Attempt

What is attempt?

Attempt is the third stage of the commission of an offence. The stages include, intention, preparation, attempt and commission. Attempt is thus defined as an act or a series of acts that a person performs, having made the preapration with the intention to commit a crime but falls short of commission.

Attempt is also referred to as an inchoate offence which means incomplete offence. Criminal law is based on the maxim “actus non facit reum nisi mens sit rea” which means crime cannot occur without both an act and a guilty state of mind. It, thus identified two essentials of a crime, that is, guilty mind and wrongful act. While the first element is satisfied in cases of attempt, the second isnt which is why it is referred to as an inchoate offence. Other examples include conspiracy and abetment.

The 11th edition of the Black Law dictionary defines attempt as “An effort or endeavor to accomplish a crime, carried beyond mere preparation but falling short of actual commission. It is a direct movement toward the commission of the offense after the preparations are made”.

Official Definitions of “Attempt”

“Attempt” as defined in legislation(s)

The term attempt has not been defined explicitly in the Indian Penal Code or the Bhartiya Nyaya Sanhita. However, the offence can be classified into three categories. First, where the term attempt is provided in the section itself in the terms “whoever attempts, abets, conspires”. Secondly, where there is a separate section punishing the attempt of an offence, for example, Attempt to murder or Attempt to commit suicide. Thirdly, section 62 of Bhartiya Nyaya Sanhita which provides for “Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.”

Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985; Section 15 of the Prevention of Corruption Act, 1988; Section 18 of the Protection of Children from Sexual Offences Act, 2012 also provide for punishment for attempts to commit offences.

“Attempt” as defined in other official government reports

42nd Law Commission Report

The 42nd Law Commission Report examined the distinction between preparation and attempt in criminal law, emphasizing that preparation involves planning the crime, while attempt requires an overt act toward its commission. The report stressed that "attempt" begins where mere preparation ends and is characterized by a direct movement toward the intended offense. It also highlighted inconsistencies in judicial interpretations and recommended clearer definitions to aid uniform application of laws. Additionally, the report discussed the proportionality of punishment for attempts, suggesting that such penalties should reflect the gravity of the intended crime and the harm caused during the attempt.

156th Law Commission Report

The 156th Law Commission Report, focusing on revisions to the Indian Penal Code, reinforced the need to retain Section 511 of the IPC while addressing ambiguities in defining "attempt." It recommended clearer distinctions between preparatory acts and attempts to aid judicial interpretation. The report highlighted the importance of proportional punishment for attempts, ensuring that penalties reflect both the severity of the offense and the level of harm caused. It also suggested that attempts involving violence or significant harm should attract stricter punishments, aligning with the principles of justice and deterrence in criminal law.

“Attempt” as defined in case laws

Koppula Venkat Rao vs State Of Andhra Pradesh

The court in this case held that the word attempt itself is not defined anywhere explicitly, however it can be understood as an act or series of act which leads inevitably to the commission of an offence, unless something that the doer did not foresee, prevented the commission. It can also be understood as an act done in part, execution of criminal design, more than preparation, falling short of actual consummation.

Abhayanand Mishra vs The State Of Bihar

The court, while elucidating upon the definition of attempt clarified that attempt is, having made the preparation, an act done towards the commission. Such act need not be the penultimate act towards commission.

Types of “Attempt”

The term attempt itself cannot be divided into types, however, law offers a distinction between the term ‘attempt’ and ‘preparation’ by the means of multiple theories. These include the following:

Test of Proximity

The test of proximity evaluates whether the accused’s actions were sufficiently close to the actual commission of the crime to constitute an attempt. It focuses on the degree of immediacy between the preparatory act and the offense. The closer the act is to completing the crime, the more likely it is to be considered an attempt. For example, in an attempted theft, breaking into a safe may pass the proximity test, while merely purchasing tools for the crime may not. This test helps differentiate between mere preparation and actual attempts, ensuring that liability arises only for substantial steps. The same was elcudidated upon in the case of State v. Mohammad Yakub.

Test of Impossibility

The court in, Regina v. Ring, explained the test of impossibility which examines whether a crime can be considered an attempt if the act was impossible to complete due to factual or legal circumstances. Factual impossibility arises when external factors prevent the crime (e.g., attempting to pickpocket an empty pocket). Legal impossibility occurs when the intended act is not a crime (e.g., smuggling an item mistakenly believed to be contraband). While some jurisdictions punish such acts under "impossible attempts," others do not. The test underscores the importance of intent and assesses whether impossibility negates liability for criminal attempts.

Test of Locus Poenitentiae

The test of locus poenitentiae, or "place of repentance," examines whether the accused voluntarily abandoned the criminal act before it was completed. If the withdrawal was genuine and occurred before an irreversible step toward the offense, the individual may not be held liable for an attempt. For instance, a person who begins planning a robbery but abandons it voluntarily before committing any overt act can claim the benefit of this principle. This test encourages voluntary desistance and ensures that individuals who genuinely reform are not punished for crimes they decided not to complete. The landmark judgment on the same is Malkait Singh vs State of Punjab.

Social Danger Test

The social danger test assesses whether the accused's conduct posed a significant threat to society, irrespective of whether the crime was completed. It emphasizes the potential harm or risk created by the act. Acts that disrupt public peace, security, or moral fabric, even if they fail, may still be punishable as attempts. For example, firing a gun at a crowded area intending to harm someone, even if no one is injured, constitutes a socially dangerous act. This test ensures that the law addresses acts that endanger public safety or social order, even if they remain incomplete.

International Experience

USA

Attempts are considered inchoate offences in the United States and are often punished with less severe penalties than accomplished crimes. The prosecution must demonstrate intent to commit the crime and a significant step made towards its conduct in order to establish an attempt. To determine culpability, courts employ measures such as the substantial step test and the proximity test. Certain states impose different penalties for specific efforts vs general attempts.

UK

The Criminal Attempts Act of 1981 governs attempts in the United Kingdom. If someone does something that is more than just a prelude to committing a crime with the intention of doing so, they are guilty of an attempt. Because of the gravity of the purpose, attempts are typically punished with the same penalty as accomplished offences. To distinguish attempts from preparation, courts emphasise the "more than merely preparatory" threshold. For instance, even though the victim in R v. White died of an unrelated reason, the defendant was found guilty of attempted murder for poisoning a drink.

Australia

In Australia, both state and federal laws consider attempts to be serious offences. According to the Criminal Code Act, 1995, an attempt is made when someone goes beyond preparation with the intention of committing a crime. Attempts are usually punished in the same way as accomplished offences. The considerable step and proximity standards are used by courts to assess culpability. In DPP v. Stonehouse, for instance, the court decided that, even in cases where the crime is not yet complete, intent and actions that demonstrate definite steps towards the crime are enough to convict someone of an attempt.

Canada

Section 24 of the Criminal Code governs attempts in Canada. An attempt is defined as an act or omission that is started with the intention of committing a crime but is not completed. Except in certain circumstances, attempts are usually punished less harshly than completed crimes. The closeness and unequivocality standards are used by Canadian law to determine whether an act shows intent and is a substantial step towards committing a crime. To ensure that responsibility is founded on intentional criminal behaviour, R v. Ancio, for example, emphasised that purpose must be demonstrated for an attempt.

Appearance of “Attempt” in database

Attempt finds its mention in the National Crime Records Bureau (NCRB) records. The National Crime Records Bureau (NCRB) does not maintain specific or separate records for offenses categorized under Section 511 of the IPC, which pertains to the punishment for attempting crimes not otherwise covered under specific provisions. Instead, attempts to commit certain crimes are generally recorded alongside the main offenses under specific sections.

For instance, the NCRB's "Crime in India" reports provide statistics on offenses such as "Attempt to Commit Murder" under Section 307 of the Indian Penal Code (IPC). According to the 2022 report, there were over 57,000 cases of attempted murder reported across India. Additionally, the NCRB compiles data on suicides in its "Accidental Deaths and Suicides in India" reports. However, it's important to note that while the NCRB provides comprehensive statistics on completed suicides, it does not specifically enumerate cases of attempted suicides.

Therefore, the NCRB's emphasis on offences specifically listed in the IPC and associated categorised efforts, rather than generalised provisions for criminal attempts, is reflected in the lack of standalone statistics on Section 511 IPC. This lack of data specificity may make it more difficult to conduct sophisticated criminal analyses.

Research that engages with term “Attempt”

Attempt to commit a crime (Manupatra)

The article addresses the concept of "attempt" in criminal law. To secure a conviction for an attempted crime, it must be demonstrated that the individual had the intention to commit the offense and engaged in actions that went beyond mere preparation, constituting a direct movement towards the commission of the crime. The IPC distinguishes between preparation and attempt, emphasizing that only acts proximate to the completion of the offense qualify as attempts. This differentiation ensures that individuals are penalized for actions that pose a real and immediate threat to legal interests, aligning with the principles of justice and deterrence.

Insight Theory of Attempt: A Theoretical Review (International Journal of Legal Science and Innovation)

The theory of "attempt" in criminal law is examined in this study, with particular attention to the difficulties in defining and punishing it. It explains that although Indian law—more especially, Section 511 of the IPC—does not define attempt precisely, it does make attempts to commit crimes illegal. The author looks at the various phases of a crime, emphasising the change from planning to attempting. The review covers pertinent case law as well as the difficulties in understanding "attempt," especially when it comes to offences that are impossible or incomplete. The paper advocates for a more uniform approach and more precise legal definitions.

An analysis of attempt under penal laws (Indian Journal of Legal Review)

The definition of "attempt" in criminal law is examined in this article, especially as it relates to the Indian Penal Code (IPC). According to this definition, an attempt is an inchoate crime, which is a crime that is still in its early stages. Although the IPC covers a wide range of offences and the associated penalties, managing efforts is difficult and controversial, particularly when deciding on suitable punishments. Examining the subtleties of mens rea (guilty thought) and actus reus (guilty conduct), which are essential components for proving an attempt as a penal offence, the study explores the definition of attempt and its difficulties.

Is the Proximity Test Really Foolproof? Breaking Down one of the Most Trusted Parameters for Demarcating Attempt (NLR Blog by NLIU Law Review)

The article titled "Is the Proximity Test Really Foolproof ? Breaking Down one of the Most Trusted Parameters for Demarcating Attempt" assesses the proximity test, which is used to differentiate between preparation and a real effort to commit a crime. Although the test is frequently used in countries including the USA, UK, and India, the article points out some of its drawbacks, including the absence of a precise formula and differing court interpretations. The inherent vagueness of the test is demonstrated by the court's observation in Sudhir Kumar Mukherjee that an effort need not be the "penultimate" act but rather must take place throughout the conduct of the offence. According to the article, in order to adequately handle these complications, more or different tests might be required.

Challenges

There is uncertainty about the exact boundary between preparation and an attempt, which makes it difficult to define and prosecute "attempt" in criminal law. Determining whether a preliminary act becomes a direct movement towards executing the crime is the challenging part. Legal interpretations frequently differ; some courts may demand a more substantial step, while others may recognise small or insufficient measures as attempts. Another difficulty is the idea of impossibility, which presents a problem when assessing culpability for crimes that are thought to be impossible because of outside or factual circumstances. In circumstances of unfinished crimes or non-completion owing to outside forces, this sometimes leads to conflicting judicial rulings and confusion in legal applications.

Way Ahead

Clear legislative reform is necessary to create a uniform and standardized meaning of "attempt" in all legal settings. The uncertainty surrounding its applicability might be removed by establishing clearly defined phases of criminal behavior that indicate when a crime transitions from preparation to an attempt. To provide a more equal implementation of the law, courts should develop uniform criteria for assessing proximity and intent. Additionally, the development of legal precedents pertaining to impossible endeavors may provide clarification in addressing these matters and bring them into line with accepted liability rules. Reforms in education that teach legal practitioners about these differences would improve uniformity in the application of the law and stop judicial discretion from creating inequalities.