The law of attempt is still difficult to understand because of th following reasons :-

1. Lack of precise legislative def

2. The mental and physical element involved varies considerably depending upon the
nature of the offence attempted
3. Broad and narrow interpretation of the offence by the courts in view of the
prevailing policy

These problems are discussed and highlighted in the case of state of mah v. mohd yakub

Trial mag convicted the accused, whereas add sessions and high court acquitted on the
grounds that the facts proved does not show that the accused had not proceeded beyond
the stage of prep. On appeal, supreme court order conviction.

2 judges- sarkaria and chinnappa

Concurring judgements but separate

Def tangle- Attempt is nowhere defined in the IPC. It is difficult to define attempt because it
has to derive itself from the nature of the offence attepted. Therefor ethe decision makers
have to rely on the scholarly articles or judicial pronouncements so as to solve the problem
on hand in the light of the relevant statutory provisions.

The SC was conscious of the def tangle.

Justice Sarkaria :- 1. It is a mixed question of law and fact depending largely upon the
circumstances of a particular case
2. All crimes before commission are preceded by some covert and overt conduct that can be
divided into three stages

1. Intention to commit the offence

2. Preparation to commit
3. Deliberate overt acts to commit the offence. These act acts need not be the
penultimate acts leading to the commission of the offence. It is sufficient if such acts
were deliberately done, manifest a clear intention and are reasonably proximate.
Justice Chinnappa took this exercise to define attempt even more rigorously
He said that in order to constitute an attempt:-
1. Intention
2. Some acts done towards the commission of the offence
3. Such act must be proximate to the intented result. Here the measure of proximity is
not in relation to time and place but in relation to intention.

Both the judgements agreed on 3 things:-

Attempt stage comes after preparation
Mens rea and actus reus must be established
Intention

While they differed on the question of precise type of actus reus. Sarkaria said that the
actus reus should be reasonably proximate to the consummation of the offence but no such
condition appears to emerge from justice chinnappa reddy’s opinion
PROXIMITY REQUIREMENT

1. Identification of overt act is vital. In all the cases of attempt the accused’s effort falls
short of the actual offence stage. But these cases might vary in respect of the time
span of the offence.
2. Where the act is still remote to the actual offence the overt act cannot be rightly
described as the actus reus required for the attempt. Professor Glanville Williams in
this context said that ‘ to be guilty of attempt the accused must have progressed a
sufficient distance along the intended path’. He suggests a test for the identification
of the proximate acts called ‘the equivocality theory of proximity’ –
Justice sarkaria relied upon the abhayanand view that a person commences attempt the
moment he commences to do an act with the necessary intention. In the instant case he
says that the pvert case is proximate because they had reached the creek from whichthe
sound of the engine of a sea craft was heard. Most of the steps necessary were already
taken and the only step remained to be taken towards the export of the silver was to load it
on a sea-craft for moving out of india. Thus he considered proximate in terms of the actual
physical proximity to the objective of exporting silver out of India

Justice Chinnappa considered proximity in relation to intention and not time and place

THE PROBLEM OF PROOF