Attempt & Impossible Attempt
 Attempt is the third stage in the commission of an
offence after intention and preparation.
 Except in a few situations, these two stages do not give
rise to any criminal liability.
 As such it becomes important to distinguish between
preparation and attempt.
 There are basically three ways how Penal Code deals
with attempt:
i. Attempt found in the same provision as the principal
offence,
ii. Specific provision on attempt, and
iii. The residuary or general provision on attempt
 The important issues relating to attempt are
i. whether there can be liability for attempting
something which is impossible, either physically,
legally or through ineptitude, and
ii. whether abandonment of an attempt can be
accepted as a defence?
 These issues will be resolved by looking at the statutory
provisions and the decided cases.
 Four stages before commission of a crime
i. Intention to commit (no criminala liability)
– maxim “actus reus non facit reum nisi men sit rea.
ii. Preparation – devising or arranging mean
necessary for commission of an offence.
- General rule - no criminal liability in preparation
except ss.122, 126, 351, 399
iii. Attempt – has criminal liability
iv. Commission – all the ingredient of the
crime is proved.
Definition attempt
 Stephen's definition of an attempt is valid and strong as
ever today: "An attempt to commit a crime is 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."
Law 2311 Criminal Law II
 Mayne – Attempt is direct movement towards the
commission after preparation has been made.
 State of U.P. v Ram Charan AIR 1962 All 359– an
intentional act which a person does towards the
commission of an offence but which fails in its object
through circumstances independent of the volition of
that person is “attempt”.
 Facts: The respondent attempted to transport the
mixture of grain containing more than 18 per cent of
wheat contravened the provisions of the Order and
committed am offence under Section 7 of the Essential
Commodities Act.
 Held: allow the appeal, set aside the order of acquittal
and convict and sentence the respondent
 Rational for attempt to have criminal liability:
i. deterrence and prevention
ii. alarming the society on its seriousness
iii. the close proximity to actual offence
Categories of Attempt under Penal Code
i. Attempt in the same provision as the
principal offence
- Where the offence is very serious, the law make
no different between commission of a offence and
the attempt to commit it.
- both dealt under same section and carries same
punishment.
- ss.121, 122 waging war against YDPA
- s.391 Gang Robbery, s.385 extortion
ii. Specific Attempts
- Specifically provides “attempt to commit an
offence” as an offence by itself and provides
specific punishment for it.
- Divided into two types:
a. where commission is not punishable but
attempts is to commit is an offence. e.g: s.309
(notes: 1993 Indian Supreme Court declared it
ultra vires but later adopted back)
b. Separate provision for ‘attempt” and principal
offence and separate punishment are also
proided: (e.g: ss. 307, 308, 293),
iii. General Attempt
- s.511 of the Penal Code is the general provision of
attempt designed to cover cases falling outside the
category of specific attempts.
- It covers offences under PC and other written law
which is punishable with imprisonment, or fine or
both. (includes strict liability cases)
- It only covers commission and not omission
- The charge must be the principal offence read
together with s.511.
Actus Reus (AR)
- Preparation and attempt
- When does an act amount to an attempt rather
mere preparation?
- Question of mixed of facts and law.
- It was said that attempt begin when preparation
end.
- Hence, there is a thin demarcation between
preparation and attempt, if the act does not
interrupted, the offence would have been committed.
- For the Judges adopted various tests to
differentiate mere preparation and attempt:
Test 1 : Proximity Test
 Whether the act is sufficiently near or
proximate enough to the substantive or actual offence.
 not necessary be the last act or
penultimate act
 However, it must be an act during the
course of committing the offence.
1
Attempt & Impossible Attempt
Sudhir Kumar Mukherjee & anor v State of West
Bengal
Held:
 A person commits an offence of
attempt to commit a particular offence when;
i. he intends to commits that particular
offence, and
ii. after making preparation, with intention to
commit that offence, does an act towards its
commission.
 Such act need not be penultimate act
towards the commission of that offence but must be an
act during the course of committing that offence.
Abhayanand Mishra vs The State Of Bihar 1961 AIR
1698 (SC)
 The appellant applied to the Patna University for
permission to appear at the 1954 M. A. Examination in
English as a private candidate representing that he was
a graduate having obtained his B. A. Degree in 1951 and
that he had been teaching in a certain school.
 Believing his statements the University authorities gave
him the necessary permission, and on his remitting the
requisite fees and sending copies of his photograph, as
required, a proper admission card dispatched to the
Headmaster of the School.
 As a result of certain information received by the
University, an investigation was made and it was found
that the appellant was neither a graduate nor a teacher
as represented by him and that in fact he had been de-
barred from taking any University examination for a
certain number of years on account of his having
committed corrupt practice at a University examination.
 He was prosecuted and convicted under s. 420 read with
s. 511 of the Indian Penal Code, of the offence of
attempting to cheat the University by false
representations by inducing it to issue the admission
card, which if the fraud had not been detected would
have been ultimately delivered to him.
Law 2311 Criminal Law II
 The appellant contended that on the facts found the
conviction was unsustainable on the grounds
1. that the admission card had no pecuniary value
and was therefore not property under S. 415, and
2. that, in any case, the steps taken by him did not
go beyond the stage of preparation for the
commission of the offence of cheating and did not
therefore make out the offence of attempting to
cheat.
 Held, that under
 Indian Penal Code a person commits the offence of
attempting to commit a particular offence, when he
intends to commit that particular offence and,
having made preparations and with the intention
to commit that 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 such offence. It is not necessary for the
offence under s. 511 that the transaction commenced
must end in the crime or offence, if not interrupted.
 In the present case, the preparation was complete
when the appellant had prepared the application for
the purpose of submission to the University, and the
moment he despatched it, he entered the realm of
attempting to commit the offence of cheating.
Accordingly, the appellant was rightly convicted of the
offence under s. 420 read with S. 511 of the Indian
Penal Code.
Thiangiah v PP
 The appellants wore convicted under sections 381 and
511 of the Penal Code read together with section 34 of
the Code.
Held:
 The appellants were employees of the estate. The first
appellant was responsible for the bags of fertiliser taken
out of the store. Both the appellants had only a day
earlier taken back to the store in the first appellant's car
4 bags of fertiliser out of the 11 bags which were not
 the car just before dusk between 6.30 p.m. and 7.00
p.m. not an unusually odd hour as to raise any
suspicion against the appellants, when they were
stopped from loading the remaining 7 bags into the car.
 In these circumstances it certainly could not be said
that at this stage the acts of the appellants were in any
way criminal.
 They might well have had the intention to steal the
bags and might well have come prepared to take them
away for their own use. But this was insufficient to
constitute an attempt to steal.
 In the circumstances of this case the overt acts of the
appellants fell short of the actual attempt to steal
as the acts were not immediately connected with
the offence of theft.
 What offence would the appellants have committed if
they had not been interrupted by the ambush party?
 The answer to this question plainly is: No offence. It
would have been a very different matter if the
appellants had been outsiders and not employees of
the estate or if they had even as employees come out to
pick the bags at some very late hour of the night or in
the very early hours of the morning.
 Ratio: The mere forming of an intention to commit a
crime and making preparations for its commission are
not criminal acts and are not punishable under the law.
There must be some further overt act on the part of the
offender which is directed towards the actual
commission of the crime and which is immediately and
not remotely connected with the crime in order to
constitute an attempt within the meaning of section
511 of the Penal Code
 Emperor v. Ganesh Balvant, ILR 34 Bom 378 that
under the I. P.C. all that is necessary to constitute an
attempt to commit an offence is some external act,
something tangible and ostensible of which the law can
take hold as an act showing progress towards the
actual commission of the offence. It does not matter
that the progress was interrupted.
2

Attempt & Impossible Attempt
Test 2: Locus Poenitentia Test
 Changing his mind or Repention
 When the accused has time to repent or change
his mind.
 At the time his change his mind, the act must be
harmless, if harmful, it’s attempt.
 Arjan Singh v PP, where the appellant was found
guilty on the offence of attempted extortion. On the
appeal, due to the letters were found in the drawer of a
writing table and there was no evidence of any attempt
to transfer them by any means to the addressees. The
court decided that the mere act of writing and detaining
a letter is not an attempt to commit extortion but at the
most a preparatory step towards the commission of that
offence.
 Malkiat Singh & Anr vs State Of Punjab [1970]
AIR 713
 In exercise of the powers conferred by s. 3 of the
Essential Commodities Act, 1955, the Central
Government promulgated the Punjab Paddy (Export
Control) Order, 1959. Paragraph 3 of the Order
prohibited the export of or attempt to export paddy
from any place within the State of Punjab to any place
outside the State except under a valid permit.
 Paddy, booked by a firm in Punjab to a consignee
to Delhi, was carried' in a lorry driven by the first
appellant. The lorry was stopped by the police at a place
which was 32 miles from Delhi, that is, inside the State
of Punjab (the Punjab-Delhi boundary was 18 miles
from Delhi), and the appellants, along with others, were
prosecuted and convicted for an offence under s. 7 of the
Essential Commodities Act.
 In appeal to this Court, HELD:
 No offence has been committed by the appellants
nor was there an attempt to commit an offence. [667 G]
 As the paddy was seized well inside the Punjab
boundary, there was no export of paddy outside the
used for the day. They were now back at the place with
Law 2311 Criminal Law II
 It was also possible that the appellants might have
changed their minds at any place between the place
of seizure and the State boundary.
 The acts of the appellant then would only constitute
preparation and not an attempt to commit the offence
of export, because, the test for determining whether
acts constitute. merely preparation and not an
attempt is whether the overt acts already done are
such that if the offender changes his mind and
does not proceed further, the acts already done
would be completely harmless.
Equivocality Test / Cinematography Test
 Where the act speak for itself
 The audience is to determine the conclusion;
if unanimously reach the same opinion of the next
step, the it’s an attempt;
if various answers, it’s preparation stage.
 This test sometime it will overlaps’ Test 1 and Test 2
 The act of the accused must be sufficient to prove
mens rea.
 The court must look into the fact of each case.
 Tan Beng Chye V PP [1966] 1 MLJ 173
 The appellant had been convicted of attempting to
commit rape. (S.376 read with s.511)
 The evidence showed that the appellant had taken the
complainant to some bushes where he took off his
shorts and lowered his inner pants to his knees. He
then made the complainant take off her coat and
trousers, leaving her in her knickers, which she
refused to take off. An old Chinese man then came to
the place and the complainant shouted to him for help.
Thereupon the appellant pulled up his inner pants, put
on his shorts and started to run while buttoning them.
 Held: two ingredients must be proved before a person
can be convicted under section 511 of the Penal Code,
first, there must be an attempt to commit the offence
and second, some act must be done towards the
 in this case the acts done by the
appellant did not amount to an attempt to commit rape
and therefore the conviction must be set aside and a
conviction for using criminal force with intent to
outrage modesty substituted for it.
Ismail v PP [1963] 1 MLJ 208
 The appellant, a postman, was charged
under sections 354 and 511 of the Penal Code.
 The complainant said in evidence that
the accused pulled out $5.00 and said: "Even if you are
married take this money."
 The learned Magistrate convicted the
accused and in exercising his powers under s.173A of
the CPC ordered the appellant to execute a "bond of
good behaviour in one surety for a period of 10
months."
Held: Appeal allowed.
1. no evidence was adduced to suggest
that the appellant intended to use criminal force on the
complainant;
2. the words "Even if you are married take
this money", coupled with the offer of $5.00, were so
vague that it was not possible to say with certainty that
there had been a solicitation for sexual intercourse.
 Queen-Empress vs. Niddha [1891]
XIV All 38
“If one attempts robbery one can only be charged
under s 399. If one attempts culpable homicide not
amounting to murder one can only be charged under s
308. If one attempts to commit a crime and there is no
express provision elsewhere for that type of attempted
crime one can only be charged with the provision
punishing the full offence as read with s 511”
 Nidha, who had been absconding,
noticing certain chowkidars arrive, brought up a sort of
a blunderbuss he was carrying, to the hip and pulled
3
 State of Punjab.
Attempt & Impossible Attempt
Test 3: The Last Act Test / Penultimate Test
 The act of the accused must be a very last act
before the actual commission of the offence.
 Opposite to the Proximity Test
In Re T. Muniaratnam Reddi
 1st accused son of 2nd accused was convicted
under s.302 and sentenced to death, while 2 nd was also
convicted under s.326 read with s.511 and sentenced 2
years imprisonment.
 Whether the last act, is uninterrupted and
successful, would constitute a crime. If the accused
intended that the natural consequence of his act should
result in death but was frustrated only by extraneous
circumstances, he would be guilty of an attempt to
commit the offence of murder.
 Held: Conviction affirmed.
 The 2nd accused with a clear intention to shoot
aimed the gun at the deceased and if he did not release
the trigger, it was because the 1st accused, noticing the
shakiness of him hands, took it out of his hands. He did
not commit the offence only because of an extraneous
interruption. If the son had not taken if out of his hands,
he would have shot the deceased.
 The accused was only frustrated from
committing the offence by extraneous circumstances
over which he had no control.
 The 2nd accused did an act towards the
commission of an offence within the meaning of S. 511,
Indian Penal Code.
Reg v. Duckowrth (1892) 17 Cox CC 495
 An accused had presented a loaded revolver at
another person but had been prevented from
discharging it by a third person, it was held that the
accused intended to do that which he was prevented
commission of the offence
Law 2311 Criminal Law II
Reg v. Jackson (1890) 17 Cox CC 104
 Where the accused aimed a revolver at the
prosecutor and pulled the trigger of the revolver and
the hammer fell upon a chamber which contained an
empty cartridge case, it was held that the accused
could be convicted of attempt to commit murder.
 The accused was only frustrated from
committing the offence by extraneous circumstances
over which he had no control.
Om Prakash v The State of Punjab
 The appellant was deliberately starved his wife
Bimla Devi and not allowed to leave the house in
which they were living and only sometimes a morsel
or so used to be thrown to her as alms are given to
beggars then she managed to escape from the house
and went to the Civil Hospital at Ludhiana.
Held:
 The word 'act' again, does not mean only any
particular, specific, instantaneous act of a person, but
denotes, according to s. 33 of the Code, as well, a series
of acts.
 The course of conduct adopted by the appellant
in regularly starving Bimla Devi comprised a series of
acts and therefore acts falling short of completing the
series, and would therefore come within the purview
of s. 307 of the Code.
 “what section 307 really means is that the
accused must do an act with such a guilty intention
and knowledge and in such circumstances that but for
some intervening fact the act would have amounted to
murder in the normal course of events"
 In the present case, the intervening fact which
thwarted the attempt of the appellant to commit the
murder of Bimla Devi was her happening to escape
from the house and succeeding in reaching the
the trigger. The cap exploded, but the charge did not go
off. He was convicted by the Sessions Judge under ss.
299 and 300 read with s. 511, and not under s. 307,
Indian Penal Code.
 a person commits an offence under s. 307 Of the
Indian Penal Code when he has an intention to commit
murder and in pursuance of that intention does an act
towards its commission irrespective of the fact
whether that act is the penultimate act or not.
Rex v. White
 The accused, who was indicted for the murder of
his mother, was convicted of attempt to murder her. It
was held that the accused had put two grains of
cyanide of potassium in the wine glass with the intent
to murder her. It was, however, argued that there was
no attempt at murder because 'the act of which he was
guilty, namely, the putting the poison in the wine glass,
war, a completed act and could not be and was not
intended by the appellant to have the effect of killing
her at once; it could not kill unless it were followed by
other acts which he might never have done'.
 Held: The slow poisoning by the appellant would
be guilty of the attempt to murder the completion or
attempted completion of one of a series of acts
intended by a man to result in killing is an attempt to
murder even although this completed act would not,
unless followed by the other acts, result in killing. It
might be the beginning of the attempt, but would
nonetheless be an attempt".
Test 4: On The Job Test
 Whether the accused was on the job to harm
 R v Osborn
 The accused gave drug and pills to procure the
miscarriage of a young woman.
 Accused was charged with attempting to
administer a noxious drug with intent to procure
miscarriage
 Held:
 The act is not the way to primary offence. s.511
4
 from doing and that there was sufficient evidence to
support the conviction under S. 511, Indian Penal Code.
The accused was only frustrated from committing the
offence by extraneous circumstances over which he had
no control.
Attempt & Impossible Attempt
Ismail v PP [1963] 1 MLJ 208
 The appellant, a postman, was charged
under sections 354 and 511 of the Penal Code.
 The complainant said in evidence that
the accused pulled out $5.00 and said: "Even if you are
married take this money."
 The learned Magistrate convicted the
accused and in exercising his powers under s.173A of
the CPC ordered the appellant to execute a "bond of
good behaviour in one surety for a period of 10 months."
Held: Appeal allowed.
1. no evidence was adduced to suggest
that the appellant intended to use criminal force on
the complainant;
2. the words "Even if you are married take
this money", coupled with the offer of $5.00, were so
vague that it was not possible to say with certainty
that there had been a solicitation for sexual
intercourse.
Thiangiah v PP
 Ratio: The mere forming of an intention to
commit a crime and making preparations for its
commission are not criminal acts and are not
punishable under the law. There must be some further
overt act on the part of the offender which is directed
towards the actual commission of the crime and which
is immediately and not remotely connected with the
crime in order to constitute an attempt within the
meaning of section 511 of the Penal Code
hospital and thereafter securing good medical
treatment.
Law 2311 Criminal Law II
Impossible Attempt.
 Three types of impossibility Test:
i. Physical / Factual impossibility
ii. Legal impossibility
iii. Impossibility through ineptitude
Munah Binti Ali v PP [1958] 1 MLJ 159
 whether in a charge of attempting to cause a
woman to have a miscarriage contrary to sections 312
and 511 of the Penal Code it was necessary for the
Court to be satisfied that the woman was with child
before the Court proceeded to convict
Held:
 Majority - in a charge of attempting to cause a
woman to have a miscarriage it is not necessary for
the Court to be satisfied that the woman is with child
before the Court proceeds to convict.
 Dissenting : Thomas CJ
- the expression "causes a woman with
child to miscarry" means to cause her to lose from
the womb prematurely the products of conception
and that therefore there can be no offence under the
section unless there are products of conception. To
cause a woman who is not pregnant to suffer a
haemorrhage may or may not be an offence under
some other section of the Code (I express no
opinion on the point), it is certainly not an offence
under this section unless the haemorrhage contains
products of conception.
- The analogy between the present case
and the illustrations to section 511 is attractive. An
analogy, however, is not an argument and in any
event this analogy is a bad one. There may be a
notional similarity between attempting to remove a
non-existent coin from a woman's handbag and
could not stand. The substance was harmless.
 The accused was not on the job to harm although
he thinks he is.
- offence in any circumstance
whatsoever.
- It will be observed that section 511
does not define an attempt. It only states what
attempts are themselves offences. It says in effect
that before an attempt is itself an offence it must
satisfy two conditions. The first of these is that it
must be an attempt to commit an offence punishable
by the Code or by any other written law. Secondly,
there must be an act towards the commission of the
offence.
- The present case seems to come fairly
and squarely within these words. What the appellant
did was to pass an instrument and thereby cause the
woman in the case to have a haemorrhage but did
not amount to causing her to miscarry because she
was not with child.
 Majority: Whyatt J and Good J
- It is possible to attempt to commit an
impossible theft, and so offend against the Code,
because theft is itself an offence against the Code,
and may, therefore be attempted within the meaning
of the Code."
- On the analogy of this proposition, to be
possible to attempt to cause an impossible
miscarriage and still offend against the Code because
the voluntary causing of a miscarriage is itself an
offence against the Code and may, therefore, be
attempted within the meaning of the Code.
- section 511 and the principles
embodied in the Illustrations (a) and (b) apply to the
present case to an attempt to cause a miscarriage
under section 312.
- affirm the conviction and sentence of
5

Attempt & Impossible Attempt
Asgarali Pradhania v. Emperor, AIR 1933 Cal 893.
 The facts of that case are rather interesting. The
accused who had caused pregnancy to a woman
suggested that she should take drugs to procure a
miscarriage.
 One night he brought, her a bottle half full of red
liquid, and a paper packet containing a powder. After
he had gone, she tasted the powder, but finding it salty
and strong, spat it out. She did not try the liquid. The
following night accused came again, and finding that
she had not taken either the powder or the liquid, he
pressed her to take them, but she refused saying that
she was afraid for her own, life and that the powder
irritated her tongue. Thereupon he asked her to open
her mouth, and approached her with the bottle, and
took hold of her chin. But she snatched the bottle from
him and cried out loudly, and her father and some
neighbours came, and the accused fled.
 It was found that neither the powder nor the
liquid was harmful.
 Held: the accused could not in law be convicted
of an attempt to cause miscarriage, as what he did was
not an act done towards the commission of the offence
of causing a miscarriage. Neither the liquid nor the
powder being harmful they could not have caused a
miscarriage.
 The appellant's failure was not due to a factor
independent of himself.
 It follows as a necessary corollary that if the
failure to commit the offence is due to circumstances
independent of the volition of an accused person then
there is an attempt under Section 511 I. P. C.
attempting to remove non-existent products of the lower Court.
conception from her womb. But there is all the
difference in the world between something which is  Principle in Munah Ali’s case that physical
in fact impossible but which if possible would be an impossibility can extent to legal impossibility.
offence and something which cannot possibly be an
Law 2311 Criminal Law II
iii. Impossibility through ineptitude  Locus poenitentiae is a Latin phrase associated with
contractual law which means opportunity to withdraw
PP v Zainal Abidin Bin Ismail & 3 Ors - [1987] 2 MLJ from a contract or obligation before it is completed or
741 to decide not to commit an intended crime.
 This signifies repentance in the context of criminal law
 (D1, D2 and D3) were charged with raping a 20 year-
and provides an opportunity of withdrawing from a
old girl, Miss X, an offence punishable under section
projected contract, before the parties are finally bound
376 of the Penal Code. The 4th defendant (D4) was
or of abandoning the intention of committing a crime.
charged with attempting to rape her.
 Held:
- D4, charged with attempted rape, the act relied on
as constituting the offence must be more than an act
preparatory to the offence, but must be proximate
to and not merely remotely connected with the
offence –
- see Haughton v Smith (1974) 58 Cr App R 198.
There can be an attempt where the failure to
convict the offence is due to "ineptitude,
inefficiency or insufficient means on the part of
the defendant.
- The court Applying this test, I find that,
notwithstanding that he failed to penetrate the
girl by reason of his inability to obtain any
erection, D4 did attempt to penetrate the girl, and
that the acts which he took preparatory to the
offence, namely by lying on top of the girl, with his
expressed intention of having intercourse are
sufficient in law to constitute an attempt of rape.
(leaving aside the question of consent).
-