriate charge is usually grievous hurt under Section 117 or Section 118(2) BNS. See the note on hurt and grievous hurt.
Bail
Section 109 is non-bailable, which means bail is at the discretion of the court, not that bail is barred. Anticipatory bail can be sought under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old Section 438 CrPC), and regular bail under Sections 480 and 483 BNSS. Courts typically look at the medical evidence, the weapon, the specific role attributed to the applicant, criminal antecedents, and whether the applicant is likely to influence witnesses.
Can the case end in a compromise?
Section 109 is non-compoundable, so the parties cannot settle the case on their own. The High Court may still quash proceedings in an appropriate case under its inherent powers (now Section 528 BNSS). In State of Madhya Pradesh v. Laxmi Narayan, (2019) 5 SCC 688, the Supreme Court held that offences under Section 307 are generally treated as serious offences against society and are not ordinarily quashed on the basis of a settlement. However, the High Court can examine whether the section has been invoked merely for the sake of it, by looking at the nature of the injuries, whether they were on vital parts, and the weapon used.
This article is for general legal awareness and reflects the law as on the date of publication. It is not legal advice. Please refer to the current bare Act and consult an advocate on the facts of your own matter.