CRIMINAL ATTEMPT

i
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.1 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

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

2. Arnold T.W., "Attaempt in Criminal law", 40 Yale L.J. 53.
3. Hall, General Principles of Criminal 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 of English Law, vol. V., p. 200, Sayre, "Criminal
Attempts" 41 Harvard Law Review, 821.
5. K.N. Chandrasekhjaran Pillai, General Principles of Criminal Law,[20Q?i) p. 199,
218 ESSAYS OF INDIAN PENAL CODE

as an exercise of c r i m i n a l p o l i c y 6 in t h e m e a s u r e s a d o p t e d b y t h e Star
C h a m b e r . T h e E n g l i s h c o m m o n law did n o t h a v e a n y law of c r i m i n a l
attempt till the 18 t h century. 7 T h e influence of the Star C h a m b e r is evident
o n c o m m o n law in this regard. 8 T h e d o c t r i n e of a t t e m p t o r i g i n a t e d in
E n g l a n d i n Rex v. Scofield,9 a case of a t t e m p t e d a r s o n a n d w a s finally
f o r m u l a t e d in Rex v. Higgins,10 w h i c h c o n c e r n e d s o l i c i t a t i o n 1 1 t o steal
certain goods. In Scofield's case overt behaviour was held t o be a criminal
a t t e m p t b u t the Higgins case went further in establishing criminality o n a
lesser degree of overt b e h a v i o u r viz., solicitation. These cases p r o v i d e an
i m p o r t a n t clue t o t h e necessity of d e v e l o p m e n t of t h e law of c r i m i n a l
attempts, namely that the standard technique of 'assault plus aggravation', a
species of attempt, in c o m m o n law could not be literally applied to check all
kinds of h a r m . This suggests that harmful tendencies of aggravated n a t u r e
w e r e t o be m a d e p u n i s h a b l e as c r i m i n a l a t t e m p t a n d t h i s r e m a i n s t h e
underlying policy of the law even today. 1 2

6. Kenny, Outlines of Criminal 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).
7. Pollock & Maitland, History of English 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).
8. 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.
9. Rex v. Scofield, (1784) Cald. (387), Perkins, Cases on Criminal 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."
10. Rex v. Higgins, 102 E.R. 269 (1801).
11. Incitement, conspiracy and attempt were'intermingled with each other till the 18th
century, Kenny, supra note 6 at 87.
12. Hall supra note 3 at 559. R v. Took, (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.
CRIMINAL ATTEMPT 219

Recently, the apex court in Aman Kumar v. State ofHaryana13 .explained

the necessity to punish the offence of attempt. It observed:14
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: 15
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 i n t e n t i o n to commit a crime, (2) p r e p a r a t i o n 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. 16 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 a t t e m p t . 1 7 However, much will depend upon the facts and
circumstance's of the case, but four different approaches have been worked
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. Mobd Yakubls tried to define attempt.
justice Sarkaria observed: 19
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

13. (2004) 4 SCC 379.

14. Id. at 387, para 8 . See also Koppula Venkata Rao v. State ofA.P., (2004) 3 SCC 502,
para 8 at 605.
15. See also, id. at 387, para 9.
16. State v. Narayan Singh, AIR 1989 SC 1789. See also Aman Kumar v. State o/Haryana,
(2004) 4 SCC 379.
17. Balai Chandra Biswas v. State ofW.B., (1994) 1 SCC 423 at 425.
18. (1980) 3 SCC 57.
19. Id. at 62.
220 ESSAYS OF INDIAN PENAL CODE

all crimes which consist of the commission 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
' c r i m i n a l ' need not be the p e n u l t i m a t e act t o w a r d s 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: 20
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. 21 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 injury is inflicted, are
some of the factors that may be taken into consideration to determine the
intention. 22

II

The Indian Penal Code, besides, dealing with the law of criminal attempts in
a specific and general way,23 contemplates provisions to arrest criminality in
incipient stages too. 24 The Code deals with attempt in three difficult ways
viz.,

20. Id. at 66.

21. Aman Kumar v. State ofHaryana, supra note 13.
22. Harikisban v. Sukhbir Singh, AIR 1988 SC 2127 para 7 at 2130.
23. S. 511, IPC.
24. Ss. 122, 126, IPC; Ss. 233, 234, 235, IPC; Possession of counterfeit coins, false
weights and forged documents etc.
CRIMINAL ATTEMPT 221

(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. 25
(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 w i t h side by side w i t h 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." 2 6 The rule is a combination of principles laid down in a
n u m b e r of decided cases e.g. an act of attempt must be sufficiently
proximate to the crime intended, 2 7 it should not be remotely leading
t o w a r d s the commission of an offence, 2 8 it must contribute an
antepenultimate act 29 and that the act done should place the accused in a
relation with his intended victim. 30 The test of proximity at common law
was expressed in various ways.31 One way which gave attempts very narrow
scope, was that of Lord Diplock in Stonebouse,32 that only acts "immediately
connected" with the offence can be attempts. 33 The liability in attempt is

25. E.g., Ss. 121, 124-A, 161, 291. IPC.

26. Williams G., Criminal Law (General Part), 481.
27. Id. at 477 "It seems to be a question for the judge whether the act charged as the
attempt satisfied this requirements."
28. Eagleton (1855) 169 E.R., at 835, See Hope v. Brown (1954) 1 W.L.R. 250, See Russell
on Crimes, (11th Ed. by Turner) p. 190.
29. Linneker (1906) 2 K.B. 99.
30. White, (1910) 2 K.B., 124; Linneker, (1906) 2 K.B. 99, Vreones (1891) 1 Q.B. 360, See
Emp. v. Raghunatb, 19410udh 3; Mac CRea 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.
31. 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;
Gullefer, [1987] Crim LR 195, CA.
32. [1978JAC55.
33. See Smith and Hogan, Criminal Law, (6th ed.1988) p.292.
222 ESSAYS OF INDIAN PENAL CODE

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. 34 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. 35 The accused in Abhyanand Mishra v. State of Bihar36
applied 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 p e r m i t t e d to appear in the e x a m i n a t i o n .
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. 37
The above principle of proximity was reaffirmed in Sudhir Kumar
Mukherjee v. State ofWB,is 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,39 the Supreme Court held that the very fact that a
challan, had been prepared and that the initials of the clerk concerned had

34. See, D.P.P. v. Storehouse, (1977) 2 All E R 909; State v. Mohd Yakub, (1980) 3 SCC 57;
Hari Mohapatra v. State o/Orissa, 1996 Cri LJ 2952 (Ori); Abhyanand Mishra v. State of
Bihar, AIR 1961 SC 1698; Sagayam v. State ofKarnataka, AIR 2000 SC 2161.
35. Hazara Singh v. Union ofIndia, AIR 1973 SC 62. See also Padala Venkatasami (1881) 3
Mad 4.
36. AIR 1961 SC 1698.
37. Abhyanand Mishra v. State of Bihar, AIR 1961 SC 1698.
38. AIR 1973 SC 2655.
39. AIR 1961 SC 1698.
CRIMINAL ATTEMPT 223

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.40
There 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.42 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
m o m e n t he commences to do an act with the necessary intention, he
commences his attempt to commit the offence.43 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 towards maturing and
effecting it. Intention is the direction of the conduct towards the object
chosen u p o n considering the motives which suggest the choice. 4 4
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).45
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
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,

40. Supra note 19.

41. Ibid.
42. Madan Lai v. State ofjammu &Kashmir, (1997) 7 SCC 677 at 689.
43. Koppula VenkatRao supra note 14.
44. Ibid
45. Id. at 606.
224 ESSAYS OF INDIAN PENAL CODE

and those which are sufficiently proximate to it to amount to an attempt to

commit it.46
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. 4 7 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 ofPunjabi 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: 49
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.50 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 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,51) to stipulate that if any person

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

47. See Inbau and Sowle, Cases and Comments on Criminal Justice (1960) p. 411; In reBavaji,
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).
48. AIR 1970 SC 713.
49. Id. at 715, para 4.
50. Supra note 50.
51. Natbu Lai v. State ofMP, AIR 1966 SC 43.
CRIMINAL ATTEMPT 225

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.52 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) O r d e r , 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 fertihzer 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. 53
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
commission. 54
(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. 5 5 The actus reus of an attempt to commit a specific crime is

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

53. Hazara Singh v. Union ofIndia, (1973) 3 SCC 401.
54. Darbara Singh v. State ofHaryana, 1980 Cri LJ 1157.
55. Supra note 28 at 483.
226 ESSAYS ON THE INDIAN PENAL CODE

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. 57 This theory
has found its application in courts in Newzealand. 58
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. 59
The 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 of attempt
to commit murder is made out. 60 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

56. Turner, Modern Approach to Criminal Law p. 279.

57. Turner, "Attempts to Commit Crimes" in ibid. (Ed. Davis) p. 280; Salmond,
Jurisprudence (6th ed.) p. 346.
58. 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."
59. Asgarali Pradhania v. Emperor, AIR 1933 Cal 893.
60. Om Prakash v. State ofPunjab, AIR 1961 SC 1781. See also Hazari Singh v. Union of
India, AIR 1973 SC 62.
CRIMINAL ATTEMPT 227

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

preparation. 6 1
(iv) Social Danger Test: T h e seriousness of the crime attempted has been one
of t h e criteria in deciding t h e liability in cases of a t t e m p t . If the facts and
circumstances of a case lead t o the inference that the resultant consequences
w o u l d have b e e n grave, t h e crime of a t t e m p t is c o m p l e t e . In fact it is the
a p p r e h e n s i o n of social danger w h i c h the particular crime is calculated t o
excite, 6 2 that determines liability for an attempt.
T h e test is very similar t o the rule enunciated by Prof. Williams 6 3 with
the difference that here the consequences of circumstances and the gravity
t h e r e o f are inferred from t h e totality of facts whereas in the latter case a
m e r e fragment of an action, if it is a final link in the chain of p e n u l t i m a t e
acts, makes a p e r s o n liable of criminal attempt. 6 4 As crimes against w o m e n
are crimes against society in such cases courts, generally, have taken a strict
view. 6 5
It w o u l d be i n c o r r e c t t o say t h a t t h e c o u r t s have decided cases w i t h
strict reference t o one rule or the other. T h e above tests have been extracted
from the decided cases in the c o m m o n law system. In cases of a t t e m p t the
m a i n difficulty arises i n d r a w i n g a d i v i d i n g line b e t w e e n t h e stages of
preparation and attempt and it need be examined, if, any one or m o r e of the
a b o v e tests suggested can serve a useful guide in d e t e r m i n i n g t h e a b o v e
problem.

Ill

T h e general principles relating t o criminal attempts have been laid d o w n in

S. 511, Indian Penal C o d e , which runs as follows:
W h o e v e r a t t e m p t s t o c o m m i t an offence p u n i s h a b l e b y this
C o d e w i t h i m p r i s o n m e n t for life or i m p r i s o n m e n t , or t o cause

61. State v. Narayan Singh, AIR 1989 SC 1789. See also Aman Kumar v. State ofHaryana,
(2004) 4 SCC 379.
62. Holmes, The Common Law (1881) pp. 68-69, Sayre, supra note 4 at 845; supra note 2 at
73.
63. Glaniville Williams, Textbook of Criminal Law (Second ed. 1983).
64. The decisions inReg. v. Ramsaran, 4 N.W.P. 46 and Reg. v. RiasatAli, (1881) 7 Cal.
352 can be explained with the help of rule (iv) and rule (i) respectively. See also
Chittaranjan Chaudhry v. State ofBihar, (1987) 2 SCC 104.
65. State ofKarnataka v. Mahabaleshwar Gourya Naik, 1992 Supp (3) SCC 179. See also
State ofMahrashtra v. Rajendra Jawanmal Gandhi, AIR 1997 SC 3986; 1997 (8) SCC 386;
Dharma v. Nirmal Singh, AIR 1996 SC 1136; Sittu v. State, AIR 1967 Raj 149; Suresh
Chand v. State ofHaryana, 197G Cri LJ 452 (Pun); Madanlal v. State ofRajasthan, 1987
Cri LJ 257 (Raj). See also State v. Rajendra Jawammal Gandhi, AIR 1997 SC 3986; Han
Mohapatra 1996 Cri LJ 2952. See also Madan Lai v. State ofjammu &Kashmir, (1997)7
SCC 677; State ofHaryana v. Prem Chand, (1997) 7 SCC 756.
228 ESSAYS ON THE INDIAN PENAL CODE

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. 51l. 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 commission of the 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. 5ll'. 6 8
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 6 9 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 of Punjab,{20Q\) 8 SCC 633 at 640.

67. Huda, The Principles ofLaw of Crimes 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
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
CRIMINAL ATTEMPT 229

(ii) The Bombay High Court has, however, held otherwise in a case71
which has been doubted in a later case.72
The former chief court of Punjab had laid down that S. 511 was in
terms much wider than S. 307.73
(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. 74
Mayne's view is that cases not covered by S. 307 will be covered by S.
511 as held in Cassidy's case.75

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.
72. 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."
73. Per Rattigan, J in Jiwan Das (1904) P.R. No. 30 of 1904; Cr LJ 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.
74. 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."
75. 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. Cases ofmurder, therefore, do come within the letter ofSec. ill.
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 mpari material with
S. 307 and worded in the same way, and can hardly admit of different treatment. As
230 ESSAYS OF INDIAN PENAL CODE

Shri K.L. Ratan 76 and Dr. Hari Singh Gour 77 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.7* 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 interned 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. 79

to the second reason, it is of course clear that any attempt, coming under Sec. 511...
which is specially providedfor elsewhere must be 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 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 case'would go wholly unpunished". Mayne
(4th Ed.) 532.
76. 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."
77. Gour, Penal Law of India, (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 i.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."
78. (2000) 4 SCC 454.
79. Id. at 455.
CRIMINAL ATTEMPT 231

The Supreme Court in State ofMarahashtra v. Balram Bama Patil,SQ 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:81
It 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 sufficient in law if there is present an intent
coupled with some overt 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. 82

IV

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.83
Thus the actus reus of attempt is reached in such act of performance as first
gives prima facie evidence of the mens rea.M 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.
Under English law, the view which formerly prevailed was that a person
cannot be held liable for an attempt to do the impossible.85 However, this
line of decisions was overruled in R. v. Brownib and finally in R. v. Rin^7
wherein it was laid down that impossibility of performance does not per se

80. AIR 1983 SC 305.

81. Id. at 307, para 9.
82. Supra note 68.
83. Supra note 6 (Turner 17th Ed. 92).
84. See Archbold's Pleadings 33rd Edn. 1954, 1489.
85. 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. (N.S.) 89.
86. R. v. Brown, (1889) 24 Q.B.D. 357.
87. R. v. Ring, (1892) 17 Cox. 491.
232 ESSAYS OF INDIAN PENAL CODE

render the 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. 8 9 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. 90 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.91 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 Taafe92 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 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.93 To highlight this point reference may be made to R v.

88. Per Birdwood J in Q.E. v. Mangesb Jivaji, (1887) 11 Bom. 376, 381.
89. In Mt. PupsirPanku, (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.
90. 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.
91. (1977) 67 Cr App Rep 13 in, [1978] Crim LR 219 and commentary.
92. [1984] AC 539.
93. Supra note 5 at 208.
CRIMINAL ATTEMPT 233

Shivpuri.^ In this case, a person was offered £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. O n 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. Ryan^ 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 case96 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 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: 97
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

94. (1987) ACI (HL).

95. [1985] 2 All ER 355.
96. Ibid
97. G Williams, "The Lords and Impossible Attempts" (1986) 45 Cambridge L] 33.
234 ESSAYS OF INDIAN PENAL CODE

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 t o 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.98
The Law Commission of I n d i a , " 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'
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 commission;
(b) the act so done is closely connected with, and proximate t o , 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.

98. Two different tests have been suggested by Prof. Sayre and Prof. Hall 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 mistake of fact, and the crucial
issue concerns mens rea." Hall, supra note 3 at 596.
99. Law Commission of India, 42nd Report on Indian Penal Code, (Ministry of Law) (1971),
pp. 138, 139.
CRIMINAL ATTEMPT 235

120 D . P u n i s h m e n t for a t t e m p t . - W h o e v e r is guilty of an a t t e m p t t o

c o m m i t an offence punishable b y this Code w i t h i m p r i s o n m e n t for life, or
w i t h i m p r i s o n m e n t for a specified term, shall, where n o express provision is
m a d e b y this C o d e for t h e p u n i s h m e n t of such attempt, be p u n i s h e d w i t h
i m p r i s o n m e n t of any description provided for the offence, for a t e r m which
m a y extend t o one-half of the imprisonment for life, or as the case m a y be,
one-half w h i c h m a y extend t o one-half of the i m p r i s o n m e n t for life, or, as
the case m a y be, one-half of the longest t e r m of imprisonment provided for
that offence, o r w i t h such fine as is provided for the offence, or w i t h b o t h .
T h i s p r o p o s a l also i n c o r p o r a t e s t h e p r o x i m i t y c r i t e r i o n . P e r h a p s it
w o u l d a d d c l a r i t y if sub-clause (b)is deleted a n d t h e rest r e t a i n e d as t h e
definition. W h e t h e r the act is proximate or not m a y be question of fact that
could be decided b y the courts. T h e Supreme C o u r t of India has also dealt
w i t h t h e s e aspects while d e t e r m i n i n g the scope of Ss. 511 a n d 307 Indian
Penal C o d e . 1 0 0 Revision of o u r law o n the lines of C r i m i n a l A t t e m p t Act,
1981 m a y h e l p o u r c o u r t s resolve the conflicts and s t r e n g t h e n t h e law of
criminal attempts.

100. The Supreme Court has held in Om Prakash v. The State ofPunjab, (1962(1) S.C.J.
189) 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 with 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 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. 191-
192). 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)
[Ed.].