INTRODUCTION

INCHOATE CRIMES
The word Inchoate offence in ordinary sense means just begun or underdeveloped, and is used
in English criminal law 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. An inchoate
can be defined as a preparation for committing a crime. The inchoate offences can also be termed as
preliminary crimes or anticipatory crimes. Inchoate offence has been defined as conduct deemed
criminal without actual harm being done provided that the harm that have occurred is one the law
tries to prevent.. For an inchoate offence there must be Mens Rea and in some cases there must be
Actus Reus also. Example: If A after procuring a loaded gun fires at B but however B escapes, but
even though A will be liable for punishment for attempting the offence.
And also in above case there exits Mens Rea and Actus Reus but however it does not made any
injury. Criminal liability is not limited to those people who succeed in committing it also exceed to
those who try to commit an offence whether they succeed or fails are not in question of matter. The
Penal Code 1860 has accordingly made provision for the punishment of persons involved in such
preparatory acts in order to prevent the crimes from being committed. According to English law the
crime which penalize conduct before the commission of the crime are known as inchoate offences.
Common law has developed the three types of inchoate offences such as:-
(1)Attempt :where the defendant has taken steps towards carrying out a complete crime.
 (2)Incitement : where the defendant has encouraged others to commit a crime
(3)Conspiracy : where the defendant has agreed with others to commit a crime.

In each case, the defendant has not performed the actusreus but is sufficiently close to doing so or
persuading others to do so, for the law to find it appropriate to punish him.

Types of Inchoate offences

The inchoate or preliminary crimes are classified into:

(1) Abetment
(2) Criminal conspiracy
(3) Criminal Attempt

CRIMINALATTEMPT
Attempt in criminal law is an offence that occurs when a person comes dangerously close to
carrying out a criminal act and intends to commit the act, but does not in fact commit it. In
English law, an attempt is defined as doing an act which is more than merely preparatory to the
commission of the offence. According to the Criminal attempt Act, 1981. Mainly there are three
types of criminal attempt.
 (1) Complete Attempt : That when a person takes every action required to commit a crime
but fails to succeed it that is for example- A after procuring a loaded gun fires at B but
however B escapes, this is a complete attempt.
(2) Incomplete Attempt : This is when a person abandons or is prevented from completing
a crime due to an event beyond his control such as due to arrival of police on the spot
etc. can be categorized in this type.
(3) Impossible Attempt : It arises when the convict makes a mistakes in committing a crime
for example- A took a gun pull the trigger but the bullet did not come/ or/ firing the gun
only to realize that it was not loaded.

It can be drawn that criminal offences by a person have a distinct stages:

(1) Intention
(2) Preparation
(3) Attempt
(4) Commission

Among these, criminal law does not penalize the first two stages because it is not possible to look
so deep into the mind of a person to prove his inner intention. The devil himself does not know the
thought of a man, so it is absolutely difficult to define the contemplation in the mind of an
individual and punish him for the idea in his head.in early times criminal attempt was not punished
under common law or by IPC. This is because it would be impossible to prove that the object of an
accused was to commit an offence. Early common law did not punish attempts; the law of attempt
was not recognized by common law until the case of Rex v. Scofieldin 1784. This is the first case
in which law of Attempt was recognized by common law.

R. v. Higgins.It was the first case in which it was clearly decided that an Attempt to commit a
crime is at common law itself a crime.

Elements of Criminal Attempt

1) Intention to commit a crime
2) An act towards the commission of a crime
3) A failure to commit crime.

Criminal attempt under the ipc 1860

Attempt to commit capital offences like murder, culpable homicide
and robbery;
Section307. Attempt to commit Murder.-whosoever 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 to
any person by such act, the offender shall be liable either to[imprisonment of life], or to
such punishment as is hereinbefore mentioned.
Illustrations
i) 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
ii) A, intending to murder Z by poison, purchases poison and mixes the same with food which
remains in As keeping; A has not yet committed the offence defined in this section. A
place the food on Zs table or delivers it to Zs servant to place it on Zs table. A has
committed the offence defined in this section.

Ingredients.- To attract the provisions of section 307, IPC all the ingredients of murder short of
death must exist, viz.-

(a) The death of a human being must be attempted.

(b) The accused must have made the attempt.
(c) The act must be done with the intention of causing death, or it be done with the intention
of causing such bodily injury as:

i) The accused knew to be likely to cause death, and

ii)That it was sufficient in the ordinary course of nature to cause death.

 (d) The accused attempted to cause such death by doing an act known to him to be so
imminently dangerous that it must in all probability cause:
i) Death, or
ii) Such bodily injury as is likely to cause death.

Cases :
Om Prakash v. State of Punjab1
The appellant was charged and convicted by the sessions Court under sec.307, IPC. Attempt to
commit murder his wife, Bimla Devi by deliberately and systematically starving her for food for
days together and locked her in the room.

The high Court on appeal confirmed the conviction. The supreme Court held that the offence under
section 307 IPC is committed, when with the intention to commit murder, the offender does any
act or series of acts towards the commission of murder. It is not necessary that the act done must
be the last or the penultimate act to be done for committing murder. Regular and systematic
course of starvation(of accuseds wife) which would ultimately result in death amounts to an
attempt to murder, even though it is thwarted by a happening not expected by the offender, and
even though a further period of starvation was needed before death would result.

1
AIR 1961 SC, 1782
Emperor v. VasudeoBalvantGogte2
The accused took a gun and went to the governor of Bombay, he kept his weapon to point of range
then pull the trigger but the bullet did not came out because of some defect in the gun. The court
held him guilty under section 307 IPC, attempt to commit murder.

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; if hurt is caused to any person by such act, shall be
punished with 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 thereby caused death he would be guilty of culpable homicide not amounting to murder. A
has committed the offence defined in this section.

2
AIR 1932 Bom 279
ATTEMPT TO COMMIT SUICIDE
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].
Suicide as such is no crime under the code. It is only attempt to commit suicide that is punishable
under this section. In other words, it is only when a person is unsuccessful in committing suicide
that the Code is attracted. If the person succeeds, there would be no offender who could be
brought within the purview of the law. The section is based on the principle that the lives of men
are not only valuable to them but also to the state which protects them. The State is under an
obligation to prevent persons from taking their lives as it prevents them from taking the lives of
others.

At common law, although the offender who succeeded in an attempt to suicide was beyond the
reach of law, his guilt resulted in the forfeiture of his property. However, attempt to suicide in
England has now ceased to be a crime by virtue of section 1 of the Suicide Act, 1961 which says
that the rule of law where it is a crime for a person to commit is hereby abrogated.
ATTEMPT TO COMMIT OFFENCES IN GENERAL UNDER SECTION
511 OF THE IPC 1860;
Section 511. Punishment for attempting to commit offences punishable with
imprisonment for life or other imprisonment.- whoever attempts to commit an offence
punishable by this code with imprisonment of life or imprisonment, or to cause such an
offence to be committed, and in such attempt does any act towards the commission of
the offence, shall, where no express provision is made by this code for the punishment
of such attempt, be punished with imprisonment of any description provided for the
offence, for a term which may extend to one-half of the imprisonment for life or, as the
case may be, one-half of the longest term of imprisonment provided for that offence, or
with such fine as is provided for the offence, or with both.
Illustration: A makes an attempt to steal some jewels by breaking open a box, and finds after so
opening the box, that there is no jewel in it. He has done an act towards the commission of theft,
and therefore is guilty under this section.
Abhayanand Mishra v. State of Bihar3
The appellant applied to Patna University for permission to appear at the M.A. examination in
English as a private candidate, representing that he was a graduate having obtained his B.A. degree
and that he had been teaching in a school. In support of his candidature he attached certain
certificates purporting to be from the Headmaster of the school and the Inspector of Schools.
Thereuponan admission card giving him permission to appear in the M.A. examination was sent.

Later, just before the commencement of the examination it was discovered that the certificates
were forged and that the accused had neither obtained a B.A. degree nor was he a teacher. Held,
by making the false statement about his being a graduate and a teacher in the application
submitted to the University, the accused did deceive the University. His intention clearly was to
make the University give him permission to appear in the M.A. examination. An admission card is
property within the meaning of section 420, IPC. The accused would have succeeded in the
commission of the offence of cheating, if the admission card had not been withdrawn. Under the
circumstances, the accused was guilty of attempting to cheat under section 420 read with section
511, IPC.

3
AIR 1961 SC 1698,(1962) 2 SCR 241.
Malkiat Singh v. State of Punjab4
In this case the appellant was a truck driver and was carrying paddy out of the jurisdiction of the
state of Punjab without license, in violation of the Punjab (export) control order, 1959,was stopped
14 miles away from the Punjab-Delhi border, and was prosecuted for an attempt to contravene the
said order. The Supreme Court, while allowing the appeal, said that the act of carrying paddy did
not amount to a criminal attempt. The court observed: - the test for determining whether the act
of the appellants constituted an attempt or preparation 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 minds at any place between Samalkha Barrier and the Delhi-Punjab boundary and
not have proceeded further in their journey.

Mens Rea in Criminal Attempt

Mensrea in inchoate offences is not merely a condition of fault. It is a component of the danger of
criminal harm. That determines the need for forceful intervention. A criminal intention includes a
dual intention

4
AIR 1970 SC 713, [1969] 2 SCR 663
 i) Those are an individual must intentionally do an act that are proximate to completion of a
crime.
ii) That an individual must possess the specific intent or purpose to achieve criminal objective

Actus Reus in Criminal Attempt

In criminal attempt, the objective approach requires an act that comes extremely close to the
commission of the crime. It also distinguishes preparation or the planning and purchasing of the
materials to commit a crime. And the objective approach stresses the danger posed by a
defendants acts; the subjective approach focuses on the danger to society presented by a
defendant who possess a criminal intent. There also exits subjective approach to attempt focuses
on an individuals intent rather than on his or her acts.

Five tests by Court

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 other begins. To solve this riddle various tests have
been laid down by the courts. These are as follows:

1) The Proximity Test : (followed by Indian Court) Proximity cause as explains is the causal
factor which is closes, not necessarily in time or space, but in efficacy to some harmful
consequences; in other words, it must be sufficiently near the accomplishment of the
substantive offence. 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.

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. Since As act did not cause Zs death, A could not be 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
the act of killing, but because of something beyond his control.

In Sudhirkumar Mukherjee v. State of west Bengal and Abhayanand Mishra v. State of Bihar, the
supreme court explained the offence of attempt with the help of the proximity test, saying that:- A
person commits the offence of attempt to commit a particular offence when-

a) He intends to commit that particular offence; and

b) He having made preparation 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.
2) The Locus Poenitentiae Test: the latin expression speaks about time for repentance. In
Locus Poenitentiae 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 poenitentiae means the opportunity to withdrawn from a bargain before it has
become fully constituted and become binding. In simple language an act will amount to a
 mere preparation if a man on his own accord, before the criminal act is carried out, gives it
up. It is thus, possible that he might of its own accord, or because of the fear of unpleasant
Consequences that might follow, desists from the completed attempt. If this happens, he
does not go beyond the limits of preparation and does not either the arena of attempt. He is,
thus at the stage of preparation which cannot be punished.

For example : A girl going for suicide but suddenly changes her mind because of the fear of
unpleasant consequences. She was not guilty and cannot be punished.

A intending to murder Z by poison, purchases poison and mixes the same with food which remains
in As 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.

In case of State of Maharashtra v. MohdYakub5 it was held that this is not a general principal and
depend upon the facts of the cases and court is free to apply it or not.

3) Impossibility Test : An act which is impossible to commit cannot be attempted and so it is

not culpable. In AsagaraliPradhani v. Emperor, what the appellant did was not an act done
towards the commission of offence, and therefore, he could not be convicted, but in
Malaysian case the accused was liable for an attempt to cause abortion when the women was

5
(1980) Cr LJ 793, AIR 1980 SC 1111
 not pregnant. Even the appeal court held the accused liable because the circumstances in this
case seemed to be exactly covered by the illustration to sec 511. The act itself is impossible of
performance and yet it constitutes an offence of attempt to commit crime.

Cases:
R v. Collins (1864)-it was held 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.

R v. McPherson (1857)- 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.

R v. Dodd, - the accused hit the log with an axe thinking it was B. it was held that he was not
liable for attempting to commit murder.

R v. Brown (1889) the above referred cases were reviewed and Lord Coloridge observed that
earlier decisions were based on a mistaken view of law.

R v. Ring (1892)-the court overruled all the three earlier cases and the accused was held liable of
attempt to steal from the pocket of a lady though her pocket was empty.

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 accuseds conduct is no examined only partially but the consequences of the
circumstances and the fullness of the facts are taken into consideration. For eg :- A administers
some drugs to a pregnant women in order to do abortion. However, they do not produce the
result. In spite of this A 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.

Cases :
R v. Osbrone in this case the accused gave some pills to a pregnant lady in order to do abortion.
But that does not cause any effect to that lady. So he was not held liable.

R v. Spicer In this case the court overruled the above decision and said if pills are given to a lady
for miscarriage but does not cause any effect even then the accused be held guilty.

5) The Equivocality Test : it is a situation wherein there are two opinions about the crime
here, 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. It 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. That is to
 say, the act must refer to the commission of the crime and it must be evident and clear on
examination.

Illustrations-
a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening
the box, that there are no jewels in it. He has done an act towards the commission of theft,
and therefore, is guilty.
b) A makes an attempt to pick the pocket of Z, by thrusting his hand into Zs pocket. A fails in the
attempt in consequence of Zs having nothing in his pocket, A is guilty.