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The intention coupled with some overt act to achieve that intention amounts to crime as it is an attempt to commit a crime. An attempt is known as preliminary crime or inchoate crime as it is something which is not yet complete. So the answer to our earlier question, i.e., even if the crime is not completely committed successfully, the mere attempt to do so will amount to crime too.
The term attempt has not been defined in the Indian penal code. It is considered as a direct move immediately after necessary preparation is made. Attempt stage is believed to have a greater degree of determination when compared to the preparation stage[1].
The supreme court observed that to define or an attempt to define an attempt is a futile thing to do. The attempt stage is achieved when the accused takes a deliberate action to commit that crime and this overt act need not be a penultimate act.[2]
For example, if a person purchases a weapon or gun and keeps it ready and loaded, with the intention to use it on a particular person but no overt action is made against that person. Then it is at the stage of preparation yet, and not punishable. But if he tries to shoot or use the weapon by his overt actions or if is caught arrested with a loaded gun or pistol or ready weapon before he is able to complete the attack or if the attack or attempt fails, then he has committed the offence of attempting to murder.[3]
So as observed by Sir James Stephen, “attempt is an act done with intent to commit that crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted”[4].
I. What is Inchoate Crime?
This is a crime even though the intended results are not accomplished. As earlier, it was discussed that the intention of a person will not make him an offender but any act in furtherance of such intention which is overt and which can be seen, heard, observed or analysed is considered to be a crime.
As it is, after all, an extension of his evil mind and thoughts. Hence, the crimes which are not complete in itself but are something which makes it clear what his intention is and is something against the law is known as “inchoate crimes” or “inchoate offences”.
There are few inchoate crimes in Indian penal code which are made punishable by the code itself and one such crime is “attempt”. These are made punishable because inchoate crimes are observed as “a crime committed by doing an act with the purpose of effecting some other offence”.
These crimes are like steps taken in anticipation to complete the main crime and are different in meaning, from what in general the term inchoate holds. This is one of the reasons penal laws hold these types of acts as a crime too. Therefore, they are also named as “Anticipatory crimes” or “Preliminary crimes”.
II. Essentials of the Attempt
Attempt is sometimes mistaken for preparation. This too is one such topic in criminal law whose essentials play a major role in determining what is an attempt and what is mere preparation.
The following are the essentials of an attempt to commit a crime-
- there must be “an intention to commit a crime”
- Act so done must be “in furtherance of that intention” or “towards the accomplishment of that crime”
- The act must be “an incomplete work” or “fall short of a completed crime”
Hence when the above essentials are fulfilled it is proved that the act done was an attempt to commit a specific crime or crimes and is held to be punishable.
In other words, the punishable act is when the preparation ceases and attempt begins to achieve that intended result.[5] Such an act is not required to be “a penultimate act” but any act which is “towards the commission of the crime”[6] coupled with an intention to do accomplish it[7].
III. Attempt punishable under Penal Law
There are various laws in the Indian Penal Code which punish the attempt of a crime. there are four ways in which an attempt is made punishable under the penal law in India[8].
They are as follow-
1. The first way in which attempt is penalised is the category of crimes where the punishment for the attempt of that offence is expressly provided by the penal law and also “the penalisation of crime as well as its attempt in the same section”, which are-
- Offences against the state (s. 121,s. 124, s. 124-A, s. 125, s. 130)
- Abetting mutiny (s. 131)
- Offences against the public tranquillity (s. 152, s. 153-A)
- Offences against public justice (s. 196, s. 198, s. 200 and s. 213)
- Offences relating to coins and government stamps (s. 239-241 and s. 251)
- Offences relating to extortion, robbery and dacoity (s. 385, s. 387, s. 389, s. 391, s. 397, s. 398) and
- Criminal trespass (s 460)
2. The attempt in the second category is separately dealt and has a separate section for actual crime and its attempt and punishable respectively, which are-
- attempt to commit murder (s 307)
- attempt to commit culpable homicide not amounting to murder (s 308)
- attempt to commit robbery (s 393)
3. Here, this category punishes only the attempt or the actual reason may that it cannot punish the crime itself, which is like the one below-
- Attempt to commit suicide (s 309)
4. The last category is that it gives punishment for an attempt of those crimes whose punishment is not given expressly by the law, which is as the one below-
- Attempt to commit offences, for which no specific punishment is provided in the IPC (s 511)
It is dealt under the chapter “Of Attempts to Commit Offences” under Indian Penal Code.
“Section 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.— Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both”.
This particular category is important as this shows the intention of the lawmakers to punish the attempt of any kind of offence. The section is applicable only when the person committing this offence is having an intention to commit an offence (main offence), has made necessary preparation for the same and finally when there is an overt act in furtherance of such intention or a continuation of acts towards the completion of the intended offence[9]. (Satvir Singh v State of Punjab, AIR 2001 SC 2828)
IV. When does attempt begin
As earlier mentioned criminal law has topics which are often misunderstood due to close relation between them or seen to be almost similar. One such example is preparation and attempt. There is a very thin demarcation between preparation and attempt, so when preparation ceases the attempt takes the lead role.[10]
This explanation is important because often people say that the act done was not a final act towards the commission of the crime. Thus, it is considered difficult to find out this difference. We can understand this difference better with the help of case laws and the interpretation of judges therein.
In the landmark case of Abhayanand Mishra v. State of Bihar, the accused was an applicant, who applied in Patna University for Master of Arts (MA) postgraduate examination and to support his application he sent his degree certificate which showed that he was a Bachelor of Arts (BA) graduate and further he also attached certain certificates claiming to be issued by Headmaster of School and Inspector of Schools.
The university received his application through the post and accepted the same by issuing an admission card. Later on, information was passed to the University by some source and they came to know that those certificates were forged. Furthermore, it was informed that the accused was caught hold of corrupt practices during examinations and was debarred from appearing in any examination until the completion of a certain number of years.
As all this information was fabricated by the accused, the university filed a case against him for committing forgery and attempting to cheat. The lower court held him convict but the matter was appealed to the supreme court. The contention was raised by the accused that, as the act done by him was a mere preparation and not an attempt as he did not attend the examination and there was ample time with him to change his mind and not to cheat on the university.
The court rejected the contention saying that although the act done was not a penultimate act, it was something done beyond mere preparation. And the movement when the post was sent and it was beyond your control the act was said to be an attempt. So the act dsiturbed need not be a final act towards the completion of offence but can be an act beyond control after mere preparation.[11]
This judgement was affirmed and applied in another landmark case, Sudhir Kumar Mukherjee v State of West Bengal. There was an act of false delivery of limestone to his company by contacting a dealer of limestone. The act involved the creation of a challan which showed that the delivery was made and payment was to be received. And the challan required signatures of the clerk for the processing of the same.
The contention was that it was just a mere preparation and not an attempt as the accused himself was required to sign and did not do so for the payment to become valid. The court observed the principle laid down by the above case and held that the fact that the signatures of the clerk were obtained shows that the act crossed the stage of mere preparation. hence, was held to be a convict.[12]
V. Tests for determining Attempt
Although the above cases give us an understanding as to what is attempted and what is not, it may vary from case to case. It depends upon the facts and circumstances of the case and the type of offence being committed.
So the judgment has laid down few principles or also known as tested through their observance of the case for determining as to what method of approach can be applied depending upon the circumstances and facts which took place in that case. apart from other tests, the most prominent one are three-
1. The Proximity Rule
This Principle says that how proximate the act done by one is to complete the crime intended by that person. That is, if there is an act or series of acts done by the accused which is/are considered to be an attempt towards crime by the court then such act or acts may not be the final act to accomplish the intended crime.[13] But maybe so closely connected to the accomplishment and which according to the law is proximate enough to the final crime intended.[14]
In the case of R v. Taylor, the accused who had the intention and made preparation to set the haystack ablaze. Took a matchstick and lit it but then put it off for the reason of being watched. When the accused was caught for his act. He contended that he was merely preparing for such an act but did not attempt as the matchstick was put off and it was still in his control whether to fire it or not.
The court rejected the contention and held that as the act of firing the matchstick was the overt act which was towards the accomplishment of the crime and was considered an attempt to arson. The mere fact that the match stick was put off due to the fear of being watched was irrelevant.[15]
In the case of R v. Raisat Ali, a prisoner ordered for making of 100 forms which are similar to the former receipt forms used by Bengal Coal Company to some Burdwan Press. First proof was altered and correct while the second proof was suggested for corrections and alterations similar to that of the forms of company. Police caught hold of them and charged them for attempted forgery under section 464 of IPC.
The court held that the act was not an attempt as the forms did not have the name of the company nor its seal. This shows that the act was not considered by the court to be proximate to the act of forgery i.e. when there are the name and seal of the company, then it was ready or able to cheat people with forged forms. Hence this case too helped in better understanding what is the difference between attempt and preparation[16].
The judicial pronouncements of the above case i.e., Abhayanand Mishra v. State of Bihar and Sudhir Kumar Mukherjee v. State of West Bengal has been observed to be following the same principle to determine attempt. The case in which this principle was expressly established in India was in the State of Maharashtra v. Mohammad Yakub where Justice Chinnappa and Justice Sarkaria gave their own opinions in interpreting this particular principle.
Accused were found to have intended to smuggle silver from India illegally. The concerned authorities who have been keeping a watch, caught hold of those accused while there were small and large parcels of products placed on the ground near the port and the mechanical sea craft was kept ready. The lower court held that the act of the accused was so remote to their intention to illegal smuggling which was prohibited by Imports and Exports (Control) Act, 1947, Customs Act 1962, and the Foreign Exchange Regulation Act, 1947 (FERA) and acquitted.
When the matter went into appeal, the supreme court set aside the acquittal and hence otherwise. The court distinguished the preparation and attempt by the separate and concurring rulings[17]. As per Justice Chinnappa Reddy[18]–
“In order to constitute ‘an attempt’ first there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence and, third, such act must be proximate to the intended result.
The measure of proximity is not in relation to time and action but in relation to intention. The act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be indicative or suggestive of the intention”.
In this ruling, it shows that the judge wants the proximity rule to mean proximate relation to that of the intention of the accused to commit that crime.
And as per Justice Sarkaria[19]–
“Broadly speaking, overt act or step in order to be ‘criminal’ need not be the penultimate act towards the commission of the offence. It is sufficient if such an act or acts…manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence…The only step that remained to be taken towards the export of the silver was to load it on a sea-craft for moving out of the territorial waters of India.
But for the intervention of the officers of the law, the unlawful export of silver would have been consummated”.
So the judge here, meant that the proximate relation to be with that of the commission of the crime and paid less attention to intention. Talking about the mental proximity i.e., intention and other talking about the physical proximity i.e., closeness towards the accomplishment of the crime. But both in their own ways held the same thing and convicted the accused persons.
2. Locus Poenitentiae
This is a doctrine to determine when an act is merely preparation rather than when can an act be an attempt. Hence, the doctrine of Locus Poenitentiae says that when an act is such that there is ample time with the accused to choose whether to commit such crime or not. And is within the control of that person.
So, the intender may have changed his kind or have feared the consequences or due to any other reason, if the act is in control of the intender to not to commit the offence, then it is said to be mere preparation and not an attempt; hence not punishable under penal law.[20]
In the case of Malkiat Singh v. State of Punjab, the accused were a truck driver and cleaner who were caught hold near a barrier check post in Punjab which was few miles away from the inter-state border of Punjab and Delhi. They were accused of carrying 75 bags of paddy illegally being smuggled along with evidence of a letter written by consinger in Punjab to consignee in Delhi.
The accused were charged for acts, i.e., attempt to smuggle paddy in violation of Punjab Paddy (Export Control) Order 1959. The supreme court held that it is mere preparation but not an act of attempt as the carrying of paddy in a truck was such an act which had ample scope for the accused to change their mind or to be obstructed.
In this case, the judges observed that the accused might have been stopped or rejected to proceed further at any point in between the inter-state border. Hence was not punishable.
Further, this doctrine is only to be applicable in special cases and is not a general rule and the same has been affirmed in the case of State of Maharashtra v Mohammad Yakub. When the accused in that case pleaded for the application of Malkiat Singh judgement, it was said that its applicability depends upon the facts and circumstances of the case and is not generally applied.
3. Equivocality Test
This test is a mingle of the above two principles. This test requires the unequivocal intention through the act done which is considered to be fulfilling beyond a reasonable doubt that the end is towards the intended crime. In the case of State v. Parasmal[21].
The accused received an order on buying diesel of good quality and they asked the customer to come the next day. That night the accused were seen mixing the diesel with kerosene and were charged with the offence by the next day.
The accused claimed that what they did was mere preparation. Then the court observed that when they knew that the customer was going to come the next day and in furtherance, the accused tried to add diesel and kerosene night itself so that they are not caught or seen by the customer. And they did so to act in a way to cheat that diesel was of good quality.
Hence this shows how equivocally they acted in furtherance of their intention. Thus, the test was observed to be useful in determining the equivocality.
VI. Attempt to impossible Crime
The law which is given to us deals with the attempt to commit a crime which is possible to be achieved. Further, some of the rules laid down by various jurists is that if an act is towards the commission of the crime, i.e, at the verge of being committed then it is considered as an attempt of that particular act. then what if the crime is an impossible event to take place? what if that crime can never be achieved in the first place? Will that free the wrongdoer?
Yes, the law does not leave the attempter of crimes which is impossible to achieve as an innocent. This is evident from the illustrations provided by the lawmakers of our penal code in section 511.
- A makes an attempt to steal some jewels by breaking open a box and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft and therefore is guilty under this section.
- A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.
Impossibility can occur due to mainly three reasons i.e., legal impossibility, where the act done by the accused is not considered a crime in the eyes of law and which the accused may or may not be aware of[22].
Physical Impossibility, where the accused is physically not able to make that crime a possible event.[23] And Impossibility due to inefficiency, where the accused having chosen a manner or mode to commit a crime is inefficient to make that event possible.[24]
These above two illustrations give us the hint that such wrongdoers who have attempted to commit a crime which was hindered due to any kind of impossibility is considered as a guilty mind and cannot be set free. Because even though the act has become impossible due to any reason the fact that the accused had the intention to commit it, a preparation made for it and had taken a step ahead towards the completion of the crime is what was punishable under penal code.[25]
The same is well explained in the case of Munah Binti Ali v. Public Prosecutor where a woman was attempting to abort another woman and the same was complained by the victim saying that she tried to abort her. but the accused raised a contention that the victim was never pregnant and hence this is an impossible task to achieve and should be considered merely preparation.
The court rejected the contention and convicted her of that offence by considering the illustrations of section 511. And said that the attempt made by the accused may not have been accomplished but that was because the non-existence has frustrated the accomplishment otherwise the same would have become successful which was also the exact communication made by the illustrations[26].
A landmark case decided by the UK has laid down this principle very firmly when a case was pertaining to “Section 1 of Criminal Attempts Act, 1981”. This expressly includes impossible attempts too into their purview- “ (2)A person may be guilty of attempting to commit an offence, even though the facts are such that the commission of the offence is impossible”.
In the case of R v. Shivpuri, the accused was arrested by the Customs Officers for being doubtful that he was carrying prohibited items. Later on, the accused said that he was carrying with him prohibited drugs which on scrutiny turned out to be snuff powder and not drugs.
Even though the court held him convicted for his attempt. When the matter went up to the house of lords the accused pleaded it was a matter which was harmless and further he was not sure what exactly was he carrying with him. They rejected the contentions saying that he had the intention to import illegal substances and he believed it to be so.
And the mere fact that he did not know what exactly he was in possession of was immaterial as he had the knowledge that he was dealing in something prohibited by law to do so. Thus in the purview of section 1 of the act, he was held convicted.[27]
Although, this judgement was overruled in one case[28], later on was applied as a precedent in another case too[29]. Thus, the principle holds true for some specific cases and depends upon facts and circumstances.
VII. Attempt to Physical Injury
In the case of State of Maharashtra v. Balram Bama Patil, the assault took place between two groups of each respective political party. The accused were acquitted on the ground that it was not a case falling under the ambit of section 307 and held they are only criminally liable for causing simple injuries.
But the supreme court objected to this acquittal and said that the case might not follow the exact wording of section 307 i.e., assault to cause death in the ordinary course of circumstances. But the act must also be coupled with the aspect of intention and knowledge which was active in the accused and their execution thereof and held convicted.[30]
In another case, Harikishan v. Sukhbir Singh, there were injuries inflicted by two members on each other. The acquittal of the accused was challenged and the supreme court was dealing with the matter whether there was an intention lying with the accused?
The court said that intention, in any case, would depend upon the facts and circumstances, that is what weapons were used, nature of injuries, on what part the injuries were inflicted etc. And in this particular case, even though the accused were having sharp weapons they had only used the mild side of it. Hence, their acquittal was upheld.[31]
VIII. Attempt to Sexual Offences
In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, an eight year old girl was sexually assaulted in a van by the accused. The case was filed to be a violation of s 376, IPC and s 57 of the Bombay Children Act 1948 and convicted by the trial court. But when the matter went to high court they decided that as the penetration did not take place it was just a sexual assault and not attempt to rape.
But the supreme court decided otherwise that the accused had the intention to commit rape and the fact that the penetration did not take place was immaterial as the accused ejaculated to penetrate shows that there was an overt act in furtherance of scuh intention and held convict of attempt to rape.[32]
Even though the penetration does not take place, the overt acts of the accused show that he was attempting to accomplish the task. For example like making a girl naked and undressing and rubbing of the penis onto the private parts of the girl are act which does amount to attempt to rape.[33] Thus, such circumstances cannot be overlooked merely due to the fact that penetration did not take place.[34]
IX. Exceptions
The penal law punishes attempt only. But in exceptional cases, the preparation to commit an offence is also punishable under the code. They are as follows-
- Preparations made for waging war against the Government of India. (s 122)
- Preparations made for committing depredations on territories of any power in alliance or at peace with the Government of India. (s 126)
- Making or selling or being in possession of instruments for counterfeiting coins or government stamps. (ss 233-235 and 257)
- Possessing counterfeit coins, government stamps, false weight, or measures. (ss 242, 243, 259 and 266)
- Preparations made for committing dacoity. (s 399)
[1] State v. Jagdish Narain Singh 1959 Cri LJ 1014
[2] State of Maharashtra v. Mohd Yakub (1980) 3 SCC 57
[3] RC Nigam, Law of Crimes in India (vol 1, Asia Publishing House 1965)
[4] James Fitzjames Stephen, A Digest of the Criminal Law (5 edn, Franklin Classics 2018)
[5] R v. Scofield 1784 Cald 397
[6] Basirbhai Mohhomedbhai v. State of Bombay AIR 1960 SC 979
[7] State of Maharashtra v. Mohammad Yakub (1980) 3 SCC 57
[8] Shamsul Huda, Shamsul Huda’s Principles of the Law of Crimes (Eastern Book Company 2011)
[9] Satvir Singh v. State of Punjab AIR 2001 SC 2828
[10] Aman Kumar v. State of Haryana (2004) 4 SCC 379
[11] Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698
[12] Sudhir Kumar Mukherjee v. State of West Bengal AIR 1973 SC 2655
[13] Lachman Singh v. State of Haryana (2006) 10 SCC 524
[14] Narayandas Bhagwandas v. State of West Bengal AIR 1958 Cal 1118
[15] R v. Taylor 1895 I F & F 511
[16] R v. Raisat Ali (1881) ILR 7 Cal 352.
[17] State of Maharashtra v. Mohammad Yakub (1980) 3 SCC 57
[18] Ibid
[19] Ibid
[20] Re Narayanaswamy Pillai AIR 1932 Mad 507
[21] State v. Parasmal AIR 1969 Raj 65
[22] Haughton v. Smith [1975] AC 476(HL)
[23] Partington v. Williams [1975] 62 Cr App R 220
[24] Haughton v. Smith [1975] AC 476(HL)
[25] Re T Munirathnam Reddy AIR 1955 AP 118
[26] Munah Binti Ali v. Public Prosecutor (1958) 24 Malayan Law Journal 159(CA)
[27] R v. Shivpuri [1986] 2 All ER 334 (HL)
[28] Anderton v. Ryan [1985] 2 All ER 355(HL)
[29] Jones (Ian Anthony) [2007]4 All ER 112 (CA)
[30] State of Maharashtra v. Balram Bama Patil AIR 1983 SC 305
[31] Harikishan v. Sukhbir Singh AIR 1988 SC 2127
[32] State of Maharashtra v. Rajendra Jawanmal Gandhi AIR 1997 SC 3986
[33] Madan Lal v. State of Jammu and Kashmir AIR 1998 SC 386
[34] Anokhe Lal v. State of Uttaranchal (2003) Cr LJ 2602(Uttarakhand)
