Report No. 42

5.51. View of the Supreme Court.-

In Abhayanand's case,1 the Supreme Court summarised its views about the construction of section 511 of the Code thus.-

"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."

In a later case,2 where a truck carrying paddy was stopped 14 miles away from the Punjab-Delhi boundary on the ground that it was in violation of the Punjab Paddy (Export Control) Order, 1959, and the driver was prosecuted for an attempt to contravene the Order, the Supreme Court held.-

"On the facts found, there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt.

The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. 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.'

The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey."

1. Abhaynand v. State of Bihar, (1962) 2 SCR 241: AIR 1961 SC 1698 (1703).

2. Malkiat Singh v. State of Punjab, (1969) 1 SCR 157 (Ramaswami J.).

5.52. Attempt and impossibility of achievement.-

In some cases where the accused's objective is for one reason or another impossible of achievement, the question arises whether his act would amount to a punishable attempt. Two illustrations of such cases are appended to section 511. In both of them, it is stated, the person during the futile act is guilty of attempting to commit theft. It is interesting to note that in an English case1 of 1864, it was held that where A had put his hand in another's pocket but found nothing, A could not be convicted of attempted larceny. This was apparently on the notion that an attempt was established only where, if no interruption had taken place, the attempt could have been carried out successfully but the decision was overruled in 1892.2

There are, however, other types of impossibility where the question presents difficulties. Thus if A who sees an umbrella kept in a stand resolves to steal it and takes it home only to find that it is his own umbrella, is he guilty of an attempt to steal?

If A with the intention of poisoning Z, buys what he thinks is arsenic and puts it in Z's food, but as the druggist suspecting A's design sold him sugar, Z is unharmed. Is A guilty of attempt to murder?

Again, if A, with the intention of poisoning Z, gets the poison but not knowing the lethal dose, uses a dose which is far too weak to kill anyone, is A guilty of an attempt to murder?

If A administers to W, a woman, who tells him she is pregnant but is not so in fact, a drug which is likely to cause abortion in a pregnant woman, is A guilty of an attempt to cause miscarriage?

Such cases,, both real and hypothetical can be multiplied ad lib.

1. Collins, (1864) 9 Cox CC 497.

2. Ring, Atkins and Jacksons, (1892) 61 LJMC 116.

5.53. Definition of-attempt in foreign codes.-

We have had a close look at some foreign criminal codes which contain a definition of attempt. A few of these definitions which appear to us to be instructive have been extracted and given in the Annexure to this chapter for reference and comparison. A study of these precedents has persuaded us to think it is desirable and practicable to set out in our Penal Code the essential elements of attempts in the form of a definition instead of leaving the idea entirely in the air.

5.54. Recommendation.-

We recommend that the last Chapter of the Code containing 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.-

"Chapter VB

Attempt

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;1

(b) the act so done is closely connected with, and proximate to, the commission of the offence; and

(c) the 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."

1. See Omprakash v. State of Punjab, AIR 1961 SC 1782.

5.55. Amendment of sections 307 and 308.-

In view of this definition of attempt, which we feel could be applied in relation to murder and culpable homicide not amounting to murder without any serious difficulty, we do not consider it necessary to have a different formula to define attempt to commit either of these offences. Sections 307 and 308 may be revised 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 ma.-

(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 person 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."

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