Attempt Under IPC: Where The Stage Of Preparation Ends | Law Optional Notes for UPSC PDF Download

Introduction

This documents will discuss various offenses outlined in the Indian Penal Code of 1860 where there are distinct sections addressing attempts and successful commission. In some cases, these sections stipulate different punishments for the attempt and the actual crime, such as Section 391 dealing with dacoity. On the other hand, there are sections, like Section 124A concerning sedition, where both the attempt and commission lead to the same punishment. Furthermore, certain offenses, such as murder and attempt to murder, are addressed separately in Section 300 and Section 307, respectively. Similarly, attempt to commit culpable homicide is covered in Section 308, and the attempt to commit suicide is addressed in Section 309. For other offenses not explicitly defined in the IPC, Section 511 provides a framework to determine appropriate punishments.

The Stages Of A Crime: Where Does Attempt Fall?

• In the context of criminal offenses, there are two key elements: "actus rea," which pertains to the physical actions or omissions that lead to a criminal outcome, and "mens rea," which concerns the intent to commit the offense, representing the mental aspect of a crime. Actus rea encompasses not only actions but also omissions that result in criminal consequences.
• Within these elements, crimes progress through four distinct stages: the intention to commit the crime, preparation for its execution, attempting to commit the crime, and finally, the successful commission of the offense. The first stage can be seen as part of mens rea, while the latter is considered part of actus rea.
• Former Chief Justice Alexander Cockburn of Queen's Bench once described attempt as an act that, if successful, would have resulted in the commission of the intended offense. An attempt occurs when the actions taken fall short of achieving the intended harm or consequence of the criminal act, remaining at the stage of an attempt. Attempt is a stage that falls between preparation and the actual commission of the crime.
• For example, if you acquire poison with the clear intention to use it to cause someone's death, the acquisition of the poison constitutes preparation. When you mix the poison into their food, and the person consumes it, you can be held accountable under an attempt to commit murder if the poison does not achieve the intended outcome, i.e., the person survives. If the person were to die, you would be charged with the commission of murder under Sections 300 and 302 of the IPC, rather than just the attempt under Section 307. In criminal law, the presence of intent, coupled with overt actions to carry out that intent, is sufficient for prosecution.

Attempt V. Preparation: Various Tests To Solve The Confusion

'The Transition from Preparation to Attempt in Criminal Offenses'
There is often confusion between the stages of preparation and attempt in the commission of a crime, mainly because they follow each other in the process. Attempt to commit an offense carries a specific punishment, but in contrast, punishment for preparation is only provided in exceptional cases. For example:

• Section 122 of the IPC addresses the collection of arms with the intent to wage war against the Government of India.
• Section 399 of the IPC deals with the preparation to commit dacoity.

These offenses are so serious that it is crucial to apprehend and penalize individuals at the preparatory stage to prevent harm.
Mere preparations typically do not pose an immediate threat to someone's safety. Moreover, objects collected or actions taken in preparation may have various non-criminal purposes. For instance, someone may legally purchase a firearm for personal security, and this intent is not inherently criminal. It becomes an attempt when that person pulls out the gun and aims it at an individual with the intent to kill, but fails to do so. In this case, the act would be considered an attempt to commit murder, as the gun was acquired as preparation for the crime. Consequently, it is often the attempt and preparation for an offense that are subject to punishment.
To differentiate between a person being at the attempt stage versus merely at the preparation stage, courts have established the following principles through their legal rulings:

• Proximity Rule: This principle asserts that an act can be considered an attempt only if it is close to the successful commission of the offense and not remotely related to it. The Supreme Court, in the case of Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1973 SC 2655, stated that the next act performed after all preparations with the intent to commit the offense would constitute an attempt.
• Doctrine of Locus Paenitentiae Test (Time for Repentance): This doctrine posits that an act should not be labeled an attempt if a person can abandon it of their own accord due to a change of heart regarding their criminal intent. For example, a person who changes their mind and stops an unlawful act after starting it would be considered to be in the preparation stage.
• Impossibility Test: The IPC also penalizes acts that are impossible to successfully commit, considering them attempts. For instance, shooting a person with an empty pistol, hoping it will cause fatal injury, would be considered an attempt to commit murder under Section 307 of the IPC.
• Social Danger Test: The seriousness of an act and the social harm it could cause are taken into account to distinguish an attempt from mere preparation. The moral culpability of the offender is regarded as equivalent to a successful crime. For example, if a person administers pills to a pregnant woman to induce an abortion, even if the pills are harmless and have no effect, they would be liable for an attempt to cause a miscarriage because the act would create public alarm and have social consequences.
• Equivocality Test: This test requires that the act itself clearly indicates that it was an attempt to commit a particular crime. The evidence from such an act should leave no reasonable doubt upon examination; otherwise, it would be considered mere preparation if there is room for doubt. Such acts must not appear to have a motive other than the commission of the crime.

By applying these tests, courts can determine whether an act constitutes an attempt to commit an offense or is merely in preparation. If it falls into the former category, punishment is imposed, while no punishment is imposed for acts in the latter category.

Section 307 Of Ipc: Attempt To Murder

Section 307 of the Indian Penal Code, 1860, deals with "Attempt to Murder." This section is outlined as follows:
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description 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 shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

Essential elements of "Attempt to Murder" include the following:

• The accused has made an attempt to cause death.
• The accused had the intention to cause death or cause such bodily injury as would likely result in death.
• The accused had knowledge that by committing such an act, death or severe injury leading to death would be a likely consequence.
• The act, in its ordinary course of nature, would cause death.

Of these elements, intention and knowledge are the most critical. The Madhya Pradesh High Court emphasized that intention and knowledge should be determined based on the "totality of circumstances" rather than solely on the consequences of the act. In other words, the intended injury may not be identical to the injury that ultimately occurs.
For instance, in the case of Liyakat Mian v. State of Bihar, the accused shot the victim at close range, and although the victim survived, the accused would have been charged with murder if the victim had not survived. This act of shooting from close quarters reasonably established that the accused had the knowledge that it was likely to cause death, and he was consequently liable under Section 307 of the IPC.
Furthermore, in the case of Om Prakash v. State of Punjab, the Supreme Court upheld the conviction of the appellant under Section 307. The court ruled that to establish an attempt to murder, it is not necessary that the last or penultimate act be the one considered; rather, a continuous series of acts can collectively constitute an attempt. In this case, the husband consistently subjected his wife to a systematic course of starvation, which was interrupted by an unexpected event before he could achieve his goal of killing her. The Supreme Court held that the ongoing efforts to starve his wife were sufficient to establish an offense of attempted murder under Section 307. The court rejected the appellant's argument that the very last act of starvation should be considered the attempt, stating that a series of acts, when combined with the appellant's knowledge and intent that these acts would lead to his wife's death, made him and his actions liable under Section 307 of the IPC.

Quantum Of Punishment Under 307 IPC

Under Section 307 of the Indian Penal Code (IPC), there are three potential categories of punishment:

• Imprisonment for a maximum of 10 years along with a fine.
• Life imprisonment if the act results in injuries.
• The death penalty if the person already has a prior life imprisonment sentence.

The Supreme Court, in an appeal against the decision of the Allahabad High Court, outlined several factors that should be considered when determining the appropriate sentence for the accused.
These factors include:

• The nature of the offense.
• How the offense was committed.
• The seriousness of the offense.
• The motive behind the offense.
• The nature of injuries sustained by the victim.
• The weapons used in the commission of the offense.
• Any other mitigating circumstances.

In this specific case, the circumstances fell into the second category of punishment, which is life imprisonment. The injury inflicted by a gunshot was severe, particularly since it affected a vital part of the body, the head. Three individuals, with the intent to kill three family members, entered the accused's home and opened fire, resulting in the death of a pregnant woman and her stillborn child, while the other two family members survived. Taking these factors into account, the Supreme Court did not overturn the sentence of "life imprisonment" and deemed it appropriate.

Section 308 Of IPC: Attempt To Commit Culpable Homicide

Murder v. Culpable Homicide not amounting to Murder-Every murder is culpable homicide, but every culpable homicide is not murder. Culpable homicide is a wider term where the act under consideration have caused death but the person performing such act had no explicit intention to cause death, whereas in murder, the accused has a knowledge as well as an intent to cause death.
Hence, if without the intention to kill someone, as can be derived from the facts and circumstances of the case, a person does such act which leads to death of the victim, then such person would be liable for culpable homicide not amounting to murder under Section 304 of IPC.

Section 308 of IPC can be reproduced as follows:

Attempt to commit culpable homicide. Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of 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.

Ingredients: Following ingredients can be derived from the bare wordings of this section:

• Intention and knowledge that the alleged act can cause death (but not an explicit intention to cause death) the act failed to cause death of the person towards whom it was targeted

In State v. Vimal Singh, the Delhi District Court set down the following essentials to be considered as ingredients for constituting offense under Section 308 of IPC:

• The accused did something wrong,
• The conduct was carried out with the intent or knowledge of committing culpable homicide that did not amount to murder.
• The conduct was done in such a way that if the accused had caused the victim's death, he would have been charged with culpable homicide.

 Nature of Offense: Offense under 308 of IPC is cognizable (arrest can be made without a warrant because of the serious nature of the offense), non-bailable (bail cannot be granted as a matter of right, a bail application can be put and it is upto Court's discretion whether to grant bail or not), non-compoundable (cannot he withdrawn by the complainant, has to be decided by tha Court and the parties cannot mutually decided upon the case) and triable by the Court of Sessions(as per Section 209 of Code of Criminal Procedure, the Magistrate refers these cases to the Session Courts, that have jurisdiction over cases that carry an imprisonment exceeding 7 years, life imprisonment or death).
The punishment envisaged under the said section is Simple Imprisonment upto 3 years with or without a fine if jo hurt is caused and if hurt is caused, then it is extended to Simple Imprisonment upto 7 years with or without a fine.
Decisive factors to consider intent: The type of weapon used, how it was used, the crime's motivation, the intensity of the blow, and the portion of the body where the harm was inflicted are all factors considered to evaluate the accused's intent under this provision.
In Ali Zaman v. State, the Supreme Court held that where a revolver used by the accused party did not lead to death of any person from complainant's side, then the accused would be liable under Section 308 of IPC, but if death of any one person was caused, the accused would be liable under Section 304 of IPC, i.e., Culpable Homicide not amounting to murder.

Section 309 Of Ipc: Attempt To Commit Suicide

Section 309 of IPC has been reproduced below:

Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]."
Ingredient(s) and exception(s): There is only one ingredient that can be drawn from this section, i.e., attempt or an act to attempt the commission of suicide. Another ingredient as is essential to constitute criminal offense is the intention, hence, if a person without intending to take his life, topples off a roof or consumes overdose of a medicine by mistake or in an intoxicated state, he would not be liable under this section.
Also, an exception is provided in such cases where a man out of his grief due to loss of near and dear one, a family discord or some sort of distraction, decides to take away his life but fails in the same, in such cases the man deserves 'consolation instead of punishment' as was held by the Madras High Court in Queen Emperor v. Ramakka.
The interesting fact is that only the failed commission attracts the provisions of IPC, if the person succeeds, suicide is no offense under IPC. For Example, a person jumps off the roof of a building with an intention to end his life and for some reason fails in the same, the surviving person would be liable as an offender under Section 309 of IPC.
Valuable Life of a Person: This section envisages the principle that the State protects the lives of men as it is valuable to it and men themselves should be prevented from ending such valuable lives by suicide.
The punishment for attempt to commit suicide provided under this section is upto 1 year of simple imprisonment with or without a fine.

'Severe Stress' under Mental Healthcare Act, 2017:

The Mental Healthcare Act of 2017 has diluted the rigrousness of law relating to "attempt to suicide". Section 115 of the Act says:

• Notwithstanding anything contained in section 309 of the IPC (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
•  The appropriate Government shall have a duty to provide care, treatment, and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

The act has by presuming "severe stress" on part of the person who attempted on his life, has not either explicitly repealed section 309 of the IPC or made it applicable to all attempts of suicide. A person who attempts on his life is presumed to be under "severe stress" and therefore he will not be prosecuted and punished for the offence of attempt to commit suicide. Further, it puts the Government under legal obligation to treat and rehabilitate him so that the risk of recurrence of attempt to commit suicide is reduced. It seems that a person who attempts on his life happens to be a person with no "severe stress" cannot be kept out of the penal orbit of section 309. The Government is neither bound to take care of such person nor to treat and rehabilitate him.
Are Hunger Strikes under Section 309?- The Court often used to face a dilemma as to whether hunger strike would constitute an attempt to suicide. The Courts have now set a simplifying principle based upon invention that if the strike was with intention to end the striker's life, it would be attemptt under Section 309 and if thr answer is in negative, then it would not constitute attempt under this section. A landmark case is that of Ramsundar Dubey v. State, where a worker of Mental Hospital at Bareilly was suspended and was subjected to discrimination by the authorities.
To protest against the same, the work laid down near Gandhi Statue of Bareilly and started to fast, but there was no such express declaration that he would fast to death. The District an Sessions Court refused to accept the admissibility of his defence that he was consuming lemon water twice a day, so as to continue his fasts. But the Allahabad High Court held that the accused is not liable under Section 309 of IPC as the evidence is sufficient enough to defend him against liability under the said section.
The Court held that if a person expressly declares that he'd fast unto death and then refuses all the nourishment offered to him thereafter, then he would be held liable for attempt to commit suicide under Section 309 of IPC.

Right To Life v. Right to Die v. Sec. 309:

• There are plethora of cases dealing with the dilemma as to whether Right to life under Article 21 of the Indian Constitution includes Right to Die or not. Each one has it's own unique points of contention and the debate still continues and has not been put to an end as of yet.
• Going by the chronology, first comes the Delhi High Court's judgment in the case of State v. Sanjaya Kumar, wherein the court acquitted a young boy who attempted to commit suicide and strongly stood to omit Section 309 from the code. The court further striked the judgment on sympathetic basis by saying that a such section of IPC is "unworthy of a human society like ours" and instead of sending such people to "psychiatric clinic society", the Court sends them to "mingle with the criminals".
• Then comes the Bombay High Court's judgment in Maruti Shripati Dubal v. State of Maharashtra, wherein the Court held that Article 21 of the Constitution not only provides for 'Right to Life and Liberty' but also includes for 'Right to end one's life' and hence struck down Section 309 of IPC on the ground of it being ultra vires to the Article 21 of the constitution.
• As opposed to these two judgments, the Andhra Pradesh High Court in 1988, in Chenna Jagdeshwar's judgment, held that 'Right to life' does not necessarily signify 'Right to Die' and hence it would continue to be an offense under 309, thus holding the section constitutionally valid.
• Then in 1994, a Division Bench of Supreme Court in P. Rathinam's case, upheld Bombay and Delhi High Court's verdict and overruled Andhra Pradesh High Court's ruling and held that 'Right to Life' includes 'Right not to live a forced life'. The Court further spoke against Section 309 by saying that a person who has attempted to end their life, does not deserve to be prosecuted.
• Further in 1996, in the case of Gyan Kaur, the Supreme Court overruled its earlier decision, and held that 'Right to Life' does not include 'Right to Die' and Section 309 of IPC is well within the constitutional framework. The overt acts committed by a man who is held liable under 309 of IPC cannot be held to be included within 'Right to Life' and are liable to be punished.
• Till date, the dilemma has not yet come to a conclusion amd Section 309 continues to be a part of the Code considering the State's perspective of valuing its citizens life. Hence, its omission is not being considered by the Legislature and still is an eminent part of the Code.

Section 511 Of Ipc: Punishment For Attempts To Such Crimes Which Make Liable For Imprisonment

Section 511 of IPC can be reproduced below:

"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 any act towards the commission of the offence, 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."

Ingredients: The basic ingredients that can be derived from the bare wordings are:

• The offense whose attempt has been made is punishable with some sort of imprisonment or life imprisonment
• An act has been attempted towards the commission of such offense
• No express provision to punish the attempt of such offense has been provided under IPC.

Attempt as has already been defined is the act done for the commission of an offense, which fell short of the actual intent of successful commission. The actus rea and mens rea both are present, and attempt is when the actus rea, if it were not prevented, would have led to successful commission of that offence and would have achieved the mens rea.
The punishment for such an attempt would extend upto half the imprisonment for life or upto half the term of longest term of imprisonment proposed in case if the offense had been successfully committed, with or without a fine.

Illustration: A person attempts to commit a theft but fails in commission, the bare acts provides for illustration that a person has opened a box for stealing jewels but there were no jewels in the box, such person would be liable for half the quantum on punishment provided under Section 379 of IPC, i.e., 1.5 years of imprisonment of either description or fine or both. No express provision has been provided under the code for attempt to theft, hence, the accused would be liable for half the term of imprisonment as he would have been given if he were successful in the commission of that offense.
An illustrative case where the accused was punished for attempt to commit cheating under Section 511 of IPC was Abhayanand Mishra v. State of Bihar. In this case, the accused prepared a fake application and sent it to the concerned University, along with some fake graduation and teaching-experience related documents attached to the application. As a response, the University also issued him an admission card, but for some reasons he failed to get the card and further sit in the examination. The Supreme Court held that the moment he dispatched his application to the University, he was made liable to be punished under Section 511 of IPC, for an attempt to commit cheating.

Exceptions: The exceptions to this section is served by those sections providing for express provisions for punishment of attempts of certain offenses, as has already been described above. Another exception is attempt to offenses under the local laws or special laws is not punishable by IPC, this section only envisages those attempts of offenses that have been envisaged in the IPC and other acts like Foreign Exchange Regulation Act, Arms Act, etc. as was held in Mohammed Akram v. State of Assam. Also, offenses punishable with only fine have not been covered under this Section.

In State of UP v. Ram Charan, the Allahabad High Court held that attempt is intentional act towards the commission of an offense, had it not been prevented by circumstances independent of volition of the offender, it would have not failed in successful commission. In this case, the accused was transporting wheat from one block to another in a ferry boat in contravention to clause 3 of UP Wheat (Restriction of Movement) Order, 1949.

His boat was stopped midstream and he was prosecuted under the said act. The High Court held that the act amounted to attempt to transport wheat in contravention to the concerned provisions, had he not been interrupted, he would have have successful transported wheat in a way contravening the legal provisions of the order. Hence, and attempt has been made and the accused has to be punished as per Section 511 of IPC.

Conclusion

There are 4 stages towards the commission of a crime, and attempt falls at the penultimate stage. Attempt is often confused with preparation but the courts by evolving above said tests, have tried to simplify such complex task of drawing a distinctive line between attempt and preparation. Still, the stage of crime is to be decided upon facts and circumstances of each case, which can be a confusing task. If the offense is found to be an attempt, then it is punished according to the IPC.
The IPC has specifically provided for attempt to murder, attempt to commit culpable homicide not amounting to murder, attempt to commit suicide in different specific section, and those offenses whose attempt is not provided for specifically, are to be dealt with by Section 511 of IPC. Also, a few other offenses carry punishment for commission and attempt within the same section, rather than falling under Section 511 of IPC.