Attempt in Criminal Law

By | January 26, 2018
Criminal Law

Introduction

An attempt to commit a crime is itself a crime. According to Salmond an attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. Once an act enters the arena of attempt, criminal liability begins, because attempt takes the offender very close to the completion of a crime.

There are four stages in the commission of a crime.

  • Intention to commit a crime.
  • Preparation to commit a crime.
  • Attempt to commit a crime. and
  • The actual commission of the offense.

In Amar Kumar vs. State of Haryana (2004, CriLJ 1399 SC) the Supreme Court held that the word attempt is to be understood in its ordinary meaning. It has to be distinguished from intention to commit offence and preparation. Attempt means and act which if not prevented would have resulted in full consummation of act attempted. Attempt begins the preparation ends.

Abhyanand Mishra vs. State of Bihar (AIR 1961 SC 1698)

Facts: The accused applied to the university for admission to appear at the examination he was permitted to appear in the examination. University found out that the accused was neither a graduate nor a teacher thereupon he was held guilty under Section 415 read with section 511 IPC.

Decision: Court held that preparation was complete when the accused prepared the application for submission to the university and the moment he dispatched it he entered the realm of attempting to commit the offence of cheating.

Attempt is the direct movement towards the commission after preparation are made the dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case.

Principles

In order to determine at what stage an act or a series of acts done towards the commission of the intended offense would be an attempt to commit offence, some principles have been evolved with the help of judicial pronouncements. They are:-

  1. Proximity rule
  2. Doctrine of Locus Paenitentiae
  3. Impossibility Test
  4. Social Danger Test
  5. Equivocality Test

The test for determining whether the act of the appellants constituted an attempt on preparation is whether the overt acts already done are such that if the offenders changes his mind and does not proceed further in its progress the act already done would be completely harmless. If they would be so it would amount to preparation only. Malkiat Singh vs. State of Punjab (AIR 1970 SC 713)

Attempt under IPC 1860

The IPC has dealt with attempt in four separate ways:

  1. Attempt to commit offences in general section 511
  2. Attempt to commit capital offences section 307 and 308.
  3. Attempt to commit suicide section 309.
  4. Attempt to commit offences against the state.
  1. 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 1[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 2[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.

The section is limited in the following respects in its scope –

Firstly, it has a reference only to attempt to commit offences punishable by the Indian penal code and not to attempt to commit offences under any special or local law.

Secondly, out of such offenses the section refers to only those that are punishable with imprisonment for life or imprisonment. That is to say, the offences punishable with death or fine only are not in contemplation under the sections.

Thirdly, the section is an application to attempt of those offences for which there is no express provision made by this code for punishment.

Express provisions has been made by the code for items falling under various sections 121, 124, 124A,125, 131, 151, 153, 160, 161, 162, 163, 165, 196, 198, 200, 213, 239, 240, 241, 307, 308, 309, 385, 387, 389, 391, 393, 394, 398, and 460. Consequently section 511 does not apply to such attempts.

Attempt to murder an attempt to commit culpable homicide

In view of the gravity of the senses of Murder and culpable homicide separate actions have been enacted to punish the attempts to such offences adequately – section 307 and 308 deal with attempts.

  1. Attempt to murder.

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 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.

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

It was held in Madan Pal vs. State of UP (1999 Cri LJ 3383) that if the intention is to commit murder and in pursuance of the intention a person does an act towards its Commission irrespective of the fact that the act is penultimate or not the offence under section 307 Indian Penal Code would be made out.

Also in the State of Maharashtra vs. Balram Patil (1983 Cri.LJ 331 (SC) it was held by Supreme Court that to justify a conviction under section 307 it is not essential that bodily injury capable of causing death should have been inflicted.

Difference between section 511 and section 307

In R vs.  Francis [(1867) 4 BHC (Cr.C) 7] the Bombay High Court held that section 511 is wide enough to include all kinds of attempts punishable under the Act including the attempt to commit murder which has been specifically provided in section 307 of the code.

In the case of Om Prakash vs. State of Punjab [(1961) 2 Cr LJ 848 (SC)] the accused denied food to his wife for several days by keeping her confined in a room with a view to accelerate her death though she ultimately managed to escape. The court held that it was a case of slow poisoning. It might be the beginning of the attempt but would nonetheless be an attempt. Thus the court upheld the conviction.

Section 308. Attempt to commit culpable homicide.

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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Section 309. Attempt to commit suicide.

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both.

Author – Mayank Shekhar

Source:-

  1. K.D. Gaur, Textbook on Indian Penal Code, Fifth Edition 2014
  2. Ratanlal and Dhirajlal, Indian Penal Code, Thirty Fifth Edition
  3. SCC Online

One thought on “Attempt in Criminal Law

What did I miss? Don't forget to leave your valuable feedback

This site uses Akismet to reduce spam. Learn how your comment data is processed.