Criminal Attempt is the stage when the offender has completed all the necessary steps required for the commission of an offence but the consequence has not taken place. There are four stages of commission of an offence i.e. Intention, Preparation, Attempt and Accomplishment. Criminal attempt relates to third stage. What makes Criminal Attempt jurisprudence remarkable is that generally in most offences it is mens rea which is ancillary to actus reus but here it is actus reus which is ancillary to mens rea.
Object:
Article 38 of Constitution of India, mandates the Government to create a secure social order and promotion of welfare of people. Making an offence punishable at attempt stage is an endeavour in this direction. A welfare state is in pregnant obligation not only to punish the offender after commission of offence but to take appropriate steps to nip the evil in the bud itself.
Essentials:
1. Specific intent to commit the crime.
2. An act towards the accomplishment of crime.
3. Failure of that act.
Relation with Indian Penal Code, 1860:
Under Indian Penal Code, 1860 (hereinafter IPC) Attempt can be of four kinds. Those are as under:
1. When attempt and main offence punishable in same manner.
e.g. a. S.121 Waging war against India (or attempt to do so)
b. S.124A Sedition (or attempt to do so)
2. When attempts are made separately punishable
e.g. a. S. 307, 308 IPC etc.
3. When attempts are merged in main offence i.e. they form part of the same transaction.
These offences have been made punishable without using the word attempt.
e.g. a. Assault S.351, b. Conspiracy S.120A, c. Abetment S.107 IPC etc.
4. General Attempts (S.511 IPC)
The fourth category caters regarding General Attempts. When there is no express provision in IPC we take help from S.511 IPC. Section 511 has a very limited scope. It is only applicable to offences which are punishable with Life Imprisonment or Imprisonment meaning thereby it excludes offences which are punishable with the death penalty or simple fine. In State of Maharashtra v. Mohd Yakub(1980 SCR (2) 1158) Supreme Court explained that in order to constitute attempt there must be three things.
a. Intention to commit particular offence.
b. Some act done towards commission
c. An act done must be proximate to the intended result.
Impossible Attempt:
Impossible Attempt is another dimension of criminal attempt jurisprudence. It relates to situations when though there was an attempt but the subject matter itself was absent. The theory is criticized also because it has no legislative basis. It's largely based on judicial decisions. Law Commission of India has in its 42nd Report 1972 recommended to delete S.511 IPC and add new Section 120C to clearly introduce offence of Criminal Attempt of general category.
Impossible Attempts can broadly be divided in three parts.
1) Legal Impossibility:
An attempt to commit an act which is not punishable by law.
e.g. a. Attempt to Adultery with an unmarried woman.
b. Woman cant be made liable for an attempt to rape.
c. Child below 7 years cant be liable for an attempt to the offence.
2) Relative Impossibility i.e. Impossible on part of Actor:
It relates to situations when the preparation was itself incomplete. In reality the actor never reached the stage of attempt.
e.g. Z gives tea to Y after mixing poison in it. In fact it was not poison but only brown sugar. Here, the attempt is relatively impossible and accused will incur no liability.
3) Factual Impossibility:
It relates to a situation when the object was absent though an effort was done to commit the offence. Here it can further be divided into two categories.
a. Object absent in Property related offences.
b. Object absent in Human body related offences.
The striking and confusing aspect of factual impossibility is that when the object is absent in property-related offence than they are punishable.
e.g. Thief goes to steal. He puts a hand in jewel box but box was empty. Still, thief is punishable with attempt though the attempt was factually impossible. (For support see S.511 Illustrations.)
However, when the object is absent in human body related offences than attempt is not punishable.
e.g. a. X shot at Z’s blazer thinking it to be Z. But it was merely blazer hanging on a stand. Here X will not be liable because attempt was factually impossible. (See Ashgar Ali v. Emperor 1933 PC).
It is very strange that though liability is arising in property-related attempts but not in human body related attempts. One possible answer of this distinction can be because of gradation of offences against the human body which do not exist in offences against property. Offences against the human body may be assault, hurt, grievous hurt etc. but no such gradation exists in property-related offences. A theft is theft irrespective of the value of the property. But, at the same time, this speculation cannot be given much weightage as rues of criminal law are governed by strict interpretation and not on mere speculations.
Law of Criminal Attempt is unfair and in confusion state. There is a need of repeal of Chapter 23 and Section 511 IPC as recommended by the Law Commission of India in 42nd report 1972 and new section S.120C should be introduced to provide clear and unbiased law. Secondly, it is also necessary because a strong law is foundation of smooth law and order in society. At a time when subordinate courts in India are struggling hard to dispense justice because of limited infrastructure and resources, they may not survive a second blow of a weak law which is subject to vague interpretation as discussed above. Law of criminal attempt gains prominence under Indian jurisprudence because it is a sharp departure from traditional law theories such as Law is a command, Law is natural etc. In such circumstances, it becomes a bounden duty of Magistrates especially working in subordinate Courts to understand correct rhythm of social awareness and impact of unclear law to society. Magisterial vigilance which is the thrust of entire criminal procedure jurisprudence in India must radiate into the marrows of rationality to serve the society better.
Harihar Gupta
LL.M.
