Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter IV > Punishment for attempt to Commit Offence (S. 62 BNS)
If a person commits a crime voluntarily or after premeditation, the doing of it involves four stages. As in every crime firstly, there must be an intention to commit it, then there must be necessary preparation to commit it, then there is an attempt to commit it. If such attempt succeeds, he is said to have committed the offence. If such an attempt fails he is said to have committed the attempt to commit offence. The Stages in the Commission of Crime are:
- Intention
- Preparation
- Attempt
- Accomplishment.
The term “inchoate” means “undeveloped”, “just begun”, “incipient”, “in an initial or early stage”. Inchoate offences cannot be understood in isolation and must be read in conjunction with substantive offences. A characteristic feature of these offences is that they are committed even if the substantive offence does not reach a stage of completion and no consequence ensues. Thus, if the offence of crime has not been completed, even then a person can be guilty of an attempt to commit a crime.
The ‘Attempt’ is the third stage in the commission of a crime. It is also known as a ‘Preliminary Crime’. The term ‘Attempt’ means “the direct movement towards the commission of a crime after necessary preparation has been made.” Prof. Kenny and Sir James Stephen called the term ‘attempt’ as ‘inchoate crime’ which connotes something which is yet to be completed.
Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment culprit commences to do an act with the necessary intention, he commences his attempt to commit the offence.
Ingredients of the Attempt:
- Guilty intention to commit an offence. i.e., the accused has an intention or means rea to commit the intended offence;
- Some act done towards the commitment of the crime. Thus, he has taken a step forward (that is an act or step which was more than preparatory to the commission of the intended offence towards the commission of the contemplated offence); and
- The act must fall short of the completed offence. i.e., he failed to commit that intended offence by any reason.
The term ‘attempt’ has nowhere been defined in the Indian Penal Code but simply provides for its punishment. An attempt is made punishable because every attempt; although it falls short of success, must create alarm, which itself is an injury. Although the injury is not as great as it would be if the act had been committed but it is punishable because it creates an alarm to other person.
When does Preparation end and Attempt Begin?
In Aman Kumar v State of Haryana, AIR 2004 SC 1497 case, the Supreme Court held that the word ‘Attempt’ is to be used in its ordinary meaning. There is a difference between intention to commit offence and preparation. Attempt begins and preparation ends. It means when any step is taken towards committing that offence is considered as ends of preparation and begins of attempt.
At what stage an act or series of acts is done toward the commission of act intended would be an attempt to commit an offence? Some principles have been evolved to solve that issue:
The Proximity Rule:
The Proximity test examined how much the defendant close to completing that offence. Measured difference is the distance between preparation for the offence and successfully completion of that offence.
In Regina vs Eagleton, [1855] 6 Cox C.C. 559 case, where, the defendant, Eagleton had prepared and submitted certain documents in order to obtain payment, but the final act necessary to actually obtain the money had not yet occurred. The issue was whether his conduct had gone far enough to amount to a criminal attempt, rather than mere preparation. The court held that Eagleton’s conduct did not amount to an attempt. It ruled that, acts which are merely preparatory to the commission of a felony are not sufficient to constitute an attempt. The defendant had not yet done the last act necessary to complete the offence. His actions were still preparatory.
The case is famous for articulating what became known as the “last act” test. For liability in attempt, the accused must have done the last act within their power toward committing the offence. Mere preparation is not enough. This was a strict and narrow test, making it difficult to convict for attempts.
Later, under the Criminal Attempts Act 1981, the test is whether the defendant has done an act that is “more than merely preparatory” to the commission of the offence. This is a broader and more flexible standard than the Eagleton approach.
In Commonwealth v. Hamel, No. 99-P-913 case, is a Massachusetts appellate decision addressing attempt liability and the boundary between preparation and attempt, applying the state’s formulation that a defendant must come “reasonably close” to completing the crime for attempt liability to attach. The Court held that the proximity rule amount left to be done, not what has already been done.
In India, the Supreme Court has applied the test of proximity to a number of cases and there has been a lot of argument of whether proximity should be in terms of time, action or intention.
In State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111 case, where the customs department received some secret information from their sources that a jeep and truck of particular registration number were transporting silver from Mumbai to a lonely coastal area which lies near Bassein. After receiving this information, authorities went to keep watch on the two vehicles. In Midnight they saw the said vehicles coming from Mumbai. The customs department followed them. The vehicles stopped near the sea-coast and the people started removing some bundles and packets from the truck and placing them on the ground. At the same time, the sound of the engine of a mechanized sea-craft from the side of the creek was heard by the authorities. The authorities of the Customs department surrounded and caught them. Officers found four silver ingots on the ground and 39 silver ingots concealed in a shawl and dust bags. The authorities prosecuted the accused for the offence of attempting to smuggle silver ingots from India. The Supreme Court held that the intention of the accused to export the sliver from India by sea was clear from the circumstances enumerated above. They were taking the sliver ingots concealed in the two vehicles under cover of darkness. They had reached close to the seashore and had started unloading the sliver there near a creek from where the sound of the engine of a sea-craft was also heard. The court held that the accused had gone beyond the stage of preparation, and most of the steps necessary in the course of export by sea had been taken. The only step that remained to be taken towards the export of the silver was to load it on a sea-craft for moving out of the territorial waters of India. But for the intervention of the officers of the law, the unlawful export of silver would have been consummated. The clandestine disappearance of the sea-craft when the officers intercepted and rounded up the vehicles and the accused at the creek reinforced the inference that the accused had deliberately attempted to export silver by the sea in contravention of the law.
In Narayan Das vs. State of West Bengal, AIR 1959 SC 1118 case, where the accused had undeclared notes sewn in the pants on his trousers and the same was discovered by the customs officer. The Supreme Court upheld a conviction of the appellant for attempting to commit the offence of carrying undeclared Indian currency outside India without the requisite permit from the Reserve Bank by stating that it was unequivocally established by the facts that his conduct had crossed the stage of preparation
In Om Parkash v. State of Punjab, AIR 1961 SC 1782 case, where the appelant was charged with attempt to commit murder under Section 307 of the Indian Penal Code (IPC). The incident involved an assault in which the victim survived. Bimla Devi, was married to the appellant in October 1951. Their relations got strained by 1953. She was, ill-treated and her health deteriorated due to alleged maltreatment and deliberate under-nourishment. In 1956, she was deliberately starved and was not allowed to leave the house. On June 5, 1956, she happened to find her room unlocked and availing of the opportunity went out of the house and managed to reach the Civil Hospital, Ludhiana. She informed there that she was kept locked in a room for a long time and was beaten by all the above and was starved. The issue was whether the accused’s conduct, though not resulting in death, amounted to an attempt to murder.
The Supreme Court held that the principles which govern the liability under Section 511 (S. 62 BNS) also govern the attempt to commit murder under Section 307 (S. 109 BNS). The court held that a person commits an offence under Section 511 IPC (S. 62 BNS), when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence does an act towards its commission and that such an act need not be penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. It follows, therefore, that a person commits an offence under Section 308 (S. 110 BNS) when he has an intention to commit culpable homicide not amount to murder and in pursuance of that intention does an act towards the commission of that offence whether that act is the penultimate act or not. The court further observed that Sections 308 (S. 110 BNS) and 511 (S. 62 BNS) are expressed in similar language and, therefore, on parity of reasoning, a person commits an offence of culpable homicide amounting to murder under Section 307 (S. 109 BNS) when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not.
The court further held that the word act denotes. a series of the act and similarly and so does an illegal omission denote series of illegal omissions. In this case, the husband and the mother-in-law of the victim had subjected her to acts of cruelty and they had the intention to kill her by starvation. The girl had become a bonny skeleton by their willful omission to provide food to her. She had managed to run away and thus was saved. The court nonetheless held that the accused having guilty mind by subjecting her to starvation by providing her occasionally only the morsel of food, had not only prepared to commit an offence of murder but had illegally been omitting their duty to provide her food and, therefore, had attempted to commit her murder and, therefore, were liable to punishment under Section 307 (S. 109 BNS).
The Doctrine of Locus Poenitentiae:
It deals with those cases in which an individual made preparation to commit the crime but changes his mind at the end, thereby pulling out at the last instant. Such intentional withdrawal prior to the commission or attempt to commit the act will be termed as mere preparation for the commission of the crime and no legal liability will be imposed. The Supreme Court of India applied this doctrine in the case of Malkiat Singh v. State of Punjab.
In Malkiat Singh v. State of Punjab, (1968) 2 SCR 663 case, a truck carrying paddy, was stopped before the Delhi-Punjab boundary. The question was whether the accused were attempting to export paddy from Punjab to Delhi without a permit in violation of the Essential Commodities Order. It was held that on the facts of the case that the offence of attempt had not been completed. The Court observed: The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey.
In Regina vs. Padala Venkatsamy, 1881 3 Mad 4 case, the court did not punish the accused for attempt of forgery despite him having procured all the required material and information for forgery because he does not go beyond the stage of preparation and the law allows from locus paenitentiae.
This case established that for an attempt to be punishable, the actions must move beyond “preparation” to a direct, overt act towards completion. The court emphasized that the law allows an individual to back out before the act becomes an “attempt”.
The Equivocality Test:
‘Equivocality Test’ is used to differentiate between preparation and attempt in a criminal case. When a person’s conduct, in itself, shows that the person actually intends to carry out a crime without reasonable doubt, then the conduct is a criminal attempt to commit that crime. An act is proximate if it indicates beyond reasonable doubts what is the end towards which is directed.
The Act to commit a specific crime is constituted when an accused person does an act which is a step towards the commission of that crime and doing of such an act cannot reasonably be regarded as having another purpose than the commission of that specific crime.
In Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 case, the appellant wanted to get enrolled himself in Patna university to give an M.A. examination by misrepresenting that he has a B.A. degree and currently he had been working as a teacher in a school. The university after giving him admission got to know that he forged those documents which he submitted and he had not been working as a teacher anywhere. The university brought the charges against the appellant. The court held that the preparation was complete when he had prepared the application for the purposes of submission to the University in which he had made false representation about his qualification and about his experience that he was an experienced teacher when he was neither qualified to apply for the admission nor had he the requisite teaching experience to entitle him consideration for admission to the course. The court held that the moment he dispatched it, he entered the realm of attempting to commit the offence of “cheating”. He did succeed in deceiving the University and induced it to issue the admit card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher. The court accordingly held that he had been rightly convicted of the offence under Section 420 IPC (318(4) BNS), read with Section 511 of the IPC (S. 62 BNS).
Impossible Attempt or Failed Attempt:
Earlier the law regarding the impossible attempt was that it would be no crime if a person attempting to do something, which in fact was not possible to perform, it was treated as mere preparation and no punishment was provided for that.
In Q. v. Collins 9 Cox C.C. 407 case, where it was held that if a pickpocket puts his hand in someone’s pocket with the intention to steal but finds the pocket empty, he would not be liable for an attempt to commit theft.
Let us consider a situation: A gives a glass of liquor blended with poison to B but the glass falls on the ground and the liquor spills over rendering it impossible for B to consume the poison, nothing would negate liability of A for an attempt to commit murder. Hence, it is now perceived that impossibility of performance of an act does not per se render the attempt to do it an innocent or an act free from guilt.
In R v. Brown and R. v. Ring cases, the accused was convicted for an attempt to steal from a woman’s coat although the coat was empty. In this case, Rowlett J, remarked that there is absolutely no linkage between impossibility of actual commission of an offence and a possible attempt made in furtherance of an intention to commit the offence. Hence it is an offence
In Asgarali Pradhania v. Emperor, AIR 1933 Cal 893 case, where accused attempted to cause miscarriage of the woman with whom he had illicit relations and who had become pregnant by administering a substance which could have caused a miscarriage. But the preparation of that substance was defective and there was no miscarriage. The Court didn’t hold accused guilty of attempting to cause a miscarriage of the woman. The Court observed that although he had brought mixture which he tried to administer with intent to cause miscarriage, the substance that he administered was innocuous and was not capable of causing miscarriage and, therefore, the preparation was defective and the act done by him was a useless act which could not be said to be an act towards the commission of an offence of causing miscarriage. The court held that there is a distinction between acts which are capable of producing forbidden consequences but the consequence do not result in one because of some supervening circumstance intervening independent of the accused and an act which is intrinsically useless and incapable of producing forbidden consequence because impossibility lies with the accused. In the former case he is while as in the latter he is not liable for an attempt to commit the offence.
If a person attempts to kill someone by empty gun, or steal something from an empty pocket, or steal jewels from empty jewel box. Then it is considered as an impossible attempt of committing that crime but here intention to commit the crime is present and also a step is taken towards completion of that crime. Thus it is considered as ‘attempt to crime’ under S. 62 BNS.
Distinguishing between Preparation and Attempt:
| Preparation to Commit Offence | Attempt to Commit Offence |
| Preparation means arranging means or measures necessary for committing the offence. | Attempt means direct movement toward commission after preparations are complete. |
| Preparation is remote from the completed offence | Attempt is proximate or dangerously close to completion. |
| Generally preparation is not punishable (with exceptions) | It is punishable under criminal law. |
| Preparation may indicate intention, but not conclusively. | Attempt indicates clear intent coupled with overt act toward the offence. |
| In preparation there is no direct act toward committing the crime. | Attempt involves a direct, overt act in execution of the offence. |
| In preparation, the accused still has opportunity to withdraw without beginning execution. | In attempt, the crime would occur unless interrupted by external circumstances. |
| Preparation fails proximity tests. | Attempt satisfies proximity or “substantial step” tests. |
| Preparation does not create immediate danger to society. | Attempt creates immediate and real danger. |
| In preparation Courts are cautious in imposing liability. | In attempt Courts focus on intent + acts sufficiently connected to the offence. |
| Example: Buying poison to kill someone. | Example: Mixing poison in someone’s drink. |
Attempts which are Punishable Under BNS:
Under the Bharatiya Nyaya Sanhita, 2023, the term ‘Attempt’ has been described in three different ways
- Completed offences and attempts have been specified in the same section and same punishment is prescribed for them. Such provisions are Sections 147, 151, 153, 158, 159, 195(1), 196, 233, 235, 237, 250, 179, 308(3), 308(4), 308(7), 310(1), 309(6), 310(2), 311, 331(7), 331(8) of BNS.
- There are some grave offences, where attempts are described separately and specific punishment is prescribed for them. These provisions are as follows:-
- The offence of ‘Murder’ is punishable under Section 103(1) BNS and the offence of ‘Attempt to Murder’ is punishable under Section 109 BNS.
- The offence of ‘Culpable Homicide’ is punishable under Section 105 BNS and the offence of ‘Attempt to Commit Culpable Homicide’ is punishable under Section 110 BNS.
- The offence of ‘Robbery’ is punishable under Section 309(4) BNS and the offence of ‘Attempt to Commit Robbery’ is punishable Under Section 309(5) BNS and ‘if such Attempt is committed by a person Armed with the Deadly Weapons’, he is liable to be punished under Section 312 BNS.
- The offence of ‘Dacoity with Murder’ is punishable under Section 310(3) BNS and the offence of Dacoity with an ‘Attempt to cause Death’ is punishable under Section 311 BNS.
- The offence of ‘Voluntarily causing Hurt in committing Robbery’ is punishable Under Section 309(6) BNS and the offence of ‘Attempt to cause Grievous Hurt in committing the Robbery’ is punishable Under Section 311 BNS.
Punishment for attempt to Commit Offence (S. 62 BNS)
Punishment for Attempting to Commit Offences Punishable with Imprisonment for Life or Other Imprisonment:
Whoever attempts to commit an offence punishable by this Sanhita 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 Sanhita 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.
Illustrations:
(a) 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.
(b) A 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.
Nature of Offence: According to the nature of the offence attempted.
Punishment: Imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both.
In all other cases where no specific provisions have been made in the code relating to Attempt shall be covered under Section 62 BNS, which provides that the accused shall be punished with the 1/2 of the largest term of imprisonment provided for the offence or with the fine or with both. 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 mens rea of the offender is the same as if he had succeeded. Mens rea must be united to injury in order to justify punishment.
For Example: A person has committed an offence of attempt to commit theft and there are no specific provisions for the punishment but the offence of theft is punishable with the imprisonment for a term of three years. So, the punishment for the offence of attempt to commit theft would be one and a half years of imprisonment or with fine or with both, by virtue of Section 62 BNS.
In R. v. Nidha, (1892) 14 All 38 case, where, Nidha, who was absconding, noticed certain chowkidars (watchmen) approaching. He brought a blunderbuss (a type of gun) to his hip, aimed at them, and pulled the trigger. The cap exploded, but the charge did not go off, failing to cause injury or death. The Allahabad High Court had taken the stance that section 511 IPC (S. 62 BNS) would not apply to cases relating to attempt to commit murder as special provisions for the same have been made for the same under section 307 IPC (S. 109 BNS). Straight J, held that since section 307 IPC (S. 109 BNS) makes exhaustive provisions for attempt to commit murder, the same cannot be covered under section 511 IPC (S. 62 BNS). Among other reasons, J. Straight stated that section 511 IPC (S. 62 BNS) is a general rule which will apply in cases for which no special provisions have been made in the Indian Penal Code (BNS).
Conclusion:
Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of the crime and so it is punishable in law like the completed offence. 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. While attempt to commit certain offences such as – attempt to murder, culpable homicide, etc are treated as distinct offence under BNS, on the other hand section 62 BNS covers attempt to commit other offences in general. Hence Attempt is separately criminalized under section 62 BNS.
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