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CHAPTER 7

ANALYSIS OF SUBJECTIVITY-OBJECTIVITY DEBATE AND EVALUATION

OF THE LAW OF CRIMINAL ATTEMPT

7.1 Analysis of Different Types of Cases

A useful translation of Coke‟s maxim, “actus non facit reum, nisi mens sit

rea” is “an act does not make a person legally guilty unless the mind is legally

blameworthy”. Since, a complete crime is having four different stages viz. intention,

preparation attempt and actual commission of crime, division of the same into “actus

reus” and “mens rea” is proved to be helpful to the judges in administration of criminal

justice.

The mental element or the subjective element and the actus reus or the

objective element, both are essential to commit the crime of attempt. In State of

Rajasthan v. Shera Ram1 the court held that both mens rea and actus reus are essential

elements of crime. However, the subjective and objective theory had been contesting for

supremacy in the field of criminal law and after great struggle it has been established

that both are complementary to each other.

In R v. Khandu 2 the accused intended to kill, had beaten his victim on the

head. Believing him to be dead, had set fire to the hut in which he was lying in order to

remove all the evidence relating to the crime. However, medical evidence showed that

the blows did not cause the death, which was, in fact, caused by burning. Accordingly,
1
(2012) 1 SCC 602: (2012) 1SCC (Cri) 406: AIR 2012 SC 1
2
(1890) I.L.R 15 Bom., 194
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the Court quashed the conviction of murder. In this case due importance was given to

both subjective and objective theory because court analyzed the whole incident in two

distinct parts. When he had beaten the accused the mens rea was present but actus reus

was absent as death caused not due to blows but of burning. In the second stage actus

reus was present when he burnt the hut to remove the evidence. In the second stage the

mens rea was absent. Since both are essential to constitute a complete crime, the court

quashed the conviction of murder.

Although the adoption of the accepted rules of morality as a criterion of mens

rea in practice meant that the courts appraised the prisoner‟s conduct objectively, yet a

consideration of the actual working of his mind was in some degree necessarily

involved. Again, it often happened that the “actus reus” and the “mens rea” were not

clearly distinguished. The conception may lead to an unscientific and fallacious

separation of crime of attempt into finalized and non-finalized attempt.

A criminal attempt is usually defined as intent to perform an act or to bring

about a result that would constitute a crime, together with some substantial steps taken

in furtherance of the intent. In accordance with this definition, it is apparent that the

state of mind, or mens rea, required is the actual intent or purpose to achieve the

proscribed result; mere recklessness or negligence will not suffice. The general basis for

imposing liability in criminal attempt is that the defendant must be proved to have

committed a guilty act whilst having had a guilty state of mind. It is the fundamental

duty of the prosecution to prove both the mental and physical elements of the offence to

the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such

proof the defendant will be acquitted.

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In Raghunath alias Ram Singh 3 the court held that for conviction under

Section 511 of the Indian Penal Code, 1860 it is not necessary that the accused should

complete every stage in the actual offence except the final stage. It is enough if in the

attempt he did any act towards the commission of the offence.

The question whether a crime can be said to have been committed has always

led to considerable controversy. The level of „crime‟ and the accompanying social

stigma normally confine their scope to those activities seemed as injurious to the

general population or to the State, including some that cause serious loss or damage to

individuals. There are three components of administration of criminal justice, viz. State,

accused and victim, each requiring due consideration. In case of criminal attempt the

seriousness of the attempted crime has been one of the criteria in deciding the liability

of the accused. However, in case of crime against women and children the courts have

taken a strict view. In a case of violent crime, an attempt may be classified as a felony.

Attempted murder and attempted rape are examples of felonious attempts.

Sometimes it was advocated that the mind of man cannot be investigated.

Once it had been admitted that some degree of wickedness was requisite in criminal

guilt, it followed logically that mens rea must eventually become a subjective matter of

an increasingly subtle kind.

Some cases are there which are difficult to prove due to anomalous character

of criminality. These are -

(i) Death by vehicle

3
(1940) 16 Luck 194
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(ii) Pushing to death

Such types of cases make it difficult as to whether the accused deliberately

does so. If he deliberately did so, some other questions may arise namely did he desire

the death of the victim? Whether he was having the knowledge that the victim would

die? If he did not desire the death of the victim then why he conceived the intention

which lead to the victim‟s death? If he desires victim‟s death then it is crime of murder.

If he did not deliberately push the victim and did not desire his death but the person

died then what amount of punishment should be given to the accused? These are based

on objective rather than subjective element of crime.

Many cases of physical impossibility would have gone unpunished basing on

objective consideration such as firing in an empty bed or injecting an innocuous liquid

for abortion or administering non-poisonous substance with an intention to kill. All

these cases will call for punishment on the basis of subjective consideration. The

criterion is to look into what the actor thinks and wants to do and not what he actually

does because of his certain misconception.

Where there is no manifest criminality then consideration of both subjective

and objective criteria is necessary. But can the intention of the offender be deduced on

the basis of manifest criminality? The behaviors of the accused show the manifestation

of the intention to commit the particular kind of crime like hurt, murder, rape etc.

However, in many cases, intention and knowledge merge into each other and intention

can be presumed from knowledge.

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Once the defendant's conduct has moved from "mere preparation" into the

realm of a punishable attempt, can he nevertheless avoid liability if he has a genuine

change of heart and decides to abandon his plan? Many cases appear to give a negative

answer to this question. Just as a defendant who has stolen property cannot avoid

liability by making restitution, the courts often say that once the defendant's attempt

goes far enough to be punishable, a crime has been committed and subsequent actions

cannot change that fact, although they may have a bearing on the appropriate sentence .

Many substantive crimes are in effect attempts to commit some other offense.

Assault, for example, is essentially an attempt to commit a battery; burglary (breaking

and entering a structure with intent to commit a felony therein) is essentially an attempt

to commit some other felony. Sometimes a defendant is charged with attempted assault

or attempted burglary and will argue that the alleged conduct should not be punishable

because it amounts to no more than an attempt to attempt.

Such arguments may suppose the conceptual impossibility of such an offense,

or they may reflect the view that conduct not amounting to an attempt is necessarily

"mere preparation." Neither position is plausible. Concerns about imposing attempt

liability at an excessively early point need to be faced, but in principle there is no reason

why preparations to commit burglary, for example, might not pass the realm of mere

preparation, even though the burglary itself was not successfully perpetrated.

The demarcating line between knowledge and intention is no doubt thin. Both

are state of mind. Lord Mansfield observed that so long as act rests in bare intention it

is not punishable by our laws; but immediately when an act is done, the law punishes

not only of the act done, but of the intent with which it is done; and if it is coupled with
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an unlawful and malicious intent though the act itself would otherwise have been

innocent the intent being criminal and on the basis of that punishment is given.

Intent of a crime may be broadly classified as:

1. Specific intent

2. Ulterior intent

3. Transferred intent and

4. Conditional intent

The mens rea of a specific intent crime requires proof of a purposive element.

Recklessness may not amount to the specific intent. However, in practice, there is no

clear agreement on what exactly constitute a crime of specific intent and it is suggested

that one‟s opinion should be based upon decided cases. In fact specific intent crimes

need to be distinguished from ulterior intent crimes. In Om Prakash4 the court held that

intent or knowledge is necessary to constitute criminal attempt according to Section 511

of the Indian Penal Code, 1860.

In ulterior intent crime the requisite mental element can be inferred from the

acts already done by the accused. He may not desire the consequences of his act but

nevertheless he has crossed the limit and accordingly he will be punished on the basis of

his conduct. In case of transferred intent the accused is being punished as if he was

trying to do that what he already has done. He may be frustrated for his act. But

criminal law punishes on the basis of the unlawful conduct. Here the subjectivity has

lost its significance. But in case of conditional intent it becomes difficult to infer the
4
AIR 1962 SC 1782
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subjectivity of the accused. His unlawful conduct is depending on happening or non

happening of a particular event. So, debate on subjectivity-objectivity is based on

protean face of justice.

Following are different cases which have been taken to get a clear picture of

subjectivity and objectivity in the light of judicial dynamism.

7.1.1 Shooting Cases

Shooting cases are peculiar cases in relation to criminal attempt as it becomes

difficult to differentiate preparation to shoot and attempt to shoot. To distinguish

between attempt and preparation in relation to shooting case the prosecution has to see

whether the accused has take off the catch, whether the accused puts his finger on the

trigger and finally whether he has pulled the trigger. If A with a loaded gun enters in to

B‟s car, points it at B and he is about to pull the trigger. From this situation it can be

inferred that A‟s intention is to affect a particular offence. He has overcome the stage of

preparation and now he is attempting to kill B.

On the basis of subjective criterion he will be punished since he has no option

to say. It is attempt to murder. But on the basis of objective criterion he may be

acquitted as he has not done the last act. It is merely preparation and there is no

punishment in Indian Penal Code for preparation for murder. So, accused will definitely

be acquitted. However, he can be convicted of certain lesser offences like criminal

intimidation, threatening with firearm for dire consequences or such other similar

offences.

Let it now be considered a few graded firearms offences cases which are

generally considered as attempt to commit murder which are illustrated as follows:

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1) A knows that the gun is unloaded which he points at B

2) A knows that the gun is loaded which he points at B

3) A does not know whether the gun is loaded or not and points at B

4) A pulls the trigger pointing near B and the bullet passes without harming B

5) A pulls the trigger pointing at non-vital portion of B and he is injured

6) A pulls the trigger pointing at B but the bullet does not come out of the barrel

because of defect of the gun or cartridge

7) A pulls the trigger pointing at B and he is grievously hurt.

Although these differ slightly from one another on both objective and

subjective consideration, they all are still taken together to show the offences as attempt

to commit murder. Let it be examined item wise now.

Item (1),(2) and (3) and to some extent (4) as well may be chebbed together

for offences of criminal intimidation and /or wielding of firearms endangering life of

other people which may be placed as separate category of offences provisions of which

may be provided at the appropriate places of the IPC.

Item (5) might be considered as a separate category attracting punishment for

simple injury basing on subjective consideration whereas (6) and (7) can attract

punishment for attempt to commit murder.

Outcome of (1), (2) and (3) have been considered on the basis of “last act”

criterion which is pulling the trigger which was not done based on objectivity. Result of

(4) has been considered purely on the basis of subjectivity provided missing due to aim

is purely ruled out. (5) is also in the similar footing of (4). The result of (6) is based on

the principle of doing the ultimate or last act which is pulling the trigger and this is
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based mainly on subjectivity. Outcome of (7) is plain and simple and is based on both

objective and subjective consideration.

Firing by A at an empty bed where B generally sleeps calls for punishment for

attempt to commit murder based mainly on subjectivity although A might have been

acquitted on the basis of objective consideration. This is similar to (6) above.

In a similar case 5 defendant A was convicted for attempting to murder by

firing to the roof where the intended victim B was there some time ago. Similarly, on

the basis of subjective consideration as stated above, a Missouri Court convicted for

attempted murder for shooting at empty bed.6 The decisions of these cases are based on

manifest criminality. That is why firing to a dreamy deer calls for attempted killing of

deer in a reserved forest on the basis of manifest criminality.

Therefore, firing at a tree stamp is excused as the place is not generally

inhabited by human being, although each case is to be decided on circumstances of that

case. There can now be added one ryder on items (1), (2) and (3) above. If A is

apprehended at the time of pointing the gun, then there is a point that he might be

convicted of attempted murder on the basis of objective consideration as it is not known

whether A would have abandoned the idea of pulling the trigger or was about to pull the

trigger. Benefit of doubt in this case goes against A because of the dangerousness as a

person.

A very peculiar case is of firing to a dead body thinking it to be alive. This is

very similar to empty bed case. And so, the wrongdoer in this case should be convicted

5
People v. Lee Kong, 95 Cal. 666, 30 p. 800
6
State v. Mitchell, 170 Mo.633, 71 S.W. 175 (1902)
 279

on the basis of subjectivity. However, this involves principle of legality as it is an inapt

case which cannot be committed. So, the wrongdoer may get acquitted on the charge of

attempted murder although he might be convicted on other types of offences including

that of desecrating a dead body. The difference with empty bed case is that the former is

an inapt case whereas the empty bed one is an apt case.

Apt and inapt cases are measured in terms of possible and impossible cases.

So, A trying to kill B fires at B but he is beyond the range of the gun. This is an inapt

case no doubt. Therefore, definitely A cannot be convicted of attempted murder basing

on above example. However, A should not get complete acquittal too basing on the

factor of subjectivity and actual man criteria.

Thus, he may be convicted of a lesser offence like wielding a gun in a

dangerous manner which requires renovation in the appropriate place of the IPC. It has

thus been seen that both objectivity and subjectivity are complementary to each other in

many shooting cases but in certain cases, basing on aptness, inaptness, character of

dangerousness and actual man criterion, objectivity or subjectivity, as the case may be,

gets upper hand.

7.1.2 Poisoning Cases

Like shooting cases few instances can be cited for poisoning cases.

1) A mixed some harmless powder thinking it to be poisonous substances to B‟s

food with intent to kill him. B takes the food and since these are harmless it

does not affect him.

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2) A mixed some poisonous substances to B‟s food with intent to kill him. B

refused to take that food. No incident occurs.

3) A mixed some poisonous substances to B‟s food with intent to kill him. B

takes some of them and got seriously ill. He was taken to doctor and

recovered.

4) A mixed some poisonous substances to B‟s food with intent to kill him. B has

not taken and offered it to C. After taking it C got seriously ill. He was taken

to doctor and recovered.

5) A administers poison to a person but he, due to illness, reject the food

offered by A.

6) A administered abortive substance to a woman whom he believes to be

pregnant in fact she is not.

7) A administered abortive substance to a pregnant woman which is insufficient

to effect abortion

8) A administered poison to B which is insufficient to kill.

Here in item (1) on the basis of objectivity the wrongdoer will be acquitted. But in

item (2) the wrongdoer will be punished on the basis of subjectivity. And rest of (3) and

(4) the accused will be convicted on the basis of both subjective and objective

consideration. In case of the item (4) the wrongdoer cannot take the plea that he was

intending to kill B not C. On the basis of transferred intention A will be punished as if

he was trying to kill C. A mixed some harmless substance like sugar thinking it to be

arsenic in B‟s food to kill him. No harm is caused.

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On the basis of objectivity he cannot be punished. But he should be punished on the

basis of his subjectivity. Today he has given a harmless substance by mistake but

tomorrow he will be more cautious to give harmful substance. So, if the justification is

done only on the basis of objective element of crime, there will be more chance of

escaping of the criminal from punishment.

In item no (5) A will be punished for both subjectivity and objectivity. In this case

he has done everything including the last step. But due to lack of interest of the victim

to take the food, he was unsuccessful.

In item no (6) although the woman was not pregnant but the substance was harmful

for which she may suffer. So, here also he will be punished for his act. But for this type

of cases punishment will be given on attempt to cause bodily harm but not in attempt to

cause abortion as to convict a person in attempt to cause abortion, a pregnant woman is

the condition precedent. In item no (7) and (8) the person will be punished for his act on

the basis of objective as well objective consideration.

In case of impossible attempt where the defendant used insufficient dose of

poisonous substance to a women who is not actually pregnant is excused because

pregnant woman is the condition for causing miscarriage. But here the subjectivity of

the offender is more than sufficient for convicting him for causing miscarriage.

7.1.3 Empty Receptacle Cases

In empty receptacle cases few instances can be cited:

1) A thrusts his hand in B‟s pocket which is empty and he is caught red handed;
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2) A thrusts his hand in B‟s pocket which is full of money and he was unable to

complete the offence due to B‟s intervention;

3) A thrusts his hand in B‟s pocket with a view to finding out whether it is full of

money or not and after doing that he finds nothing there and he was caught

while he was removing his hand from the pocket.

4) A enters in a building with a view to stealing valuable. After entering the

building finds that there is nothing to steal.

In all the cases A will be punished. In item no (1), (3) and (4) A will be penalized

basing on his subjectivity. In these types of cases the accused completed all the steps

necessary to complete the offence. In item no (2) he will be punished on the basis of his

both subjectivity and objectivity. Here he was about to succeed in his criminal plan but

due to intervention of other he was unable to complete the offence. If there was no

intervention from other side he surely be successful to complete the crime.

In Ring7 which is a case relating to empty pocket, where conviction was given on

the basis of subjective element. In this case the actor has crossed substantial step. The

court emphasized the subjectivity of the accused and also gave due importance on what

he has done with his subjectivity. The court is least bordered whether he has

successfully done it or not. His subjective element is more important and he has done

not only proximate step but last act also, now he has nothing to do as he has cross the

limit of abandonment at all. Yes, pocket was empty but this was not important for the

judges. Here specific offence is committing theft. So, this is not important whether he

would be able to do that or not or because of the reason that the pocket was empty.
7
(1892) 117 Cox 491
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In case of objective penal liability, if the substantive offence could not be done

then attempt to commit it does not arise. But here, however, main offence could not be

done or was impossible to do, attempt to commit it is a punishable offence even if the

offence is very specific or even if the offence could not have been done or could not

have been committed. When the person has not only surplus substantive step but also

the last step just like empty pocket that he wanted to commit theft only, where he

thought that the pocket was full of money or full of some valuable and that is why he

should have been convicted basing on his subjectivity.

In Collins8 the accused was acquitted on the basis of objective penal liability

and court observed that where the main offence could not be done than the person

cannot be convicted on attempting to commit it. This decision was based on a case

decided in 1857, where the accused could not be convicted for breaking and entering

the house to steals goods which had been stolen already.

The court said, “An attempt must be to do that which, if successful, would

amount to the felony charged, but here the attempt never could have succeeded.” 9 But

so far as the mentality of the accused is concerned it will be seen that he was thinking

the pocket was full and accordingly he puts his hand to the pocket and because of that

he should have been convicted. Here he was subjectively as well as objectively liable on

the basis of actual man criterion. However, it was overruled in Ring’s case 10.

8
9 Cox. C.C. 497: (1864) 12 WR 886
9
R v. M‟Pherson, (1857) 1 D & B 197
10
Supra note 7
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In this type of cases the accused completed all the steps required for the full

consummation of the intended offence. But due to some other factor beyond the control

of the accused he could not be successful in his criminal plan. But his intention is very

much clear. So, on the basis of subjectivity, the objectivity can be deduced which is

essential to give penalty.

7.1.4 Receiving Stolen Property Cases and the Principles of Legality

No one can be punished until and unless he has done an offence. If a legal

system punished a person who will commit a crime in future than it is against the

principle of legality. The manifest criminality in case of receiving theft article was to

attempt to purchase the theft article. Whether his mind was there for having possession

of certain article which of course a theft articles. That was the manifest criminality. If

the accused was unsuccessful to complete the manifest crime he should be punished for

attempting to commit it.

Haughton v. Smith 11 is a case relating to attempt to receive stolen property,

where after intercepting the theft article police asked him to drive the vehicle and he did

accordingly and police arrested him. The accused appealed in the court successfully that

the article was no longer theft article after intervention by the police. The theft article

was in the possession of the police when he was asked by them to drive the vehicle.

In an American case of Jaffe12 wherein Jaffe was finally acquitted for “attempt

to receive stolen property” in the nature of cloth which had already been recovered by

11
(1975) AC 476, (1973) 3 All ER 1109
12
People v Jaffe, 185 N. Y. 497, 78 N.E. 169(1906)
 285

the police. In this case also more emphasis was given to the objective criterion and only

on the basis of that the accused was acquitted.

In both the case it was not attempt to purchase theft articles according to the

court. The accused was not guilty because the property was no longer been stolen. If

one says that intention and actus reus to that extent to procure items which he thinks to

be stolen then on the basis of this he will be guilty. It is stolen or not is not visible but

he thinks it to be stolen. So, on the basis of his intention or subjective element on a

lesser offence he could be punished.

Attempt to receive stolen property will not be the proper offence which will

come out. But it can be said that intention and actus reus to that extent to procure items

which he thinks to be stolen and in this way he will definitely be punished. It is not the

general criterion but a particular criterion. In case of general reasonable man criterion

certain things may be avoided. But what the person thinks that will be the basis of his

punishment. But he cannot be punished for attempt to receive stolen property.

On the other hand the mentality of the accused was to purchase the theft

article. That was theft article or whatever it may be, it hardly matters to him but he

wanted to purchase an article on lesser prize than the actual prize. He may be used to do

all these antisocial activities. He has completed substantive step as well as the last step

and caught red handed. In this case, he can be punished on the basis of his mentality.

So, that was wrongly decided. That could have been decided on the basis of the

subjective theory and he could have been convicted on the basis of his subjectivity.
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Let us suppose that one 6 year boy has stolen one bye-cycle and the accused

knowing it to be stolen purchases that article from him. In this case on the basis of

objective analysis he may be acquitted of attempt. Below seven years age category is

exempted from penal liability which is called doli incapax. So, the article is not a stolen

article in true sense. But if this case is subjectively analyzed then the accused should not

escape from being punished.

On the other hand, one 8 year boy whom the accused believed to be 6 years

has stolen a bye cycle and the accused gave him some money for the article. Now he

can surely be punished for receiving stolen article on the basis of objective

consideration. Because he was believing that the boy is 6 years old but in fact he is 8

years and having sufficient maturity of understanding which is required for giving

punishment. Here he has taken the risk of age factor or he might be least bodered about

the age group of the boy. On the basis of that the accused should be punished. This may

be against the principle of legality. But punishment will be sufficed for proper

administration of criminal justice.

On the other hand if A wanted to purchase an article from B who is a major

person but he did not disclose the fact that the article is stolen and ask reasonable price

from A. A, did know nothing about the nature of the article and purchased that article

from B at a reasonable price. If it is proved that A‟s intention was not to purchase stolen

article but to purchase an article at a reasonable price then he will be acquitted on the

basis of his objectivity. However, if it is proved that A has purchased an article from B

in lesser price than market price, from this fact it can be inferred that A‟s intention was
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to purchase an article at lesser price than the market price and he is reckless enough to

the nature of the article. So, on the basis of his subjectivity he should be punished.

7.1.5 Social Danger Phenomenon

Crime free society is a myth but every society had adopted some norms to

maintain its dignity in a systematic manner. To maintain peace in the society state

authorities has declared some acts as offences which interfere with social norms. In

every civilized society certain acts of commission or omission are forbidden. The gist of

the criminal jurisprudence is to maintain peace in the society by way of prevention of

crime and to provide a dignified life to everyone who is a member of the society by way

of enactment of several legislations relating to protection of life and liberty in

accordance with procedure established by law.

Social danger means a serious threat to life and liberty of human beings who

are the members of a society. It creates barriers in the right path of life. In case of

adjudication of a criminal matter the judiciary has a very important role to play to

protect the rights of the accused by providing him all the rights available to him under

the existing law and at the same time judiciary has a duty to uplift of social norm. So, to

maintain a balance between the rights of the accused and social norm, both subjective

and objective considerations are necessary. Obviously it is not an easy task. Let it be

considered some of social danger phenomenon which created more difficulties for the

judges for adjudication of criminal justice.

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Possessionary offences are very difficult areas of criminal law. Possession of

drug, possession of illegal firearms etc. created nuisance in the society. Possession of

illegal drug itself is a crime. Attempt to possess illegal drug is also a crime.

The Model Penal Code of USA defines an attempt as „„an act or an omission

constituting a substantial step in a course of conduct planned to culminate in…[a]

crime‟‟. The substantial step has been illustrated as “lying in wait, searching for or

following the contemplated victim of the crime” there by paving the way for subjective

consideration in criminal attempt. Thus the actor‟s criminal purpose has been given

more weightage for conviction under criminal attempt. This has been evidenced by

conviction of an accused of attempting to purchase heroin which, in fact, was white

powder.

An illustration of legal impossibility is that a person possessing heroin of

2gms which in fact, is less than 5gms which is considered to be the threshold limit for

conviction under Narcotic Drugs & Psychotropic Substances Act. During search police

found small quantity of drug and the accused did not know that he possessed a small

quantity. He was thinking it to be higher than small quantity. So, he would be punished

on the basis of subjective consideration not on the basis of objective consideration. So,

person will be considered to be convicted as he perceived it to be more than 2 mg which

is higher than the permissive limit which he thought 5 mg where his subjectivity was

there to carry 5 mg of drugs. On the basis of that he should have been convicted for

possessing 5 mg drugs.

However, he may not be convicted on the basis of the principle of legality.

Should he be considered for acquittal on consideration of objectivity? These are

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difficult cases which require certain guidelines. It may seem that what is important is

the motivation which is very much clear in this case for conviction.

Thus, it will be a tussle between legality and motivation and the honorable

courts are to decide. It will, perhaps, be proper to convict the actor when the intended

end is clear enough irrespective of any other circumstances. In R v Shivpuri13 the scope

of Section 1 of the Criminal Attempt Act, 1981 came under judicial scrutiny and finally

on the basis of subjectivity he was convicted. The court of Appeal certified that the

point of law involved therein was, does a person commit an offence under Sec.1 of the

criminal Attempts Act, 1981 where if the facts were as that person believed them to be,

the full offence would have been committed by him, but whereon the true facts the

offence which that person set out to commit was in law impossible. Because the

substance imported and believed to be heroin was not heroin but harmless substance.

Theft is an offence punishable under the Indian Penal Code. Possession of

theft articles is also an offence. One chiprang, one dao, one knife, one screwdriver these

are household implement. Since these are lawful items, there is no bar to posses of such

thing. But if a person possesses this entire thing in a midnight trying to open a gate of

someone‟s house or waiting or going with these articles, then this will be fallen in the

category of possessionary offence. He might be going to commit an offence with these

articles. This is a distinct offence. There may be no relationship between intended

offence and the possessionary offence.

13
[1986] 2 AMER 334 (HL)
 290

When the accused will not be able to conduct that illegal thing in a proper

way, he cannot fulfill his criminal intention. But these can be considered as apt cases.

Now, in inapt case, a person is trying to kill someone with a rifle having capacity to kill

within 1 kilometer. The victim is standing more than the range. His intention was to kill

the person. As, objectively considered, he will not be convicted since it is impossible

attempt and an inapt case but if we subjectively consider then he will be convicted just

like empty pocket case.

Therefore, in case of inapt case subjective consideration is more important

than objective consideration. Who knows today he failed because of the capacity of the

rifle then tomorrow he will definitely try it from a close distance. Here the subjectivity

is more important than the objectivity.

A person could not do a specific offence or it may not be possible to do but he

can be convicted on its attempt. In R v. Collins14 the decision taken by the judiciary was

not correct. Supposing firing to a corpse, whether he may be convicted or not as the

person is already dead. On the basis of subjectivity he will surely be convicted but not

in attempt to commit murder. On the basis of actual man criterion he will not be

convicted on attempt to commit murder.

If an accused is trying to kill a person by practising black magic or some other

thing from a long distance and this is not possible to kill him in this way and it is also

scientifically proved. Therefore, nobody can be punished. These are not attempt to

commit murder but he can be punished if it will be analyzed as he was attempting to

frighten and to cause mental disturbance.

14
(1864) 9 Cox. C. C. 497
 291

In case of black magic, by practicing the same no one can be killed but he

might be frightened. So, it can be said that attempt to frighten and to cause mental

disturbance. Some provisions should be there in the Indian Penal Code, 1860 otherwise

if someone who is practicing black magic will become real danger to the society.

Ultimately he will go for some other more crime. If there is some punishment for these

types of peculiar activities than it will be possible to prevent it. Attempt to commit

murder is not proper but why not attempt to frighten and to cause mental disturbance?

In case of legal impossibility the accused is acquitted. So, these should not be

taken as cases of legal impossibility. One of the objectives of punishment is to prevent

crime. So, they should have been convicted on lesser offence.

Taking the thumb impression of someone on a blank paper by itself may not

amount to attempt to cheat as it may fall only on the preparatory stage. But where the

same is done with the requisite guilty mind as given in section 415 of the Code, it would

then amount to attempt to cheat. The Supreme Court has held that an offender would be

guilty of attempting to cheat even though the intended victim does not believe in the

representations made to him and is not misled by him but only feigns belief in order to

trap the offender.

In Abhayanand Mishra v. State15 the accused applied to the Patna University

for permission to appear at the M.A. (Previous) English examination as a private

candidate slating in his application that he was a graduate and that he had been teaching

15
AIR 1961 SC 1698
 292

in a school. He attached certain certificates purporting to be from the Head Master of

the school and the Inspector of Schools.

The University permitted him to take the examination and sent him the

admission card. Later on it was found on inquiry that he was neither a graduate nor a

teacher and his certificates enclosed with the form were false. The University withdrew

the permission given to him earlier to appear at the examinations, and prosecuted him. It

was held by the Supreme Court that the accused had committed an offence under

section 420 read with section 511 of the Code.

It was observed that the stage of preparation on the part of the accused was

complete when the application along with all relevant documents were ready for

dispatch, and the moment he dispatched the same, attempt on his part was complete. In

this case his intention was to seat in the exam. His conviction was made on the basis of

his act coupled with mental element. He crossed the proximate step to commit the

offence. In this case the judiciary has given more emphasis to the manifestation of the

intent of the accused in the light of the steps already he has completed for commission

of the offence of cheating. It is based on good reasoning and this kind od activities

should really be nipped in the bud to check future offenders.

The principle adopted in this case was reaffirmed in Sudhir Kumar Mukherjee

v. State of West Bangal16. In this case the question was whether the signing of a challan

evidencing receipt of goods without actually receiving the goods on the part of the

accused amounted to attempt to commit offence under Section 120-B read with Sections

16
AIR 1973 SC 2655
 293

420 and 5110f the Penal Code. The accused contended before the court that for cheating

affixing of stamp to the challan and again signing of the same is necessary which has

not been completed. So, it is preparation only. Rejecting the contention it was held that

in this case quite good amount of money was given to the supplier from the company.

The challan had been prepared and the initials of the concerned clerk were

obtained by the accused and these were definite step towards the commission of the

offence of cheating though the penultimate step of affixing the stamp and signing by the

accused in order to enable the supplier to receive the payment was not completed.

Accordingly, he was convicted of criminal attempt. These cases are the examples of

criminal attempt where the court has given due importance to both subjectivity and

objectivity. Another example can be cited in this regard where an accused makes a

stamp stating the designation of a magistrate. Police found the stamp in his possession.

Simply anybody may have a stamp. But here he has a specific purpose because he is not

the person having the designation. He was trying to successfully do one specific thing

by using the stamp that is attempted to impersonate. This is a possessionary offence.

In Hope v Brown17 they prepared sticker of high price than the market price

but not yet affixed. When customers were come they decided to affix and sell. When

police would intercept packets were far away from the sticker. They were kept in

different place. So, it is only preparation and thereby they have been acquitted. If the

case is analyzed in the light of substantive step then it will be clear that his intention

was to sell them in a higher price than market price.

17
(1954) 1 All. E.R. 330
 294

To make him successful he has done everything and waited for customer. In

the mean time due to interception of police he would not be able to do that. So, in the

light of subjective consideration the person should have been convicted. Interestingly

both were acquitted in this case. But they have done a substantive offence. If the

judiciary judge it in the light of substantive step and manifest criminality then they

would have been convicted.

There is a time lag between substantive step and proximate step or last step.

The last step means there is nothing to do. Everything has been done. In Robinson’s

case 18the last step was not performed by the accused as he did not give the letter to the

insurance company for which he was acquitted. But he could have been punished on the

basis of substantive step. He was unable be able to performed all the formalities because

of the intervention of the police. Already it is discussed that there is a time lack

between substantive step and proximate step and in between the mindset of the person

may be charge where he will lost his interest to do that offence for which he was

intending. There is a chance in Hope v. Brown19 that the accused may lastly be able to

decide not to do that or he may say to her to destroy the sticker and ready to sell them in

market prize fixed by the government. Only on the basis of that the persons were

acquitted. But on the basis of substantive step person should have been convicted.

Now will whether it will be proper to wait for their abandonment or

performance of the last step or punished them on the basis of substantive step? After

analyzing all the aspect it is seen that if we punished them on the basis of substantive

18
R v. Robinson, (1915) 2 K.B. 342
19
Supra note 17
 295

step, that will be better than to wait for abandonment. Abandonment is a weird

obsession of a particular case. Substantive step is a general case. Now whether it will be

proper to give importance to the particular case or peculiar case rather than to give

importance to the general character? Obviously priority should give to the substantive

offence other than to go for ultimate step or proximate step.

In R v. Mohan20 the accused was acquitted by the appellate court because

his intention was not feasible consequence. His intention was not to hurt the police

officer on duty. He might think, he will be able to escape. He did not know that the

police officer was following him by chasing the car and on doing so was badly injured.

But his intention was not to hurt him or to kill him. That was rightly decided. It was not

attempt to commit murder. But he can be convicted on certain other offences like rash

and negligent driving. Or he can be convicted on attempt to cause hurt a police officer

on duty. So, lesser variety of punishment could have been given.

In case of empty pocket case, not only the substantial step, he has overcome

even the last step also. But the specific thing was that everyone has some money on the

pocket generally. So, he was trying to pickpocket. He was driving his mind towards

committing one specific offence that is to pick pocket. But he was unsuccessful because

of the inaptitude or inefficiency or whatever manner it was. Pocket was empty for

which he could not be able to take something from it. But he has crossed his substantive

step and the last step also. So, he was convicted. He should not be acquitting on the

20
1975 2 All ER 193
 296

basis of not completion of the intended offence. He wanted to do a manifest crime. That

is more important than whatever he has done and unsuccessful in committing it.

Let it be supposing if there is a race competition the accused pretended him to

be a handicap person and has taken the benefit of a handicap person and win the race.

Finally if it is discovered that he is a fit person and also he does not take the prize than

whether he will be punished? Or it may have happened he has not completed the race

and caught. Then will it be taken as abandonment? If it is taken as abandonment then if

he lost his interest to win the race due to some physical discomfort, then will it be taken

as a defense for criminal attempt?

Substantial step has a very important part to perform in case of the defense of

abandonment. Before abandonment what the accused has done is more important.

Before doing the last step what has been done by him is more important to convict or to

acquit the offender. Before doing the last step he may or may not abandon the idea of

committing the offence.

7.1.6 Other IPC Offences

The, Indian Penal Code, 1860 is a specific Code with certainty where anybody

having ordinary foresight may understand its provisions. However, there are certain

controversial areas in the Code which needs more study and elaboration for proper

understanding.

These areas are very significant because the controversy regarding subjective

and objective theory. Let it now consider few IPC offences which are generally

considered as more controversial regarding subjectivity and objectivity of the offender.

 297

7.1.6.1 Attempt in respect of Common Intention and Common Object under the

Indian Penal Code, 1860

Mens rea is the most critical area of criminal attempt. The doctrine of common

intention has been accepted by the makers of the Penal Code in a specific provision21.

Common object is adopted in Section 149 of the IPC. Common intention is dealing with

the theory of subjectivity and common object is dealing with the theory of objectivity.

Both are different from each other. Sections 149 and 34 of IPC deal with liability for

constructive criminality, i.e., liability for an offence not committed by the person

charged. It is not important to show that any overt act must have been done by a

particular accused.

The Section 34 of IPC will be attracted if it is established that the criminal act

has been done by all or any one of the accused persons in furtherance of the common

intention. There is a deference between object and intention, for though their object is

common, the intention of the several members may differ and indeed may be similar

only in respect that they are all unlawful, while the element of participation in action,

which is the leading feature of Section 34, is replaced in Section 149 by membership of

the assembly at the time of committing the offence.

A common object is different from a common intention in that it does not

require prior concert and a common meeting of minds before the attack, and an

unlawful object can after the people get there. Where, all the accused persons had gone

together to the house of deceased and asked him to vacate the premises immediately.

21
Section 34 of Indian Penal Code, 1860
 298

On his refusal one of the accused ordered other accused persons to finish him then the

way they acted thereafter leaves no doubt, about their acting in furtherance of their

common intention. 22 Mere presence of appellant does not prove that he was also

involved in offence or he was also having common intention, when investigations go in

favour of him he cannot be held liable for any act conducted by other two

accused. 23 When the actual crime has taken place, the accused alleged as having

common intention, must be proved to have his physical presence over there.24

In Pashora Singh v State of Punjab 25 where it was an admitted case of the

prosecution that the accused person had a grievance against Amar Singh and his uncle

Malkiat Singh for having launched some security proceedings against the accused

persons and they had come with an intention of taking revenge from Amar Singh and

Malkiat Singh. According to the statement of Pal Singh, Pashora Singh had given a

Gandasa blow on the right knee of Amar Singh and Lahora Singh also gave a Gandasa

blow on the right hand of Amar Singh from the reverse side. Admittedly, the injuries on

Amar Singh are found to be simple in nature and this clearly goes to establish that the

accused persons had no intention of causing death of any person nor any injuries found

on Pal Singh were stated to be sufficient in the ordinary course of nature to cause death.

The High Court was not correct in holding that the accused had an intention to

cause the death of Pal Singh or the knowledge of possible death of Pal Singh, only

22
Surjan Singh v. State of Haryana, 1998(7) SCC 336: 1998(6) JT 5
23
Rangaswami v. State of Tamil Nadu, AIR 1989 SC 1137: 1989 Cri LJ 875: (1989) 1 Crimes 692
24
Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287:1955 Cri LJ 857
25
AIR 1993 SC 1256: 1993 SCC (Cr) 387
 299

injury No. 1 on the head of Pal Singh has been described as dangerous to life and the

High Court has itself recorded a finding that the previous litigation between the parties

had nothing to do with Pal Singh and it was not established as to which of the two

accused had inflicted injury No. 1 on the head of Pal Singh. Thus, in the above facts, it

cannot be held that Pashora Singh had committed any offence under Section 307 read

with Section 34 of the IPC. The appellant Pashora Singh in the facts and circumstances

of the case can only be held guilty for an offence under Section 326 read with Section

34 of the IPC. In Jagtar Singh v State of Punjab26 the court held that the charge under

Section 302 and Section 307 of IPC cannot be framed against accused when victim is

one. The conviction under Section 302 and Section 307/34 of IPC also cannot be

awarded.

In Ranjit Mondal & Ors v. The State of West Bengal 27 where the victim has

suffered bullet injuries and where the identity of the victim has not been established and

upon considering the evidence on record the identity of the victim fails to be

established, it infers that the prosecution has failed to prove the case beyond reasonable

doubt. The accused has given benefit of doubt and acquitted.

When it is proved that two or more persons were trying to do an offence in

furtherance of common intention then they will be punished irrespective of the steps

taken by them to cause the effect. For example, A and B with a common intention to

kill C procured poison. A mixed it with the C‟s food. B only watches whether

26
AIR 1993 SC 2448: 1993Cr LJ 2886
27
(2014) 4 CAL LT 171(HC)
 300

somebody has noticed that particular act. Consequently C did not take the food as a cat

has taken some portion of it and afterwards died. Here both A and B will be liable for

attempting to kill C.

All sections 34, 114 and 149 of IPC deal with participation in crime, common

object, common intention, involvement of one central point around which others

moved, in such situations, evidences are normally given to get a primarily responsible

person who gets committed the offence4 and such evidence keeps great evidential

value.28

On the other hand common object is based on objective theory of criminal

liability. The members of the unlawful assembly should have done some overt act.

Overt act on part of each and every member is not necessary to convict a person in

section 34 of IPC.

7.1.6.2 Mischief

Section 425 of the Indian Penal Code lays down that whoever, with intent to

cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to

any person, causes the destruction of any property, or any such change in any property

or in the situation thereof as destroy or diminishes its value or utility, or affects it

injuriously, commits “mischief”. In terms of attempt there should be an attempt to

commit mischief. Intention is very essential ingredient of the offence of mischief. The

28
Willie (William) Slaney v. State of M.P. AIR 1956 SC 116: 1956 Cri LJ 291: 1956 SCJ 182
 301

subjectivity of the offender is crucial for determining his guilt. “Wrongful loss or

damage” means loss or damage by unlawful means.

In Punjaji Bapuji Bagul 29 where the accused installed an oil engine on his

property and the complainant, who was a neighbor of the accused, instituted criminal

proceeding against the accused, alleging that his property was damaged by reason of

vibrations from the engine. The court held that the accused was not liable to be

convicted of mischief, for there was nothing in his installing an oil engine on his own

property and working in any way he chose, and that if the damage complained of was

attributed to what was in its nature a lawful act of the accused, the matter could be dealt

with in the civil court. So, subjectivity of the accused is vital for offence of mischief. If

someone is attempting to cause mischief then his intention can well be deduced from his

acts.

7.1.6.3 Criminal Intimidation

Section 503 of the Indian Penal Code states whoever threatens with any injury

to his person or property, or to the person or reputation of anyone in whom that person

is interested, with intent to cause alarm to that person, or to cause that person to do any

act which he is not legally bound to do, as the means of avoiding the execution of such

threat, commits criminal intimidation. In terms of attempt there should be an attempt to

commit criminal intimidation. But while deciding such type of cases the judiciary will

have to consider both the subjective as well as objective theory. However, while

29
AIR 1935 Bom 164
 302

deciding such type of cases circumstantial factors play a vital role. The character of

dangerousness of the offender is relevant.

In Ramesh Chandra Arora v State30 the appellant-accused had been charged

with criminal intimidation by threatening a person X and his daughter of injury to their

reputation by making public a nude photograph of the daughter unless “hush money”

was to paid to him. The intent was to cause alarm to them. The evidence, however,

disclosed that the real intention was not to merely cause alarm but to force X to pay

“hush money”. The accused was convicted for offence under Section 506, IPC, by trial

court, which was confirmed by the high court. However, in the Supreme Court it was

his contention that if at all he had committed an offence, it was not one under Section

506, IPC but an offence under Section 384 read with Section 511 of IPC and since he

was not charged with this offence he ought to be acquitted. Rejecting the contention the

Supreme Court held :

The section is in two parts: the first part refers to the act of threatening another

with injury to his person, reputation or property or to the person or reputation of anyone

in whom that person is interested; the second part refers to the intent with which the

threatening is done and it is of two categories: one is intent to cause alarm to the person

threatened, and the second is to cause that person to do any act which he is not legally

bound to do or to omit to do any act which that person is legally entitled to do, as the

means of avoiding the execution of such threat.

The court stated that the aim of the accused was not just to cause alarm but to

cause the father of X to give him “hush money” to ensure that he did not go ahead with
30
AIR 1960 SC 154, (1960) Cr. LJ 177 (SC)
 303

his threat of making public the damaging photograph. Finally the accused was

convicted on the offence of criminal intimidation.

If a person is trying to intimidate then he should be punished basing on his

subjectivity but the prosecution should prove that the accused was trying to threaten

some person.

7.1.6.4 Assault

According to the definition under Section 351 of the Indian Penal Code,

whoever makes any gesture, or any preparation intending or knowing it to be likely that

such gesture or preparation will cause any person present to apprehend that he who

makes that gesture or preparation is about to use criminal force to that person, is said to

commit an assault. Now in terms of attempt whether assault has penultimate crime of

attempt to commit assault? Definitely there should be an attempt to commit an assault

and it will be judged in the light of subjectivity. Here in this case the subjectivity is

more important than the objective theory of attempt. In the definition the Code makers

had used the term “intending” and “knowingly”. So, the subjectivity had been given due

importance. Criminal force cannot be constituted without subjectivity. So, subjectivity

has a very important role to play in this regard than objectivity.

7.2 Evaluation

Law of criminal attempt is a wider area of criminal law. Criminal attempt is

one of the stages of complete crime and it is the most significant one and it needs

detailed elaboration. To adjudicate a criminal attempt consideration of both subjectivity

and objectivity is needed. Sometimes on the basis of objective consideration intention

 304

can be deduced. Falling short of the intended ultimate crime to constitute a criminal

attempt can well be described only with the help of objective consideration. If the

attempt is unsuccessful due to actors fault and he has not done even antepenultimate act,

then subjective consideration is applied to justify his criminal design.

Subjectivity is an answer to non-unequivocal acts, for example an actor

praying with a vehicle. It is not clear in this case whether he wants to commit theft of

the vehicle or to commit theft of the articles inside or to have just a joy ride. May be he

mistakenly believed that this is his own car. There can be no wrong if the actor is

charged with attempt to commit theft of the vehicle on subjective consideration. Similar

are the cases of empty pocket or empty receptacle.

Certain possessionary acts are to be gauged deeply. If possession of a

prohibited firearm, even if it is very less powerful can be punished then why not for

possessing even a little quantity of prohibited drug or police intercepted theft articles?

These are difficult cases for conviction on the basis of principle of legality but whether

it will not be justified to compromise with subjective consideration so as to convict the

accused to get rid of certain future criminals. Law may, if necessary, be modified

towards this way.

On the other hand, too much subjectivity may not be justified to book the

accused on attempt cases like certain provisions of the American Model Penal Code.

For example: lying in wait for somebody to rob of him is still to be considered as a

preparatory state and after any moment but before the arrival of the person to be robbed,

the actor may have change of mind and may abandon his idea of robbing. If he is still
 305

considered as an accused for attempt before the time of change of heart then the

important criterion of abandonment will be nullified which will an anti-thesis in

criminal attempt.

In shooting case where the commission of ultimate intended crime is

impossible due to some defect of the gun or the intended victim is far away from the

accused then it should be judged on the basis of subjective consideration and actual man

criterion. Area of certainty and uncertainty of commission of crime both manifested and

non-manifested and the law of abandonment play a very important role in case of

criminal attempt. If the accused abandoned his idea to commit intended crime due some

intervention from outside, or if he realized that he is using insufficient means for which

he will not be able to do it successfully, then on the basis of objective consideration he

should be punished. If he abandoned his idea to commit crime due to fear of punishment

or he is frustrated from his criminal design, then on the basis of subjective consideration

he should be punished. On the other hand if he has abandoned his idea to commit the

crime voluntarily without any intervention then he should be acquitted.

In case of manifest crimes falling short of the intended crime, attempt can well

be analyzed on the basis of subjective consideration. However, „substantial step‟ can

also be looked into. The attempt must come dangerously close to succeeding the actual

crime. Only the harmful acts as per gravity are to be penalized based on objective

analysis. However, in empty pocket case, only subjective consideration on the part of

the wrongdoer is looked into.

 306

Since subjective element is qualitative element and is not well defined, it will

have to be gauged in utmost accuracy to punish the wrongdoer as such. However, non-

consummation of manifested criminality due to physical impossibility amounts to

attempt to commit the manifest criminality such as empty pocket cases or firing to an

empty bed, which is mainly based on subjective criterion.

Legal impossibility cases of any type are always excused. In legal

impossibility the defendant has mistaken the criminal law and he thinks that what he is

doing is an offence but in fact it is not. However, he is having sufficient mental element

to do an offence but due to principle of legality punishment cannot be awarded to him.

On the other hand generally physical impossibility is not an excuse. But non-

consummation of non-manifested criminality due to some other reasons other than

physical impossibility should be considered mainly on the ground of objectivity falling

into consideration of all the circumstances of each case. This will encompass all types

of offences regarding non-manifest criminality like the actual offences, its attempt and

such others.

In case of poisoning case the act of the accused is judged in the light of the

acts already completed by the accused for his intended ultimate crime. But if he

administered a harmless substance thinking it to be a harmful substance then it will be

judged on the basis of subjective consideration. Here actual man criterion and character

of dangerousness will be vital. But some serious cases where the accused administers

abortive substance to a woman who is not pregnant then subjective consideration get

upper hand to punish the wrongdoer.

 307

In case of receiving stolen property there are so many probabilities. If the

offender does know that the property is stolen that accordingly he wanted to purchase

the same, he will be convicted basing on actual man criterion and his objectivity. The

subjectivity is to be judged on the basis of his act. But if he does not know that the

property is stolen but he purchases it on a lesser price then he may not be convicted.

Then in such types of cases, some other more convincing proofs are to be sought for.

The „subjective test‟ must satisfy the court that the accused actually had the requisite

mental element present in his or her mind at the relevant time.

The execution of a criminal plan is thought typically to pass through several

stages; conceiving the plan, acquiring the materials or firearms necessary for the job,

making one‟s way to the scene of the intended crime, deploying the materials, and then

executing the crime.

Many substantive crimes are in effect attempts to commit some other offense.

Assault, for example, is essentially an attempt to commit a battery; burglary (breaking

and entering a structure with intent to commit a felony therein) is essentially an attempt

to commit some other felony. Sometimes a defendant charged with attempted assault or

attempted burglary will argue that the alleged conduct should not be punishable because

it amounts to no more than an attempt to attempt. Such arguments may suppose the

conceptual impossibility of such an offense, or they may reflect the view that conduct

not amounting to an attempt is necessarily "mere preparation."

Neither position is plausible. Concerns about imposing attempt liability at an

excessively early point need to be faced, but in principle there is no reason why

preparations to commit burglary, for example, might not pass the realm of mere
 308

preparation, even though the burglary itself was not successfully perpetrated. One can

consider the case of a masked man caught in the act of picking the lock of an apartment

door. In such a case, a charge of attempted burglary is clearly justified based on

subjectivity and objectivity of the offender.

Common intention which implies prearranged plan and acting in concert

pursuant to the prearranged plan is a very debatable issue in case of criminal attempt.

Since attempt is an unsuccessful effort on the part of the accused, common intention

become very difficult to prove relying on their participation. The common intention to

bring about a particular result may well develop on the spot as between a number of

persons with reference to the facts and circumstances of the situation. In case of

abandonment it becomes very difficult to prove whether everyone has abandoned or

not? Like this in case of common object it is not possible to determine whether

everyone has actively participated in the offence or not?

In case of non manifested crime it is a hurdle to determine the mentality of the

accused. In that case objective criterion will be looked into. The liability in criminal

attempt is mainly based on the overt act done by the accused which falls short of actual

offence stage. So, on the basis of what he has done when he was caught by the police or

due to some intervening factor he was unable to do or wound not complete the intended

offence he will be acquitted or punished accordingly.

Character of dangerousness is a criterion to determine liability in criminal

attempt. The offences like murder, rape, dacoity etc. are more serious offences and

attempt made for commission of those offences should be severally punished. Section
 309

307 of Indian Penal code, 1860, is a specific provision for attempt to commit murder

and Section 308 of the Code provides punishment for attempt to commit culpable

homicide not amounting to murder. But there should be some specific provisions in

Indian Penal Code, 1860 for attempt to commit socially more dangerous act like rape,

theft, assault, intimidation, etc. similarly, there might be certain offences short of

criminal attempt to commit murder, such as, wielding a gun in a dangerous manner,

frightening with weapons, hijacking a plane with a cricket ball looks like a grenade,

attempting rape with a corpse etc. proper avenues should be created in the proper place,

if necessary by innovating certain new Sections of law through amendment for lesser

category of penal provisions for the above offences.

Character of dangerousness which one of the criterion for justification of

liability in criminal attempt should be divided into dangerous act and dangerous person.

Some acts are very dangerous to our social well being. But sometimes these have been

done by someone having high social status. On the other hand some dangerous persons

do some antisocial acts which are not very dangerous act. In this case judiciary has to

consider all the aspects before delivering the judgment.

Law of criminal attempt is considered as the most problematic area of

criminal jurisprudence. The real justification will not be possible if judiciary gives

attention only to the objective approach. Attention is to be given to both the aspects at

the same time other aspects such as circumstances, actual man criterion and reasonable

man criterion should be taken into consideration for which some suggestions are given

in the next chapter.