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LAW OF CRIMES PROJECT

ON:
“criminal attempt”
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CONTENTS

 Introduction
 Meaning of Incohate Crimes
 Section 511
 Elements of crime and attempt
 Inchoate Crimes vis a vis Attempt
 Criminal Attempt
 From preparation to attempt-Legal Principles
 Distinction between Preparation and Attempt
 English Cases
 Scope of Section 511
 Need to redraft section 511,IPC
 Recent Cases
 Conclusion
 Bibliography
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INTRODUCTION

One of the most difficult questions in Criminal law which creates riddle is, “why the „Attempt to
commit an offence‟ is being criminalized?” How the penal law should treat those acts, which
cross the stage of being preparatory to the commission of an offence, constitute an attempt to
commit the offences, but for some reason are not actually completed, has been the subject of
great amount of debate and discussion amongst jurists, judges and those concerned about
criminal law. In other words what are the values that criminalize the Attempt?

The criminal law punishes not only completed crimes but also short of completion of crimes this
category of uncompleted crimes is often called Inchoate crimes. The doctrine of inchoate crimes
is applied specifically to three crimes; Attempt, Conspiracy, and Abetment. In this regard,
incomplete criminal conducts raise a question as to whether it is proper to punish someone who
has harmed no one or to set free determined to commit a crime. The criminal law answers the
question by imposing lesser penalties for inchoate crimes than for completed crimes that have
been attempted, abetted, conspired.1 Especially in attempt we have to see that the actors have
done all they had intended to do but have still not realized their criminal objective. In relation to
this we have to take glance of the stages of crime. In this assignment, I am going to deal with
certain aspects which will justify how certain values criminalize the attempt. For this purpose
there is need to discuss on the concept of attempt vis-à-vis elements of crime from the
perspective of Inchoate crimes, and also how the attempt is being defined by distinguishing it
from the preparation. And also to discuss criminalization of attempt with the help of English and
Indian cases and through various tests which have been laid down by courts for distinguishing
the values such as intention, preparation, Attempt to commit an offence.

1
K.N.C.Pillai “Genaral Principle of Criminal Law”, p. 199.
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An inchoate crime is one in which the criminal act is prior to the act that unleashes the risk(s) of
harm. In other words, it is a crime that occurs while the actor still has the ability to choose to
refrain from imposing the risk. On that definition, completed attempts and reckless
endangerments are not inchoate crimes . . . .

Inchoate crimes encompass doctrines of attempt, incitement and conspiracy, which share the
common characteristic of making it criminal to participate in the commission of incomplete
offences.

MEANING OF INCHOATE CRIMES

Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain
a conviction. Examples of inchoate crimes are criminal conspiracy, criminal solicitation, and
attempt to commit a crime, when the crime has not been completed .It refers to the act of
preparing for or seeking to commit another crime. A true inchoate offence occurs when the
intended crime does not since the doctrine of merger prohibits charging both.

Absent a specific law, an inchoate offence requires that the defendant have the specific intent to
commit the underlying crime. An inchoate crime may be found when the substantive crime failed
due to arrest, impossibility, or an accident preventing the crime from taking place. For example,
a person may be found guilty of the inchoate crime of attempted murder for firing an unloaded
gun at someone with an intent to kill, possession of a listed chemical with intent to manufacture a
controlled substance and possession of a prohibited flask or equipment with intent to
manufacture a controlled substance are other examples of inchoate crimes.

The term „inchoate‟ means "just begun" or "undeveloped", and is used to refer to situations
where, although a substantial offence has not been committed, the defendant has taken steps to
commit it, or encouraged others to do so Anticipatory, incipient, incomplete, and preliminary
crimes are all other words for inchoate crimes. The word "inchoate" means underdeveloped or
unripened. Because of the social need to prevent crimes before they occur, the common law long
ago established three (3) separate and distinct categories of inchoate crimes.

1) Attempt
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2) Conspiracy, and

3) Solicitation or abetment

The attempt crimes usually done by one person, criminal solicitation and conspiracy generally
involve multiple persons.

Over the years, there have not been any new categories added with the possible exception of
possession (as in possession of burglar tools, bomb materials, gun arsenal, etc.) as an inchoate
offence based on the notion of preparation, which has not normally been associated with
inchoate crimes.

Traditionally, inchoate crimes have always been considered misdemeanours, but over the years
they have been merged into felonies as society has put more power in the hands of law
enforcement and prosecutors to deal with recalcitrant problems such as organized crime, white
collar crime, and drug crime.

SECTION 511

Punishment for attempting to commit offences punishable with imprisonment for life or
other imprisonment:- Whoever attempts to commits 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 there 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 longest term of imprisonment provided for that offence], or with such fine as is
provided for the offence, or with both.

Illustrations

(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 under this section.
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(b) A makes an 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.

ELEMENTS OF CRIME AND ATTEMPT

Where there is mens rea there is no crime at all.2 But though an actus reus is thus necessary,
there may be a crime even where the whole of the particular actus reus that was intended has not
been consummated.3 Actus reus is one of the essential element of completed crime, i.e. it is the
human conduct which if done with mens rea is contrary to law. In some cases the actus reus lies
in the conduct itself, e.g. Perjury (the giving of false evidence on oath), or driving while under
the influence of drink, where the conduct is criminal though no harm results to anyone, but in
others the actus reus lies in the result, e.g. Murder where the essence of crime is killing, the
causing of death. Actus reus is commonly the commission of some act. There is no actus reus
and no crime if circumstances exist which amount to a lawful justification or excuse.4

One should not think that the criminal law deals with the last proximate act that actually
produces the evil consequences which determines its penal character. It often happens that the
last proximate act has not been done or has to fail to produce the contemplated evil consequence.
For this purpose criminal law takes notice of attempts to commit punishable wrongs and
punishes them with more or less severity according to the nature of the act attempted.No criminal
liability where a mens rea has only been followed by some act that does no more than to manifest
the mens rea. Liability will not begin until the offender has done some act which not only
manifest his mens rea, but also goes some way towards carrying it out.5 Lord Mansfield
observed, “so long as an act rests in bare intention, it is not punishable by our laws”. Law does
not take notice of mere thought of a person. The reason is obvious. It is impossible to prove the
mental state or man and a tribunal cannot punish a man for that which he cannot know. But when

2
Nigam R.C, “ Law of crimes in India” Chap.V, p. 112
3
Kenny, C.S, “ Outlines of criminal Law” Chap.V , p. 91
4
Walker, “Huda.S. “ The Principle of law of crimes in India” p.46The Oxford Companion to law, p. 22” cited in
B.H.Gandhi, “ Indian Penal code”, p. 743
5
Supra note 3
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such evil intent is expressed in words and can be inferred from his acts, the person can be held
criminally liable.6 In other words, law does take the notice of an overt act of expression. From
this point of view we can assert that only evil intent cannot be punished by law there should be
act to proceed towards the commission of crime.

In this connection it is necessary to consider different stages of crime. The first stage is stage of
contemplation or intention of the commission of the offences. After this stage of contemplation
the next stage which is known as stage of preparation which consist in devising or measures
necessary for the commission of crime. Generally preparations to commit an offence are not
punishable. If it were made punishable, it would harass the suspected persons. But there are some
exceptions to this rule, in that cases mere preparation to commit the offence are punished
because they preclude the possibility of an innocent intention. The third stage is the stage of
attempt. Attempt is the direct movement towards the commission of an offence after the
preparation is made. Last stage is the stage when we come to actual commission of the intended
crime when the attempt is successful, the crime is said to have been accomplished.

INCHOATE CRIMES VIS-À-VIS ATTEMPT

To constitute the crime two elements are always necessary, namely, mens rea and actus reus.
Where there is only mens rea, there is no crime. A mere evil intent or designed unaccompanied
by any overt act (prohibited act), which is technically called actus reus, in furtherance of such
design, is not punishable.The word actus reus denotes a deed, a physical result of human
conduct. When criminal policy of country regards such a deed as sufficiently harmful, it
prohibits it and seeks to prevent its occurrence by providing a penalty or punishment for its
commission. Though actus reus is necessary to constitute a crime, yet there may be a crime even
where the whole of the actus reus that was intended has not been consummated. As a general
rule, there is no criminal liability where mens rea has only been followed by some act that does
not no more than manifest mens rea. Liability begins only at the stage when the offender has
done some act which not only manifests his men rea but goes some way towards carrying it out.
These are known as “inchoate crimes”. The name “inchoate” is not proper as it connotes
something which is not yet completed. Thus, inchoate crimes refers to those acts which have

6
Supra note 2 at 111
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begun but which have not reached completion sufficient for the offence to have been committed.
As per this argument we can infer that an Attempt to commit a crime is thus an overt act, which
should not allow going unpunished.

There are two classes of Inchoate or Preliminary crimes which proceed far enough to be singled
out for punishment. They are (i) Attempt (ii) Abetment.

CRIMINAL ATTEMPT

Affectus punitur licet non sequatur effectus-

The intention is punished although the consequences do not follow.

The word „attempt‟, said chief justice Cockburn, clearly conveys with it the idea that if the
attempt had succeeded, the offence charged would have been committed. In other words, attempt
is the direct movement towards the commission of an offence after the preparation has been
made. According to English law, 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 or attempt to commit an offence even though the facts are such that the
commission the offence is impossible.7 Once an act enters into the arena of attempt, criminal
liability begins, because attempt takes the offender very close to the successful completion of
crime 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 he had succeeded. The act may be sufficiently harmful to society by reason of its
close proximity to the completed offence classed as a crime. Hence, unlike civil law, criminal
law takes notice of attempts to commit punishable wrongs and punishes them according to the
nature and gravity of the offence attempted.8 And if the third stage is successful, then the crime
is completed and the accused will be liable according to the offence committed by him. Thus an
attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is at
present intent coupled with some overt act in execution.

Generally, the commission of a crime by a person involves four stages:-

7
Gaur K.D. , “ Indian Penal Code” Chap.XXIII p. 842
8
Supra note 2 at 843
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a) Formation of the intention or mental element.

b) Preparations for the commission of the crimes.

c) Acting on the basis of the preparation and

d) Commission of the act resulting in an event prescribed by the law.

Some legal system penalize from the stage of preparation. They depending upon the importance
of the system gives to the value of „crime prevention‟ declare certain offences to be criminal and
punishable from the stage of preparation.9 There may not be the responsibility for attempt if the
person was negligent or reckless inasmuch as attempt is a crime of purpose. However,
knowledge, recklessness or negligence in appreciating the material surrounding circumstances
can support the charge of attempt.

FROM PREPARATION TO ‘ATTEMPT’- LEGAL PRINCIPLES

It is when an act has gone beyond the stages of preparation, towards achieving the intention, that
law of attempt begins and criminal liability covers the acts committed. This is based on the
premise that the attempt, by going beyond the stages of preparation, takes the offender close to
achieving the evil intention or the crime, and therefore, the very act of attempt ought to be
punished in a manner similar to the completion of offence itself. In England, the law of attempt
came to be formulated in R v. Scofield10, followed thereafter in R v. Higgins.11 As it came to be
crystallized subsequently, in English Law, there are three elements liability in an attempt:

 There must be evidence of some Overt Act;

 There must be evidence of mens rea; and
 There must have been an interruption to the series of acts and omission which, but for the
interruption, would have culminated in the commission of an offence.

Whatever be the nature of intervention, whether due to charge of heart or due to reasons, the
burden is on the prosecution to prove the following:-

9
Supra note 1
10
1784
11
1801
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1) That the actus reus, or the act committed by the accused was something which in the eye of
law marked the commission of an offence; and

2) With reference to mens rea , that in taking this step, he was inspired with the serious intention
to attain a particular or definite object, which would constitute a specific felony or misdemeanor.

Thus, as with any other crime, an attempt should also have the two elements mens rea and actus
reus.

Kenny, elaborates about the English law in his Book ‘Outlines of Criminal Law’ that,

It is true that the criminality of the attempt lies in the intention, the mens rea. But this mens rea
must be evidenced by what the accused has actually done towards the attainment of his ultimate
objective. Thus, the actus reusof attempt is reached in such act of performance as first gives clear
prima facie evidence of mens rea.The element of actus reus or act committed, sufficient to bring
the act under the coverage of „attempt‟, is starkly brought out in the following:

“It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner
does an act which is a step towards the commission of the specific crimes, which is immediately
and not merely remotely connected with the commission of it, and the doing of which cannot
reason ably be regarded as having any other purpose than the commission of the specific crime.”
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CRIMINAL ATTEMPT HAS THREE MAIN ELEMENTS

i) Specific intent: A criminal attempt charge requires a person to have had specific intent (mens
rea) to commit the actual crime. If, the crime, almost happened by accident, it's not attempt. For
example, a hunter who almost shoots another person must have intended to kill for it to be
attempted murder.

ii) Actions to commit the crime: Actions close and connected to the crime are also required. It
can't be just acts that prepare for the crime. For example, if you buy a gun, thinking about a bank
robbery in a few months, your acts are probably too far removed from the actual crime to amount
to attempted robbery. However, if you drove to a bank to rob it and you're arrested before
leaving the car, you've gone far enough to commit attempted robbery. There are at least four tests
used in various places:

 physical proximity doctrine -- this focuses upon space and time, establishes the "last
act" standard which requires looking at the remaining steps

 probable desistance approach -- this considers whether the attempt would naturally
lead to commission but for some timely interference not related to bad luck

 equivocality approach -- this looks at whether the attempt can have no other purpose
than commission of a crime

 substantial steps test -- this is a looks for corroborating evidence in the form of conduct
which tends to concur or verify a criminal purpose

iii) Failure to commit the crime: Failing to commit the crime is the last element. On crossing
over these reasons, the crime is done, person will be charged with the actual crime, and not with
attempt. They are:

 legal impossibility -- a defence that what was attempted is not a crime (raping a
mannequin, for example, because rape requires a human victim) Prosecutors have the
burden of proving legal possibility as well as apparent ability

i. factual impossibility -- a defence that some extraneous factor or outside force made it
impossible to complete the crime; most jurisdictions will not accept this on the presumption
that "luck" doesn't count (same as no defence)
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ii. renunciation -- this is the idea of abandonment, and to be a successful defence, the actor
must have given up for moral reasons, not just because of the risk of apprehension.

ATTEMPT UNDER THE INDIAN PENAL CODE

The Indian Penal Code has not defined attempt to commit a crime attempt but has dealt with
attempt in four different ways:-

(i) Firstly, the commission of an offence and the attempt to commit it are dealt with in the same
section, the extent of punishment being the same for both the offence as well as its attempt.
These are -

(a) offences against the State, such as, waging or attempting to wage war against the Government
of India (section 121);

(b) assaulting or attempting to assault the President of India, Governors of States, etc., with the
intent to counsel or restrain the exercise of any lawful power (section 124);

(c) sedition (section 124A), waging or attempting to wage war against any Asiatic Power in
alliance with the Government (section 125), public servant taking gratification (section 161),
dacoity (section 391), etc.;12

(ii) Secondly, attempts to commits the offences and commission of specific offences have been
dealt with separately, and separate have been provided for attempt to commit such offences from
those of the offences committed.

(iii) Thirdly, attempt to commit suicide is made punishable under section 309, I.P.C.; and

(iv) Fourthly, attempts to commit offences in general (except those falling in the above- stated
categories) have been made punishable under section 511, I.P.C. However, section 511, I.P.C.is
not exhaustive. It leaves unpunished attempts of those minor offences which are punishable with
fine only.

12
See also I.P.C. sections 130,131, 152,152A, 163, 165, 196, 198, 200, 213, 239, 240, 241, 251, 385, 387, 389, 391,
397,398, and 460.
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DISTINCTION BETWEEN PREPARATION AND ATTEMPT

Attempt to commit a crime is punishable under the code, whereas preparation is not punishable..
This is because preparation would generally be a harmless act, e.g. attempt to commit murder
creates a disturbance in the society and the sense of insecurity in an individual, while preparation
may not create alarm in society. According to Indian penal Code an “attempt” is a continuous
proceeding which at one stage assumes criminal character.

Five Tests Laid down by courts:- Thus, it is simple to say that an attempt to commit
offence begins where preparation to commit it ends, but it is difficult to find out where one ends
and the other begins. To solve this riddle various tests have been laid down by the courts. These
are as follows:13
 Proximity Rule
 Doctrine of Locus Paenitentiae Test,
 Impossibility Test,
 Social danger Test, and
 Equivocality Test.

1) PROXIMITY RULE-
An act, in order to be designated as an attempt, must be sufficiently near to the accomplishment
of the substantive offence punishable.14 It need not be remotely leading towards the commission
of the offence. In other words, the act of an accused is considered proximate if, though it is not
the last act that he intended to do, it is last act that was legally necessary for him to do, if the
contemplated result is afterwards brought about without further conduct on his part.15 For
instance, A, intending to kill Z, buys a gun and loads it with the intention to kill Z. A is not yet
guilty of an attempt to commit murder. Buying the gun is simply an act of preparation which is
not punishable.

13
Supra note 10 at 746
14
See Essays on the Indian Penal Code, ILI (1962) pp. 109-116.
15
William, G., Criminal Law: The General Part, 2nd Edn., (1961) pp.629-632
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A shoots at Z, intending to kill him, but misses the mark either for want of skill, or because of a
defect in the gun, or because he has mistaken something else for his enemy. Since A‟s act did not
cause Z‟s death, A could not be held liable for murder. But A would be liable for attempt to
murder, because A has done what was legally necessary for him to do under the circumstances. If
A could not succeed in his object, it was not because of his desisting from the act, but because of
something beyond his control.

In Sudhir Kumar Mukherjee v. State of West Bengal,16 the Supreme Court explained attempt
with the help of proximity rule in the following words:
A person commits the offence of “attempt to commit a particular offence” when (i) he
intends to commit that particular offence, and (ii) he, having made preparation and with the
intention to commit the offence, does an act towards its commission. Such an act need not to be
penultimate act towards the commission of that offence but must be an act during the course of
committing the offence.17

In Abhyanand Mishra v. State of Bihar,18 Supreme Court held the accused guilty of attempt to
commit cheating under sections 420/511 I.P.C. The court observed that the act of preparation had
been completed when the accused prepared his application for the purpose of submission to the
University. The moment he dispatched it, he entered into the realm of attempting to commit the
offences of „cheating‟. He did succeed in deceiving the University inducing it to issues an
admission card. He failed to get the card and sit for the examination solely because something
beyond his control took place, in as much as the University was informed that he was neither a
graduate nor a techer to qualify him to take up M.A. examination privately.

16
AIR 1973 SC 2655: (1974) 1SCR 737; (1974) 2SCJ 2: 1973 CrLJ 1798.
17
AIR 1973 SC 2655 (2657-88).
18
AIR 1961 SC 1698.
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2) Doctrine of Locus Peanitentiae Test (time for repentance)-

The Latin expression speaks about time for repentance. In Locus Peanitentiae the word Locus
means, „a place‟- a word frequently used to denote the place in or at which some material act
or even such as crime, delict or breach of contract took place. Locus Peanitentiae means the
opportunity to withdraw from a bargain before it has become fully Constituted and become
binding.
In simple language if an act will amount to mere preparation if a man on his own accord
gives it up, before the criminal act is carried out. That is to say, so long as the steps taken by
the accused leave room for a reasonable expectation that he might of his own accord, or
because of the fear of the consequences that might befall him, desist from the contemplated
attempt, he will be treated at the stage of preparation. Probability of a man giving up his
design should in every case be a question of fact and cannot be determined by any rigid rule
of general application.
For instance, A intending to murder Z by poison, purchases poison and mixes the same with
food which remains in A‟s keeping. A is not yet guilty of an attempt to murder, because there
is still time when better reason might prevail any moment and A might change his mind and
desist from giving that food to Z.19

In Malkiat Singh v. State of Punjab,20 in this case, a truck carrying a paddy was stopped at
Samalkha Barrier, a place 32 miles away from Delhi. Evidently, there was no export of
paddy within the meaning of para 2(a) of the Punjab Paddy (Export Control) Order, 1959, the
Court decided that there was no attempt to commit the offence export. It was merely a
preparation. Distinguishing between attempt and preparation Supreme Court observed that
the test of distinction between two is whether the overt acts already done are such that if the
offender changes his mind and does not proceed further in its progress, the acts already done
would be completely harmless. In the present case, it is quite possible that the appellants may
have been warned that they had no license to carry the paddy and they may have changed
their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not
have proceeded further in their journey.

19
R.C. Nigam, Principles of Criminal Law, (1965), Vol. 1, p.125
20
AIR 1970 SC 713: (1969) 1 SCR 157: (1969) 2SCR 663: 1970 CrLJ 750
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3) Impossibility Test-
It is of interest to note that until the middle of the nineteenth century, the time of Feurbach 21,
impossible attempts were not punishable in England because they were treated at par with
the mere preparation.
Williams: Hence it was held in R v. Williams22, that a person is not guilty of an attempt to
steal, if the accused put his hand into the pocket of another but the pocket was empty.
McPherson: Likewise in R v. McPherson23, a person was not held liable for attempting to
commit theft, if he finds the house empty on entering into the building after breaking open
the doors.
Whitechurch: In Whitechurch,24 Lord Coleridge, C.J., expressed doubt as to whether a
woman who was not pregnant could be indicted for an attempt to procure abortion on herself.
Anderson: In Scotland the court held in Peggy Anderson,25 and Semple26 that woman must
be pregnant brfore the crime of attempting to procure abortion on herself.
In Queen Express v. Mangesh Jivaji,27 the Bombay high court held that within the meaning
of section 511 of IPC, an attempt is possible, even when the offence attempted cannot be
committed.
Ring: But in later case R v. Brown,28 the above referred cases were reviewed and Lord
Coleridge observed that the earlier decisions were based on a mistaken view of law. In R v.
Ring,29 the accused was held guilty of attempt to steal from the pocket of a lady though her
pocket was empty.

In Asgarali Pradhanin v. Emperor,30 what the appellant did was not an “act done towards
the commission of offence”, and therefore, he could not be convicted. But in a Malaysian
case the accused was held liable for an attempt to cause abortion when the woman was not

21
(1868)18 LT (NS) 89
22
(1893) I QB 320
23
(1857) Dand B., p. 197, 169 ER 975
24
Queen v. Whitechurch, (1890) 24QBD 420
25
(1928) JC 1 (Scotland)
26
(1937)JC 1 (Scotland )
27
(1887) ILR 11 Bom 376
28
(1889) 24 QBD 357
29
(1892) 17 Cox CC 491
30
1934 ILR (61) 54
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pregnant. Even the appeal court held the accused liable because the circumstances in this
case seemed to be exactly covered by the illustration to section 511 IPC.
The act itself is impossible of performance and yet it constitutes an offence of attempt to
commit crime. This was precisely the position in English Law before Houghton v. Smith
case.

In R v. Shivpuri,31 it has been held that, if the mental element has proceeded to commit the
act but failed his responsibility for attempt would be evaluated in the light of facts as he
thought them to be (putative facts).

4) Social Danger Test –

In order to distinguished and differentiate an act of attempt from an act of preparation the
following factors are contributed.
A) The seriousness of the crime attempted;
B) The apprehension of the social danger involved.
In this test the accused‟s conduct is no examined only partially but the consequences of the
circumstances and the fullness of the facts are taken into consideration. For example, X
administers some pills to a pregnant woman in order to procure abortion. However, since the
pills are innocuous they do not produce the result. In spite of this X would be held liable for
an attempt from the view point of the social danger test, as his act would cause as alarm to
society causing social repercussions.

5) Equivocality Test-
It is a situation wherein there are two opinions about the crime here, as decided by the Madras
High court, an attempt is an act of such a nature that it speaks for itself or that it is in itself
evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent
upon its face. In other words, if what is done indicates unequivocally and beyond reasonable
doubt the intention to commit the offence, it is an attempt, or else it is a mere preparation.

31
(1987) AC 1.
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ENGLISH CASES

In R v. O’ Toole,32 the appellant who was a regular customer of public house was barred from
that public house. At closing time the appellant returned with a can of petrol and slashed it
around the vestibule at the entrance of the public house. When he was questioned by the Barmaid
he stated that he did care whether she burned alive. He had earlier been heard to say that he
would smash the public house. When arrested he told the police that if he did not smash up the
public house that night he would do it the following night.

He took the defence that he was drunk. He had the can of petrol with him because he was filling
the petrol reservoir of his motor car, and while doing so he had heard noise from the public
house. He decided to speak with the landlord. While trying to look through a window he had
accidentally spilled petrol into the vestibule.

The appellant was charged with two counts, the second alleging that he had attempted to
damage the same or being reckless as to whether it would be damaged and intending to endanger
the life of barmaid.

The defendant was convicted of count 2 by the jury. The Court of Appeal in allowing the appeal
and quashing the conviction held that intent is an element inherent in the definition of attempt
and is the same at least not greater than the intent necessary to constitute the full offence. It was
held that, “The learned trial judge was in error in relating back to the question of recklessness
and intent to damage. There was no room for a reckless damage to property when the offence
itself is an attempt because the attempt must have the necessary intent”.

In R v. Khan,33 RUSSEL C.J.- These appeals raise the short but important point whether the
offence of attempted rape is committed when the defendant is reckless as to the women‟s consent
to sexual intercourse. The appellant submits that no such offence is known to law. The defendant
and other three were convicted of the attempted rape of a 16 year old by the Central Criminal
Court. After a dance the girl was taken away by the defendant in the car. But he could not

32
(1987) Cri LR 759 cited in Supra note 1 at 200
33
(1990) 2 All E R 783 (CA) cited in Supra note 1 at 201
 P a g e | 19

succeed. After this three could not succeed in having intercourse with her. After the ordeal she
went to a friend‟s house and made a complaint.

In the Judgment C.J. accepted the analysis of the offence of rape which is as follows:-

(1) The intention of the offender is to have sexual intercourse with a woman;

(2) The offence is if, but only if, the circumstances are that (a) the women do not consent and
(b) the defendant knows that she is not consenting or is reckless as to whether she consents.

Precisely the same analysis can be made of the offence of attempted rape:

(1) The intention of the offender is to have sexual intercourse with a woman;

(2) The offence is if, but only if, the circumstances are that (a) the women do not consent and
(b) the defendant knows that she is not consenting or is reckless as to whether she consents.

The only difference between the two offences is that in rape sexual intercourse takes place
whereas in attempted rape it does not, although there has to be some act which is more than
preparatory to sexual intercourse. A man does not recklessly have sexual intercourse, nor does he
recklessly attempt it. Recklessness in rape arises not in relation to the physical act of the accused
but only in his state of mind when engaged in the activity of having or attempting to have sexual
intercourse. The only „intent‟ giving that word its natural and ordinary meaning, of the rapist is
to have sexual intercourse. He commits the offence because of the circumstances in which he
manifests that intent i.e. when the woman is not consenting and he either knows it or could not
care about the absence of consent.

R v Toothill34

The victim lived in a house with a garden, which was situated in an isolated area. At about 11pm
she saw the defendant standing a few feet from the rear of her house, apparently masturbating.
She telephoned the police. He was arrested in the garden, where a knife and a glove were found.
A condom was found in his pocket. The defendant admitted that he had knocked at the door to
ask for directions as he could not find where he had parked his car. He was charged with
attempted burglary with intent to rape. The defendant was convicted and appealed on the ground
34
1998
 P a g e | 20

that it was incumbent on the judge to look for evidence not merely of an attempt to burgle but
also an attempt to commit rape, namely that he would have knowledge that there was a person in
the house, to lay the foundation for a finding that that was what the defendant had in his mind.

The Court of Appeal dismissed the appeal. In the present case, the actus reus of the offence was
the act of entering the property as a trespasser. What converted it into burglary was the presence
of the trespasser with the intention to commit one or other of the offences set out in s9(2) of the
Theft Act 1968. The attempt was to do the act, not to have the intention. The crucial step that the
defendant took, which established that he had gone beyond the preparatory to the executory stage
of his plan, was that he knocked at the proposed victim's door.

R v Nash35

Two letters addressed to "Paper boy" were left in the street. They were opened by a paper boy
and a paper girl who found that they contained an invitation to the recipients to engage in acts of
indecency with the author. A third letter purported to offer the recipient work with a security
company and requested a specimen of urine. All three letters were taken to the police. At the
instigation of the police the third paper boy went to meet the writer of the letter in a local park.
There he saw the defendant, who asked him if he was looking for JJ, the signatory of the third
letter. The defendant was arrested. A search of his home revealed a typewriter bearing the same
typeface as that used in the letters and a letter written in similar terms to the other three found.
There was expert evidence that all four letters had almost certainly been written on that
typewriter. The defendant's defence was that he had been set up. He was convicted of three
counts of attempting to procure an act of gross indecency. One of the grounds of appeal was that
the judge erred in ruling that there was a case to answer on Count 3 since the fact of leaving out
the third letter was no more than a mere preparatory act and was insufficient to constitute an
attempt in law.

The Court of Appeal allowed the appeal in respect of Count 3. Following the decision in Geddes
(1996), which helpfully illustrated where and how the line was drawn between acts which were
merely preparatory and acts which could amount to an attempt, the terms of letter three, which
did not contain an overtly sexual invitation, as compared with the terms of letters one and two,

35
1999
 P a g e | 21

were not such as to amount to an unequivocal invitation and were not sufficiently approximate to
the act of procurement to amount to an attempt.

R v Taylor 36

It was held that an attempt was committed where the defendant approached a stack of corn with
the intention of setting fire to it and lighted a match for that purpose but abandoned his plan on
finding that he was being watched.

R v Gullefer37

The defendant, seeing that the dog he had backed in a greyhound race was losing, jumped onto
the track and attempted to distract the dogs by waving his arms. He hoped that the stewards
would declare "no race" whereupon punters would be entitled to have their money back and he
would recover his £18 stake. He was convicted of attempted theft and appealed on the ground
that his acts were not sufficiently proximate to the completed offence of theft to be capable of
comprising an attempt to commit theft.

His conviction was quashed. Lord Lane CJ questioned, Might it properly be said that when he
jumped on to the track he was trying to steal £18 from the bookmaker? He had not gone beyond
mere preparation. It remained for him to go to the bookmaker and demand his money.

R v Jones38

The defendant had bought some guns, shortened the barrel of one of them, put on a disguise and
had gone to the place where his intended victim, F, dropped his daughter off for school. As the
girl left the car, the defendant jumped into the rear seat and asked F to drive on. They drove to a
certain point where the defendant took a loaded sawn-off shotgun from a bag and pointed it at F
and said: "You are not going to like this." F grabbed the gun and managed to throw it out of the
window and escaped. The defendant was convicted of attempted murder and appealed.

36
1859
37
1990
38
1990
 P a g e | 22

In dismissing his appeal Taylor LJ felt that there was evidence from which a reasonable jury,
properly directed, could conclude that the defendant had done acts which were more than merely
preparatory. His Lordship pointed out that the defendant's actions in obtaining, shortening and
loading the gun, and in putting on his disguise and going to the school could only be regarded as
preparatory acts. But once he had got into the car, taken out the loaded gun and pointed it at the
victim with the intention of killing him, there was sufficient evidence for the consideration of the
jury on the charge of attempted murder.

R v Campbell39

The defendant planned to rob a post-office. He drove a motorbike to near the office, parked it
and approached, wearing a crash helmet. He was carrying an imitation gun and a threatening
note which he planned to pass to the cashier in the post office. He was walking down the street
and when one yard from the post office door, police, who had been tipped off, grabbed the
defendant and arrested him. He was convicted of attempted robbery and appealed.

In allowing the appeal, Watkins LJ stated that in order to effect the robbery it would have been
quite impossible unless he entered the post office, gone to the counter and made some kind of
hostile act directed at whoever was behind the counter and in a position to hand him money. A
number of acts remained undone and the series of acts which he had already performed - namely,
making his way from his home, dismounting from the cycle and walking towards the post office
door - were clearly acts which were indicative of mere preparation. If a person, in circumstances
such as this, has not even gained the place where he could be in a position to carry out the
offence, it is extremely unlikely that it could ever be said that he had performed an act which
could be properly said to be an attempt. (Note: The appropriate charge would have been going
equipped with intent to steal.)

39
1991
 P a g e | 23

The Case of State of Maharashtra v. Mohd.Yakub40:- A jeep driven by the respondent and a
truck was stopped at about midnight near a bridge. The respondents started removing the bundle
from the truck. At this time customs officials acting on a clue reached the spot and accosted the
respondents. At the same time, the sound of a mechanized sea-crafts engine was heard near the
side of the creek. Two persons from the neighborhood were called and in their presence silver
ingots were recovered from the vehicles. Respondent no-1 had a pistol, a knife and some
currency notes. On the questioning it was found that the respondents were not the dealers in
silver. The trial court convicted the accused u/s 135(1)(a) read with section 135(2) of the
Customs Act for attempting to smuggle out of India silver ingots worth about Rs 8 lakhs in
violation of Foreign Exchange Regulation Act, the Imports and Exports (control) Act and the
Custom Act. But the Additional session judge acquitted them 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. The High Court upheld the acquittal. The Supreme Court however
allowed the appeal and set aside the acquittal.

Two separate but concurring judgments of Justice Sarkaria and Justice Chinnappa Reddy call for
a critical evaluation with a view to appreciating their import for the law of Attempt in India.41

Justice Sarkaria Observed: - “what constitutes an „attempt‟ is a mixed question of law and fact
depending largely upon the circumstances of a particular case. „Attempt‟ defies a precise and
exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts
is proceeded by some covert or overt conduct which may be divided into three stages. The first
stage exists when the culprit first entertaines the idea or intention to commit an offence. In the
second stage, he makes preparation to commit it. The third stage is reached when the culprit
takes deliberate overt act or step to commit the offence. Such overt act or step in order to be
„criminal‟ need not be penultimate act towards the commission of the offence. It is sufficient if
such act or act were deliberately done, and manifest a clear intention to commit aimed, being
reasonable proximate to the consummation of the offence.”

40
(1980) 3 SCC 57
41
B.B.Pande “ An attempt on Attempt” (1984) 2 SCC Jour. 42 p.5
 P a g e | 24

Justice Chinnapa Reddy undertook the definitional exercise even more rigorously. He explored
the English decisions and finally concluded: - “In order to constitute an „attempt‟ first, there must
be an intention to commit a particular offence, second, some act must have been done which
would necessarily have to be done towards the commission of offence, and third, such act must
reveal with reasonable certainty, in conjunction with the other facts and circumstances and not
necessarily in isolation, an intention, as distinguished from mere desire or object, to commit that
particular offence”

On the question of definition of attempt the two decisions can be summed up as follows:

A. Both the opinions support the traditional view relating to the stages in the commission of a
crime and would place attempt stage in a sequence after the preparation stage.

B. Both the opinions agree that for constituting an attempt the requirement of mens rea i.e. the
state of mind to commit the offence attempted, and the actus reus, i.e. an overt act, must be
established.

C. Both the opinions agree that it must be established through independent evidence that the
accused had the intention of committing the offence attempted.

D. However, on the question of precise type of actus reus required the two opinions seems to be
taking different line. Justice Sarkaria specifically prefers the actus to be “reasonably” proximate
to the consummation of the offence, but no such condition appears to emerge from Justice
Chinnapa Reddy‟s opinion.
 P a g e | 25

SCOPE OF SECTION 511

Section 511, the last section of the Code, makes attempt to commit offences in general
punishable. The scope of the section, however, is limited to only those attempts where no express
provisions have been made by the Code for the punishment. This section does not apply to
attempt to murder which is fully and exclusively covered by section 307 of the Indian Penal
Code.42 Again, attempt to commit an offence under a special or local law is not punishable under
the Penal Code.43 The section further leaves unpunished attempts to commit those offences
punishable with fine only.44

The section applies to—

(i) Attempts to commit an offence punishable with imprisonment, and

(ii) Attempts to cause such an offence to be committed and in such attempt an act is done
towards the commission of the offence.

Punishment for attempt to commit an offence under section 511 may extend up to half of the
imprisonment for life or one-half of the longest term of imprisonment provided for that offence,
or such fine as is provided for the offence, or both.

An attempt is an act done in part execution of a criminal design, amounting to more than mere
preparation, but falling short of actual commission and possessing, except for failure to
consummate, all elements of the substantive crime.

It consists in the intent to commit a crime combined with the doing of some act adopted to, but
falling short of actual commission.

In State of Uttar Pradesh v. Ram Charan,45 the court held that attempt is an intentional act,
which a person does towards the commission of an offence, but which fails in its object through
circumstances independent of the volition of that person.

42
Queen Empress v. Nidha,(1891) ILR 14 All 38
43
Mohammad Akram v. State of Assam, AIR 1951 Assam 17
44
Ratanlal and Dhirajlal, The Law of Crimes, 23rd Edn., Vol. 2 (1998) 2522-2532
45
AIR 1962 All 359
 P a g e | 26

The accused was transporting grains by ferry boat from one block to another block across the
river in contravention of clause 3 of U.P Wheat (Restriction of Movement) Order, 1949. The
boat was stopped midstream and the accused was prosecuted for violation of the impugned order.
It was held that the act of the accused amounted to an attempt to transport the grain to another
block across the river in contravention of clause (3) of the order, since, but for the interruption,
thecommission of the offence would have been completed, and not mere preparation, on the
ground that the interception occurred a mainstream.

There are other provisions in which ATTEMPT is punishable are as follows:

Section 307: Attempt to murder

Whoever does any act with such intention or knowledge, and under such circumstances that, if
he by that act caused death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is hereinbefore mentioned.

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that if death ensued. A
would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender year exposes, it in a desert
place. A has committed the offence defined by this section, though the death of the child
does not ensue.

Section 308: Attempt to commit culpable homicide

Whoever does any act with such intention or knowledge and under such circumstances that, if he
by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall
be punished with imprisonment of either description for a term which may extend to three years,
or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with
 P a g e | 27

imprisonment of either description for a term which may extend to seven years, or with fine , or
with both.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he
hereby caused death he would be guilty of culpable homicide not amounting to murder. A has
committed the offence defined in this section.

Section 309: Attempt to commit suicide

Whoever attempts to commit suicide and does any act towards the commission of such offence,
shall be punished with simple imprisonment for a term which may extend to one year [ or with
fine, or with both].
 P a g e | 28

NEED TO REDRAFT SECTION 511, I.P.C.

The law commission of India46 proposed deletion of section 511 and insertion of new chapter VB
entitled „Of Attempt‟ consisting of the two sections 120C and 120D after VA dealing with
„Criminal Conspiracy‟ with a view to group inchoate crimes together. The proposed section
120C gives a comprehensive definition of attempt as shown below.

120C. Attempt- A person 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, proximate to, the commission of the offence;
and
(c) The act fails in its object because of facts not known to him or because of circumstances
beyond his control.

Section 120D provides for punishment for attempts as stated below:

120D. Punishment for attempt- Whoever guilty of an attempt to commit an offence punishable
by this Code with imprisonment for life, or with imprisonment for a specified 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 offence, for a term which mat extend to one-
half of the imprisonment for life, or, as the case may be, one-half of the longest term of
imprisonment provided for that offence or with such fine as is provided for the offence, or with
both.

This was a good suggestion and would simplified the law of attempt.

46
Law Commission of India, 42nd Report on Indian Penal Code, (Ministry of Law), (1971), pp. 138, 139
 P a g e | 29

RECENT CASES

Satbir @ Lakha vs . State of Haryana. 47

The facts relating to the filing of this appeal, briefly stated, are that on 18.02.1992, Ravi Dass
Jayanti was being celebrated in the village Saniana from donations collected from public. One
Joginder Singh asked the appellant and Dalbir to spend the excess amount for the upkeep of the
temple. At about 8 p.m. on that day, one Subhash s/o Nafe Singh (complainant), Jasbir Singh
(PW-7), Kashmir Singh (PW-6), Joginder Singh and Surender Singh were present in the shop of
one Kitab Singh, a tailor master. At that point of time, accused came to the spot and the appellant
stated to have questioned Subhash (complainant) and others as to on what authority they were
demanding for the accounts of the donation collections. When exchange of words took place
between the complainant party and the accused party, the tailor Kitab Singh asked them not to
indulge in such quarrel inside his shop and to get out of the shop. Thereafter all of them went out
and came down to the public street and in the course of their continued quarrel, the first accused
also by name Subhash s/o Ram Kumar stated to have inflicted a knife blow on the back of the
complainant Subhash s/o Nafe Singh (PW- 5) while Ram Das (A-4) caught hold of Kashmir
Singh and Dalbir Singh (A-3) caught hold of one Joginder Singh. Accused No.1, Subhash s/o
Ram Kumar stated to have inflicted knife injuries to Jasbir Singh and Kashmir Singh. The tailor
master Kitab Singh, Surender Singh and Joginder Singh tried to pacify both the groups and in
that process Surender Singh also stated to have suffered knife injuries.

According to the complainant party, by way of private defence, they threw brickbats on the
accused and that the accused stated to have fled away from the scene of occurrence. It was
specifically alleged that two of the accused, namely, the appellant and Ram Das (A-4) also
received injuries at the hands of Subhash s/o Ram Kumar (A-1) while he was giving knife blows
to Jasbir Singh and Kashmir Singh PWs-6 and 7 respectively. The injured complainants stated to
have gone to CHC Uklana in the vehicle belonging to one Baldev Singh where Subhash s/o Nafe
Singh was admitted and given treatment while PWs-6 and 7, namely, Kashmir Singh and Jasbir
Singh were referred to civil hospital, Hisar as the injuries sustained by them were serious

47
CRIMINAL APPEAL NO.1718 (18 . 10 . 2012) SC
 P a g e | 30

injuries. Surender Singh stated to have gone to CHC Uklana, Saniana on the next day where he
was also given treatment.

On receipt of the memo from the hospital, the sub-Inspector L.R. Sharma, PW-9 recorded the
statement of Subhash s/o Nafe Singh pursuant to which the case was registered under Sections
324, 323 read with Section 34 IPC. Subsequently, after the receipt of report from the G.H., Hisar
of the injuries sustained by Kashmir Singh PW-6, which were noted as serious injuries and were
dangerous to life, the offence under Section 307 IPC was also added. PW-9 stated to have
recovered a knife from the possession of Subhash s/o Ram Kumar (A-1) based on his disclosure
statement. Since the said knife was a spring actuated knife, a separate case under the Arms Act
was also registered against him.

Based on the investigation and after its conclusion the final report was lodged and a specific
charge under section 307, IPC was framed against the first accused Subhash s/o Ram Kumar and
a charge under Section 307 read with Section 34 IPC was framed against the appellant Dalbir (A-
3) and Ram Das (A-4). A charge under Section 323 IPC read with Section 34 IPC was made
against all the accused persons. PW-1 was the doctor J.S. Bhatia who was examined to prove the
X-ray report Exhibits PD and PE relating to PWs-6 and 7 Kashmir Singh and Jasbir Singh
respectively. As per the said Exhibit, it was stated that air was found under the diaphragm of
both the injured. PW-2 Dr. Sukhdev proved the MLRs Ex.PF and Exhibit PG of Subhash s/o
Nafe Singh and Surender Singh respectively. He found one incised wound on the back of
Subhash s/o Nafe Singh and two incised wounds near the chest and two simple injuries of blunt
weapon on the person of Surender Singh. He also proved in cross-examination the MLRs Exhibit
DA, of Satbir, Exhibit DE of Dalbir and also deposed about the injuries of Ram Das. He found
one incised wound on the back of Satbir Singh and one incised wound on the back of Ram Das.
Two injuries on the person of Satbir, two injuries on the person of Dalbir and one injury on the
person of Ram Das were found to be simple injuries caused with blunt weapons. PW.3 Dr. C.R.
Garg proved the MLRs Exhibit PL and Exhibit P.M. according to which five injuries caused with
sharp edged weapon, one of which consisted of two incised wounds, were found on the person of
Kashmir Singh and two incised wounds were found on the person of Jasbir Singh. Injury No.5 on
the person of Kashmir Singh which consisted of two incised wound in the left axillary midline
was declared to be dangerous to life.
 P a g e | 31

PW-8 Ram Niwas was a Panch witness who confirmed Exhibit PS, the disclosure statement
made by Subhash (A-1) about the concealment of knife and the recovery memo Exhibit PS/2 at
his instance pursuant to which the knife was taken into possession. The recovery of knife Exhibit
PS/2 based on the disclosure statement of Subhash was produced to support the case of the
prosecution that A-1 caused the knife injuries on PW6 Jasbir. Exhibit PY and PY/1 were the
reports of FSL and Serologist marked in the trial Court. In the 313 questioning, while the first
accused denied his involvement in the offence, the other accused took up the defence that it was
Kashmir Singh who gave knife blows to the appellant and Ram Das (A-4) while complainant-
Subhash, Joginder Singh and Surender threw brickbats at the accused while Jasbir Singh (PW-7)
alleged to have caught hold of Ram Das A-4. The trial Court recorded that no evidence was led
on the defence side.

The trial Court, on a detailed analysis of the entire evidence and after making a thorough
discussion of the respective contentions made on behalf of the accused including that of the
appellant found that no offence was made out as against Dalbir Singh (A-3) inasmuch as he did
not effectively participate in the occurrence and the knife blows were inflicted by A-1 Subhash
s/o Ram Kumar to the members of the complainant party. The trial Court also found that the
allegation that Dalbir Singh (A-3) caught hold of Joginder to whom A-1 alleged to have inflicted
the knife injuries was not proved inasmuch as no injury was found on the person of Joginder
Singh. The trial Court, therefore, acquitted Dalbir Singh (A-3).

As far as others were concerned, the trial Court reached the conclusion that the accused party
were the aggressors, that it was the appellant who was responsible for the aggression and that
there was a pre-meditated intention in common to injure the complainant party with the weapon,
such common intention was deliberately displayed in the course of committing the crime and,
therefore, the accused No.1- Subhash s/o Ram Kumar, A-2, Satbir @ Lakha and Ram Das (A-4)
were found guilty of the offence alleged against them.

The trial Court, therefore, imposed the sentence of three years‟ rigorous imprisonment on the
appellant and Ram Das (A-4) for the offence under Section 307 read with Section 34 IPC along
with fine of Rs. 1000/- and also rigorous imprisonment of 1 ½ years each for the offence under
 P a g e | 32

Section 324 read with Section 34 IPC. The sentences awarded to the accused under different
sections were directed to run concurrently and in default of payment of fine each of the accused
were to undergo further rigorous imprisonment for a period of three months each. As far as A-1
was concerned, he was imposed with a rigorous imprisonment for a period of four years along
with fine of Rs. 1000/- under Section 307 IPC and rigorous imprisonment of two years for the
offence under Section 324 IPC, in default of payment of fine he was to under go default sentence
of three months.

The appellant along with Ram Das preferred Criminal Appeal No.488- SB/1995 while A-1
Subhash s/o Ram Kumar preferred Criminal Appeal No. 580-SB/1995 and by the common order
impugned in this appeal, the learned Single Judge of the High Court of Punjab & Haryana at
Chandigarh confirmed the conviction and sentence imposed on the appellant as well as the other
convicted accused persons. The appellant has come forward with this appeal against that order of
the High Court.

Though it was claimed that the knife injury sustained by the appellant was at the hands of
Kashmir Singh, it was for the appellant to have led necessary evidence in support of the said
claim. Except the ipse dixit of the appellant throwing the blame on PW-6 Kashmir Singh, there
was nothing on record to support the said stand. On the other hand it has come out in evidence
that the responsibility of colleting the donations was entrusted to the appellant and the said stand
of the prosecution was not in dispute. As stated earlier the happening of occurrence on
19.02.1992 at 8 p.m. over the issue relating to collection of donation, the available balance of
such collection and the suggestion of one of the members of the complaining party to use the
said available balance amount for the benefit of the temple were never disputed. If that be so,
when indisputably the appellant was responsible for the collection and the spending of the
donation amount for the temple celebrations, it was quite natural that the complainant and the
accused party who were youngsters and who were stated to be fully involved in the celebrations
of the Temple festival felt that entirety of the donation amount collected should be spent out and
it should not go to the personal benefit of any one individual with whom the collection was
entrusted. Apparently the appellant who was enraged by the questioning of his authority about
the collection made and the balance amount available with him, felt insulted who apparently
threw a challenge to the complaining party on 19.02.1992 at 8 p.m. which unfortunately ended in
 P a g e | 33

the fateful occurrence of causing injuries on PWs-5,6 and 7 who had to ultimately face the wrath
of the appellant and his supporters. Apart from the simple knife injuries sustained by appellant
and A-4 Ram Das, the other injuries were admittedly by a blunt weapon which could have been
caused by the throwing of the brickbats at the instance of injured witnesses which was also
admitted. It is quite natural that when the injured witnesses were attacked and A-1 had come
there with a knife by which he caused the injuries and the other accused other than A-3 aided
him to cause such injuries which intention was gathered at the moment of the occurrence, the
injured witnesses could have made every attempt to save themselves by throwing brickbats
which would have been available on the road against the accused in order to save themselves
from any further attack. Therefore, no fault can be found with the said action of the injured
witnesses which would have caused some minor injuries on the appellant and the other accused.

Taking an overall consideration of the evidence available on record both ocular as well as
documentary the reasoning of the trial Court as well as that of the High Court we are also
convinced that the conviction and sentence imposed on the appellant for the offences under
Sections 307, 323 read with Section 34 IPC was fully made out and we do not find any good
grounds to interfere with the same. The appeal fails and the same is dismissed.

The appellant is on bail. The bail bond stands cancelled and he shall be taken into custody
forthwith to serve out the remaining part of sentence, if any.

Rattiram & Ors. vs State Of M.P.Tr.Insp.Of Police.48

In these two appeals assail is to the judgment of conviction and order of sentence passed by the
Division Bench of the High Court of Judicature, Madhya Pradesh at Jabalpur, in Criminal
Appeal No. 1568 of 1996 whereby the High Court concurred with the judgment of conviction
and order of sentence passed by the learned Additional Sessions Judge, Sagar, in Sessions Trial
No. 97 of 1995, except in respect of one Gorelal, Appellant No. 2 before the High Court and
Accused No. 2 before the trial court, wherein the present appellants along with Gorelal stood
convicted for offences under Section 302 read with Section 149 Indian Penal Code and other

48
CRIMINAL APPEAL NO. 223 18 April, 2013
 P a g e | 34

offences and sentenced to imprisonment for life with fine of Rs.1000/- , in default of payment of
fine, to further undergo rigorous imprisonment for three months.

The factual score, as depicted, is that on 29.9.1995, deceased Dhruv @ Daulat along with Ashok
Kumar, PW-5, Dheeraj, PW-6, Naresh, PW-7, and Leeladhar, PW-12, was returning home about
11.00 p.m. after attending a wrestling event which was organised at “Kher Mata” (temple) in
Makronia, a village in the district of Sagar. As Ashok Kumar, PW-5, complained of pain in the
stomach, all of them went to the shop of Gorelal for purchasing medicine and when they reached
the shop, all the accused persons coming from the house of Chhotelal surrounded deceased
Daulat and started assaulting him and despite the beseeching and imploring by the companions
the accused persons continued the assault, as a result of which the deceased fell unconscious. As
the prosecution story proceeds, he was taken to the hospital and, eventually, succumbed to his
injuries. On an FIR being lodged, the criminal law was set in motion and after investigation the
appellants were charge-sheeted under Section 3(1)(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act”), but, eventually, charges were
framed under Sections 147, 148 and 302 read with Section 149 IPC. The accused persons
pleaded innocence and false implication and claimed to be tried.

The prosecution, in order to establish its case, examined 13 witnesses and exhibited number of
documents. The defence chose not to adduce any evidence.

The learned trial Judge, appreciating the evidence on record, came to hold that the prosecution
had brought home the charges against accused, Mohan, under Sections 148 and 302 IPC and
against the remaining accused persons under Sections 147 and 302 IPC read with Section 149
IPC and apart from imposing separate sentences under Section 147 IPC sentenced each of them
to suffer imprisonment for life as stated hereinbefore.

Being dissatisfied with the judgment of conviction, the appellants along with others preferred a
singular criminal appeal. In appeal, apart from raising various contentions on merits, it was
submitted that the entire trial was vitiated as it had commenced and concluded without committal
of the case to the Court of Session by the competent court inasmuch as the Sessions Court could
not have directly taken cognizance of the offence under the Act without the case being
committed for trial. To bolster the said contention reliance was placed on Gangula Ashok and
 P a g e | 35

Another v. State of Andhra Pradesh, Moly and Another v. State of Kerala and Vidyadharan v.
State of Kerala. The High Court relied on decision in State of M. P. v. Bhooraji & Ors. and
treated it to be a binding precedent and declined to set aside the conviction or remit the matter for
de novo trial. The High Court proceeded to deal with the appeals on merits and came to hold that
except accused Gorelal all other accused persons were present on the scene of occurrence and
had participated in the assault and, accordingly, maintained the conviction and sentence in
respect of other accused persons and acquitted appellant No. 2 before the High Court.

. Applying the aforesaid principles, we are required to see whether all the appellants were present
at the time of occurrence. We have already opined that Chhotelal exhorted and other accused
persons, namely, Dhaniram, Mohan, Badri and Govardhan had assaulted the deceased and there
is ample evidence on record to safely conclude that they formed an unlawful assembly and there
was common object to assault the deceased who, eventually, succumbed to the injuries inflicted
in the assault. As far as other accused persons, namely, Babulal, Satyanarayan, Rattiram,
Kanchedi, Ramcharan and Ramesh are concerned, there are really contradictory statements with
regard to the presence of the accused persons because PW-12 has stated that Babulal was not
present at the place of occurrence. Ashok Kumar, PW- 5, has contradicted himself about the
weapons carried by Kanchedi, Ramcharan, Ramesh and Gorelal. Leeladhar, PW-12, has not
mentioned anything about Ramesh and Govardhan. From the apparent contradictions from the
depositions of PW-5 and PW-12 it seems that they have implicated Babulal, Satyanarayan,
Rattiram, Ramesh and Ramcharan in the crime.

As far as Govardhan is concerned, PW-5 has clearly stated that he and Badri hit Daulat with
sticks on the back and the neck. The medical evidence corroborates the same. Nothing has been
elicited in the cross-examination of PW-5 to discard his testimony. It has come out in the
evidence of PW-13 that PW-5 was going along with Babulal, Kanchedi and his brother. We are
referring to the same only to highlight that there is an attempt to implicate number of persons. It
is borne out in the evidence that the deceased was involved in many criminal offences and there
was some bad blood between the accused persons and the deceased. In such a situation it is not
unusual to implicate some more persons as accused along with the real assailants. Regard being
had to the totality of the evidence on record, filtering the evidence of PW-5 and PW-12 and on
 P a g e | 36

studied evaluation we are of the considered opinion that it is not safe to hold that the accused-
appellants Ramesh, Kanchedi, Rattiram and Satyanarayan were present at the spot and, therefore,
it will be inappropriate to record a conviction in aid of Section 149 IPC and we are inclined to
think so as we entertain a reasonable doubt about their presence at the scene of occurrence.

We will be failing in our duty if we do not deal with the contention of Mr. Khan that when there
has been total non-compliance of Section 157 of the Code of Criminal Procedure, the trial is
vitiated. On a perusal of the judgment of the learned trial Judge we notice that though such a
stance had been feebly raised before the learned trial Judge, no question was put to the
Investigating Officer in this regard in the cross-examination. The learned trial Judge has adverted
to the same and opined, regard being had to the creditworthiness of the testimony on record that
it could not be said that the FIR, Ext. P-7, was ante-dated or embellished.

It is worth noting that such a contention was not raised before the High Court. Considering the
facts and circumstances of the case, we are disposed to think that the finding recorded by the
learned trial Judge cannot be found fault with. We may hasten to add that when there is delayed
despatch of the FIR, it is necessary on the part of the prosecution to give an explanation for the
delay. We may further state that the purpose behind sending a copy of the FIR to the concerned
magistrate is to avoid any kind of suspicion being attached to the FIR. Such a suspicion may
compel the court to record a finding that there was possibility of the FIR being ante-timed or
ante-dated. The court may draw adverse inferences against the prosecution. However, if the court
is convinced as regards to the truthfulness of the prosecution version and trustworthiness of the
witnesses, the same may not be regarded as detrimental to the prosecution case. It would depend
on the facts and circumstances of the case. In the case at hand, on a detailed scrutiny of the
evidence upon bestowing our anxious consideration, we find that the evidence cannot be thrown
overboard as the version of the witnesses deserves credence as analysed before. Thus, this
colossal complaint made by Mr. Khan pales into insignificance and the submission is repelled.

In the result, we allow the appeals in part and affirm the judgment of conviction and order of
sentence recorded against the appellants, namely, Dhaniram, Mohan, Badri and Govardhan.
Accused Mohan has been released after completing fourteen years of imprisonment on getting
 P a g e | 37

the benefit of remission under Section 433A of the Code of Criminal Procedure. As far as
Dhaniram is concerned, he is in custody. The accused-appellants, namely, Badri and Govardhan
are on bail. Their bail bonds are cancelled and they be taken into custody forthwith. The accused-
appellants, namely, Satyanarayan, Ramesh, Kanchedi and Rattiram are acquitted and as they are
on bail, they be discharged from their bail bonds.

Aman Kumar and Anr. v. State of Haryana.49

Case Note:

Criminal - Conviction - Section 376(1) read with Section 511 of the Indian Penal Code, 1860
(I.P.C.) - Sessions Judge, convicted accused/Appellant for offence of rape and sentenced to
undergo rigorous imprisonment for seven years - Hence, this Appeal - Whether, order of Session
Judge was justified - Held, culprit first intended to commit offence, then made preparation for
committing it and thereafter attempted to commit offence - Therefore, attemptto commit offence
was act, or series of acts, which led inevitably to commission of offence - Careful consideration
of sequence of events, as narrated by victim, showed that Appellant volunteered to escort victim
to her house - However, tell tale materials available on record and evidence of victim, who was
innocent girl and which was corroborated by evidences on record - Hence, conviction of
Appellant/accused under Section 376/511 of I.P.C needed no interference - However,
prosecution had failed to prove victim to be less than 12 years of age, therefore, punishment of 7
years for attempt to commit rape under Section 376/511, I.P.C should not be imposed on accused
- Accordingly, in modification of order, sentence of 7 years rigorous imprisonment imposed on
Appellant was reduced to rigorous imprisonment (RI) for 5 years - Appeal disposed of.

"Person shall be liable for conviction, if offence is proved against him."

On 29.9.2003, PW1, father of the victim lodged an ejahar stating therein that on the previous
night, i.e., on 28.9.2003 the accused, Rubul Kurmi, while escorting his daughter (identity of the
victim not disclosed) from a local 'puja-mandap', organised near the play ground of Heelikha Tea
Garden, committed rape to his daughter on the roadside by taking advantage of darkness.

49
28-9-2013
 P a g e | 38

On receipt of the FIR (Ext. 1), the Officer-in-charge of Mariani, Police Station registered a case
under Section 376(f), IPC and launched investigation. During course of investigation, the Police
got the victim medically examined and caused her statement to be recorded under Section 164,
Code of Criminal Procedure. During the course of investigation Police also seized garments
worn by the victim at the time of occurrence. The Investigating Officer also arrested the accused
and seized the under-garments worn by the accused at the time of occurrence. The seized
garments were sent for serological examination in the Forensic Science Laboratory, Kahilipara,
Guwahati. The accused was remanded to jail custody by the court. Thus, on completion of
investigation, the I.O. submitted the charge sheet against the accused above named alleging
commission of offence under Section 376(f)/511/506, IPC. The offence alleged against the
accused being exclusively triable by the Sessions Court, the case was committed to the Court of
Sessions, Jorhat, for trial. The learned Sessions Judge, Jorhat, accordingly transferred the case to
the Court of learned Addl. Sessions Judge, Jorhat, for trial.

During course of trial, the learned Addl. Sessions Judge, Jorhat, finding materials to presume
commission of offence under Section 376(f), IPC alternatively under Section 376, IPC read with
Section 511, IPC framed formal charges against the accused. On reading over and on explaining
the charge, the accused pleaded not guilty and claimed to be tried.

The prosecution side examined as many as 13 witnesses in order to prove the charges framed
against the accused above named. The Judicial Magistrate who recorded statement of the victim
under Section 164 of Code of Criminal Procedure was also examined as witness. All the
witnesses aforesaid were duly cross-examined by the defence counsel. On completion of the
recording of prosecution evidence, learned Addl. Sessions Judge recorded the statement of the
accused as per provision of Section 313, Code of Criminal Procedure. In his statement under
Section 313, Code of Criminal Procedure, the accused took the stand of total denial and declined
to adduce defence. Upon perusal of the materials on record and after hearing, the arguments
advanced by the learned P.P., and learned defence counsel, the learned Addl. Sessions Judge,
Jorhat, convicted the accused as aforesaid giving rise to this appeal.

In order to appreciate the appellate order passed by the learned Addl. Sessions Judge, Jorhat, it
would be apposite to marshal the evidence on record, both oral as well as documentary led by the
prosecution to establish the charge against the accused, keeping in view the defence stand of total
 P a g e | 39

denial. PW1, Shri Mahendra Sabar, is the father of the victim, i.e., PW2, Smt. Gunahari Sabar,
PW3, is the mother of the victim, PW4, Shri Dilip Tanti is the Garden Chowkidar of Heelikha
Tea Estate, PW6, Shri Anil Sabar is the uncle of the victim and PW7, Smt. Aroti Kurmi is the
mother of the accused, all of whom deposed to confirm that on the night of occurrence, a
function was organized for Karam Puja in the Heelikha Tea Garden play ground. The victim in
her deposition confirmed that she had been to the function with her mother, sister and her uncle
named Krishna. The fact of victim attending the function together with her mother is also
corroborated by her father and other prosecution witnesses. The victim PW.2, i.e., stated that at
about 9 p.m. her mother returned home from the function, leaving her in the function in the
custody of her uncle, Krishna Sabar. This piece of evidence given by PW1 was also corroborated
by PW3, i.e., mother of the victim, PW1, i.e., father of the victim and PW6, i.e., uncle of the
victim. The victim, (PW2) deposed that while she was enjoying the function at night she felt
sleepy and accordingly requested her uncle Krishna to take her home. At that time, one Mr.
Mulu, a helping hand working in the house of the accused wanted to take her home. And
accordingly, the victim decided to come home with Mulu. In the meanwhile, the accused who
was also present at the function volunteered to take the victim home and directed Mulu, not to
accompany her. Accordingly, the victim, PW.2 came with the accused to go home by sitting in
the carrier of the bicycle belonging to the accused. This fact of taking the victim in the bicycle by
the accused is also corroborated by PW6, Shri Anil Sabar, uncle of the victim. PW4, Shri Dilip
Tanti, PW8, Shri Sibdulal Singh, garden chowkidar of Heelikha Tea Estate, both deposed that at
about 11.30 p.m. on the date of occurrence, while they were in the factory gate, they had seen the
accused crossing the cattle bridge of the garden on foot by dragging a bicycle together with the
victim. From the aforesaid facts corroborated by the witnesses, it is apparent that the victim came
with the accused from the venue of the function to her residence at night on the date of
occurrence. The victim further deposed to confirm that the accused who carried her in the carrier
of the bicycle, instead of taking her through the straight road took a long path home. After riding
the bicycle for some distance, the accused got down from the bicycle. The victim also had to get
down from the carrier of the bicycle. After that the accused laid down her on the ground, took off
her panty and inserted his penis into her vagina. She raised alarm. As the accused could not
penetrate his penis into her vagina, then the accused tried to push his finger into her vagina. PW2
then stood up and put on her panty. The accused then threatened to kill her if she divulged the
 P a g e | 40

incident to any other person. Thereafter, the accused carried her in the bicycle and left her near
her residence.

From the cross-examination of PW2 it transpires that on reaching home, the victim called her
mother by screaming at her. On hearing screams of the victim both her parents, PW1 and PW3
came out. The victim narrated the incident to her parents. Both PW1 and PW3 corroborated to
confirm to have seen blood dripping from the private parts of the victim on her legs. Her father,
for treatment, took the victim to Garden Hospital, wherefrom she was taken to the Police Station
and the Civil Hospital. The Police sent the victim to the Civil Hospital, Jorhat for medical
examination and also produced her in the court for recording her statement under Section 164,
Code of Criminal Procedure P Ws1 and 3 narrated the facts stated to them by the victim,
immediately after the occurrence. The victim also stated in her deposition that immediately after
reaching home she had narrated the occurrence to her parents. P Ws1, 2 and 3 testified handing
over of undergarments worn by the victim at the time of occurrence.

The Investigating Officer, PW13, Smt. Pallabi Das, S.I. of Police confirmed seizure of panty
and frock worn by the victim and underwear worn by the accused at the time of occurrence.
PW13 stated that all the under garments so seized were sent for medical examination at the
Forensic Science Laboratory, Guwahati. PW10, Dr. Renu Bora Handique, Senior Scientific
Assistant, Serology Department of Forensic Science Laboratory, Kahilipara, deposed that she
had found human blood on the garment of the victim but had not detected any stain of human
blood in the underwear worn by the accused. On close scrutiny of the evidence led by the
victim, PW2, it is vividly clear that the accused in his attempt to commit rape could not penetrate
his penis into her vagina and as such pushed his finger on the vagina of the victim. Obviously, in
the circumstances narrated above, as the accused did not reach the stage of ejaculation possibility
of ejaculating sperms did not arise. Thus, there was no sperm either on the panty of the victim or
in the underwear worn by the accused. Dr. Robi Bora, PW11, the Medical and Health Officer of
Heelikha Tea Estate deposed that on 20.9.2003 at about 1 a.m. he had examined the victim on
being produced by her father, Mohendra Sabar and found the following injuries upon her person.
 P a g e | 41

PW5, Dr. Jahida Khatoon, examined the victim in the Civil Hospital and found the hymen of the
victim intact and did not notice any other injury or biting mark on the person of the victim or in
her private parts. On serological examination, PW5 also confirmed that no spermatozoa were
detected in the vaginal swab collected from the victim. Thus, conjoint reading of the evidence so
given by PW5 together with the evidence of PW10 and the victim, PW2, rules out penile
penetration in the vagina of the victim, followed by ejaculation of sperms at the time of
committing the offence. PWs1 and 3, the parents of the victim although stated that the victim
was 10 (ten) years of age at the time of occurrence, however, PW5, who carried out ossification
test to confirm age of the victim, deposed that the victim was below 16 years of age at the time
of examination. However in her cross-examination, PW5 further relaxed the authenticity of such
test by stating that there may be difference of ± 2 years in such tests. No birth certificate of the
victim or any other proof could be produced by the prosecution in order to substantiate the age of
the victim at the time of occurrence.

Thus, apparently, prosecution could not establish the age of the victim to be below 12 (twelve)
years to attract the provisions of Section 376(2)(f), IPC read with511, IPC. Over and above, the
learned court below also did not find the accused guilty of offence under Section 376(2)(f), IPC
read with Section 511 of IPC. Therefore, I do not want to delve on this issue any further. Mr.
J.M. Choudhury, learned senior counsel submitted that the evidence on record does not warrant
conviction and sentence of the accused Appellant for an offence under Section 376, IPC read
with Section 511 of the IPC, inasmuch as no offence of attempt to commit rape has been made
out. Learned senior counsel further pointed out that although not admitting at the most an offence
under Section 354, IPC may be attracted against the accused for outraging the modesty of the
victim.

The plea relating to applicability of Section 376 read with Section 511, IPC needs careful
consideration. In every crime, there is first, intention to commit, secondly, preparation to commit
it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is
complete. If the attempt fails the crime is not complete, but law punishes the person attempting
the act. Section 511 is a general provision dealing with attempts to commit offences not made
punishable by other specific sections. It makes punishable all attempts to commit offences
punishable with imprisonment and not only those punishable with death. An attempt is made
 P a g e | 42

punishable, because every attempt, although it falls short of success, must create alarm, which by
itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral
guilt must be united to injury in order to justify punishment. As the injury is not as great as if the
act had been committed, only half the punishment is awarded.
 P a g e | 43

CONCLUSION

The reasoning behind the imposition of responsibility for criminal attempts has been stated to be
to control dangerous conduct or person. What are the values which criminalizes the attempt?
Answer to this question lies in the values which impose the criminal liability to commission of
crime. For the commission of crime by person involves four stages viz, formation of the
intention or mental element, preparation for commission of crime, acting on the basis of
preparation, commission of the act resulting in an event proscribed by law. To criminalize
attempts these four stages are involved but the last stage fails to complete. As stated by Kenny,
criminal liability will not begin until the offender has done some act which not only manifests his
mens rea but also goes some way towards carrying out it. In this regard, to commit offence of
attempt mens rea, preparation and actus reus are necessary values but the actus reus is failed to
be completed. This values generally criminalize the attempt and impose criminal liability on the
person who commits the offence of Attempt.

The category of inchoate criminal conduct is generally understood to be substantial in some

senses of that word—both large and important. At the same time, however, the definition of the
category has thus far lacked substance, itself remaining inchoate: unclear, undeveloped, and
amorphous. The foregoing discussion, though also inchoate—tentative, preliminary—in its own
right, has sought to give firmer shape to this significant but slippery class of crimes. If the
account I have offered is not persuasive, hopefully it might at least stimulate some effort to
provide a better account that would fill the current conceptual void, or else serve to demonstrate
that this often-used categorization is fundamentally incoherent and/or unhelpful and should
simply be abandoned.

attempts, where the defendant has taken steps "towards carrying out a complete crime",
Historically speaking, the law of attempts exemplifies the criminal law‟s failure to achieve its
doctrinal ideals of simplicity, definition and transparency. Consequently the interpretation of
criminal law has been influenced by the vagaries of each case and the future possibility of
producing principles, specific and exact, appears black. It is only right therefore that the courts
apply their judiciousness appropriately so that the law of attempts fits into the altered parameters
of criminal law correctly.incitement, where the defendant has encouraged others to commit a
 P a g e | 44

crime, and conspiracy, where the defendant has agreed with others to commit a crime. In each
case, the defendant "has not himself performed the actus reus but is sufficiently close to doing
so, or persuading others to do so, for the law to find it appropriate to punish him". Inchoate
crimes have deep historical roots in both common law and civil law systems. Incitement is
prosecuted in essentially every jurisdiction as either a means to accomplish a crime or a
substantive offense on its own. Group criminality has been addressed by both a “conspiracy”
standard (traditionally in common law systems) and a “criminal organization” standard
(traditionally in civil law systems). Both incitement and group criminality have been punished
by international tribunals, showing that opinio juris backs the introduction of such crimes into
the customary international law. In order to punish violations of international law, the
international community should formally recognize the existence of customary norms on
inchoate crimes, to facilitate domestic prosecution of crimes against the law of nations.
 P a g e | 45

BIBLIOGRAPHY

BOOKS
 THE INDIAN PENAL CODE-4th EDITION--- K.D GAUR
 COMMENTARY ON THE INDIAN PENAL CODE,1860 --K.D.GAUR
 COMMENTARY ON THE INDIAN PENAL CODE 1860 --- MULLA
 THE INDIAN PENAL CODE--- PILLAI
 BARE ACT OF IPC.

WEBSITES
 www.manupatra.com
 www.indiankanoon.org
 www.scconline.com
 www.jstor.com
 www.legalservices.com
 www.advocatekhoj.com