TEST FOR DETERMINING WHAT AMOUNTS TO ATTEMPT- IMPOSSIBLE ATTEMPT

Stages of crime as defined in the Indian penal code

There are four stages of crime they are as follows:  

  • Intention
  • Preparation
  • Attempt
  • The last stage is accomplishment of crime.

The first two stages of committing a crime are not punishable under Indian Penal code, Both Mens Rea and Actus reus together form intention and the stage of intention under law is not punishable as there is always a possibility for a person who has the intention to commit a crime to drop the idea of the same. In the same way, merely preparation to commit a crime is not punishable under law the reason behind preparation not punishable under law is that it is difficult to prove the fact that preparation made by an accused is for the execution of crime or for some other purpose. The next stage is attempt; Attempts are punishable under the Indian penal code. Hence, it becomes important to distinguish between preparation and attempt.

PREPARATION

Preparation is defined as the arrangement of resources that are required for executing any criminal offense.  Preparation with intention to any wrongful act is not punishable by law, this fact has been established by law but as every law has some exceptions, this fact also has some exceptions, the reason behind preparation not punishable under law is that it is difficult to prove the fact that preparation made by an accused is for the execution of crime or for some other purpose.

ATTEMPT

Attempt as a Term has not been defined in the Indian penal code but the term in general language is one which has necessary elements as follows.

  • Mens Rea to commit the offence
  • Any such act which constitute Actus reus of a criminal attempt
  • And the last essential is that there should be failure of accomplishment or the person should fall short in completion of the intended crime

DEFINITION OF ATTEMPT

Under Indian Penal code an amendment bill has been passed which added a new section 120 C according to this section a person can be said in the stage of attempt to a crime when

  • Someone with the intention for committing an offence does any act towards its Commission.
  • The act so done should be connected and proximate to the Commission of an offence.
  • The act must fail in the Commission because of facts not known to him or circumstances beyond his control.

Distinction in the stage of preparation and attempt to commit a crime

Preparation is a mental act with follow up of some action to do a particular thing. Whereas preparation is related to arrangement of the measures necessary for the Commission of the offence, on the other hand attempt to commit the offence is a direct movement to the Commission of a crime which falls short to its Commission and desired result.

In a leading case of Fagnu Bhoi vs state of Orissa It was made clear that a person will be convicted of attempt if he has been shown to have an intention to commit offence and have done an act which constitutes the Actus reus of criminal attempt.

The stage of preparation is generally not punishable whereas the stage of attempt is punishable under law. The stage of preparation is punishable only in exceptional cases for illustration. In a case where contempt offence is so grave in nature that it would be necessary to stop it at its earliest stage or where the preparation are peculiar in nature.

ABHAYANAND MISHRA VS THE STATE OF BIHAR (1961).

The Supreme Court answered the question in Abhayanand Mishra vs. the State of Bihar (1961). The petitioner in this case wanted the Patna University to give him permission to appear as a private candidate for an English exam in the year 1954. The petitioner for the sake of the same mentioned that he has been a student of B.A in the year 1951 and he has been employed as a teacher in a particular school. After accepting the same, the university granted permission and demanded a charge reduction and two photos of the petitioner. After submission of the same a confirmation card for him has been sent to the school head master .After receiving the information that the petitioner is not a teacher, investigation begun and it was discovered that the qualifications of the petitioner were fraud and he is not a teacher in any school and he has also been prohibited from taking any university test for a certain period of time. After investigation by the cops it was discovered that the petitioner was convict for attempting to steal when he deceived the university.

In this case, the accused were charged for cheating because he gave fraudulent papers to the Patna University for appearing in M.A exams. The accused contended that his action was only at the preparation stage and not at the stage of attempt. But, The Supreme Court held that when the accused submitted his application for consideration by the university, he had entered the stage of attempted cheating.

After this, the Supreme Court, in various judgments, divided preparation from attempt through the following tests

  • The Proximity Rule: Proximity in Relation to Time and Action or to Intention?
  • The Doctrine of Locus Poenitentiae 
  • The Equivocality Test 
  • Attempting an Impossible Act 

THEORY OF IMPOSSIBILITY

There was a very popular rule which was laid down in Queen vs. Collins according to this rule a person would not be made liable for attempt of any crime which is not possible to perform.

Illustration of this cases where A puts hand into the pocket of B with the intention to steal but find nothing in his pocket in such a case he could not be made liable of an attempt to steal.

In another case of R vs. MC Pherson the prisoner was charged for breaking and entering into the House of the appellant for stealing some chattels and was convicted for attempt to steal some titles but in this case he was not aware of the fact that those chattels had already been stolen. The decree of the court in this case was that conviction is wrong because the meaning of the word attempt conveys the idea that if attempt had succeeded the offence for which the person was charged would be committed. Anything must be in the way that if successful it will amount to the offence for which the person is being charged.

However the above cases were ruled in R vs. king where the accused was convicted for attempt to steal from the handbag of a woman although the bag was empty. The cases before are R vs. king were decided on the assumption that no one can be punished for any attempt which is impossible in stage of Commission and this was theory of impossibility

According to the theory of impossibility, impossible attempts are not punishable only if the impossibility is absolute and not relative. Absolute impossible acts are those where both Mens Rea and Actus Reus present but the act does not cause any harm to the society.

There are few illustration to determine absolute impossibility where a person shoots at a shadow which is near to a person so as to put that person in parel, in this case it will not be considered as an attempt Hence an act which is impossible to commit cannot be attempted and so is not culpable.

REFERENCES:

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