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Report No. 156

6.11. In view of this definition of attempt, which could be applied in relation to murder and culpable homicide not amounting to murder without any serious difficulty, the Law Commission in 42nd report did not consider it necessary to have a different formula to define attempt to commit either of these offences. It was also recommended to revise sections 307 and 308 as follows:

"307. Attempt to murder.-Whoever attempts to commit murder shall be punished with rigorous imprisonment 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 may-

(a) if under sentence of imprisonment for life, be punished with death; and

(b) in any other case, be punished with imprisonment for life."

"308. Attempt to commit culpable homicide.-Whoever attempts to commit culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if hurt is caused to any parson by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."

6.12. In the I.P.C. (Amendment) Bill, 1978, the recommendations made by the Law Commission were incorporated with minor amendments like-

(i) Illustration (c) to section 120C was dropped and illustration (d) was made illustration (c).

(ii) At the end of section 307(b), the following words were inserted:

"or with rigorous imprisonment for a term which may extend to ten years."

In the Bill, the texts of sections 120C and 120D runs as under:

"120C. Definition of Attempt.-A person attempts to commit an offence, 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 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 of attempt.-Whoever is guilty of an attempt to commit an offence punishable with imprisonment for life or with imprisonment for specified term, shall, where no express provision is made 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 that offence, or with such fine as is provided for the offence, or with both."

6.13. After examining the suggestions of the Law Commission in its 42nd report, judicial as well as academic interpretation pertaining to "attempt", it has become clear that there are four distinct stages through which an act ordinarily passes before it becomes a crime punishable by the Code. The first stage is described as intention to commit a crime i.e. 'mens rea'. The intention, however, criminal itself, without anything more is not punishable. The next stage is described as preparation and excepting a few exceptional categories, preparation is not punishable.

Section 511 of the Code deals with the third stage, namely, the stage of attempt. One who commits offence first intends to commit an offence, then prepares for committing offence and then attempts to commit offence and when succeeds, he is said to have committed an offence. This third stage is made punishable under section 511.

No doubt that this is a general and residuary provision dealing with attempts to commit offences not made punishable by any other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not those punishable with death only.

An "attempt" is made punishable, because every 'attempt', although it fails in achieving the result, must create alarm, which of itself is an injury, and the guilt of the offender is the same as if he had succeeded. Guilt must be related to injury in order to Justify punishment; when the injury is not as great as of the act committed, only upto half the punishment prescribed is awarded. However, preparation to commit an offence is not punishable except when the preparation is to commit offences under section 122 (waging war against the Government of India) and section 399 (preparation to commit dacoity).

6.14. It is very vital to note that the offence of an "attempt" leaves untouched attempts to commit, or to cause to be committed offences under special or local laws which also are not offences under the Code. No criminal liability can be incurred under the Code by an attempt to do an act which, if done, will not be an offence under the Code.

To constitute a crime of an attempt under the Code, the offender's intention to commit a complete offence is necessary. The very wording in section 511 that "to cause such an offence to be committed" will include an attempt to abet an offence. So it has been held that it is not legally possible to attempt the abetment of an offence, the abetment of an offence being itself an offence. A common form of such attempt is the soliciting of another to commit an offence. The act done towards the commission of the offence consists in the solicitation itself. It will not affect the offence though the person solicited declines the persuasion.

Similarly, the wording of section 511 "does any act towards the commission of the offence" are also vital words. Intention alone, or intention followed by preparation are not sufficient to constitute an attempt. But intention followed by preparation, followed by any act done towards the commission of the offence, are sufficient.

In each of the two illustrations given under this section there is not merely an act done with the intention to commit an offence, which act is unsuccessful because it could not possibly result in the completion of the offence, but an act is done "towards the commission of the offence," that is to say, the offence remains incomplete only because something yet remains to be done, which the person intending to commit the offence is unable to do by reason of circumstances independent of his own volition. Thus, in illustrations:

(a) the act of breaking open the box is done towards the commission of the theft of the jewels. The theft itself, that is, actual removal of the jewels, still remains to be done and it remains undone only because it turns out that there are no jewels to remove.

(b) Z fails to comply with the essentials of theft simply because there is nothing in the pocket.

For the conviction under this section it is not necessary that the accused should complete the stage in the actual offence except the final stage, it is enough if in the attempt he did any act towards the commission of the offence.

6.15. Section 511 was never meant to cover only the penultimate act towards completion of an offence and not the preceding acts. If such acts are done in the course of the attempt to commit the offence, then they are done towards its commission.

It appears from the above discussion, that it would be most difficult to frame a satisfactory and exhaustive definition which shall lay down for all cases where preparation to commit an offence ends and where attempt to commit that offence begins. The question is not one of mere proximity in time or place. Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the time when the attempt to commit the offence commences and the time when it is completed.

The offence of cheating and inducing delivery is an offence on point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practised upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part.

The acts whereby those preparations may be brought to bear upon the mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubts, equally an attempt with the ninety ninth act in the series.

Moreover, the definition in section 511 uses the word 'attempt' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence is itself punishable, and, though the sections does not use the words, it can mean nothing but punishable as an attempt.

It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. The words, "whoever attempts to commit an offence" obviously have the larger meaning to cover any act, done towards the commission of the offence. The term 'any act' excludes the notion of the final act.

6.16. In the light of above discussion, it is very clear that section 511 is working well and there is no need to omit it. Therefore, no need to introduce a new Chapter VB containing sections 120C and 120D. Nonetheless, if need be, the language of section 511 may be amended.



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