Criminal Attempt: Meaning, Periphery, Position Explained Under The Indian Penal Code

Criminal Attempt :
Meaning, Periphery,
Position explained under
the Indian Penal Code
Presented by-
Abhijeet Dwivedi
6thSemester,B.A.LL.B.(HONS.),
UNIVERSITY OF ALLAHABAD
Attempt :why punishable
• Criminal liability for attempting is

justified and rationalized on a few
theoretical as well as utilitarian
consideration.
• A criminal attempt not only poses a threat
to bodily and proprietary security but also
infringes the right to security. This
infringement constitutes, in itself, a harm
that penal law seeks to punish.
Attempt :why punishable
• Criminal liability 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 complete harm- Kopulla Venkat Rao v.
State of Andhra Pradesh [AIR 2004 SC
1874]
An Attempt to commit an
offence: situation under the
I.P.C.
• The I.P.C. treats criiminal ‘attempt’ in four

different ways. They are
i. Commission and Attempt of offence dealt
with under the same section and extent of
punishment for both the same (SS.
121,124,124A,125,130,131,152,153A,
196,198,198,200,213,239-241,
251,385,387,391,397,and 398)….
An Attempt to commit an
offence: situation under the
I.P.C.
ii. Attempt to commit specific offences are

dealt side by side with the offences
themselves, but separately, and separate
punishments are provided for the attempt
and the offence( SS307,393,308,)….
iii.Attempt to commit suicide (S 309).

iv.Attempt to commit offences for which no
specific punishment in the I.P.C.( S 511)
‘Attempt’ distinguished from
‘Preparation’
• Preparation consists in devising or

arranging the means or measures
necessary for the commission of the
offence; the attempt is the direct
movement towards commission after the
preparation has been made.
• There is a great degree of determination
in an ‘attempt’ as compared with a
‘preparation’- State of Bihar v. Jagdish
Narain [AIR 1959 PAT. 376]
‘Attempt’ distinguished from
‘Preparation’
• An attempt to commit an offence is an act

or series of acts, which leads inevitably to
the commission of the offence unless
something which the doer of the act or
acts neither foresaw nor intended happen
to prevent it. An act done towards the
commission of the offence, which does
not lead to the commission of an offence ,
unless it is followed or, perhaps precedes
by other acts merely an act of
preparation.
• Locus potentiate is another factor.
Tests for determining an Act
amount to prepare or an
attempt to commit an offence:
• In Abhyananda mishra v. State of Bihar

[AIR 1961 SC 1968], the accused applied
to Patna University for permission to
appear as a private candidate in MA
degree examination. He forwarded BA
degree and certificate that had been
teaching in a certain school. He attached
certain certificates from Schools an the
Inspector of Schools. The University
accepted it.
…. However later University found that

the certificate were fake and that the
accused was not teacher . He has been
debarred also. The University prosecuted
him for forgery and attempting to cheat
• SC held that it has crossed the stage of
preparation .
• It summarized the scope as follows :-

“ a person commits the offence of
‘attempt to commit a particular offence’
when (i) he intends to commit that
particular offence, and (iii) he , having
made preparation and with intention to
commit the offence, does an act towards
its commission, such an act need not to be
the penultimate act towards the
commission of that offence but must be
an act during the course of completing
that crime”
• Some of the basic tests are:-

1) Proximity Rule.
2) Theory of impossibility.
3) Object theory.
4) On the job theory
Proximity Rule:-
• An act or a series of acts must be
sufficiently proximate, and not remotely
connected, to the crime intended.
Proximity Rule:-
• R v. Taylor[1895 1 F&F511]: A , who was
found in the act of striking a match
behind a haystack, which he extinguished
on perceiving that he ws being watched,
has held guilty of attempt to commit
arson of haystack. However if A was
holding box of matches, he would not be
held guilty....
Proximity Rule:-
…..The underlying principle is said to be
embodied in the Latin maxim ‘Cogitations
poenam nemo patitus’ which means that
no man can safely be punished for his
guilty purposes, save so far as they have
manifested themselves in overt acts
which themselves proclaim his guilt.
Proximity Rule:-
• R v. Robinson (1915) 2 KB 342: a jeweler
with the object of fraudulently obtaining
insurance money hid his stock of jewelry
tied himself up beneath a chair and cried
fir help. Police passing by entered the
house and found the jeweler in helpless
position. Police was told that the jeweler
has been robbed after tying him in this
helpless position. The safe was found
open and jewelry missing….
Proximity Rule:-
…Subsequently it was found that jewelers
has arranged all this himself. He himself
confessed it. The Court held that it does
not amount to attempt and is only
preparation as it is not established
beyond reasonable doubt that he
intended defrauding.
Proximity Rule:-
• Abhyananda Mishra case.
• An authoritative pronouncement was
given by the Supreme Court in State of
Maharashtra v. Mohd. Yakub[(1980) 3
SCC 57].
• The accused was arrested by officials of
Central Excise for attempting to smuggle
silver out of India. The accused was
arrested when officials following him
found that they had brought silver ….
Proximity Rule:-
…. ingots in truck was found that small
and large parcel were found on the soil
around the truck. At the same time, the
sound of a mechanized sea-craft was also
heard.
• The trial court convicted the accused for
attempting smuggling.
Proximity Rule:-
• The additional session acquitted on
ground of it being only preparation. The
appeal was also dismissed in Bombay
High Court.
• The Supreme Court, on appeal, set aside
the acquittal by holding that he accused
had committed the offence of smuggling.
Proximity Rule:-
• Justice Chinnappa Reddy, delving
proximity rule, observed,” …the measure
of proximity is not in relation to time and
action but in relation to intention….”
• Sarkaria J observed,”…being reasonably
proximate to the consumption of the
offence"
Proximity Rule:-
• Haughton v. Smith[(1973) All E.R. 1109]
Avan loaded with goods stolen from a
firm in Liverpool was stopped by the
police. The van was proceeding to a
rendezvous with the accused in London
Area. To trap the accused , it was allowed
to continue. Two policeman were inside
and one beside the driver. The accused
met at the destination and he along with
one another person started playing a
prominent role…..
Proximity Rule:-
….in assisting in the disposal of load.
Thereafter the trap was spung and the
accused and the others were charged for
believing them to be stolen goods.
• Acquitting the accused the court held
that,” a person could only be convicted of
an attempt to commit an offence in
circumstances where the steps taken by
him in order to commit the offence, if
successfully accomplished,….
Proximity Rule:-
…..would have resulted in the commission
of that offence. A person who carried out
certain acts in the erroneous belief that
those act constituted an offence to
commit that offence because he had
taken no steps towards the commission of
the offence.”
Proximity Rule:-
• R v. Shivpuri [1986 All E.R. 334(H.L)
The appellant was arrested by
Customs Officers while in possession of a
suitcase which he believed to contain
prohibited drugs. The accused had
admitted to the officers after his arrest
that he was dealing in prohibited drugs.
However on analysis it was found to be
harmless vegetable matter ….
Proximity Rule:-
• R v. Shivpuri [1986 All E.R. 334(H.L)
…..The House of Lords held that a
person could be held guilty of an attempt
only if he did an act which was more than
merely preparatory to he commission of
the offence which he intended to commit,
even if the facts were such that actual
commission of offence was impossible. In
this case Haughton’s case was overruled.
Theory of impossibility/ attempt where

offence is impossible:-
• Before entering into the details of this
topic , it must be made clear that there is
a difference between the case where
commission of an offence is impossible
and the case in which the act if complete
would be no offence at all.

• In the later case there is not only
impossibility of committing the offence
attempted, but what was attempted
cannot be punished because the act, if
completed was innocent and not
punishable by the code or penal law.

• Example : when a man tries to steal and
puts his hand into a pocket which is
empty is a criminal attempt. Whereas it
would not be a criminal attempt to
murder if a man fired a gun at a wooden
post under the belief that it was his living
enemy[ R v. Osborn(1919)84 J.P.63]

• The principle laid down in R v. McPherson
[D.&B.,p.197] was that a prisoner could
not be properly convicted of breaking and
entering a building and attempting to
steel goods which were not there.

• Such view has been held in Queen v.
Collins [9 Cox, C.C 407] that if a person
put his hand into the pocket of a person
with the intent to steal what he can find
there and the pocket is empty, he cannot
be charged for attempt to steal. It has
been recognised in a subsequent case R v.
Dadd[18 Law Times N.S.89,1868].

• In R v. Brown, it was held that hese cases
have been decide on a mistaken view of
the law
• This view has been overruled in R. v. Ring
[17 Cox. p. 491],where a conviction for an
attempt to steal from a woman by
endeavoring to find her pocket was held
good, and it was clearly said that R v.
Collins has been overruled

• In R v. Goodall[ 2Cox C.C 41 ] it was
decided that in case where a person who
administers a drug to cause miscarriage,
and it afterwards transpired that the
women was not pregnant at all, such act
amounts to attempt

• Haughton v. Smith.
• R v. Shivpuri .
Object theory:
• A differentiation has also been made
between cases where the object is merely
mistaken and the cases where the object
is merely absent.
• The case of empty pocket belongs to the
former category and of shooting at a
shadow to the latter
• The former case is an offence of attempt
where as the latter is not an offence.
Object theory:
• Shamshul Huda makes a distinction
between them as cases relating to
property and these relating to human
body.
• In the former case, the mens rea plays an
important role, and in the latter it is the
objective element i.e., the element of
harm inflicted upon the body
On the Job theory:

• 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 intent , or
trying to achieve his intention.
On the Job theory :

• In R v. Osborn, the accused sent pills
given under the impression that they
would do abortion. They were taken but it
was found to be innocuous. It was held
that he was not on the job and would not
be liable.
• It has been overruled in R v . Spicer.
• Illustrations :A intending to kill B, shoots
at an empty cartridge believing it to be
occupied by B….
On the Job theory :

….A has attempted because such shooting
effects and alarms society etc.
provision under the I.P.C. :

S 511. Punishment for attempting to
commit offences punishable with
imprisonment for life or other
imprisonment- Whoever attempts to
commit an offence punishable by this
code with imprisonment for life, or
imprisonment, or to cause such an offence
to be committed, and in such attempt
does any act towards the commission of
the offence, shall, where no express
provision is made by this code for
provision under the I.P.C. :

……the punishment of such attempt be
punished with imprisonment for 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 for the
imprisonment provided for that offence,
or with both.
Illustrative cases explaining
the scope of Criminal attempt
• Baku,(1899) 1 Bomb LR 678,681,24 Bom

287,291: A minor girl under the age of
sixteen years was taken by accused No.1
under the direction of accused No. 2 from
Sholapur to Tuljar( then in Nijam
territory) and there dedicated to Goddess
Amba with the intent and knowledge it to
be likely that the minor would be used for
purpose of prostitution . It was held the
intention of either of the accused while
they were staying in at Sholapur did not
by itself constitute an offence.
• In Ramasarun Chowbey, (1872) 4 NWP 46,48:

The Allahabad High Court held that mere
purchasing of a stamped paper in the name of
the person whose name it was intended to
forge did not constitute an attempt to commit
forgery.
• The same court in Mula,(1879)2 All 105 held

otherwise distinguishing this case. M instigated
Z to personate C and to purchase in C’s name
certain stamped paper, in consequence of
which, the vendor of the stamped endorsed C’s
name on such paper as the purchaser of it. M
acted with the intention that such endorsement
might be used against C in a judicial
proceeding.
• It was held that the offence of fabricating false

evidence was actually committed , and that M
was guilty of Abetting the commission of such
offence.
• In R v. Cheesman(1862) 9 Cox 100: the

accused was entrusted by his master with some
meat which was to be weighed out and
delivered to a customer. By means of a false
weight he kept back a part of the meat with
intent to steal it; but the fraud was discovered
before he had actually moved away with it. It
was held that he was guilty of an attempt to
steal.
• In R vs. Ransford, 31 I.J. (N.S.) 488: A

writes and sends to B a letter inciting B to
commit a felony. B does not read the letter. A
ha attempted to incite B to commit a felony.
• If A shoots at a shadow sufficiently near
another person as to put that person in peril.
the attempt is made out( Wharton, p. 213).
• In Queen v. Peterson (1 All., p.316,1876)

was a case of conviction for attempt to commit
bigamy and the attempt consisted of the
publication of the banns of marriage. The
learned Judge( Pearson J.) held that the
publication of the banns did not constitute an
attempt, but only a preparation for such an
attempt.
• In Queen v. Peterson (1 All., p.316,1876)

was a case of conviction for attempt to commit
bigamy and the attempt consisted of the
publication of the banns of marriage. The
learned Judge( Pearson J.) held that the
publication of the banns did not constitute an
attempt, but only a preparation for such an
attempt.

Criminal Attempt: Meaning, Periphery, Position Explained Under The Indian Penal Code

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Criminal Attempt :

• Criminal liability for attempting is

• Criminal liability may be justified even in

• The I.P.C. treats criiminal ‘attempt’ in four

ii. Attempt to commit specific offences are

iii.Attempt to commit suicide (S 309).

• Preparation consists in devising or

• An attempt to commit an offence is an act

• In Abhyananda mishra v. State of Bihar

…. However later University found that

• It summarized the scope as follows :-

• Some of the basic tests are:-

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

Theory of impossibility/ attempt where

On the Job theory:

On the Job theory :

On the Job theory :

provision under the I.P.C. :

provision under the I.P.C. :

• Baku,(1899) 1 Bomb LR 678,681,24 Bom

• In Ramasarun Chowbey, (1872) 4 NWP 46,48:

• The same court in Mula,(1879)2 All 105 held

• It was held that the offence of fabricating false

• In R v. Cheesman(1862) 9 Cox 100: the

• In R vs. Ransford, 31 I.J. (N.S.) 488: A

• In Queen v. Peterson (1 All., p.316,1876)

• In Queen v. Peterson (1 All., p.316,1876)

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