Law and You > Criminal Laws > Indian Penal Code > Attempt to Commit Offence (S. 511 IPC)
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, 10 February, 2004 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 Justice Baron Parke stated that “a criminal attempt begins when the offender loses all control over the crime by doing that last act”.
In Commonwealth v. Hamel, No. 99-P-913, decided: August 09, 2001 case, it was 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. One of the leading cases on this point is State of Maharashtra v. Mohd. Yakub.
In State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57 case, 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, (2009) 3 CalLT 586 (HC) case, 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, 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 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.
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, read with Section 511 of the IPC.
the Supreme Court held that the principles which govern the liability under Section 511 also govern the attempt to commit murder under Section 307. The court held that a person commits an offence under Section 511, 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 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 and 511 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 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.
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 Section 511 of the IPC.
Attempts which are Punishable Under IPC:
Under the Indian Penal Code, 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 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 239, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
- 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 302 and the offence of ‘Attempt to Murder’ is punishable under Section 307.
- The offence of ‘Culpable Homicide’ is punishable under Section 304 and the offence of ‘Attempt to Commit Culpable Homicide’ is punishable under Section 308.
- The offence of ‘Attempt to Commit Suicide’ is punishable under Section 309. In Gian Kaur v. State of Punjab, (1996), 2 SCC 648) case the Supreme Court has held constitutional validity of Section 309. In this case, the completed offence is not punishable (since offender would be dead) and as such, there is no provision for the punishment.
- The offence of ‘Robbery’ is punishable under Section 392 and the offence of ‘Attempt to Commit Robbery’ is punishable Under Section 393 and ‘if such Attempt is committed by a person Armed with the Deadly Weapons’, he is liable to be punished under Section 398.
- The offence of ‘Dacoity with Murder’ is punishable under Section 396 and the offence of Dacoity with an ‘Attempt to cause Death’ is punishable under Section 397.
- The offence of ‘Voluntarily causing Hurt in committing Robbery’ is punishable Under Section 394 and the offence of ‘Attempt to cause Grievous Hurt in committing the Robbery’ is punishable Under Section 397.
Section 511 IPC:
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.
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 511 of the Code, 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 511 of the Code.
In R. v. Nidha, (1892) 14 All 38 case, the Allahabad High Court had taken the stance that section 511 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 of the Indian Penal Code. This case had an interesting factual matrix where the accused along with another person had fired at the chowkidar who was going to arrest them. The accused had pulled the trigger but there were no gunshots as the cap had exploded. Straight J, held that since section 307 makes exhaustive provisions for attempt to commit murder, the same cannot be covered under section 511. Among other reasons, J. Straight stated that section 511 is a general rule which will apply in cases for which no special provisions have been made in the Indian Penal Code.
Need to Redraft Section 511, IPC:
The Law Commission of India (42nd Report on Indian Penal Code, (Ministry of Law), (1971), pp. 138, 139) proposed deletion of section 511 and insertion of a new Chapter VB entitled ‘Of Attempt’ consisting of the two sections 120C and 120D after Chapter VA dealing with ‘Criminal Conspiracy’ with a view to group inchoate crimes together. The proposed section 120C gives a comprehensive definition of attempt:
Section 120C IPC:
Attempt:
A person attempts to commit an offence punishable by this Code, when-
(a) he, with the intention or knowledge requisite for committing it doesany act towards its commission;
(b) the act so done is closely connected with, and proximate to, thecommission of the offence; and
(c) the act fails in its object because of facts not known to him or becauseof circumstances beyond his control.
Section 120D IPC:
Punishment for Attempt to Commit Offence:
Whoever is guilty of an attempt to commit an offence punishable by this Code with imprisonment for life, or with imprisonment for a specified term, 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.
This was a good suggestion and would have simplified the law of attempt. However, it has not been given legislative effect. It is better if the law on the subject is amended and simplified as per the recommendation of the Law Commission.
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 IPC, on the other hand section 511 covers attempt to commit other offences in general. Hence Attempt is separately criminalized under section 511.