LAW RELATING TO ATTEMPTS : NEED FOR A FRESH LOOK

I Introduction
CRIMINAL LAW punishes not only acts amounting to offencesbut also takes
notice of attempts to commit such wrongful acts which affect the society.
Sometimes preparation may amount to attempt and vice versa. There is a very
thin line between preparation and attempt. This is because attempt has now-
here been defined in the Indian Penal Code 1860 (IPC) or elsewhere. Prepa-
ration and attempt are two different stages in the commission of crime. The
former is generally not punishable whereas the latter is always punishable.
An attempt indicates something done towards the commission of an offence.
To reconcile the inconsistencies created by conflicting English decisions,
some theories have been developed. The well settled doctrine recognises
that impossible attempts are not punishable. Practically, there is a difference
in impossible attempts against property and human body. But no adequate
basis for such difference is suggested by the existing legal provisions. So it
is not safe to generalise principles regarding liability for attempts. By
nature, every attempt is not a substantive offence. It is so if it is made
punishable by law. The judiciary has attempted to make clear the law
relating to attempts from time to time. But still there are a number of issues
to be considered minutely for the proper analysis of the concept of law
of attempts in India. Why "attempt" is punishable? What amounts
to an impossible attempt? What is the basis to make distinction in
impossible attempts against property and human body? What is the real
distinction between preparation and attempt? Is law of attempts exhaus-
tive? Does it require any change in consonance with the changed social
circumstances?
The purpose of the present paper is to remove ambiguities and to provide
a precise meaning to attempt with the help of relevant penal provisions and
judicial pronouncements. Also impossible attempts are to be pinpointed.
To answer these interrogatives it is essential that the historical back-
ground, meaning and scope, legislative position of attempts as well as the
judicial view and the opinion of the Law Commission in this respect be
considered critically.

II Background

Law of attempts is of a late origin. In early criminal law there was

no doctrine of attempts. Under Hindu law attempts were generally not
recognised. In Kautilya's Arthshastra9 'chested* is made punishable,
though attempts were not dealt with separately or independently. Attempts

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were to be punished as main offences. In Moghul period attempts, though

a very few, could be punished as an offence under Mohammedan law based
on retaliation. On arrival of Britishers, Mohammedan law remained in-
tact for some time but gradually they tried to apply English common law
under the guise of 'equity, justice and good conscience'. With the incep-
tion of the modern concept of criminology mens rea was recognised as an
essential element of crime. Consequently attempts were made punishable
independently. With the introduction of English law in India attempts
found a place in Indian criminal law also. Section 511 of the Indian Penal
Code did give a formal shape to attempt without any precise or concise
definition.
Ill Attempt-meaning and scope
Attempt, an overt act towards the commission of a crime, has not been
defined anywhere in criminal law. Practically it is not possible to define an
attempt as an offence. In the commission of an offence attempt is the third
stage. In the Indian Penal Code attempt has been given some technical
meaning. Huda1 refers an act or series of acts constituting an
attempt^) if offence has completed all or at any rate all important steps
necessary to constitute the offence but the consequence which is an essential
ingredient of the offence has not taken place, (b) if the offender has not
completed ali steps necessary to constitute the offence but has proceeded
far enough to necessitate punishment for the protection of the society.
Stephen2 defines attempt as '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. The point at which such a series of
acts beigns cannot be determined. It depends upon the circumstances of
each particular case.'
In fact attempt requires three important elements—(a) specific intent to
commit crime; (b) an act towards accomplishment of the crime, and (c) failure
of that act. Act towards the accomplishment requires two things-means
must be adapted to the end and act must be beyond preparation.
By nature, every attempt is not a substantive offence unless it is made
punishable by a particular statute. The Indian Penal Code provides attempt
some peculiar concept. Attempt to do impossible acts are outside the scope
of criminal law.
About the scope of attempt, section 511 as general in nature and section
307 being particular, there is a difference of opinion of the High Courts.
Specifically, Allahabad High Court is of the view that section 511 does
not apply to attempt to commit murder which is exclusively provided for

1. Syed Shamsul Huda, The Principles of the Law of Crimes in British India 58
(Reprint 1982).
2. Sir James Stephen, A Digest of the Criminal Law, Art. 50, p. 42 (7th ed. 1926).

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19911 LAW RELATING TO ATTEMPTS 397

by section 307. But the Bombay High Court had contrary view. The
Supreme Court, in Om Prakash v. State of Punjab,9 has held that like
section 511 in section 307 too the act need not be the penultimate act. The
act of the accused to accelerate the death of his wife by denying food for
several days amounts to an act within the mischief of section 307 to make
the accused liable for attempt to commit murder becuase cf the provisions
of section 33 of the Code.

IV Rule of interpretation
The basic principle of interpretation of criminal statutes imposes an
obligation to interpret them strictly. Codified criminal law like ours leaves
no room to go beyond the letters of enacted provisions. Consideration
of the circumstances of the particular case is also an essential ingredient
while interpreting the provisions of enacted law. But we are not free to
import the doctrines and principles of uncodified law of England or any
other country for the purpose of interpretation of our criminal law. The
controversies, if any, are to be resolved on the basis of minute considera-
tion of the circumstances and the contents of the law on the particular
point for the purpose of proper interpretation of criminal statutes. Yet
in no case anologies based on English decisions can be considered as guide-
lines for the interpretation of our criminal law. What is important is the
language of the penal statute which makes an act as an attempt.

V Preparation and fdtempt

Preparation and attempt are closely connected with each other. Appa-
rently, there are two stages in the commission of a crime. Preparation
consists of arranging means or measures necessary for the commission of
the offence. Sometimes the eailier stage of preparation is more alarming
than the latter. In such cases preparation is made punishable keeping
in view the grave nature of the offence for which the preparation is made.
The examples of such preparations are preparation to wage war against
the Government of India, preparation to commit depredation on the terri-
tories of a friendly country;4 preparation to commit dacoity;5 making or
selling instruments for counterfeit coins;6 and possession of counterfeit
coins; counterfeit stamps; false weights and measures.7

VI Distinction between attempt and preparation

It is not easy to distinguish attempt and preparation. There is a very

3. A.LR. 1961 S.C. 1782.

4. Indian Penal Code 1860, ss. 122 and 126.
5. Id., s. 399.
6. Id., ss. 233, 234, 235, 256 and 257.
7. Id., ss. 242, 243, 259 and 266.

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thin line of demarcation. Although the distinction between attempt and

preparation requires consideration of all circumstances of the particular
case but for the sake of academic tests certain points of distinction can be
drawn up. Firstly, preparation consists procuration of means and measures
necessary for the commission of the crime whereas attempt is the direct
movement towards the commission of the offence after preparation.
Secondly, preparations are, generally, not punishable but attempts are
always punishable. The reason why preparations are not punishable are
fourfold, viz., (0 a preparation is generally a harmless act; (ii) it is
impossible to show that the preparation was for wrongful act and there
might be chances of change of mind of the doer; (Hi) if preparation is made
punishable it would increase the number of offences in multiple manner,
and (iv) a mere preparation does not create disturbance or alarm to the
society.

VII Attempt-statutory provisions

On minute consideration of the provisions relating to attempts in the
Indian Penal Code, it is revealed that there can be four kinds of attempts,
viz., (i) when attempts and main offences are punished in the same
manner without distinction; (ii) when attempts are merged in the main
offences; (Hi) where attempts are separately made punishable; and (fv) when
attempts are made punishable as general. The first category of attempts
includes offences against the state,8 offences relating to forces,0 public
tranquillity,10 public servants11 (now omitted from IPC because of the
Prevention of Corruption Act 1988). Offences relating to election,12 false
evidence,13 coins and stamps,34 offences against public moral and decency,16
offences relating to religion,16 offences against human body,17 property/8
documents,10 and criminal intimidation.20
Second category of attempts includes act or series of acts forming part
of the transaction. They have been made punishable without using the
word 'attempt*. The word assault as appeared in section 351,

8. Id, ss. 121, 124, 124A, 125 and 130.

9. Id., s. 131.
10. Id, ss. 152 and 152A.
11. Id, ss. 161, 172, 163 and 165.
12. Id., ss. 171B, 171C and 171D.
13. Id., ss. 196, 198, 200 and 213.
14. Id., ss. 239, 240, 241 and 251.
15. Id, ss. 292 and 293.
14. Id., ss. 239, 240, 241 and 251.
15. Id., ss. 292 and 293.
17. Id., ss. 307, 308 and 309.
18. Id., ss. 385, 387, 388, 391, 393, 394, 4397, 398 and 460.
19. Id., s. 477.
20. Id., s. 508.

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1991] LAW RELATING TO ATTEMPTS 399

is equivalent to attempt. Offences like abetments,21 consspiracy,22

unlawful assembly,23 and criminal intimidation24 are made punishable
at the stage of attempt. Offences relating to coin and government
stamps*5 are made punishable at every stage i.e., preparation, attempt and
accomplishment. These acts are made punishable at the stage of attempt
but they are not treated as attempts. They are punishable as substantive
offences.
Thirdly, there are certain attempts which side by side of the main offence
are dealt with entirely separate to that of the offences. These can be
exemplified as attempts to commit murder,26 attempt to commit culpable
homicide27 and attempt to commit suicide.28 Attempts in offences relating
to property such as assault or use of criminal force in attempt to commit
theft of property carried by a person and assault or use of criminal force
in attempt wrongfully to confine a person29 and attempt to commit robbery80
are punishable independently.
Fourth category of attempts contains general attempts as provided in
section 511. Section 511 runs:

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

Provisions of section 511, are applicable to limited offences. They are

not applicable to attempts to commit very serioue offences punishable
with death or the offences the attempts of which are rmde punishable
expressly. Section 511 is also not applicable to the attempts of those
offences which are punishable with fine only. The examples of which
offences are liability of owner or occupier of land on which an unlawful
assembly is held, liability of person for whose benefit riot is committed

21. Id., ss. 107-120.

22. Id., s. 120A.
23. Id., ss. 141-160.
24. Id., ss. 503-510.
25. Id., ss. 230-263A.
26. Id., s. 307.
27. Id., s. 308.
28. Id., s. 309.
29. Id., ss. 356 and 357.
30. Id., s. 398.

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and liability of agent of the owner or occupier for which benefit riot is
committed;31 false statement in connection with an election, illegal payment
in connection with an election and failure to keep election accounts;32
prohibition of fictitious stamps;33 making atmospher noxious to health ;?4
danger or obstruction in public way or line of navigation, public nuisance,
or keeping lottery office35 and making or using documents resembling
currency notes or bank notes.36 Also attempts to commit offences punisha
under any special or local law are out of the scope of section 511.
There are certain statutes which either expressly or otherwise make
attempts punishable. The formal account of such enactments are as
follows:
The Indian Telegraph Act 1885; the Indian Railways Act 1890;
the Prisons Act 1894; the Reformatory Schools Act 1897; the Indian
Post Office Act 1898; the Explosive Substances Act 1908; the
Indian Pass Port Act 1920; the Police (Incitement to Disaffection)
Act 1922; the Indian Emigration Act 1922; the Contonment Act
1924; the Cotton Industrial (Statistics) Act 1926; the Dangerous
Drugs Act 1930; the Indian Air Craft Act 1934; the Registration
of Foreigners Act 1939; the Import and Export (Control) Act 1947;
the Prevention of Corruption Act 1947; the Employees State In-
surance Act 1948; the Central Reserve Police Force Act 1949; the
Administration of Evacuee Property Act 1950; the Representa-
tion of People Act 1951; the Protection of Civil Rights Act 1955;
the Essential Commodities Act 1955; the Prize Competition
Act 1955; the Dowry Prohibition Act 1961; the Custom Act 1962;
the Defence and Internal Security of India Act 1971; the Terrorist
Affected Areas (Special Courts) Act 1984; the Terrorists Disruptive
Activities (Prevention) Act 1985; the Immoral Traffic (Prevention)
Act 1986; and the Sati Prohibition Act 1988.
VIII Implied attempts

There are certain provisions where the language of the provision implies
attempt. For e.g., possession of instrument or material for the pur-
pose of using the same for counterfeiting coin, delivery of coin possessed
with knowledge that it is counterfeit, possession of counterfeit coin by a
person who knew it to be counterfeit when he became possessed thereof
ieUvery of coin possessed with the knowedge that it is altered, and having

31. Id., ss. 154, 155 and 156.

32. Id., ss, 171G, 171H and 1711.
33. Id., s. 362A.
34. Id., s. 278.
35. Id., ss. 283, 290 and 294A.
36. Id., s. 489E.

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1991] LAW RELATING TO ATTEMPTS 401

possession of instruments or material for counterfeiting government

stamps.37 Similarly, sale of noxious food or drink, adulteration of drugs,
sale of adulerated drugs and sale of drugs as a different drug or its prepara-
tion.38 And, selling goods marked with a counterfeit property mark.c9
Attempts in this category are attempts to imputation prejudicial to
national integration,40 offences relating to coin and government stamps.41

IX Attempts to commit offences with respect to rash and negligent acts

The attempts falling in this category are made punishable as substantive
offences like escape from confinement or custody negligently suffered by
public servant, resistance or obstruction to lawful apprehension of another;42
conveying person by water for hire in unsafe or overloaded vessel, danger
or obstruction in public way or line of navigation, negligent conduct with
respect to poisonous substance, negligent conduct with respect to fire or
combustible matter, negligent conduct with respect to explosive substance,
negligent conduct wth respect to machinery, negligent conduct with respect
to pulling down or repairing buildings and negligent conduct with respect
to animal.43 Causing death by rash and negligent act, act endangering
life or personal safety of others, causing hurt by act endangering life or
personal safety of others and causing grievous hurt by act endangering
life or personal safety of others44 are other cases covered in this category.
X Attempt to commit offence by omission
It is clear from the language of sections 32 and 33 of the Indian Penal
Code that act also includes omission. Such omission may be brought
within the offences of dowry death45 and cruelty by husband46 or relatives
of husband in the Indian Penal Code.
XI Object of the legislature
Why attempts are made punishable is the question to be considered
in the light of the object of the legislature to make attempts punishable.
The obect is to nib the evil in the bud. The paramount reaon is to save the
society from danger. It is undoubtedly clear that if the person attempting

37. Id., ss. 235, 239, 242, 250, 254 and 256.
38. Id., ss. 273, 274, 275 and 276.
39. Id., s. 486.
40. Id, s. 153B.
41. Id., ss. 230-263A.
42. Id., ss. 223 and 225.
43. Id., ss. 282-289.
44. Id., ss. 304A and 336-338.
45. Id., s. 304B.
46. Id,, s. 498A.

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to an offence remains unpunished he could execute his desire whenever

he gets opportunity in future. In fact upto the stage of attempt the doer
woud have done everything for the accomplishment of an offence,. There
remains nothing to be done on the part of the accused. It is a matter of
chance that the desired consequences have not been occurred. Therefore,
it s proper to punish attempt to protect social interest.

XII Recommendation of Law Commission

The Law Commission of India in its 42nd Report in 1972 has suggested
that the last chapter of the Indian Penal Code which contains provisions
relating to attempts not expressly covered elsewhere in the Code be deleted.
It was recommended that a new section 120-C be introduced to deal with
the cases of attempts of general category.

XIII Impossible attempts

Impossible attempt is a concept developed through judicial explanations.
Previously, impossible attempts were not treated as punishable because
they were treated to be mere preparations or mere intention. Illustrations
appended to section 511 are about the the attempt to theft. A makes an
attempt to steal jewels and breaks open the box which is empty and picks
the pocket in which there was nothing. But there are cases where the act
done is not capable of bringing about the crime intended create complica-
tions. For instance, A intending to kill B fires at B's big coat hanging
in his room mistaking it for B; shooting at a shadow, or administering
drug to miscarriage when the woman was not pregnant, administering
sugar mistaking if for arsenic, killing of a person by witchcraft, breaking
open the locks of an empty box and picking of empty pocket are some of
the cases of impossible attempts.
As a matter of fact impossible attempts create confusion. Impossible
attempt is not synonymous with attempt to commit impossible offences.
Non-production of consequence of offence intended may be due to many
circumstances, such as, lack of skill on the part of the doer, defence means
not known to the accused, absence of object, interruption by independent
agency, voluntary desistance, withdrawl because of fear of being csught,
fear of identification, in capacity and lack of opportunity etc. Possibly,
impossibility of an attempt can be considered as follows:

(1) Factual impossibility

It indicates impossibility in the form of physical incapability or un-
suitability of means. A woman cannot rape. A child below seven cannot
be held liable for attempt to commit an offence. In case of unsuitability
of means the means chosen should be unsuitable apparently and not other-
wise.

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1991] LAW RELATING TO ATTEMPTS 403

(2) Impossibility at the other end

Apart from the impossibility on the part of the doer, impossibility may
be at the other end e.g., empty pocket, empty box where the actor thinks
otherwise. These are attempts desipte absence of object.
(3) Genuine impossibility
This type of impossibility includes thrusting hand into empty pocket,
assault to rob whom who has nothing and administration of a drug for
abortion to the woman not factually pregnant.

(4) Failure by frustration

This category includes dilemma cases. The possible instance may be
went off a bomb before the vehicle reached the spot. The act amounts
attempt but the failure is the result of a fortuitous act.

(5) Legal impossibility

Legal impossibility means attempt to commit an act which is not punish-
able by law. Attempt to adultery on an unmarried woman is an appro-
priate example of this category.
It is clear from the above that impossibility may be threefold-factual,
relative and legal. Factual means absence of object, relative indicates
impossibility on the part of actor and legal means the act not punishable.
Impossibility of means attracts liability for attempt if the object is there.
Objective test requires fulfilment of object. If the object is not in existence
there can be no liability for attempt. Despite consideration of impossible
attempts from different angles, there is a disputed point of difference of
liability in cases of attempt against property and human body. Attempt
to pick the pocket which is empty is punishable whereas shooting at shadow,
tablet administered for abortion of a woman not pregnant do not attract
liability. The reason why is it so, is not available either in the statutory
provisons or in judicial decisions. The possible reason is either gradation
in offences against human body which is not in case of property or treating
such cases as an exception on the ground of alarm to the individual person
and not the society at large or on the ground of public policy.

XIV Judicial view

The main controversy encircled to the subject is to draw proper distinc-
tion between preparation and attempt. The contents of section 511, Indian
Penal Code, do not provide help for the proper construction of attempt
and to distinguish preparation from attempt. English cases and old
Indian cases also do not provide proper guidelines. Various tests, accor-
ding to the circumstances, have been applied by the Supreme Court to draw

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up i line between preparation and attempt. A few cases are discussed

in brief here. In Narayandas v. State of West Bengal*1 the accused,
on search by the custom officer was found in possession of undeclared
currency notes sewn secretly in his trousers. It was held that the
act went beyond the stage of preparation and amounted to attempt. It was
observed:

That an attempt lo take out the currency notes in question is an

offence punishable under the Sea Customs Act is clear from the
provision of S. 167 Item 8. The Foreign Exchange Regulation
(Amendment) Act, 1952 (8 of 1952) came into force in February,
1952. By this Act S.23B was introduced into the Foreign Exchange
Regulation Act. Section 23B makes punishable an attempt to
contravene the provisions of the Foreign Exchange Regulation Act
or any rule, direction or order made thereunder...48

Similarly, in Bashirbhai Mohammedbhai v. State of Bombay?* the

accused were trapped on the basis of information of complainant on the
charge of having in possession duplicate currency notes which were
recovered. It was held that the acts of the accused had gone far beyond
the stage of preparation and were acts towards the commission of the
offence within the meaning of section 511 of the Indian Penal Code.
In Om Prakash v. State of Punjab,™ the accused deliberately starved
his wife and accelerated her death. It was held that the course of conduct
adopted by the accused amounted to attempt to commit murder.
Emphasizing the provisions of section 307 and 511, Indian Penal Code,
it was observed:

On the parity of reasoning, a person commits an offence under S. 307

when he has an intention to commit murder and in pursuance of that
intention does an act towards its commission The intention to
commit an offence is different from the intention or knowledge re-
quisite for constituting the act as an offence. The expression 'who-
ever attempts to commit an offence' in S. 511 can only mean' who
intends to do a certain act with the intention or knowledge necessary
for the commission of that offence.' The same is meant by the ex-
pression' whoever does an act with such intention or knowledge and
under such circumstances that if he, by thata ct caused death, he
would be guilty of murder in S. 307.51

47. A.I.R. 1959 S.C. 1118.

48. Id. at 1121.
49. A.I.R. 1960 S.C. 979.
50. A.I.R. 1961 S.C. 1782.
51. Id. at 1786.

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1991] LAW RELATING TO ATTEMPTS 405

In Abhayanand Mishra v. State of Bihar** the accused falsely showed

himself to be a graduate. He obtained permission letter and tried to appear
as private candidate in M.A. examination. On detection of truth he was
debarred from appearing and prosecuted. He was convicted for attempt.
While distinguishing attempt from preparation, it was observed:
There is a thin line between the preparation for and an attempt to
commit an offence. Undoubtedly, a culprit first intends to commit
the offence then makes preparation for committing it and thereafter
attempts to commit offence. If the attempt succeeds, he has corn-
committed the offence; if it fails due to reasons beyond his control,
he is said to have attempted to commit the offence. Attempt to
commit an offence, therefore, can be said to begin when the pre-
parations are complete and the culprit commences to do something
with the intention of committing the offence and which is a step
towards the commission of the offence. The movement he com-
mences to do an act with necessary intention he commences his
attempt to commit the offence.63
The test of demarcation between preparation and attempt was agains
considered in Malkiat Singh v. State of Punjab.5* The truck carrying paddy
bags from Punjab was stopped by the sub-inspector of food and supplies
department and taken into possession at about 18 miles from Delhi. The
accused was prosecuted fci contravention of Punjab Paddy (Eypcrt Con-
trol) Order. The driver admitted he was given paddy for being transported
to Delhi. It was held that the accused could not be convicted under section
7 of the Essential Commodities Act and the Paddy Export Control Order.
The act was only preparation to commit the offence. There were chances
of changing the mind by the accused. It was observed:
It was merely a preparation on the part of the appellants and as a
matter of law preparation for committing an offence is different from
attempt to commit it. The preparation consists in devising or
arranging the means or measures necessary for the commission of
the offence. On the other hand attempt to commit the offence is a
direct movement towards the commission after preparations are
made
The test for determining whether the act of the appellants constuted 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
65
its progress the acts already done would be completely harmless

52. A.I.R. 1961 S.C. 1698.

53. Id. at 1700.
54. A.I.R. 1970 S.C. 713.
55. Id. at 715.

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In State of Maharashtra v. Mohammed Yakub,5* the accused attempted

to smuggle out of India silver. They were charged under Foreign Exchange
Regulation Act, Import and Export (Control) Act, 1947 and Customs Act,
1962. The trial court convicted the accused but the appellate court acquitted
them. The Supreme Court convicting the respondents for attempt to
export silver summarised the law of attempt as follows:
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 place
but in relation to intention. In other words, the act must reveal with
reasonable certainty, in conjunction with other facts and circum-
stances and not necessarily in isolation an intention as distinguished
from mere desire or object to commit the particular offence, though
ths act by itself may be merely suggestive or indicative of such atten-
tion, but that is, it must be indicative or suggestive of the intention.57

It was further observed that what constitute an'attempt' is a mixed

question of law and fact depending largely upon the circumstances of the
particular case. Attempt defies a precise and exact definition.

XV Conclusions

It is clear from the proper construction of the statutory provisions as

well as judicial pronouncements that attempt is the stage when the offender
has completed all steps necessary for the commission of an offence but the
consequence has not taken place because of the reasons beyond his control.
So far as the meaning of attempt is concerned it expresses an act towards the
commission of an offence. In order to consider the steps it is third step
taken after the second-the preparation.
Impossible attempt, a fiction of law, is not proper. It creates con-
fusion and misconception. The case law on impossible attempts does not
depict a picture clear from mist. Even then some principles have yet been
emerged which are as follows:

(0 An absolute impossible attempt is not punishable. For instance,

shooting at a shadow, administering sugar in place of arsenic or
abortion dose to a woman who is in fact not pregnant.
(ii) Object mistaken and object absent are different from each other.

56. A.I.R. 1980 S.C. 1111.

57. Id. at 1117-18.

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1991] LAW RELATING TO ATTEMPTS 407

Shooting at a shadow is an example of the former whereas empty

pocket is of the latter.
(111) Attempts to commit offence against property and against human
body are distinguished. In the former there is subjective element
whereas in the latter it is objective. In the latter the nature of
injury is an important factor,
(iv) The test of danger and insecurity renders the actor liable on the
basis of mens rea for the attempt though the offence may be
impossible,
(v) Part execution theory attracts liabilty in cases where the offender
has not completed all steps but proceeded far enough to commit
crime.
(vi) Deliberate act beyond preparation attracts liability for attempt
though the act does not amount an attempt. For instance, the act
of purchasing machine forging counterfeit coins or currency notes,
(v/i) Absolute impossibility saves the actor from the liability for attempt
if the act does not cause alarm to the society at large. The proper
instance may be administration of harmless drug for the purpose of
abortion,
(viff) Preparation with firm determination of comitting crime ought to
be punished as an attempt. It includes cases where the object of
preparation is firmly declared in advance before the means are
collected e.g. purchase of a gun to kill the particular person.
(ix) In most of the cases of commission of crime mens rea is ancillary to
the actus reus but in attempt actus reus is ancillary to mens rea.
Despite all these prepositions it is stillunanswered why and on what
basis attempts against property and not against human body are made
punishable where the object is absent. Thrusting hand into an empty
pocket is an attempt to commit theft but shooting at shadow or idol
presuming existence of a human being is not an attempt. The possible
answer to this distinction may be gradation in the offences against human
body which does not exist in offences against property. Offences against
human body may be assault, simple hurt, grievous hurt and attempt to
murder etc. There is no such gradation in offences against property. A
theft is theft irrespective the value of the property. But it has no certainty.
The rule of interpretation of criminal statutes leaves no room for specu-
lation. We are bound by the letters of law.
It is also worthwhile to note that we cannot and should not import the
doctrines, principles, theories and prepositions of English law. Criminal
law has its own principles and dilemmas. We have our codified criminal
law which leaves no room for importing any foreign analogy. The rule of
interpretation also imposes obligation of strict interpretation. It is sub-

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408 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 33 : 3

mitted that the interpretation of the provisions of criminal law be confined

to the language used in the Code or Acts. To meet the situations not
covered by the codified law, it is safer to insert new provisions in the existing
law rather to import any foreign principles.
There is a very thin line of demarcation between preparation and attempt.
Sometimes they overlap each other. Also there are situations where attempt
may amount preparation and vice versa for the purpose of imposing punish-
ment. In nut shell it can be said that there is no certainty and the distinction
is not free from the mist of confusion. For the purpose of ascertaining the
nature of an act as to whether it amounts preparation or attempt it is to be
considered that in case of change of mind of the actor if there is no harm to
the society the act would amount to mere preparation.
It is clear from the judicial pronouncements that an attempt to commit
an offence against property where the object is absent is punishable whereas
the attempt of such nature against human body is not punishable. It seems
strange that the priority of importance is given to property rather than
human being. It is submitted that the attempts to commit offences against
human body be given equal importance, if not more, by appropriate
statutory provisions in the substantive oriminal law.
Section 307 provides punishment for attempt to murder and section
308 for attempt to commit culpable homicide. But there is no clear indi-
cation of the word 'attempt' in both these sections. It is submitted that
both these sections be amended suitably. Similarly in section 511
'attempt' and 'an act towards the commission of an offence* are used.
Attempt itself indicates an act done towards the commission of an
offence. This duplication is not desirable. It is submitted that section
511 be deleted. It would be appropriate to make provisions to punish
an attempt in the same section dealing with the main offence or adding
new section just after that to avoid complications and confusions. For
this purpose necessary amendment be made in the relevant sections. A
new section may also be inserted in the 'general explanations' providing
concrete and precise meaning to the term 'attempt*.
Keeping in view the nature of attempt and its impact on the society
minimum mandatory sentence be prescribed in each section dealing with
attempts on the basis of mens rea. It would be proved an effective measure
to nib the evil in the bud. The State, being welfare state, is under pregnant
obligation not only to punish the offender after commission of the offence
but to take appropriate steps before commission of the offence at the stage
of preparation or attempt to avoid the chances of harm to the society and to
minimise the attempts.
Impossible attempt is a misnomer. It is confusive. If the attempt is
impossible, it should be out of the premises of criminal liability. The
illustrations appended to section 511 indicate absence of object and not
impossible attempt. In fact impossible attempt is not synonymous with the

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1991] LAW RELATING TO ATTEMPTS 409

attempt to commit impossible offences. To make the position clear illus-

trations indicating absence of object in attempt against human body may
also be included to depict a clear picture free from mist of confusion created
by the judicial pronouncements in this field.
Socio-economic offences, being offences not only against any individual
but whole of the nation, should be dealt with strictly. Attempt to commit
such offences should attract minimum mandatory punishment keeping in
view their nature and impact upon the national economy.
In the last it is submitted that legislature is under an obligation to take
prompt and adequate steps to redraft the relevant provisions dealing with
attempt in the Indian Penal Code as well as other enactments to make them
effective to suppress the actual commission of the offence at appropriate
stage.
Mool Singh*

*LL. M., Ph. D., Lecturer in Law, Government College, Ajmer (Rajasthan)

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