DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

IPC Project on:

Inchoate Crime – ATTEMPT

SUBMITTED TO: SUBMITTED BY:

Mr. Malay Pandey Kumar Amritanshu
Asst. Professor 180101172 Sec-B
RMLNLU BA LLB (HONS.)

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 ACKNOWLEDGEMENT

In a student’s academic journey, project writing is one of the most significant

challenges that a student face. I am presenting this project but this would not have
been possible without the guidance and blessings of so many peoples.

I take this opportunity to express my profound gratitude and deep regards to my

guide Mr. Malay Pandey for her exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessings, help and
guidance given by her time to time shall carry me a long way in the journey of life
on which I am about to embark.

I take this opportunity to thank all my seniors and for their constant support and
guidance throughout the making of my project.

I also take this opportunity to thank my college librarian for his constant help in
finding and providing me book on this topic. I would like to thanks the staff of
Madhu Limaye library for their help for finding material on this topic.  

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INTRODUCTION

‘This is the well-established principal of criminal law that where there is no mens
rea’, there is no crime1. Though actus reas is necessary, ‘there may be the crime
even where the whole of particular acts real that was intended has not been yet
committed.’2

‘Out of the 4 stages in commission of a Crime: intention- preparation- attempt-

accomplishment’, the first two go unpunished. It’s only the certain offences for
which the preparatory stage if also punishable includes-Sec122, Sec126, Sec 403’.

‘One should not think that criminal law deals with the last proximate act that
actually produces the criminal conduct which determines the penal character. It
may often happen that the last proximate act has not been done or has failed to
produce the desired consequence. No injury may have been caused and yet the act
may be sufficient harmful and hence must be punished. Thus unlike civil law’,
criminal law takes notice of attempts to commit offences and punish them
according to the nature of the offence.

‘Thus there are certain class of offence which remain incomplete in eyes of the law
but are still punishable. Professor Kenny calls such offences as inchoate crimes.
These offence are still complete within themselves to attract the penal liability.
Also the incompletion is with regard to the last proximate act which was to be
performed’.

However the definitions for attempted crimes vary from state to state. In some
jurisdictions, the actions or acts taken for an attempted crime must go beyond
"mere preparation" for the offense. On the other hand, other jurisdictions permit a
conviction based on a wider range of actions taken towards completing a crime.

1
R.C. Nigam, Law of crimes in India, ch- 5
2
Satvir Singh v. State of Punjab 2001 8 SCC 633

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CONCEPT OF ATTEMPT

‘Intent of commit a crime is not itself criminal but it is the conduct that is so this is
universally accepted that the attempt is to commit a crime is thus an overt act
which should not allowed to go unpunished. ‘The rationale for same is that because
every attempt,’ although it falls of success, must create alarm and the moral. Guilt
of the offender is same as if he had succeeded’.

‘But the term ‘attempt’ has nowhere been defined in IPC’, it’s only the Chapter
XXIII which talks

‘About the same and has been titled as “Attempt to commit offence”. Also it does
not define attempt but simply provides for the punishment for attempting to
commit offences punishable with imprisonment for life or other imprisonment.

‘Attempt can be “define as any act’, reasonably proximate tot the commission of
act, proximity here is in term of the intention. It may be an act which to the actual
commission of crime. It mat the series of the act. Hence it can be said any overt act
done after the preparation is attempt. But what is required is that there should be
the direct link between the act performed and the offence so committed. There
should be the reasonable proximity between the act and the offence.’”

ATTEMPT TO COMMIT CRIME UNDER IPC

‘The IPC does not define this expression however there are various provisions
wherein it has dealt with attempt. ‘As observed by the SC in case of Om Prakash v
State of Punjab, the meaning of the expression “attempt to commit the offence” is
simply this, that ,“whosoever intends to do a certain act with intent or knowledge
necessary for the commission of the offence”. The code does not define the
expression “attempt to commit an offence punishable by the code”:”

Certain provision dealing with attempt under IPC are as follow:

(a) the class of offence in which the commission of an offence and attempts to
commit it are dealt with in the same section. Also the punishment for such offence
as well as attempt for its attempt are the same. This class of offence includes the
offence against the State. ‘It include the Section 124A, 121,125.

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(b) The offence and its attempts are dealt with side by side in the same section but
the punishment for the same is provided in the separate provision/ section. ‘For
example, it include section 307, 308, and 393.

(c) Attempt to commit suicide under section 309 of IPC. Thought this section still
exist on statue book but is of no relevance as of now. As the attempt to suicide as
offence now has been decriminalized by Mental Health Care bill passed the
parliament in April 2017.’

(d) There is Sec 511, which cover the residuary of other offences. It is a general
section for covering the other attempts.

ATTEMPT UNDER SECTION 511

‘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.”

‘Section 511 of the Indian Penal Code is a general section that makes punishable
all attempts to commit offences punishable with imprisonment for life or
imprisonment excepting those punishable with death or with fine only’. Section
511,’IPC provides for punishment for an attempt to commit an offence under the
Penal Code. The very policy underlying in Section 511, IPC seems to be for
providing it as a residuary provision. It does not apply to offence under special or
local laws’.”

‘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

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constitute an offence. Only such attempts are punishable under Section 511 for
which no express provision is made by the Code’.” Thus section 511 include

(a) attempt to commit an offence punishable by this code with imprisonment for
the life or imprisonment’, or

(b) Cause such an offence to be committed’, and

(c)’in such attempt does any act towards the commission of the offence’.

In Satvir Singh vs. State of Punjab3, it was observed that “Section 511 of the Indian
Penal Code makes attempt to commit an offence punishable. The offence
attempted should be one punishable by the Code with imprisonment. The
conditions stipulated in the provision for completion of the said offence are- (i) the
offender should have done some act towards commission of the main offence; (ii)
such attempt is not expressly covered as a penal provision elsewhere in the Code.
‘Thus attempt on the part of the accused is sine qua non for the offence under
Section 511’, IPC.’ If the act of the accused asking his wife/victim to go and
commit suicide had driven her to proceed to the railway track for ending her life
then it is expressly made punishable under Section 498A of the IPC’. Section
498A, IPC makes cruelty as a punishable offence. One of the categories included
in the Explanation to the said Section (by which the word cruelty is defined) is
thus: (a) Any willful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; when it is so expressly made
punishable the act involved therein stands lifted out of the purview of Section 511,
IPC.

In Abhayanand Mishra vs. State of Bihar 4 ,’the appellant applied to the Patna
University for permission to appear at the 1954 M.A. Examination in the English
as a private candidate representing that he was a graduate having obtained his B.A.
degree in 1951 and that he had been teaching in a certain school’. He attached
bogus certificates in this regard. The University gave the permission and issued
admit-card. In the meantime, however, the University came to know about the
forged application of the applicant.

3
Satvir Sing v. State of Punjab AIR 2001 SC 2828
4
Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698

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The issue before the Court was whether appellant was guilty of an 'attempt to
cheat' the University, under Section 415, IPC, in as much as he, by making false
representation, deceived the University and induced the authorities to issue admit-
card.” The arguments on behalf of the appellant was that what he did was just a
preparation and not an attempt to cheat; further, admit-card was not property and
had no pecuniary value in itself.”

The Apex Court observed that a personal commits the offence of 'attempt to
commit a particular offence' when (i) he, intends to commit that particular offence;
and (ii) he, having made preparations and with the intention to commit the offence,
does an act towards its commission; ‘such an act need not be the penultimate act
towards the commission of that offence but must be an act during the course of
committing that offence’.

‘The Court held that appellant did deceived the University’, as a dishonest
concealment of facts is a deception and thus cheating under Section 415, IPC.”
Admit-card is a 'property' as it has immense value to a candidate. It is not true that
appellant did not gone beyond the stage of preparation. The preparation was
complete when he had prepared the application for the purpose of submission to
the University. The moment he dispatched it, he entered the realm of attempting to
commit the offence of cheating. He did succeed in deceiving the University and
inducing it to issue the admit-card. He just failed to get it and sit for the
examination because something beyond his control took place inasmuch as the
University was informed about his being neither a graduate nor a teacher.”

ATTEMPT AND PREPARATION DISTINGUISHED

The line between preparation and attempt is blurred. While, IPC does not define
either of them, it is very important to distinguish between them because attempt is
a crime but preparation is not. Both, Preparation and Attempt are physical
manifestations of the criminal intention. While it is not possible to give the
exhaustive definition to ‘attempt’, it may be broadly stated that an intentional act
done towards the commission of the offence.5

5
State of UP v. Ram Charan 1961 SCC online All 143

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What constitute the offence is a mixed question of law and fact, and would largely
depend upon the circumstance of the case6. It can be said that the preparation is an
‘executory act’, it comes before an attempt while attempt is an ‘Executed Act’.
Attempt is direct movement towards the Commission after the Preparation is made.

‘An attempt to commit an offence begin when the preparation are completes and
the individual started to do something toward the commission of offence with the
necessary intention to do so’.

‘If the act is near enough to actual offence’, it is an attempt and if the act is too
remote from the actual offence, it is preparation.” That is why preparation being
initial stage is not punishable but attempt being an advanced stage is always
punishable. The test to find out the difference between the two is whether the acts
already done are such that if the offender changes his mind and does not proceed
further, the act already done would be completely harmless. If it is so, it is mere
preparation and if it is not so, it is an attempt. The crucial test is whether the last
act, if uninterrupted and successful, would constitute a crime.’ However, the sharp
clear cut difference between the two is difficult to draw as one shades into the
other and dividing line can only be decided with reference to the facts of each
case’.”

‘An attempt to commit a crime must be distinguished from an intent to commit it

or preparation of its commission. There is a greater degree of determination in
attempt as compared with preparation’. Thus, in general, Preparation involves
collecting material, resources, and planning for committing an act while attempt
signifies a direct movement towards commission after the preparations are made.

‘Ordinarily, to constitute an attempt the following elements are needed’-

1. Mens rea to commit the crime

2. Ant act which constitutes the actus reus of a criminal attempt

3. Failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn “identified a key difference

between the two. He says that if the actual transaction has commenced which

6
Om Prakash v. State of Bihar AIR 1961 SC 1698

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would have ended in the crime if not interrupted, there is clearly an attempt to
commit the crime.” However, this is not the only criteria for determining an
attempt. The following are four tests that come in handy in distinguishing between
the two:

(1)Proximity Test or Last Step Test-

‘As per this test’, anything short of last step is preparation and not attempt. This is
because as long as there is a step remaining for completion of the crime’, the
person can abandon it. For example, A obtains poison to kill B and mixes it with
food that B is supposed to eat. But he has not yet given the food to B. Thus, it is
still preparation.” As soon as he keeps the food on the table from where B eats
every day, the last step is done and it becomes an attempt.

In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that
looked like they were from Bengal Coal Company. He proofread the samples two
times and gave orders for correction as well so that they would appear exactly as
forms of the said company. At this time he was arrested for attempt to make false
document under section 464. However, it was held that it was not an attempt
because the name of the company and the seal were not put on the forms and until
that was done, the forgery would not be complete.”

In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the
Patna University for MA exam and he supplied documents proving that he was a
graduate and was working as a headmaster of a school. Later on it was found that
the documents were fake. It was held that it was an attempt to cheat because he had
done everything towards achieving his goal.

(2) Locus Poenitentiae test-

A “person attempting an offence may abandon it at some stage before completion

though initially he had the intention.” Locus Poenitentiae means the opportunity to
withdraw from a bargain before it has become fully constituted.

The Supreme Court taking recourse of this doctrine ordered acquittal of the driver
and helper of a truck convicted of attempting to smuggle paddy out of Punjab in
Malkiat Singh v. State of Punjab

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In this case, the accused driver and cleaner were intercepted at Samalkha barrier
post in Punjab, which, is about 14 miles from the Punjab-Delhi border, driving a
truck containing 75 bags of paddy. They, along with others, were charged with the
offence of attempting to export paddy in violation of the Punjab (Export) Control
Order 1959. The Supreme Court acquitted the accused observing:

“The test for determining whether the act of the appellants constituted 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.”

It was said if “the theory of change of mind is pressed to illogical ends there would
hardly be left any field for the penal clause of attempt to cover the distance
between preparation and actual commission.”

(3)Social danger test-

‘The seriousness of the crime attempted has been one of the criteria in deciding the
liability in cases of attempt. If the facts and circumstances of a case led to the
inference that the resultant consequences would have been grave, the crime of
attempt is complete. In fact it is the apprehension of a social danger which the
particular crime is calculated to excite that determines liability for an attempt’.

(4)Equivocality Test:

This test suggests that an act is proximate if, and only if it indicates beyond
reasonable doubt what is the end towards which it is directed. The actus reus of an
attempt to commit a specific crime is constituted when the accused person does an
act which is a step towards the commission of that specific crime and the doing of
such an act cannot reasonably be regarded as having any other purpose than the
commission of that specific crime.” Here, intention followed by mere preparation
is not sufficient to constitute an attempt, but preparation must be followed by an
act towards the commission of the crime. According to Prof. Glanville Williams
this test on a strict application would acquit many undoubted criminals.

CONCLUSION

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‘To be guilty of an offence, it has to be proven that the defendant has the mens rea
and has committed the actus reus'. To be guilty of an attempt, however, requires
less, as the essence of the crime of attempt is that the defendant has failed to
commit the actus reus of the full offence; therefore it only has to be proven that the
defendant possessed the mens rea as the offence has not been committed, even if
the defendant intended it to be. However, there are bound to be conceptual
difficulties, especially when the primary offence embraces different states of mind
and its commission includes both result and circumstance outcomes. Nevertheless,
none of this can alter the plain meaning of intent in the imposition of attempted
criminal liability.

Hundreds of offences, including many of the oldest and most serious, prohibit
conduct that it only preparatory, and prohibited because it is only preparatory to
the commission of yet other offences. On the similar lines, forgery is a crime only
because it is a preparation for obtaining by deception or by other similar fraud.

“A person, who genuinely attempts to commit a criminal offence and fails, still
deserves to be punished just as much as a person who succeeds in committing an
offence.”

‘To conclude’, the author agrees with the view of ‘attempt’ given in the statement
above, as no matter what, it is an attempt that has been committed instead of the
full offence. The law states that the defendant is still guilty and the law also
suggests that, defendant on proximity, there isn’t much difference in an attempt
and committing the crime as the mens rea for both is the same whatever the crime
may be, both of which the author agrees with as well.

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