Concept of attempt

The term “attempt” has not been defined in the Indian Penal Code, scholars have tried to define the term in various ways. Stephen identified the following elements in his definition of “attempt”:

 a. Doing of an act in furtherance of an intention to commit a specific crime

b. Such act should form part of a series of acts, which taken together and if uninterrupted, would lead to the actual commission

 c. Impossibility of the actual commission of a crime does not have an impact on acts qualifying as attempts if the aforementioned conditions are satisfied

 d. An attempt can be made even if the offender voluntarily desists from committing a crime

Complete attempts are those attempts where the defendant goes through with the crime but something goes wrong and they do not get the desired result. For example, attempted murder could be where the defendant fires the gun at the intended victim but misses it.

Incomplete attempts are harder to judge. In this type of attempt, the defendant’s plan has been foiled somehow before he or she even gets to fire a gun or light a match. They are harder to judge because they come much closer to punishing for thought. Incomplete attempts usually rely on how far the defendant actually was from fully attempting the crime.

‘Attempt’ is not defined in the Indian Penal Code. Section 511 of the IPC only dealt with punishment for attempting to commit offences.

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Proximity Test

The Dangerous Proximity Test, as developed by Justice Oliver W. Holmes, asks a jury to judge the defendant’s proximity to his or her goal. So if the goal is one of setting fire to a house, the question becomes how close was the defendant to actually setting fire to the house? If he has the matches, the accelerant, etc. and all he has to do is set the house on fire, the jury may find him or her guilty of attempted arson. However, if the defendant merely has matches in his or her possession, it is much more difficult to make the charge stick as there isn’t really anything inherently wrong with buying a box of matches.

In the early days of the development of English common law, attempt was not a crime. Over time, the law on this point evolved. A defendant who committed an attempt resulting in severe harm was punished for a minor crime, typically a misdemeanor. An attempt to define ‘attempt’ first came up in Rex v. Scofield, In Scofield, a servant was convicted of a misdemeanor for attempting to burn down his master’s house with a lighted candle.

Res Ipsa Loquitur Test

Res ipsa loquitur means “the thing speaks for itself”. The res ipsa loquitur test, also known as the unequivocality test. It is applied depending on the facts of each case independently. To constitute an attempt the act must be such as to clearly and unequivocally indicate the intention to commit the offence. The act must be referred to the commission of the crime and it must be evident and clear on examination.


The intention followed by preparation is not sufficient to constitute an attempt. But intention and then preparation must be followed by an act toward the commission of crime. The act must be revealed with reasonable certainty in conjunction with other facts and circumstances an intention to commit the particular offence.

Under res ipsa loquitur or unequivocally, the trier of fact must determine that at the moment the defendant stopped going towards completion of the offense, it was clear that the defendant had no other purpose than commission of the specific crime at issue.

Example:

Sam wants to kill his wife Kelly for the proceeds of her life insurance policy. Sam contacts his friend Joe, who is reputed to be a “hit man,” and sets up a meeting for the next day. Sam meets with Joe and asks him if he will murder Kelly for one thousand dollars. Joe agrees, and Sam pulls out a wad of cash and pays him.

Unfortunately for Sam, Joe is a law enforcement decoy. If the state in which Sam paid Joe recognizes the res ipsa loquitur or unequivocality test, Sam has most likely committed attempted murder (along with solicitation to commit murder, which is discussed shortly). Sam’s actions in contacting and thereafter hiring and paying Joe to kill Kelly indicate that he has no other purpose than the commission of Kelly’s murder. Hiring and paying a hit man is more than just preparation. Note that evidence of Kelly’s life insurance policy is not needed to prove the attempt act. Sam’s conduct “speaks for itself,” which is the essence of res ipsa loquitur or unequivocality.

Essentials of the Attempt:

  1.  There must be “an intention to commit a crime”
  2. Act so done must be “in furtherance of that intention” or “towards the accomplishment of that crime”
  3. The act must be “an incomplete work” or “fall short of a completed crime”.

Section 511 in The Indian Penal Code

 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 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:

  1. 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.
  2.  A, makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in a consequence of Z’s having nothing in his pocket. A is guilty under this section.

CLASSIFICATION OF OFFENCE – Punishment for attempt is Imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both. According as the offence is cognizable or non-cognizable well as According as the offence attempted by the offender is bailable or not, Triable by the court by which the offence attempted is tri­able and Non-compoundable

Moral guilt and injury Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 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 word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of section 511 require; Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602.

Cases Related attempt

  1. Koppula Venkata Rao V. State of A.P[9]
    The supreme court has said that “attempt” should be taken as ordinary meaning, i.e. 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 neither foresaw not intended happens to prevent this.
  2. state of Uttar Pradesh V. Ram Chandra[10]
    An attempt is an international act which a person does towards the commission of offence but fills in its object through circumstances independent of the violation of the person attempt.

Reference

Click to access 151377070922etext.pdf

https://indiankanoon.org/doc/1185693/

https://www.legalserviceindia.com/legal/article-4753-attempt-and-criminal-conspiracy-under-indian-penal-code-1860.html

Aishwarya Says:

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