Q. What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt. What do you mean by attempt to commit murder? Whether without causing injury can a person be held guilty of attempt to commit murder? Do the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309 (attempt to commit murder, culpable homicide, and Suicide)?
In general, an offence passes through the following stages –
Conceiving the idea of performing a legally defined harm – It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this stage, there is no action taken to harm anybody and it is not a crime to merely think of doing harmful activity because the person thinking it may not even want to actually do it. For example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation – At this stage, a person consolidates his devious ideas and identifys ways of doing it. Again, there is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For example, merely thinking about how to build a device that can kill 1000s of people instantaneously, is not a crime.
From a legal standpoint the above two stages are inconsequential because man being a thoughtful animal, he thinks about innumerable things without any material result.
Intention (Mens Rea) – This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans. There is an intention to cause harm but he hasn’t yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can’t read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.
Preparation – As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example, purchasing poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.
However, there are certain exceptions where even preparation for committing an offence is crime. These are –
Sec 122 – Collecting arms with an intention of waging war against the Govt. of India.
Sec 126 – Preparing to commit depredation on territories of any power in alliance or at peace with the Govt. of India.
Sec 235 – Counterfeiting operations for currency.
Sec 399 – Preparation to commit dacoity.
Attempt – This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.
Actual commission of the offence – This is the final stage where the crime is actually done.
Distinction between Preparation and Attempt
There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed –
- mens rea to commit the crime
- ant act which constitutes the actus reus of a criminal attempt
- failure in accomplishment
In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two. He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
However, this is not the only criteria for determining an attempt. The following are four tests that come in handy in distinguishing between the two –
- Last Step Test or Proximity Rule
As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.
In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.
- Indispensable Element Test or Theory of Impossibility
As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt. Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test. In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt. This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there. However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
- But For Interruption Test
If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.
- Unequivocality Test or On the job Theory
If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.
Attempt to commit murder
Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he 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 either liable to imprisonment for life.
This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, “I will kill you”, it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.
- A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
- A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
- A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
- A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’ s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.
Is Injury necessary
From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.
Whether act committed must be capable of causing death
In Vasudev Gogte’s Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.
Penultimate Act not necessary
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.
Section 307, 308, 309 and Section 511
Attempts are dealt with in IPC in three ways –
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.
Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter. In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act might cause death if it took effect and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.
In the case of Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.
A, the licensee of a petrol pump, and his 9 yr old brother are caught adulterating petrol in an underground storage. What offence is committed by A and his brother?
In this case, there are two people who are doing the act – one is an adult and one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it will be determined if the boy had the maturity to understand what he was doing and what could be the consequences of his act. If upon analyzing the facts of the situation and cross examining the boy, it is determined that the boy was mature enough to understand the nature of his act, he will be treated as an adult. In this case, as per section 34 (Act done by several persons in furtherance of common intention) both will be charged with the same offence as if they had done it alone. Otherwise, the boy will be acquitted by giving the benefit ofsection 83 and only the man will be charged.
Regarding the charges –
- The man is a licensee of the petrol pump and is thus an agent of the petrol company. He is supposed to keep and sell petrol according to the terms of license. Since he was caught adulterating it, he has committed the offence of criminal breach of trust as per section 405. However, since he is an agent, this becomes a special case and he will be punished under section 409, which is meant for public servant, banker, attorney, merchant or agent.
The boy is not a licensee so he cannot be charged for this offence even if he did not get benefit of 83 as mentioned before.
- Their actions show that they had full intention to cheat public by selling adulterated petrol and if the police hadn’t stopped them, they would have sold the adulterated petrol. Since the whole underground tank was being adulterated it can be safely assumed that they had left no option to change their intention. However, since the petrol was not sold yet, no body was cheated and thus, they will be charged under section 511 read with attempt to commit the office of cheating, which is defined in section 415 and the punishment for which is given in Section 417.
However, the boy is neither the licensee nor is the seller of petrol. It is not given that he was working as an employee of the licensee of the petrol pump. As such, he owes no fiduciary responsibility to either the licensee or to the customers. Thus, his involvement in adulterating petrol is not a crime against the customers, nor against the company. Further, his involvement in adulterating petrol is not a tortious act against the licensee either because he was doing it with the consent of the licensee. Thus, even if the boy does not get the benefit of section 83, he has not done any crime and should be acquitted.