INCHOATE OFFENSE

Prepared by arju karki

• 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 and incitement.
• 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 determined to
commit a crime.
• the criminal law answers the question by imposing lesser penalties for
inchoate crimes than for completed crimes that have been attempted, abetted,
and conspired.
• To constitute the crime two elements are always necessary, namely,
mens rea and actus reus. 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.
• actus reus is necessary to constitute a crime, yet there may be a crime
even where the whole of the actus reus that was intended has not been
consummated.
• 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 men rea but goes some
way towards carrying it out. These are known as “inchoate crimes”.
• Inchoate’ is defined as ‘just begun, undeveloped’. Other meanings are
fundamental, not yet fully formed and so on. Thus, inchoate crimes
refers to those acts which have begun but which have not reached
completion sufficient for the offence to have been committed.
• Crime which are incomplete also may give criminal liability
• Just begun
• Divided – 3 categories
• Common law -Incitement , conspiracy and attempt
• MCC 2074- abetment has been covered – into inchoate offense
• No excused by law
• Only – intensional crimes – motive and intension
• Criminal incitement , criminal conspiracy , criminal preparation ,
criminal attempt , criminal abetment
• Partnership in crime
• Withdrawal of any party after the agreement cant liable to get liablity
– but if he or she doesnot report then she /he – liable for – abetment
• Must have communication .
• David Ormerod and darl laird
Attempts , conspiracy and assisting and encouraging under the serious
crime act 207are known as inchoate offense.
Inchoate means just begun, incipient , in an initial or early stage.
criminalizing inchoate offense raises particular difficulties because the
conduct involved until often be far removed from the type of harm that
would be needed to give rise to a charge under relevant substantive
offense . The actus reas of inchoate offense can extended to cover
under wide range of behaviour for ex. With and without agreement in
conspiracy , mere word of encouagerment , assisting .
Nepalese perspective
• Muluki criminal code 2074
1.Criminal conspiracy
Sec.33. Prohibition of criminal conspiracy:
(1) No person shall make a criminal conspiracy.
(2) Where two or more persons agree to commit, or cause the commission of,
an offence, and any act is done by only one or two of them, they shall be
considered to have committed a criminal conspiracy.
(3) A person who commits, or causes the commission of, a criminal conspiracy
to commit an offence of heinous or grave nature shall, where no provision is
made elsewhere in this Act for a separate punishment for such conspiracy, be
punished as follows:
• (a) Where the offence in pursuance of the criminal conspiracy is
committed, punishment imposable if the offence had been
committed,
• (b) Where another offence instead of the offence in pursuance of the
criminal conspiracy is committed and such other offence is committed
in the course of implementation of such conspiracy or as probable
consequence thereof, punishment specified for that offence,
• (c) Where any offence in addition to the offence in pursuance of the
criminal conspiracy is also committed and such offence is also
committed in the course of implementation of such conspiracy 18 or
as a probable consequence thereof, additional punishment also for
such offence

• , (d) Where the offence of criminal conspiracy is yet to be completed,

one half of the punishment specified for that offence
• Latin word –con and spirare- means –breathe together .
• Indian penal code – 2 or more persons joined and agreed together to do
commit a crime – intended to fulfil their criminal motive .
• Sec . 20 –when two or more persons agree to do or cause to be done 1.
an illegal act or 2.an act which is not illegal by illegal means , which an
agreement is designated a criminal conspiracy , provided that no
agreement except an agreement to commit an offense shall amount to a
criminal conspiracy unless some act besides the agreement is done by
one or more parties to such agreement in pursuance is the explanation ,
there of ,explanation , it is immaterial whether the illegal act ultimate
object of such agreement or is merely incidental `to that` object .
• 4 stages of crime – we cant demarcate where conspiracy is .
• Cant demarcate what is inside an individual mind – ill will is –unless
actus reas has not come out .
• Preparation stage – putting poision on milk in placed in the table-
crime of homicide ,buying pestrol without the license crime against
arms and ammunition , - half of the punishment .
• Kinds of conspiracy
• 1.simple conspiracy- 2 or more than 2 persons combined together
and makes plans to commit a crime .
• Wheel conspiracy
Middleman handles most of the transactions
No need to acquaint each others members of the crime
3. Chain conspiracy
Distinct act within overall plan
Distrubution of something – drugs – stages of manufracturing –import
distribution , sale , consumption .
Persons knows only a communicative members and unknown to others
members .
• Conspiracy fraud – common law –fraud act 2006 – infridge private
property .
• Black law dictionary defines conspiracy as
• Civil conspiracy –private property damage /loss to one
• Conspiracy to infridge others intellectual property
• , conspiracy to monopolize the economic market
• Intra enterprise conspiracy – company
• Sedicious conspiracy – to downfall present government
• NKP 2061 , PG .662, DECISION NO .7388 Nepal gvt vs bhaikirat rai etal
– homicide case – 10 years imprisonment .nkp
• NKP 2060 VOL. 9/10 PG.851 DEC. NO . 7286 His majesty gvt vs kamal
prasad basyal homicide case
• Nkp 2069 vol . 1 pg. 84 dec. no 8758 jasman limbu vs Nepal gvt –
homicide case
CRIMINAL ATTEMPT
-Unsussesful commission of the crime
-An attempt to crime is a actions or group of actions taken in
connection with the execution of an intentional crime that cannot
results in the completion of a crime due to interference, restraint,
obstruction, or other miscellaneous reasons.
- attempt is a post-preparation stage in a crime in which the
perpetrator makes a last effort, both physically and mentally, to
complete the planned crime, but for special reasons, the crime does
not achieve the full result he or she intended. Such a situation is
called attempted crime.
• word ‘attempt’, said chief justice Cockburn, clearly conveys with it the idea that if the
attempt had succeeded, the offence charged would have been committed.
• In other words, attempt is the direct movement towards the commission of an offence
after the preparation has been made.
• According to English law, a person may be guilty of an attempt to commit an offence,
if he does an act which is more than merely preparatory to the commission of the
offence and a person may be guilty or attempt to commit an offence even though the
facts are such that the commission the offence is impossible.
• Once an act enters into the arena of attempt, criminal liability begins, because attempt
takes the offender very close to the successful completion of crime and so it is
punishable in the law like the completed offence.
• the moral guilt of the offender is the same as though ha had succeeded.
• Reckless or negligence are irrelevant on the charge of attempt .
• Liable for attempt if his /her activity goes beyond the stage of
preparation.
• Sometimes very difficult to draw between preparation and attempt in
our daily life.
• Attempt is the direct movement towards the commission of an offence
after the preparation is made
• It is when an act has gone beyond the stages of preparation,
towards achieving the intention, that law of attempt begins
and criminal liability covers the acts committed. This is based
on the premise that the attempt, by going beyond the stages
of preparation, takes the offender close to achieving the evil
intention or the crime, and therefore, the very act of attempt
ought to be punished in a manner similar to the completion of
offence itself.
•
Preparation punishable in Exceptional cases:-
• 1) Collecting arms, etc, with the intention of waging war against the
Government of Nepal .
• Committing depredation on territories of power or at peace with the
Government of Nepal
• 3) Making or selling or being in possession of instrument for
counterfeiting coin or Government stamps
• 4) Possession of counterfeit coin, Government Stamp, False weight, or
measure.
• 5) Making preparation to commit dacoity
• n Abhyanand Mishra v. State of Bihar AIR 1961 SC 1698
Supreme court held that, the movement culprit commences to do an
act with the necessary intention, he commences his attempt to commit
an 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.
Appropriate principle to separate from
preparation
• The last stage theory
Perpetrator is guilty of attempt if he or she is at the last stage of
commission of crime.
For ex – following the victim from back with taking knife in hand of
perpetrator and raises his / her hand and strikes at victim.
- Not appropriate to deal with every type of crime.
• The proximity theory
-not to be at last stage
- explains is the causal factor which is closes
- it must be sufficiently near the accomplishment of the substantive offence
3. Substantial theory
-if taken substantial step towards the commission of crime
-Circumstances
The things which he or she is going to accomplish
- Keeping a girl in secret custody , providing false information – may be
substantial step towards commission og girls trafficking .
• 4. theory of impossibility of accomplishment
- A stabs b who was already dead 1 hr ago before the stabbing?
- A shoots at sacks in the midnight thinking b who was his enemy.
- A imports some substances in the name of narcotic drugs in fact it
was not drugs in real .
- In these above examples the actual commission of crime is
impossible.
Liable / not liable ? Question of debate .
• 5. locus paenitentiae test
-one cannot change plead change of mind who is about to enter into a house
with intension to steal but absconds from scene of crime when he sees that he
was being watched by police officer.
-The Latin expression speaks about time for repentance. In Locus Poenitentiae
the word Locus means, a place,- a word frequently used to denote the place in
or at which some material act or even such as crime, delict or breach of contract
took place. Locus Poenitentiae means the opportunity to withdraw from a
bargain before it has become fully Constituted and become binding.
• Intervention of extraneous factor
third party intervention esp. in murder case
7 . Replacing the thing in theft cases thinking it as valueless –r vs
easton1971
• Attempt laws
• Homicide chapter – upto 10 years imp and upto 1 lakh fine
• Half punishment – kidnapping and abduction –sec. 215
CRIMINAL ABETMENT
Section 35. Prohibition of abetment:
• (1) No person shall abet another person to commit an offence.
• (2) For the purposes of sub-section (1), where a person instigates
another person to commit an offence, the person is considered to
have abetted.
• (3) The abettor shall be liable to the separate punishment, if any,
provided for in this Act, and to the following punishment if such
separate punishment is not so provided for: (a) Where the offence is
committed in pursuance of the abetment, the punishment imposable
as if he or she had committed the offence
• (b) Where the offence is yet to be committed in pursuance of the
abetment, one half of the punishment specified for such offence.
• (4) Where an offence is abetted but a different offence is committed
by the abetted person, and that offence was committed under the
influence of the instigation or was a probable consequence of the
abetment, the abettor shall be liable to punishment as if he or she
had committed such offence as well.
• 36. Not to be accomplice:
• (1) No person shall become an accomplice to any offence.
• (2) A person who, with the intention of committing an offence, aids in
the commission of such offence or other offence or who hides the
offender or helps the offender to escape after the commission of the
offence or who provides means to commit, or causes the commission
of, the offense or otherwise assists in the commission of the offence
shall be deemed to be an accomplice.
• (3) An accomplice shall be punished as follows: (a) A person who, with
participation in a criminal conspiracy, commits an offence, provides
means or place to commit the offence, or deprives the person against
whom the offence is committed of the right of private defence or who
orders or advises to commit the offence, shall be punished as if he or
she had committed such offence, (b) For an accomplice other than
one referred to in clause (a), punishment not exceeding one half of 20
the punishment imposable for the commission of such offence
according to the degree of his or her involvement in that act.
• 37. Statute of limitation to be applicable: The statute of limitation
provided for in this Act for making a compliant in relation to an
offence shall also be applicable to the conspiracy, abetment,
accomplice of, or attempt to, such offence