ATTEMPT AS INCHOATE CRIME

A research paper submitted in total fulfillment of the course Criminal Law- I for
obtaining the degree B.B.A., LL.B. (Hons.) during the academic session: 2019-20

Submitted by:

Pragya, Roll: 2029

Submitted to:

Dr. Fr. Peter Ladis F.

Assistant Professor of Law

September, 2019

Chanakya National Law University,

Nyaya Nagar, Mithapur, Patna-800001, Bihar

 DECLARATION
I Pragya, hereby declare that, the project work entitled, ‘Attempt as Inchoate Crime’ submitted to
CNLU, Patna is record of an original work done by me under the guidance of, Faculty Member,
CNLU, Patna.

Pragya

B.B.A., LL.B. (Hons.)

Roll No. – 2029

3rd Semester

I
 ACKNOWLEDGMENTS

First and foremost, I would like to thanks my Faculty of Criminal Law- I, Dr. Fr. Peter Ladis F.,
for giving the opportunity to work on this project named – ‘Attempt as Inchoate Crime’. His
guidance and support has been instrumental while making my project on this topic.

I would like to all authors, writers and columnists whose ideas and works have been made use in
my Project. My heartfelt gratitude also goes to all staff and administration of CNLU for the
infrastructure in the form of library that was a great source of help in completion of this Project.

I also thank my friends for their precious inputs which have been very useful in the completion
of this Project. I would also like to thank my parents, my seniors, dear colleagues, and friends in
the University, who have helped me with ideas about this work.

I hope you will appreciate my true work which is indeed a hard work and a result of my true
research and work.

Pragya

B.B.A. LL.B. (Hons.)

Roll No. – 2029

3rd Semester

II
 TABLE OF CONTENTS

DECLARATION………………………...………………………………………………………. I
ACKNOWLEDGMENT………………………………………………………………………… II

1. LITERATURE REVIEW.........................................................................................................1

2. INTRODUCTION....................................................................................................................3

2.1. STAGES OF AN OFFENCE............................................................................................3

3. INCHOATE LIABILITY.........................................................................................................6

4. THE RATIONALE OF INCHOATE CRIMES.......................................................................7

4.1. TYPES OF INCHOATE CRIMES...................................................................................8

5. THE TWO COMPONENTS OF CRIME..............................................................................10

5.1. ACTUS REUS OF INCHOATE CRIME.......................................................................10

5.2. MENS REA OF INCHOATE CRIME...........................................................................10

6. ATTEMPT..............................................................................................................................11

6.1. IMPOSSIBLE ATTEMPT..............................................................................................15

6.2. ABANDONMENT OF AN ATTEMPT.........................................................................18

6.3. PUNISHMENT...............................................................................................................19

6.4. ATTEMPT AND PREPARATION DISTINGUISHED................................................19

7. CONCLUSION , CRITICISM AND SUGGESTIONS.........................................................21

 ATTEMPT AS INCHOATE CRIME

1. LITERATURE REVIEW

This Research paper examines inchoate crimes in the context of criminal law. After assessing the
meaning, or competing possible meanings, of the inchoate-crime category and its significance,
attention turns to what makes an inchoate crime inchoate and what makes it a crime. More
specifically, the chapter looks at the features that distinguish inchoate crimes from non-criminal
“mere preparation” or other lawful behavior, as well as from consummate crimes. It then
considers the nature and proper limits of inchoate crime based on the offender’s intent and
culpability, the creation of a sufficient risk of harm, and the intervention and renunciation
defense. The chapter concludes by focusing on particular crimes that are deemed inchoate on the
basis of attempt, possession, conspiracy, or solicitation.

The author believes that prosecuting crimes often entails complex analysis of guilt in those who
partake in organized violations of the law. Contemplating the prosecution of a person for an
attempt to commit a crime without the actual crime being committed has always been a point of
controversy among people. It is of the belief that the offences that the individual wishes to
commit is of such grievous nature that in case of failure to commit the said crime, it is in the
public interest to prosecute the acts done in pursuance of the crime.

Objective: The paper attempts to decode the reason and rationale behind prosecuting a person
for an attempt to commit a crime and deals with certain aspects which will justify how certain
values criminalize mere ‘attempt’ and to study the defences available and the factual and legal
impossibility of an attempt.

Hypothesis: An Inchoate Crime is a crime of preparing for or seeking to commit another crime
and the fact that the crime was planned is enough to consider these crimes in and of themselves.

Research Methodology: The author has adopted the analytical approach for the research
asanalytical approach stands applicable in all stages of research, right from the articulation tothe
formulation of arguments on the issues mentioned in the research. This paper is theoutcome of a
secondary data related to criminal law with special reference to Indian context. It is a conceptual,
qualitative research that the author has employed in writing this paper. In the later part of the
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 ATTEMPT AS INCHOATE CRIME

paper, the author concludes that dependant on proximity, there isn’t much difference in an
attempt and committing the crime as the mens rea for both is the same whatever the crime may
be.

Area of Limitations: Every study has own limitation due to the Limited time, lack of sufficient
financial resources and limited area of survey/study of the subject matter. This study also has its
own limitations as the research is stricted to certain books and case laws only and surveys
regarding this topic has been conducted.

Sources of data: This research includes both primary as well as secondary sources of data.

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 ATTEMPT AS INCHOATE CRIME

2. INTRODUCTION

The criminal law punishes not only completed crimes but also short of completion of crimes.
This category of uncompleted crimes is often called ‘inchoate crimes.’ The doctrine of inchoate
crimes is applied specifically to three crimes: Attempt, Conspiracy, and Abetment. The offence
of criminal conspiracy is committed as soon as there is an agreement between two or more
persons to commit an offence.1 In this regard, incomplete criminal conducts raise a question as to
whether it is proper to punish someone who has harmed no one or to set free that person who
was determined to commit a crime. An attempt creates alarm which of itself is an injury, and the
moral guilt of the offender is the same as though he had succeeded. The act may be sufficiently
harmful to society by reason of its close proximity to the completed offence classed as a crime.
Hence, unlike civil law, criminal law takes notice of attempts to commit punishable wrongs and
punishes them according to the nature and gravity of the offence attempted. However the
definitions for attempted crimes vary from state to state. In some jurisdictions, the actions or acts
taken for an attempted crime must go beyond "mere preparation" for the offense. On the other
hand, other jurisdictions permit a conviction based on a wider range of actions taken towards
completing a crime.2

2.1. STAGES OF AN OFFENCE

In criminal law, there are four stages to the commission of any crime:

(i)               Formation of mental element or mens rea.

(ii)              Preparation for the commission of the crime.

(iii)             Acting on the basis of such preparations.

(iv)             Commission of the act resulting in an event proscribed by law.

Different legal systems choose to punish an individual at different stages of the commission of
the crime. Such a choice will be made depending upon the emphasis given by the legal system to

1
Indian Penal Code, Section 120-A
2
ATTEMPT-IN-CRIMINAL-LAW, available at http://www.lawyersclubindia.com/articles/ -1664.asp#_ftn5,
accessed on 19/08/19.
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 ATTEMPT AS INCHOATE CRIME

prevent and discourage crimes. There are sometimes when the individual incites another to
commit a crime for him, thus absolving him of any actus reus and thereby any responsibility for
the crime. Through the offence of incitement and abetment, the legal system takes a strong stand
against any wrongful act of an individual that leads to the commission of a crime. Such inchoate
crimes therefore help reduce the number of crimes that are committed in the society. Thus, the
main rationale behind inchoate crimes is to discourage individuals from the commission of a
crime not only themselves, but also through the incitement inchoate offences are not the normal
kinds of offences that one sees in everyday life. They are those crimes which are crimes with a
small anomaly in them. In essence, inchoate offences are not the major offences themselves.
They are the steps taken or the actions committed in pursuance of action. These steps are
punishable themselves and are known broadly as inchoate offences.

In such offences, it is not the main aim that is being punished, but is the act or thought in
pursuance of the main aim that is punished. It is of the belief that the offences that the individual
wishes to commit is of such grievous nature that in case of failure to commit the said crime, it is
in the public interest to prosecute the acts done in pursuance of the crime. People prosecuted for
the commission of inchoate crimes do not commit direct harm through the actions undertaken,
but for the harm that they could have caused if the act had been committed. Inchoate crimes are
basically incomplete crimes are acts involving the tendency to commit, or to indirectly
participate in a criminal offense. The general inchoate offences are described as the inchoate
offences of attempt, conspiracy and incitement, but they are not self-contained offences. There is
no offence of simply “attempt.” Likewise there is no offence of simply “incitement” or
“conspiracy.” Rather, attempt, conspiracy and incitement are concepts providing for the
construction of offences such as attempted murder, conspiracy to commit theft, incitement to
assault, and so on. In light of this it can be suggested that either “inchoate liability” or “inchoate
offences” are apt headings under which to group the rules and instructions for the operation of
attempt, conspiracy and incitement. Inchoate offences therefore, from the definition can be seen
to be not the same as the actual offence. They are of a lesser magnitude than if the intended
offence had actually been committed. As a result, on prosecution of those who have committed
the offence, the sentence given is usually lesser than that which would have been given if the
intended had been committed. The sentence for the incomplete offence will depend on the nature
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 ATTEMPT AS INCHOATE CRIME

of the step that is taken towards the offence, whereby an act which very closely led to the
occurrence of the originally intended act will be given a higher sentence than the act which was
only towards the commission of the act but however was not close to the commission of the
envisioned act.

The 3rd stage i.e, attempt and the 4th stage i.e, commission are punishable.

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 ATTEMPT AS INCHOATE CRIME

3. INCHOATE LIABILITY

The term ‘attempt’ has nowhere been described in the IPC. Chapter XXIII titled as “Of Attempts
to Commit Offences” does not give any definition of attempt but simply provides for punishment
for attempting to commit an offence punishable with imprisonment for life or imprisonment. The
term however means the direct movement towards the commission of crime after necessary
preparations has been made.3

In the case of R. v. Eagelton5, Park B said, “Acts completely leading to the commission of the
offence are not to be considered as attempt to commit, but acts immediately connected with it
are.”

The Supreme Court observed that an attempt to define the term attempt is a futile exercise. The
attempt stage is reached when the culprit takes deliberate overt steps to commit the offence and
this overt act need not be penultimate act.4

Conduct which is merely preparatory to the commission of an offence is not generally an

offence. However, mere preparation to commit an offence is criminal if it amounts to one of a
number of preparatory offences.5 A person must always be proved to have intended to commit an
act or to continue with a series of acts, which when completed, will amount to the offence
allegedly attempted.6

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
has succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury
is not as great as if he act had been committed, only half the punishment is awarded.7

3
O.P.SRIVASTAVA, ‘Principles of Criminal Law’, (Eastern Book Company, 6th ed.) 50.
4
State of Maharashtra v. Mohd. Yakub,(1980) 3 SCC 5.
5
RICHARD CARD, Criminal Law, (Oxford Publishing Co. 20th ed.) 592.
6
R v. Khan, (1990) 2 All ER 783, CA.
7
Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602.
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 ATTEMPT AS INCHOATE CRIME

4. THE RATIONALE OF INCHOATE CRIMES

The list of inchoate crimes as we have today are a very recent addition to the legal system prior
to which it was widely believed among judicial circles that every crime necessarily entails
criminal liability for attempting it. There was however felt a need to include a head of inchoate
crimes much before, in the 16th century in England when there was seen that there was a major
threat to peace and law. In the time of lawlessness, there was understood to be only one way to
deal with this problem. English jurists felt that in order to prevent such gross violations of the
law, there was a need to take a sterner approach with reference to the prosecution of crimes.
They therefore felt the need for the prosecution of not just those crimes which actually cause a
real harm to another individual. They included incomplete offences which meant that they began
prosecuting those people who took a step towards commission of a wrongful act but were
prevented in some way from actually committing the act they had initially set out to do. It was
only in the 18th century however that there were included more crimes under inchoate crimes
than just attempt. With R v. Higgins in the 19th century, there arose a need in the eyes of the
people to add more subjects under the head of inchoate crimes. Intention was for the first time
given the status of an inchoate crimes and the scope of this topic broadened. Conspiracies go
back centuries with there being found cases on this dating back to the 14 th century which was
vastly different from the types of conspiracies that we see today. Its first identification as an
inchoate crime however only came in the 19th century in the writings of Hawkins and Blackstone.
R v Journeymen Tailors employed conspiracy as Hawkins and Blackstone described, that is, as
something that could attach to a yet to be specified wrong, though this case subsequently became
an authority for a specific offence amounting to conspiracy to strike.8

The one problem with such offences was that there was a defense available to the offenders
whereby in some cases, they could cite „impossibility’ as a defense. If X was caught with his
hand inside Y’s bag and too it back without actually taking anything from the bag, X would be
liable for attempt to commit theft. However, if it was found on further examination that Y’s bag
was empty at the time of the attempt to theft, X could cite the defense of impossibility whereby
he would state that since Y’s bag was empty, it would have been impossible for X to commit
8
PSA PILLAI, Criminal Law (Lexis Nexis, 13th ed.)

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 ATTEMPT AS INCHOATE CRIME

theft and therefore X had to be acquitted of charges. The Criminal Attempts Act, 1981 however
removed all doubts in the minds of the jurists. The main provision of this act was to remove
“impossibility” as a defense to an inchoate crime. This was considered as a very step in the
history of development of inchoate crimes.

4.1. TYPES OF INCHOATE CRIMES

Because the term inchoate crime refers to actions that are taken in order to begin or further a
crime, there are many acts that qualify. Following are the basic types of inchoate crime:

1. Attempt to Commit a Crime

An attempt to commit a crime involves trying to commit an unlawful act, but failing. Failure
might be due to unforeseen circumstances interfering with the attempt, or simply a change of
mind. The most necessary element in proving an attempt to commit a crime is intent.

The individual must have had a specific intent to engage in that particular activity, or to commit
a certain crime. The individual must have actually taken some type of action in furtherance of the
crime. Finally, the actual crime must not have been committed or finalized. Had the individual
actually completed the crime, this would not be an example of inchoate crime, as he would be
charged with that crime, rather than an attempt to commit a crime.9

2. Aiding and Abetting a Crime

Aiding and abetting a crime means to help or hide the person who committed the crime, or facts
regarding the crime. This is someone who did not commit the crime himself, but who helped to
conceal the offender’s actions. This is a crime. In some jurisdictions, an individual who aids and
abets a crime is known as an “accessory” to the crime. To prove an individual is guilt of aiding
and abetting a crime, it must be shown that he and an intent to help in the commission, or to hide
the facts or evidence.

9
RATANLAL & DHIRAJLAL, The Indian Penal Code (LexisNexis, 35th ed.)

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 ATTEMPT AS INCHOATE CRIME

3. Conspiracy to Commit a Crime

Conspiracy to commit a crime occurs when two or more people work together – even if it is only
in planning and preparing – to commit a crime. A criminal charge of conspiracy does not require
that an actual attempt to commit the crime, as it is illegal to conspire together to commit a crime.
In fact, an person can be charged with both an actual crime, and conspiracy to commit that crime.
What it does require is more than one participant, as a person acting alone cannot be charged
with conspiracy with himself.

4. Solicitation to Commit a Crime

Another example of inchoate crime is solicitation to commit a crime involves offering money to
a person, for the purpose of persuading him to commit a crime. While it is commonly known that
solicitation for prostitution is illegal, as it involves offering a person money in exchange for sex.
Solicitation applies to other crimes as well, however.10

10
See supra note 8.
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 ATTEMPT AS INCHOATE CRIME

5. THE TWO COMPONENTS OF CRIME

5.1. ACTUS REUS OF INCHOATE CRIME

The actus reus of an attempt marks the moment at which the non-criminal planning of an offence
turns into a criminal attempt. 11 However, not only does the actus reus of every offence differ, but
each offence can be committed in a variety of ways and circumstances. It depends upon what is
regarded as the justification for punishing attempts. In Houghton v Smith, 12 it was said that it
must be left to common sense in each case to determine whether the accused has gone beyond
mere preparation. Though an actus reus is necessary, there may be a crime even where the whole
of the particular actus reus that was intended has not been consummated.

5.2. MENS REA OF INCHOATE CRIME

The mens rea of an attempt is an intention to commit the offence. Where there is only mens rea,
there is no crime. A mere evil intent or designed unaccompanied by any overt act (prohibited
act), which is technically called actus reus, in furtherance of such design, is not punishable.13

As a general rule, there is no criminal liability where mens rea has only been followed by some
act that does not no more than manifest mens rea. Liability begins only at the stage when the
offender has done some act which not only manifests his mens rea but goes some way towards
carrying it out.

The mens rea with regard to the offence is intention as to the conduct, and suspicion as to the
circumstance. In those circumstances, if the defendant is to proceed with his intended conduct,
he would necessarily commit the full concealment offence. He should thus be convicted of an
attempt when he takes a more than merely preparatory step towards that end.

11
JONATHAN HERRING, Criminal Law, (Eastern Book Company 5th ed.)pg. 452.
12
(1973) 3 All ER 1109.
13
AHMAD SIQQUIE, Criminology & Penology, (Eastern Book Company 6th ed.) pg.36.
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 ATTEMPT AS INCHOATE CRIME

6. ATTEMPT

The IPC does not define this expression however there are various provisions wherein it has
dealt with attempt:

a) In some cases the commission of an offence as well as the attempt to commit it is dealt within
the same section and the extent of punishment prescribed is the same for both. Under such
provisions, both the actual commission of the offence and the attempt to commit are made
punishable equally.

b) On the other hand, in case of four grave offences, attempts are described separately but side
by side with the offences and specific punishment is prescribed for them. These offences include
attempt to murder, attempt to culpable homicide, attempt to commit suicide and attempt to
commit robbery.

Section 511 and Section 30714

The offence of attempt has different meanings in Section 511 and Section 307. If specific
provision for attempt to murder has been made in Section 307 there is no sense and also it will be
against the interest of justice if attempt to murder is tried under Section 307/511 IPC. Section
307 is therefore exhaustive and its scope cannot be narrowed down by Section 511.

The judgment of the Bombay High Court in Cassidy v. Emp caused an unnecessary controversy
in which the accused who pointed an uncapped gun at his superior officer, believing the gun to
be capped, with the intention of causing his death, but his rifle having been pushed up and he
having been prevented from pulling the trigger, was held guilty of attempt to commit murder
under section 511 and not under section 307, the court observing that there could be an attempt
under section 511 which would not come under section 307.

Subsequently, the Bombay High Court itself cast doubts on this view in Vasudev Balwant Gogte
v. Emp. in which the accused fired two shots by a revolver at point blank range at the acting
Governor of Bombay but no damage was done perhaps because a thick leather wallet and

14
Indian Penal Code, 1860.
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 ATTEMPT AS INCHOATE CRIME

currency notes in his pocket withstood the impact. He was held guilty under section 307 and not
under section 511.

The High Courts of Allahabad and Lahore also disapproved the earlier view of the
Bombay .High Court, and subsequently the Patna and Delhi High Courts have followed suit. The
former Chief Court of Punjab held the view that section 511 is much wider than section 307 in
the sense that while under section 307 the act done must be capable of causing death and it must
also be the last proximate act necessary to constitute the completed offence, no such requirement
is necessary in section 511 wherein the act may be any act in the course of the attempt towards
commission of the offence.

This last proximate act theory is not the correct exposition of the law any more and it has been
rejected. In Om Prakash v. State, the accused and his mother deliberately starved and ill- treated
the accused’s wife as she had not brought enough dowry in marriage. Her health deteriorated and
one day she managed to escape to a hospital where she was admitted as an indoor patient.

When the accused and his mother requested the doctor to allow the accused’s wife to go with
them, he refused to oblige on medical grounds. It took almost ten months for the woman to
recover her health. The accused and his mother were held guilty of attempted murder under
section 307 of the Code. The Supreme Court observed that as in section 511, in section 307 also
to secure conviction the act of the accused need not be the last proximate act.

A crime is committed in four stages—of mind, preparation, attempt, and actual commission. The
first stage, the stage of mind or the mental stage, is generally manifested in the form of intention
or knowledge. Words like dishonestly, fraudulently, rashly, negligently, wantonly, voluntarily,
and the like, used in different sections of the Indian Penal Code also show this stage with respect
to that particular crime with which the same has been used. The second stage, the stage of
preparation or the preparatory stage, is that stage where the accused, after passing through the
first stage, moves a little further and starts making preparations for the crime which he has made
up his mind to commit. For instance, if he has decided to kill his enemy he would procure poison
or a revolver by which he intends to commit that crime. This falls under the stage of
preparation.15
15
See supra note 13.
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 ATTEMPT AS INCHOATE CRIME

When he moves further ahead from this stage, he enters into the third stage, the stage of attempt.
For example, after procuring a revolver if he fires by it at the enemy, he has gone beyond the
stage of preparation and has entered into the stage of attempt. When the accused is successful in
the third stage, the stage of attempt, only then results the fourth or the final stage, the stage of
completion or commission of the crime. In the event of the accused remaining unsuccessful in
his attempt, the fourth stage, the actual commission of the crime, can never take place.

Out of these four stages, normally the liability under criminal law exists in the third and the
fourth stages only, and the accused is generally not guilty if his act falls under the first or the
second stage, that is to say, under the mental stage or the preparatory stage. For instance, if A
wants to kill B but does not do anything further in this regard he, being still in the mental stage,
is not guilty of any crime. With such intention if he buys a revolver and gets a licence for the
same, even then he does not commit a crime because he is still in the preparatory stage.

The reason as to why the mental stage and the stage of preparation to commit a crime is
generally not punishable is that neither of these two stages affect the society and criminal law
will punish an act only when the same affects the interest of the society. However, there are
certain exceptional situations in the Indian Penal Code where an accused, even though in the
stage of preparation, has been made liable for his act. These provisions are as under:16

1. Section 122— Preparation to wage war against the State.

2. Section 126— Preparation to commit depredations in the territory of a friendly power.

3. Section 399— Preparation to commit dacoity.

4. Sections 233, 234, 235, 256 and 257 — Making, selling or being in possession of instruments
for counterfeiting of coins or stamps.

5. Sections 242, 243, 259 and 266 — Possession of counterfeit coins, false weights and forged
documents.

16
See supra note 5.
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 ATTEMPT AS INCHOATE CRIME

6. Sections 472, 473, 474, 475 and 476 — Making or possessing counterfeit seals etc., and
possessing forged record of court, public register, valuable security or will etc., and possessing
counterfeiting marked material etc.

7. Section 485 and 486 — Making or possessing instrument for counterfeiting a property mark,
and selling or possessing goods with counterfeit property mark.

8. Sections 489-C and 489-D — Possesssing forged or counterfeit currency-notes or bank-notes,

or making or possessing instruments or material for forging or counterfeiting currency-notes or
bank-notes.

Following are four kinds of attempt under the Indian Penal Code:

1. Sections 124-A, 153-A, 171-B, 171-C, 171-D, 196, 198, 213, 225-B, 239, 240, 241, 250, 251,
254, 295-A, 385, 387, 389 and 391 wherein the main offences and their attempts have been made
punishable in the same section.

2. Sections 307, 308 and 393 wherein the attempts have been made punishable separately but
side by side the main offences.

3. Sections 309 which is the only kind in the Code wherein if the offender succeeds in his
attempts, he could not be punished.

4. Section 511 which deals with rest of the attempts for which no separate provision has been
made by the Code. That is why this provision is sometimes referred to as general attempt. Since
mere mention of this section against an accused will only indicate a case of attempt against him
and attempt of which offence will not be clear it is mentioned along with the punishment section
of the offence committed. For instance, an accused who is charged for attempting to commit
theft will be charged under sections 379/511 of the Code.

Out of all these sections an almost identical expression has been used in only two sections,
sections 309 and 511. Section 309 uses the expression “does any act towards the- commission of
such offence’ while the expression used in section 511 is ‘does any act towards the commission
of the offence’.

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 ATTEMPT AS INCHOATE CRIME

One of the most difficult tasks in attempt cases has been to find out the dividing line between
preparation and attempt. In a case the customs department received a secret information that
silver would be transported in a jeep and a truck. Customs officers kept a watch on these vehicles
and followed them at midnight. The vehicles stopped near a bridge over a creek and some small
and heavy bundles were removed from the truck and kept on the ground.

The customs officers then surrounded the vehicles and thereafter they heard the sound of a
mechanised seacraft from the side of the creek. Many silver ingots were recovered from under
the sawdust bags in the truck. While the trial court convicted the accused for attempting to
smuggle silver out of India, the court of sessions acquitted them as proof of the charge fell short
and the High Court confirmed the order. Agreeing with the trial court’s decision, the Supreme
Court held that the charge against the accused that silver was being exported in violation of the
law out of India was proved.

It was observed by the court that the main purpose of the law was to prevent the evil of
smuggling precious metal out of India and a narrow interpretation of the word ‘attempt’ would
defeat that purpose. Thus, moving the contraband goods deliberately to the place of embarkation
is an act proximate to the completion of the unlawful export.

6.1. IMPOSSIBLE ATTEMPT

An attempt has sometimes been divided into possible and impossible attempts. A possible
attempt is that where if the attempt is successful, the main offence would result, like where A
fires at B with the intention of killing him. Here if the bullet hits B, there is every possibility that
he would die. Such attempts have already been discussed above. An impossible attempt, on the
other hand, is such an attempt where an attempt would never bring about the main crime
whatever the efforts be on the part of the accused, like where A fires at a statue believing it to be
his enemy, or A thrusts his hand in B’s pocket with intention to steal but there is nothing in B’s
pocket.17

In R. v. M’Pherson the accused broke open and entered a dwelling house and stole certain goods
therein. Other persons had already stolen all those goods before the accused had entered the

17
AHMAD SIQQUIE, Criminology & Penology, (Eastern Book Company 6th ed.)
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 ATTEMPT AS INCHOATE CRIME

house, but there were other goods of the complainant which he might have stolen if he were not
interrupted. He was held not guilty of attempt to commit theft. Cockburn. C.J.. observed that the
word ‘attempt’ conveyed the idea that if the attempt succeeded the offence charged would have
been committed.

In R. v. Clieesenian the master of the accused handed over some meat to the accused which was
to be weighed outside and delivered to a customer. The accused by using a false weight kept
back a part of the meat with the intention to steal it, but before he could move away with it, the
fraud was detected. He was held guilty of attempted theft

The reason behind the first theory as to why impossible attempts should not be punished at all is
that such acts cause no alarm to society. The second theory, on the other hand, says that when the
object is absent there should not be any liability, but where there is a mistaken belief in the mind
of the offender, he should be held guilty of attempt.

For instance, firing at a shadow believing it to be enemy is not punishable because the object, the
enemy, is absent. But thrusting a hand in a pocket with the intention of stealing is attempt to
commit theft because there is merely a mistake in the mind of the offender. This theory is not
convincing because in both the illustrations mentioned above there is absence of object as well as
mistaken belief.

An act or a series of act constitutes an attempt (1) if the offender has completed all. or at any
rate, all the more important steps necessary to constitute the offence, but the consequence which
is the essential ingredient of the offence does not take place, or (2) if the offender has not
completed all the steps necessary to constitute the offence but has proceeded far enough to
necessitate punishment for the protection of society. Regarding (1), the non-production of the
consequence may be due solely to want of skill, or other causes operating on the offender
personally, or causes in no way connected with the offender. In all such cases the attempt is
complete, such as, for instance, in firing but missing the mark for want of skill, or for defect in
the gun or the circumstances as shown in the two illustrations to section 511.18

18
O.P.SRIVASTAVA, Principles of Criminal Law (Eastern Book Company, 6th ed.)

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 ATTEMPT AS INCHOATE CRIME

Put the Indian Penal Code has graded the offences relating to human body such as assault, hurt,
grievous hurt, culpable homicide not amounting to murder, murder etc. The emphasis is on the
objective element, that is to say, the injury caused. On the other hand, in offences relating to
property, little or no emphasis is placed on the objective element, that is to say, the amount of
property taken. This perhaps shows that different principles should be applicable in impossible
attempts in human body and property cases. Some exceptional situation may, however, exist
where the general principle may not be followed.

For example, where the accused shoots at an empty carriage believing it to be occupied by his
enemy he will be held guilty of attempt to commit murder, and where the accused shoots at an
overcoat hanging from a peg under the belief that he was shooting at his enemy standing near the
wall, he will be held guilty of attempted murder, and where the accused gave a drug to a woman
to cause abortion but it afterwards transpired that the woman was not pregnant at all, he was held
guilty of attempt to cause miscarriage.

Regarding the (2) above, the following cases should result in conviction of the offender for
attempt. For instance, chasing an enemy with an open gun in hand but not being able to fire shots
at him as he was out of the range of the gun, would result in conviction for attempted murder. Or,
establishing an imported machine for counterfeiting coins or stamps at a secluded place would
make the accused guilty of attempt to make bad money or stamps. The reasons for conviction in
such cases would be that the nature of preparation in such cases preclude the possibility of a
change in the intention of the offender and the preparation being made for an innocent purpose.

But merely purchasing a stamp paper with the intention of forging a document is no attempt
because the presumption of innocence is not negatived and because of the remoteness and
consequent probability of a change of intention. However, as soon as the offender begins to write
on the paper, it becomes an attempt on his part because it is not reasonable to assume that once
he has begun to write he would not complete the document.

But if the accused had begun to write the document a year ago but left the writing unfinished, it
would be no attempt on his part as his conduct shows a change of intention and there is a gap
between starting to write something and then commencing it once again. But buying silver for

17
 ATTEMPT AS INCHOATE CRIME

making coins is merely a preparation as silver could be used in various other ways as well.
Shooting at a shadow sufficiently near another as to put that person in danger will be attempt to
commit murder.

6.2. ABANDONMENT OF AN ATTEMPT

Abandonment and withdrawal is an affirmative criminal defense that arises when a defendant

asserts that he or she never completed, or was not involved in, a criminal act because he or she
abandoned or withdrew from the act prior to it happening. Abandonment and withdrawal is an
affirmative defense, which means that the burden is on the defendant to show that he or she met
all of the requirements for a successful withdrawal from the crime.

For most crimes, except conspiracy, a criminal defendant can establish that he or she
successfully abandoned or withdrew from a crime by showing that he or she stopped
participating in the crime prior to its ultimate commission and either that any actions undertaken
by the defendant prior to abandoning the crime did not contribute to the successful completion of
the crime or that the defendant notified the police of the planned crime as soon as possible in
order to attempt to prevent the crime from taking place.

Abandonment can occur when a defendant is planning to commit a crime on his or her own and
later decides not to commit the crime, or when he or she is participating in a crime with other co-
criminals and decides to no longer participate. When the crime is to be committed by multiple
individuals, one participant’s abandonment of the crime does not absolve others from liability if
the crime is ultimately completed. Additionally, after abandoning a planned criminal activity, a
defendant cannot later reinitiate contact with other individuals who were involved in the planned
crime. If he or she does so, the right to the defense of abandonment or withdrawal is
unavailable.19

6.3. PUNISHMENT

On conviction of attempt the Court may (with a few exceptions) impose any penalty that would
be within its powers for the completed offence. In practice, however, the punishment for the
attempt will be less than for the consummated crime. If a man shoots at another, intending to kill
19
GLANVILLE WILLIAM, Textbook On Criminal Law, (Universal Law Publishing 2nd ed).
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 ATTEMPT AS INCHOATE CRIME

him and succeeds, he is sentenced for "life". If he misses, although he could receive a life
sentence, in practice he will be treated much more leniently.20

6.4. ATTEMPT AND PREPARATION DISTINGUISHED

Preparation is to arrange or devise necessary means or measures, whereas attempt is the direct
movement towards the commission of the crime after preparation is complete. In the case of
Sudhir kumar Mukharjee v. State of W.B,21 Supreme Court held that, attempt to commit an
offence begins when the preparation are complete and the culprit commences to do something
with the intention of committing the offence and which is a step forward toward the commission
of the offence.

However, there is a very thin line between preparation and attempt and a person id guilty when
he crosses that line. An attempt to commit an offence begins when preparation is complete and
the culprit does something for commission of the offence. 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.22 In other words, if a person has proceeded far enough and lost the
opportunity to repent, he is in the stage of attempt.

If the act is near enough to actual offence, it is an attempt and if the act is too remote from the
actual offence, it is preparation. That is why preparation being initial stage is not punishable but
attempt being an advanced stage is always punishable.

The test to find out the difference between the two is whether the acts already done are such that
if the offender changes his mind and does not proceed further, the act already done would be
completely harmless. If it is so, it is mere preparation and if it is not so, it is an attempt. The
crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. 23
However, the sharp clear cut difference between the two is difficult to draw as one shades into
the other and dividing line can only be decided with reference to the facts of each case.24

20
Taylor (1978) Crim. L.R. 236.
21
1974 SCR (1) 737.
22
Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
23
T. Munirathnam Reddi, re, AIR 1955 AP 118.
24
See supra note 8.
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 ATTEMPT AS INCHOATE CRIME

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

of its commission.25 There is a greater degree of determination in attempt ascompared with
preparation.

7. CONCLUSION , CRITICISM AND SUGGESTIONS

To be guilty of an offence, it has to be proven that the defendant has the mens rea and has
committed the actus reus. To be guilty of an attempt, however, requires less, as the essence of the
crime of attempt is that the defendant has failed to commit the actus reus of the full offence;
therefore it only has to be proven that the defendant possessed the mens rea as the offence has
not been committed, even if the defendant intended it to be.

25
Sagayam v. State of Karnataka, (2000) 4 SCC 454.
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 ATTEMPT AS INCHOATE CRIME

However, there are bound to be conceptual difficulties, especially when the primary offence
embraces different states of mind and its commission includes both result and circumstance
outcomes. Nevertheless, none of this can alter the plain meaning of intent in the imposition of
attempted criminal liability.

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

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

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

21
 BIBLIOGRAPHY

BOOKS REFERRED

 AHMAD SIQQUIE, Criminology & Penology (Eastern Book Company 6th ed.).
 O.P.SRIVASTAVA, Principles of Criminal Law (Eastern Book Company, 6th ed.)
 RATANLAL & DHIRAJLAL, The Indian Penal Code (LexisNexis, 35th ed.)
 PSA PILLAI, Criminal Law (Lexis Nexis, 13th ed.)
 S.N. MISHRA, The Code of Criminal Procedure, 1973 (Central Law Publication, 15 th
ed.)

CASES REFERRED

Indian cases

 State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.

 Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602.
 Hem Chandra Singh. Emperor, (1926) 27 Cri. LJ 1244 (Pat.).
 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
 T. Munirathnam Reddi, re, AIR 1955 AP 118.
 Sagayam v. State of Karnataka, (2000) 4 SCC 454.

Foreign cases

 Taylor (1978) Crim. L.R. 236.

 R. v. Eagelton, (1885) 6 Cox CC 559.
 Houghton v Smith, (1973) 3 All ER 1109.

ONLINE DATABSES REFERRED

 www.manupatra.com
 ii. www.jstor.com