1

CHAPTER 1

INTRODUCTION

Peace is the universal demand of every human being. Maintenance of peace and

order is essential in any society for human beings to live peacefully and without fear of

injury to their lives, limbs, and property.1 The purpose of law is to maintain peace in

society by way of preventing crimes. This is being done by the declaration of some acts

as offences under the law and in prescribing a punishment for it. If an act is injurious to

society in any way it should have to be punished. Crime has existed since time

immemorial. From the picking of the forbidden fruit in the Garden of Eden to the

modern highly complex crime network, society has never been devoid of illegal

practices. Human nature is inflexible and hence illegal practices have continued

irrespective of space, time or age. Society prepares the crime and criminal commits it. A

crime is an antisocial behavior, it is against a public law and the penal law is a device of

social control.

The development of administration of criminal justice reveals the fact that in

the primitive society the damages to be awarded to the victim of crime were determined

on the basis of reprisal. If an offender was caught red handed, he was given severe

punishment than one who was detected afterwards. Criminal law declares certain acts of

individuals as crimes which interfere with others‟ body, property, reputation or

relationship and prescribe punishment for them and the state authority takes over the

1
K. I. Vibhute, PSA Pillai‟s Criminal Law, 10th edition,2008, 5th reprint, 2011, p.1
 2

responsibility for enforcement of the criminal law for effectual social control. The need

for effective social control requires both a classification of social wrongs and an

establishment of a system of response to them. Society distinguishes between

immoralities, civil and criminal wrongs.

The definition of crime is a difficult task as the definition varies from time to

time. However, there are certain principles relating to the definition of crime. First,

conduct that the law specifically prohibits is a crime; the Latin maxim, nullum crimen

sine lege express this principle. Secondly, the law must prescribe punishment for

crimes; this principle is expressed in another maxim, nulla poena sine lege. Thirdly,

there is ex-post facto rule and it prohibits the making of conduct criminal

retrospectively.

The law presumes innocence until the guilt of the accused is proved beyond

reasonable doubt. To criminalize a certain kind of conduct is to declare that it should

not be done, to institute a menace of punishment in order to supply a pragmatic reason

for not doing it, and to censure those who nevertheless do it. Penal law does it by

prohibiting “undesired” and “harmful” human conduct and “punishing” the perpetrators

thereof or posing threat of punishment to the prospective violators. It, therefore, defines

and punishes “acts” or “omissions” that are perceived as:

1) Attack on public order, internal or external;

2) Abuse or obstructions of public authority;

3) Acts injurious to the public in general;

 3

4) Attack upon the persons of individuals, or upon rights annexed to their

persons; or

5) Attack upon the property of individuals or rights connected with, and

similar to, rights of property.2

All criminal wrongs are political in nature. The object of criminal law is to

protect high esteem of life liberty and property of individual because life, liberty and

property are universally valued, uniformly defined and protected by law. No

punishment can be said to attain its true purpose which is disproportionate and unjust.

This implies a close examination and view of crime in its true perspective. Really

speaking, there is no absolute criterion or measure of crime. It varies with ages, locality

and circumstances. Indeed, what is crime, but a prohibited act? And prohibited by

whom, but by the public opinion of society of which the legislature is but a spokesman

and the external embodiment. Such prohibition has varied from time to time, but there

are certain prohibitions which the institution of man has condemned at all times and in

all places. These form the backbone of criminal law. They are offences which by the

consensus of mankind are regarded as evils of the highest degree, and both as

destructive of society and its well-being. Crime is the breach of rules or laws for which

some governing authority can ultimately prescribe a conviction.

Crime is a social phenomenon. A normative definition views crime as deviant

behavior that violates prevailing norms-cultural standards prescribing how humans

ought to behave normally. This approach considers the complex realities surrounding

2
James Fitzjames Stephen, A History of the Criminal Law of England, Vol.1, 1983, p. 2-3
 4

the concept of crime and seeks to understand how changing social, political,

psychological, and economic conditions may affect changing definitions of crime and

the form of legal, law-enforcement, and penal responses made by society.3 In criminal

law, crimes are categorized as either mala in se or mala prohibita, a term that describes

conduct that is specially forbidden by laws.

Mala in se are inherent crimes which include all offences against the moral

law on the other hand mala prohibita are the crimes which are prohibited by law as

these are against sound policy. Crimes are typically broken into degrees or classes to

punish appropriately. Both are Latin legal terms, mala in se meaning crimes that are

thought to be inherently evil or morally wrong, and thus will be widely regarded as

crimes regardless of jurisdiction. Mala in se offenses are felonies, property crimes,

immoral acts and corrupt acts by public officials. Mala prohibita, on the other hand,

refers to offenses that do not have wrongfulness associated with them. Parking in a

restricted area, driving the wrong way down a one-way street, joywalking or unlicensed

fishing are examples of acts that are prohibited by statute, but without which are not

considered wrong. Mala prohibita statutes are usually imposed strictly, as there does

not need to be mens rea component for punishment under those offenses, just the act

itself. For this reason, it can be argued that offenses that are mala prohibita are not

really crimes at all.

Many attempts have been made to define crime but it is not possible to provide

the most scientific definition workable in all cases. In Halsbury‟s Laws of England,

3
http://en.wikipedia.org/wiki/Crime last visited on 8/17/2010
 5

crime is defined as follows: „A crime is an unlawful act or default which is an offence

against the public and renders the person guilty of an act or default liable to legal

punishment‟.4 According to Supreme Court of India, crime is a public tort and is done

in infringement and violation of public rights and duties by which whole of the

community is affected and is generally prejudicial the society. 5

An extensive and thorough analysis of crimes, according to Jerome Hall, 6

leads to a description of the following seven interrelated and overlapping differentiae of

crime. These are:

1) There must be some external consequences or „harm‟ to „social‟ interests‟.

2) The harm must be „prohibited‟ by penal law.

3) There must be „conduct‟, i.e., intentional or reckless action or inaction that

brings the prohibited „harm‟.

4) There must be „mens rea’ or „criminal intent‟.

5) There must be „concurrence‟ of mens rea and conduct.

6) There must be a „causal‟ relation between the legally prohibited harm and

the voluntary misconduct.

7) There must be legally prescribed „punishment‟ or threat of punishment.

In recent decades the public has become more aware of the glaring

inadequacies of the criminal justice system particularly in gauging liability in criminal

4
Halsbury‟s Laws of England, 3rd edition, 1955, p. 271
5
Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374: (2006) 2 SCC (Cri) 8 AIR 2006 SC
1367
6
Jerome Hall, General Principles of Criminal Law, second edition, 1960, p. 8-18
 6

attempt. In the area of criminal attempt, hundreds of pages of legal literature are written.

The result is a declaration like this:

"It has been truly said by a philosophical writer that 'the subject of criminal

attempt, though it presses itself upon the attention wherever we walk through the fields

of criminal law, is very obscure in the books, and apparently not well understood either

by the text-writers or the judges.' And it may be added that it is more intricate and

difficult of comprehension than any other branch of the criminal law." 7 "The doctrine

of attempt to commit a substantive crime is one of the most important and at the same

time most intricate titles of the criminal law. There is no title, indeed, less understood

by the courts, or more obscure in the text-books than that of attempts."8

There are four distinct stages through which an action ordinarily passes before

it becomes a crime punishable by law. The first stage is described as intention to

commit a crime. An action ordinarily would not become a criminal wrong unless

accompanied by a criminal intention. The intention, however, criminal, by itself,

without anything more is not punishable. The next stage is described as preparation. It

consists in devising or arranging the means or measures necessary for the commission

of the offence. Excepting few expected categories preparation is not punishable. Third

stage is attempted to commit the offence. So, in every crime, there is first, an intention

to commit it, secondly preparation to commit it, thirdly, attempt to commit it. If the

7
Hicks v. Commonwealth, 86 Va. 223, 226, 9 S. E. 1024, 1025 (1889).
8
Cunningham v. State, 44 Miss. 685, 701 (1874).
 7

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.9

Actual attempt to commit an offence involves greater degree of determination

than preparation.10 Halsbury‟s Laws of England11 states that any overt act immediately

connected with the commission of the offence, and forming part of a series of acts

which, if not interrupted or frustrated, would end in the commission of the actual

offence, is, if done with a guilty intent, an attempt to commit the offence. Mayne

defines attempt as the direct movement towards the commission after preparations have

been made. It may be described as an endeavor to do an act, carried beyond mere

preparation but short of execution. Criminal law punishes not only completed crime but

also the conduct short of completion of a crime. Criminal attempt falls in the category

of inchoate crimes. The law of attempt continues to be somewhat enigmatic and

notorious for its intricacies.12

Chamber’s Twentieth Century Dictionary defines “attempt” as any act that can

fairly be described as one of a series which, if uninterrupted, and unsuccessful, would

constitute a crime. The Black’s Law Dictionary has defined the term “attempt” as an

overt act that is done with the intent to commit a crime but that falls short of completing

the crime. It is the idea that if the attempt had succeeded, the offence charged would

9
R.A. Nelson‟s Indian Penal Code 10th edition., vol. IV, 2008, p. 5037.
10
Monica Chawla, Criminal Attempt and Punishment, 2006, p. 5
11
Supra note 4, p. 307
12
K. N. Chandrasekharan Pillai, Essays of Indian Penal Code, 2005, p. 217.
 8

have been committed. In other words, attempt is the direct movement towards the

commission of an offence after the preparation has been made.

In Jowitt’s Dictionary of English Law “attempt” has been defined as an

endeavor to commit a crime or unlawful act; the doing of some overt act for the purpose

of committing some offence; an act done with intent to commit a crime, and forming

part of series of acts which would constitute its actual commission if it were not

interrupted. The mere intent to commit an offence is not a crime, nor is an act merely

preparatory to commission of an offence.

Bouvier’s Law Dictionary (English Edition) defines “attempt” as endeavor to

accomplish a crime carried beyond mere preparation, but falling short of execution of

the ultimate design in any part of it. An attempt, in general, is an overt act done in

pursuance of intent, to do a specific thing, tending to the end, but falling of complete

accomplishment of it.

The New Encyclopedia Britannica13 defines “attempt” as “Attempt in criminal

law is an effort to do or accomplish a crime that fails of consummation but goes beyond

acts of preparation to a point dangerously close to complete the intended harm”. The

Encyclopedia America International 14 defines attempt as an act that is done with intent

to commit a crime and that, if not prevented, would result in the commission of the

crime.

13
Vol. I, 15th edition, p. 634
14
Vol II page 656, definition by Peter D. Weinstein, a member of the New York Bar
 9

An attempt is the commencement of action which, if not interrupted, would

have ended in the crime.15 It is an act done towards the commission of an offence unless

it is followed or perhaps preceded by other acts is merely a preparation. 16 The

difference between mere preparation and actual attempt consists chiefly in the greater

degree of determination in attempt as compared with preparation. According to English

law17, a person may be guilty of an attempt to commit an offence, if he does an act

which is more than merely preparatory to the commission of the offence and a person

may be guilty of attempt to commit an offence even though the facts are such that the

commission of the offence is impossible.

What amounts to an attempt has been described variously in the authorities

and the definition given in Stephen’s Digest of Criminal Law 18 Art. 50 provides as

follows:

“An attempt to commit a crime is an act done with intent to commit

that crime, and forming part of a series of acts which would constitute its actual

commission if it were not interrupted.”

Lord Blackburn 19 observed that there is no doubt a difference between

preparation antecedents to an attempt and the actual attempt, but if the actual transaction

has commenced, which would have ended in the crime if not interrupted, there is clearly

15
Yusuf Abdulla Patel v. R. N. Shukla AIR 1967 Raj 149
16
Province of Bihar v. Bhagwat Prasad, AIR 1949 Pat 326
17
Section 1, Criminal Attempt Act, 1981
18
5th edition, 1894
19
R v. Cheesman (1862) I I & C 140
 10

an attempt to commit the crime. Once an act enters into the arena of attempt, criminal

liability begins, because attempt takes the offender very close to the successful

completion of the offence intended and so it is punishable in the law like the completed

offence. An attempt creates alarm which of itself is an injury, and the moral guilt of the

offender is the same as though had succeeded.

The act may be sufficiently harmful to society as a whole by reason of its close

proximity to the completed offence classed as a crime. A criminal attempt not only

poses a threat to bodily and proprietary security but also infringes the right to security.

Such an infringement constitutes, in itself, a harm that penal law seeks to punish.

Criminal liability for attempt may be justified even in the absence of any harm. An

attempt to commit a crime poses no less a menace to the legitimately confined interests

of the individuals than does the complete crime.

Inchoate offences are preliminary or incomplete crimes viz. attempt and

abetment. Abetment takes three forms, namely, instigation or incitement, aiding and

conspiracy. Attempt and conspiracy are statutory offences. Incitement is for the

moment still governed by the Common Law. The crime of incitement consists of

inciting another person to commit a crime by persuasion, suggestion or other means of

encouragement.20 However modern authors criticize the term „inchoate‟ as deceptive,

because the word „inchoate‟ connotes something which is not yet completed, and it is,

therefore, not accurately used to denote something, which is itself complete, even

20
Duncan Bloy, Criminal Law, 1st edition, 1993, p. 107.
 11

though it be a link in the chain of events leading to some objects which is not yet

attained.

In recent edition of Kenney‟s book21, has described the word as misleading as

criminal attempt is a stage where penal liability is imposed and it becomes offence.

Supposing, „A‟ wants to kill his enemy „B‟, stole a pistol and abduct „B‟ in order to

affect his purpose of murder. There the murder was inchoate but theft, abduction and

attempt to commit murder were completed. A man who starts on a criminal path but

who is checked before he can accomplish his purpose may commit what is in itself an

offence- conveniently called an inchoate offence. The term inchoate offence may be

defined as an offence committed by doing an act with the purpose of effecting some

other offence which are called “substantive offence” or “consummated offence” or

“completed offence.”

The term “inchoate” cannot be used to indicate something which is itself

complete or which has been done as a step towards an end which has not yet been

achieved. The nomenclature given to attempt, criminal conspiracy and incitement as

“inchoate offences” is ambiguous and unsuitable because these offences are complete in

themselves, even though they constitute a link in the chain of events leadings to some

object which is not yet attained. In such a situation, it is the unattained objective which

is “inchoate” and not the completed that have been taken towards that objective.

Plausibly for these reasons, the “inchoate crimes” are also labeled “Preliminary crimes”

or “Anticipatory Crimes”. Thus, inchoate crimes refer to those acts which have begun

21
Kenny‟s Outlines of Criminal Law, edited by J. W. Cecil Turner, 19th edition, 2006.
 12

but which have not reached completion sufficient for the offence to have been

committed. As per this argument it can be inferred that an Attempt to commit a crime is

thus an overt act, which should not allow going unpunished.

Attempt includes complete, incomplete and impossible attempts. Complete

attempts occur when the perpetrator takes every necessary step in the commission of a

crime and yet is unable to commit it. An incomplete attempt occurs when the

perpetrator takes some steps towards committing the crime but is stopped by some

intervening force outside of their control before they are able to complete the attempt.

An impossible attempt occurs when a perpetrator takes steps towards committing a

crime, only to realize that there is something in the way making it impossible for the

crime to be completed. This would include something like trying to commit murder

when the target is already dead.

Statutes on inchoate crimes provide that individuals may be held criminally

responsible for the intent to commit a crime, even if the crime is not actually

committed. Inchoate crimes require that an individual have the intent to commit the

criminal act and that they take some step to achieve the goal.

Following are general rules regarding inchoate crimes:

a) A person cannot be charged with an inchoate offense and the actual crime at the

same time. For example, a person cannot be charged at the same time with attempted

murder as well as murder. The person can only be charged with one or the other at the

same time. However, conspiracy is an exception to this common rule. Accordingly, a

 13

person can be charged with murder and conspiracy to commit murder at the same time.

b) To be convicted of an inchoate crime, it must be proven that the person to be

convicted had the specific intent (mens rea) to commit or contribute to the actual crime.

c) Inchoate crimes must involve some outward action or a substantial step in the

completion of the crime. The person to be convicted should have done some act in

furtherance of the crime.

The penal law should treat some unlawful acts, which cross the stage of being

preparatory to the commission of an offence, constitute a criminal attempt but have

been the subject of great amount of debate and discussion amongst jurists, judges and

those concerned about criminal law.

An attempt to commit a crime is an act done with intent to commit that crime

and forming part of series of acts which would constitute its actual commission if it

were not interrupted. An attempt to commit a crime is essentially a direct movement

towards the commission of the crime. Neither a mere intention howsoever blameworthy

it may be, to commit a crime nor do the means arranged, howsoever effective they may

be, to commit it, therefore, amount to an offence unless some steps believed to be

necessary as far as the doer is concerned, are taken to accomplish the intended crime. It

is an intentional preparatory action which fails to achieve its object because of the

intervening circumstances.

In other words, an attempt is an act done in part execution of a criminal

design, amounting to more than mere preparation, but failing short of actual

consummation, and possessing, except for failure to accomplish, all the elements of the
 14

substantive crime, combined with the doing of some act adapted to, but failing short of

its actual commission. The word “attempt” clearly conveys with it the idea, that if the

attempt has succeeded, the offence charged would have been committed. An attempt

must be to do that which, if successful would amount to the felony charged. It is an

intentional preparatory action which fails to achieve its object because of the

intervening circumstances. Inchoate crimes, which are also referred to as incomplete

crimes, are acts involving the tendency to commit, or to indirectly participate in a

criminal offense, without achieving the desired result. When individuals attempt to

commit a crime, they can face criminal charges even if the crime is not successful. To

convict an individual of an attempted crime, the prosecution must be able to prove that

the accused had the intent to carry out the offense. Even if an individual does not

effectively commit a crime, he or she may face consequences of his or her attempt to

commit a crime.22

An attempt to commit a crime is a step forward in the direction of the

commission of the intended offence. However, every act or series of acts committed in

the direction of the contemplated offence does not amount to an attempt. Attempt to

commit an offence can be said to begin when the preparations are complete and the

wrongdoer commences to do something with the intention of committing the offence

and which is a step towards the commission of the offence. If attempts succeed, he has

committed the offence, if he fails due to reasons beyond his control, he is said to have

attempted to commit the offence.

22
http://b.scorecardresearch.com/p?c1=2&c2=9613893&cv=2.0&cj=1 last visited on 7/12/2012
 15

As discussed above there are four stages of a complete crime. Out of these four

stages, normally the liability under criminal law exists in the third and the fourth stages

only, and the accused is generally not guilty if his act falls under the first or the second

stage, that is to say, under the mental stage or the preparatory stage. For instance, if A

wants to kill B but does not do anything further in this regard he, being still in the

mental stage, is not guilty of any crime. With such intention if he buys a revolver and

gets a license for the same, even then he does not commit a crime because he is still in

the preparatory stage.

The reason as to why the mental stage and the stage of preparation to commit a

crime is generally not punishable is that neither of these two stages affect the society

and criminal law will punish an act only when the same affects the interest of the

society. However, there are certain extraordinary situations in the Indian Penal Code

where an accused, even though in the stage of preparation, has been made liable for his

act. Preparation is the second stage. Preparation has not been made punishable because

in most of the cases the prosecution has failed to prove the necessary preparations were

made for commission of the offence. If P procures some poison to kill Q and keep the

same in his pocket but does nothing more, P has not committed any offence as he is still

at the stage of preparation and it will be impossible for the prosecution to prove beyond

reasonable doubt that P was carrying the poison only for the purpose to kill someone.

In Noor Bibi v. State 23 , the accused without proper permission was going

towards the border with the object of stepping into Pakistani territory and was arrested

23
AIR 1952 J & K 55: 1953 Cri LJ 166
 16

before reaching the border. It was held that there could be no presumption that whoever

moved towards the border would necessarily cross over. The law ignores, as general

rule, the acts of preparation also. It only interferes when such preparation precludes the

possibility of an innocent intention. Only such preparations are punished.

So, in general preparation is not punishable, because a preparation apart from

its motive would generally be a harmless act. It would be impossible in most cases to

show that the preparation was directed to a wrongful end, or was done with an evil

motive or intent, and it is not the policy of law to create offences that in most cases it

would be impossible to bring home the culprit, or which might lead to harassment of

innocent persons. Besides, a mere preparation would not ordinarily affect the sense of

security of the individual intended to be wronged, nor could society be disturbed or its

sense of retaliation aroused by what to all outward appearances would be an innocent

act .

However, purchasing a gun is not punishable, being merely preparation, but if

a man having procured the gun pursues his enemy with it, but fails to overtake him, or

is arrested before he is able to complete the offence, or fires without effect, this amounts

to attempt and, none of the considerations which justify the exclusion of preparation

from the crime will apply.

The famous maxim of English Criminal Law, viz, actus non facit reum nisi

mens sit rea, according to which “the act itself does not make a man guilty unless his

intention were so” occupied a prominent place in modern jurisprudential context. A

guilty mind together with a wrongful act constitutes a complete crime. The original
 17

source of the maxim is Saint Augustine‟s Sermones No. 180 i.e. reum lingum non facit

nisi mens rea. This maxim is generally supposed to mean that there cannot be such a

thing as legal guilt when there is no moral guilt.

In criminal law there are two essential elements necessary to constitute a

crime. These are:

(a) The mental element which is known as mens rea or subjective element of a crime

and

(b) The physical element which is known as actus reus or the objective element of a

crime.

Mens rea is the Latin term denoting the “guilty mind” and actus reus means

“wrongful act”. In traditional sense mens rea is a mental element, over and above

volition, as is involved in the definition of the crime, actus reus is the physical element

involved in the definition of crime. A man is not liable for his acts alone, but only if he

acts with a guilty mind. For example, A shoots at a jackal. X is behind the bush and is

hurt by accident. X will not think of retribution as it is a case of accident. But it will be

different, if A shoots at X deliberately.24

It has already been stated above that the act of an accused has to pass through

four stages before a crime is committed. These stages are intention, preparation attempt

and when the attempt is successful the crime is committed. The attempt begins where

preparation for crime ends but the crime is yet to be committed. In this state the culprit

24
R. C. Nigam, Principles of Criminal Law, Vol-I, 1965, p. 73
 18

takes deliberate overt acts or steps to commit the offence. Such overt acts or steps in

order to be criminal need not be the penultimate act towards the commission of the

offence. It is sufficient if such acts were deliberately done, and manifest a clear

intention to commit the offence aimed, being reasonably proximate to the

consummation of the offence.25

1.1 Historical Significance of Criminal Attempt

Plato speaks of “one [who] has a purpose and intention to slay another who is

not his enemy, and whom the law does not permit him to slay, and he wounds him, but

is unable to kill him..‟‟.Such a person “should be regarded as a murderer and be tried

for murder.” 26 The Romans punished attempts to commit ordinary crimes only

occasionally and by a smaller penalty. A distinction between remote and proximate acts

was made: in the former there was greater room for repentance, hence a less severe

penalty was imposed. Westermarck 27 states that among primitive peoples, criminal

attempt is either not punished at all or is “punished less severely than the accomplished

act.” The significant fact is that the perpetrators of criminal attempt were punished as if

they had committed the intended more serious crimes. It may be concluded as in the

early law mens rea is considered as very essential element for criminal attempt.

However mens rea alone is not sufficient. There should be some physical conduct and

harm should be caused. Although early English law lacked specific rules in terms of

criminal attempt, there were many other ways to check criminal conduct, e.g. the
25
State v. Mohd. Yakub, (1980) 3 SCC 57
26
Plato, Laws 876d-877a (Jowett ed. 1892)
27
Westermarck, Origin and Development of the Moral Ideas, 2nd edition, p. 241
 19

system of frankpledge and surety for the peace.28Some other behavior like going armed,

carrying unlawful items, laying in wait, drawing a sword, witchcraft, etc are recognized

as misconduct.

The law of criminal attempt was developed by the court in the latter 1600s, at

which time the rule was that any act manifesting a felonious intent was an offense. The

law was not limited by any notion derived from the word “attempt”. In the sixteenth

century provisions regarding criminal attempts are already included in the most

important Codes: the Carolina in 1532 and the Ordonnance de Blois in 1579. Criminal

attempt is noticeably absent in the early hours of English Law. The old English

conceived the principle that an attempt to do harm is no offence.

The general rule was that there is no punishment for those who have tried to

do harm but have not done it. It was established rule of early English law that intent

alone cannot be punished. There should be some physical conduct and harm should be

caused. Since early English law did not propose to “try the thought of man” and that

even in treason, the notable exception which is there in the Statute of 21 Richard II was

short lived which spoke of “compassing and imagining”. However the Statute of 25

Edward III and its successors, save the above instance, required an overt act on the part

of the accused as evidence of intention.29 However it need not have operated in the

least to effectuate the harm which was intended. It is harm to the king, his family and

28
Pulton, De Regis et Regni, 22 b No 384 1609
29
Hale, P.C. 107 2 (1736)
 20

his business, and what his courts, his law and his army do about it that is involved.

Attempt is criminal in treason; statutes and cases emphasize the exceptional liability.30

Till the 18th century, the English Common Law did not conceive any precise

law relating to criminal attempt. The Star Chamber exercised its arbitrary jurisdiction

and punished with fine or imprisonment any person proved to have participated in the

preliminary arrangements for a duel even if the contest never took place.31 Indeed, it

was not until about the end of the eighteenth century that incitement, conspiracy and

attempt broke off into distinct and separate crimes. 32 The Star Chamber accordingly

proceeded to punish those who took part in the preliminary steps to a duel 33 with

imprisonment or fine.

The contribution of the court of Star Chamber was almost routine and it did

not require inventive idea to provide a new kind of legal control. The Chamber needed

only to recognize that the interest of the general public were of great importance to

merit a protection similar to that which had for centuries shielded the king.

The situations dealt with exhibit of all stages of accomplishment of intended

crimes. Threats, challenges 34 and words “intending to a challenge” were the most

incipient wrongs held punishable. The foremost objective was nip violence in the bud

and does that without hindrance from existing law. Nevertheless, the influence of the

30
Supra note 6, p. 565
31
Holsworth, History of English Law,3rd edition,1945 v. 200
32
Supra note 21, p. 102
33
Hudson, A Treatise on the Court of Star Chamber, Collect, Jurid, ii 5, p. 87
34
Henry Peterche v. John and Abbone Prior (1502) Burn, The Star Chamber 61 (1870)
 21

Chamber decision upon the subsequent common law courts was significant.

Holdsworth35 observed that the doctrine of the court of Star Chamber was so obviously

necessary to any reasonable system of criminal law that it was adopted by the common

law court. But it is also true that a good many years elapsed after its abolition before a

doctrine of criminal attempt was formulated.36

In tracing the early history of preliminary crimes it is not possible to

disentangle the development of incitement from that of attempt. Court gradually

developed the principle that an attempt to commit the offence of dueling was itself a

separate offence. In R. v. Johnson 37 an attorney general was convicted of offering

money to a person to come forward and give evidence to prove that a deed was false. In

a previous civil case it had been contended that this deed was not genuine, but the jury

had nonetheless given a verdict for the plaintiff. Johnson thereupon tried to take the

matter further, but it was not suggested that he had proposed that perjured evidence

should be concocted. His act was an attempt to procure the evidence but the judges did

not go upon any general principle that attempt to commit a crime was itself a crime.

However the court had declared it to be an offence and held that witnesses ought to

come unbiased and not affected with money.

Liability contained in an attempt depends on the nature of particular crime and

the court has to satisfy the existence of physical element coupled with mental element.

35
Supra note 31
36
Supra note 6, p. 569
37
(1678) 2 Show. 1
 22

In R. v. Sutton 38 the prisoner was convicted of having in his possession two iron

stamps with intent to impress the scepters, on sixpences and to colour and pass them off

for half-guineas, the court held:

“Lading wool is lawful, but if it be with an intent to transport it that makes it

an offence; here the intent is the offence and the having in his custody, an act that is the

evidence of that intent.”

The doctrine of attempt originated in England in R. v. Scofield39, a case of

attempted arson where overt behavior was held to be a criminal attempt. In this case the

prisoner was charged in one count of an indictment with placing a lighted candle and

other explosive material in the house of which he was in possession as tenant, with

intent to set fire to the house. On his behalf it was contended before the court that the

calculation was bad, since it was no felony for anyone to burn a house of which he was

in possession and that would be a misdemeanor if the act had been completed; and that

an attempt to commit a misdemeanor was not itself a misdemeanor. Lord Mansfield

said,

“In the degree of guilt there is great difference in the eye of the law, but not in

the description of the offence. It is not punishable by our law; but immediately, when an

act is done, the law judges, not only of the act done, but of the intent with which it is

done; and, if it is coupled with an unlawful and malicious intent, though the act itself

38
(1736) 2 Str. 1074
39
1784 Cald 397
 23

would otherwise have been innocent, the intent being criminal , the act becomes

criminal and punishable.”

It was finally formulated in R. v. Higgins40 which concerned solicitation to

steal certain goods and went further in establishing criminality on a lesser degree of

overt behavior viz. solicitation. These cases provide an important clue to the law of

criminal attempt namely that the standard technique of “assault” plus aggravation, a

species of attempt in common law could not be literally applied to check all kinds of

harm. This suggests that destructive tendencies of provoked nature were to be made

punishable as criminal attempt and this remains the fundamental policy of the law even

today.

The principle enunciated in Higgins was quickly accepted by courts and

commentators, and it was soon considered settled that an attempt to commit either a

felony or a misdemeanor was itself indictable as a crime. This remains the rule in the

United States. In most jurisdictions, the rule is reflected in statutes specifying the

punishment applicable to cases of attempt.

In R v. Taylor41 the accused purchased the matchbox with the intention to set

fire to a haystack. He was arrested before he took the matchbox out of his pocket. It was

clear that he wanted to set fire but the court held that he was not guilty as his conduct

was merely a preparation. It was further observed that he could have been guilty if he

had lit the match and then extinguished it on finding that he was being watched. R. v

40
102 ER 269 (1801)
41
(1859) 1 F& F 511:175 ER 831
 24

Linneker42 is more significant one in the area of criminal attempt. Here A took a loaded

revolver out of his pocket and said repeatedly that he was going to kill B. Before taking

any aim at B he was seized. He was held guilty of attempt. In this case the ultimate act

was pulling off the trigger which he was unable to do. But he has done penultimate and

antepenultimate act. Taking aim at the victim is the penultimate act and taking the

revolver out of the pocket is the antepenultimate act. In this case antepenultimate act is

considered sufficiently proximate to constitute an attempt.

An attempt to commit a crime is an unsuccessful effort to engage in conduct

that is proscribed by criminal law. Attempt to commit both genocide and crimes against

humanity are criminal under international criminal law. The criminality of attempt to

commit genocide was made clear in 1948, in Article III (d) of the United Nations

Convention on the Prevention and Punishment of Crime of Genocide which is known as

Genocide Convention. With respect to war crimes, crimes against humanity, and

genocide, the criminality of attempt can be gleaned from Article 25(3) (f) of the Rome

Statute of the International Criminal Court. It states that liability exists for “attempts to

commit one of these crimes by taking action that commences its execution by means of

a substantial step, but wherein the crime does not occur because of circumstances

independent of the person‟s intention.” It further stated: however a person who

abandons the effort to commit the crime or otherwise prevents the completion of the

crime shall not be liable for punishment… for the attempt to commit that crime if that

person completely and voluntarily gave up the criminal purpose.

42
(1906) 2 KB 99: (1904-07) All ER Rep 797 (CCR)
 25

An attempt to commit genocide is an attempt to engage in conduct prohibited

by Article II of the Genocide Convention. If someone makes an attempt to commit

murder or serious bodily harm, with genocidal intent he must be punished. The

definition of attempt in the Rome Statute is not easy to apply to particular cases. The

International Criminal Court will have to determine exactly when a person has

commenced to execute a particular international crime by means of substantial step. A

person may avoid liability if he or she abandons the attempt and „completely and

voluntarily gives up the criminal purpose‟ he or she harbored.

The offence of attempt at common law was put into legislative form, with

some amendments, by the Criminal Attempt Act. The Criminal Attempt Act, 1981 Act

is a codifying statute. It amends and sets out completely the law relating to attempt and

conspiracies.

The law of criminal attempt are noticeably absent in ancient Hindu Law. Thus,

in Vedic period and Sruti period, no sketch of attempt is found. The law of this period

has a general rule no punishment for those who tried to do harm but have not done it.

The law provided for criminal sanctions only in compensation of the damage done and

in absence of damage there could be no sanction. Thus an attempt which generally

produced no damage was not considered as crime. The crime was punished only when it

consummated the complete offence but not if he failed to commit it.

The Smriti writers were conversant with the complexities of the urge of human

conduct and had some idea of attempt. Though the law of attempt today is not exactly
 26

what are originally had been several centuries ago yet the view of Vishnu.43 Narada lays

down that if the king had done something wrong to a person he will not be punishable

by anyone. If somebody attempts to harm or strikes the king, then the offender should

be feeded to a snake and roasted in the fire till dead.44

In the Ancient Hindu Law an attempt on the life of the King or even deposing

him from the throne was considered as a severe offence and capital punishment was

provided for that. Katayayana says that no guilt is committed by person, who is ready to

kill another, but after, he desists from his attempt to kill, he should be confined and not

killed. But if the criminal desists from his attempt then lesser punishment may be

awarded to him than the completecrime. The view of Katayayana on the abandonment

of the crime is very akin to modern view of abandonment of attempt in many

jurisdiction of the world.45

1.2 Criminal Attempt under the Indian Penal Code, 1860

The draft Code in India did not contain any general provision criminalizing

attempt to commit an offence, but there are several provisions in the draft code which

criminalized specific attempted offences. For example, Clause 109 relating to

attempting to wage war against the government, Clause 138 deals with attempting to

obtain gratification, Clause 340 deals with attempting to use force to commit an

43
Vishnu, v. 191 quoted in the Juristic Concept of Ancient Indian Polity by Nagendra Singh at 101,
(1929)
44
ibid
45
Smriti of Katayana, p. 806, quoted in the Juristic Concept of Ancient Indian Polity by Nagendra Singh
at 155(1929)
 27

offence, Clause 378 relating to attempting to commit robbery and Clause 397 relating to

attempting to cheat by personating. There was no general provision for attempt to

commit offences as the concept was not resolutely entrenched until R. v. Eagleton46

which was after the draft code was submitted to the Governor General of India in 1837.

The provisions on attempted murder and attempted voluntary culpable

homicide in particular are significant because they are comprehensive in every state of

covering the situations in which such attempts are criminalized. They are read as

follows

Clause 308 : whoever does any act, or omits what he is legally bound to do,

with such intention or knowledge and under such circumstances that if he by that act or

omission cause death he would be guilty of murder, and carries that act or omission to

such a length as at the time of carrying it to that length he contemplates as sufficient to

cause death, shall be punished with transportation for life, or with rigorous

imprisonment for a term which may extend to life, and must not be less than seven

years and shall also be liable to fine.

Illustrations

a) A, intending to murder Z by means of a spring gun, purchase such gun. A has not

yet committed the offence defined in the Clause. A sets the gun loaded in Z‟s path,

and leaves it there. A has committed the offence defined in this Clause.

46
(1855) Dears 515, 169 ER 826
 28

b) A, intending to murder Z by poison, purchases poison, and mixes the same with

food which remains in A‟s keeping. A has not yet committed the offence defined in

this clause. A placed the food on Z‟s table, or delivers it to Z‟s servants to place it

on Z‟s table. A has committed the offence defined in the Clause.

Clause 309: Whoever does any act, or omits what he is legally bound to do,

with such intention or knowledge and under such circumstances that if he, by that act or

omission, cause death he would be guilty of voluntary culpable homicide, and carries

that act or omission to such a length as at the time of carrying it to that length he

contemplates as sufficient to cause death, shall be punished with imprisonment of either

description for a term which may extend to three years, or with fine, or both.

Illustrations

a) A, on grave and sudden provocation, fires a pistol at Z, under such circumstances

that if he thereby causes death he would be guilty of manslaughter. A has committed

the offence defined in the clause.

b) A, lights a pile prepared for Suttee, under such circumstances that if he there by

caused death he would be guilty of voluntary culpable homicide by consent. A has

committed the offence defined in this Clause.

c) A pursues a thief, and fires at him, under such circumstances that if killed the thief he

would commit voluntary culpable homicide in defense. A has committed the offence

in this Clause.
 29

When the Indian Penal Code, 1860 was finally enacted, a general provision

was added in the form of Section 511 and the provision on attempted murder and

attempted culpable homicide were not deleted but amended and enacted alongside this

general provision.

The Indian Penal Code, 1860 deals with attempt in three different ways:

1. In some cases the commission of an offence and the attempt to commit it are dealt

with in the same section and the extent of punishment is also the same for both.

Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131,

152, 153A, 161, 162, 163, 165, 196, 198, 200, 213, 239,240, 241, 251, 385, 387, 389,

391, 394, 395, 397, 459 and 460.

2. In some cases attempts are treated as separate offences and are punished

accordingly. There are four grave offences, attempts are described separately but

side by side with the offences and specific punishment is prescribed for them. These

are:

a) Murder is defined under Section 300; penal provision is there in Section 302 of

Indian Penal Code, 1860 and attempt to murder under Section 307.

b) Culpable homicide not amounting to murder is punishable under Section 304 and

attempt to commit culpable homicide is under Section 308,

c) Attempt to commit suicide punishable under Section 309. However section 309

stands as a class by itself as the completed offence here is not punished as it cannot

be punished. This is a very controversial area and the constitutional validity of Sec.
 30

309 was upheld by the Hon‟ble Supreme court in Gian Kaur v. State of Punjab.47

But controversy is going on.

d) Section 392 provides punishment for robbery and attempt to commit robbery s

punishable under Section 393 and if armed with deadly weapons, then it is

punishable under Section 397 of IPC.

e) Dacoity with murder is punishable under Section 396 and dacoity with an attempt to

cause death is punishable under Section 397. Voluntarily causing hurt in committing

robbery is punishable under Section 394 and attempt to cause grievous hurt in

committing robbery is punishable under Section 397.

3. Provision has been made in Section. 511 in respect of those offences which are not

covered by the above two categories i.e. which are not otherwise provided for in the

Indian Penal Code.

The Indian Penal code has not defined the word „attempt‟. Therefore it must

be taken in its ordinary meaning. This is exactly what the provision of Sec. 511

requires. Sec. 511 is the solitary provision included in the last Chapter of the Indian

Penal Code, 1860, under the title “of Attempt to Commit Offences”. It makes attempt to

commit a crime a punishable offence. This section provides for punishment for

attempting to commit offences punishable with imprisonment for life or other

imprisonment. It says that:

47
(1996) 2SCC 648: 1996 SCC (Cri)374: AIR 1996SC946
 31

“Whoever attempts to commit an offence punishable by the 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

the Code has not made any express provision to punish such attempt, be punished with

imprisonment of any description provided for the offence, for a term extending up 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.”

The section contemplates that the offender must attempt to commit such an

offence which is punishable by the Code either with imprisonment for life or with

imprisonment. This means that the section is not applicable to cases of attempt of any

such offence which is not punishable with imprisonment, such as, for instance, an

offence which is punishable with fine only. In such attempt he must do any act towards

the commission of the offence. One-half of imprisonment for life which the section

provides as one of the punishments would, by virtue of section 57, be one-half of

imprisonment for twenty years, that is to say, ten years. This is a general provision

dealing with attempts to commit offences. It applies to attempt to commit offences

punishable under the Indian Penal Code only.

Attempt to commit offences under any special or local law would not fall

under Section 511 of the Indian Penal Code, 1860 .This section would apply to offences

punishable with imprisonment for life or with imprisonment. The Section does not
 32

apply to cases of attempts made punishable by express provisions of the Code. The

attempt specially provided for are:

 Section 121, attempt to wage war against the Government of India.

 Section 124, attempt wrongfully to restrain the President and other high officials with

intent to induce or compel them to exercise or refrain from exercising any of their

lawful powers.

 Section 125, attempt to wage war against the Government of an Asiatic Power in

alliance or at peace with the Government of India.

 Section 130, attempt to rescue State prisoners or prisoners of war.

 Section 153 A attempts to promote feelings of enmity, etc.

 Section 161, attempt by a public servant to obtain an illegal gratification.

 Section 162, attempt by a public servant to obtain a gratification in order by corrupt

or illegal means to influence a public servant.

 Section 163, attempt to obtain a gratification for exercising personal influence over a

public servant.

 Section 165, attempt by public servant to obtain a valuable thing without

consideration from a person concerned in proceeding or business transacted by the

public servant.

 Section 196, attempt to use as true, evidence known to be false.

 33

 Sections 198 and 200, attempt to use as true, a certificate or declaration known to be

false in a material point.

 Section 213, attempt to obtain a gratification to screen an offender from punishment.

 Section 239 and 240, attempt to induce a person to receive a counterfeit coin.

 Section 241, attempt to induce a person to receive as genuine a counterfeit coin

which, when the offender took it into his possession, he did not know to be

counterfeit.

 Section 307 and 308, attempt to commit murder and culpable homicide.

 Section 309, attempt to commit suicide.

 Section 385, 387 and 389. Attempt to put a person in fear of injury or accusation in

order to commit extortion.

 Section 391, conjoint attempt of five or more persons to commit a dacoity.

 Section 393, 394 and 398, attempt to commit robbery.

 Section 460, attempt by one of many joint house-breakers by night to cause death or

grievous hurt.

There are exceptional cases wherein the contemplated offence may be so grave

that it would be of the utmost importance to stop it at initial stage and punish it at the

preparatory stage itself. These are preparations thereto:-

1) Collecting arms, etc, with the intention of waging war against the Government of

India (Section 122, Indian Penal Code, 1860);

 34

2) Committing depredation on territories of power or at peace with the Government of

India (Section 126, IPC);

3) Making or selling or being in possession of instrument for counterfeiting coin or

Government stamps (Section 223-235and 257,IPC);

4) Possession of counterfeit coin, Government Stamp, False weight, or measure (section

242, 243, 259 and 266, IPC); and

5) Making preparation to commit dacoity (Section 399, IPC).

6) Making or possessing counterfeit seals etc., and possessing forged record of court,

public register, valuable security or will etc., and possessing counterfeiting marked

material etc. (Sections 472, 473, 474, 475 and 476 Indian Penal Code)

7) Making or possessing instrument for counterfeiting a property mark, and selling or

possessing goods with counterfeit property mark. (ss. 485 and 486 Indian Penal

Code)

8) Possessing forged or counterfeit currency-notes or bank-notes, or making or

possessing instruments or material for forging or counterfeiting currency-notes or

bank-notes (ss. 489-C and 489-D Indian Penal Code).

An attempt is made punishable, because every attempt although it fails shorts

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 the punishment. As the injury is not as great as if the act had been
 35

committed only half the punishment is awarded.48 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 moment he commences to do an act with the necessary

intention he commences his attempt to commit the offence.

To constitute an attempt the following elements are necessary –

(i) mens rea or the subjective element to commit the offence,

(ii) An act which constitute the objective element or actus reus of a criminal attempt to

commit crime,

(iii) Failure in accomplishment i.e. the act must fall short of completion of the intended

crime.

Section 511 of the Indian Penal Code has used the expression “an attempt to

commit an offence”. It assumes the existence of an attempt to commit an offence and

thereupon seeks to impose punishment on the offender.49

Ingredients of Section 511:

a) There must be an attempt to commit an offence.

b) Such offence must be punishable under the Indian Penal Code,1860,

c) Such offence must be punishable with imprisonment; and

48
Aman Kumar v. State of Haryana, 2004 Cr. LJ. 1399
49
Ratanlal and Dhirajlal Law of Crimes, A Commentary on the Indian Penal Code, 1860, Revised by
Justice C.K. Thakker and M. C. Thakker,26th edition, vol. 2, 2007, Reprint 2009, p. 2887.
 36

d) The accused, in such attempt, must have done an act towards the commission of an

offence.

The fifth Law Commission of India expressed its dissatisfaction about the

manner in which the law of attempt, in general, and Section 511, in particular, is

sketched and made operative in India. Terminology of Section 511, according to it, is

most mystifying. It is not only of “little assistance” in defining “attempt” but, contrary

to legislative intent, also suggests that each act, in series of acts done by an accused

“towards the commission of the offence”, is punishable as an attempt. Such an

interpretation obliterates the inbuilt distinction between “preparation” and “attempt”.

So, The Law Commission, after making an enriching survey of prevailing definition of

attempt, proposed some structural as well as substantive changes50. It proposed deletion

of Section 511 and insertion of a new Chapter VB entitled “Of Attempt” consisting of

the two Sections 120C and 120D after Chapter VA dealing with “Criminal Conspiracy”.

It is an effort to group inchoate crimes together. The proposed Section 120C gives a

comprehensive definition of Criminal Attempt. It reads as:

120C. Definition of Attempt – A person attempts to commit an offence

punishable by this Code, when –

a) he, with the intention or knowledge requisite for committing it does any act

towards its commission;

b) the act so done is closely connected with, and proximate to, the commission of the

offence; and
50
Supra note 1,p. 274
 37

c) the act fails in its object because of facts not known to him or because of

circumstances beyond his control.

Illustrations

a) A, intending to murder Z, buys a gun and loads it. A is not yet guilty of an attempt

to commit murder. A fires the gun at Z, he is guilty of an attempt to commit

murder.

b) A, intending to murder Z by poison, purchase poison and mixes the same which

food which remains in A‟s keeping; A is not yet guilty of an attempt to commit

murder. A placed the food on Z‟s table, or delivers it to Z‟s servant to place it on

Z‟s table. A is guilty of an attempt to commit murder.

c) A, with intent to steal another person‟s box, while travelling in a train, takes a box

and gets down. He finds the box to be his own. As he has not done any act towards

the commission of the offence intended by him, he is not guilty of an attempt to

commit theft.

d) A, with intent to steal jewels, breaks open Z‟s box, and finds that there is no jewel

in it. As his act failed in its object because of facts not known to him, he is guilty

of an attempt to commit theft.

120D. Punishment for Attempt – Whoever is guilty of an attempt to commit an

offence punishable by this Code with imprisonment for life, or with imprisonment for a

specific term, 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
 38

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 the offence, or

with such fine as is provided for the offence, or with both51.

The Indian Penal Code (Amendment) Bill 1978, (Clause 45) incorporated with

minor modifications, the recommended Sections 120C and 120D. These proposals for

reform did not materialize as the Bill lapsed due the dissolution of the Lok Sabha in

1980. Thereafter no fresh legislative initiatives are taken to receive the proposals for

reform.

The Fourteenth Law Commission52perceiving the difficulty in formulating a

satisfactory and exhaustive definition that lays down a criterion for deciding as to where

preparation to commit an offence ends and where attempt to commit that offence begins

and believing that mere proximity in time or place does not draw a definite line between

preparation and attempt, recommended that there is no need to either delete Section 511

from, or to insert proposed Sections 120C and 120D in, the Indian Penal Code, 1860.53

1.3 Literature Review

The book General Principles of Criminal Law by Jerome Hall is the authority

on criminal attempt. In this book Hall has highlighted the reasons for introduction of

attempt as a punishable offence. Various principles including principle of legality is

51
Law Commission of India, “Forty Second Report: the Indian Penal Code”, Government of India,
1971, para 5.54.
52
Law Commission of India, “ One Hundred and Fifty-Sixth Report: The Indian Penal Code”,
Government of India, 1997, paras 6.13- 6.15
53
Ibid, para 6.16
 39

discussed and analyzed in a systematic way. Chapter XV of this book is on criminal

attempt, where Hall discussed the history of criminal attempt. Historical significance of

criminal attempt is analyzed with the help of decided cases. Various theories and rules

have been discussed which helps the Researcher to know about the law of criminal

attempt in real perspectives.

The book Law of Crimes in India: Principles of Criminal Law by R. C. Nigam

is the authoritative book on Criminal Jurisprudence. The notions regarding crime and

the concepts, principles of criminal law, inchoate crimes have been discussed. Various

theories relating to criminal attempt is being analyzed in this book.

Russell on Crime by J. W. Cecil Turner is the authoritative book on criminal

law. In this book criminal attempt is discussed in Chapter VI under the heading of

Preliminary Crimes. In history part regarding criminal attempt he cited various

important case laws with comments which helps the researcher. Historical development

has great importance in law. So, researcher has taken some guidelines from the book.

The writer put adequate emphasis on the field of impossible attempt which is the

problematic area of criminal attempt. Abandonment is another problematic area of

criminal attempt. But the book is almost silent in this regard. However so far as other

aspects of criminal attempt is concerned there has been discussed in a precise way and

the Researcher has taken help from this book.

The Fundamental of Criminal Law by Paul H. Robinson is very significant

where the legality principles are discussed elaborately. The principle of legality is the

gist of Criminal Jurisprudence. Criminal attempt is discussed under the heading of

 40

„Inchoate Offence‟ where various case laws are analyzed in the light of specific

provisions for criminal attempt under Model Penal Code of USA. Substantial step,

abandonment and impossible attempts are analyzed with the help of judicial

pronouncement. The measure of proximity and character of dangerousness are

discussed and analyzed.

The book PSA Pillai’s Criminal Law by K. I. Vibhute offers an in-depth

analysis of all the specific offences contained in the Indian Penal Code, 1860. The aim

of the author is to produce an analytical version of the Substantial Penal law of India.

He has made a systematic study of constituent elements of crime in Chapter IV of the

book. The significance of the elements of crime is being discussed in detailed. The

required elements of crime are being discussed in detail. All these aspects are discussed

in a precise manner. This is preliminarily concerned with the substantive offence

incorporated in the Indian Penal Code including criminal attempt. Criminal attempt is

discussed broadly in Chapter XVI of this book. In this Chapter the author has discussed

significance of the stages of crime. This book, thus, has been helpful to the Researcher

to know about criminal attempt in its real perspective.

Ratanlal and Dhirjlal‟s Law of Crimes, a commentary on the Indian Penal

Code, 1860 by Justice C. K. Thakker and M. C. Thakker. In this book adequate

emphasis has been given in the law of criminal attempt. Comments have been advanced

on the specific provision under the Indian Penal Code, 1860 relating to criminal attempt

i.e. Section 511. In this book a remarkable contribution has been made by the writers

particularly on the law of criminal attempt.

 41

Kenny’s Outline of Criminal Law by J. W. Cecil Turner is the authoritative

book on English Criminal Jurisprudence. In this book preliminary crimes are discussed

in detailed. A criticism has been advanced regarding nomenclature of criminal attempt

as “inchoate offence”. This has been observed as misleading as the word “inchoate”

connotes something which is not yet completed. From this it can be informed that

criminal attempt is equivalent with complete offence so far as the gravity of the offence

is concerned.

The author has advanced the view regarding the impossible attempt. The

Researcher gets a better idea about impossible attempt from this book, however that is

not adequate enough. Because there is no rigid formula for determination what are the

difference between impossibility and absolute impossibility. Where he himself observed

that there is no true test for attempt. Elements of liability in attempt are discussed

precisely.

The Researcher is agreed with the proposition advanced by the author in his

book. It is observed that the criminality of attempt lies in the intention, the mens rea

must be evidenced by what accused has actually done towards the attainment of his

ultimate objective. The book has been consulted for having a deeper insight about the

conceptual structure of Criminal Jurisprudence.

The Criminal Law by J. C. Smith and Brian Hogan is significant to the

Researcher mainly for the concept of crime, various types of mental elements of crime

and elements in criminal attempt. This is a very good contribution in the field of the law

of criminal attempt. However some areas of criminal attempt such as character of

 42

dangerousness, reasonable and actual man criteria are untouched which needs detailed

analysis. But types of mens rea more particularly recklessness and negligence have

been discussed in detail in the light of significant cases.

Essays on the Indian Penal Code by K. N. Chandrasekharan Pillai, is a

commentary on the Indian Penal Code, 1860. Hence the writer has expressed the view

that the law of criminal attempt should also undergo in the pattern of English Criminal

Attempts Act, 1981. Further he observed that instead of having the present uncertainties

to continue we may enact that if a person had the intention to commit the crime and

acted towards its commission irrespective of the extent of this act or the possibility of

commission of act, he should be punishable for attempt.

A remarkable contribution has been made by Hari Singh Gour in his book

Penal Law of India. An analysis in being made by the writer on criminal attempt and it

is a commentary of Indian Penal Code, 1860.

The Text book of Criminal Law by Glanville Williams is a significant

contribution in the field of criminal law. Chapter XVII of this book deals with criminal

attempt. He has made analytical study of criminal attempt. The range of the law of

criminal attempt is discussed with a true perspective. Glanville Williams has given

more emphasis on objectivity of criminal attempt. In Chapter V a detailed analysis is

being made on recklessness. Regarding criminal attempt various case laws have been

discussed where detailed and systematic analysis is being made to get a clear picture on

criminal attempt.
 43

1.4 Purpose of the study

Criminal wrongs are basically the creation of the criminal policy adopted from

time to time by those sections of the community who are powerful or astute enough.

There is no satisfactory definition of the term crime. It has a protean face which changes

with the needs of the changing society. It simply means something more than a mere

disobedience of law.

The fundamental principle of criminal law is nullum crimen sine lege, nulla

poena sine lege, which means that there must be no crime or punishment except in

accordance with fixed predetermined law. This is popularly known as principle of

legality which provides protection to accused. The first significant rule of principle of

legality is that no person shall be punished except for violation of law prevalent at the

time of commission of the offence. The Constitution of India has conceived the idea of

the Principles of Legality. 54 From the Principles of Legality, it can be deduced that

penal statute must be strictly construed against the state and in favour of the accused.

Since all penal laws affect the liberty of the subject, they have to be strictly construed. 55

There should also be certainty of legislation.

The penal law should be sufficiently definite for those to be affected by it that

they may know their duty there under, so that persons of ordinary prudence may be able

to understand the provisions of it. If the law is certain, definite and precise the

54
Article 20 (1) of the Constitution of India.
55
Juggo Mohan Bakshee v. Ray Mathooranath, 7 W. R. (P.C.) 18
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individual can regulate their conduct and activities in order to avoid the risk of failing

within the grips of its penal provisions.

Indian Penal Code, 1860 is a precise, uniform and a Code with certainty

where anybody having ordinary prudence may understand its provisions. However

some provisions are there in the Code which needs more study and elaboration for

proper understanding. Main problematic area is law of criminal attempt. Since early age

the law of criminal attempt has created much confusion. If it is said that someone is

trying to commit a crime then he has to go through four stages.

These four stages are:

a) Intention

b) Preparation

c) Attempt

d) Accomplishment or commission of crime.

The jurisprudence of today knows that no crime can be committed without a

guilty mind which is known as mens rea. But this stage is not punishable. Second and

third stage is more problematic one. Preparation is generally not punishable but attempt

is punishable. There is no demarcation line between these two. On occasions more than

one, courts in India have stressed that there is a thin line between the preparation for,

and an attempt to commit, an offence. It is also difficult to distinguish between the two.

It is, however debatable as to when preparation has ended and the actual attempt has

begun.
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Court has innovated certain guidelines to differentiate between preparation and

attempt. But it is not at all easy to suggest rules or guidelines which may conclusively

help in deciding whether an act amounts to attempt or not. Therefore, it will be

necessary to make an analytical study of the law relating to attempt. Again, it is very

intriguing that sometimes objective considerations overpower subjective one for

analyzing criminal attempt whereas at other times it is the reverse. At still other time

both are found to be complementary to each other. But sometimes both fail when the

principle of legality comes in to the picture prominently.

Impossibility is one of the most problematic areas in criminal attempt. It is a

defense for criminal attempt. The rules attach penal liability to “factual impossibility”

but exculpate where attempt failed because of “legal impossibility”. The reason behind

exculpation of legal impossibility is that the behaviors are not criminal and the mistake

about criminal law on the part of the accused does not make him liable. Legal

impossibility is a sound expression of the principle of legality. The gist of the legality

principle is that unless the intended end is a legally proscribed harm, liability should not

be attached. But in case of factual impossibility liability is attached where the intended

end is a legally proscribed harm. However, principle of legality poses a serious

problem in cases like receiving stolen property which also requires new insight for

solving of such types of problem.

Abandonment is also a defense of criminal attempt. A person who is trying to do

an offence may give up his evil idea at any time before its completion. But it is

important that when he abandons his idea, how much he was near to the offence and
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why he has abandoned it? May be he has abandoned his idea due to fear of punishment

or he may think in between that it is not possible for him to do it. There are so many

probabilities, which also require in-depth study and analysis.

Thus, the criteria of „impossibility‟ and „abandonment‟ are two fertile grounds

which require in-depth study and analysis for pragmatic innovation.

It is also endeavored to study the subjective and objective consideration of

attempt while dealing with the subject of criminal attempt. It is also to be seen whether

factuality of the criterion of attempt described in Indian Penal Code, 1860, is working

satisfactorily or not and to offer suggestions, if any, for a proper approach to attempt.

It is in these above contexts that the study has been undertaken to investigate

the various aspects of law relating to criminal attempt.

1.5 Research Methodology

Methodology is a pre-requisite in any scientific inquiry. Different methods are

applied in different research work. Research Methodology is a systematized

investigation to gain new knowledge about the phenomena or problems in question. In

its wider sense, methodology includes the philosophy and practice of the whole research

process. It provides the standards which the researchers use for integrating data and

reaching conclusion. The nature of legal issues and the subject matter of law are

radically different in many respects from some other fields of study. Therefore, the

content of the propositions and explanations may also differ.

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The methodology of legal studies involves their own rules, interpretations and

criterion for admissible explanations as well as research design, data process routine. In

most of the legal investigations, qualitative data has to be analyzed. One needs to seek

access to adequate data for one‟s investigation, and analyze the same on the basis of the

study of related literature. In the present work, the research methodology consists of

doctrinal study which requires in depth study of various text books, and reported cases

to find out various fact-situations of the subject and the researcher judiciously analyses

the available data by studying the related literature.

In the present work of study relevant statistics and data from different sources

are being collected for final analysis and result. The sources include different statutes

and judicial precedents. Materials are also collected from sources such as published

works, compilations, journals, and magazines besides, law reports like All India

Reporter, Supreme Court Cases and Periodicals.

For the purpose of collection of data researcher visited library of Indian Law

Institute, New Delhi, library of the Secretariat, Govt. of Assam. Library of Assam

Public Service Commission, library of Dibrugarh University, library of Gauhati

University, library of Gauhati High Court etc. The additional sources include authentic

books, relevant publications, articles and features. Materials from past research work in

the related field are utilized whenever found relevant.

In this study no hypothesis is formed to be proved or disproved as it has not

been felt necessary.

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It is now considered in the next chapter as to how the criminal attempt is

significantly associated with the mental element as separate and distinct species.