The law dealing with attempt of crime is fused with enigmatic intricacies. The law at present is influenced by various factors which contribute to its unusual and indecisive nature. The factors are:
- Where inchoate crimes are concerned, there is a lack of explicit and definite legislative definition
- In view of the current penal policy relating to offences, there is a lack of uniform interpretation. The same rules relating to the offence are applied to greatly different situations and the same situations are dealt with inconsistency in the application of rules.
- Depending on the nature of substantive offence attempted, the mental and physical ingredients of the offence vary to a great extent.
One question which has proved to be a thorn in the shoe of the judiciary since long is how to separate attempt from preparation. It is imperative to draw a line between the act of preparing a crime and when the act actually moves ahead to become an attempt at committing a crime since preparation is not punishable, however attempt certainly is. In lieu of this mind boggling dilemma, some tests were evolved by the courts to ascertain whether the act in question is preparation or an attempt. They are:
- Equivocality Test
For an act to be an attempt, it must very evidently and unequivocally indicate the intention of an individual to commit an offence. If the actus reus is constituted by the individual taking a step towards the commission of a crime, then the act cannot be considered as having another purpose than the commission of that specific crime. For the equivocality test to be fulfilled there must be an indication beyond reasonable doubt that the act is directed towards the commission of the crime.
- Om Prakash v. State of Punjab, AIR 1961 SC 1782
- Social Danger Test
One of the criteria for judging whether a particular act is in the field of preparation or a step towards attempting a crime is the seriousness of the crime attempted. The crime of an attempt is deemed to be complete if the facts and circumstances of the case direct to the evidence that the consequences of the act would have been grave and dangerous. The apprehension of the level of social danger is a great determinant in ascertaining the liability.
- State of Maharashtra v. Mohd Yakub, AIR 1980 SC 1111
- Impossibility Test
Section 511 of the Indian Penal Code deals with cases of impossible criminal events. The illustrations that have been included in the section clearly show that when an attempt is made to commit theft and even if the act is impossible to achieve, the act will be considered to be an attempt if the overt act has been committed. An example would be an attempt to steal from an empty pocket. Even if the performance of the act is impossible but an act was done which will constitute an offence.
- Asgarali Pradhania v. Emperor, AIR 1933 Cal 893
- Locus Paenitentiae (Time for Repentance)
According to the doctrine of Locus Paenitentiae, a single act or a combination of acts will constitute as a crime of attempt if even though the accused individual has not completed all the steps to commit the crime but has gone far enough to be punished for the protection of the society at large. The law graciously allows the offender with time for repentance in case the offender may have stopped from proceeding committing the crime by abandoning the idea due to either fear or penitence. Therefore, an act by the accused individual will only amount to preparation of the crime if he gives up on the plan out of his own accord before the criminal act is completely carried out.
- Malkiat Singh v. State of Punjab, AIR 1970 SC 713
- State of M.P V. Narayan Singh, AIR1989 SC 1789
- Proximity Rule
The Rule of Proximity was invented to deal with complex cases wherein the accused had carried out or committed an act leading to the crime or his actions were leading towards the commission of crime but had failed to generate the desired results. This rule is basically a combination of multiple principles that have been laid down in various different cases. Proximity is not simply measured in terms of time or the actions of the accused but the intention.
The main object to consider here is the intention of the accused. However, along with mens rea, there must also be the presence of an overt act which forms a part of series of acts which would lead to the commission of the actual crime in case it was not halted or the accused gave up on the plan. It is also necessary to note that the particular act which is relied upon as the evidence for constituting an attempt towards a crime must not be just a preparatory act in nature. It must have a strong relation to the completion of the offence in question. In other words, it must be proximate to the completion of the offence.
- State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111
- Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1983 SC 2655
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