ATTEMPT

A crime is committed either after premeditation or at the spur of moment. The commission of crime by a
person in the latter case, generally, travels through four distinct and successive stages. They are:

(i) the formation of the intention to commit it; (ii) the preparations for commission of the contemplated
crime; (iii) the attempt to commit it, and (iv) if the third stage is successful, the commission of the
intended crime.

Generally, criminal law does not penalise the first two stages, viz, the stage of contemplation or intention
and the stage of preparation. Mere intention or contemplation to commit a crime is beyond the purview
of criminal law. It is impossible for anyone to be able to ‘look into the breasts of criminals’ to ascertain
and prove the evil intentions. It is even impossible for a devil to know the thought of a man. Further, it is
always possible for the person to give up his evil intentions or designs. It is based on these
considerations that a principle of law has come to be evolved, which makes only those intentions

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punishable that are accompanied by some express words2or an overt act aimed towards achieving the

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intention.

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A. PROXIMITY TEST

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In Sudhir Kumar and Shamlal Shaw v State of WB, AIR 1973 SC 2655 : (1974) 3 SCC 357, the Supreme
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Court has reaffirmed its earlier view taken in the Abhayanand Mishra case with regard to the definition
of an “attempt”, which is as follows:
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A person commits the offence of “attempt to commit a particular offence” when (i) he intends to commit
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that particular offence, and (ii) he, having made preparations and with the intention to commit the
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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.30

An act of attempt must be sufficiently proximate to the crime intended, it should not be remotely
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leading towards the commission of an offence. The act of the accused is proximate if, though it is not the
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last act that he intended to do, it is the last act that was legally necessary for him to do, if the
contemplated result is afterwards brought about without further conduct on his part.29 Let us take an
example. A, intending to murder Z, buys a gun and loads it with the intention to kill Z. A is not yet guilty
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of an attempt to murder. A fires at Z, but misses the mark for want of skill or due to some defect in the
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gun. Since the act of A could not bring the desired effect, say, death of Z, A could not be held liable for
murder. However, A would be liable for attempt to murder, because A has done what was legally
necessary for him to do under me circumstances. If A could not succeed in his object, it was not because
of his desisting from the act of killing, but because of something beyond his control.
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The usual illustration of a proximate act is found in R v Taylor , wherein A, who was found in the act of
striking a match behind a haystack, which he extinguished on perceiving that he was being watched, was
held guilty of attempt to commit arson of haystack. But, if he had merely purchased a box of matches, he
would not have been found guilty of attempted arson, however evident it might be that he intended to

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 set fire to haystack when he purchased the matchbox. But even the first situation may create difficulties,
if A had said that his intention in striking the match was to light his cigarette. The underlying principle is
said to be embodied in the Latin maxim cogitationis poenam nemo patitur, which means that no man
can safely be punished for his guilty purposes, save so for as they have manifested themselves in overt
acts which themselves proclaim his guilt.

B. LOCUS POENITENTIAE TEST (Time for Repentance)

An act would amount to preparation and not an attempt, if a person voluntarily gives up the idea of
committing a crime before the criminal act is carried out; so long as the steps taken by the accused leave
room for a reasonable expectation that he might, either of his own accord, or because of the fear of the
consequences that might befall him as a result, desist from the act to be attempted, he would still be
treated on the stage of preparation.

A, intending to murder Z by poisoning, purchases poison and mixes the same with food which remains in

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A’s keeping; A is not yet guilty of an attempt to murder; because there is still time when better reason

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might prevail any moment and A might change his mind and desist from giving that food to Z.

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This doctrine was the basis for the Supreme Court for ordering acquittal of the driver and helper of a

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truck convicted by a lower court of attempting to smuggle paddy out of Punjab in Malkiat Singh v State
of Punjab . rs e
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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. A letter
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written by the consigner in Punjab to the consignee in Delhi was also recovered from the possession of
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the driver. They were charged with the offence of attempting to export paddy in violation of the Punjab
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Paddy (Export Control) Order 1959. The Supreme Court set aside the conviction of the accused by
holding that their acts were still at the stage of preparation.
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C. IMPOSSIBILITY TEST
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An act which is impossible to commit cannot be attempted and so is not culpable.32 Accordingly, to
shoot at a shadow, or to administer sugar mistaking it for arsenic; or to kill a man by witchcraft is not
attempt in law. In such cases, there is no probability of realising the accused’s goal. Moreover, the acts n
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such cases do not cause alarm or a sense of insecurity in the society. The impossibility must, however, be
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absolute and not relative, so that this doctrine would not apply in the case of an inadequate dose of
arsenic where the victim is saved.

D. SOCIAL DANGER TEST

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The seriousness of the crime attempted and the apprehension of the social danger involved is taken into
account to distinguish an act of “attempt” from that of “preparation”. A, gives some pills to a pregnant
woman to procure abortion, but it had no effect because the drug turned out to be innocuous. A, would
be guilty of attempt to cause miscarriage since the act would cause an alarm to society and will have
social repercussions.33

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 E. EQUIVOCALITY TEST

To constitute an attempt, the act must be such as to clearly and unequivocally indicate the intention to
commit the offence. If what is done indicates beyond reasonable doubt that the end is towards which it
is directed, it is an attempt, otherwise it is a mere preparation.34 The act must refer to the commission
of the crime and it must be evident and clear on examination. The acts must speak for themselves.

AN ATTEMPT TO COMMIT A CRIME—AN INCHOATE CRIME?

An attempt to commit a crime, thus, is an offence in itself even though the intended crime is not
committed. A person is punished for doing something, in furtherance of his evil intention and design, for
carrying out the contemplated crime. He becomes culpable simply for the manifestation, through some
act s, of his intention (mens rea) to comit the intended (but unaccomplished) prohibited harm (actus
reus). It may be worth to recall here, as discussed in preceding chapters, that actus non facit reum nisi
mens sit rea insists that no criminal liability can generally be fastened to an individual for merely either

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having guilty mind or an evil design (mens rea) or committing a blameworthy prohibited act (actus reus)

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unaccompanied with the required culpable state of mind or requisite foresight of its evil consequences.

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Penal law, nevertheless, justifies such a criminal policy on the need to nip in the bud and to punish the

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wrongdoer for the steps he had taken towards the commission of the intended offence. It accordingly
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criminalises some of the steps taken by him by labeling them as ‘inchoate offences’. Forms of inchoate
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crimes known to criminal law are: attempt, criminal conspiracy, and incitement.

An inchoate crime is ‘a crime committed by doing an act with the purpose of effecting some other
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offence’ or ‘an offence’ that is ‘relative to the offence-in-chief’. It consists of actions falling short of the
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consummated crime. The word ‘inchoate’ means something which is ‘just begun, incipient, in an initial
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or early stage, imperfect or undeveloped’. It connotes something which is not yet completed. Premising
their arguments on the literal meaning of the word ‘inchoate’, a few well-known authorities on criminal
law19 argued that the term ‘inchoate’ cannot be employed to indicate something which is itself
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complete or which has been done as a step towards an end which has not yet been achieved. They,
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therefore, feel that the nomenclature given to attempt, criminal conspiracy, and incitement, as ‘inchoate
offences’ is misleading and inapt. These offences, they argue, are complete in themselves, even though
they constitute a link in the chain of events leading to some object which is not yet attained. In such a
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situation, it is the unattained objective which is ‘inchoate’, and not the completed steps that have been
taken towards that objective. Plausibly for these reasons, the ‘inchoate crimes’ are also labeled
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‘Preliminary Crimes’ or ‘Anticipatory Crimes’.

LIABILITY UNDER COMMON INTENTION—SECTION 34-38

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LIABILITY UNDER COMMON OBJECT- SECTION 149

CONSPIRACY

ABETMENT ---A. ABETMENT BY INSTIGATION

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 Instigation to commit an offence is an act of inciting or urging or prompting a man to do a thing
prohibited by law. An act, in order to be called instigation requires that some active role must be played
by the abettor. Mere acquiescence or silence does not amount to instigation. For example, A says to B, “I
am going to stab C.” B replies, “You may do as you wish and take the consequences.” A goes and stabs C.
B cannot be said to have instigated A to stab C.There might be occasions when the approval of an act
leads to an instigation in the particular circumstances of the case.

In Queen v Mohit, 3 NWP 316 it was held that the persons who followed a woman preparing herself for
sati to the pyre, and chanted “Rama Rama”, were guilty of abetment by instigation to lead that woman
to commit suicide. The very fact that such persons approved of the woman’s act by participating in the
procession gave encouragement to the woman to commit suicide.

Instigation may also take place by wilful misrepresentation or by wilful concealment of a material fact
which a man is bound to disclose. A, a public officer, is authorised by a warrant from a court of law to
arrest Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby

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intentionally caused A to apprehend C. Here, B abets by instigation the arrest of C. B knowing the fact

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that C is not Z, wilfully misrepresented the public officer to believe a thing which was false.6

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ABETMENT BY COSNPIRACY

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A person is said to abet the commission of an offence by conspiracy if he enters into an agreement with
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one or more persons to do a legal act by illegal means, or to do an illegal act, and some act is done in
pursuance thereof.
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For instance, A, a servant enters into an agreement with thieves to keep the doors of his master’s house
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open in the night so that they might commit theft. A, according to the agreed plan, keeps the doors open
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and the thieves take away his master’s property. A is guilty of abetment by conspiracy for the offence of
theft.
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ABETMENT BY AID
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A person is said to abet the commission of an offence if he intentionally renders assistance or gives aid
by doing an act or omitting to do an act prohibited by law. Mere intention to render assistance is not
sufficient. There must be some active conduct on the part of the abettor and the act must be
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accomplished in pursuance thereof. A incites B to kill C by uttering the words “maro, maro” (“beat him,
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beat him”) and D puts a knife in B’s hand. Here, both A and D are guilty of abetting the offence of
murder, one by instigation and the other by aiding to commit the offence.

Aid may be given both by an act of commission as well as by an act of illegal omission. For instance, if a
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police officer keeps himself away from place knowing that certain persons were likely to be tortured for
the purpose of extorting confession, he is liable for abetting the offence of extortion by an act of
omission.

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 Liability of Abettor When Different Act is Done. An abettor is liable for the act he abets and not for any
other act that might have been committed by the person employed for the purpose. Sections 111 and
113 provide two exceptions to this general rule.

Section 111 extends the liability of an abettor in respect of an act done which was not contemplated for
by the abettor provided, the act done was the probable consequence of the act abetted.

An act is said to be the probable consequence of another act, if it can reasonably be expected to take
place from such an act. A instigates a child to put poison into the food of Z, and gives him poison. The
child, in consequence of the instigation by mistake puts the poison into the food of Y, who is sitting by
the side of Z. Since the child was acting under the influence of A’s instigation, and the act done was
under the circumstances—a probable consequence of the abetment, A is liable in the same manner and
to the same extent as if A had instigated the child to put the poison into the food of Y.

However, an unusual consequence, which could not be expected to ensue as a result of an act, cannot be

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said to be the probable consequence of an act of abetment. For instance, A instigates B to burn Z’s

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house. B sets fire to the house and at the same time, B commits theft of property. A, though guilty of

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abetting the burning of the house, is not guilty of abetting the theft, for theft was a distinct act, and not
a probable consequence of the burning.

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Section 113 is complimentary to section 111. Section 113 extends the liability of an abettor to a situation
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where the act done causes a different effect from that intended by the abettor. In such a case, the
abettor would be liable for the effect caused in the same manner and to the same extent as if he had
abetted the act with the intention of causing that effect, provided he knew that the act was likely to
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cause that effect. B, in consequence of A’s instigation, causes grievous hurt to Z, who dies. Here, if A
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knew that the grievous hurt abetted was likely to cause Z’s death, A is liable to be punished for murder.
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Section 112 provides for cumulative punishment in cases covered under section 111. An abettor is liable
to punishment both for the offence that was abetted, as well as for the offence that was the probable
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consequence of the abetment, provided, cumulative sentence could be passed in that particular case.
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For instance, when A, by putting B under fear of instant death, induces B to burn a stock of corn
belonging to Z, A is liable both for abetting B to burn the stock of corn, and also for putting B under fear
of death.
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Section 114 says that if an abettor is present at the time when the offence abetted is committed, “he
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shall be deemed to have himself committed such offence.” In such cases, an abettor is liable to the same
punishment as that accorded to a principal offender. The actual presence coupled with the prior
abetment amounts to the commission of the offence.9
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