CRIMINAL 1ATTEMPT

1
Criminal law punishes not only completed crimes but also conduct short
of completion of a crime. Criminal attempt falls in the category of inchoate
crimes. The law of attempt continues to be somewhat enigmatic and
notorious for its intricacies. The factors that contribute to the unusual state
of the law at present are: First, a lack of a precise legislative definition of
the inchoate offence; Second, mental and physical ingredients varying
considerably with the nature of the substantive offence attempted; and third
the possibility of a 'broad' or 'narrow' interpretation of the offence by the
courts in view of the prevailing penal policy.] The confusion arises,
because courts are doing inconsistent things with similar fact situations and
also because courts are attempting to apply the same rule to utterly
dissimilar situations.2
The problem has eluded solution so far. Perhaps the principal reason
for this is that its history has been neglected. 3 A brief historical survey of
the law of criminal attempt may thus be useful in the formulation of this
problem.4 The dangers threatening peace and safety in a society like that
of sixteenth century England must have prompted the court of Star
Chamber to punish a large number of potential harms, hoping to nip
anticipated violence in the bud itself. 5 Initially, the repression of attempts
is to be found as an exercise of criminal policy 6 in the measures adopted
by the Star Chamber. The English common law did not have any law of
criminal attempt till the 18th century. 7 The influence of the Star Chamber

1 . B.B. Pandey, "An Attempt on Attempt" (1984) 2 SCC (Jour) 42.

2 . Arnold T.W., "Attaempt in Criminal law", 40 Yale L.I. 53.
3 . Hall, General Principles ofCriminal Law 553 (2nd Ed.). Prof. Hall explains social and

psychological factors have had great influence upon the law of criminal attempt,
especially in determining the relevant harm or at least, what was regarded as
sufficiently harmful to warrant penalisation. The legal history also disclosed that
there is an irreducible element of experience in law that cannot be persuasively
dissolved in logical analysis and which penal theory must somehow take into
account". Id. at 553.
4 . For an analysis of the law of criminal attempt in historical perspective, See Hall, Id.

at 553; Holdsworth, History ofEnglish Law, vol. V., p. 200, Sayre, "Criminal
Attempts" 41 Harvard Law Review, 821.
5 . K,N. Chandrasekhjaran Pillai, General Principles ofCriminal Law, (2003) p. 199,
218 ESSAYS OF INDIAN PENAL CODE
is evident on common law in this regard. 6 The doctrine of attempt
originated in England in Rex v. Scofield, 7 a case of attempted arson and
was finally formulated in Rex v. Higgins, 89 which concerned solicitation Il
to steal certain goods. In Scofield's case overt behaviour was held to be a
criminal attempt but the Higgins case went further in establishing
criminality on a lesser degree of overt behaviour viz., solicitation. These
cases provide an important clue to the necessity of development of the law
of criminal attempts, namely that the standard technique of 'assault plus
aggravation', a species of attempt, in common law could not be literally
applied to check all kinds of harm. This suggests that harmful tendencies
of aggravated nature were to be made punishable as criminal attempt and
this remains the underlying policy of the law even today. 10

6. Kenny, Outlines ofCriminal law, (17th Ed. by Turner) 89 "The Romans punished
attempts to commit ordinary crimes occasionally and by a smaller penalty but in
atrocious crimes emphasis was laid on intent rather than on actual harm." (Hall, id. at.
559).

6 - Holdsworth, History ofEnglish law, vol. p. 201. Sayre, supra note 4, however, rejects the
view that the Star Chamber doctrine was taken over by the common law courts.
7 . Rex v. Scofld, (1784) Cald. (387), Perkins, Cases on Crzminal Law and Procedure, p. 283.
In this case Lord Mansfield observed: "When an act is done the law judges, not only of
the act done, but of the intent with which it is done, and, if it is coupled with an
unlawful and malicious intent, though the act itself would otherwise have been
innocent, the intent being criminal, the act becomes criminal and punishable."
8 . Rex v. Higgins, 102 E.R. 269 (1801).
9 . Incitement, conspiracy and attempt were tintermingled with each other till the 18th

century, Kenny, supra note 6 at 87.

10 . Hall supra note 3 at 559. R v. Toole, (1987) Cri LR 759. elucidates the criminal

attempt. A person, regular visitor of the public house, when barred from that public house
thought to smash it. He splashed the petrol around the vestibule at the entrance of
the public house. When he was questioned by the barmaid he said that he did not care if
she is burnt alive. Subsequently, he took the defence that he was drunk and had
accidentally spilled petrol into the vestibule. He was charged of attempt to damage
by fire the public house and intending to endanger the life of barmaid and was
convicted by the jury. The Court of Appeal allowing the appeal and quashing the
conviction held that intent is an element inherent in the definition of the attempt and
is the same at least if 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. It was further held that the difficulty in
this case arose from the Indictments when the offence is an attempt under Section 1(1) of
the Criminal Attempts Act, 1981.
 ATTENTT 219
7. Pollock & Maitland, History ofEnglish law, vol. 2 508, In (1784 the doctrine of
criminal attempt originated in the case of Rex v. Scofield (Perkins, Cases on Criminal
Law & Procedure, p. 283).

CRIWNAL

Recently, the apex court 111 Aman Kumar v. State ofHaryana 11

_explamed the necessity to punish the offence of attempt. It observed: 12
An attempt is made 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 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.
It further observed: 13
The word "Attempt" is nowhere defined, and must, therefore,
be taken in its ordinary meaning. This is exactly what the
provisions of S. 511 require.
The commission of a crime goes through three processes viz., (i)
conceiving an intention to commit a crime, (2) preparation for its
commission (3) and an attempt to commit it. Generally, the first two stages
are not punishable but once an act enters into the third stage criminal
liability arises. Thus an attempt to commit a crime forms part of a series of
acts. 14 The reason why the first two stages in the series, that of mental
determination and that of preparation are not punished is that they are too
remote from the completion of the crime whereas the stage of attempt takes
the offender very close to successful completion of the crime. The problem
for the law to decide is whether that stage when he ought to be punished
has been reached. As to when a preparation ceases and attempt begins is a
difficult problem to solve. There is a marked difference between
preparation and attempt. 15 However, much will depend upon the facts and
circumstancs of the case, but four different approaches have been worked

11 . (2004) 4 scc 379.

12
. Id. at 387, para 8 . See also Koppula Venkata Rao v. State ofA.P., (2004) 3 SCC
602, para 8 at 605.
13 . See also, id. at 387, para 9.
14 , State v. Narayan Singh, AR 1989 SC 1789. See also Aman Kumar v, State ofHaryana,

(2004) 4 scc 379.

15 . Balai Chandra Biswas v. State of W.B., (1994) 1 SCC 423 at 425.
220 ESSAYS OF INDIAN PENAL CODE
out with a view to laying down a uniform test of general applicability to
determine the dividing line between preparation and attempt.
The Supreme Court in State v. Mohd Yakub 16 tried to define attempt.
justice Sarkaria observed: 17
What constitutes an attempt is 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 commlsslon of
affirmative acts are preceded by some covert or overt conduct
which may be divided into three stages. The first stage exists
when the culprit first entertains 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 the penultimate act towards
the commission of the offence. It is sufficient if such acts were
deliberately done, and manifest a clear intention to commit the
offence aimed, being reasonably proximate to the
consummation of the offence.
Chinappa Reddy J also expounded the definition of an attempt thus:
18
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 the offence and, third, such act must
be proximate to the intended result. The measure of proximity
is not in relation to time and place but in relation to intention.
It appears that justice Chinappa Reddy's explanation goes well with
the underlying philosophy of punishment for attempt. He rightly gives
emphasis on intention rather than physical proximity of the act to the
commission of the crime. Intention is the direction of conduct towards the
object chosen upon considering the motives which suggest the choice. 19
As regards the test for finding out whether a specific act was done with
necessary or requisite intention, the court held that the intention has to be
gathered from all circumstances, and not merely from the consequences
that ensue. The nature of the weapon used, manner in which it is used;
motive for the crime, severity of the blow, the part of the body where the

16 . (1980) 3 scc 57.

17 . Id. at 62.
18 . Id at 66.
19 . Aman Kumar v. State ofHaryana, supra note 13.
 ATTENTT 221
injury is inflicted, are some of the factors that may be taken into
consideration to determine the

Intention.20

11
The Indian Penal Code, besides, dealing with the law of criminal attempts
in a specific and general way, 21 contemplates provisions to arrest
criminality in incipient stages too.22 The Code deals with attempt in three
difficult ways
CRAff<AL

(i) In some cases 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. 23
(ii) The second way of dealing with attempts is exemplified by ss. 307,
308, 393 Indian Penal Code. In these sections attempts for committing
specific offences are dealt with side by side with the offences
themselves, but separate punishments are provided for the attempts
and for the offences.
(iii)The third mode is embodied in S. 511 which is a general provision
designed to cover cases falling outside the above two categories.
The absence of the definition of the attempt to commit offences made
the courts in course of time to evolve certain tests to determine whether the
act In question amounts to attempt.
Proximity rule: The 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 that it is legally necessary for him to do if the
result desired by him is afterwards brought about without further conduct
on his part." 24 The rule is a combination of principles laid down in a
number of decided cases e.g. an act of attempt must be sufficiently

20
. Harikishan v. Sukhbir Singh, AR 1988 SC 2127 para 7 at 2130.
21 . S. 511, IPC.
22 . ss. 122, 126, IPC; ss. 233, 234, 235, IPC; Possession of counterfeit coins, false

weights and forged documents etc.

23 . E.g., ss. 121, 124-A, 161, 291. IPC.

24 . Williams G., Criminal Law (General Part), 481.

222 ESSAYS OF INDIAN PENAL CODE
proximate to the crime intended, 25 it should not be remotely leading
towards the commission of an offence, 26 it must contribute an
antepenultimate act27 and that the act done should place the accused in a
relation with his intended victim.28 The test of proximity at common law
was expressed in various ways. 29 One way which gave attempts very
narrow scope, was that of Lord Diplock in Stonehouse, 30 that only acts
"immediately connected" with the offence can be attempts. 31 The liability
in attempt is

25 . Id. at 477 "It seems to be a question for the judge whether the act charged as the
attempt satisfied this requirements."
26 . Eagleton (1855) 169 E.R., at 835, See Hope v. Brown (1954) 1 W.L.R. 250, See Russell

on Crimes, (1 Ith Ed. by Turner) p. 190.

27 . Linneker (19%) 2 K.B. 99.

28 . White, (1910) 2 K.B 124; Linneker, (1906) 2 K.B. 99, Vreones (1891) 1 Q.B. 360, see

Emp. v. Raghunath, 19410udh 3; Mac C Rea 15 All. 173. In Robinson, (1915) 2 K.B.
342 the accused had only made preparations by staging a fake robbery and had not
placed himself in relation to the intended victim by not going further towards the
commission of fraud.
29 . For Example: Graphic test, Rubicon test and a test laid down by Stephen. See also

Widdowson (1985) 82 Cr App Rep 314; Boyle and Boyle, (1987) 84 Cr App Rep 270;
Guilder, [1987] Crim LR 195, CA.
30 . [1978]AC 55.

31 . See Smith and Hogan, Criminal Law, (6th ed. 1988) p.292.
 ATTENTT 223
based on the overt act done by the accused which falls short of the actual
offence stage e.g. one may have fabricated a false story of an accident with
a view to claiming from the insurance company. 32 Where the accused
were seen going towards the border with a tin case in their hands and when
they saw the nakabandi, they, immediately turned around and ran away
and were chased into the house of one of the accused where they were
found hiding the tin box in the heap of the wheat in the house, it was held
that these facts were sufficient to constitute the offence of attempting to
smuggle currency notes, it could not be said that the acts already done by
the accused were of harmless variety. 33 The accused in Abhyanand
Mishra v. State of Bihar34applied to the university for admission to appear
at the M.A. examination as a private candidate representing that he was a
graduate and that he had been teaching in a certain school. In support of
his application he attached certain certificates purporting to be from the
head master of the school and Inspector of Schools. The university
authorities accepted the accused's statements and he was permitted to
appear in the examination. Subsequently, on receiving information and
enquiry thereafter the university found out that accused was neither a
graduate nor a teacher. Thereupon, he was held to be guilty under S. 429
read with S. 511, IPC. It was observed by the court that preparation was
complete when the accused prepared the application for submission to
the university and the moment he dispatched it, he entered the realm
of attempting to commit the offence of cheating.
The above principle of proximity was reaffirmed in Sudhir Kumar
Mukherjee v. State of WB, 35 by the Supreme Court. The defence of the
accused was that at best the act committed by the accused could be
construed as preparation and that the attempt to commit the offence had
not taken place. In this case, the accused person Sudhir Kumar Mukherjee,
an employee of a firm had attempted, in collusion with a limestone dealer,
to show false delivery of limestone to his company by forging the
signatures of his superiors on the invoice, after which it would be
presented for payment. At the time when he was caught, he had himself
not signed the challan evidencing receipt of the goods. However, based on
the ratio of Abhayanand Mishra, 36 the Supreme Court held that the very

32 . See, D.P.P. v. Stonehouse, (1977) 2 All E R 909; State v. Mohd Yakub, (1980) 3 SCC 57;
Hari Mohapatra v. State of Orissa, 1996 Cri LJ 2952 (Ori); Abh'anand Mishra v. State
of Bihar, AIR 1961 SC 1698; Sagayam v. State ofKarnataka, AIR 2000 SC 2161.
33 . Hazara Singh v. Union ofIndia, AIR 1973 SC 62. See also Padala Venkatasami (1881) 3

Mad 4.
34 . AIR 1961 SC 1698.

-37. Abhyanand Mishra v. State ofBihar, AIR 1961 SC 1698.

35 . AIR 1973 SC 2655.
36 . 1961 1698.
224 ESSAYS OF INDIAN PENAL CODE
fact that a challan, had been prepared and that the initials of the clerk
concerned had
CR11vm4AL

been obtained by the accused on the challan, showed that the definite step
had been taken by the accused in committing the offence of cheating. The
court held that while it was true that the accused had not himself affixed
his signature and stamp on the challan, which was necessary for the
supplier to claim payment for supply of limestone from the company, the
acts of the accused had crossed the stage of preparation into the realm of
attempt. The accused was, therefore, convicted for the offence of cheating
under S. 420 read with S. 511, IPC.
Thus, "Attempt" is the direct movement towards the commission after
preparations are made. The dividing line between a mere preparation and
an attempt is sometimes thin and has to be decided on the facts of each
case.37There is a greater degree of determination in attempt as compared
with preparation. 41 What is necessary to prove for an offence of attempt
is that the accused has gone beyond the stage of preparation.38 Attempt to
commit an offence can be said to begin when the preparations are
complete and the culprit commences to do something with the intention of
committing the offence and which is a step towards the commission of the
offence. The moment he commences to do an act with the necessary
intention, he commences his attempt to commit the offence. 39 An attempt
to commit a crime is to be distinguished from an intention to commit it
and from preparation made for its commission. Mere intention to commit
an offence, not followed by any act, cannot constitute an offence. The will
is not to be taken for the deed unless there be some external act which
shows that progress has been made in the direction of it, or M)wards
maturing and effecting it. Intention is the direction of the conduct towards
the object chosen upon considering the motives which suggest the
choice.44 Preparation consists in devising or arranging the means or
measures necessary for the commission of the offence. It differs widely
from attempt. Preparation to commit an offence is punishable only when
the preparation is to commit offences under S. 122 (waging war against
the Government of India) and S. 399 (Preparation to commit decoity). 40
In order that a person may be convicted of an attempt to commit a
crime, he must be shown, first, to have had an intention to commit the

37 . Supra note 19.

38 . Madan Lal v. State ofJammu &Kashmir, (1997) 7 SCC 677 at 689.

39 . Koppula Venkat Rao supra note 14.

40 . Id. at 606.

AIR SC
 ATTENTT 225
offence, and secondly, to have done an act which constitutes the actus reus
of a criminal attempt. The sufficiency of the actus reus is a question of law
which had led to difficulty because of the necessity of distinguishing
between acts which are merely preparatory to the commission of a crime,
and those which are sufficiently proximate to it to amount to an attempt to
commit lt.41
The difficulty associated with the determination of 'attempt' has made the
courts to evolve what is called locuspenitentae.
(ii) Doctrine ofLocus Penitentae: A person attempting an offence may
abandon it at some stage before completion though initially he had the
intention. Abandonment is a defence if further action is freely and
voluntarily abandoned before the act is put in process of final execution.
42
The Supreme Court taking recourse of this doctrine ordered acquittal of
the driver and helper of a truck convicted of attempting to smuggle paddy
out of Punjab in Malkiat Singh v. State ofPunjab. 43 In this case, the
accused driver and cleaner were intercepted at Samalkha barrier post in
Punjab, which, is about 14 miles from the Punjab-Delhi border, driving a
truck containing 75 bags of paddy. They, along with others, were charged
with the offence of attempting to export paddy in violation of the Punjab
(Export) Control Order 1959. The Supreme Court acquitted the accused
observing: 44 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.
A different view, however, has been followed by the Supreme Court
in the years following the ruling in Malkiat Singh case. 45 S. 7 of the
Essential Commodities Act (EC Act) provided that an offence under S. 7
of the EC Act would be held to be committed, only when a person

41 . Malkiat Singh v. State ofPunjab, AIR 1970 SC 713.

42 . See Inbau and Sowle, Cases and Comments on CriminalJustice (1960) p. 411; In re Bavaji,
AIR 1950 Mad. 44, 45; In re Narayanswamy Pillai,. AIR 1932 Mad. 507, Empress v.
Laxman (1900) 2 Bom. L.R. 286, Empress v. Vinayak, (1900) 2 Bom. L.R. 234. In re
MacCrea, (1893) 15 All. 173 (Contra) Riasat Ali (1881) 7 Cal. 352, Empress v.
Ramakka, (1885) 8 Mad. 5 and Empress v. Baku, (1900) 24 Bom. L.R. 287, 291.
Repentance expressed by the perpetrator through the voluntary withdrawal from an
already criminal attempt coupled with the utmost exertion to oust the harm, never
did constitute an exculpation at common law, but, a California court has recognized
this police excuse which is sound and commendable penal policy. (1958. American
Survey of Annual Law, 19).
43 . AIR 1970 SC 713.
44 . Id. at 715, para 4.
45 . Supra note 50.
226 ESSAYS OF INDIAN PENAL CODE
intentionally contravenes any order made under S. 3 of the Act, prohibiting
exports of fertilizers. S. 7 providing for penalties was amended by
Parliament in 1967
(as consequence of the ruling in Nathulal, 46 ) to stipulate that if any person

46 . Nathu Lai v. State ofMP, 1966 43.

AIR SC
 227
CRnvmx1AL

contravenes, whether knowingly, Intentionally or otherwise, any order

made under S. 3, then he would be liable for punishment. This implied that
any contravention of the rules, even at the stage of preparation, would be
considered as an attempt to commit the offence.
The changed law came to be considered by the Supreme Court in the
case of State ofMP v. Narayan Singh. 47 The issue in the instant case was
whether the lorry and cleaner of two lorries carrying fertiliser without
license, and intercepted on the highway between Madhya Pradesh and
Maharashtra would be liable for contravention of the Fertilizers
(Movement Control) Order, 1973 read with ss. 3 and 7 of the EC Act, 1955
for attempting to smuggle fertilizers. The trial court acquitted the accused
in both cases, on the ground that the prosecution had failed to prove that
the accused were attempting to smuggle fertilisers. Since the high court
refused to intervene, the State approached the Supreme Court. The court
held that it was not a case of mere preparation, viz., the respondents trying
to procure fertilizer bags from someone or trying to engage a lorry for
taking these bags to Maharashtra. It is difficult to say that the respondents
were taking the lorries with the fertilizer bags in them for innocuous
purposes or for the mere thrill or amusement and that they would have
stopped well ahead of the border and taken back the lorries and fertilizer
bags to the initial place of dispatch or to some other place in Madhya
Pradesh State itself. Therefore, these were clearly cases of attempted
unlawful export of the fertilizer bags and not cases of mere preparation
alone.
If facts and circumstances prove that an attempt had been made to
smuggle out the currency, the contention of distance and possibility of his
returning back or changing of mind cannot be taken into account.48
Where the accused's truck carrying smuggled bajra was intercepted
fifty yards away from the Punjab border, it was held that the giving of
necessary thought to change of mind cannot be lost sight of but in the
instant case it could hardly be conceived that the accused petitioner could
have in a span of two to four seconds or within a distance of fifty yards
changed his mind not to take his truck across the border. It was said if the
theory of change of mind 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 commlsslon.49

47 . AIR 1989 SC 1789; 1989 Cri LJ 2106.

48 . Hazara Singh v. Union ofIndia, (1973) 3 SCC 401.
49 . Darbara Singh v. State ofHaryana, 1980 Cri LJ 1157.
228 INDIAN PENAL CODE
(iii) Equivocality 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. 50 The actus reus of an attempt to commit a specific crime is
ESSAYS 51ON THE

constituted when the accused person does an act which is a step towards
the commission of that specific crime and the doing of such act cannot
reasonably be regarded as having any other purpose than the commission
of that specific crime. "56 In other words, acts must be unequivocally
referable to the commission of crimes and must speak for themselves. 52
This theory has found its application in courts in Newzealand, 53
Prof. Williams, however, is of the opinion that a strict application of
the test would acquit many undoubted criminals. Intention followed by
preparation IS not sufficient to constitute an attempt. But intention and then
preparation must be followed by an act towards the commission of
crime.54The act must reveal with reasonable certainty in conjunction with
other facts and circumstances an intention to commit the particular offence.
The Supreme Court has explained that in cases of attempt to commit
murder by fire arms, the act amounting to an attempt to commit murder is
bound to be the only and the last act to be done by the culprit. Till he fires
he does not do any act towards the commission of the offence and once he
fires, and something happens to prevent the shot taking effect, the offence

50 . Supra note 28 at 483.

51 . Turner, Modern Approach to Criminal Law p. 279.
52 . Turner, "Attempts to Commit Crimes" in ibid. (Ed. Davis) p. 280; Salmond,

Jurisprudence (6th ed.) p. 346.

53 . Turner, id. at 280-81. In order to infer that there is only one and one result alone of the

act attempted, Prof. Turner has given an example in the following words:
"If the example may be permitted it is as though a cinematograph film, which had so
far depicted merely the accused person's acts without stating what was his
intention, had been suddenly stopped, and the audience were asked to say to what
end those acts were directed. If there is only one reasonable answer to this question
then the accused has done what amounts to an 'attempt' to attain that end. If there
is more than one reasonably possible answer, then the accused has not yet done
enough" The test has been further illustrated by way of an imaginary case posed
by Prof. Kenny. "If a man takes an umbrella from a stand at his club, meaning to
steal it, but finds that it is his own, he commits no crime." The man could not be
convicted of an attempt because the facts stated merely present the picture of a man
which do not suggest an intention of stealing an umbrella."
54 . Asgarali Pradhanza v. Emperor, AIR 1933 Cal 893.

AIR SC
of attempt to commit murder is made out. 55 In another case, a government
stockist removed eighty bags of rice from the godown of which he was
incharge and concealed them in a room with a view to sell them, and
appropriate the sale proceeds to himself , but before he could do so the
matter was detected. It was held by the apex court that an attempt to commit
an offence was an act, or series of acts, which led inevitably to the
commission of the offence, unless something, which the doer of the act or
acts neither foresaw nor intended, happened to prevent this. An act done
towards the commission of an offence which does not lead inevitably to the
commission of the offence

CRnvm4AL

unless it is followed and perhaps, preceded by other acts is merely an act

of preparation.56
(iv) Social Danger Test: The seriousness of the crime attempted has been
one of the criteria in deciding the liability in cases of attempt. If the facts
and circumstances of a case lead to the inference that the resultant
consequences would have been grave, the crime of attempt is complete. In

55 . 0m Prakash v. State ofPunjab, AIR 1961 SC 1781. See also Hazari Singh v. Union of
India, 1973 62.
56 . State v. Narayan Singh, AIR 1989 SC 1789. See also Aman Kumar v. State ofHaryana,
(2004) 4 scc 379.
230 INDIAN PENAL CODE
fact it is the apprehension of social danger which the particular crime is
calculated to excite,57 that determines liability for an attempt.
The test is very similar to the rule enunciated by Prof. Williams58 with
the difference that here the consequences of circumstances and the gravity
thereof are inferred from the totality of facts whereas in the latter case a
mere fragment of an action, if it is a final link in the chain of penultimate
acts, makes a person liable of criminal attempt. 5960 As crimes against
women are crimes against society in such cases courts, generally, have
taken a strict
65
view.
It would be incorrect to say that the courts have decided cases with
strict reference to one rule or the other. The above tests have been extracted
from the decided cases in the common law system. In cases of attempt the
main difficulty arises in drawing a dividing line between the stages of
preparation and attempt and it need be examined, if, any one or more of the
above tests suggested can serve a useful guide in determining the above
problem.

111

The general principles relating to criminal attempts have been laid down in
S. 511, Indian Penal Code, which runs as follows:
Whoever attempts to commit an offence punishable by this Code
with imprisonment for life or imprisonment, or to cause

57 . Holmes, The Common Law (1881) pp. 68-69, Sayre, supra note 4 at 845; supra note 2 at
73.
58 . Glaniville Williams, Textbook ofCriminal Law (Second ed. 1983).

59 . The decisions in Reg. v. Ramsaran, 4 N.W.P. 46 and Reg. v. Riasat Ali, (1881) 7 Cal.

352 can be explained with the help of rule (iv) and rule (i) respectively. See also
Chittaranjan Chaudby v. State ofBihar, (1987) 2 SCC 104.
60 . State ofKarnataka v. Mahabaleshwar Gourya Naik, 1992 Supp (3) SCC 179. See also
State ofMahrashtra v. RajendraJawanmal Gandhi, AIR 1997 SC 3986; 1997 (8) SCC 386;
Dharma v. Nirmal Singh, AIR 1996 SC 1136; Sittu v. State, AR 1967 Raj 149;
Suresh Chand v. State ofHaryana, 1976 Cri LJ 452 (Pun); Madanlal v. State
ofRajasthan, 1987 Cri LJ 257 (Raj). See also State v. RajendraJawammal Gandhi, AR
1997 SC 3986; Hah Mohapatra 1996 Cri LJ 2952. See also Madan Lal v. State
ofJammu &Kashmir, (1997)7 SCC 677; state ofHaryana v. Prem Chand, (1997) 7
SCC 756.
AIR SC
231 INDIAN PENAL CODE
ESSAYS ON THE

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.
An attempt on the part of the accused is sine qua non for the offence
under S. 511.66 There is difference of opinion in regard to the language and
scope of this section. One view is that certain words in the section seem
redundant because the very essence of the idea of an attempt being
something done towards the commission of the act attempted to be done,
the words "and in such attempt does any act towards the commtssion ofthe
offence" seem superfluous. 67 This view gains strength from the fact that in
dealing with attempts in the two other modes mentioned above no such
qualifying words are used. But there is scarcely any evidence to show that
the Indian penal Code 'intended to deal with a different and more limited
class of attempts in S. 511'. 68
It appears that the courts in India have been labouring under a confusion
with respect to the exact scope of S. 511 Indian Penal Code, that is, whether
or not S. 511, Indian Penal Code, is wide enough to include all kinds of
attempts punishable under the Code, including attempts to murder,
specifically provided in S. 307, Indian Penal Code 69 or whether these
sections are exclusive of each other. There are, however, conflicting and
diverse opinions of different High Courts on this point.
(i) According to the Allahabad High Court, S. 511 does not apply to
attempts to commit murder which are fully and exclusively
provided for by S. 307. 70

66. Satvir Singh v. State 8 SCC 633 at 640.

67. Huda, The Principles ofLaw ofCrimes in British India p. 50. But according to Ratanlal
The Law of Crimes (19th Ed.) p. 1332, these are the vital words.
68. Huda, id. at 50 (T.L.L.) See also Raju, The Penal Code (1st Ed.) p. 1439.
69. '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 herein before mentioned." (S. 307 IPC).
70. R. v. Niddha, (1892) 14 All. 38; Tulsha (1897) 20 All. 143 Straight J thought it
necessary, and he decided that under no circumstances could an attempt to commit
232 ESSAYS OF INDIAN PENAL CODE
murder come under S. 511. He felt that the words, 'under such circumstances merely
meant that the act must be done in such a way and with such ingredients that if it
succeeded, and death was caused by it, the legal result would be murder according to
CP.nvf1NAL ATTENTT

(ii) The Bombay High Court has, however, held otherwise in a

case71 which has been doubted in a later case.61
The former chief court of Punjab had laid down that S. 511 was in
terms much wider than S. 307. 62
(iii) Raju is of the view that S. 307 is exhaustive and not narrower
than S. 511, so far as attempts to commit murder are concerned.
But S. 511 applies to attempt to commit offences and also to
attempt to cause an offence to be committed. 63
Mayne's view is that cases not covered by S. 307 will be covered by S.
511 as held in Cassidy's case.64

61 . Vasudeo Balwant Gogte v. Emperor, (1932) 34 Bom. L. Rep. 571, Bench of the Bombay
High Court expressed dissent from Cassidy's case. Beaumont, CJ, observed: at 577, "I
think what S. 307 IPC really means is that the accused must do an act with such a
guilty intention and knowledge and in such circumstances that but for some
intervening fact that act would have amounted to murder in the normal course of
events.'
62 . Per Rattigan,J in JinDas (1904) P.R. No. 30 of 1904; crLJ 1078. Under S. 307
the act done must .. be one capable of causing "death", and it must also be the
last proximate act necessary to constitute the completed offence; under S. 511 the
act may be any act in the course of the attempt towards commission of the offfece.
63 . Raju, Penal Code p. 932. According to this view, "the working of S. 511 is wider.

Section 511 applies to (A) whoever attempts to commit an offence punishable with
imprisonment (B) whoever attempts to cause such an offence to be committed and
in such attempt does any act towards the commission of the offence. But so far as
attempt to commit murder is concerned, S. 307 is exhaustive."
64 . Referring to Cassidy's case, (1867) 4 Bom. H.C. (Cr. C.) 17, Mayne observers; "Upon

this part of the judgment it may be remarked, as to the first reason, that murder is
punishable with transportation as well as death. This is the case as regards every
offence punishable with death, except in the single instance of murder by a person
under transportation for life, which under Sec. 303 is only punishable, and in fact can
only be punished with death. Casz ofmurder, therefore, do come within the letter ofSec. 511.
It seems obvious too that those words in Sec. 511 are not intended to exclude the
very few cases where the penalty of death is added to that of transportation but to
exclude the numerous cases which are only punishable with fine. Further, that part of
the learned Judge's reasoning would not apply to S. 308, which is in pari material with
S. 307 and worded in the same way, and can hardly admit of different treatment. As
 233
Ss.299 and 300. The learned Judge said :- "If a person who has an evil intent does an
act which is the last possible act that he could do towards the accomplishment of a
particular crime that he has in his mind, he is not entitled to pray in his aid an obstacle
intervening not known to himself. "
71. R. v. Cassidy, (1867) 4 B.H.C. (Cr.C.) 17. Couch CJ held that in order to constitute an
offence under S. 307 it was necessary that there must be an act done under such
circumstances (i) that death might be caused if the act took effect (ii) that the act
complained of must be capable of causing death in the natural and ordinary course of
things. If the act was not of that description, a person could not be convicted of an
attempt to murder under S. 307 though the act was done with the intention of causing
death, and was likely, in the belief of the prisoner to cause death.
234 ESSAYS OF INDIAN PENAL CODE
Shri K.L. Ratan65 and Dr. Hari Singh Gour66 are of the view that there
is clear distinction between S. 307 and S. 511 of the Indian Penal Code.
The attempt to commit murder under S. 307, IPC, was distinguished
from intent to commit it or preparation for its commission by the apex court
in Sagayam v. State of Karnataka. 67 The court held that to justify
conviction under S. 307 IPC, it is not essential that bodily injury capable
of causing death should have been inflicted. An attempt in order to be
criminal need not be the penultimate act forboding death. It is sufficient in
law if there is present an intent coupled with some overt act in execution
thereof, such act being proximate to the crime intented and if the attempt
has gone so far that it would have been complete but for the extraneous
intervention which frustrated its consummation. An attempt to commit
crime must be distinguished from intent to commit it or preparation of its
commission.68

to the second reason, it is of course clear that any attempt, coming under Sec. 511 .
which is specially providedfor elsewhere must dealt with under the express provision.
For instance, an attempt to wage war against the King must be dealt with under S. 121.
It is also quite clear that any attempt to commit culpable homicide which falls under
S. 307 or 308, must be dealt under them and not under S. 511. What the Bombay case
decided was, that an attempt to murder, which is not an act by which murder could be

65 . Ratan, Culpable Homicide, p. 111. "This criticism that murder is punishable with death
as well as transportation for life and, therefore, can be said to come under S. 511 is
difficult to follow. S. 511 deals with offences which are punishable with
transportation or imprisonment and murder is not one such offence even though it
is punishable with death only in the alternative... The reference to the absence of 'an
express provision' relates not to a species of attempt not provided for elsewhere in
the Code, but to an attempt to commit an offence not provided for in the code.
It will be strange indeed to hold that some attempts to commit murder are governed
by S. 307 and some other by S. 511". "The third criticism of Mayne that an attempt
of the type made by the accused in Cassidy's case will go unpunished, will not arise if
the view put forward by Straight, J. is accepted. In any event, if the act of the accused
does not satisfy the requirement of S. 307 it cannot be punished as an attempt to
commit murder. It may be that the accused may be found guilty of assault, using
criminal force or some other offence under the code."
66 . Gour, Penal Law ofIndia, (6th Ed.) vol. Ill p. 2448. "To convict a person of an

attempt to murder under S. 307 it must be shown that he has done some act with
such intention that if by that act he caused death he would be guilty of murder z. e.
the act must have been capable of causing death and if it had not fallen short of its
object it would have constituted the offence of murder. But under S. 511 it is only
necessary to prove an act done in an attempt towards the offence. '
67 . (2000) 4 scc 454.
68 . [d. at 455.
 235
affected, came under S. 511 because it did not come within S. 307. That being so, it
fell within the wording of S. 511 as being a case 'where no express provision is made
by this code for the punishment of such attempt According to Mr. Justice Straight,
such a casewould go wholly unpunished". Mayne (4th Ed.) 532.

ATTENQT

The Supreme Court in State ofMarahashtra v. Balram Bama Patil, 69 had

occasion to consider a case involving assault of a group belonging to one
political party by a group belonging to another party at the time of elections.
The Bombay High Court had acquitted a few of the accused of an offence
under S. 307, IPC, on the ground that the accused had only caused simple
injuries. The Supreme Court differed on this aspect and held: 70It is not
necessary that the injury actually caused to the victim of the assault should
be sufficient under ordinary circumstances to cause the death of the person
assaulted. What the court has to see is whether the acts, irrespective of its
result, was done with the intention or knowledge and under circumstances
mentioned in the section. An attempt in order to be criminal need not be
the penultimate act. It is suficient in law ifthere is present an intent coupled
with some ocert act in execution thereof.
While confronted with a case under S. 304-B, the court observed that
the very policy underlying S. 511 seems to be for providing it as a
residuary provision. The corollary, therefore, is that once an act is
expressly made punishable by the Code it stands lifted out of the purview
of S. 511. 71

Another difficult area in the law relating to criminal attempts is that of

impossible attempts. It is true that the criminality of an attempt lies in
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.
72
Thus the actus reus of attempt is reached in such act of performance as
first gives primafacie evidence of the mens rea.73 But the difficulty arises
when the actus reus of attempt ultimately does not yield any harm owing
to the absence of circumstances or owing to the impossibility of the means
chosen.

69 . AIR 1983 SC 305.

70 . Id. at 307, para 9.
71 . Supra note 68.

72 . Supra note 6 (Turner 17th Ed. 92).

73 . See Archbold's Pleadings 33rd Edn. 1954, 1489.

236 ESSAYS OF INDIAN PENAL CODE
Under English law, the view which formerly prevailed was that a
person cannot be held liable for an attempt to do the impossible. 74
However, this line of decisions was overruled in R. v. Brown75 and finally
in R. v. Ring76wherein it was laid down that impossibility of performance
does not per se render 77the attempt guiltless. Under S. 511 of Indian Penal
Code also "an attempt IS possible, even when the offence attempted
cannot be committed ... It is possible to attempt to commit an impossible
theft, and so offend against the code. "88 However, the courts have also
held that impossible attempts cannot be punished. 78 The rule underlying
the impossible attempts is inconsistent with the elements of liability in
criminal law. In fact the liability is fastened on the intention, which
becomes fully manifest in such cases. But if such attempts are not brought
within the purview of criminal law it will be difficult to discourage their
harmful tendencies. 79 But there has been great controversy about the
circumstances in which impossibility will afford a defence and those in
which it will not. Great practical difficulty and much academic debate was
caused by the decision of the Court of Appeal in Husseyn. 80 Where the
crime is impossible in the sense that the intended result is not a crime at all
but because of his ignorance or mistake of criminal law, believes that it is.
But in this condition crime is not committed. In Taafe81 a person imported
into UK certain packages which he believed to contain foreign currency.
He thought it was a crime to import foreign currency. But it was not. He

74 . In Collins (1864) 168 E.R. 1477, attempt to steal from empty pocket was not held to
be an attempt; other cases are R. v. M'Pherson, (1857), 7 Cox 281; R. v. Dodd,
(1868), 18 L.T. 89.
75 . R. v. Brown, (1889) 24 Q.B.D. 357.

76 . R. v. Ring, (1892) 17 Cox. 491.

77 . Per Birdwood J in Q.E. v. MangeshJivaji, (1887) 11 Bom. 376, 381.

78 . In Mt. Pupsir Panku, (1895) 9 C.P.L.R. (Cr.) 14, a woman with a view to poison her

husband administered to him a substance which was harmless and which could not
in any circumstances bring about his death, but which she believed to be poison. It
was held that she could not be convicted under this section and S. 328 as the
administration of the harmless substance was not an act towards the administration
of a poisonous substance, and that the act which was complete in itself and not
constituting an offence could not constitute an attempt to commit an offence.
79 . In the words of Butler J an American Judge, "It would be novel and straggling

proposition that a known pickpocket might pass around in a crowd in full view of
policeman and even in the room of a police station, and thrust his hands into the
pockets of those present with intent to steal, and yet be not liable to arrest or
punishment until the policeman has first ascertained that there was in fact money or
valuables in some of the pockets." Huda, supra note 69 at 55.
80 . (1977) 67 Cr App Rep 13 in, [1978] Crim LR 219 and commentary.

81 . [1984] AC 539.
 237
could not, on those facts, committed any offence or an attempt to commit
any offence. The intention to import foreign currency, believing it to be a
crime, though morally reprehensible, did not constitute the mens rea of
any crime. The impossibility test is applied in the case of legal and factual
impossibility. A legal impossibility is where the law, in spite of
perpetrator's having done all that is necessary to break the law, does not
prohibit what he did. In other cases where the completion of the crime is
prevented by some extraneous factor the attempt is called factual
impossibility. Now in both cases attempt is made punishable.82 To
highlight this point reference may be made to R v.
CRINf1NAL ATrEM1)T

Shivpuri. 83 In this case, a person was offered L 1000, if on his return to UK

he would receive a suitcase delivered to him and distribute the drug packets
contained therein. When after receiving the said suitcase, the appellant was
about to deliver drug packets, he was arrested. He gave the Custom Officers
a written statement confessing to having played his part as recipient to a
distributor of illegally imported drugs which he believed to be heroin or
cannabis. On analysis the substance was found to be snuff or similar
harmless vegetable matter. Subsequently in evidence he denied making any
admission or confession about drugs. He was tried on counts of attempting
to be knowingly concerned in dealing with and harbouring the controlled
drug, namely heroin the import of which was prohibited and thereafter
found guilty. The justification for the conviction given by the Court of
Appeal was that the act was more than preparatory to the commission of
the actual offence. The facts were such that the commission of the actual
offence was impossible. By so ruling, the House of Lords overruled an
earlier decision, Anderton v. Ryan84 in which the House of Lords acquitted
a person charged with the attempt to handle stolen goods despite her
intention to commit the offence which was the necessary ingredient of
attempt under the Criminal Attempts Act, 1981. In fact under this Act what
the court was to look for was the intention while moving towards
completion of crime irrespective of the fact whether the intended crime was
possible or impossible. Overruling Anderton's case85 which ran counter to
S. 1 of the Criminal Attempts Act, 1981, the House of Lords found Shivpuri
guilty of attempt as he thought it to be crime though in fact it did not amount
to crime.
The attempt in IPC is based on this same principle. It can thus, be
definitely stated that the impossibility of a thing will not absolve the

82 . Supra note 5 at 208.

83 . (1987) ACI (HL).
84 . [1985] 2 All ER 355.
85 . Ibid
238 ESSAYS OF INDIAN PENAL CODE
criminal liability of the person committing the act. This becomes evident
from the illustration given under S. 511 of IPC which speaks of the attempt
to steal in the event of a person putting his hand in the empty pocket of
another, though theft of money from an empty pocket is impossible the
person trying the pocket of another commits the offence of attempt to
commit theft. The theoretical formation for imposing responsibility for
attempt is provided for by Prof.Glaniville Williams thus:86
The actus reus of attempt is of a most peculiar kind. Most
crimes specify their actus reus directly, they tell us what it is
that we must do or not to do. Criminal attempt is different; it
specifies the actus reus chiefly by reference to the crime
attempted. It tells us that we must not seek to trace a certain
distance towards the commission of the actus reus of some other
crime. If the defendant is under some serious mistake, no part
of what he does may be the actus reus of another crime. So it
may seem plausible to say that his criminality exists only in his
own mind. However, this conclusion, overlooks the special
features of criminal attempt. In an attempt, by hypothesis, the
full crime has not been committed, or need not be proved to
have been committed. So, by hypothesis, there need be no full
actus reus of the complete crime. The actus reus is that of the
attempt, it is forbidden by reason of the law of attempt, and not
by reason of any other penal law.
The problem of impossible attempts however appears to defy solution
and a close examination of the whole matter is, therefore, called for. 87
The Law Commission of India, 88 proposed deletion of S. 511 and
insertion of a new Chapter VB entitled 'Of Attempt' consisting of the two
ss. 120C and 120D after Chapter VA dealing with 'Criminal Conspiracy'

86 . G Williams, "The Lords and Impossible Attempts" (1986) 45 Cambridge L] 33.

87 . Two different tests have been suggested by Prof. Sayre and Prof. Ilall in this
connection.
Sayre says: "If from the point of view of a reasonable man in the same circumstances
as the defendant, the desired criminal consequences could not be expected to result
from the defendant's acts it cannot endanger social interests to allow the defendant to
go unpunished, no matter how evil may have been his intentions." Sayre, 'Criminal
Attempts', 41 H.L.R. p. 851.
According to Hall, "Attempt is not determined by reference to the actual facts in the
external situation ... In sum, the material facts referred to in the definition of
criminal attempt are those supposed to exist by a person manifesting the requisite
mens rea, Here, unlike the above situations there was a of fact, and the crucial issue
concerns mens yea." Hall, supra note 3 at 596.
88 . Law Commission of India, 42nd Report on Indian Penal Code, (Ministry of Law) (1971),

pp. 138, 139.

 239
with a view to group inchoate crimes together. The proposed S. 120C gives
a comprehensive definition of attempt as shown below.
120C. Attempt. - A person attempts 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 comnussron;
(b) the act so done is closely connected with, and 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.
CRATNJAL ATTENWT

120 D. Punishment for attempt. Whoever is 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
may extend to one-half of the imprisonment for life, or as the case may be,
one-half 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.
This proposal also incorporates the proximity criterion. Perhaps it
would add clarity if sub-clause (b)is deleted and the rest retained as the
definition. Whether the act is proximate or not may be question of fact that
could be decided by the courts. The Supreme Court of India has also dealt
with these aspects while determining the scope of ss. 511 and 307 Indian
Penal Code. 89 Revision of our law on the lines of Criminal Attempt Act,

. The Supreme Court has held in 0m Prakash v. The State ofPunjab, (1962(1) S.C.J. 189)
89

that a person commits the offence under Section 307 when he has an intention to
commit murder and in pursuance of that intention does an act towards its commission
irrespective of the fact whether that act is penultimate act or not. The Court rejected the
argument that for an act to amount to an offence under S. 511 it need not be the last act
and can be the first act towards the commission of the offence, while for an offence under
S. 307 it should be the last act which if effective to cause death, could constitute the
offence of an attempt to commit murder and that, therefore, the ingredients of an offence
under S. 307 are materially different from the ingredients of an offence under S. 511.
The Court observed 'The expression 'whoever attempts to commit an offence' in Section
511 can only mean 'whoever intends to do a certain act with the intent or knowledge
necessary for the commission of that offence.' The same is meant by the expression
'whoever does an act Wich such intention knowledge and under such circumstances that if
he, by that 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 expression 'by that act' does not mean that the immediate
240 ESSAYS OF INDIAN PENAL CODE
1981 may help our courts resolve the conflicts and strengthen the law of
criminal attempts.

effect of the act committed must be death. Such a result must be the result of that act
whether immediately or after a lapse of time" (at pp. 191192). The Court further
explained that in the cases of attempts to commit murder by fire arms, however, the act
amounting to attempt to commit murder is bound to be the only and the last act to be
done by the culprit and expressions used in such cases referring to the last act as
constituting the attempt are not to be taken as precise expositions of the law though they
may be correct in the particular context in which they occur.
The court approved of the ruling in Emperor v. Vasudeo Balwant Gogte (supra note 72)