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Report No. 156

Chapter VI

Attempt - Insertion of New Sections 120C and 120D

6.01. The I.P.C. (Amendment) Bill, 1978 made a provision for this new Chapter under clause 45. Also by mistake, clauses 46 to 51 of the Bill were incorporated in this Chapter which, in fact, constitutes an independent Chapter, i.e., Chapter VI as per I.P.C. contents. Therefore, this new Chapter is confined to sections 120C and 120D only which are dealing with the "Attempt".

6.02. The subject of attempt has already been incorporated in the last Chapter i.e. XXIII (containing only one section 511 of the Code as a residuary provision). However, in the Bill it is inserted just after Chapter VA, perhaps, in view of the importance of the concept and its close connection with abetment and conspiracy. In the Bill, section 511 has been omitted by inserting this new Chapter which has only two sections, namely sections 120C and 120D.

6.03. It may be mentioned that numerous sections in the Code, while defining the acts which constitute particular offence, place attempts to do those acts at par with doing the acts themselves and make them punishable to the same extent. Such provisions of the Code may be summed as under:-

(1) 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.

(2) Section 124 - attempt wrongfully to restrain the President and other high officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers.

(3) Section 125 - attempt to wage war against the Government of an Asiatic Power in alliance or at peace with the Government of India.

(4) 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) Section 153A - attempt to promote feelings of enmity, etc.

(6) Section 161 - attempt by a public servant to obtain an illegal gratification.

(7) Section 162 - attempt to obtain a gratification in order by corrupt or illegal means to influence a public servant.

(8) Section 163 - attempt to obtain a gratification for exercising personal influence over a public servant.

(9) Section 165 - attempt by public servant to obtain a valuable thing without consideration from a person concerned in proceeding or business transacted by the public servant.

(10) Section 196 - attempt to use as true, evidence known to be false.

(11) Section 213 - attempt to obtain a gratification to screen an offender from punishment.

(12) Sections 239 and 240 - attempt to induce a person to receive a counterfeit coin.

(13) Section 241 - attempt to induce a person to receive as genuine a counterfeit coin which, when the offender took it into his possession, he did not know to be counterfeit.

(14) Section 307 which, without using the word attempt except in the margin, defines attempt to murder.

(15) Section 308 which similarly defines attempt to commit culpable homicide not amounting to murder.

In the preceding last two 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.

(16) Section 309 - attempt to commit suicide.

(17) Sections 385, 387 and 389 - attempt to put a person in fear of injury or accusation in order to commit extortion.

(18) Section 391 - conjoint attempt of five or more persons to commit a dacoity.

(19) Sections 393, 394 and 398 - attempt to commit robbery.

(20) Section 460 - attempt by one of many joint house-breakers by night to cause death or grievous hurt.

6.04. Finally, there is section 511 which runs as under:-

"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- 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 not act towards the commission of the offence, shall where no express provision is made by this Code for the punishment such attempt, be punished with imprisonment for any description provided for the offence, for a tern 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.

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box and finds, after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section."

6.05. However, the Law Commission in its 42nd report (para. 5.43) found that the language used in section 511 is very confusing. It was also mentioned that section 309 defines attempt to commit suicide in the same way "whoever attempts to commit suicide and does any act towards the commission of such offence." Therefore, to constitute a criminal attempt two requirements are apparently to be satisfied, namely:

(i) The offender must first attempt to commit an offence, which presumably he can only by doing some act, but that apparently is not sufficient.

(ii) He must, in doing that act which is the attempt, also do something else towards the commission of the offence.

6.06. 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.

There are two tests to determine the "attempt".

(i) First test is of proximity. The much-quoted dictum is 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.

In other words, to constitute an attempt, the act done must be immediately, and not merely remotely, connected with the commission of the offence.

(ii) Secondly, test is known as the test of last act. 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.

But 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, the act which remains to be done by 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.

6.07. 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, whose view is most frequently quoted, observed:1

"An act done with intent to commit a crime is not a 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 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."

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

6.08. 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.

It is also to be mentioned that the actus reus necessary to constitute an "attempt" is complete if the accused 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 other than the commission of specific crime.

The Supreme Court had expressed its view regarding an attempt as under1:-

"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."

Eminent Jurist Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempt as follows:-

"an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case."

1. Abhayanand Mishra v. State of Bihar, (1982) 2 SCR 241.

6.09. After having a glance of juristic interpretation of an "attempt", it is crystal clear that for an "attempt", a futile act of the accused is a must. Had he been successful, the same would have been a crime. But his failure for the same converts the crime into an "attempt". Similar approach was taken in both the illustrations of section 511, where it is stated that a person during the futile act is guilty of attempting to commit theft.

6.10. The Law Commission in its 42nd report had recommended that the last Chapter of the Code containing only section 511 be omitted and, instead, a new chapter VB entitled "Attempt" consisting of two sections 120C and 120D be inserted after Chapter VA as follows:-

"120C. Definition of 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 to, the commission of the offence; and

(c) that act fails in its object because of facts not known to him or because of circumstances beyond his control.

Illustrations

(a) A, intending to murder Z, buys a gun and loads it. A is not yet guilty of an attempt to commit murder. A fires the gun at Z, he is guilty of an attempt to commit murder.

(b) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A is not yet guilty of an attempt to commit murder. A places the food on Z's table, or delivers it to Z's servant to place it on Z's table. A is guilty of an attempt to commit murder.

(c) A, with intent to steal another person's box, while travelling in a train, takes a box and gets down. He finds the box to be his own. As he has not done any act towards the commission of the offence intended by him, he is not guilty of an attempt to commit theft.

(d) A, with intent to steal jewels, breaks open Z's box, and finds that there is no jewel in it. As his act failed in its object because of facts not known to him, he is guilty of an attempt to commit theft."

"120D. Punishment for attempt.-Whoever is guilty of an attempt to commit an offence punishable by this Code with imprisonment for life or with imprisonment for a specified term, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life, or, as the case may be one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."



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