►Definition of attempt.
An attempt is an intentional preparatory action which fails in the object, which so fails through circumstances independent of the person who seeks its accomplishment. Attempt begins when preparation ends. It is interesting to note that it is nowhere defined in IPC but provides its punishment under section 511 of IPC.
►why has a criminal attempt been created to be an offence?
The basic purpose of criminal law is to prevent crime and to protect society from the effect of such crimes. A criminal attempt is just the sharp of a complete offence. But, the graveness and degree of the attempting act are the same even if no complete offence is committed. Society gets scared by such acts. So, to avoid such effects on society and to keep the society peacefully so that society should not have the fear of repetition of such offence again. One more purpose is to avoid the repetition of the offence by the offender.
►When does a preparation amount to an attempt?
Preparation is the stage when a person intending to commit an offence, advice or arranges the means or measures necessary to commit that offence. An attempt is a direct act towards the commission of the offence. However, there is a thin line between preparation and attempt. An attempt is a stage which consists of greater determination. When he is at the stage of preparation, there is a chance that he may take back his mind to commit the offence. When a stage is reached where he cannot change his mind it is the stage of attempt. An attempt is a failure in the commission of the offence due to circumstances independent of the volition of the offender. The moment the Doer commences doing an act with the necessary intention, he commences his attempt to commit the offence.
►Is the penultimate act essential for a criminal attempt?
The basic question in India is whether the penultimate act is a must for making a person liable for an attempt. The answer to this question lies in the fact of how to distinguish between an attempt and a preparation. To distinguish between these two, the courts have adopted several facts in point of answer.
(1) Proximity test – Under this test, an act constituted an attempt of the accused has completed all or almost all important or necessary steps towards the commission of the crime but falls short of the consequences desired. It is also called as a penultimate test which is to be analysed in detail.
(2) Mens rea test – Salmond has advocated this test. Under this test, if the act itself is clear evidence of mens rea, it is an attempt and if the act itself is not clear evidence of mens rea, it is preparation.
(3) Social alarm test – Professor Sayre of USA has advocated this test. In Common Wealth vs. Kennedy, ‘A’ and ‘B’ agreed to place a bomb on the railway track. When A left his home on a bicycle with a bomb in pursuance of the agreement and immediately in front of his house he was arrested. It was held that he was not in a stage of preparation but has attempted to commit arson i.e. if the act causes social alarm, it would be regarded as an attempt howsoever remote, it may be from a completed offence.
Neither of the theories has given the total and concrete distinction. However, in India, all the theories are applicable.
Let us analyse whether a penultimate act is considered to be essential in India: Preparation has been defined in Maine’s Commentary as “preparation consists in devising or arranging the means or measures necessary for the commission of the offence,” whereas attempt has been defined as “the direct movement towards the commission after the preparation has been made.”
In Abhayanand Mishra vs. State of Bihar (1961), the accused had applied to the Patna University for permission to appear at the M. A. Exams as a private candidate. He had represented falsely that he was a graduate and also had produced some forged certificates. His misrepresentation was revealed and he was arrested. The charge against him was of forging the certificates and also an attempt to cheat. The contentions of the accused were:
(1) His act was a mere preparation and not an attempt.
(2) That even if he had appeared at the exams, this would not have been cheating as this would not have been a loss to University, and under Section 40 “loss is a must”.
The Supreme Court with regard to point no. 1, enumerated four stages of commission of a crime and also mentioned that there is a very thin line between preparation and attempt. Attempt begins where preparation ends. The requirements under Section 511 are:
(1) Attempt to commit an offence.
(2) During such an attempt, an act towards the commission of the offence should have been done.
The Court also held that the act which would make the accused punishable for an attempt to commit an offence must be an act that by itself or in combination with other acts could lead to the commission of the offence.
In the same year i.e, in 1961, another case is Om Prakash’s Case. The Supreme Court made this point clear. In that case, the accused had kept his wife starving for several days by illegally omitting to give her the food. The wife somehow escaped and lodged the complaint against the accused The contention of the accused was based upon the Francis Cassidy Case’ (1861) de Jon, in which it was held that the penultimate act is a must for liability for criminal attempt: The accused contention was that he had not starved his wife, the last possible act of starvation just before death, and therefore, not liable for the criminal attempt. This contention was rejected and the Supreme Court held that the requirement of the penultimate act is not always an essential test. In certain circumstances, even certain acts which lie in stages-much before the penultimate act would amount to a criminal attempt.
The decisions of the above cases were analysed in the State of Maharashtra vs. Mohammad Yakub (1980).
In this case, on prior information, the Superintendent of Central Excise, followed a jeep and a truck, on the suspicion that they were carrying goods to be smuggled. Both the vehicles were stopped near the creek and some goods seemed to be taken out of the vehicle. The presence of a small motorboat in the ‘sea nearby, was also noticed. At this point, the driver of the two vehicles was arrested and was also ceased, some silver biscuits, some currency notes and some weapons. The contention of the accused was that it was just a stage of preparation and not a criminal attempt.
Sarkaria J. (Minority) and Chinnappa Reddy J. (Majority) made observations which are relevant to discuss here. The opinion of Sarkaria J. was attempt should be only the last proximate act that a person does in the commission of a crime, the consumption of the offence being hindered by the circumstances beyond his control. However, this definition appears to be very narrow. As per Chinnappa Reddy J., the
has to be examined from a different angle He suggested that in the cases of attempt mens rea is always a must and in fact, there is no controversy as to the determination of mens rea.
Chinnappa Reddy J. also went to observe the Indian decisions. In Abhayanand Mishra (1961), wherein Raghubar Dayal and Subbarao Justice rejected the test or last proximate act and held that the essential requirement for an act to amount to a criminal attempt are:
(1) Presence of the mens rea and
(2) The preparation must have been completed and after that, an act towards the commission of the offence should have been done. This act, need not be the penultimate act but must be an act during the course of the commission of that offence.
Drawing club from the above precedents, Chinnapa Reddy J. gave his own formulations.
(1) Intention is a must.
(2) Some acts towards the commission should have been done.
(3) Act must be proximate to the intended result. (Notably, not last proximate)
He went on to give the definition of proximity as: “The measure of proximity is not in relation to time and action, rather it is in relation to the intention i.e. the act must reveal with reasonable certainty in conjunction with other facts and circumstances and not necessarily in isolation, an intention, and not 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 ie. it must be indicative or suggestive of the intention.
The entire situation can now be summarized as follows:
The various steps to determine whether an act is an attempt or not are as follows:
(1) The establishment of mens rea.
(2) The establishment of actus reus:
(a) Was the Concerned act a part of the series of acts towards the commission of the offence,
(b) is the act concerned suggestive or indicative unequivocally of the intention to commit that offence.
(c) In certain cases, particularly, the cases of attempt to murder specifically through the use of weapons, it can also be examined whether the concerned act if left alone, would have resulted in the intended offence – but not always true.
►Liability for an attempt to commit an impossible act.
This is to be analysed in two aspects:
(1) Remote case, and
(2) Proximate case.
(1) Remote – Where a person tries to commit an offence which offence is impossible to commit. For example, if ‘X’ takes a gun and shoots at thinking that it is “Y then this act is impossible so as to cause the death of ‘Y’. So, he will not be liable. Here, the object of his intention is not at all present and is a remote kind of circumstances.
(2) Proximate – Where the person does all possible acts necessary for the commission of the act and attempts to commit the offence, he fails due to the impossibility of committing that offence due to the non-existence of the subject matter. For example, in In the illustration under Section 511, the person thrusts his hand to steal money but he failed due to the pocket being empty. Here, though the commission of theft is impossible, his failure was due to the non-existence of the money and not to his own act.
►Liability for an attempt to commit a criminal act by insufficient means
This has also to be analysed in two aspects:
(1) Dependent on the volition of the accused, and
(2) Independent of the volition of the accused.
(1) Dependent – Where the insufficient means used were based on the volition of the accused, he will not be liable. For example, if ‘X’ shoots at ‘Y’ with a toy gun, the commission of the offence is not possible. So, ‘X’ will not be liable.
(2) Independent -Where the accused has done all his efforts sufficient for the commission of the offence and the means used were independent of his volition, he is liable for the attempt. For example, if ‘X’ secures poison to kill ‘Y’ and kept it on the table, Some third person says ‘P’ knowing replaces that bottle with a honey bottle and then X mines that in the food and offers to “Y”. Here, ‘X’ will be liable because if the intervening event would not have happened, he would have succeeded in his attempt.
PSA pillai – IPC
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