Section 109 BNS: Attempt to Murder — Bail, Punishment & Complete Legal Guide (2026)

Section 109 BNS (Bharatiya Nyaya Sanhita, 2023) deals with the offence of Attempt to Murder — it replaced Section 307 IPC. It applies when a person acts with the intention or knowledge that their act could cause death, but death does not actually occur. Section 109 BNS is Non-Bailable and Cognizable. Punishment ranges from up to 10 years imprisonment (if no injury) to life imprisonment (if hurt is caused). For a life convict who causes hurt during an attempt, punishment can extend to death. It is triable exclusively by the Court of Session.

Introduction: When a Single FIR Can Change Everything

Being accused under Section 109 BNS is one of the most serious situations a person can face in the Indian criminal justice system. Unlike minor offences where bail is almost routine, an attempt to murder charge triggers immediate arrest, a non-bailable status, and a lengthy trial before the Sessions Court.

The confusion is compounded by the fact that India’s criminal laws underwent a sweeping transformation in 2024. The Bharatiya Nyaya Sanhita (BNS), 2023, effective from 1 July 2024, replaced the Indian Penal Code (IPC), 1860. The familiar Section 307 IPC (Attempt to Murder) is now Section 109 BNS — but with important clarifications and enhancements.

Whether you are an accused, a victim, a family member, or a law student, this guide by Adv. Dhanashree Bankhele explains everything you need to know about Section 109 BNS — in precise, plain language backed by the most recent 2026 case law.

What Is Section 109 BNS? — Definition and Full Text

Section 109 of the Bharatiya Nyaya Sanhita, 2023 reads as follows:

Section 109(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.

Section 109(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.

In plain language:

• If you try to kill someone and fail — you face up to 10 years imprisonment and fine.
• If you try to kill and the victim is injured — you face life imprisonment.
• If you are already a life convict and try to kill someone and injure them — you face the death penalty or life imprisonment for the remainder of your natural life.

Section 109 BNS vs. Section 307 IPC — Key Differences

The most significant improvement in Section 109 BNS is the explicit clarification that “imprisonment for life” in sub-section (2) means imprisonment for the remainder of the person’s natural life — removing ambiguity that existed under the IPC.

Essential Legal Character of Section 109 BNS

Three Essential Ingredients of Section 109 BNS

For a charge under Section 109 BNS to stand, the prosecution must prove all three of the following:

1. Intention or Knowledge (Mens Rea)

The accused must have either:

• Intended to cause death, or
• Known that the act was so imminently dangerous that it could likely cause death

This is the most critical and most contested element in every Section 109 case. The prosecution must establish guilty mind — and courts have consistently held that the nature of the weapon, the body part targeted, the severity of the act, and surrounding circumstances are the primary indicators of intent.

2. An Overt Act (Actus Reus)

There must be a concrete act — not merely a thought, plan, or preparation. The accused must have crossed the threshold from planning into execution. The act must be:

• Directly linked to causing death
• Capable of causing death in ordinary circumstances
• Beyond the stage of mere preparation

3. Death Did Not Occur

The defining characteristic of attempt to murder — as opposed to murder itself — is that death did not occur. The survival of the victim does not absolve the accused. The law is clear: if the ingredients of intent and act are proved, the charge stands regardless of how minor the actual injury turned out to be.

Section 109 BNS Punishment — Complete Breakdown

Scenario 1: Act Committed, No Injury to Victim

• Punishment: Imprisonment (rigorous or simple) up to 10 years + Fine

Scenario 2: Act Committed, Victim Is Injured

• Punishment: Life imprisonment OR imprisonment up to 10 years + Fine (court’s discretion based on facts)

Scenario 3: Offender Already Serving Life Imprisonment, Victim Is Injured

• Punishment: Death penalty OR life imprisonment for the remainder of natural life

Important: The court does not automatically impose the maximum sentence. The punishment is calibrated based on the degree of intention, nature of weapon, severity of injury, the offender’s background, and mitigating or aggravating circumstances.

Is Section 109 BNS Bailable or Not? — The Complete Answer

Section 109 BNS is Non-Bailable.

This means:

• The police cannot release the accused on bail at the police station.
• There is no right to bail — bail is not automatic.
• Bail can only be granted by the Court of Session or High Court, based on judicial discretion.
• The accused must present a formal bail application under Section 483 BNSS (regular bail) or Section 482 BNSS (anticipatory bail, before arrest).

However, non-bailable does not mean bail is impossible. Courts grant bail in Section 109 BNS cases based on a careful assessment of facts.

How to Get Bail in Section 109 BNS Cases — Factors Courts Consider

Because attempt to murder is non-bailable, courts apply a stringent standard before granting bail. The key factors examined are:

Factors Favouring Bail

• Weak or questionable intent: Evidence of intent is unclear, contradictory, or dependent solely on an interested party’s statement
• Simple or non-fatal injury: The injury was minor, not on a vital body part, and the victim is fully recovered
• Delayed or suspicious FIR: The FIR was registered with significant delay, suggesting afterthought or exaggeration
• No criminal antecedents: The accused has no prior criminal record
• Weapon used was not inherently lethal in the circumstances alleged
• Cooperative accused: Full cooperation with investigation and no risk of absconding
• Medical evidence contradicts prosecution: Post-mortem or injury reports do not support the level of violence alleged

Factors Against Bail

• Clear premeditation (prior threats, planning, motive)
• Use of a deadly weapon (firearm, sharp weapon) targeting vital body parts
• Serious injury to victim
• Prior criminal history of the accused
• Risk of tampering with evidence or intimidating witnesses
• Flight risk — no fixed address or strong community ties

Types of Bail Applications in Section 109 BNS

2026 Featured Case Study 1: Karnataka Sessions Court — Hampi Attack Case

[State vs. Mallesh alias Handi Malla & Others, February 2026]

In one of the most high-profile and internationally reported criminal cases of 2026, a Sessions Court in Koppal, Karnataka delivered a landmark verdict in February 2026 in connection with the brutal Hampi attack of March 2025.

The Facts: On 6 March 2025, a group of five tourists — including an Israeli woman and an American male tourist — were attacked near Sanapur Lake in Hampi, a UNESCO World Heritage Site in Karnataka. The three accused committed gang rape of the Israeli woman and her Indian homestay host, and pushed three male tourists into a canal. A tourist from Odisha died the following day.

The Conviction and Sentencing: The court convicted three accused — Mallesh alias Handi Malla (22), Sai alias Chaitanya Sai (21), and Sharanappa alias Sharanabasavaraj (27) — and classified the case as “rarest of rare.”

For the offence of Attempt to Murder under Section 109(1) BNS read with Section 3(5) BNS (corresponding to common intention under Section 34 IPC), the court sentenced all three convicts to:

• Life imprisonment (meaning the remainder of their natural lives)
• Fine of ₹30,000 each (in default, three years’ rigorous imprisonment)

The court’s decision to impose life imprisonment under Section 109 BNS — rather than 10 years — was driven by the gravity of the act, the vulnerability of the victims in a public tourist zone, and the clear intent to cause death by pushing the victims into a canal.

Why This Case Matters for Section 109 BNS: This verdict is the most significant 2026 example of how Indian courts apply Section 109 BNS in its harshest form when:

• The act is clearly designed to cause death
• Victims include foreign nationals and the case has international significance
• The offenders show no remorse and have prior criminal records

Courts will not hesitate to impose life imprisonment — and classify an attempt as among the “rarest of rare” — when the circumstances are sufficiently brutal, even where death technically did not occur.

2026 Featured Case Study 2: Delhi Court — Class XII Student Granted Interim Bail

[Delhi District Court, Section 109(1) BNS, March 2026]

In a striking contrast that illustrates how courts exercise judicial discretion under Section 109 BNS, a Delhi District Court in March 2026 granted interim bail to an 18-year-old student arrested under Section 109(1) BNS — solely to allow him to write the remaining paper of his Class XII board examination.

The Court’s Reasoning: The judge made several important observations while granting this limited interim bail:

• The bail was granted not as an endorsement of the accusation, but in recognition of the irreversible harm that missing a board examination would cause to the student’s academic and professional future.
• The judge stated: “A timely intervention by a trained counsellor, a conversation with the parents, or even a stern word from a teacher could well have prevented this Court from having to deal with a case under Section 109(1) BNS involving two young persons who ought to be sitting in classrooms rather than in courtrooms and custody.”
• The court noted: “No academic result is meaningful if the environment in which it is pursued is one of fear and violence.”
• The judge observed that the 14 to 18 age group is a period of “acute biological and emotional transition” and called for heightened institutional attention to prevent escalation of peer conflicts into criminal matters.

What This Case Establishes: Even in a non-bailable offence like Section 109 BNS, courts retain the power to:

• Grant limited interim bail for compelling humanitarian reasons
• Look beyond the charge itself and consider the holistic circumstances of the accused
• Use judicial observations to highlight systemic failures in youth counselling and school safety

For accused persons — particularly first-time offenders or juveniles — this case demonstrates that a well-argued bail application can succeed even in a Section 109 BNS matter, provided the right grounds are presented.

2026 Featured Case Study 3: Punjab & Haryana High Court — ASI Anticipatory Bail Case

[ASI Dilbag Singh vs. UT Chandigarh, Section 482 BNSS, 2025-2026]

This case addressed the application of anticipatory bail under the BNSS framework in a Section 109(1) BNS context — the first time such issues arose involving a serving police officer.

The Facts: An ASI serving as a Personal Security Officer (PSO) to a High Court Judge was alleged to have pointed his service pistol at the Chief Court Officer and attempted to fire during a routine inquiry. An FIR was registered under Section 109(1) BNS and Section 25 of the Arms Act.

The Defense Arguments:

• All 10 rounds in the service pistol were recovered intact — suggesting no actual firing attempt materialized
• Only simple injuries were alleged
• The accused had tendered an apology
• The recovery of the service weapon was complete

The Court’s Analysis: The Punjab & Haryana High Court granted anticipatory bail after examining the totality of circumstances. Key factors that weighed in the accused’s favour: absence of actual gunfire, simple nature of injuries, apology tendered, and full cooperation with recovery.

Why This Case Is Important: It demonstrates that anticipatory bail under Section 482 BNSS remains available even in Section 109 BNS cases — provided the accused can show the charge is disproportionate to the actual facts and present compelling factors for release.

Section 109 BNS — Landmark Supreme Court Principles (Applied in 2026)

While several of these principles were established under Section 307 IPC, they continue to govern Section 109 BNS cases in full force:

Ratan Singh vs. State of MP [(2009) 12 SCC 585] The Supreme Court held that the nature of injury is not the determinative factor. Even simple or minor injuries can sustain a conviction under Section 307 IPC / Section 109 BNS, if the intention to kill is clearly established.

State of MP vs. Kashiram [AIR 2009 SC 1642] “The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.” This principle is applied daily by Sessions Courts across India in Section 109 BNS bail and trial decisions.

R. Prakash vs. State of Karnataka [(2004) SC] Even where serious harm is not caused, an offender can be convicted under Section 109 BNS if they knew that their acts would probably result in death. This case expanded the “knowledge” limb of Section 109.

The Trial Process Under Section 109 BNS — Step by Step

Step 1 — FIR Registration

The investigation begins with an FIR (First Information Report) registered at the police station under Section 109 BNS. Since the offence is Cognizable, police can arrest without a warrant immediately.

Step 2 — Police Investigation

Police investigate under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC. Evidence is collected including medical reports, forensic analysis, digital evidence, and witness statements. Evidence admissibility is now governed by the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872.

Step 3 — Charge Sheet (Police Report)

After completing the investigation, police submit a Charge Sheet (Police Report) to the Court of Session.

Step 4 — Charges Framed

The Sessions Court examines the Charge Sheet and frames formal charges against the accused under Section 109 BNS. The accused is asked to plead — guilty or not guilty.

Step 5 — Evidence and Trial

The prosecution presents its evidence first — witnesses are examined in chief and cross-examined. The defence then presents its witnesses. Digital evidence (CCTV footage, WhatsApp messages, call records) is now explicitly governed by BSA 2023.

Step 6 — Arguments

Both prosecution and defence present their final arguments summarising the evidence, the law, and their submissions on the charge.

Step 7 — Judgment

The Sessions Judge delivers the verdict. If convicted, the sentence is pronounced based on the specific sub-section under which conviction is recorded. Either party may appeal to the High Court, and thereafter to the Supreme Court.

Government Update: New Criminal Laws Effective 1 July 2024

The Indian government officially replaced three foundational criminal statutes effective 1 July 2024:

Practical Impact for Section 109 BNS Cases:

• Anticipatory bail is now governed by Section 482 BNSS (replacing Section 438 CrPC)
• Regular bail is governed by Section 483 BNSS (replacing Section 439 CrPC)
• All cases registered on or after 1 July 2024 use the new framework exclusively
• Cases registered before that date continue under the old CrPC and IPC framework for the duration of those proceedings

Section 109 BNS vs. Related Offences — How Courts Distinguish

The distinction between Section 109 BNS (attempt to murder) and Section 117 BNS (grievous hurt) often determines the difference between a non-bailable and bailable offence. The prosecution’s ability to prove intent to kill is what elevates the charge from one to the other.

Common Defenses in Section 109 BNS Cases

An experienced criminal lawyer will evaluate one or more of the following defense strategies:

1. No Intent to Kill If the intent to cause death cannot be proven beyond reasonable doubt, the court may reduce the charge to grievous hurt (Section 117 BNS) or simple hurt (Section 115 BNS), which carry significantly lighter punishments.

2. Sudden Provocation (Exception to Murder) If the accused can show they acted under grave and sudden provocation without premeditation, the offence may fall under a lesser category.

3. Private Defense If the accused was acting in lawful private defense of their person or property, the act may be entirely excused. The right of private defense under Section 34–44 BNS is absolute if the conditions are met.

4. Falsely Implicated / Fabricated FIR In land disputes, family feuds, or business conflicts, false or exaggerated FIRs under Section 109 BNS are not uncommon. A strong bail application can expose these contradictions early.

5. Medical Evidence Contradicts Charge If the injury sustained by the victim is clinically inconsistent with the weapon or act alleged, or the body part injured is not vital, this directly challenges the intent element.

Frequently Asked Questions (FAQ)

What is Section 109 BNS?

Section 109 BNS is the provision under the Bharatiya Nyaya Sanhita, 2023, that defines and punishes the offence of attempt to murder — the replacement of Section 307 IPC. It applies when a person acts with intent or knowledge that their act could cause death, but death does not actually occur.

Is Section 109 BNS bailable or not?

Section 109 BNS is non-bailable. The accused cannot demand bail as a matter of right. Bail can only be granted by the Sessions Court or High Court at its discretion after examining the facts and circumstances.

What is the punishment under Section 109 BNS?

If no injury: imprisonment up to 10 years + fine. If injury is caused: life imprisonment (court’s discretion). If the offender is already a life convict and causes injury: death penalty or imprisonment for the remainder of natural life.

What replaced Section 307 IPC?

Section 307 IPC has been replaced by Section 109 BNS (Bharatiya Nyaya Sanhita, 2023), effective from 1 July 2024.

Can I get bail in a Section 109 BNS case?

Yes, but it requires a compelling bail application. Courts consider the nature of the weapon used, the injury caused, the intent established, the accused’s criminal history, and the risk of interference with the investigation. An experienced criminal lawyer significantly improves the prospects of bail.

How to apply for anticipatory bail in Section 109 BNS?

File an anticipatory bail application under Section 482 BNSS before the Sessions Court or High Court before arrest. The application must demonstrate that the arrest is likely, explain the accused’s side, and present grounds showing why custody is not necessary.

What court tries Section 109 BNS cases?

The Court of Session (Sessions Court) has exclusive jurisdiction to try Section 109 BNS cases.

Is Section 109 BNS compoundable?

No. Section 109 BNS is non-compoundable — the case cannot be withdrawn or settled between the parties out of court.

What is the difference between attempt to murder and grievous hurt in BNS?

The critical distinction is intent. Section 109 BNS requires proof of intent to cause death. Section 117 BNS (grievous hurt) requires only intent to cause serious injury. If the prosecution fails to prove death-intent, the court may convict for grievous hurt under Section 117 BNS instead — which carries a lesser sentence.

Can a life convict be sentenced to death under Section 109 BNS?

Yes. Under Section 109(2) BNS, if a person who is already serving a life sentence commits an attempt to murder and causes hurt to the victim, the punishment can be the death penalty or life imprisonment for the remainder of the offender’s natural life.

Quick Reference Table — Section 109 BNS at a Glance

Conclusion — Expert Guidance by Adv. Dhanashree Bankhele

Section 109 BNS is one of the most serious provisions in Indian criminal law. An FIR under this section triggers immediate arrest without a warrant, a non-bailable status, and a trial before the Sessions Court that can result in life imprisonment — or, in the most extreme cases, death.

The 2026 cases featured in this guide illustrate two important dimensions of how Indian courts are applying Section 109 BNS today:

• The Karnataka Hampi Attack verdict shows that courts will impose the harshest available punishment — life imprisonment for the remainder of natural life — where the act is brutal, premeditated, and strikes at vulnerable victims in public spaces.
• The Delhi student interim bail case shows that courts retain humanity and nuance even within the strict non-bailable framework — a well-argued application supported by the right facts can still succeed.

The lesson is clear: legal strategy matters enormously from the very first day. From the moment an FIR is registered, every decision — whether to apply for anticipatory bail, how to present yourself to police during investigation, what evidence to preserve — shapes the outcome of the case.

If you or someone you know is facing a charge under Section 109 BNS, do not delay. Consult an experienced criminal lawyer immediately.