An Analysis of the Law of Attempt to Commit Crime in India
Introduction
The concept of "attempt" in criminal law occupies a crucial space between mere intention and the consummation of a crime. Under Indian law, primarily governed by the Indian Penal Code, 1860 (IPC), an attempt to commit an offence is itself punishable, reflecting the legal maxim that the will may not be taken for the deed, but an overt act manifesting that will towards criminality warrants sanction. Section 511 of the IPC is the general provision that penalizes attempts to commit offences punishable with imprisonment, where no express provision is made by the Code for the punishment of such an attempt. This article seeks to provide a comprehensive, scholarly analysis of the law relating to attempt to commit crime in India, drawing upon statutory provisions and significant judicial pronouncements. It will delve into the conceptual distinctions between intention, preparation, and attempt, the essential elements of actus reus and mens rea in an attempt, and the judicial interpretation of these principles through landmark case law.
Conceptual Framework: Intention, Preparation, and Attempt
Criminal liability typically unfolds through distinct stages: intention, preparation, attempt, and commission. While mere intention or 'contemplation' is generally not punishable, as "The Devil himself knoweth not the thought of man" (Maragatham (Madras High Court, 1959)), the progression towards an overt act brings an individual within the ambit of criminal law.
The Supreme Court in Koppula Venkat Rao v. State Of A.P. (2004 SCC 3 602) elucidated these stages: "In every crime, there is first, intention to commit, secondly, preparation to commit it, and thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law punishes the person attempting the act." Similarly, the Orissa High Court in Damodar Behera And Another v. State Of Orissa (1995) observed: "A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence."
Intention is the direction of conduct towards the object chosen (Damodar Behera And Another v. State Of Orissa, 1995). It is the first stage and, without more, does not attract criminal liability.
Preparation consists in devising or arranging the means or measures necessary for the commission of the offence (Abhayanand Mishra v. Tate Of Bihar, 1961 AIR SC 1698; Damodar Behera And Another v. State Of Orissa, 1995). While preparation demonstrates a move beyond mere intention, it is generally not punishable, as the individual still possesses a locus poenitentiae – an opportunity to withdraw before committing an act that directly moves towards the offence. However, some acts of preparation are specifically criminalized by statute (e.g., possessing counterfeit coins, making preparation to commit dacoity).
Attempt begins where preparation ends (State Of Maharashtra v. Mohd. Yakub And Others, 1980 SCC 3 57; Abhayanand Mishra v. Tate Of Bihar, 1961 AIR SC 1698). It is the "direct movement towards the commission after preparations are made" (Damodar Behera And Another v. State Of Orissa, 1995). An attempt involves (i) an intention to commit a particular offence, and (ii) doing an act towards its commission, which need not be the penultimate act but must be an act during the course of committing that offence (State Of Maharashtra v. Mohd. Yakub And Others, 1980 SCC 3 57). The Supreme Court in Sagayam v. State Of Karnataka (2000 SCC 4 454) reiterated: "There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission." This principle was also noted in The State Of Jharkhand And Anr. v. Kaushal Kishore Singh @ K K Singh (Jharkhand High Court, 2006) and RAM PRASAD MAHTO And ORS v. STATE OF JHAKRHAND And ANR (Jharkhand High Court, 2023).
The Madras High Court in Maragatham Alias Lakshmi v. State (Madras High Court, 1960) discussed the English law elements of attempt: "(a) There must be evidence of some overt act (b) the evidence of mens rea and (c) an interruption to the series of acts or omission which but for that interruption would have culminated in the completion of the offence."
The Actus Reus and Mens Rea in Attempt
For an act to constitute a criminal attempt, both mens rea (guilty mind) and actus reus (guilty act) must be established.
Mens Rea
The mens rea in an attempt is the specific intention to commit the target offence. It must be an "actual intent to commit the particular crime towards which the acts move... The intent must be one in fact, not merely in law, but may be inferred from the circumstances" (Maragatham (Madras High Court, 1959), citing Tagore Law Lectures). For instance, in an attempt to murder under Section 307 IPC, there must be an intention to kill (John Alias Eunjueutty v. State Of Kerala, Kerala High Court, 1969).
Actus Reus
The actus reus in an attempt consists of an overt act that is sufficiently proximate to the commission of the intended crime and goes beyond mere preparation. The act must be "towards the commission of the offence" (Section 511, IPC). As stated in Sudhir Kumar Mukherjee And Sham Lal Shaw v. State Of West Bengal (1974 SCC 3 357), referencing Abhayanand Mishra v. State of Bihar (AIR 1961 SC 1698), "An individual commits the offense of attempt when they intend to commit a specific crime and take steps towards its commission. The act need not be the final act leading directly to the commission of the offense but must be a part of the acts that constitute the attempt."
The Supreme Court in State Of Maharashtra v. Mohd. Yakub And Others (1980 SCC 3 57) elaborated that such an overt act or step, to be "criminal," "need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence." This definition of 'attempt' as a mixed question of law and fact was also noted in SMT.PARVATI SHANKAR YADAV v. TUKARAM GOVIND YADAV & ANR. (Bombay High Court, 2010).
Section 511 of the Indian Penal Code, 1860
Section 511 IPC provides:
"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."
This section is a general provision applicable to attempts to commit offences punishable with imprisonment where no specific section penalizes the attempt itself (e.g., Section 307 for attempt to murder, Section 308 for attempt to commit culpable homicide, Section 393 for attempt to commit robbery). The Supreme Court in Koppula Venkat Rao v. State Of A.P. (2004 SCC 3 602) noted, "Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections... 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."
Judicial Interpretation and Key Case Law Analysis
Distinguishing Preparation from Attempt
The demarcation between preparation and attempt has been a subject of extensive judicial scrutiny.
In Malkiat Singh And Another v. State Of Punjab (1969 SCC 1 157), the appellants were charged with attempting to export paddy in contravention of the Punjab Paddy (Export Control) Order, 1959. Their truck loaded with paddy was seized well within Punjab's boundaries. The Supreme Court overturned their conviction, holding that their actions constituted mere preparation and not an attempt. The Court emphasized that "preparation entails arranging means for an offense, whereas an attempt requires clear steps towards its execution." The seizure within Punjab did not satisfy the statutory definition of "export," and the appellants could have desisted from their activity. This case underscores that "preparations, lacking decisive steps towards the criminal act, do not attract penal sanctions."
Contrasting with Malkiat Singh is State Of Maharashtra v. Mohd. Yakub And Others (1980 SCC 3 57). The respondents were accused of attempting to smuggle silver ingots out of India. They had concealed the silver, transported it to a creek near the seashore at night, and were in the process of unloading when intercepted; the sound of a sea-craft engine was also heard. The Supreme Court, reversing the High Court's acquittal, held that these acts went beyond mere preparation and constituted an attempt. The Court reasoned: "Beyond the stage of preparation, most of the steps necessary in the course of export by sea had been taken. The only step that remained to be taken towards the export of the silver was to load it on a sea-craft... But for the intervention of the officers of law, the unlawful export of silver would have been consummated." This case highlights the application of the proximity test and the significance of acts manifesting a clear intention to commit the offence. The case of Income-Tax Officer v. Dharamchand Surana (Madras High Court, 1995) also refers to Mohd. Yakub in defining attempt.
In Abhayanand Mishra v. Tate Of Bihar (1961 AIR SC 1698), the appellant applied to Patna University for an M.A. examination by submitting forged documents. The university issued an admission card, but the fraud was discovered before the examination. The Supreme Court upheld his conviction for an attempt to cheat under Sections 420/511 IPC. The Court held that his actions, including the submission of the application with false information, constituted an attempt. "The moment he sent his application, he had done an act towards the commission of the offence." The Court distinguished preparation from attempt by stating, "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made."
The principle that preparatory acts can qualify as an attempt under the IPC was also affirmed in Queen v. Ramsarun Chowbey (1872 4 NWP 46), as cited in Sudhir Kumar Mukherjee And Sham Lal Shaw v. State Of West Bengal (1974 SCC 3 357).
Impossibility and Attempt
The question of whether an attempt can be committed if the consummation of the crime is impossible has been debated.
In Asgarali Pradhania v. Emperor (1933 SCC ONLINE CAL 153), the Calcutta High Court dealt with an appellant convicted of attempting to cause a miscarriage under Sections 312/511 IPC. He had administered substances to a woman which were found to be harmless and incapable of causing a miscarriage in the quantities given. Justice Lort-Williams, delivering the judgment, acquitted the appellant. The Court reasoned that for an action to constitute an attempt, it must be a tangible step that could feasibly lead to the completion of the offence. Since the means used were inherently ineffective, the failure was due to the appellant's own choices, not external interventions. The judgment stated: "What he did was not an 'act done towards the commission of the offence' of causing a miscarriage. Neither the liquid nor the powder being harmful, they could not have caused a miscarriage. The appellant's failure was not due to a factor independent of himself."
The Court in Asgarali Pradhania discussed various precedents, including Regina v. M'Pherson (attempt must be capable of succeeding) and Regina v. Cheeseman (if criminal transaction commenced with actions that would lead to offence if not interrupted, it's an attempt). It also considered Stephen's Digest definition: "An attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted." The Court distinguished cases like a pickpocket thrusting his hand into an empty pocket, where the failure is due to a fact "not in any way due to any act or omission on his part." In contrast, if one "who believes in witchcraft, puts a spell on another... with the intention of causing him hurt... he cannot... be convicted of an attempt to cause hurt. Because what he does is not an act towards the commission of that offence, but an act towards the commission of something which, cannot, according to ordinary human experience, result in hurt..."
However, the general legal principle, often supported by authorities, is that factual impossibility (e.g., trying to pick an empty pocket, or trying to kill a person already dead believing them to be alive) does not negate an attempt, provided the accused intended to commit the crime and took sufficient steps. Legal impossibility (where what the accused attempts to do is not a crime at all) would preclude a conviction for attempt. The reasoning in Asgarali Pradhania leans towards the idea that if the means are "intrinsically useless," it might not be an attempt. The Madras High Court in Maragatham (1959) noted: "If the means employed are so clearly unsuitable that it is obvious that the crime cannot be committed... the attempt is not indictable. On the other hand, if there is an apparent ability to commit the crime in the way attempted, the attempt is indictable, although unknown to the person making the attempt, the crime cannot be committed, because the means employed are in fact unsuitable or because of extrinsic facts..."
Attempt in Specific Offences
Attempt to Rape (Sections 376/511 IPC)
In Koppula Venkat Rao v. State Of A.P. (2004 SCC 3 602), the accused was initially convicted under Section 376 IPC (rape). The Supreme Court altered the conviction to Sections 376/511 IPC (attempt to commit rape). The Court reasoned that "the sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape." The evidence supported an attempt but not the completed offence. This case clarifies that even if the ultimate act of the intended crime (rape) is not completed due to lack of penetration, the preceding acts, if sufficiently proximate and done with requisite intent, constitute an attempt.
Attempt to Murder (Section 307 IPC)
In Sagayam v. State Of Karnataka (2000 SCC 4 454), the Supreme Court explained the requirements for a conviction under Section 307 IPC: "To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation." In this particular case, the accused allegedly tried to assault a police officer with a sword but the officer escaped. The Court found the evidence insufficient for attempt to murder, stating "at best it can be one of attempt to assault but there is not even an injury upon the victim."
The Kerala High Court in John Alias Eunjueutty v. State Of Kerala (1969) observed, regarding an attempted blow resulting in an abrasion, that "to constitute attempt to murder, there must be intention to kill." The Court noted that a blow on the head "need not necessarily and surely result in death," emphasizing the importance of assessing the actual intent and the nature of the act rather than speculative consequences.
Attempt to Cheat (Sections 420/511 IPC)
As discussed earlier, Abhayanand Mishra v. Tate Of Bihar (1961 AIR SC 1698) is a leading case on attempt to cheat. The act of submitting a fraudulent application to deceive the university was held to be an attempt.
In E. Raman Chettiar Accused v. King-Emperor Opposite Party. (1926 SCC ONLINE MAD 551), the petitioner was charged with attempting to cheat by causing the despatch of bogus telegrams. The Madras High Court, discussing the line between preparation and attempt in cheating, cited Lord Blackburn: "If the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime." The Court held that "in the offence of cheating the actual transaction must have begun, and an act to bear upon the mind of the victim must have been done before a preparation can be said to be an attempt." The despatch of telegrams was considered the beginning of the actual transaction.
The Proximity Rule and Other Tests
Courts have employed various tests to determine if an act has crossed the threshold from preparation to attempt. The most commonly applied is the "proximity test," which assesses how close the accused's act was to the completion of the crime. Other tests include the "equivocality test" (whether the act unequivocally indicates the intention to commit the crime) and the "social danger" test.
The Supreme Court in State Of Maharashtra v. Mohd. Yakub And Others (1980 SCC 3 57) strongly endorsed the proximity rule, stating that the overt act must be "reasonably proximate to the consummation of the offence." Kenny's definition of attempt as the "last proximate act" was considered too narrow by the Court. The focus is on acts that "manifest a clear intention to commit the offence aimed."
Voluntary Abandonment
The issue of voluntary abandonment of an attempt is complex. According to the Madras High Court in Maragatham (1959), "Voluntary abandonment of an attempt which has proceeded beyond preparation will not bar a conviction therefor. However, voluntary abandonment may be urged by accused to show his intent." This suggests that once an act qualifies as an attempt, subsequent voluntary desistance might not absolve liability for the attempt itself, though it could be a mitigating factor or relevant to proving the initial intent. The locus poenitentiae generally ends when the stage of attempt begins. The judgment in Maragatham Alias Lakshmi v. State (Madras High Court, 1960) mentioned a case where a woman tried to jump from a parapet wall of a well, and it was held she had not gone past the locus poenitentiae. This implies a fine line depending on how far the "series of acts" has progressed.
Conclusion
The law of attempt to commit crime in India, primarily encapsulated in Section 511 IPC and interpreted through numerous judicial decisions, seeks to penalize conduct that demonstrates a clear and proximate move towards the commission of an offence, coupled with the requisite criminal intent. The distinction between mere preparation and a punishable attempt remains a nuanced factual determination, heavily reliant on the circumstances of each case. Landmark judgments like Abhayanand Mishra, Malkiat Singh, and Mohd. Yakub have provided crucial guidance in delineating these stages, emphasizing the importance of overt acts that are sufficiently proximate to the intended crime.
Challenges persist, particularly concerning issues like impossibility and the precise point at which preparation transitions into attempt. However, the judiciary has consistently endeavored to interpret the law in a manner that balances the rights of individuals against the societal imperative to prevent crimes before they are consummated. The underlying principle, as affirmed in Koppula Venkat Rao, is that every attempt creates alarm and reflects moral guilt, thereby justifying punishment, albeit typically lesser than for the completed offence. The continued evolution of jurisprudence in this area is vital for maintaining clarity and fairness in the application of criminal law concerning inchoate offences in India.