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Report No. 42

C. Attempt

5.41. Lack of definition in the Code.-

Though the subject of attempt has been relegated in the Code to the very last chapter and section and dealt with as a residuary provision in an unsatisfactory manner, we propose to discuss it here in view of the importance of the concept and its close connection with abetment and conspiracy. Numerous sections in the Code, while defining the acts which constitute particular offences, put attempts to do those acts on a par with doing the acts themselves and make them punishable to the same extent.

Thus, under section 121, with which the next chapter begins, waging war against the Government of India and any attempts to wage such war are both capital offences. Under section 130, one who attempts to rescue a prisoner of war is punished to the same extent as one who actually rescues a prisoner of war. If one were to construe section 511 strictly as a residuary provision, none of the ideas contained therein would be applicable for interpreting what constitutes an attempt to wage war under section 121 or an attempt to rescue a prisoner of war under section 130. These sections themselves do not furnish any guidance for this purpose.

5.42. Definitions in sections 307 and 308.-

Then we have two seemingly more specific and comprehensive definitions of attempt, namely, section 307 which, without using the word attempt except in the margin, defines attempt to murder, and section 308 which similarly defines attempt to commit culpable homicide not amounting to murder. In both sections, the attempt consists in doing any act with such intention or knowledge, and under such circumstances, that if the actor by that act caused death, he would be guilty of murder or, as the case may be, culpable homicide not amounting to murder.

The hypothetical condition "if he by that act caused death" is not easy to apply in cases where the act done was physically incapable of causing any one's death. The question whether there could be an attempt to murder not falling within section 307, or an attempt to commit culpable homicide not falling within section 308, but punishable as such under section 511, the residuary section, is not entirely theoretical as it has been raised before the courts fairly often.

5.43. Attempts punishable under section 511.-

Finally, there is section 511 which provides that "whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished etc.". The language used in this section is very confusing. (It may also be noticed that section 309 defines attempt to commit suicide in the same wa.-"Whoever attempts to commit suicide and does any act towards the commission of such offence").

To constitute a criminal attempt two requirements are apparently to be satisfied. The offender must first. attempt to commit an offence, which presumably he can only by doing some act, but that apparently is not sufficient. He must, in doing that act which is the attempt, also do something else towards the commission of the offence. Does it mean that the first act need not be towards the commission of the offence or that, even if it has to be followed by another act towards the commission .of the act?

Beyond indicating that there has to be some act done towards the commission of the offence, an idea that is hardly worth expressing, the section is of little assistance as a definition. It certainly cannot be the intention, as the wording would seem to suggest, that each and every act towards the commission of the offence is punishable as an attempt. Any such interpretation of section 511 or section 309 would obliterate the well established distinction between preparation and attempt.

5.44. Should it be left to common sense.-

In a recent English case,1 the Judge is reported to have observed, "There are some branches of the criminal law in which it is permitted for justices and juries to use their common sense. I am glad to find that I am not constrained by the authorities to say that he law of attempt is excluded from those branches." It appears that the framers of the Indian Penal Code were inclined to leave the law of attempt to be regulated by basic concepts aided by common sense, rather than by a precise definition.

1. Davey v. Lee, (1967) 2 All ER 423 (425) (per Diplock L.J.).

5.45. Tests for determining what is attempt.-

The crux of the problem of defining attempt seems to lie in stating with precision a test as to when the act has travelled beyond the preparatory stage. As Rowlatt J. put it,1 "people in the street, before they begin to think about it, think it is a very easy thing to say what amounts to an attempt, but when you come to analyse it, it becomes a little difficult." As analysed by jurists, three or four tests emerge from judicial decisions to help determine at what stage an act or series of acts done towards the commission of the intended offence becomes an attempt.

1. Rex v. Osborn, (1919) 84 JP 63.

546. Test of proximity.-

There is first the test of proximity. The much-quoted dictum in an English case,1 that "acts remotely leading towards the commission of an offence are not to be considered as attempts to commit it, but acts immediately connected with it are", states the proximity rule. There are other English cases2 emphasising the proposition that to constitute an attempt, the act done must be immediately, and not merely remotely, connected with the commission of the offence.

1. Eagleton, (1885) 6 Cox 559 (571): 169 ER 766.

2. See Archbold, (1966), para. 4104.

5.47. American view.-

The view taken in the United States will appear from the following observations of Chief Justice Holmes in Commonwealth v. Peasle, 177 Mass 267: 59 NE 55.-

"The question on the evidence, more precisely stated, is whether the defendant's acts come near enough to the accomplishment of the substantive offence to be punishable. The statute does not punish every act done towards the commission of a crime, but only such acts done in an attempt to commit it. The most common types of an attempt are either an act which is intended to bring about the substantive crime, and which sets in motion natural forces that would bring it about in the expected course of events, but for the unforeseen interruption, as, in this case, if the candle had been put out by the police, or an act which is intended to bring about the substantive crime, and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man, but misses him, or when one tries to pick a pocket which turns out to be empty. In either case, the would-be criminal has done last act.

"Obviously, new considerations come in when further acts on the part of the person who has taken the first steps are necessary before the substantive crime can come to pass. In this class of cases, there is still a chance that the would be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning.

That an overt act, although coupled with an intent to commit the crime, commonly is "not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misedmeanour, although there is still a locus paenitentiae, in the need of a further exertion of the will to complete the crime."

5.48. Test of last act.-

Another test adopted is known as the test of last act. In Eagletion's case, (1855) 6 Cox 559 (571): 169 ER 766., to which reference has already been made1 Baron Parke sai.-

"Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; and if, in this case, after the credit with the relieving officer for the fraudulent overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a further account or producing the vouchers to the Board, we should have thought that the obtaining credit in account with the relieving officer would not have been sufficiently proximate to the obtaining of the money. But, on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt."

This test of last act has, however, obvious flaws. It cannot be applied to a situation where the accused intends to accomplish his object by degrees, such as, murder by slow poisoning. Moreover, as has been pointed out,2 the act which remains to be done by the offender may be done by the victim, e.g. the offender puts poison in a glass and also intends to pour wine in it, but the wine is actually poured by the victim. Here the "last act" which the offender wished to do was not, in fact, done by him, but that need not prevent the act from being an attempt.

1. Para. 5.46, above.

2. Williams, Criminal Law, (1951), p. 623.

5.49. Test of locus paenitentiae.-

A test which emphasises one aspect of 'last act' is that of the possibility of 'locus paenitentiae'. An Allahabad case1 illustrates this test. The accused had made a false statement in order to obtain a certificate which would have enabled, him to obtain a refund of octroi duty, but the certificate was not granted. The trial court convicted him of attempting to cheat. The Sessions Judge in his reference to the High Court said:

"Even supposing that Dhundi (the accused) by false representation had succeeded in getting the refund certificate, yet he had a locus paenitentiae. He had to get it endorsed at the outpost, and had to present it on the following Saturday for encashment, before he finally lost all control over it, and could no longer prevent the commission of the offence. Before that time he might have altered his mind even from prudence, if not from penitence, and torn up the certificate and no cheating could then have happened."

The High Court accepted this view and acquitted the accused. The same view was taken by the Patna High Court2.-

"We have to assume that better reasons would prevail at any moment and the man would change his intention to commit a [sin or]3 crime before the actual consummation thereof; and until he has done all in his power to let his action be out of his control, so that the commission of [the sin or]2 the crime would be a natural effect of the actions already committed, there is still a mere preparation for the commission and not an attempt to commit the offence [or the sin]3."

1. Queen v. Dhundi, 1886 ILR 8 All 304.

2. Lakshmi Prashad v. Emp., AIR 1923 Pat 307 (308, 309).

3. Hardly necessary.

5.50. Test of unequivocal evidence.-

We may also refer to another test known as the test of unequivocal evidence. If the object of the criminal law is to prevent not only consummated crimes, but also the completion of a proposed crime, then there is justification for punishing a person when the evidence leaves no reasonable doubt that his intention was to commit that crime. But unless the accused has come very close to accomplishing his object, the probative value of his conduct will be too slight to support conviction for an attempt.

In a New Zealand case,1 it was said that "in order to constitute an attempt, the acts of the accused must be such as to clearly and unequivocally indicate of themselves, the intention to commit the offence." Salmond J., whose view is most frequently quoted, observed.-

"An act done with intent to commit a crime is not at criminal attempt unless it is of such a nature as to be in itself sufficient evidence of the criminal intent with which it is done. A criminal attempt is an act "which shows criminal intent on the face of it An act which is in its own nature and on the face of it innocent cannot be brought within the scope of criminal attempt by evidence aliunde as to the criminal purposes with which it is done."

Dr. Turner, in his edition of Russell on Crime, after an examination of the authorities, states2 as follows.-

"It is therefore suggested that a practical test for the actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves clearly indicate what was the end towards which they were directed. In other words, the steps taken must themselves be sufficient to show, prima facie, the offender's intention to commit the crime which he is charged with attempting."

A similar test was mentioned in the earlier editions3 of Archbold. But in a later edition,4 he states the rule thus.-

"It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime."

The last twenty words in this passage achieve a happy synthesis between the test of 'proximity' and the test of 'unequivocal evidence'.

In a Rajasthan case5, it was held.-

"When a person intends to commit a particular offence, and then he conducts himself in such a manner which clearly indicates his desire to translate that intention into action, and in pursuance of such an intention if he does something which may help him to accomplish that desire, then it can safely be held that he committed an offence of attempt to commit a particular offence. It is not necessary that the act which falls under the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. That act may fall at any stage during the series of acts which go to constitute an offence under section 511 of the Indian Penal Code."

1. R. v. Barker, 1924 NZLR 865 (Quotations are taken from 'Words and Phrases', Vol. 1, p. 138).

2. Russell on Crime, (1964), Vol. 1, p. 184 (edited by Dr. Turner).

3. E.g. 33rd Edn., (1954), p. 1489.

4. 36th Edn., (1966), para. 4104.

5. State v. Parasmal, AIR 1969 Raj 65 (V.P. Tyagi J.).

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