[Link].K.
I
INCOHATE OFFENCES
Stages in the Commission of Crime:
Generally, a crime is said to be committed after passing through four
successive stages:
Intention,
Preparation,
Attempt and
Commission.
• The first stage is where an individual forms an
intention before indulging in the actus reus
leading to the commission of the crime.
Intention per se is not punishable.
• The second stage is one where an individual
initiates the commission of an offence by
arranging means and methods necessary for the
commission of the offence.
• For instance, purchasing a knife for committing
murder, or guns to be used for a robbery qualify
as Preparation.
• As a general rule, culpability is not attached to
the stage of preparation. But this general rule is
subject to exceptions in case of grave offences or
offences having the potential to destroy public
order/peace at a greater level. For instance,
preparation to commit the offence of dacoity is
punishable under the Indian Penal Code. While
the first two stages are not penalised in criminal
law, the third and fourth stages invite liability.
• The third stage, i.e., Attempt precedes the fourth
and final stage, i.e. Commission. The Indian
Penal Code does not provide a general definition
of attempt although under section 511, it talks
about punishment for attempt
• Attempt as an Inchoate Offence:
• Like incitement and conspiracy, Attempt is an
inchoate offence in Criminal Law.
• The term “inchoate” means “undeveloped, “just
begun”, “incipient”, “in an initial or early stage”,
• Inchoate offences cannot be understood in
isolation and must be read in conjunction with
substantive offences
• . For instance, a conspiracy can be understood
only in the context of the offence which is
conspired, like a conspiracy to commit robbery,
theft, dacoity or murder. A characteristic feature
of these offences is that they are committed even
if the substantive offence does not reach a stage
of completion and no consequence ensues
• . However, some scholars disagree with the
usage of the term “inchoate” because according
to them, offences like conspiracy, attempt and
incitement are complete in themselves although
they form steps in the process of reaching an
end, i.e. actual commission. Therefore,
alternatively, inchoate offences are also called
“Anticipatory Crimes” or “Preliminary offences.”
• The problem associated with penalising inchoate
offences is that liability is attached to an act
which is very remotely connected with the exact
harmful consequence contemplated under a
specific substantive offence.
• While that is true, it is also correct to state that
inchoate offences may have harmful
consequences on several occasions, although the
quantum of harm may not be the same as under
an accomplished offence. The actus reus for
inchoate offences covers a very wide range of
behaviour and therefore, emphasis has to be
placed on the mens rea to determine liability in
such cases.
Meaning of Attempt
• a. Doing of an act in furtherance of an intention
to commit a specific crime
• b. Such act should form part of a series of acts,
which taken together and if uninterrupted,
would lead to actual commission
•
• c. Impossibility of actual commission of a crime
does not have an impact on acts qualifying as
attempts if the aforementioned conditions are
satisfied
• d. An attempt can be made even if the offender
voluntarily desists from committing a crime
• Attempt has also been defined as “a direct
movement towards the commission of a crime”.
It is a step ahead of preparation directed
towards the actual commission of the offence.
• The definitions reveal the following
characteristics of attempt:
• a. An intention to commit the offence
• b. An act that qualifies as the actus reus of the
offence
• c. Failure in the accomplishment of the offence
• An analysis of the definitions suggests that
intention to commit an offence is the first
requisite for incurring liability for attempt. One
must note that the common thread linking the
third and the fourth (Attempt and Commission)
stages in an offence is Intention.
• The mens rea for attempt is the same as that of
an accomplished offence. The actus reus for
attempt is doing something in furtherance of an
evil intention with the objective of executing the
crime contemplated.
• However, it is also necessary that the crime,
although intended and designed to be
accomplished is not actually committed.
• The Beginning and Culmination of Attempt: A
very challenging part in the theory of attempt is
identification of the specific point at which the
offender crosses the stage of Preparation and
steps into the stage of Attempt. In other words,
although we understand that attempt refers to
an action or a course of action which is more
than preparatory, at what point of time does the
offender do something which can be labelled as
‘more than preparatory’?
• Further, there may be situations where attempt
and preparation may appear to blend into each
other, and then the issue becomes even more
complicated. Whether an act has reached the
stage of attempt or was ‘merely preparatory’
becomes a greater debate in cases where an
attempt has been interrupted at some level.
• Smith and Hogan point out that emphasis has to
be laid on the word “merely” to distinguish
between acts that are preparatory and those that
qualify as attempt. They explain the point
further by stating that acts cease to be “merely
preparatory” when the accused is engaged in the
commission of the offence which he is
attempting. So, the ultimate test would be to
determine whether the accused is engaged in the
execution of the crime.
• So, for instance, they refer to the case of a person
who may be accused of attempted rape even
when he has not physically attempted penile
• penetration.28 An analysis of the points made by
Smith and Hogan suggest that for identifying
whether an act constitutes an offence it is
necessary to identify the nature of the offence
one is aiming to commit and based on that, the
nature of acts must be identified which can be
marked out as more than preparatory.29 What
acts would qualify as merely preparatory in an
offence is a question of fact.30
• Over a period of time, courts have tried to come
up with various tests to determine whether a
particular act amounts only to preparation or
attempt. Some of the important tests are as
follows: Test of Proximity: The test of proximity
was developed on the premise that an act will
qualify as an attempt if it is found to be
proximate to the commission of the complete
offence.
• Proximity commonly suggests nearness or
closeness to something. On several occasions,
this test has been used to identify whether a
course of action or conduct will qualify as an
attempt
• On several occasions, this test has been used to
identify whether a course of action or conduct
will qualify as an attempt.
• Glanville Williams observes that an act is
considered to be proximate if it is the last act
that was legally necessary for the offender to do
although it may not have been the last act that
he intended to do. An illustration of this
principle can be found in the case of [Link].
In
• this case, the court fixed liability on the offender
who had lighted the matchstick to set fire to a
stack of hay but extinguished it as soon as he
realised that he was being watched. One of the
earlier tests in the principle of proximity is the
“Rubicon test” developed and followed in the
cases of Widdowson and Stonehouse , where
courts followed the principle that an act is said
to be an attempt if it is immediately connected
with the commission of the
• Offence. The test was later rejected in Guffeler
followed by the case of Jones where the accused
was indicted for attempted murder despite his
argument that he had only got into the victim’s
car and pointed a loaded gun at him and there
were a minimum of three other acts to do before
he could commit the offence, i.e. removing the
safety catch, touching the trigger and actually
pulling it .
• In India, the Supreme Court has applied the test
of proximity to a number of cases and there has
been a lot of argument of whether proximity
should be in terms of time, action or intention.
• One of the leading cases on this point is State of
Maharashtra v. Mohd. Yakub. In this case,
Justice Chinnappa Reddy discussed the theme of
the proximity rule by stating that the ‘measure of
proximity is not in relation to time and action
but in relation to intention’.
• However, Justice Sarkaria in the same case
suggested that proximity should not be
intention-oriented and must rather be measured
in terms of actual physical proximity. He stated
that in order to qualify as an attempt an act
should be ‘reasonably proximate to the
consummation of the offence.
• Locus Poenitentiae The doctrine of locus
poenitentiae is also one of the modalities to
determine whether an act can qualify as attempt.
The doctrine is based on the idea that it is
possible for a person to make preparation to
commit a crime and then back out from actual
commission due to various reasons,
psychological or circumstantial.
• The Supreme Court of India applied this
doctrine in the case of Malkiat Singh v. State of
Punjab. In this case conviction of appellants was
set aside by the Supreme Court on the ground
that their acts were only at the stage of
preparation.
• The Court observed that in order to determine
whether an overt act amounted to attempt or
preparation it was necessary to figure out
whether or not the nature of acts was such that if
the appellant changed his mind, the act will be
completely harmless. If harm does not ensue,
then the act will qualify as preparation only and
in a case where the actions have the potential to
lead to harmful consequences, the act will
qualify as
• Attempt. 48 In [Link]’s case, the Supreme
Court held that the test of locus poenipotentiae,
is not to be treated as a general rule and should
be limited to a particular context.49 Test of
• Equivocality: The test of Equivocality suggests
that an act will qualify as an attempt only if it
unequivocally indicates that the offender
intended to commit the offence. The test dwells
on the theme that only when one’s actions
clearly reflect his intention can he be held liable
for attempt. There should not be any room for
doubt in such cases.
ATTEMPT in nutshell
• 1. Attempt is an inchoate offence and figures as
the third stage in the commission of a crime.
• 2. The most vital elements of Attempt are:
intention to commit a crime, doing an act in
furtherance of that intention which is more than
preparatory and failing to accomplish the crime.
3. The Indian Penal Code has not defined
“Attempt” but it has made a general punitive
provision under section 511.
• 4. Section 511 is applicable only where special
provision has not been made in the IPC for
attempt to commit an offence.
• 5. It is necessary to distinguish attempt from
Preparation and the following tests are largely
followed: Equivocality, Proximity and Locus
Poenipotentiae.
• 6. Liability can be fixed for attempting to
commit an act which is impossible.
THANK YOU
