INDIAN PENAL CODE

CONCEPT OF ATTEMPT

SUBMITTED BY:

ARPIT BANSAL

OF B.COM. LL.B. (HONS.)

SECTION C

SUBMITTED TO: ROLL NO.: 173/15

DR. PUSHPINDER GILL SUBJECT: INDIAN PENAL CODE - I

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 CONCEPT OF ATTEMPTS

ACKNOWLEDGEMENT

Any work requires the effort of many people and this is no different. First of all, I would like
to express my heartiest thanks to the Director of University Institute of Legal Studies, Prof.
(Dr.) Rattan Singh for giving me an opportunity to study in such a great institution. Then I
thank my teacher Dr. Pushpinder for firstly making me understand the contents of my topic
and then giving me a wonderful opportunity to present this topic in form of an assignment. His
support and teaching helped me a lot to complete this assignment.

I would also like to thank my friends who were always available to me for help and also helped
me collect data for my project through various sources. They also provided me with material I
needed and made my work as easy as possible.

Regardless of anything, I wish to express my gratitude to those who may have contributed to
this assignment, even though anonymously.

Arpit Bansal

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TABLE OF CONTENTS

TABLE OF CASES ....................................................................................................................... IV

INTRODUCTION ........................................................................................................................... 1

PREPARATION ............................................................................................................................. 3

ATTEMPT .................................................................................................................................... 4

PROPOSED DEFINITION OF ATTEMPT. ....................................................................................... 5

WHAT IS AN ATTEMPT TO COMMIT CRIME? ................................................................................ 6

WHY IS AN ATTEMPT TO COMMIT A CRIME PUNISHABLE? .......................................................... 7

HOW ATTEMPT IS DEALT WITH IN IPC?....................................................................................... 8

INGREDIENTS OF SECTION 511 .................................................................................................. 10

OFFENCE PUNISHABLE BY THIS CODE ................................................................................... 10

WITH IMPRISONMENT FOR LIFE OR IMPRISONMENT ............................................................... 10

TO CAUSE AN OFFENCE TO BE COMMITTED............................................................................ 10

DOES ANY ACT TOWARDS THE COMMISSION OF THE OFFENCE ............................................... 11

WHERE NO EXPRESS PROVISION IS MADE BY THIS CODE ....................................................... 11

TESTS FOR DETERMINING WHETHER AN ACT AMOUNTS TO A MERE

PREPARATION OR AN ATTEMPT TO COMMIT AN OFFENCE ..................................... 12

THE PROXIMITY RULE: PROXIMITY IN RELATION TO TIME AND ACTION OR TO INTENTION? 12

DOCTRINE OF LOCUS POENITENTIAE .................................................................................... 15

THE EQUIVOCALITY TEST ..................................................................................................... 17

ATTEMPTING AN IMPOSSIBLE ACT ........................................................................................ 18

A PERSON 'ON THE JOB' MAY BE HELD GUILTY ................................................................... 21

OBJECT THEORY ................................................................................................................... 22

SECTION 307- ATTEMPT TO MURDER ....................................................................................... 24

ATTEMPT TO COMMIT CULPABLE HOMICIDE .............................................................................. 28

ATTEMPT TO COMMIT SUICIDE .................................................................................................. 29

SUICIDE PACTS ..................................................................................................................... 31

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CONSTITUTIONALITY OF SECTION 309 .................................................................................. 32

RECENT CASE LAWS ................................................................................................................. 33

STATE OF MADHYA PRADESH V. MADAN LAL ...................................................................... 33

STATE OF RAJASTHAN V. SRI CHAND .................................................................................... 33

ALOK LODHI V. STATE OF U.P. ............................................................................................. 34

NIKHIL SONI VS. UNION OF INDIA & ORS.............................................................................. 34

CONCLUSION............................................................................................................................. 35

BIBLIOGRAPHY ......................................................................................................................... 36

WEBLIOGRAPHY ....................................................................................................................... 36

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TABLE OF CASES

S. NO. CASE CITATION PG. NO.

1. Alok Lodhi v. State of U.P. (2016) 94 ACC 550 34
2. Aman Kumar v State of Haryana AIR 2004 SC 1498 4, 6,14
3. Dasrath Paswan v. State of Bihar AIR 1958 Pat 190 31
4. Dhirajia I.L.R. 1940 All. 647 29
Dilawarsab Alisab Jakati v State of
5. (2005) Cr LJ 2687(Kant) 14
Karnataka
6. Gangoo A.I.R. 1942 Nag. 122 24
7. Gian Kaur v. State of Punjab 1996 Cr. L.J. 1660 (S.C.) 32
Hari Mohan Mandal v. State of
8. 2004 Cri. L.J. 3112 (S.C.) 27
Jharkhand
9. Haughton v Smith [1975] AC 476(HL) 18
10. Jameel v. State of Uttar Pradesh 2010 AIR SCW 217 28
11. Jones (Ian Anthony) [2007]4 All ER 112 (CA) 21
Kailash Chandra Pareek v. State of
12. (2003) Cr LJ 3514(Gau) 1
Assam
13. Kaliappa Goundan (1933) 57 Mad. 158 26
14. Khandu (1890) 15 Bom. 194 26
Koppula Venkat Rao v. State of AIR 2004 SC 1874, (2004) 3
15. 5, 7, 8
Andhra Pradesh SCC 602
16. Lingraj Das (1944) 24 Pat. 131 26
17. Luxman (1899) 2 Bom. L.R. 286 24
18. Malkiat Singh v. State of Punjab AIR 1970 SC 713 15
Maruti Shripati Dubai v. State of
19. 1987 Cr. L.J. 743 (Bombay) 32
Maharashtra
(1958) 24 Malayan Law
20. Munah Binti Ali v Public Prosecutor 19
Journal 159(CA)
21. Om Prakash v. State of Punjab AIR 1961 SC 1782 25
22. Partington v Williams [1975] 62 Cr App R 220 18
23. Queen Empress v. Ramakka (1885) ILR 8 Mad 5 1

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24. Queen v. McPherson D. & B. 202 5

25. R v Raisat Ali (1881) ILR 7 Cal 352 13
26. R v Shivpuri [1986] 2 All ER 334 (HL) 20
27. R v. Goodall 2 Cox C.C. 41 22
28. R v. Spicer (1955) 39 Cr. App. 189 22
29. R v. Taylor 42 1895 I F & F 511 12
30. R. v. Collins 9 Cox C.C. 497 10
31. R. v. Dodd (1868) 18 L.T. (N.S.) 88 10
32. R. v. Mc Pherson 7 Cox C.C. 281 10
33. R. v. Osborne (1920) 84 JP 63 22
34. R. v. Ring 17 Cox C.C. 497 10
Ram Kripal S/o. Shyam Lai
35. Charmakar v. State of Madhya 2007 II Cri. L.J. 2302 (S.C). 4
Pradesh
36. Ram Sunder A.I.R 1962 All. 262 30
37. Ramakka (1884) 8 Mad. 5 16
38. Re: T Munirathnam Reddy AIR 1955 AP 118 19
39. Regina v. Cheesman (1852) 1 L. & C. 140 5
Sabir Kumar Kundu v State of West
40. (1991) 2 Cal LJ 71 9
Bengal
41. Sagayam v State of Karnataka AIR 2000 SC 2161 12
42. Satvir Singh v State of Punjab AIR 2001 SC 2828 9
State of Himachal Pradesh v. Jeet
43. 1999 CrLJ. 2025 (S.C.) 30
Singh
44. State of Madhya Pradesh v. Imrat (2008) 4 Cr.LJ. 3869 (S.C). 25
State of Madhya Pradesh v. Madan
45. (2015) 3 KLT 125 33
Lal
State of Maharashtra v Mohammad
46. (1980) 3 SCC 57 12, 13
Yakub
State of Maharashtra v. Balram Bama
47. 1983 Cr.LJ. 331 (SC) 24
Patil
48. State of Rajasthan v. Sri Chand (2015) 6 SCR 321 33
49. State v Parasmal AIR 1969 Raj 65 17

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50. Vasadeo Gogte (1932) 34 BomLR 571 25

Venkat Rao v. State of Andhra
51. (2004) 3 SCC 602 1
Pradesh

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INTRODUCTION

A crime is committed either after premeditation or at the spur of moment. The commission of
crime by a person in the latter case, generally, travels through four distinct and successive
stages. They are:

(i) the formation of the intention to commit it;

(ii) the preparations for commission of the contemplated crime;
(iii) the attempt to commit it, and
(iv) if the third stage is successful, the commission of the intended crime.1

Generally, criminal law does not penalise the first two stages, viz, the stage of contemplation
or intention and the stage of preparation. Mere intention or contemplation to commit a crime
is beyond the purview of criminal law. It is impossible for anyone to be able to 'look into the
breasts of criminals' to ascertain and prove the evil intentions. It is even impossible for a devil
to know the thought of a man. Further, it is always possible for the person to give up his evil
intentions or designs. It is based on these considerations that a principle of law has come to be
evolved, which makes only those intentions punishable that are accompanied by some express
words2 or an overt act aimed towards achieving the intention.

On similar grounds, the stage of preparation, which essentially involves devising or arranging
means or measures necessary for the commission of the contemplated crime, as a general rule,
is also not punishable.3 For, apart from the difficulty of establishing the intention, it would be
impossible in most cases, to establish that the preparation was actuated by an evil intention, or
that it was directed towards achieving a particular wrongful or illegal act. This is because, it is
quite possible that the person who originally had the intention to commit an offence, may,
before actually attempting to commit it, give up or desist from com-mitting it, either due to fear
of the consequences or punishment, or even due to change of heart at the last moment.4 There
are also some practical reasons for not ordinarily punishing preparations for committing an
offence. As stated earlier, it is difficult to state with certainty that the preparation was with the
intention of committing the crime. For example, a person may have bought some poison like

1
Venkat Rao v. State of Andhra Pradesh (2004) 3 SCC 602.
2
Section 503 of the IPC punishes a person for criminal intimidation, which is merely an expression of his intention
to harm other.
3
Kailash Chandra Pareek v. State of Assam (2003) Cr LJ 3514(Gau).
4
Queen Empress v. Ramakka (1885) ILR 8 Mad 5.

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arsenic, or a gun or gun-powder. When questioned, he could say that he had bought them for
killing wild animals or rats which destroyed his crops. Then again, preparation does not by
itself disturb the peace of the locality, threaten the sense of security, or alarm the local residents
by causing fear that the objects are bought for an unlawful purpose. If preparations were to be
made punishable, then there is every likelihood that innocent people may be harassed and face
unnecessary prosecution for the mere fact of having bought weapons or poison.

The third and the fourth stages, namely, attempt to commit an offence, and the actual
commission of the contemplated offence, which are respectively a direct movement towards
commission of the contemplated crime and the actual commission of the crime, are always
punishable. An attempt to commit a crime and the commission of a crime are, thus, perceived
as substantive offences.

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PREPARATION

Preparation consists in devising or arranging means or measures necessary for the commission
of the offence. Ordinarily preparation is not punishable. The reasons as to why preparation is
not punishable are four-fold.5

1. Firstly, a preparation apart from its motive is generally a harmless act.

2. Secondly, it would be impossible in most of the cases to show that preparation was directed
to a wrongful end or was done with an evil motive or intent. It is not possible to say
definitely that the preparation made by a person was not with a view to commission of a
crime.
3. Thirdly, it is not the policy of law to create and multiply offences and if preparations were
to be punished innumerable offences will have to be created.
4. Fourthly, a mere preparation does not ordinarily affect the sense of security of the
individual to be wronged, nor would the society be disturbed or alarmed as to rouse its
sense of vengeance.

Apart from the above reasons pointed out by S. Huda, if preparation is made punishable there
is danger of innocent persons being harassed when such preparation was even for innocent
purpose. Furthermore, there is always possibility of persons repenting and going back from
their evil determinations even though they had made preparations for the same.

Under the Indian Penal Code there are certain exceptions to the rule that preparation is not
punishable. These are:

1. Collecting arms etc. with intention of waging war against the Government of India (Sec.
122).
2. Committing depredation or making preparation to commit depredation on territories of any
power in alliance or at peace with the Government of India (Sec. 126).
3. Making or selling instrument for counterfeiting coin (Sec. 233), making or selling,
instrument for counterfeiting Indian Coin (Sec. 234) and possession of instrument or
material for the purpose of using the same for counterfeiting coin (Sec. 235).
4. Making preparation to commit dacoity (Sec. 399).

5
Huda, S.; The Principles of the Law of Crimes in British India, p. 47.

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ATTEMPT

There may be a crime where the whole of the actus reus that was intended has not been
consummated. Liability begins only at a stage when the offender has done some act which not
only manifests mens rea but goes some way towards carrying it out. An attempt to commit a
crime is an act done with intent to commit that crime and forming part of a series of acts which
would constitute its actual commission if it were not interrupted. The point at which such a
series of acts begins cannot be defined but depends upon the circumstances of each particular
case. An act done with intent to commit a crime, the commission of which, in the manner
proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting
to commit a crime may be committed in cases in which the offender voluntarily desists from
the actual commission of the crime itself.6

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 he commences to do an act with
necessary intention, he commences his attempt to commit the offence. The word "attempt is
not itself defined and must, therefore be taken to its ordinary meaning.7

It was held in Aman Kumar v. State of Haryana8, that the word attempt is to be understood in
its ordinary meaning. It has to be distinguished from intention to commit offence and
preparation. Attempt means an act which if not prevented would have resulted in full
consummation of act attempted. The degree of moral guilt of the offender in case of attempt is
the same as if he had succeeded. Moral guilt must be united to injury in order to justify
punishment. As injury is not as great as the act had been committed, only half the punishment
was awarded in this case for attempt to commit rape.

Any overt act immediately connected with the commission of an offence forming part of a
series of acts which, if not interrupted or frustrated would end in the commission of the actual
offence, is, if done with a guilty intent an attempt to commit offence.9 Mayne defines attempt
as the direct movement towards the commission after the preparations have been made. In

6
Stephen, Digest of Criminal Law (8th Ed.) Art. 29, p. 26.
7
Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh, 2007 II Cri. L.J. 2302 (S.C).
8
2004 Cri. L.J. 1399 (S.C.).
9
Halsbury's Laws of England (3rd Edn. 1955) Vol. 10, p. 307.

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 CONCEPT OF ATTEMPTS

Regina v. Cheesman10, Lord Blackburn has said that there is no doubt a difference between a
preparation antecedent to an attempt and the actual attempt, but if the actual transaction has
commenced which would have ended in the crime if not interrupted, there is clearly an attempt
to commit the crime. According to Cockbum, C.J., attempt clearly conveys with it the idea
that if the attempt had succeeded the offence charged would have been committed.11

Attempt has not been defined in the Indian Penal Code, but ordinarily to constitute an attempt
the following elements are necessary:

(i) mens rea to commit the offence;

(ii) an act which constitutes the actus reus of a criminal attempt;
(iii) failure in accomplishment i.e., the act must fall short of completion of the intended crime.
According to Kenny "the actus reus of attempt is reached in such act of performance as
first gives clear prima facie evidence of mens rea. According to Russel the practical test
for the actus reus in attempt; is that the prosecution must prove that the steps taken by the
accused, must have reached the point when they themselves clearly indicate what was the
end towards which they were indicated. In other words, the steps taken must themselves
be sufficient to show prima facie the offender's intention to commit the crime which he is
charged with attempting.12

PROPOSED DEFINITION OF ATTEMPT. It would also be useful to present the definition of

attempt as given in the proposed Indian Penal Code Amendment Bill. A new section 120C is
proposed to be added providing definition of attempt. According to this section a person
attempts to commit an offence when

(a) he, with the intention or knowledge requisite for committing it, does any act towards its
commission;
(b) that act so done is closely connected with, and proximate to the commission of the offence;
and
(c) the act fails in its object because of facts not known to him or because of circumstances
beyond his control.

10
(1852) 1 L. & C. 140
11
Queen v. McPherson, D. & B. 202.
12
Russel on Crime (11th Edn.) p. 195.

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WHAT IS AN ATTEMPT TO COMMIT CRIME?

An attempt to commit a crime is essentially a direct movement towards the commission of the
contemplated offence after preparations are made. Neither a mere intention, howsoever
blameworthy it may be, to commit a crime nor do the means arranged, howsoever effective
they may be, to commit it, therefore, amount to an offence unless some steps, believed to be
necessary as far as the doer is concerned, are taken to accomplish the intended crime. In other
words, an act (or a series of acts) more than merely preparatory to the commission of the
intended offence is an offence. For instance, A, who purchases and loads a gun with the evident
intention of shooting his enemy B, but makes no movement to use it against B, is beyond the
purview of criminal culpability as he still remains at the stage of preparation. But if he, after
having procured a loaded gun, pursues B, but fails to overtook him or is arrested before he is
able to complete the offence or fires without effect, will be liable for attempting to murder B.13

An attempt to commit a crime, as mentioned earlier, broadly speaking, is a step forward in the
direction of the commission of the intended offence. However, not every act in a series of acts
committed in the direction of the contemplated offence amounts to an attempt. If such an act
still rests in the stage of intention or within the stage of preparation, its doer does not generally
attract criminal liability. It becomes indictable the moment it transgresses the stage of
preparation and brings its doer relatively closer to his contemplated objective or evil intention
but fails short of the intended crime. 'An attempt to commit a crime', observed Sir James
Stephen, 'is an act done with intent to commit that crime, and forming part of a series of act s,
which would constitute its actual commission if it were not interrupted'. 14 It is an act which a
person does towards the commission of the offence, the commission of the offence being
hindered by circumstances beyond his control.15 'Attempt to commit an offence', according to
the Supreme Court of India, 'is an act or a series of act s, which leads to the commission of the
offence, unless something, which the doer of the act neither foresaw nor intended, happens to
prevent this'.16 An attempt to commit an offence, in essence, is 'an intended but unfinished
crime'.

13
RC Nigam, Law of Crimes in India, Asia, London, 1965, p 112.
14
Sir James Stephen, A Digest of the Criminal Law, ninth edn, Sweet & Maxwell, London, art 29.
15
Kenny's Outlines of Criminal Law, JW Cecil Turner (ed), 18th edn, Cambridge, 1962, 'Attempt', p 95, et seq.
16
Aman Kumar v. State of Haryana AIR 2004 SC 1498, (2004) 4 SCC 379, para 10.

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WHY IS AN ATTEMPT TO COMMIT A CRIME PUNISHABLE?

Subjecting criminal liability for attempts, though the intended crimes thereof remained
incomplete, is justified and rationalised on a few theoretical as well as utilitarian
considerations.

A criminal attempt not only poses a threat to bodily and proprietary security but also infringes
the right to security. Such an infringement constitutes, in itself, a harm that penal law seeks to
punish. Hyman Gross, pressing the point, observed:

...Attempt...may usefully be regarded as a second order harm: in itself it is the sort of conduct
that normally presents a threat of harm; and that, by itself, is a violation of an interest that
concerns law. The interest is one in security from harm and merely presenting a threat of harm
violates that security interest.17

Criminal liability for attempts may be justified even in the absence of any harm. An attempt to
commit a crime poses no less a danger to the legally protected interests than does the completed
crime.18 It therefore becomes necessary for criminal law, in the social interests, to identify and
prevent a criminal attempt at the earliest feasible moment and to, through punitive sanctions,
deter the perpetrator. Otherwise, he, with better skill and caution, might keep on trying to
commit the intended crime till he accomplishes his evil intention and design and becomes
successful in his criminal endeavour.19

17
Hyman Gross, A Theory of Justice, Oxford, 1979, p 125.
18
Koppula Venkat Rao v. State of Andhra Pradesh AIR 2004 SC 1874, (2004) 3 SCC 602.
19
RA Duff, Criminal Attempts, first edn, Clarendon Press, London, 1996; Glazebrook, 'Should we have a Law of
Attempted Crime?', Law Quarterly Review, 1969, vol 85, p 28; Glanville Williams, 'Why do Criminal Attempts
Fail? A New Defence', Yale Law Journal, 1960, vol 70, p 160; James Brady, 'Punishing Attempts', The Monist,
1980, vol 63, p 246.

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HOW ATTEMPT IS DEALT WITH IN IPC?

The IPC has dealt with 'attempt' in a specific and general way. It 'treats' a criminal 'attempt' in
four different ways. They are:20

(1) The commission of an offence and the attempt to commit it are dealt with in the same
section and the extent of punishment prescribed is the same for both. The attempts that fall
in this category are:
(i) offences against the state (ss 121, 124, 124-A, 125, 130);
(ii) abetting mutiny (s 131);
(iii) offences against the public tranquility (ss 152 and 153-A);
(iv) offences against public justice (ss 196, 198, 200 and 213);
(v) offences relating to coins and government stamps (ss 239-241 and 251);
(vi) offences relating to extortion, robbery and dacoity (ss 385, 387, 389, 391, 397 and
398); and
(vii) criminal trespass (s 460).
(2) Attempt to commit specific offences are dealt side by side with the offences themselves,
but separately, and separate punishments are provided for the attempts and the offences.
The offences which fall in this category are:
(i) attempt to commit murder (s 307);
(ii) attempt to commit culpable homicide not amounting to murder (s 308); and
(iii) attempt to commit robbery (s 393).
(3) Attempt to commit suicide (s 309).
(4) Attempt to commit offences, for which no specific punishment is provided in the IPC (s
511).

Section 511, which is the solitary provision included in the last chapter 'Of Attempts to Commit
Offences' of the Penal Code, makes an attempt to commit an offence punishable. It lays down
general principles relating to attempts in India.21 It reads:

Section 511. Punishment for attempting to commit offences punishable with imprisonment
for life or other imprisonment.--Whoever attempts to commit an offence punishable by this

20
Shamsul Huda, The Principles of Law of Crimes (Tagore Law Lectures1902), Eastern Book Co, Lucknow,
Reprint, 2011, ch 'Attempt'
21
Koppula Venkat Rao v. State of Andhra Pradesh AIR 2004 SC 1874, (2004) 3 SCC 602.

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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.

A plain reading of s 511 reveals that it is applicable where no specific provisions in the IPC are
made for punishing attempts to commit an offence. It comes into operation when a person,
accused of attempting an offence, after having intended to commit an offence and having made
preparations, has done an act (or a series of act s) towards the commission of the intended
offence.22 But he, due to interruptions, could not commit it. It is not applicable to an attempt to
commit a non-IPC offence.23

22
Satvir Singh v State of Punjab AIR 2001 SC 2828, (2001) 8 SCC 633.
23
Sabir Kumar Kundu v State of West Bengal (1991) 2 Cal LJ 71

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INGREDIENTS OF SECTION 511

Attempt under this section requires the following ingredients:

(1) Attempt must be to commit an offence punishable by the Indian Penal Code with
imprisonment for life or imprisonment' or to cause such an offence, to be committed.
(2) The person attempting must do an act towards the commission of the offence as stated
above.
(3) Attempt under Section 511 is punishable where there is no express provision for
punishment of such an attempt under the Code. Illustrations (a) and (b) to Section 511 are
based on R. v. Ring,24 case which overrules the earlier cases R. v. Collins,25 R. v. Mc
Pherson26 and R. v. Dodd,27 that were based on a mistaken view.

OFFENCE PUNISHABLE BY THIS CODE

No criminal liability can be incurred under the Code by an attempt to do an act, if done will
not be an offence against the Code.

WITH IMPRISONMENT FOR LIFE OR IMPRISONMENT

The use of this expression makes it clear that the offences punishable with death only, or fine
only, are not covered by Section 511.

TO CAUSE AN OFFENCE TO BE COMMITTED

The offence attempted may be any offence under the Code including the abetment of an offence
because abetment itself is an offence.

24
17 Cox C.C. 497.
25
9 Cox C.C. 497.
26
(1827) D. & B. 197 at p. 202; 7 Cox C.C. 281.
27
(1868) 18 L.T. (N.S.) 88.

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DOES ANY ACT TOWARDS THE COMMISSION OF THE OFFENCE

The act must be one immediately and directly tending towards the execution of the principal
crime and committed by the accused under such circumstance that he has the power of carrying
his intention into execution. Thus, where a man goes to the stack with intention of setting fire
to it and lights a Lucifer for that purpose but abandons the attempt because he finds that he is
being watched, he would be guilty of attempting to set fire.

WHERE NO EXPRESS PROVISION IS MADE BY THIS CODE

This section does not apply to those cases of attempts which are made punishable by specific
sections of the Code. Its application is residuary in nature and covers those

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TESTS FOR DETERMINING WHETHER AN ACT AMOUNTS TO A

MERE PREPARATION OR AN ATTEMPT TO COMMIT AN OFFENCE

Courts have repeatedly held that the test to determine whether a particular act amounts only to
preparation or whether it actually amounts to an attempt to commit an offence is based on the
facts and circumstances of each case. However, a few principles can be culled from the judicial
pronouncements to help us determine whether a particular act or a series of act s has crossed
the stage of preparation to enter into the area of attempt to commit an offence. Various tests
have been developed and employed by courts in India for distinguishing an attempt to commit
an offence from preparations made therefor. A few prominent among them discussed here
below are: (1) the Proximity Rule, (2) Doctrine of Locus Penitentiae, and (3) the Equivocality
Test.

THE PROXIMITY RULE: PROXIMITY IN RELATION TO TIME AND ACTION OR TO INTENTION?

The act or a series of acts, in order to be designated as an attempt to commit an offence, must
be sufficiently proximate to the accomplishment of the intended substantive offence. In other
words, an act or a series of act s must be sufficiently proximate, and not remotely connected,
to the crime intended. An act of the accused is considered proximate, if, though it is not the last
act28 that he intended to do, is the last act that was legally necessary for him to do, if the
contemplated result is afterwards brought about without further conduct on his part.29

The usual illustration of a proximate act is found in R v. Taylor30, wherein A, who was found
in the act of striking a match behind a haystack, which he extinguished on perceiving that he
was being watched, was held guilty of attempt to commit arson of haystack. But, if he had
merely purchased a box of matches, he would not have been found guilty of attempted arson,
however evident it might be that he intended to set fire to haystack when he purchased the
matchbox. But even the first situation may create difficulties, if A had said that his intention in
striking the match was to light his cigarette. The underlying principle is said to be embodied in
the Latin maxim cogitationis poenam nemo patitur, which means that no man can safely be

28
The 'last possible act' test, as a general principle, is entirely unacceptable in India; State of Maharashtra v
Mohammad Yakub (1980) 3 SCC 57.
29
Glanville Williams, Textbook of Criminal Law: The General Part, second edn.; Sagayam v State of Karnataka
AIR 2000 SC 2161.
30
42 1895 I F & F 511.

12 | P a g e
 CONCEPT OF ATTEMPTS

punished for his guilty purposes, save so for as they have manifested themselves in overt act s
which themselves proclaim his guilt.

It is clear that though the line dividing preparation from attempt is very thin, the difference is
nevertheless substantial in determining whether an act would amount to an attempt to commit
an offence. The difference is starkly illustrated in R v Raisat Ali,31 in which the Calcutta High
Court considered the case where the prisoner had given an order to print 100 forms similar to
those formerly used by the Bengal Coal Company. The first proof of the forms was also
corrected by the accused. At about the stage when the accused was to have made the final
corrections and alterations to the printed form to make them appear exactly like the originals,
he was arrested and charged with attempting to make a false document under s 464, IPC. How-
ever, the court held him not to be guilty as the attempt could be said to have been completed
only after the seal or the signature of the company had been affixed. Consequently, the act done
was not an act towards making one of the forms of false documents, but if the prisoner had
been caught in the act of writing the name of the company on the printed form and had
completed a single letter of the name, then, in the words of Lord Blackburn, 'the actual
transaction would have commenced which would have ended in the crime of forgery and he
would have been held guilty of the attempt to commit forgery'.

The proximity rule was the basis for the Supreme Court rulings in Abhayanand Mishra and
Sudhir Kumar Mukherjee. An authoritative pronouncement was given by the Supreme Court
in State of Maharashtra v Mohammad Yakub.32 In this case, the accused were arrested by
officials of the Central Excise for attempting to smuggle silver out of India. Based on secret
information, customs officials kept a watch over the accused and apprehended them when they
had brought silver ingots in a truck. The accused were found to have kept some small and heavy
parcels on the ground. At the same time, the sound of a mechanised sea-craft was also heard.
The trial court convicted the accused for attempting to smuggle silver out of India in
contravention of the Imports and Exports (Control) Act 1947, the Customs Act 1962, and the
Foreign Exchange Regulation Act 1947(FERA). The Additional Sessions Court, on appeal,
acquitted the accused on the ground that the facts proved by the prosecution showed that the
accused had not proceeded beyond the stage of preparation and that they 'had not yet committed

31
(1881) ILR 7 Cal 352.
32
AIR 1980 SC 1111

13 | P a g e
 CONCEPT OF ATTEMPTS

any act amounting to a direct movement to-wards the commission of the offence'. The appeal
against acquittal was also dismissed by the Bombay High Court.

The Supreme Court, on appeal by the State of Maharashtra, however, set aside the acquittal by
holding that the accused had committed the offence of attempting to export silver out of India
by sea in contravention of law. Two separate, but concurring, judgments were delivered by
Sarkaria and Chinnappa Reddy JJ. However, these two judicial pronouncements advance
different criteria for identifying a 'proximate act' for distinguishing 'preparation' from 'attempt'.

Justice Chinnappa Reddy, delving into the proximity rule, observed:

In order to constitute 'an attempt' first there must be an intention to commit a particular offence,
second, some act must have been done which would necessarily have to be done towards the
commission of the offence and, third, such act must be proximate to the intended result. The
measure of proximity is not in relation to time and action but in relation to intention.... The act
must reveal, with reasonable certainty, in conjunction with other facts and circumstances and
not necessarily in isolation, an intention, as distinguished from a mere desire or object, to
commit the particular offence, though the act by itself may be merely suggestive or indicative
of such intention, but that it must be indicative or suggestive of the intention.33

However, Sarkaria J considered proximity in terms of the actual physical proximity, rather than
the intention-oriented proximity, to the objective of the intended crime. He observed:

Broadly speaking...overt act or step in order to be 'criminal' need not be the penultimate act
towards the commission of the offence. It is sufficient if such an act or act s...manifest a clear
intention to commit the offence aimed, being reasonably proximate to the consummation of the
offence.34

Applying the proximity rule in the instant case, Sarkaria J ruled:

They had reached close to the seashore and had started unloading the silver there, near a creek
from which the sound of the engine of a sea-craft was also heard. Beyond the stage of
preparation, 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

33
Aman Kumar v State of Haryana AIR 2004 SC 1498.
34
Dilawarsab Alisab Jakati v State of Karnataka (2005) Cr LJ 2687(Kant).

14 | P a g e
 CONCEPT OF ATTEMPTS

moving out of the territorial waters of India. But for the intervention of the officers of law, the
unlawful export of silver would have been consummated.

Thus, determination of the proximity rule, as perceived by Chinnappa Reddy J, relates with the
proximity of 'state of mind' or 'intention' of the doer with the intended crime. While Sarkaria J
perceived its determination in terms of the 'physical proximity' of the doer with the commission
of the intended crime. The line of reasoning, in the backdrop of the requisite of committing an
act 'towards the commission of the offence', given by Sarkaria J seems to be preferable to, and
more logical than, the one advanced by Chinnappa Reddy J as proximity, generally, refers to
the sequence of act s leading to, and closely connected with, the com-mission of the
contemplated offence.35

DOCTRINE OF LOCUS POENITENTIAE

This is a Latin word which means an opportunity to withdraw from the commission of a crime.
An act amounts to mere preparation if a man on his own accord gives it up before the criminal
act is carried out. This means that so long as the steps taken or the acts done by the accused
leave room for a reasonable expectation that he might of his own accord change his mind and
decide not to proceed further towards commission of crime for any reason such as fear of the
consequences that might befall after commission of crime and desist from the contemplated
attempt he will be treated at the stage of only preparation. That is probability of a man giving
up his design or intention should in every case be a question of fact and cannot be determined
by any rigid rule of general application.

For example, 'A' intending to murder 'B' by administering poison purchases poison and mixes
the same with food which remains in As keeping, A is not guilty of an attempt to murder
because there is still time when better reason might prevail at any moment and A might change
his mind and desist from giving that poisonous food to B.

In Malkiat Singh v. State of Punjab36, the appellant Malkiat Singh was a truck driver. He was
carrying paddy out of the jurisdiction of the State of Punjab without a licence in violation of
the Punjab (Export) Control Order, 1959. He was stopped 14 miles away from the Punjab Delhi
border and was prosecuted for an attempt to contravene the said order. Allowing the appeal

35
BB Pande, An Attempt on 'Attempt', (1984) 2 SCC 42(J).
36
AIR 1970 SC 713.

15 | P a g e
 CONCEPT OF ATTEMPTS

Supreme Court held that the act of carrying paddy did not amount to a criminal attempt. It was
observed that.

The test for determining whether the overt act of the appellant 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 minds at any place
between Somalkhan barrier and the Delhi-Punjab boundary and not have proceeded further in
their journey.

If, however, the offender has desisted from proceeding further owing to the attempt being
discovered, or the presence of police, the law will not excuse him since the evil intent is still
present.

An example of locus penitentiae is Ramakka37 case, where a woman ran to well saying that she
would jump into it and she was not caught before she could reach it. She was not guilty of
attempt to commit suicide because she might have changed her mind before jumping into the
well. In this case the act of woman was still at the stage of preparation and not attempt because
the rule is that so long as there is possibility of change of mind and the act intended could be
avoided it would not be attempt. Where the attempt would have frutified if there is no external
intervention it would be a case of attempt because there was no chance of change of mind.

As far as IPC is concerned, this principle has been recognised in making a distinction between
preparation to commit a crime and attempt to commit a crime. Preparation is not punishable
but attempt is punishable. Preparation has been made punishable only in exceptional cases and
all such offences when only its preparation is made a crime are specifically provided under the
IPC such as making preparation to commit dacoity under Section 399, IPC.

The distinction between preparation and attempt largely depends upon Native proximity
between the act done and the evil consequences contemplated. Preparations generally do not
constitute offence and are not punishable whereas an attempt is punishable. The reasons why
preparation is not punishable are:

(i) a preparation apart from its motive is generally a harmless act;

37
(1884) 8 Mad. 5.

16 | P a g e
 CONCEPT OF ATTEMPTS

(ii) it would be impossible in most cases to show that preparation was directed to a wrongful
act or was done with evil motive or intent. Therefore, if mere preparation is made
punishable it would cause unnecessary harassment to innocent persons as there is a locus
penitentiae, as the doer may still change his mind and may not commit the crime;
(iii) moreover, it is not the policy of law to create and multiply offences. If preparation is to be
punished, innumerable offences will have to be created;
(iv) fourthly, a mere preparation does not and cannot ordinarily affect the sense of security of
the individual to be wronged, nor would the society be disturbed or alarmed as to rouse its
sense of vengeance.

An example of locus penitentiae is Ramakka case, where a woman ran to well saying that she
would jump into it and she was not caught before she could reach it. She was not guilty of
attempt to commit suicide because she might have changed her mind before jumping into the
well. In this case the act of woman was still at the stage of preparation and not attempt because
the rule is that so long as there is possibility of change of mind and the act intended could be
avoided it would not be attempt. Where the attempt would have frutified if there is no external
intervention it would be a case of attempt because there was no chance of change of mind.

THE EQUIVOCALITY TEST

The equivocality test, a continuation of the proximate rule and the doctrine of locus penitentiae,
suggests that an act done towards the commission of the offence would amount to an attempt
to commit the offence if, only if, it unequivocally indicates the intention of the doer to
accomplish the criminal object. If what is done indicates beyond reasonable doubt that the end
is towards which it is directed, it is an attempt, other-wise it is a mere a preparation. In other
words, the steps taken or acts done by the accused must speak for themselves.38 In State v
Parasmal,39 the Rajasthan High Court, plausibly referring to the unequivocallity test, observed:

When a person intends to commit a particular offence, and then he conducts himself in such a
manner which clearly indicates his desire to translate that intention into action, and in
pursuance of such an intention if he does something which may help him to accomplish that

38
Turner, 'Attempts to Commit Crimes', in Modern Approach to Criminal Law, Davis (ed), p 279, and Glanville
Williams, Textbook of Criminal Law: The General Part, second edn, Stevens & Sons, London, 1983, Indian
Reprint by Universal Publishers, New Delhi, 1999, p 481.
39
AIR 1969 Raj 65.

17 | P a g e
 CONCEPT OF ATTEMPTS

desire, then it can safely be held that he committed an offence of attempt to commit a particular
offence. It is not necessary that the act which falls under the definition of an attempt should in
all circumstances be a penultimate act towards the commission of that offence. That act may
fall at any stage during the series of acts which go to constitute an offence under section 511
of the Indian Penal Code.

ATTEMPTING AN IMPOSSIBLE ACT

An attempt to commit an offence is doing an act or a series of acts or taking a step forward in
the direction of an offence. The essentiality of a criminal attempt, as discussed earlier, lies in
intention of a person to commit an offence and that must be evident from what he has actually
done for accomplishing his ultimate criminal objective. However, in this backdrop, a pertinent
but interesting question deserves attention, namely, does a step forward in the direction of
committing an impossible act amount to an offence to commit the offence? In other words, can
there be an attempt to commit an act which is impossible? Such an impossibility may arise due
to legal impossibility (because an act done by the accused, for reasons un-known to him, is not
a crime),40 physical impossibility (owing to physical impossibility of the accused to commit
the intended crime, whatever means he adopts),41 or impossibility through ineptitude (owing
to inept means chosen by the doer or inefficiency to commit the intended crime).42

At one time, it was supposed that it would be a no crime if a person attempted to do something,
which in fact was impossible to perform, for it was treated at par with a mere preparation.
However, 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.

However, the legal framework relating to law of attempts sketched under the IPC does not
specifically deal with an attempt to do an act that is impossible to do. Nevertheless, a careful
reading of illustrations (a) and (b) appended to s 511 shows that a person can be held guilty of
attempting to steal some jewels from an empty jewel box or something from an empty pocket.
The crucial aspect is the belief of the person, and the intention preceding his act ion to do a
particular act. It does not matter that it is after breaking open a box with the intention of stealing
jewels which he believes to be inside it, or the person who picks another's pocket with the

40
Haughton v Smith [1975] AC 476(HL).
41
Partington v Williams [1975] 62 Cr App R 220.
42
Haughton v Smith [1975] AC 476(HL).

18 | P a g e
 CONCEPT OF ATTEMPTS

intention of picking (or lifting) whatever valuable he finds inside both persons find their
intentions incapable of fulfilment.

These two illustrations, by necessary implication, lay down a rule that a person becomes liable
for attempting to commit an impossible act (stealing jewels from the empty jewel box or
something from the empty pocket) if he, with intent to commit the intended offence, has done
everything within his reach to commit the intended offence but his criminal objective was
frustrated because of reasons unknown to him or circumstances beyond his control or
comprehension.43 And an attempt to commit an offence is possible even when the intended
offence is impossible to commit. The crucial test for determining as to whether he has crossed
the stage of preparation, it seems, is overt act that manifests his intention to commit the in-
tended offence.

There is, however, not a single reported judicial pronouncement in India that delves deep into,
and deliberates on, the law relating to impossible attempts reflected to in the two illustrations
of s 511, IPC. However, Munah Binti Ali v Public Prosecutor,44 wherein the Federation of
Malaya Court of Appeal delved into s 511 (along with illustrations) of the FMS Penal Code (of
Malaysia), which is word to word same to that of s 511 (and its illustrations) of the IPC, offers
some insight into these illustrations. When the Court of Appeal was called upon to adjudge the
propriety of the lower court's order convicting a woman, under s 312 read with s 511 of the
FMS Penal Code, for attempting to abort another woman, who was not actually pregnant. The
accused came to know that the woman was not pregnant only after she attempted to cause
miscarriage. The Court of Appeal, dismissing the appeal against conviction, ruled:

In the present case...the evidence clearly showed that it was the intention of the appellant to
bring about a miscarriage and she could not have made the attempt unless she believed the
complainant to be pregnant. If the complainant was not pregnant, then the failure of the attempt
was due to a factor independent of the appellant herself. Her attempt was prevented or frustrated
by the non-existence of a circumstance which she believed to exist. As I see it, she is in exactly
the same position as the would-be pick-pocket who, believing that there is or may be something
capable of being stolen in the pocket which he decides to pick, attempts to steal it and finds his
attempt foiled by a circumstance independent of himself, namely, the non-existence of anything
capable of being stolen. The circumstances of the case seem to me to be exactly covered by the

43
Re: T Munirathnam Reddy, AIR 1955 AP 118.
44
(1958) 24 Malayan Law Journal 159(CA).

19 | P a g e
 CONCEPT OF ATTEMPTS

illustrations to s 511 of the Penal Code, even though these illustrations speak of attempts to
commit a different type of offence.

However, it is pertinent to note here that the Criminal Attempts Act 1981 of the UK, which
substituted the Common Law offence of attempt, has codified, inter alia, the law relating to
impossible act s. With a view to overcome the thitherto difficulties associated with, and
uncertainties relating to, attempts to commit acts that are impossible to commit, s 1 codifies
'attempt', including impossible attempt. It reads:

(4) If, with intent to commit an offence, a person does an act which is more than merely
preparatory to the commission of the offence, he is guilty of attempting to commit the
offence.
(5) A person may be guilty of attempting to commit an offence, even though the facts are such
that the commission of the offence is impossible.
(6) In any case where: (a) apart from this sub-section a person's intention would not be
regarded as having amounted to an intent to commit the offence, but (b) if the facts of the
case had been as he believed them to be, his intention would be so regarded, then for the
purpose of sub section (1) above, he shall be regarded as having had an intent to commit
the offence.

In R v Shivpuri,45 the scope of s 1 came under judicial scrutiny. In this case, the appellant was
arrested by customs officers while in possession of a suitcase which he believed to contain
prohibited drugs. After his arrest, he told the officers that he was dealing in prohibited drugs.
However, on analysis, the substance in the suitcase was found to not be drugs, but snuff or
similarly harmless vegetable matter. Nevertheless, he was charged under Section 1 of the
Criminal Attempts Act 1981 and s 170(b) of the Customs and Excise Management Act 1979.
He was convicted for attempting to commit an offence of being knowingly concerned in
dealing with and harbouring prohibited drugs contrary to s 170(b) of the Customs and Excise
Management Act 1979. One of the main grounds of his appeal was that because the substance
found in his possession was not a prohibited drug, he could not be guilty of attempting to deal
in or harbour prohibited drugs, and thus he could not be covered by s 1 of the Criminal Attempts
Act 1981, as the commission of the actual offence was impossible. The Court of Appeal
certified that the point of law involved therein was: 'does a person commit an offence under
section 1 of the Criminal Attempts Act, 1981 where if the facts were as that person believed

45
[1986] 2 All ER 334 (HL).

20 | P a g e
 CONCEPT OF ATTEMPTS

them to be, the full offence would have been committed by him, but where on the true facts the
offence which that person set out to commit was in law impossible, e.g. because the substance
imported and believed to be heroine was not heroin but harmless substance?'

Since no proof was required that the person knew which category of prohibited drugs the goods
he had handled belonged to, it was immaterial that the appellant was unsure of the exact nature
of the substance in his possession, other than the fact that he believed that he was dealing in
either heroin or cannabis, the import of which was prohibited. The principle laid down in
Shivpuriis that the accused is punished for his guilty mind, although the act actually committed
is innocent.46 An act otherwise innocent turns to be a crime, if the intention of the accused was
to commit an offence through the said act s or activities.

Thus, impossibility to do the offence cannot be a defence in India and in England and a person's
subjective belief to commit a particular crime is sufficient to convict him. However, law in
India, compared to that of UK, is imprecise and needs to be read in the illustrations rather than
in a substantive provision.

A PERSON 'ON THE JOB' MAY BE HELD GUILTY

An important question while considering an attempt to commit an impossible act is as to

whether the accused was actually 'on the job', i.e., whether he had gone beyond the stage of
preparation and was in the next stage of trying to actively implement the planned or desired
action by way of trying to act on the in-tent, or trying to achieve his intention. As has been said,
the impossibility of a thing does not prevent an attempt being made. Thus, a man trying to
break open the best of steel safes with totally inappropriate or inadequate instruments, would
still be guilty of attempting to steal, even though it is probably impossible to actually achieve
it. If the person had been apprehended while he was 'on the job', then he was criminally liable.
However, apart from the fact of the impossibility of achievement, if the person had never been
on the job itself, then of course he could not be held liable.

The scope of the applicability of the 'impossibility test' is clearly brought out in the following
illustrations:

46
Shivpuri is applied in Jones (Ian Anthony), [2007]4 All ER 112 (CA).

21 | P a g e
 CONCEPT OF ATTEMPTS

(1) D shoots at P, whose back is turned to him. The attempt is rendered abortive by the fact
that P is beyond the range of D's weapon. D is guilty of attempt.
(2) D did not intend to kill B, knew the limited range of his weapon and was merely practicing
it in fact. No mens rea, and hence no attempt.

Thus, it is clear that the question whether there is attempt or not, depends exclusively on mens
rea. If there is mens rea, it is capable of establishing as an act us reus, an act that would
otherwise be not only legally, but morally and socially, innocent.

OBJECT THEORY

This theory tries to differentiate between cases where the object is merely mistaken and cases
where the object is absent. In the former case it would be an attempt but the latter would not.
Where a pick-pocket puts his hand in an empty pocket he is only mistaken but where one shoots
at a shadow the object is absent. Huda has made a distinction between attempts in case of
offences relating to property and those relating to human body. In case of offences against
property mens rea plays a prominent role; in case of offences against human body the objective
element, the amount of injury inflicted upon the individual is significant. cm however does not
recognise a distinction on the lines suggested Huda. Huda accepts three exceptions to this rule
on the ground that these cases cause alarm in the society. The exceptions are:

(i) A intending to kill B shoots at an empty cartridge supposing it to be occupied. A has

attempted.
(ii) A intending to kill B fires at B's coat hanging in his room mistaking it for B. A has
attempted.47
(iii) A administers to B a drug with the intent to producing abortion, but the woman was not
actually pregnant. A has attempted48

In R. v. Osborne,49 the accused had sent some pills giving impression that they would provide
abortion. They were taken hut were found to be innocuous. It was held that the accused was
not on the job and hence he is not liable for attempt. This case has been overruled in R v.
Spicer,50 and therefore it would now be an attempt. Some other illustrations of 'on the job' rule

47
Wharton p. 213
48
R v. Goodall, 2 Cox C.C. 41.
49
(1920) 84 JP 63.
50
(1955) 39 Cr. App. 189.

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 CONCEPT OF ATTEMPTS

may be cited. A intending to kill B, shoots at an empty cartridge believing it to be occupied by

B. Here A has attempted because such shooting will cause an alarm to the society at large.51
Moreover, A was on his job but the desired consequence could not result because the object
was missing. Similarly, A intending to kill B fires at B's coat hanging in his bed room mistaking
it for B. A has attempted.52

51
Wharton p 213.
52
Ibid.

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 CONCEPT OF ATTEMPTS

SECTION 307- ATTEMPT TO MURDER

S. 307 Attempt to murder.Whoever does any act with such intention or knowledge, and
under such circumstances that, if he by that act caused death, he would be guilty of murder,
shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the
offender shall be liable either to 1[imprisonment for life], or to such punishment as is
hereinbefore mentioned. Attempts by life convicts.2[When any person offending under
this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be
punished with death.]

This section deals with attempt to murder. It punishes those cases where execution of the
purpose falls short of a complete execution and the consummation is hindered by circumstances
independent of the will of another. The act or illegal omission, although it does not cause death,
is carried to such a length as, at the time of carrying it to that length, the offender considers
sufficient to cause death. The act done must be capable of causing death and death must have
been intended. For example, mixing of poison in food with the intention of causing death will
be an offence under this section even though no death occurs.53 Thus in illustration (a) to this
section A would be guilty of attempt to murder even though Z sustains only injuries. Attempt
is an intentional preparatory action which fails to achieve its object because of the intervening
circumstances independent of the person who seeks its accomplishment.54

In State of Maharashtra v. Balram Bama Patil,55 it was held by the Supreme Court that to
justify a conviction under section 307 it is not essential that bodily injury capable of causing
death should have been inflicted. Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the accused, such intention
may also be deduced from other circumstances, and may even in some cases, be ascertained
without any reference at all to actual wounds. The section makes a distinction between an act
of the accused and its result, if any. Such an act may not be attended by any result so far as the
person assaulted is concerned, but still there may be cases in which the culprit would be liable
under this section. It is not necessary that the injury actually caused to the victim of the assault
should be sufficient under ordinary circumstances to cause the death of the person assaulted.

53
Gangoo, A.I.R. 1942 Nag. 122.
54
Luxman, (1899) 2 Bom. L.R. 286.
55
1983 Cr.LJ. 331 (SC).

24 | P a g e
 CONCEPT OF ATTEMPTS

What the court has to see is whether the act, irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in this section. An attempt in order
to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent
coupled with some overt act in execution thereof.

In Vasadeo Gogte56, the accused fired two shots with a revolver at point blank range at the
acting Governor of Bombay, but the bullet failed to produce the desired result either because
of some defect in the ammunition or the intervention of a leather wallet and currency notes in
his pocket. The accused was held guilty of an offence under this section. It was observed by
the Court that to support a conviction under this section the accused should have done the act
with such guilty intention or knowledge and in such circumstances, that but for some
intervening act the act would have amounted to murder in the normal course of events. This
view was also approved by the Supreme Court in Om Prakash v. State of Punjab,57 wherein it
was held that a person commits an offence under this section 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. In this case, the accused
and his mother deliberately starved and ill-treated accused's wife W because she had not
brought any cash as dowry in her marriage. As a result of starvation her health deteriorated day
by day. She was neither given any medical treatment nor was allowed to contact anybody
outside the house. One day when accused's mother was away W managed to escape from the
house and got herself admitted in hospital. She narrated her woes and sufferings to the doctor.
The accused and his mother tried to take W back to their home but were not allowed to do so.
The condition of W was serious and she took about ten months to recoup. The accused was
held guilty for attempt to murder.

It was held in State of Madhya Pradesh v. Imrat58, that it is sufficient to justify a conviction
under Section 307 if there is present an intent coupled with some overt act in execution thereof.
It is not essential that bodily injury capable of causing death should have been inflicted. The
section makes a distinction between the act of the accused and its result, if any. The Court
has to see whether the act irrespective of the result was done with the intention or knowledge
and under circumstances mentioned in the section. Therefore, an accused charged under

56
(1932) 34 BomLR 571.
57
AIR 1961 SC 1782.
58
(2008) 4 Cr.LJ. 3869 (S.C).

25 | P a g e
 CONCEPT OF ATTEMPTS

Section 307 I.P. Code cannot be acquitted merely because the injuries inflicted on the victim
were in the nature of a simple hurt.

In the instant case, the first blow was on a vital part, that is on the temporal region. Other blows
were on non-vital parts, that does not take way the rigour of section 307 of I.P.C. Since it is
clear that in spite of interference by five persons, the accused continued the assault. This clearly
indicates the intention of the accused and hence he is liable to be convicted under section 307
of I.P.C.

In Khandu59 a man struck another on the head with a stick, and believing him to be dead set
fire to the hut in which he was with a view to destroy all evidence of the crime. Medical report
revealed that the blow only stunned the deceased and the death was really caused by the bum
injuries. The accused was guilty of attempt to murder. The Madras High Court in a subsequent
case has observed that the above case was wrongly decided by the Bombay High Court. In its
view the accused should have been guilty of murder, because if the intention is to kill and the
death results, the accused succeeded in doing that which he intended to do and, if the acts
follow closely upon one another and are intimately connected with one another then the offence
of murder has been committed.

In Kaliappa Goverdatt60, the accused persons in pursuance of a deliberate plan and with the
intention to kill a woman, decoyed her under pretense of taking her to a sick relation. On the
way they had a struggle with the woman and they dragged her either in an unconscious or semi-
conscious condition on to a railway line, put her body across the railway line in such a way that
her neck lay across the rails, and she was killed by a passing train. The accused did not plead
that they believed the woman to be dead when they put her body across the railway line. The
accused were held guilty of murder.

Similar view has been expressed by the Patna High Court in Lingraj Das61. It was held that if
from the very beginning there is an intention to cause death, the offence is murder even if death
results from a series of closely connected acts done at more than one stage. The mere fact that
earlier assault did not result in death and that the victim was killed by a passing train where she
had been placed by the accused would make no difference.

59
(1890) 15 Bom. 194.
60
Kaliappa Goundan, (1933) 57 Mad. 158.
61
(1944) 24 Pat. 131.

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 CONCEPT OF ATTEMPTS

In Hari Mohan Mandal v. State of Jharkhand,62 it was held that it is sufficient to justify a
conviction under Section 307 if there is present an intent coupled with some overt act in
execution thereof. It is not essential that bodily injury capable of causing death should have
been inflicted. If the injury inflicted has been with avowed object or intention to cause death,
the ritual nature, extent or character of the injury or whether such injury is sufficient to actually
causing death are really factors which are wholly irrelevant for adjudging the culpability under
Section 307 of I.P.C. The section makes a distinction between the act of the accused and its
result, if any. The Court has to see whether the act, irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in the section. Therefore, it is not
correct to acquit an accused of the charge under Section 307 of I.P.C. merely because the
injuries inflicted on the victim were in the nature of a simple hurt. In the instant case one injury
inflicted on body of victim was grievous in nature and was caused on the vital part and the
evidence of prosecution witnesses was truthful hence conviction of accused under Section 307
was proper. However, in view of the fact that there was no premeditation or planning of the
attack, accused was awarded custodial sentence of five years.

62
2004 Cri. L.J. 3112 (S.C.).

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 CONCEPT OF ATTEMPTS

ATTEMPT TO COMMIT CULPABLE HOMICIDE

S. 308: Whoever does any act with such intention or knowledge and under such
circumstances that, if he by that act caused death, he would be guilty of culpable homicide
not amounting to murder, shall be punished with imprisonment of either description for a
term which may extend to three years, or, with fine, or with both; and, if hurt is caused to
any person by such act, shall be punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he
thereby caused death he would be guilty of culpable homicide not amounting to murder. A
has committed the offence defined in this section.

On 21-4-1989, at about 4.00 p.m. in the evening the accused persons, Dastgir and Jameel
injured Hasib Mohammad, son of Ikram Ali, the complainant assaulting with lathis on the way
near granary while carrying seeds to the fields in Village Khwaja ka Purwa, hamlet of Rojoli
under Police Station Chinhat, District Lucknow. The cause of the incident as stated was that
one day before the incident, the accused persons. It was he, who made a complaint to the police
which was registered at 7.30 p.m. on 21-4-1989. Injured Mohd. Hasib was sent to Balrampur
Hospital for medical examination where Dr. T.N. Singh, Emergency Medical Officer,
Balrampur, Lucknow examined him at 8.45 p.m. on 21-4-1989 and found the following
injuries:

(i) One ruptured wound 4 cm x 1.5 cm deep under observation on the left side of the head, 7
cm above the eyebrow.
(ii) It was bleeding and swelling around the injury.

The court found that the offence under Section 308 is proved against the accused persons. In
view of the said conclusion, the trial court convicted the accused persons i.e. Dastgir and Jameel
under Section 308 IPC.63

This section is similar to Section 307. If Section 307 is treated as attempt to murder this section
is treated as attempt to culpable homicide not amounting to murder.

63
Jameel v. State of Uttar Pradesh 2010 AIR SCW 217

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 CONCEPT OF ATTEMPTS

ATTEMPT TO COMMIT SUICIDE

S. 309: Whoever attempts to commit suicide and does any act towards the commission of
such offence, shall be punished with simple imprisonment for a term which may extend to
one year, or with fine, or with both.

If the offender dies in suicide he or she cannot be punished for the offence, but if the offender
survives he or she is punished for attempt to commit suicide. This is the only instance where
actual commission of offence cannot be punished, only attempt to commit the offence is
punishable. R a village woman aged twenty was ill-treated by her husband. There was a quarrel
between the two and the husband threatened that he would beat her. Late that night the woman
taking her six-month-old baby in her arms slipped away from the house. After she had gone
some distance she heard somebody coming up behind her and when she turned around and saw
that her husband was pursuing her she got into a panic and jumped into a nearby well with the
baby in her arms. The baby died but R recovered. In this R would not be liable for attempting
to commit suicide for the word 'attempt' connotes some conscious endeavour to accomplish the
act and the accused in jumping down the well was not thinking at all of taking her own life but
only of escaping from her husband.64 But she would be liable for committing culpable
homicide not amounting to murder because when she jumped into the well with a small baby
of six months she must have known that her act is dangerous enough likely to cause death of
the child by drowning.

Where A in a state of drunkenness jumps in a well in an obvious attempt to commit suicide. A

would be liable for an offence under this section because it appears that he was voluntarily
drunk and he has not gone so deep under die influence of drink that he was unaware about what
he attempted to do.

A student leader of a University declared for self-immolation. He got logs piled up in front of
the main gate of the University and sprinkled kerosene oil over it. Thereafter he climbed over
the pile of wood. In the meantime, police came and registered a case for committing the offence
of 'attempt to commit suicide'. He will not be liable for attempt to commit suicide because his
act so far only amounted to preparation and the possibility to change his mind before lifting the

64
Dhirajia, I.L.R. 1940 All. 647.

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 CONCEPT OF ATTEMPTS

fire for self-immolation cannot be ruled out. But if he was caught by the police just after striking
a match to lit the fire, he will be guilty of attempt to commit suicide.

Z, a political worker in protest against certain orders of the district officials openly declares
that he would fast unto death and then proceeds to refuse to take any nourishment. Seven days
after the fast there is evidence that he is in imminent danger of death. When asked to give up
the fast, he insists on continuing it. In this case Z would be liable for attempt to commit suicide
because he has resorted to fast unto death and was continuing even though there was evidence
of imminent danger of death. It may also be argued that if Z changes his mind and does not
proceed further the acts already done would be harmless and as such no attempt is constituted
but in view of the evidence of imminent danger of death his act would not cease to be an attempt
merely because he can prevent the actual commission of the offence by his discontinuing the
fast in pursuance of a changed intention. He has done an act towards the commission of
attempt.65 But when the evidence falls short of imminent danger, it cannot be said to be
sufficient to sustain the charge.

In State of Himachal Pradesh v. Jeet Singh,66 Sudarshana Devi wife of the accused Jeet Singh
was a young, fair and fashionable lass but 'leucoderma' in its nascent stage had erupted small
white patches on her bossom. This became the cause of dislike for her husband towards her as
he mistook it to be a kind of leprosy. Jeet Singh who was an army man went home in April
1987, for his annual leave. On the fateful night the couple went to bed in the overy(i.e. bed
room of the house) but on the next morning Sudarshna Devi was found dead. On getting the
news, her father rushed to the house and saw dead body of his daughter. He entertained doubts
about some foul play, so he reported the matter telephonically to police. A joint postmortem
conducted by two doctors revealed that death of Sudarshana Devi was by smothering. Injuries
were found on both legs of dead body. Doctors after seeing the report of chemical analyser
stated that poison would have worked fatally in the victim. The prosecution version is that
accused administered some kind of insecticide either deceitfully or forcefully and smothered
her. On discloser by Jeet Singh (PW-24) the Sub-Inspector of Police recovered a bottle
containing green insecticide, a towel, a vest, a steel kauli, a steel glass and some ground misri.
The Sessions Judge counted circumstances adverse to accused that the spouses were having
strained relationship, medical evidence suggested administration of poison and smothering of
the deceased, recovery of incriminating articles on the strength of disorder of the accused, the

65
Ram Sunder, A.I.R 1962 All. 262.
66
1999 CrLJ. 2025 (S.C.).

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 CONCEPT OF ATTEMPTS

fact that accused and deceased were in the same room on the fateful night and that she was
found dead on the early morning and subsequent conduct of the accused. The Sessions Judge
reached the conclusion from the aforesaid circumstances that Sudarshana Devi was murdered
by the accused. But the High Court differed with conclusion drawn by the trial court and treated
it a case of suicide. It was held by the Supreme Court that in view of large numbers of injuries
particularly injuries found on both legs of dead body, the doctors stating even without seeing
Chemical Analyser's report that death might be by smothering and after seeing the Chemical
Analyser's report doctors stating that poison would have worked fatally in the victim and the
accused having opportunity to administer poison when he was in same room with the deceased
on fateful night acquittal of accused by High Court on coming to conclusion that deceased had
committed suicide is liable to be set aside. Therefore, the acquittal was set aside and the order
of conviction passed by Sessions Judge was restored.

SUICIDE PACTS

In Dasrath Paswan v. State of Bihar,67 he appellant, a resident of village Etwarpur Pakri, was
a student of class X. His academic record in school was unsatisfactory. The appellant was very
much upset at these failures. He told his wife that he had decided to end his life. His wife told
him in reply that he should first kill her and then kill himself. In accordance with the pact, about
an hour later, the wife spread a mat on the floor in one of the rooms in the house and lay down
quietly. The appellant at first struck her with a bhala causing a minor injury on her chest. Then
he took up a sharp-cutting hasuli and gave her three violent blows on the neck killing her on
the spot. He then ran out of the house with his bloodstained clothes in order to end his own life
before which he was apprehended. He was held guilty of Culpable homicide not amounting to
murder.

A and B have been married for some time and due to some family problems, they agree to
commit suicide. A, the husband procures some poison which both of them take. A survives
while B, the wife dies as a result of taking poison. Here A would be guilty of attempting to
commit suicide under this section as well as for abetment, by aiding B to commit suicide under
Section 306.

67
AIR 1958 Pat 190.

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 CONCEPT OF ATTEMPTS

CONSTITUTIONALITY OF SECTION 309

In Maruti Shripati Dubai v. State of Maharashtra,68 it was held that right to live means right
to live with human dignity. Right to live includes right to die. The fundamental rights have
positive as well as negative aspects. If this is so logically it must follow that right to live as
recognised by Article 21 will include right not to be forced to live. The fundamental rights
enumerated in Article 19 are only extensiveness of the right to life and have no meaning without
it. Therefore Section 309 is violative of the rights guaranteed by Articles 21 and 19 of the
Constitution. Further Section 309 also violates the right to equality guaranteed by Article 14
because it treats all attempts to commit suicide by the same measure without regard to the
circumstances in which the attempts are made.

The Supreme Court in Gian Kaur v. State of Punjab,69 held that Section 309 I.P.C. providing
for imposition of punishment for attempt to commit suicide is not violative of Article 14 of die
Constitution. Right to die is not included in the 'right to life' under Article 21. Thus 'right to
live' with human dignity cannot be construed to include within its ambit the right to terminate
natural life, at least before commencement of the natural process of certain death. Article 21
cannot be pressed into service to support the challenge based on Article 14. It cannot therefore
be said that Section 309 I.P. Code is violative either of Article 14 or Article 21 of the
Constitution.

The present position of Section 309 is well explained by the Section 115 of the Mental
Healthcare Act, 2017:

S. 115 Presumption of severe stress in case of attempt to commit suicide. - (1)

Notwithstanding anything contained in section 309 of the Indian Penal Code any person
who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe
stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and
rehabilitation to a person, having severe stress and who attempted to commit suicide, to
reduce the risk of recurrence of attempt to commit suicide.

68
1987 Cr. L.J. 743 (Bombay).
69
1996 Cr. L.J. 1660 (S.C.).

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RECENT CASE LAWS

STATE OF MADHYA PRADESH V. MADAN LAL70

On 27-12-2008, the victim, aged about 7 years, was proceeding towards Haar from her home
and on the way the accused, Madan Lal, met her and came to know that she was going in search
of her mother who had gone to graze the goats. The accused told her that her mother had gone
towards the river and accordingly took her near River Parvati, removed her undergarment and
made her sit on his lap, and at that time the prosecutrix shouted. As the prosecution story
proceeds, he discharged on her private parts as well as on the stomach and washed the same.
Upon hearing the cry of the prosecutrix, her mother, Ramnali Bai, reached the spot, and then
the accused took to his heels. The accused was held guilty under Section 376 (2)(f) read with
Section 511 IPC.

STATE OF RAJASTHAN V. SRI CHAND71

On 1-8-2002, one Gujarmal submitted a written report at Police Station Kathumar stating
therein that on 31-7-2002, at around 10 a.m., his daughter, aged 12 years, had gone to the jungle
to graze buffaloes. One Sri Chand whose house is in the jungle, approached his daughter and
told her that his sister was calling her. By luring her in this way, Sri Chand took his daughter
to his house. No one was there in the house and Sri Chand took his daughter inside the room,
forcibly undressed her and made her to lie on the ground and started raping her forcibly. The
prosecutrix cried upon which Sri Chand put some cloth in her mouth. Hearing her cries, Bihari
Saini, who was passing nearby, reached there and he witnessed the whole incident. Saroj, wife
of Prahlad also reached the site. Out of fear, accused Sri Chand fled away from the place of
incident. After the investigation, it was found that accused Sri Chand committed the offence
under Sections 376/511 IPC. However, he was held guilty under Section 354, IPC due to lack
of evidence.

70
(2015) 3 KLT 125.
71
(2015) 6 SCR 321.

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 CONCEPT OF ATTEMPTS

ALOK LODHI V. STATE OF U.P.72

On 05.04.2011 at 3 o' clock in the day time, the daughter of informant aged six years was
playing. Suddenly, accused Alok took the girl to his room. He made the girl catch his penis and
asked her to masturbate and he was attempting to rape her. When the victim raised hue and cry,
the wife of informant namely Chheddan and other people rushed to the spot, at which accused
appellant Alok Lodhi fled away. A case under Sections 376/511, 342 IPC was registered. The
learned Court after hearing the counsel for parties convicted the accused under Section 376
read with Section 511, IPC.

NIKHIL SONI VS. UNION OF INDIA & ORS.73

The Rajasthan High Court declared the practice of Santhara or Sullekhana, a Jain
ritual of voluntary and systematic fasting to death as illegal, and directed the State
to treat it as an offence punishable under section 309 of the Indian Penal Code and
its abetment thereof under section 306 of the Indian Penal Code.

No practice or belief or tenet, which is abhorrent to public order, morality and health and
violates other provisions of the Part-III, namely, Article 21, can protect the religious practice.
The petitioner describing the practice of Santhara as abhorrent to modern thinking, submitted
that no religion howsoever historical, pure or revered, can permit or allow a person to commit
death by choice. The fast until death is nothing but a self-destruction in whatever form and
belief it may be, and that fundamental right to freedom of religion cannot protect a criminal act
as it is subject to public order, morality and health.

However, this decision was stayed by the Supreme Court 20 days later.

72
(2016) 94 ACC 550.
73
Civil Writ Petition No.7414/2006

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CONCLUSION

The analysis of various theories relating to attempt and the judicial decisions on the subject
reveal that it is not only difficult but impossible to suggest any rules or guidelines which may
conclusively help in deciding whether an act amounts to attempt or not.

However, the following guidelines may help in answering the problem majority of the cases:

(1) Expectation of change of mind. The difficult cases are those where the offender has not
gone through the whole series of acts necessary complete the offence apart from the
resulting consequence. In this regard it has been suggested by Huda that "so long as the
steps taken leave room f0r a reasonable expectation that the offender may of his own free
will still desist from the contemplated attempt, he will be considered to be still on the stage
of preparation. Such an expectation may be based upon the remoteness of the act done
from the last proximate act that would complete the offence." For instance, where a man
having purchased the gun loads it and goes out with it, meets his enemy and chases him,
but is unable to overtake him, he would be guilty of attempt, because in all probability he
would have fired, if he could overtake his enemy. Moreover, his act will cause as much
alarm as if he had fired and missed his aim. But where A is informed that his enemy is
within the town, he loads his gun and goes out on a motorcycle in search of his enemy,
here A is not liable for attempt because he could of his own free will desist from the act
contemplated. Similarly, where A, knowing that B is carrying jewellery, plans to rob and
sets out on a scooter armed with revolver and drives in search of B, he would not be liable
for attempt.
(2) Penultimate act. In order to be an attempt, the act done must be with an intention to
commit the offence, it need not be the penultimate act towards the commission of that
offence but must be an act during the course of committing that offence. This principle has
been reaffirmed by the Supreme Court wherein it was held that the act must be a step
towards the commission of the offence though the penultimate act was not completed.

Therefore, intention to commit an offence followed by some overt act towards the commission
of the offence would be sufficient to constitute attempt

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BIBLIOGRAPHY

Dr. K I Vibhute, PSA Pillai's Criminal Law (13th ed. Lexis Nexis 2017).
Prof. SN Misra, Indian Penal Code (20th ed. Cent. Law Publications 2016).
Ratanlal & Dhirajlal, The Indian Penal Code (31st ed. LexisNexis 2013).
Ram Jethmalani & DS Chopra, 2 The Indian Penal Code (Thomson Reuters 2014).
SC Sarkar, The Indian Penal Code, 1860(Act No. 45 of 1860) (Dwivedi Law Agency
2014).
Batuk Lal, Indian Penal Code (Cent. Law Agency 2015).

WEBLIOGRAPHY

www.wikipedia.com
www.scconline.com
www.manupatra.com
www.judis.nic.in
www.legalservicesindia.com
www.lawteacher.com
www.advocatekhoj.com
www.scribd.com

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