I.

INTRODUCTION

Crime is a central component of culture, and it is an inherent fact of any functioning society, no
matter what. There are different stages of crime, including motive, planning and attempt, and the
Indian Penal Code, 1860 is the primary law governing arrests and punishment, even at stages of
attempt, for breach of law.

Under the IPC, attempts are treated in three ways:

 A single portion that deals with both the crime and the attempt. The retribution is the
same.
 As mentioned in Sections 307, 308 and 393, the attempt is dealt with in conjunction with
the offence. The penalty, however, varies.
 A general clause, i.e. In the latter two cases, Section 511 to inculcate all attempts missed
out. Since attempt is not defined by IPC, 1860, the article deals with the various
interpretations given to the word attempt and the tests evolved to understand the term.

II. “ATTEMPT” AND ITS INTERPRETATION

Section 511 becomes key to grasp attempt, aside from certain parts that deal with attempt
together with the offence. Section 511 states,

“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.”

There are three stages of a crime: intention, preparation and attempt. Attempt may be understood
as, “if the attempt had succeeded, the offence charged would have been committed.”1 A crime is

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committed if the attempt is successfully accomplished. However, for such attempts that have no
other clear requirements, Section 511 falls into the picture if such an attempt fails. Section 511
includes attempts to commit crimes punishable by incarceration. The penalty is also reduced
because the damage incurred by such an attempt is not on the same pedestal as the injury caused
when a crime is committed.

In relation to Section 511 and planning, there were different decisions which were discussed in
the following points:

A. Koppula Venkat Rao v. State Of Andhra Pradesh (2004)2

In the present case, the person was held to be guilty for attempt to rape and punishment
was given in accordance with Section 376 and Section 511. Following points were also
laid down about the stages of a crime:
1. Why is an attempt made punishable?
The judgment says, “An attempt is made punishable, because every attempt,
although it falls short of success, must create alarm, which by itself is an injury,
and the moral guilt of the offender is the same as if he had succeeded.”
2. Attempt v. Intention
Intention is defined as “the direction of conduct towards the object chosen upon
considering the motives which suggest the choice.” An intention alone does not
suffice for any punishment.
3. Attempt v. Preparation
Attempt begins when the preparation is done. Attempt includes a step towards the
commission of the offence with the required intention whereas preparation
requires arrangement of modes and measures to commit an offence. Attempt is
even said to be a “direct movement towards the commission after preparations
are made”. The judgment also lays down the fact that attempt requires more
determination than preparation.
4. What is an attempt?
Unless prevented by something unforeseeable, an attempt must lead to
commission of the offence. It lies somewhere between preparation and actual

2 https://indiankanoon.org/doc/1762218/
 completion of the offence. In an attempt, the only element for a “substantive
crime” missing must be the consummation of the crime.

B. Abhayanand Mishra vs The State Of Bihar (1961)3

In this case, by submitting an examination application, photographs and paying the fee, a
student tried to cheat the administration of a university. An admission card was then
given. The planning was said to have been completed at the point when the application
for submission was completed. All other acts were held to be 'attempts' after such
planning. In compliance with Section 420 read in Section 511, he was convicted. The
definitive result was:
1. Attempt includes series of acts
The word “attempt” in Section 511 is very wide. The term attempt includes a
“series of acts” and they will all be punishable if these acts are instrumental in
commission of the offence. Therefore, it cannot be said that only the final act in
an attempt will be punishable. Therefore, for an attempt, there must be intention
to commit a crime, an act must be done towards the commission of the offence
and such act may or may not be the “penultimate act”.4

A. Malkiat Singh v. State of Punjab (1970)5

The export of paddy was prohibited and a truck with loads of paddy was caught near
Delhi. It was argued that such loading and transport was merely planning, and not an
attempt. Since the person in question had a lot of time to change his mind, under Section
511, he was not found guilty of attempt. It was set out as follows:
1. Constituents of Attempt
For an attempt to be committed, firstly, there must be an intention to commit the
said offence and secondly, there must be an act which forms a part of the “actus
reus of a criminal attempt”.
2. Actus Reus
The constituent part of actus reus must not be preparatory but must be
“sufficiently proximate” to commission.

3 https://indiankanoon.org/doc/487780/.
4 https://indiankanoon.org/doc/398091/
5 (AIR 1970 SC 713)
 3. Test to differentiate preparation and crime
It would amount to preparation if the external act done is such that if the person
changes his mind, the series of acts already committed remain harmless.
However, an attempt would be done if the act would lead to commission if not
prevented by an “extraneous cause”. The court also mentioned that the “the
offence contemplated must be ‘far removed’ from the completion, otherwise in
every case where accused interrupted at the last minute from completing the
offence, he may always say that he was about to change his mind”.

III. TESTS FOR DISTINGUISHING “ATTEMPT” AND

“PREPARATION”

There has been a lot of discussion as to where the line between planning and attempt should be
drawn. At what point would an offense equate to an attempt, exactly? The tests built to
understand this are the following:

A. The Proximity Rule

The word proximity means "closeness" and so this measure also shows us how near the
defendant was to the crime. Instead of asking us if all acts have already been committed, it
determines how much of an act is left to constitute a substantial offence. The attempt may or may
not be the penultimate act, as has already been mentioned. The act alleged as an attempt,
however, must be closer, and not remote, to what the accused intended to do. The characteristics
of this test are below:

1. The proximity mentioned is determined on the basis of intention. The closeness in terms
of time and action is irrelevant. As laid down in State of Maharashtra v. Mohd. Yakub6,
“the act must be indicative or suggestive of intention”. Justice Chinnappa Reddy was a

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 supporter of proximity to intention. However, Justice Sarkaria mentioned that such
proximity should be measured literally i.e. physical closeness.7
2. Secondly, “an act is considered to be proximate if it is the last act that was legally
necessary for the offender to do although it may not have been the last act that he
intended to do.”8 For instance, in the case of R v. Taylor 9, a person lit a matchstick right
near a haystack. However, he extinguished the lit stick thinking that someone was
watching him. Here, this lighting of the stick was the last act mentioned. Therefore, the
person was held guilty for the attempt.
3. The proximity rule has another test associated with it i.e. “Rubicon test”. In this test, an
attempt was something which was “immediately connected” with the offence. This test
was laid down in Widdowson10 and Stonehouse11. However when a person pointed a
loaded gun to a person sitting inside the car, he contended that this was not immediately
connected since two to three more acts were still left. However, this contention along
with the Rubicon test was rejected in Jones.12 Therefore, this test does not mandate
“immediate connection”.
4. Therefore, to truly determine the sufficiency of a committed act, one must use the test to
determine whether the act was preparatory or it is “sufficiently proximate” to commission
of a crime.13
Except for the Abhayanand Mishra’s case, the test of proximity was also referred to in Sudhir
Kumar Mukherjee v. State of WB14. In this case, an employee forged the signature of his seniors
in a firm, to depict false delivery of limestone, in order to receive the money for payment.
However, he was caught. Since the challan was already prepared and the clerk to be approached
was chosen, it was held that a direct movement towards committing the offence was done. Even
though the challan had a stamp and signature missing, it was held that the accused was not

7 http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000020LA/P001795/M025766/ET/151377070922etex
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8 http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000020LA/P001795/M025766/ET/151377070922etex
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practising merely preparatory acts. Consequently, the accused was held guilty of cheating under
Section 420 read with Section 511.

B. The Doctrine of Locus Poenitentiae

This doctrine or test deals with those cases in which the preparatory stage is completed by a
person but his or her mind changes towards the end or right before the act. If such a withdrawal
happens on behalf of the accused deliberately, this test determines it as mere planning and does
not count it as an attempt.

 And if the individual has a real intent to commit an act, before any crime can occur, the
individual gives up on the act.

 The right to abandonment before commission serves as a shield for the defendant. Such
abandonment must be voluntary, only by the consent of the accused himself.

 The explanation can be either psychological or circumstantial for backing out.

As discussed above, in Malkiat Singh v. State of Punjab15, the person was not held guilty since
the truck is 40 kms away from Delhi and therefore, there is time and opportunity for a change in
commission of crime. However, in Mohd. Yakub’s case16, the Apex Court noted that the test of
locus poenitentiae must be used depending on “particular facts of the case”, and should not be
used as a general rule.17

However, some limitations were recognised in this theory. In MP v. Narayan Singh,18 a lorry
was intercepted, carrying fertiliser without license. The movement itself was restricted under
Fertilizers (Movement Control) Order, 1973 read with Ss. 3 and 7 of the Essential Commodities
Act, 1955. The Apex Court held that this was not just a mere preparation. It couldn't have been

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believed that the accused would have went back. Consequently, in contrast to previous cases, it
was held that this was “attempted unlawful export of the fertilizer bags”. Additionally, when a
truck was intercepted 50 yards from Punjab (two to four second distance), it was said that , “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.”19

C. The Equivocality Test

The "Equivocality Test" is another test to separate attempt and training. In order to qualify as an
attempt, according to this test, the person's actions must necessarily indicate, beyond any
reasonable doubt, that there was an intention to commit the crime. The act does not serve any
reasonable motive other than the intention of committing the crime.

Conclusively, the act of attempt must “clearly and unequivocally” indicate that the accused is
moving towards the intended object. Hence, the act must speak for itself. 20 The premise behind
this test is that “one’s actions clearly reflect his intention”21 or “actions speak louder than
words”.

D. An Impossible Act
According to this test, a person is guilty under Indian Penal Code for attempting an act even if
the act intended to be done is impossible to perform.

For instance, the person would be held guilty even if :

1. Attempts are made to kill a person with an unloaded gun.
2. Attempts are made to steal money from an empty purse.
3. Attempts are made to steal jewellery from an empty jewel box.

19 http://14.139.60.114:8080/jspui/bitstream/123456789/742/17/Criminal%20Attempt.pdf, citation 54
20 https://indiankanoon.org/doc/177730098/
21 http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000020LA/P001795/M025766/ET/151377070922ete
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The presumption behind this experiment is that a crime is expected to be committed and as tep is
taken in the same direction. Even if the act is successful in this situation, and completed, there
would be crime-in-effect. Performance may be unlikely, but because the defendant's inability to
commit is not due to his or her own act or omission, it must count as an effort.

In R. v. Ring22, the accused was held guilty even of an attempt to steal a ring even though there
was nothing in the coat of the woman. The first illustration in Section 511 also depicts this test. It

says, “A makes an attempt to steal some jewels by breaking open a box, and finds after so

opening the box, that there is no jewel in it. He has done an act towards the commission of
theft, and therefore is guilty under this section.” In Asgarali Pradhania v. Emperor23, the
doctrine was not applied when a person, wanting to cause miscarriage, administers a liquid to his
wife. However, since the liquid was not harmful, the miscarriage became impossible.
Consequently, the accused was acquitted.

E. Social Danger Test

In this test, a person is held guilty of an attempt because it produces a troubling condition in
society even though an attempt fails. In the context of vulnerability and the fear of risk, this
causes injury. The gravity and seriousness of an offence is also important for this evaluation. For
example, the fear of such a theft damages the entire neighboring society when a chain is stolen
from a woman in society.

IV. CONCLUSION

A no-crime society is a utopian idea. In the opinion of the author, when an individual is punished
for an attempt, the deterrent effect is higher than normal punishments. This is why it is important
to widely interpret the word "attempt." No innocent person, however, needs to be harmed. This is
why we need to follow judicial pronouncements and verify whether an act falls under the
category of attempt or planning in order to balance these two thoughts. Before examining the

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stage of crime in the Indian penal Code, 1860, the proximity checks, locus poenitentiae,
equivocality, impossibility and social risk must be studied.