This article has been written by Anurima Malakar, from Guru Gobind Singh Indraprastha University

INTRODUCTION:

In the progression towards committing a crime, there are distinct phases:

• Intention: where the idea of the criminal act is conceived; Preparation, involving strategic groundwork;
• Attempt: the direct movement towards the crime
• Preparation; and finally,
• Commission of the crime.

An attempt is characterized as the immediate effort to execute the crime after the preparation. It can also be described as an intentional preparatory action. If an individual deliberately engages in an act with the specific goal of completing the crime and faces an unforeseen obstacle beyond their control, it is considered an attempt to commit the crime.

When applied to the legal realm, an ‘attempt to crime’ occurs when an individual endeavours to commit a crime but is unsuccessful. The ‘Law of Attempt’ within the Indian Penal Code ^[1]serves as a deterrent, preventing offenders from making further attempts and contributes to maintaining the safety of society. Notably, the term ‘attempt’ lacks a specific definition in the Indian Penal Code, with Section 511^[2] focusing solely on the punishment for attempting to commit offenses.

ATTEMPT:

Attempt to Commit a Crime:

An attempt to commit a crime takes place when an individual forms the intent to engage in a criminal act, takes concrete steps by arranging the required means and methods for its commission but ultimately fails to carry it out.

In simpler terms, if someone has the intention to commit a crime, takes tangible steps to make it happen, but the actual commission of the crime is thwarted, we consider it an attempt to commit the crime.

Attempt To Commit a Crime Is Punishable:

An attempt to commit a crime is punishable under the Indian Penal Code. Even if the attempt falls short of success, it instils a sense of threat, constituting an injury. The moral culpability of the offender is deemed equivalent to a successful crime.

Section 511 of the IPC specifically addresses the “Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments.” This section stipulates penalties such as one-half of the imprisonment for life or one-half of the fine, or both, as applicable to the respective offences.

Difference between Preparation And Attempt:

Distinguishing between attempt and preparation has been a subject of debate, and several analyses have attempted to clarify these concepts. The key distinctions are given below:

Nature and Timing:

• Preparation involves acquiring the means necessary for committing a crime.
• Attempt, on the other hand, is the direct movement towards committing the crime after the commencement.

Punishment:

• Preparations are generally not punishable.
• Attempts, however, are subject to punishment.

Reasons for Non-Punishment of Preparation:

• Preparations are typically harmless acts.

It is challenging to prove that preparation was intended for committing a specific crime, and even if mischief was initially intended, the individual might have changed their mind. Mere preparation does not cause harm or raise alarms in society.

Mental Element in Attempt: Deciphering Mens Rea

Mens rea, or the mental element, is the intent to commit a crime, while actus reus signifies the guilty act. Drawing a clear line of demarcation between these elements is challenging, and various tests have been proposed. One significant criterion is the

Proximity Test:

which emphasizes the closeness of an act or series of acts to the crime itself. According to this test, for an attempt to be established, all essential steps constituting the crime must be undertaken, and only the final consequence should be averted. The attempt should be sufficiently proximate, avoiding remoteness, and directly connect the accused to the victim.

This theory, stemming from the case of Regina vs Eagleton, asserts that a criminal attempt commences when the offender loses control over the crime by executing the last act. Courts often contend that an offender’s action remains in the preparatory stage until they possess the power to complete the crime.

Social Danger Test:

The Social Danger Test asserts that an attempt to commit a crime is not recognized until the offender has engaged in an act that warrants punishment to safeguard society. Factors considered include the severity of the offense, the proximity of the act to the crime’s completion, and the likelihood that the conduct will lead to the actual crime.

Grounded in the principle of deterrence, this test posits that punishment aims to dissuade individuals from engaging in behaviour harmful to society, and until the offender’s conduct is deemed serious, there is no basis for deterrence.

Locus Paenitentiae Test:

The Locus Paenitentiae Test suggests that the law provides offenders with an opportunity to retract their actions before falling under legal scrutiny. If an offender remains in a stage where they can undo their criminal intentions and refrain from committing the crime, the law refrains from imposing punishment. Only when an offender proceeds with the criminal design, crossing the stage of preparation, will legal consequences be invoked.

Judicial View:

Case: Aman Kumar v. State of Haryana, ^[3]

(An attempt is defined)

The court delineated the concept of attempt, emphasizing two key elements:

• Intent to Commit the Crime:

Attempt involves the presence of an intent or purpose to commit a crime. This signifies that the individual harbours the desire to carry out the criminal act, forming a crucial aspect of the attempt.

• Failure to Achieve the Intention:

If an individual, despite possessing the intent, falls short of realizing or accomplishing their intention to commit the crime, the act qualifies as an attempt. The failure to execute the criminal plan becomes a defining characteristic in distinguishing an attempt from a completed offense.

Case: Abhayanand Mishra v. State of Bihar, ^[4]

The Supreme Court outlined the essential elements of an ‘Attempt’ as follows:

• Intention or Mens Rea:

The accused must possess the intention or mens rea to commit the intended offense. This implies a conscious and deliberate desire to carry out the criminal act.

• Taking a Step Forward:

The accused must have taken a tangible step forward, which constitutes an act or step that goes beyond mere preparation. This action should be directly linked to the commission of the intended offense.

• Failure to Commit the Intended Offense:

Despite having the intent and taking a step towards the commission of the crime, the accused must ultimately fail to execute the intended offense for any reason. This failure distinguishes an attempt from a completed offense.

Case: Narayandas v. State of West Bengal, ^[5]

The accused was found with undeclared currency notes sewn into his pants during a customs inspection. The court ruled that this act had surpassed the preparatory stage and constituted an attempt to smuggle currency, making it punishable under the Sea Customs Act.

Case: Bashirbhai Mohammedbhai v. the State of Bombay, ^[6]

The accused faced a complaint accusing him of possessing duplicate currency notes, which were subsequently recovered. The court determined that the actions had progressed beyond the preparatory stage, constituting an attempt to commit the offence.

Sections in IPC dealing with attempt:

• Section 121^[7]: Waging or attempting to wage war against the Government of India.
• Section 124^[8]: Assaulting the President, Governor, etc., with the intent to compel or restrain the exercise of any lawful power.
• Section 125^[9]: Waging war against any Asiatic power in alliance with the Government of India.
• Section 130^[10]: Aiding the escape of, rescuing, or harboring a prisoner.
• Section 153A^[11]: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony. Offense committed in a place of worship, etc.
• Section 196^[12]: Using evidence known to be false.
• Section 198^[13]: Using as true a certificate known to be false.
• Section 200^[14]: Using as true such a declaration knowing it to be false.
• Section 213^[15]: Taking a gift, etc., to screen an offender from punishment— if a capital offense; if punishable with imprisonment for life or with imprisonment.
• Section 239^[16]: Delivery of a coin possessed with knowledge that it is counterfeit.
• Section 240^[17]: Delivery of Indian coin possessed with knowledge that it is counterfeit.
• Section 241^[18]: Delivery of coin as genuine, which, when first possessed, the deliverer did not know to be counterfeit.
• Section 307^[19]: Attempt to murder. Attempts by life-convicts.
• Section 308^[20]: Attempt to commit culpable homicide.
• Section 309^[21]: Attempt to commit suicide.
• Section 385^[22]: Putting a person in fear of injury to commit extortion.
• Section 387^[23]: Putting a person in fear of death or grievous hurt to commit extortion.
• Section 389^[24]: Putting a person in fear of an accusation of an offense to commit extortion.
• Section 391^[25]: Dacoity.
• Section 393^[26]: Attempt to commit robbery.
• Section 394^[27]: Voluntarily causing hurt in committing robbery.
• Section 398^[28]: Attempt to commit robbery or dacoity when armed with a deadly weapon.
• Section 460^[29]: All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them

CONCLUSION:

In conclusion, the concept of attempt under the Indian Penal Code serves as a crucial legal tool in addressing criminal activities that fall short of completion. The differentiation between preparation and attempt, as well as the establishment of mens rea and actus reus, provide a nuanced framework for legal proceedings.

The various tests, such as the Proximity Test, Social Danger Test, and Locus Paenitentiae Test, contribute to determining the severity of an attempt and its potential societal harm. The significance of attempt lies in its preventive nature, discouraging individuals from progressing toward the commission of a crime. The provisions in the IPC dealing with attempt cover a wide array of offenses, reflecting the legislature’s intent to maintain public order and safety. As an integral part of criminal jurisprudence, the notion of attempt plays a pivotal role in upholding justice and deterring criminal conduct before it reaches fruition.

References

1. Indian Penal Code, (No. 45 Of 1860) ↑
2. Indian Penal Code, 1860 § 511 ↑
3. Aman Kumar v. State of Haryana, 2004 82 SC ↑
4. Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 ↑
5. Narayandas vs State of West Bengal, 1959 AIR 1118 1960 SCR (1) 93 ↑
6. Bashirbhai Mohammedbhai v. the State of Bombay, 1960 AIR 979, SCR (3) 554 ↑
7. Indian Penal Code, 1860 § 121 ↑
8. Indian Penal Code, 1860 § 124 ↑
9. Indian Penal Code, 1860 § 125 ↑
10. Indian Penal Code, 1860 § 130 ↑
11. Indian Penal Code, 1860 § 153(A) ↑
12. Indian Penal Code, 1860 § 196 ↑
13. Indian Penal Code, 1860 § 198 ↑
14. Indian Penal Code, 1860 § 200 ↑
15. Indian Penal Code, 1860 § 213 ↑
16. Indian Penal Code, 1860 § 239 ↑
17. Indian Penal Code, 1860 § 240 ↑
18. Indian Penal Code, 1860 § 241 ↑
19. Indian Penal Code, 1860 § 307 ↑
20. Indian Penal Code, 1860 § 308 ↑
21. Indian Penal Code, 1860 § 309 ↑
22. Indian Penal Code, 1860 § 385 ↑
23. Indian Penal Code, 1860 § 387 ↑
24. Indian Penal Code, 1860 § 389 ↑
25. Indian Penal Code, 1860 § 391 ↑
26. Indian Penal Code, 1860 § 393 ↑
27. Indian Penal Code, 1860 § 394 ↑
28. Indian Penal Code, 1860 § 398 ↑
29. Indian Penal Code, 1860 § 460 ↑