Attempt & Prepartion

distinguished
1

Lecture 6 11/7/11
 Attempt
2

  An attempt is a direct movement towards the

commission of an offence after the preparations are
made.
  If a man after having procured a loaded gun pursues his
enemy, but fails to overtake him or is arrested before he
is able to complete the offence or fires without effect, in
all these cases the man is liable for an attempt to murder.
  But suppose a person purchases and loads a gun with the
evident intention of shooting his enemy, but makes no
movement to use the weapon against his intended victim.
Here he only remains at the stage of preparation and his
act does not amount to an attempt.

Lecture 6 11/7/11
 Definition of “Attempt.”
3

  Of the four successive stages in the commission of the

offence, penal law of all countries exempts the first from
punishment.
  The Indian Penal Code punishes, sometimes, the second
stage, while the third stage, namely, that of an attempt,
marks a distinct advance on the development of
criminality, so that it is punishable everywhere.
  Ordinarily, law allows locus poenitantiae (opportunity to
repent) only up to the second stage, after which it regards
the stage of criminality as too far advanced to go
unpunished.

Lecture 6 11/7/11
 Contd..
4

  The Indian Penal Code has not defined an attempt. This is

probably due to the fact that the word has not been used in
any technical sense. Broadly speaking, “it is a direct
movement towards the commission of the offence.”
  Baron Parke in Eagleton (1855) observed: “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.”
  This view of Baron Parke was approved of in R. v. Robinson
(1915) and in more modern times in R. v. Miskell (1953),
Warton defines an attempt to be “an intended apparent
unfinished crime.”
  Bishop observers: “Briefly, an attempt is an intent to do a
particular criminal thing, which an act towards it falling short
of thing intended.”
Lecture 6 11/7/11
 Essentials of the Attempt
5

  When a person wants to commit a crime, he firstly

forms an idea, then makes some preparation and
ultimately does something for achieving the object.
  If he succeeds in his object he is guilty of completed
offence otherwise only for making an attempt.
  Thus there are three essentials of attempt:
  (i) Guilty intention to commit the offence.
  (ii) Some act done towards the commitment of the
crime.
  (iii) The act must fall short of the completed offence.

Lecture 6 11/7/11
 ABHYANAND MISHRA V. STATE OF BIHAR,
AIR 1961 SC1698
6

  It was observed that: Preparation was complete when the

accused prepared the application for submission to the
university and the moment he dispatched it, he entered
the realm of attempting to commit the offence of
cheating.
  Held: The appellant had been rightly convicted. He
succeeded, in deceiving the university and inducing it to
issue the admit card. He failed to get it and sit for
examination just because something beyond his control
took place.
  He was held guilty under section 420 r/w section 511 of
IPC.

Lecture 6 11/7/11
 7

  First, in some cases the commission

of an offence as well as the attempt
ATTEMPT
to commit it are dealt with in the
same section and the extent of
The Penal Code has punishment prescribed is the same
dealt with attempt in 3
different ways:
for both.

  There are about 23 sections in the

Code where both the actual
commission of the offence and the
attempt to commit are made
punishable equally viz. Sections 121,
124, 124-A, 125, 130, 131, 152, 153-A,
196, 198, 200, 213, 239, 240, 241,
251, 385, 387, 389, 391, 397, 398 &
460.

Lecture 6 11/7/11
 8
  Secondly, in some cases attempts are
treated as separate offences and punished
accordingly.
Contd …
In all the sections below   There are four such offences:
attempts for 1) Sec. 307 – attempt to commit murder and
committing specific murderer is punished under Sec. 302;
offences are dealt side
by side with the
2) Sec. 308 – attempt to culpable homicide
offences themselves but and culpable homicide is punished under
separately and separate Sec. 304;
punishments are 3) Sec. 309 – attempt to commit suicide,
provide. completed offence not punishable and as
such no provision for punishment has been
made;
4) Sec. 393 – attempt to commit robbery and
if armed with deadly weapons, then under
Sec. 398 and punishment for robbery is
provided under Sec. 392

Lecture 6 11/7/11
 9

  Thirdly, the offences of attempt

which are not covered by the above
Contd … two classes are governed by the
Section 511.- general provision contained in Sec.
Punishment for
attempting to commit
511, which has been rather illogically
offences punishable placed at the end of the Code.
with imprisonment for
life or other
imprisonment.-.
  For e.g. 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.

Lecture 6 11/7/11
 OF ATTEMPTS TO COMMIT OFFENCES
10

  In the Indian context, Section 511 of our Code is more specific in this
respect. The following two illustrations clearly make impossible
attempt punishable:
a) A makes an attempt to steal jewels from an empty box. A is guilty.

b) A makes an attempt to pick the empty pocket of Z. A is guilty.

In case of Jivaji (1887) Bombay High Court held that an attempt

within the scope of Section 511 of the Code is possible, even if the
offence attempted could not be committed to a act where a person
intended to pick and thus thrust his hands into the pocket, but finds
it empty. In doing such an attempt the offenders intention is to
commit an offence but his act falls short of commission of offence
only by reason of accidental circumstances.

Lecture 6 11/7/11
 ASGAR ALI PRADHANIA v. EMPEROR AIR
1933 CAL 893
11

  Held : The accused could not be convicted of an

attempt to cause miscarriage as what he did was not
an act towards the commission of the offence of
causing miscarriage.
  It is different however when its failure is due not to
any act or omission on his own part to the intention,
but of some factor independent of his own position
or will.

Lecture 6 11/7/11
 Distinction between Attempt & Preparation
12

  A sharp clear-cut distinction between the two is

difficult to draw as one shades into the other and
dividing line can only be decided with reference to
the facts of each case.
  No hard and fast rule in this respect can be laid down
and whether an act amounts to preparation or
attempt, is a question of fact depending on the
nature of crime and steps necessary to be taken in
order to commit it
  In brief, it can be said that:

Lecture 6 11/7/11
 Contd..
13

  (i) Preparation is to arrange or devise means or measures

and attempt is direct movement towards the commission
of the offence.
  (ii) Preparation is not punishable but attempt is always
punishable.
  (iii) Mere preparation is an indifferent act possessing no
definite indication of criminality. An attempt is an act of
such a nature that it is itself a clear evidence of mens rea.
  (iv) If accused has lost the opportunity to repent he is in
the stage of attempt other wise he will be in the stage of
preparation only.

Lecture 6 11/7/11
 Accomplishment
14

  The last stage in the commission of a crime is its

accomplishment. If the accused succeeds in his attempt
to commit the crime, he will be guilty of the offence.
  If his attempt is unsuccessful, he will be guilty for an
attempt only.
  For instance, A fires at B with the intention to kill him. If
B dies, A will be guilty for committing the offence of
murder and if he is only injured, it will be a case of
attempted murder only.
  If offence is complete, the person will be tried and
punished under the specific provisions of the Code.

Lecture 6 11/7/11