Attempt

Attempt
► There are four stages in the commission of an offence, namely, intention,
preparation, attempt and the actual commission of the offence. This can be
illustrated with the help of an example. A killed B with a gun. The act of A, in firing at
B, can be split into four stages:
► The first stage is the stage of contemplation or emergence of an evil intention in the
mind of the accused. The very formation of an evil intent in the mind of A to kill B is the
first step in the direction of the commission of the offence of murder.
► The next step is preparation. Preparation consists in arranging or devising means or
measures necessary for the commission of an offence. The act of procuring a gun or
pistol or some other deadly weapon for the purpose of killing would amount to
preparation.
► The third step in the series is the attempt to commit the offence. The word attempt, as
stated by Cockburn CJ, “conveys with it the idea that if the attempt had succeeded the
offence charged would have been committed”. For example A, after procuring a
loaded gun aims at B and fires in order to kill him. In case B is not killed either
because the injuries do not prove fatal, or because A misses the mark or because of
any other reason beyond his control, A, is said to have attempted to murder. If A
succeeds in killing B, he would be guilty of murder.
► the Indian Penal Code does not punish mere evil intention unaccompanied by
an overt act. The devil himself does not know the thought of a man, so it is
absolutely difficult to define the contemplation in the mind of an individual and
punish him for the idea in his head. Likewise, the act of preparation in general is
not punishable.
► If intention and preparation were made punishable, it would be impossible to
prove that the object of an accused was to commit an offence. For instance, a
man might purchase a gun for self-defence or for any other purpose not
necessarily for committing murder. Again, the act of mental determination and
that of preparation are too remote from the completion of the crime. On the
other hand, attempt takes the offender very close to the successful completion
of the crime and so it is punishable in law like the commission of an offence.
Criminal Attempt and Preparation
Distinguished
► The intricate problem that arises in this connection is how to draw a dividing line
between a preparation and an attempt, in other words, what are the tests to
ascertain when an act has crossed the boundary of preparation and travelled
ahead to the point of becoming an attempt? It is a difficult task. No clear
dividing line has so far been drawn between the two. The Indian Penal Code,
1860 is silent on the point. It has neither defined “attempt” nor explained when
an act would amount to an attempt. Every case is to be judged according to the
facts and circumstances of its own. However, some tests have been evolved by
the courts to determine at what stage an act or a series of acts done towards
the commission of the intended offence would become an attempt. These tests
are: proximity, locus poenitentiae, equivocality, impossibility and social danger
 Proximity Test

► An act of attempt must be sufficiently proximate to the crime intended, it should

not be remotely leading towards the commission of an offence. The act of the
accused is proximate if, though it is not the last act that he intended to do, it is
the last act that was legally necessary for him to do, if the contemplated result is
afterwards brought about without further conduct on his part.
► A, intending to murder Z, buys a gun and loads it with the intention to kill Z. A is
not yet guilty of an attempt to murder. A fires at Z, but misses the mark for want
of skill or due to some defect in the gun. Since the act of A could not bring the
desired effect, say, death of Z, A could not be held liable for murder. However,
A would be liable for attempt to murder, because A has done what was legally
necessary for him to do under the circumstances. If A could not succeed in his
object, it was not because of his desisting from the act of killing, but because of
something beyond his control.
► In Sudhir Kumar and Shamlal Shaw v State of WB, AIR 1973 SC 2655 : (1974)
3 SCC 357, the Supreme Court has reaffirmed its earlier view taken in the
Abhayanand Mishra case with regard to the definition of an “attempt”, which
is as follows:
► A person commits the offence of “attempt to commit a particular offence”
when (i) he intends to commit that particular offence, and (ii) he, having
made preparations and with the intention to commit the offence, does an act
towards its commission; such an act need not be the penultimate act towards
the commission of that offence, but must be an act during the course of
committing that offence.
Locus Poenitentiae Test (Time for
Repentance)
► An act would amount to preparation and not an attempt, if a person voluntarily
gives up the idea of committing a crime before the criminal act is carried out; so
long as the steps taken by the accused leave room for a reasonable
expectation that he might, either of his own accord, or because of the fear of the
consequences that might befall him as a result, desist from the act to be
attempted, he would still be treated on the stage of preparation.
► A, intending to murder Z by poisoning, purchases poison and mixes the same
with food which remains in A’s keeping; A is not yet guilty of an attempt to
murder; because there is still time when better reason might prevail any
moment and A might change his mind and desist from giving that food to Z.
 Impossibility Test

► An act which is impossible to commit cannot be attempted and so is not

culpable. Accordingly, to shoot at a shadow, or to kill a man by witchcraft is
not attempt in law.
► In such cases, there is no probability of realising the accused’s goal. The
impossibility must, however, be absolute and not relative.
 Equivocality Test

► To constitute an attempt, the act must be such as to clearly and unequivocally

indicate the intention to commit the offence. If what is done indicates beyond
reasonable doubt that the end is towards which it is directed, it is an attempt,
otherwise it is a mere preparation. The act must refer to the commission of the
crime and it must be evident and clear on examination. The acts must speak for
themselves.
Social Danger Test

► The seriousness of the crime attempted and the apprehension of the social
danger involved is taken into account to distinguish an act of “attempt” from that
of “preparation”.
► A, gives some pills to a pregnant woman to procure abortion, but it had no
effect because the drug turned out to be innocuous. A, would be guilty of
attempt to cause miscarriage since the act would cause an alarm to society and
will have social repercussions.
Criminal Attempt under The Indian
Penal Code, 1860
► The Indian Penal Code, 1860 has dealt with criminal attempts in four different
ways, viz,
► (i) first, the attempt to commit offences in general under section 511 of IPC
(Punishment for attempting to commit offences punishable with imprisonment
for life or other imprisonment);
► (ii) secondly, attempt to commit capital offences, like murder, culpable homicide
and robbery
► (iii) thirdly, attempt to commit suicide; and
► (iv) fourthly, attempt to commit offences against the State, head of the State,
sedition etc. In such cases in view of the gravity of nature of the offence,
attempt to commit it as well as the commission of the offence carry the same
punishment.
Narayandas vs State of West Bengal

► The accused had undeclared notes sewn in the pants on his trousers
and was discovered by the customs officer. The court held it went
beyond the stage of preparation. The court held that an attempt to
take out currency notes is an act punishable under the Sea Customs
Act.
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Om Parkash vs State of Punjab

► the accused deliberately starved his wife to accelerate her death. It

was held that his act had amounted to attempt to commit murder.
The court stated that a person commits an offence under Section 307
when he has an intention to commit murder and acts towards the
commission. The court made a difference between the intention to
commit an offence and the intention or knowledge necessary to make
an act an offence. In section 511, the expression ‘whoever attempts
to commit an offence’ means whoever attends to commit an act with
the knowledge necessary to commit the offence. It is similar to the
expression in Section 307 that states ‘ 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’.
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Abhayanand Mishra vs State of Bihar

► the accused falsely showed he was a graduate. He tried to appear as

a private candidate in an M.A examination through a permission
letter but was debarred from appearing and prosecuted. In this case,
the court held that the attempt to commit an offence begins when all
the preparations are complete and he takes a step towards the
commission of the offence. It does not matter if this direction towards
the commencement fails due to external factors, it is still an
attempt.
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Malkiat Singh vs State of Punjab

► A truck carrying paddy from Punjab was stopped by a sub-inspector and

was taken into possession 18 miles from Delhi. He was accused of violating
the Punjab Paddy order. The driver admitted he was transporting the
paddy towards Delhi. The court held the driver was not guilty of violating
Section 7 of the Essential Commodities Act and Paddy Export Control
Order as he has not crossed the stage of preparation and still had time to
change his mind.
► The court commented that preparation consists of arranging the means
necessary for the commencement of the offence. On the other hand,
attempt is a direct movement towards the commission after preparations
have been made. The test that the court set down to demarcate the two is
that if the act in question is such that if the offender changes his mind, the
act and the previous acts would be rendered harmless.
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State of Maharashtra vs Mohammed
Yakub
► The accused tried to smuggle silver out of India. They were convicted for
the violation of the Foreign Exchange Regulation Act, Import and Export
(Control) Act, 1947 and Customs Act, 1962. While the appellate court
acquitted them, the Supreme Court convicted them for an attempt to
export silver. The court held that for an act to be considered an attempt,
there must be three ingredients. First, there must be an intention to do the
act. Second, some act must have been done which would have been done
towards the commission of the act and third, the act must be proximate to
the crime. Proximity is not with regards to time and place but with regards
to intention. The act must show an intention that is distinguished from
mere desire or object to commit the particular offence. It must be seen in
conjunction with other facts and circumstances and not necessarily in
isolation. They also established that what constitutes an attempt depends
largely on the facts of the case.
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Types of Punishment in India
► The criminal law adheres in general to the principle of proportionality in prescribing
liability according to the culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle considerations of culpability
that are raised by the special facts of each case.
► Chapter III of Indian Penal Code, 1860 (sections 53 to 75) has laid down the general
provisions relating to the punishments. The code has provided for a graded system of
punishment to suit different categories of crime. Section 53 provides for five types of
punishments that can be awarded to a man convicted under IPC, 1860, namely:
► (a) Death sentence;
► (b) Imprisonment for life;
► (c) Imprisonment with or without hard labour;
► (d) Forfeiture of property; and
► (e) Fine.
Death Sentence

► The death sentence is a punishment which is sanctioned by the government and

ordered by the court where a person is put to death for a crime acted by him. It is
also referred to as ‘Capital Punishment’. The act of carrying out such practice is
called execution. As per the Amnesty International survey, the report on as of
July 2018 is 56 countries retain capital punishment and 106 countries have
completely abolished capital punishment for all crimes. In India, the death
penalty is given by the method of hanging. The other ways through which death
sentences executed at world scenarios are stoning, sawing, blowing from a gun,
lethal injection, electrocution, etc.
► The subject of death sentence always has been a matter of controversy. While
considering the Constitution as the supreme, the validity of death sentence v/s
fundamental rights constantly came forward for the debates. However, the death
sentences are rarely given in the Indian criminal courts. In the case of Bachan
Singh vs State Of Punjab, the Supreme Court held that capital punishment shall
be given in the “rarest of the rare” case. However, what constitutes the “rarest of
the rare cases” is not prescribed by the Supreme Court or by the legislature.
► In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC
ruled that the approach towards imposing capital punishment shall be
balanced on mitigating and aggravating factors of the crime.
However, in the case of Bachan Singh, for the first time, this
approach was called into question due to the amendments in the
Cr.P.C. As per the amendment in the Cr.P.C. in the offence of murder
the offender shall be punished with the sentence of life
imprisonment. After taking due consideration of the amendment, the
Court stated that capital punishment shall be given in special cases
only. However, in the case of Sangeet & Anr. v. State of Haryana, the
court noted that the approach laid down in Bachan Singh’s case is not
fully adopted. The courts still give primacy to the crime and not to
the circumstances of the criminal. The balance of the mitigating and
aggravating factors have taken a bit of a back seat in ordering
punishment.
Constitutional Validity of Death Penalty

► The issue of the death penalty is not a recent issue. It has been discussed,
studied and debated for a prolonged time. However, till today no
conclusion is drawn about the abolition or retention of the provision. The
death penalty has been the mode of punishment from the British era.
Various countries have abolished this practice. However, in Arab countries
the principle of retributive punishment i.e. “an eye for an eye” is practised.
In the list of retention countries as mentioned above, India is one of them
which have retained to give death penalty unless some ‘special reasons’ or
‘rarest of rare case’ condition arise.
► Under Article 21 of the Constitution of India, the right to life and liberty is
guaranteed, including the right to live with human dignity. There are
certain exceptions that are recognized by the law wherein in the name of
law and public order the state can restrict the rights. In Maneka Gandhi v.
Union of India, the SC laid down the principle of “due process” through
which a state can restrict the citizens from enjoying their rights.
• In the case of the death penalty the due process can be as follows:

• Death penalty to be given in ‘rarest of the rare’ cases;

• The accused shall be given the ‘right to heard’;
• As per Article 136, the death penalty shall be confirmed by the High
Court;
• Under Section 379 of the Cr.P.C., the accused have the right to
appeal in the Supreme Court;
• Under Section 433 and 434 Cr.P.C., the accused may pray for
commutation, forgiveness, etc. of the sentence.
► In various cases, the constitutional validity of the death penalty was
challenged. In the case of Jagmohan Singh v. State of U.P, the
argument was that the death penalty is in violation of Article 14
(Right to Equality), Article 19 (Right to Freedom) and “right to life”
i.e. Article 21, which has been unanimously rejected by the
five-judge bench of the Supreme Court. Further, it was contended
that as per Cr.P.C. the procedure is confined to findings of guilt and
not awarding death sentence. However, the Supreme Court held that
the death sentence is a choice by the court made according to the
procedure established by law and the choice between capital
sentence or imprisonment of life is based on the circumstances,
nature and facts of the case brought during the trial.
► In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer
had empathetically stressed that the death penalty is violative of
articles 14, 19 and 21. With this the Justice Iyer said two conditions
under which the death penalty can be given:
• While giving the death penalty the court shall record special reasons.
• Only in extraordinary cases the death penalty to be imposed.
► However, in the case of Bachan Singh vs. State of Punjab, within one
year the five-judge bench (4:1- Bhagwati J. dissenting) overruled the
decision of Rajendra Prasad’s case. The judgment expressed that the
death penalty is not violative of Article 14,19 and 21 of the
Constitution of India and pronounced that in the “rare of the rarest
case” i.e. those cases in which the collective conscience of the
community is so shocked that it will expect the judiciary to deliver
the death penalty on the accused the death penalty can be ordered.
Although, Justice Bhagwati in his dissenting judgment stated that the
death penalty is not only being violative to Article 14 and 21 but also
undesirable because of several other reasons.
Commutation of Death Sentence by the
State or Central Government Scope
► The powers of commutation of the death sentence by the State and
Central government is provided under the following provisions of the
Constitution:
1. Article 72– gives pardoning power to the President.
2. Article 161– gives pardoning power to the Governor.
► The difference between Article 161 and Article 72 are:
1. Article 161 is narrower than Article 72.
2. Article 72 covers the punishment sentenced by a Court Martial,
however, Governor is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of
Article 161 death sentences are not covered.
Imprisonment for Life

► Life imprisonment is one of the types of punishment which is

recognized under Section 53 of the IPC. Earlier this was also known
as transportation for life. This punishment is given for serious crimes
wherein the convicted remains in prison until his/her last breath.
► In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex
Court clearly stated that reading Section 55 of the Code and Section
433 and 433 A of Cr.P.C, life imprisonment is not confined to 14
years of imprisonment, only the appropriate government can
commute the life imprisonment of the prisoner.
► The government can commute the punishment of life imprisonment
to the imprisonment of term equal to or less than 14 years, or if the
prisoner exceeded 14 years of imprisonment then he can be released.
Imprisonment

► The general meaning of imprisonment means captivity or to put

someone in prison. Under Section 53 of IPC, imprisonment can be of
two types. One is simple and the other is rigorous. As per Section
60 of the IPC, the competent court has the discretion to decide the
description of sentencing. It can be of various types, like:
1. Wholly or partly rigorous; or
2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.
Forfeiture of Property

► Forfeiture generally means the loss of property without any

compensation in return, which is the result of the default caused by
the person in terms of contractual obligation, or in paying penalty for
illegal conduct.
Fine

► The court may impose a fine as an alternative for imprisonment or

can add it is an addition to the imprisonment. In certain cases the
fine is added along with imprisonment.
Solitary Confinement

► Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code
gives the description of the way punishment to be ordered by the Court.
While giving solitary confinement the court shall keep in mind not to
exceed three months in total. The scale is as follows:
• If the term not exceeds more than six months- Sol. Conf. not exceeding
one month;
• If the term exceeds more than six months but not exceed one year- Sol.
Conf. not exceeding two months;
• If the term exceeds one year- Sol. Conf. not exceeding three months.
► Section 74 of the IPC gives the limit of Solitary Confinement while
executing the Sol. Conf. the duration shall not exceed fourteen days.
► And further, if the solitary confinement given exceed three months, then
confinement shall not exceed 7 days in one month.
Aggravating Circumstances

► The aggravating circumstances to which the Judges consider are as

follows:
1. The surrounding of the crime itself;
2. The circumstances relating to the criminal’s background;
3. The circumstances relating to the criminal’s conduct;
4. The criminal’s future dangerousness
► The other factors which are considered under aggravating circumstances
are as follows:
• Professionalism and premeditation;
• Prevalence of offence;
• Offences committed in the group;
• Breach of trust