The concept of criminal attempt is more complex and difficult to understand than any other branch of criminal law. Professor Jerome Hall finds the principal reason for it in the neglect of its history. However, in any event, it is found that provisions regarding criminal attempts were included in most of the important codes in the 16th century. In the old English law, the notion of criminal attempt had started from the principles that an attempt to harm is not an offence. In ancient law, there has a general rule that nobody could punish those who tried to cause harm but have not done it. Westermarck also states that among primitive people peoples, the criminal attempt is either not punished at all or is ‘punished’ less severely than the accomplished act. According to Professor Sayre, the opinion expressed by Lord Mansfield in the case of R. v. Scofield is said to be the origin of the doctrine of criminal attempt. Professor Jerome Hall states that the doctrine of criminal attempt was no doubt “in the air”, since the first quarter of the 18th century but it was not formulated in the common law courts until 1801 when the case of R. v. Higgins was decided. From the point of view of the development of the doctrine of criminal attempt, the significant facts are those in the case of R. v. Scofield, which concerns attempted arson and R. v. Higgins, which concerns the solicitation to steal certain goods. these cases’ situation provides the necessity for the development of the law of criminal attempt.
Concept & Its Nature:
For the commission of an offence, the four stages are: Intention, Preparation, Attempt & Accomplishment. The third stage “Attempt” marks a distinct place in the development of criminality and is punishable everywhere. The word Attempt implies an effort to bring about the desired result. In the year 1985 Jervis C.J., said in the case of R. v. Roberis about the difficulties he found while attempting to define attempt:
“It may be extreme and outlandish to lay down a rule which is obvious and unequivocal for defining what is and what is not such an act done in furtherance of criminal intent, as will constitute an offence. At all event, I shall not attempt to do so”.
Chinnappa Reddy, J. observed in the case of State of Maharashtra v. Mohd. Yakub that doing an attempt towards defining ‘attempt’ is a frustrating exercise.
Stephen defines ‘attempt’ in his “Digest of the Criminal Law’ as;
“An attempt closer to the commission of the crime and with intention towards the commission of that crime and forming part of the series of the act, which would constitute its actual commission if it were not interrupted. The point cannot be defined on the beginning of such a series of the act, but depends upon the circumstances of each particular case”.
Professor Turner brings the modified definition of ‘attempt’ as follows:
“It is, therefore, suggested that a practical test for actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves indicate what was the end towards which they were directed. In other words, the steps taken towards the commission of a crime must themselves be sufficient to show the prima facie intention of the offender. That there may be plentiful other evidence towards establishing his mens rea (such as a confession) will become irrelevant question regarding whether he had done enough towards constituting the actus reus.
In India, while attempts to commit certain specified offences have themselves been made a specific offence, an attempt to commit an offence is dealt with under section 511, in the Indian Penal Code. But, the ‘attempt’ is not defined anywhere in the IPC.
Attempt an inchoate crime:
For constituting a crime two elements are always necessary they are, Mens rea & Actus reus. Only the existence of mens rea doesn’t establish a crime and so, also the existence of a mere evil intent accompanied by any overt act i.e., actus reus is not punishable. Liability only begins at a stage when the offender not only shows his mens rea but also accompanied by any overt act i.e., actus reus. These are known as Inchoate crime. Abetment, Attempt and Criminal Conspiracy are the three classes of inchoate crime.
The distinction between Preparation and Attempt:
The Supreme Court of India, in the case of Malkiat Singh v. The State of Punjab, held that preparations consist of devising or arranging the means or measures necessary for the commission of the offence. On the other side, an attempt for the commission of an offence is a direct movement towards the commission of a crime after preparations are made. Sir James Stephen observes that the point at which such a series of action begins, cannot be defined but depends upon the circumstances of each particular case. As to when a ‘preparation’ ends and ‘attempt’ begins, is a difficult problem to solve. It will, however, much depend on the circumstances and facts of the case. Nevertheless, different approaches have been made to lay down a uniform test of general applicability to determine the dividing line between preparation and attempt. These are:
Professor Glanville William has enunciated this rule as under:
“It seems that the act of the accused is necessarily proximate, if, though, it’s not the last act that he intended to try to do, it’s the last that it is legally necessary for him to do, if the result desired by him is, afterwards, brought about without further conduct on his part.”
e.g., an act of attempt must be adequately proximate towards the commission of the crime. It should not be directly moving towards the commission of an offence. It must contribute an anti-penultimate act, and that the act is done should place the accused into relation with his intended victim.
Glanville Williams has formulated certain principles regarding the proximity rule which are worthwhile to mention here.
The requirement of proximity refers to the sequence of events leading to the crime that the accused had it in mind to commit. To be guilty of an attempt, the accused must have progressed a sufficient distance along the intended path.
The act of the accused is necessarily proximate if, though it is not the last act that he intended to do, it is the last that it would have been legally necessary for him to do if the result desired by him had been afterwards brought about without farther conduct on his part.
An act is proximate if it is the first of a series of similar acts intended to result cumulatively from the crime. Thus, one who intends to kill another by slow poisoning is guilty of attempted murder as soon as he administers or attempts to administer the first dose.
The difficulty in determining proximity arises in the ordinary case, where the accused has not reached the last of an intended train of acts.
It is submitted that in applying the ‘proximity rule’ courts should be careful to judge the act which reveals an intention and that act must be indicative or suggestive of the intention.
Doctrine of Locus Penitentiate
Whether there has been an attempt or not is to be determined in considerations of the doctrine of locus penitentiate. In re Bavaji alias Abdul Mohammad, Madras High Court has held that the dividing lines between mere preparation and an attempt to commit a crime, maybe rather thin in some cases and the question, whether, there has been an attempt or only a preparation to commit is to be decided on the facts of each particular case. One important consideration in such a case is, whether there was a locus penitentiate.
The Equivocality Theory Of Proximity
This theory suggests that an act is proximate, if, it indicates beyond a reasonable doubt, what is the end towards which it is directed. According to Mr. J.W.C. Turner, who is the principal exponent of this theory, the actus reus of an attempt to commit a crime is constituted, when the accused person does an act, which is leading towards the commission of that specific crime and the doing of such actions cannot reasonably be regarded as having any other purpose than the commission of the specific crime. In other words, acts must speak for themselves and must be unequivocally referrable towards the commission of the crime. Professor William is, however, of the opinion that a strict application of the test would acquit many undoubted criminals. The submission of professor William is that the theory is of no help on the issue of proximity. It is submitted that the submission of Professor William is correct.
The Social Danger Test
The reality of the crime attempted is one of the criteria in choosing the risk in cases of attempt. If the facts and circumstances of a case leas to the reference that the resultant consequences would have been grave had the crime of attempt been complete. In part, it is the apprehension of social danger, which the particular crime is calculated to excite, that determine liability for an attempt.
The social danger test is very similar to the proximity rule with the difference that here the consequences of circumstances and the seriousness thereof are concluded from the totality of facts, whereas in the latter case a mere part of the action if it is a final link in the chain of penultimate acts, makes a person liable of criminal attempt.
In cases of ‘attempt’, the main difficulty arises in stretching a dividing line between the ‘preparation and ‘attempt’. It is suggested and submitted that it is still to be examined, whether any one or more of the above tests can serve as a useful guideline in determining the preparation—attempt differentiations—problem. Although in its practical use, it is difficult to demarcate between ‘preparation’ and ‘attempt’ but it is not impossible. The facts and the relevant circumstances involved in each case, the behaviour and conduct of the criminal are to be examined to ascertain the stage of the ‘attempt’ to the real commission of the offence. The nearness of the danger, the seriousness of the harm and the degree of the apprehension felt are the relevant issues that may be kept in view while demarcating the ‘preparation’ and ‘attempt’. The difference between ‘preparation’ and ‘attempt’ may be clear in some cases but its dividing line is very thin. Nonetheless, it is a real difference. The vital test is, whether the final act if continuous and successful, would constitute a crime.
Criminal Attempt under the Indian Penal Code:
In the Indian Penal Code,1860 the law of ‘attempt’ has been dealt with in two ways:
The Specific Provision:
The specific provision has been dealt with in two ways:
Commission of offence and committing of attempt at the same time:
These are dealt with in sections 121, 124 of IPC.
About the attempts for committing certain specific offences:
In such cases, attempts for committing certain specific offences are dealt with side by side with the offences themselves but separately, and separate punishments are provided for the attempt from those of the offences attempted. For example, sections 307, 308, 309 and 393.
The general Provision:
This provision has been laid down and incorporated in section 511 of the IPC. This section provides for the punishment for attempting to commit offences. In this way, this section contains the general principles relating to criminal attempt.
Since the ‘attempt’ is a part of the offence itself, and the whole of necessity includes every part, it follows that one successful attempt can not possible support two convictions, one for the ‘part’ that is an attempt and the other for the ‘whole’ that is an offence. It is, therefore, submitted that the ‘attempt’ must not be successful, if an attempt succeeds, it will not be punished as an ‘attempt’, but as a substantive offence.
A careful perusal of the above discussions would reveal that:
A criminal attempt is a step towards a punishable offence. In the investigation of criminal attempt, the things which are to be considered are, what was the intended result, and what has the accused done as a step to bring about that result?
An attempt is only criminal when there is at least, some apparent adaptation of means to result, for example, if a statute simply made it an offence to attempt to kill any human being, or to conspire to do so, an attempt through witchcraft, or a conspiracy through charms and incantations would not be an offence, within such statute, the poverty of language compels one to say ‘an attempt to kill by way of witchcraft’, but such an attempt is no attempt at all to kill. The sin or wickedness may indeed as great as an attempt or conspiracy by competent means, but human laws are made, for the prevention of the crime not and only for punishing the sin.
The act must be within a dangerous proximity zone to succeed. Proximity is a question of degree and it is to be determined in each case considering particular circumstances.
The ‘Attempt’ must not be successful. If an ‘attempt’ succeeds, it will not be punished as an attempt, but as a substantive offence.
Criminal Law & Criminology edited by K.D. Gaur (Deep & Deep Publications Pvt. Ltd.)
Indian Penal Code by Prof. S.N. Mishra (Central Law Publications, Allahabad)
A textbook on The Indian Penal Code by K.D. Gaur (Universal Law Publishing Co. Pvt. Ltd.)
Dr.Shakuntala Misra National Rehabilitation University, Lucknow