Attempt to Commit Offence

Commission of crime can be classified in the following four phases:-

1. Intention to commit offence.

2. Preparation to commit offence.

3. Attempt to commit offence.

4. Actual commission of offence.

Intention: Mere intention to commit an offence without any overt act or omission is not permissible . For example, if a person intends to kill another person but does not do any overt act, keep his intentions to himself then law cannot punish him. Intention must be accompanied by some act or omission.

Preparation: In general, preparation to commit offence is also not punishable. Preparation consists of arranging means or measures necessary for the commission of offence. Mere preparation in most cases does not affect the sense of security of the society. It would be impossible to show in cases that the preparation was directed to a wrongful act or it was done with a wrongful motive. For example, a person intends to kill another person and for this purpose he purchases a gun. These two stages are of intention and preparation, therefore person is not liable till this stage. However, there are certain exceptional cases where preparation is punishable. Following are the cases in which preparation is made punishable:-

1. Collecting arms etc. with intention of waging war against the government of India [Section 149 BNS]

2. Committing depredation on territories of power or at peace with the Government of India [Section 154 BNS]

3. Possession of counterfeit coin, Government stampt [Section 180 BNS].

4. Making or selling or being in possession of instruments for counterfeiting coins or Government stamps [Section 181 BNS]

5. Making preparation to commit dacoity [Section 310(4) BNS].

Attempt: The word 'attempt' has not been defined in the Sanhita. According to Stephen an attempt to commit offence can be defined an an act done with the intent to commit the crime and forming part of series of acts which would constitute actual commission of not interrupted. It is direct movements towards the commission of an offence after preparations have been made.

In Aman Kumar v. State of Haryana, 2004 Cri. LJ 1399 (SC) Supreme Court held that attempt means an act which if not prevented would have resulted in full consummation of the act attempted. Supreme Court in Koppula Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 1874 held that attempt may be described as an act done in part-execution of a criminal design, amounting to more than a mere preparaiton, but failing short of actual consummation and possessing all elements of actual crime except for actual commission.

The BNS has dealth with 'attempt to commit offences' in specific and general way. It treats 'attempt' in the following manners:-

1. The commission of offence and attempt to commit offence are dealt in same section and the extent of punishment prescribed is same for both. For example; (i) Offences against the State [Section 147, 151, 152, 153 and 158]; (ii) Abetting mutiny [Section 159]; (iii) Offences against public tranquility [Section 195(2) and 196]; (iv) Offences against public justice [Section 233, 235, 237 and 250]; (v) Offences related to extortion, robbery and dacoity [Section 308(4), 308(6), 310(1), 311]; and (vi) Criminal traspass [Section 331(8)].

2. Attempt to commit specific offence are deatlt separately and separate punishments are provided. For example, (i) Attempt to commit murder [Section 109]; (ii) Attempt to commit culpable homicide not amounting to murder [Section 110]; (iii) Attempt to commit robbery [Section 309(5)] and (iv) Attempt to commit reobbery or dacoity when armed with deadly weapons [Section 312].

3. Attempt to commit offences for which no specific punishment is provided in Bhartiya Nyaya Sahita [Section 62].

Section 62 provides punishment for attempt generally. It is a residuary section. The offences, the attempts of which do not fall under any of the sections of the Bharatiya Nyaya Sahnita, are punishable for their attempts under Section 62. It provides that whoever:-

i. Attempts to commit an offence punishable by this Sanhita with 

ii. Imprisonment for life; or

iii. Imprisonment, or

iv. To cause such an offence to be committed, and 

v. In such attempt does any act towards the commission of the offence,

Shall, where no express provision is made by this Sanhita for the punishment of such attempt, by punished with

i. Imprisonment for a term which may extend to one-half of the imprisonment for life or,

ii. One-half of the longest term of imprisonment provided for that offence, or 

iii. With such fine as is provided for the offence, or with both.

Distinction between stage of attempt and stage of preparation

Attempt is a stage after preparation and there cannot be a rigid formula to determine when preparation stops and attemp begins. The test to determine when the stage of preparation stops and stage of attempt begins is a test of a reasonable man i.e. when will a reasonable man deep that his preparation is over and one more act on his part will result in the commission of the offence. Test of completion of preparation is to be seen in reference to the belief of the accused. The accused may believe that his preparation is over, even though it may not have been over. Still as a matter of policy the accused shall be liable for criminal attempt even though actually he never completed the stage of preparation.

In Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698, Supreme Court held that the person commits the offence of attempt when -

1. He intends to commit that offence;

2. Having made preparations and with the intention to commit the offence does an act towars its commission;

3. Such act need not be penultimate act towards the commission of offence but must be an act during the course of committing the offence. 

Supreme Court affirmed the view in Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1973 SC 2655. For example, A purchased a poison; however, believing honey to be poison, he mixed honey in the food. He would be liable for attempt to murder, as the policy is to punish the mind. Various theories/ tests have been evolved to ascertain the distinction between attempt and preparation.

Proximity Rule

It provides that an act constitutes attempt if the offender has completed all the important steps necessary to constitute the offence but the consequence which is the essential element of offence has not taken place because of external circumstances, want of skill etc. 

In State of Maharashtra v. Mohd Yakub, (1980) 3 SCC 57 Supreme Court held that some act must be done towards the commission of offence and such act must be 'proximate' to the intended result. Proximity need not be in relation to time and action but in relation to intention. The act or a series of acts, in order to be designated as an attempt to commit an offence, must be sufficiently proximate to the accomplishment of the intended substantive offence.

In R v. Taylor, 1895 1F&F 511 A was found guilty of attempting to commit arson because he was detected in the act of lighting a match stick behind the haystack. In R v. Robinson, (1915) 2 K.B 342 a jweler with the intention of fraudulently obtaining insurance money created a fake scene of robbery by typing himself and hiding the jwellery. Later, investigation revealed that he made false pretensions. He was not convicted for attempt. The Court held that the jeweler only made preparations for the commission of offence.

In R.v. Shivpuri, (1986) 2 All ER 334 a person was arrested with a suitcase which he believed to contain prohibited drugs. In fact the suitcase contained harmless vegetable matter. Nevertheless, he was heldd liable for the attempt to commit offence of carrying prohibited drugs. The Court held that a person could be held guilty of an attempt only if he did an act which was more than merely preparatory to the commission of the offence which he intended to commit.

Doctrine of Locus Paenitentiae

Locus Paenitentiae is a latin maxim which means opportunity to withdraw from the commission of crime. The maxim provides that the accused must be given an opportunity to withdraw from the commission of the offence. An act will amount to mere preparation if a man on his own accord gives it up before the criminal act is carried out.

For example, X intending to murder Z by poisoning purchases the poison and mixes it in food of Z. But at this stage X does not give the food to Z. X is not guilty of attempt to murder because there is still an opportunity to withdraw. It may happen that X may change the mind and does not give the food to Z.

In Malkiat Singh v. State of Punjab, AIR 1970 SC 713 Supreme Court held that the test for determining whether the act of the appellants constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind, and does not proceed further in its progress, the acts already done would be completely harmless.

Theory of impossibility

An interesting question which deserves attention in whether an attempt to commit an impossible act amount to offence. Impossibility may be a legal impossibility, physical impossibility or impossibility through ineptitede. Legal impossibility means that the accused has done everything within his means but, in fact, for reasonas unknown to him, what he has done does not amount to crime.

In Queen v. Collins, 9 Cox CC 407 it was laid down that if a man attempted to do an impossible act he would not be liable. R v. McPherson and R v. Dodd were decided on same lines. These cases were overruled in R v. Ring (1892) 17 Cox 491. Illustration (b) of Section 62 is based on this case. Illustration (b) provides A makes an attempt to pick the pocket of by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z having nothing in his pocket. A is guilty under this section.

Object theory

It differentiates the cases where the object is merely mistaken and cases where the object is absent. In former case it would be an attempt while in latter case it would not be an attempt. For example, A intending to kill B shoots at an empty cartidge supposing that it is occupied. A has committed the offence. A intending to kill B fires at B's coat thinking it to be B. A has committed the offence.

On the job theory

In this theory it is seen whether the accused was actually 'on the job' i.e whether he had gone beyond the stage of preparation and was in the next stage of trying to implement the planned action. It was laid down in R v. Osberon (1920) 84 JP 63. In this case A gave certain pills for causing abortion. It was found that pills were innocuous. It was held that since the person was not on the job he is not liable for attempt. This case has been overruled in R v. Spicer, (1955) 39 Cr. App 189.