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.
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this Section.
(b) A makes attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this Section.
There are four stages to complete an offence. They are:—
1. Intention to commit the offence;
2. Preparation to commit the offence.
3. Attempt to commit the offence; and
4. Completed offence
(i) Intention to Commit Offence:
Intention of a person is in his own mind. A man cannot be punished for having destructive and criminal thoughts, howsoever they may be criminal. Intention is the result of working of the brain.
The intention of a person can be gathered from the words used or the acts done by that person. Every sane person of the age of discretion is presumed to intend the natural, rational and probable consequences of his own acts.
In criminal law, it is the general principle of “mens rea” (ill intention), i.e., to involve guilty, the accused must have done or omitted some thing contrary to law, with intention also contrary to law. The mere existence of the intention without commission of the act or the commission of the act without the intent, does not, as a general rule, constitute crime.
(ii) Preparation to Commit Offence:
A, a person intends to murder B. For this purpose, A procures poison, i.e., he is preparing to commit an offence. At this stage, the law does not punish him. Because, it is not sufficient to the prosecution to prove A’s intention and preparation, and to make him guilty punishable.
Ramakka vs. State of Madras (1884) 8 Mad. 5)
The accused-woman ran to jump in the well uttering that she would suicide. Meanwhile, by-standers caught her. The police arrested her and instituted a case against her for attempt to suicide.
The Court held that when she was caught by bystanders, she intended to jump in the well; however she might have changed her mind before jumping into the well. She was acquitted.
A and B were wife and husband, aged 20 years, and 25 years respectively. One day, they quarrelled. At late night, A came out of the house, taking her six months old baby in her arms.
B pursued her and threatened her to beat if she would not return back. To escape from the husband, A jumped into a well along with her child. A was rescued, but the child died. The police prosecuted her under Section 309 (Attempt to commit suicide). Decide.
The given Problem is identical with case Dhirajia vs. State (AIR 1940 All 647). In that case, the Allahabad High Court held that in those circumstances, the accused could not be prosecuted under Section 309 (Attempt to commit suicide), as she jumped into the well to escape from her husband, but not with the intention of committing suicide. However, the High Court held her guilty under Section 304 (culpable homicide) for causing the death of the child.
A and B were wife and husband, aged 20 years, and 25 years respectively. One day, they quarrelled. At late night, A came out of the house, taking her six months old baby in her arms. She came to a well, tied the child to her back, and jumped into a well along with her child A was rescued, but the child died. The police prosecuted her under Section 309 (Attempt to commit suicide). Decide.
The given Problem is identical with Supadi vs. State (AIR 1925 Born 310). In that case, the Bombay High Court held that the accused was not guilty of Section 309 (Attempt to commit to suicide), but she was guilty under Section 304-A (Punishment for Rash and Negligent Act).
Bhagwat vs. State (1948) 28 Pat 92)
The accused was a licensed food grain dealer. He stored certain Government stock in his godown. With an intention to misappropriate some of the stock, he shifted eighty bags of rice from the godown to nearby a room attached to the godown. On inspection by vigilance department, they found eighty bags separately, and they filed a case against the accused.
The Court opined that by keeping eighty bags in a separate room showed his intention to fraud. At this stage, it could not be decided that he did the offence. It was only mere preparation. If those bags were removed and were carrying by bullock carts, then it could be said that he was attempting to commit offence. The Court acquitted him.
Walidad vs. State (1907) PR No. 15 of 1907)
The accused was found on the roof of another’s house in the midnight possessing instruments necessary for house-breaking and a stick. The defence counsel argued that the accused was preparing to commit house-breaking, and he did not do so as he was captured, and it was only a mere preparation.
The Court held that mere presence of the accused on another’s house possessing with instruments necessary house-breaking that too in the night itself constituted a completed offence of house-breaking under Sec. 447, and it was not an attempt to commit house-breaking by night. The accused was held guilty and punished under Sec. 447.
Ram the accused, while quarrelling with his brother fetched a sword, but was seized by others and disarmed before he could use it. Is Ram guilty? Decide giving reasons.
This problem is identical to the case-facts of Data Ram vs. State (1882), which are given below:
Data Ram vs. State (1882) PR No. 45 of 1882)
The accused, while quarrelling with his brother fetched a sword, but was seized by others and disarmed before he could use it.
The Court held that fetching a sword was not an attempt to murder under Sec. 511. The Court observed: “It is quite possible that although the accused fetched the sword, he might not after all have actually used it against the complainant who was his own brother.” The accused was acquitted.
A issues a cheque to B. B alters the amount without the knowledge of A, but does not present it to the Bank. (Nov. 95, B.U.)
A is in preparation to commit the offences of forgery, criminal misappropriation and criminal breach of trust. Until he presents the cheque to the Bank, he cannot be treated as guilty.
As soon as he presents the forged cheque to the bank for payment, and the banker finds it as forgery and returns it to B, then B is said to have committed the offence of attempt to forgery. If the banker pays the amount to B on the forged cheque, B is said to have committed forgery, criminal misappropriation and criminal breach of trust.
A puts jewels into the box belonging to Z with the intention that they may be found in that box and that circumstance may cause Z to be convicted of theft.
Until someone opens the box of Z, it is only a preparation of A. Until someone opens, there is a chance of changing the intention of A and to remove the jewels. As soon as someone opens the box and finds the jewels, A is said to have attempted the offence to implicate Z in false accusation.
Sukha vs. State (1885) PR No. 40 of 1885)
The accused was the supplier of milk to a regimental hospital. He was found by carrying three gallons of adulterated milk in the compound of the hospital, where his cows were about to be milked.
The Court held that his act did not amount to more than preparation. Before he supplied the milk to the hospital, he might have changed his intention and would supply pure milk in place of adulterated milk.
Riasat Ali vs. State (1881) 7 Cal 352)
Accused gave an order to the printing press to print certain Receipt Books identical with those of Bengal Coal Company, with an intention to use such receipts and collect money. The accused checked spelling mistakes and proofs. At this stage, the police arrested him.
The Court held that mere printing receipt books could be neither preparation nor attempt, unless the accused used at least one paper of such receipt books. The Court acquitted the accused.
As a general rule, mere preparation itself does not constitute an offence, and not punishable at the stage of preparation. There are certain exceptions to this Rule. In the following circumstances, the accused can be convicted for his mere preparation to commit offence, and they are:-
(a) Waging war: Preparation to commit waging war against the State under Sec. 122 is an offence, and is punishable;
(b) Preparation to commit depredation on the territories of any power at peace with the Government of India under Section 126;
(c) Preparation for Dacoity under Sec. 399;
(d) Preparation of certain Documents.
Kalyan Singh (1894) 16 All 409)
The accused along with another person went to a stamp vendor and purchased stamp papers on the name of Z calling himself Z. They went to document writer and instructed to write a promissory note for Rs. 50/payable by Z to the accused representing that the accused was Z. The document was prepared accordingly. At this stage, the accused was caught. The accused pleaded that it was only a mere preparation.
The Court held that it was not a mere preparation. When the accused represented himself as Z at stamp vendor and document writer, then itself the offence of false personation was completed. If the document was signed by the accused as Z, it would become another offence of forgery and forged document. The Court convicted the accused.
(iii) Attempt to Commit Offence
Attempt, (n.) = To make an effort to effect some object; to make a trial or experiment; to endeavour; to use exertion for some purpose; to make an effort or endeavour or an attack; an effort or endeavour to effect the accomplishment of an act; an intention to do a thing combined with an act which falls short of the thing intended. “Attempt to commit offence” is also known as “Inchoate offences”.
Inchoate, (adj.) = begun, not nearly complete; formless.
Stephon’s Crimes defines: “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. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case.”
Section 511 is objected to impose the punishments on attempts to commit offences. The object of this Section is to prevent the offences. There are two essential ingredients necessary to impose punishment. They are:-
(1) An accused could not be convicted of an attempt to commit an offence unless the offence would have been committed if the attempt charged had succeeded.
(2) Intention followed by preparation, and that preparation followed by any act done towards the commission of the offence is sufficient to constitute an attempt.
(3) Such attempt to do an act and such act must be punishable under the Indian Penal Code.
(4) The phrase “whoever attempts to commit an offence” in this Section shall mean “whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence.”
(5) The attempt must be sufficiently proximate to the crime attempted.
(6) It need not be an act capable of bringing about the crime intended, in other words, the crime intended need not be possible.
(7) The accused must have been “on the job”.
The attempt or shall 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.
(9) Nature of offence:
The offence under Section 511 is, according to the offence punishable, i.e., cognizable or non-cognizable, bailable or non-bailable, compoundable or non-compoundable, and the Court which is competent to try, if such attempt would have been completed.
Turner J. while disposing Ramasarun’s case observed: “To constitute….the offence of attempt under Sec. 511, there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence.”
Distinction between abetment and attempt: Abetment is an independent crime. The abettor is punishable for the abetment and such punishments are narrated from Sec. 109 to 120. Attempt is punishable with one-half of the imprisonment for life or 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.
A, with the intention of taking money purse of B puts his hand into the pocket of B. But the pocket was empty. A is caught and charged for theft. Examine the liability of A.
The problem given above is identical to the illustration (b) to Section 511. A is guilty of attempt to commit theft.
A makes an attempt to steal some jewels by breaking open a box and finds after so opening the box that there is no jewel in it. Is A guilty of any offence?
The problems given above are similar to the illustration (a) appended to Section 511. A is guilty of attempt to commit theft.
Dharma vs. Nirmal Singh (1996) 7 SCC 471)
Nirmal Singh was the accused. The prosecution was that he tried to rape Ravinderjit, a 19 year girl. He failed to rape due to strong resistance from her. Annoyed with her resistance, he had beaten and caused death to her. Postmortem report revealed the injuries on her body, but did not report about rape.
The trial Court did not believe the evidence of eye-witnesses and circumstantial ^ witnesses, and acquitted the accused. The State did not file appeal to the High Court. The father of the victim-girl appealed to the High Court. The High Court simply dismissed the appeal.
He appealed to the Supreme Court. The Supreme Court severely criticised the attitude of the trial Court and of the High Court. Perusing the records before it, the Supreme Court convicted the accused for 7 years rigorous imprisonment for attempting rape and causing death to her under Sections 302, 376 read with 511.
State of Maharashtra vs. Mohd. Yakub and others (AIR 1980 SC 1111)
The case law differentiates between preparation and attempt to commit an offence. On receiving some secret information that Silver would be transported in a Jeep and a Truck, the officers kept a watch and when during the midnight on 14-2-1968. They saw the accused and followed them.
Two vehicles halted near a bridge at a Creek. Some small and heavy bundles were removed from the Truck and were kept on the ground. The Customs Officers surrounded them. At the same time the sound of the engine of a mechanised sea-craft from the side of the creek was heard by the officers. There were number of ingots lying under saw-dust bags in the Truck.
The trial Court convicted the accused for attempting to smuggle Silver out of India in contravention of the Customs Act and the Foreign Exchange Regulation Act. The Sessions Court on appeal acquitted the accused on the ground that the facts proved by the prosecution fell short of establishing that the accused had attempted to export Silver in contravention of the law, because the facts proved, showed no more than that the accused had only made ‘preparations’ for bringing this Silver to the Creek and “had not yet committed any act amounting to a direct movement towards the commission of the offence.”
In this view until Silver was put in the boat for the purpose of taking out of the country with intent to export it, the matter would be merely in the stage of ‘preparation’ falling short of an ‘attempt’ to export it. Since ‘preparation’ to commit the offence of exporting Silver was not punishable under the Customs Act, the trial Court acquitted the accused. Appeal against acquittal was dismissed by the High Court.
The Supreme Court held that the accused had committed the offence of attempting to export Silver out of India by sea in contravention of Law and convicted the accused accordingly.
State of Haryana vs. Premchand (1997) 7 SCC 756)
The allegation was that Premchand (aged 21 at the time of the crime) attempted to rape a girl (aged 16 years at the time of crime). He was convicted for life under Sec. 376. He appealed to the Supreme Court that considering his age under the Probation of Offenders Act, 1958, and also the offence was an attempt. Under Section 511, he was entitled half of the punishment and under the Probation of Offenders Act, 1958 his punishment should be further lessened.
The Supreme Court gave the judgment: “If the conviction of the appellant were to be one under Section 376 IPC he could have been awarded imprisonment for life or one extending to 10 years. But the offence for which the respondent has been found guilty, is for attempt to rape.
Therefore, it is idle to contend that the respondent has been held guilty for an offence which would attract imprisonment for life, disentitling him to the benefit of probation under the aforementioned two statutes. Section 57 of the IPC clearly points out that in calculating fractions of terms of imprisonment, imprisonment for life shall be reckoned as imprisonment for 20 years.
Thus, on employment of Section 511 of IPC, the punishment for the offence, for which an attempt has been made, would be for a term which may extend to one half of the longest term of imprisonment provided for the offence. Therefore, for offence under Sections 376/511 IPC, the respondent could be awarded imprisonment up to 10 years. On this reasoning, his case for probation was clearly made out, be it under Sec. 360 Cr.P.C. or under Sec. 4 of the Probation Act.”
Madan Lal vs. State of Jammu and Kashmir (1977 Crimes 218)
The accused was a school master. The complainant was the student, aged 13 years. According to the prosecution, the accused attempted to rape the girl, who did not give any access. He rejected his semen on salwar of the girl. The girl told the incident to her mother, who reported the matter to the police.
The Supreme Court observed: “Attempt to commit rape … offence of… Difference between preparation and an attempt to commit rape …for offence of an attempt to commit rape, it is necessary to prove that accused has gone beyond stage of preparation — If an accused strips a girl naked, making her flat on ground undresses himself, forcibly rubs his erected penis on private part of girl, ejaculates himself.
It is not a case of merely assault under Sec. 354, but it is an attempt to commit rape under Section 376 read with Section 511….. Having given our anxious consideration and having scrutinized the evidence of the prosecutrix, we are in agreement with the High Court that her evidence is that of truthful witness, which gives an account of incident that happened to a rustic girl who was traumatized on account of sexual harassment meted out to her by none other than her own school Head Master. Her evidence can be unhesitatingly accepted by Court and has rightly been accepted by the High Court for sustaining a conviction for the charge under attempt to commit rape.”
The Fourth and last stage of the offence in which the act is completed, and is punishable according to the provisions of the Indian Penal Code, which specifically mentions the punishment for each offence.