THEORIES OF ATTEMPT

One of the most difficult questions in Criminal Law which creates riddle is “why the Attempt
to commit an offence is being criminalized? In other words what are the values that
criminalizes the Attempt? What stages of crime are punishble? Why attempt is punishable
under Indian Penal Code? An Attempt has been called as a preliminary crime. 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. Attempt is the direct
movement towards the commission after the preparation are made. Mere intention to commit
a crime, not followed by any act, does not constitute an offence. Intention to commit a crime
is not punishable underIndian Penal Code, because it is impossible to read mind of a man. In
general, preparation is not punishable, because a preparation apart from motive is
harmless.Once an act enters the arena of attempt, criminal liability begins, because attempt
takes the offender very close to the completion of a crime. An attempt creates alarm which is
itself is an injury , and the moral guilt of the offender is the same as though he had suceeded.
It is very difficult to decide when an act has crossed the arena of preparation and travelled
ahead to the point of an arrempt. Every case is to be judged according to its own facts and
circumstances. In order to determine whether an act is preparation or attempt five principles
have been evolved with the help of judicial pronouncements. These are: Proximity rule,
Doctrine of Locus Paenitentiae Test,Impossibility Test, Social Danger Test, Equivocality
Test.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a
substantial step toward completing the crime, but for reasons not intended by the criminal, the
final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually
considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a
type of inchoate crime, a crime that is not fully developed. The crime of attempt has two
elements, intent and some conduct toward completion of the crime. 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.Attempt is therefore comprised of three elements: (1) intent to commit a crime; (2)
conduct that constitutes a substantial step toward completing the crime and (3) a failure to
complete the crime.

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Inchoate crimes are incomplete crimes which must be connected to a substantive crime to
obtain a conviction. Examples of inchoate crimes are criminal conspiracy, criminal
solicitation, and attempt to commit a crime, when the crime has not been completed. It refers
to the act of preparing for or seeking to commit another crime.

In every crime there are four successive stages in its commission,

i. Intention to commit a crime.

ii. Preparation to commit a crime.
iii. Attempt to commit a crime. and
iv. The actual commission of the offense.

As a general rule, mere preparation itself does not constitute an offence, and not punishable at
the stage of preparation. There are certain exceptions to this rule. In the following
circumstances, the accused can be convicted for his mere preparation to commit offence, and
they are:-(a) Waging war: Preparation to commit waging war against the State under Sec. 122
is an offence, and is punishable;(b) Preparation to commit depredation on the territories of
any power at peace with the Government of India under Section 126;(c) Preparation for
Dacoity under Sec. 399;(d) Preparation of certain Documents.

Earlier under English common law, attempt was not a crime. Gradually, the law evolved, and
a defendant who committed attempt resulting in severe harm was punished for a minor crime,
typically a misdemeanor. One of the first documented cases of attempt was Rex v. Scofield,
Cald. 397 (1784) .In Scofield, a servant was convicted of a misdemeanor for attempting to
burn down his master’s house with a lighted candle.

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. These are:-

i. Proximity rule
ii. Doctrine of Locus Paenitentiae
iii. Impossibility Test
iv. Social Danger Test

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 v. Equivocality Test

In the Proximity Test, Proximity basically means complete close toward commission of
crime. Close nexus or complete closeness are decided by court on the basis of circumstancial
evidences available. Proximity explains the causal factor which is closes, not necessarily in
time or space, but in efficacy to some harmful consequences; in other words, it must be
sufficiently near the accomplishment of the substantive offence.

The doctrine of locus poenitentae refers to the possibility of a person who, having made
preparations to commit an offence , actually backs out of committing it, owing to a change of
heart or out of any other type of compulsion or fear. Thus, an act will amount to a mere
preparation and not an attempt, if the person, on his own accord , gives up the idea of
committing a crime before the criminal act is carried out. In other words, so long as the steps
taken by the accused leave room for a reasonable expectation that he might , either of his own
accord, because of the fear of consequences that might befall him or for whatever reason,
desist from doing ahead with the contemplated act, then he will be treated in law as only
being in the stage of preparation , and no criminal liability will be fastened to him. However ,
if he desists from proceedings further owing to his acts being discovered or because a police
officer was as his elbow , he ceases to be a beneficiary of the doctrine of locus poenitentae, as
thereafter he has no time for repentance.

In Impossible Attempt, it was for some time supposed that it would be no crime if a man
attempted to do that which in fact was impossible to do. This fallacy was due to the fact that
impossible attempts were considered to be mere preparation.

In Social danger test the seriousness of the crime attempted and apprehension of the social
danger involved in it are taken into account to distinguish an act of attempt from that of
preparation. Example: A gives pills to a pregnant woman to procure abortion, but they have
no effect because the drugs turns out to be innocuous. A would be guilty of an attempt to
cause miscarriage since the act would cause an alarm to society and would have social
repercussions.

The equivocality test, a continuation of the proximate rule and the doctrine of locus
paenitentiae, suggests that an act done towards the commission of the offence if, only if , it
unequivocally indicates the intention of the doerto accomplish the criminal object. if what is
done indicates beyond reasonable doubt that the end is towards which it is directed, it is an

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attempt, otherwise it is a mere a preparation. in other words, the steps taken or acts done by
the accused must speak for themselves. Res ipsa loquitur means “the thing speaks for itself” . The
res ipsa loquitur test, also called the unequivocality test, analyzes the facts of each case
independently.

Criminal attempt is of three types:-1.Implied Attempt: In the same section punishment for
both actual crime and attempt to crime are given .2.Express Attempt : Specific offence in
itself under Indian Penal Code. 3. Residuary Attempt : Other attempt than express attempt
and implied attempt. Punishment is upto half of the particular crime. 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.

An attempt to commit murder is the last proximate act necessary to constitute the completed
offence, but an attempt under Section 511 may include such act as well as preceding acts.

An attempt to commit murder ‘has all the ingredients of murder except death but an attempt
under Section 511 may include acts which do not constitute any of the ingredients of the
contemplated offence but tend towards its commission.

It can be conclude that attempt comes under stages of crime. Attempt can be successful and
unsuccessful. Successful attempt leads to commission of crime. Attempt is punishable under
Indian Penal Code because attempt takes the offender very close to the successful completion
of the crime. An attempt, creates alarm which of itself is an injury and the moral guilt of the
offender is the same as through he had suceeded. As reccommended by the Law Commission
of India, there is need to redraft section 511, IPC. The Law Commission of India proposed
deletion of section 511 and insertion of a new chapter VB entitled ‘Of Attempt’ consisting
two sections 120C and 120D after Chapter VA dealing with ‘Criminal Conspiracy’ witha
view to group inchoate crimes together. The comprehensive definition of attempt was
proposed by 120 C. Attempt- A person attempts to commit an offence punishable by this

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code, when-(a) he, with the intention or knowledge requisite for committing it does any act
towards its commission; (b) the act so done is closely connected with , and proximate to, the
commisssionof the offence; and (c) the act fails in its object because of the facts not known to
him or because of circumtances beyond his control.