AN INTRODUCTION TO ATTEMPT IN IPC, 1860 AND THE ASSOCIATED THEORIES

AN INTRODUCTION TO ATTEMPT IN IPC, 1860 AND THE ASSOCIATED THEORIES

 

If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment. Among these, the law of ‘attempt’ is hard to understand and is thus noted for its intricacies. The accomplishment or commission of the offence, depends on the success of the third stage. To reach stage four, the attempt has to succeed. If it fails due to reasons beyond control, it is said to constitute an attempt to commit the offence. Section 511 of IPC talks about punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.—

Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.

Essentials of Attempt
  • Guilty intention to commit an offence
  • Some act done towards committing the offence
  • The act must fall short of the completed offence

Illustration: A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

The Nature, Meaning and Scope of Attempt

Though attempt is nowhere defined in the Indian Penal Code, the common law principle creating criminal liability for offences in the attempt stage is fully subscribed to by the provisions relating to the attempt in the code. Attempts have been classified into 3 kinds of treatment as per the IPC. Firstly, they are attempts that are treated at par with the actual offence and entail the same sanction as the attempted offence itself. For e.g. Sections 121, 124, 124-A, 125, 126, 131 etc. They are offences like sedition, waging or attempt to wage war against the govt. of India, using evidence known to be false etc. Secondly, such attempts that are kept on a special footing and treated in terms of the special provisions. They include offences like attempt to murder (S.307), attempt to commit culpable homicide (S.308), attempt to commit suicide (S.309) etc. The offences themselves are provided separate punishment, for e.g. S.302 which provides for punishment for murder.

Thirdly, such attempts that are not covered by the first two categories. They are thus subject to a general omnibus that provides the definition and sanction for attempts under diverse situation. This is provided under Sec. 511 of the IPC. In Malkiyat Singh vs. State of Punjab, the appellant Malkiat Singh was a truck driver. He was carrying paddy out of the jurisdiction of the state of Punjab without a license in the violation of Punjab control order, 1959. He was stopped the truck 14 mile away from the Punjab Delhi Order, and was prosecuted for an attempt to contravene the said order. Allowing the appeal Supreme Court held that the act of carrying paddy did not attempt to a criminal attempt. It was observed in this case that overt act of the appellant is an attempt or as a preparation. Then in this case says that it is quite possible that the appellants may have been warned that they had no license to carry the paddy and they may change their mind.

Major differences between Preparation and Attempt

‘Preparation’ consists in devising or arranging the means or measures for the commission of the offence. After preparation ends, the attempt starts. In the preparation stage, the person, still has the time to change his intention, and to withdraw from the scene of offence. A preparation is generally not punished, except under Sections 122, 126, 399, etc. A purchases poison with an intention to kill B. Upto this stage, A is not punishable. It is impossible to show in most of cases that the preparation was directed to a wrongful end or was done with an evil motive or intention.

Whereas, ‘Attempt’ is the direct movement towards the commission after preparation is made. Attempt begins, where preparation ends. In the attempt stage, the person has no such chance, and the person shall be called as “Accused”. Every attempt to do a criminal act defined in this Code is punishable. A mixes the poison in the food which B is going to take; it is an attempt to commit the offence of murder. A is punishable. An attempt is made punishable because every attempt although it fails to achieve the result, must create alarm, which of itself is an injury and the moral guilt of the offender is the same as if he had succeeded. It is submitted that each and every stage must be taken into account for charging someone as an offender or criminally liable and it is essential that all the stages are fulfilled or satisfied simultaneously and if even one stage is absent it will not amount to crime under IPC.

TESTS OR THEORIES OF ATTEMPT

A person is guilty of an attempt if he does an act which is more than merely preparatory to the commission of the offence which he intended to commit. It may be determined with certain tests, which are described briefly as follows:

Proximity Rule:

This rule has been stated thus, “it seems that the act of the accused is necessarily proximate if, though it is not the last act that he intended to do, it is the last act that is legally necessary for him to do if the result desired by him is afterwards brought about without further conduct on his part.” Latin maxim:-cogitationispoenam nemo patitus which means that no person can be punished for his guilty purposes save so far they have manifested themselves in overt acts which themselves proclaim his guilty.

In one of the important cases which provide illustration of proximity rule, R v. Tylor, A was found guilty of attempting to commit arson as he was detected in the fact of lightning a match stick behind a haystack but instead of lightning  had a been found only to have purchased or even in possession of match box he would not have been held liable for attempt because it was difficult to prove that the match stick was to commit arson. However even in the first case it would be difficult to punish A if he comes out with a plea that striking the match was to light his cigarette.

Doctrine of Locus Poenitentiae

A person attempting an offence may abandon it at some stage before completion though initially he had the intention. This doctrine was adopted by the Supreme Court in the case of Malkiat Singh v. State of Punjab, where the appellant Malkiat Singh was a truck driver. He was carrying paddy out of the jurisdiction of the state of Punjab without a license in the violation of Punjab control order, 1959. He was stopped the truck 14 mile away from the Punjab Delhi Order, and was prosecuted for an attempt to contravene the said order. Allowing the appeal Supreme Court held that the act of carrying paddy did not attempt to a criminal attempt.It was observed in this case that overt act of the appellant is an attempt or as a preparation. It was also said that it is quite possible that the appellants may have been warned that they had no license to carry the paddy and they may change their mind. However, a changed view later came in State of M.P. v. Narayan Singh. But if this theory is pressed to illogical ends there would hardly be left any field for the penal clause of attempt to cover the distance between preparation and actual commission.

Equivocality Test

This test suggests that an act is proximate if, and only if it indicates beyond reasonable doubt what is the end towards which it is directed. The actus reus of an attempt to commit a specific crime is constituted when the accused person does an act which is a step towards the commission of that specific crime and the doing of such an act cannot reasonably be regarded as having any other purpose than the commission of that specific crime. Here, intention followed by mere preparation is not sufficient to constitute an attempt, but preparation must be followed by an act towards the commission of the crime. According to Prof. Glanville Williams, this test on a strict application would acquit many undoubted criminals.

Abhyanand Mishra vs. State of Bihar:-

In this the appellant applied to the Patna University to appear at 1954 M.A examination in English as a private candidate representing that he was a graduate having obtained his B.A degree in 1951 and that he had been teaching in a certain school. Believing his statements the university authority have gave him the necessary permission and on his remitting the requisite fees and sending him copies of his photographs, as required a proper admission card for him was dispatched to the headmaster of the school . As a result of certain information received by the university, an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de-barred from taking and university examination for a certain number of years on account of his having committed corrupt practice at a university examination. He was prosecuted and convicted under section 420 and section 511 of the Indian Penal Code of the offence of attempting to cheat the university by false representation by including it to issue the admission card, which if the fraud had not been detected would have been delivered to him.

Social Danger Test

The seriousness of the crime attempted has been one of the criteria in deciding the liability in cases of attempt. If the facts and circumstances of a case led to the inference that the resultant consequences would have been grave, the crime of attempt is complete. In fact it is the apprehension of a social danger which the particular crime is calculated to excite that determines liability for an attempt.

The Mens Rea in Attempt:

In order to support the charge of attempting to commit a crime, it must be shown that the defendant intended to commit the completed crime to which the charge relates. However, although this means that it must be proved that the defendant intended to commit an act or continue with a series of acts which, when completed, will amount to the offence allegedly attempted and that the defendant intended any requisite consequence of that offence to result from his intended act or acts, intention does not have to be proved as to any circumstances of the actus reus of the offence allegedly attempted or any ulterior element of it if recklessness, negligence or even blameless inadvertence suffices for the completed offence because proof of recklessness as to these elements suffices instead on a charge of attempt.

Impossibility Test

A person can be convicted of stealing some jewels from an empty jewel box or something from an empty pocket. The importance is on the belief of the person and the intention preceding his action to do a particular act. In R vs. Brown, it was held in that case that a person puts his hand into the pocket of another person but he found nothing then in that case the person was liable for the attempt to picking the pocket or thief. It was said in this case that whenever a person puts his hand into the pocket of another person with the intention to pick the pocket he will be liable for the attempt to thief it will not matter that he was found anything in the pocket or not. Further in R vs. Ring, a person puts his hand into the pocket of another person and he found nothing in the pocket. Then in this case person will not be liable. This case overruled the decision or judgment of the case R v. Brown.

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References:
  • Indian Penal Code by S.N Mishra.
  • Indian Penal Code by Ratanlal&Dhirajlal.
  • Indian Penal Code K.D Gaur.

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