The Attempt and Not the Deed Confounds Us

INTRODUCTION

“The attempt and not the deed confounds us.”

-Macbeth-II

These words pinned down by Shakespeare are true to the law of attempt as well. The law of attempt is hard to understand and is thus noted for its intricacies. Firstly a lack of precise legislative definition of the inchoate offences; [1] secondly, mental and physical ingredients varying considerably with the nature of the substantive offence attempted; and thirdly, the possibility of a broad or narrow interpretation of the offence by the Courts in view of the prevailing penal policy. [2] Every offence before reaching its peak passes through four stages. They are:

The Intention to commit an offence

The Preparation to commit an offence

The Attempt to commit an offence

The Accomplishment or Commission of the Offence. It is dependent on the success of the third stage. [3]

For stage 4, the attempt has to succeed. If it fails due to reasons beyond control, it is said to constitute an attempt to commit the offence. [4]

THE MEANING, NATURE AND SCOPE OF ATTEMPT

Though attempt is nowhere defined in the Indian Penal Code, the common law principle creating criminal liability for offences in the attempt stage is fully subscribed to by the provisions relating to the attempt in the code. Attempts have been classified into 3 kinds of treatment as per the IPC. They are:

Attempts that are treated par with the actual offence and entail the same sanction as the attempted offence itself. For e.g. ss. 121, 124, 124-A, 125, 126, 131 etc. They are offences like sedition, waging or attempt to wage war against the govt. of India, using evidence known to be false etc.

Some attempts are kept on a special footing and treated in terms of the special provisions. They include offences like attempt to murder (S.307), attempt to commit culpable homicide (S.308), attempt to commit suicide (S.309) etc.. The offences themselves are provided separate punishment, for e.g. S.302 which provides for punishment for murder.

Attempts that are not covered by the first two categories. They are thus subject to a general omnibus that provides the definition and sanction for attempts under diverse situation. This is provided under Sec. 511 of the IPC.

3. THE ACTUS REUS & MENS REA OF ATTEMPT

# The Actus Reus of Attempt:

A person is guilty of an attempt if he does an act which is more than merely preparatory to the commission of the offence which he intended to commit. It may be determined with certain tests, which are described briefly as follows:

Proximity Rule:

This rule has been stated thus, “it seems that the act of the accused is necessarily proximate if, though it is not the last act that he intended to do, it is the last act that is legally necessary for him to do if the result desired by him is afterwards brought about without further conduct on his part.” [5]

Doctrine of Locus Penitentae:

A person attempting an offence may abandon it at some stage before completion though initially he had the intention. This doctrine was adopted by the Supreme Court in Malkiat Singh v. State of Punjab. [6] However, a changed view later came in State of M.P. v. Narayan Singh. [7] But if this theory is pressed to illogical ends there would hardly be left any field for the penal clause of attempt to cover the distance between preparation and actual commission. [8]

Equivocality Test:

This test suggests that an act is proximate if, and only if it indicates beyond reasonable doubt what is the end towards which it is directed. The actus reus of an attempt to commit a specific crime is constituted when the accused person does an act which is a step towards the commission of that specific crime and the doing of such an act cannot reasonably be regarded as having any other purpose than the commission of that specific crime. [9] Here, intention followed by mere preparation is not sufficient to constitute an attempt, but preparation must be followed by an act towards the commission of the crime. According to Prof. Glanville Williams this test on a strict application would acquit many undoubted criminals.

4. Social Danger Test:

The seriousness of the crime attempted has been one of the criteria in deciding the liability in cases of attempt. [10] If the facts and circumstances of a case led to the inference that the resultant consequences would have been grave, the crime of attempt is complete. In fact it is the apprehension of a social danger which the particular crime is calculated to excite that determines liability for an attempt.

# The Mens Rea in Attempt:

In order to support the charge of attempting to commit a crime, it must be shown that the defendant intended to commit the completed crime to which the charge relates. However, although this means that it must be proved that the defendant intended to commit an act or continue with a series of acts which, when completed, will amount to the offence allegedly attempted and that the defendant intended any requisite consequence of that offence to result from his intended act or acts, [11] intention does not have to be proved as to any circumstances of the actus reus of the offence allegedly attempted or any ulterior element of it if recklessness, negligence or even blameless inadvertence suffices for the completed offence because proof of recklessness as to these elements suffices instead on a charge of attempt. [12]

4. ATTEMPT AT IMPOSSIBLE OFFENCES

If it is impossible to commit a crime, obviously no one can be convicted of committing it. But it does not follow that no one can be convicted of inciting another, or conspiring, or attempting to commit it. As a matter of fact, people do, from time to time, incite, conspire and attempt to do what is impossible. The problem arises in the cases of attempt which in the nature of things, cannot lead to completion. There are numerous reasons why the crime might fail. For e.g. police intervention, using a useless gun etc. might lead to the failure of the offence attempted. A special class of these failures has been singled out for concern among judges and theorist’s seeking to subject the crime of attempt to just boundaries. The attempts to commit offences which are impossible to be committed under the existing circumstances are conventionally called ‘impossible attempts’. They are typified cases of attempting to pick an empty pocket or to kill by shooting at a tree stump, thinking it is a person. [13]

5. LEGAL POSITION ON ATTEMPT AT IMPOSSIBLE OFFENCES

# IN ENGLAND:

The following case laws clarify position of law in England:

R v. McPherson (1857) 1 D & B 197

Haughton v. Smith (1973) 3 All ER 1109 HL

Anderton v. Ryan [1985] A.C. 560

R v. Shivpuri [1987] A.C. 1

# IN INDIA:

The law in India is the same as England. However, the legal framework relating to law of attempts sketched under the IPC does not specifically deal with an attempt to do an act that is impossible to do. Nevertheless, illustrations (a) [14] and (b) of Section 511 shows that a person can be convicted of stealing some jewels from an empty jewel box or something from an empty pocket. The importance is on the belief of the person and the intention preceding his action to do a particular act.

6. CONCLUSION & THE NEED FOR REFORM

From the illustrations in Sec. 511, it is clear that it is possible to commit an impossible theft and can go against the code because theft is itself an offence against the code and may therefore be attempted within the meaning of the Code. [15] At the same time, it is necessary to show that the means adopted are apparently suitable for the fulfillment of the design. [16] Thus, where a man threatens the life of another with a child’s pop gun using a cork as a projectile or tries to pick the pocket of a man who is well beyond the reach of his hand, no attempt either to commit murder or to steal can be said to have been committed as the means adopted are impossible of achieving the designed purpose. Similar would be the case with regard to absolutely impossible acts such as trying to steal from an empty pocket or trying to kill a person by shooting at a bulge in a bed thinking it to be the enemy. However, the peculiar situation in Indian law is that the former is made punishable under Sec. 511 while the latter is not made punishable under Sec. 307 as it is an absolutely impossible act. In the latter case, the accused is not on the job as he thinks. This view has been summed by Rowlatt J in R v. Osborn, [17] as follows:

“It is well known that the impossibility of a thing does not prevent an attempt being made. If you try to burst open the very best kind of steel safe with a wholly insufficient instrument, you are still guilty of the attempt, although you never could have completed it, because you are at the very thing and trying to do it. But where the man is never on the thing itself at all, it is not a question of the impossibility, he is not on the job; if he fires his gun at a stump of a tree thinking it is his enemy and his enemy is miles away, and there is nobody at the field at all, he is not near enough to the job to attempt it; he has not begun it; he has done it all under a misapprehension.”

This absurdity given above has been taken note of by leading authorities on IPC like Shamshul Huda. In his work ‘Law on Crimes’ he has discussed this with a very similar example which is as follows: A intending to kill B fires at B’s coat hanging in his room mistaking it for B. Will A be guilty of an offence? So far as the language of Sec. 511 is concerned, it seems that if it covers the case of pick pocket, it ought to cover this case also. It becomes a case of attempted murder and disapproving of punishment in such a case should be overcome by passing a light sentence upon the offender. Moreover, Section 511 does not recognize any distinction on the impossibility of the evil consequence.

In Om Prakash v. State of Punjab [18] , the Supreme Court held that the expression “whoever attempts to commit an offence” in Sec. 511 can only mean whoever intends to do a certain act with the intend or knowledge necessary for the commission of that offence. The same is meant by the expression “whoever does an act with such intention or knowledge and under such circumstances that if by such act caused death, he would be guilty of murder” in Sec. 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The act in both these Sections need not be the last proximate act. If this approach is applied, then shooting at a bulge thinking it to be the enemy will constitute an attempt to murder.

The problem of impossible attempts thus is without solution and a close examination of the matter is required. The Law Commission of India in its 42nd Report on the Indian Penal Code submitted to the Ministry of Law in 1971 at pp.138, 139 proposed the deletion of Sec. 511 and insertion of a new chapter VB entitled ‘Of Attempt’ consisting of the two Ss. 120C and 120 D after chapter VA dealing with ‘Criminal Conspiracy’ with a view to group inchoate crimes together.

7. RESEARCH METHODOLOGY:

Statement of problem: What is the meaning, nature and scope of the law of attempt under the Indian Penal Code?

Aim and Objective: The purpose of the project is to discern the law of attempt. Main object is to conceive the subject as to creating criminal liability for offences in the attempt stage on certain grounds in the context of relevant catena of circumstances.

Hypothesis: Whether law of attempt under Indian Penal Code need reform or is formulated specially so as to meet new circumstances sufficiently as well.

Sources: This project has absorbed the doctrinal or traditional research method. This is accomplished by using primary sources of law like text essays, books, articles, circulars, orders, case briefs etc as well as secondary sources through e-law journals and Legal services websites.