ATTEMPT IN CRIMINAL LAW

ATTEMPT IN CRIMINAL LAW

By Suwarn Rajan, Advocate, Supreme Court of India

Introduction:

 One of the most difficult questions in Criminal law which creates riddle is, “why the ‘Attempt to commit an offence’ is being criminalized?”  How the penal law should treat those acts, which cross the stage of being preparatory to the commission of an offence, constitute an attempt to commit the offences, but for some reason are not actually completed, has been the subject of great amount of debate and discussion amongst jurists, judges and those concerned about criminal law. In other words what are the values that criminalize the Attempt?

                               The criminal law punishes not only completed crimes but also short of completion of crimes this category of uncompleted crimes is often called Inchoate crimes. The doctrine of inchoate crimes is applied specifically to three crimes; Attempt, Conspiracy, and Abetment. In this regard, incomplete criminal conducts raise a question as to whether it is proper to punish someone who has harmed no one or to set free determined to commit a crime. The criminal law answers the question by imposing lesser penalties for inchoate crimes than for completed crimes that have been attempted, abetted, conspired.  ( K.N.C.Pillai “ Genaral Principle of Criminal Law”,  p. 199). Especially in attempt we have to see that the actors have done all they had intended to do but have still not realized their criminal objective. In relation to this we have to take glance of the stages of crime. In this assignment, I am going to deal with certain aspects which will justify how certain values criminalize the attempt. For this purpose there is need to discuss on the concept of attempt vis-à-vis elements of crime from the perspective of Inchoate crimes, and also how the attempt is being defined by distinguishing it from the preparation. And also to discuss criminalization of attempt with the help of English and Indian cases and through various tests which have been laid down by courts for distinguishing the values such as intention, preparation, Attempt to commit an offence.

Elements of crime and Attempt: - Where there is mens rea there is no crime at all.[1] But though an actus reus is thus necessary, there may be a crime even where the whole of the particular actus reus that was intended has not been consummated.[2] Actus reus is one of the essential element of completed crime , i.e. it is the human conduct which if done with mens rea is contrary to law. In some cases the actus reus lies in the conduct itself, e.g. Perjury (the giving of false evidence on oath), or driving while under the influence of drink, where the conduct is criminal though no harm results to anyone, but in others the actus reus lies in the result, e.g. Murder where the essence of crime is killing, the causing of death. Actus reus is  commonly the commission of some act. There is no actus reus and no crime if circumstances exist which amount to a lawful justification or excuse.[3]

                        One should not think that the criminal law deals with the last proximate act that actually produces the evil consequences which determines its penal character. It often happens that the last proximate act has not been done or has to failed to produce the contemplated evil consequence. For this purpose criminal law takes notice of attempts to commit punishable wrongs and punishes them with more or less severity according to the nature of the act attempted.[4]   No criminal liability where a mens rea has only been followed by some act that does no more than to manifest the mens rea. Liability will not begin until the offender has done some act which not only manifest his mens rea, but also goes some way towards carrying it out. [5] Lord Mansfield observed, “so long as an act rests in bare intention, it is not punishable by our laws”. Law does not take notice of mere thought of a person. The reason is obvious. It is impossible to prove the mental state or man and a tribunal can not punish a man for that which he can not know. But when such evil intent is expressed in words and can be inferred from his acts, the person can be held criminally liable.[6] In other words, law does take the notice of an overt act of expression. From this point of view we can assert that only evil intent cannot be punished by law there should be act to proceed towards the commission of crime.

In this connection it is necessary to consider different stages of crime.[7] The first stage is stage of contemplation or intention of the commission of the offences. After this stage of contemplation the next stage which is known as stage of preparation which consist in devising or measures necessary for the commission of crime. Generally preparations to commit an offence are not punishable. If it were made punishable, it would harass the suspected persons. But there are some exceptions to this rule, in that cases mere preparation to commit the offence are punished because they preclude the possibility of an innocent intention. The third stage is the stage of attempt. Attempt is the direct movement towards the commission of an offence after the preparation is made. Last stage is the stage when we come to actual commission of the intended crime when the attempt is successful, the crime is said to have been accomplished.

Inchoate Crimes  vis-à-vis Attempt  :-  To constitute the crime two elements are always necessary, namely, mens rea and actus reus. Where there is only mens rea, there is no crime. A mere evil intent or designed unaccompanied by any overt act (prohibited act), which is technically called actus reus, in furtherance of such design, is not punishable.[8] The word actus reus denotes a deed, a physical result of human conduct. When criminal policy of country regards such a deed as sufficiently harmful, it prohibits it and seeks to prevent its occurrence by providing a penalty or punishment for its commission. Though actus reus is necessary to constitute a crime, yet there may be a crime even where the whole of the actus reus that was intended has not been consummated. As a general rule, there is no criminal liability where mens rea has only been followed by some act that does not no more than manifest mens rea. Liability begins only at the stage when the offender has done some act which not only manifests his men rea but goes some way towards carrying it out. These are known as “inchoate crimes”. The name “inchoate” is not proper as it connotes something which is not yet completed. The word “incipient” is also lacking in its power to express the real thing, we wish to express, i.e. a crime which is completed. ‘Inchoate’ is defined as ‘just begun, undeveloped’. Other meanings are fundamental, not yet fully formed and so on. Thus, inchoate crimes refers to those acts which have begun but which have not reached completion sufficient for the offence to have been committed. As per this argument we can infer that an Attempt to commit a crime is thus an overt act, which should not allow to go unpunished.   

There are two classes of Inchoate or Preliminary crimes which proceeds far enough to be singled out for punishment. They are (i) Attempt (ii) Abetment.

Attempt: - The word ‘attempt’, said chief justice Cockburn, clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed. In other words, attempt is the direct movement towards the commission of an offence after the preparation has been made. According to English law, a person may be guilty of an attempt to commit an offence, if he does an act which is more than merely preparatory to the commission of the offence and a person may be guilty or attempt to commit an offence even though the facts are such that the commission the offence is impossible.[9] Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of crime and so it is punishable in the law like the completed offence.

                  An attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the same as though ha had succeeded. The act may be sufficiently harmful to society by reason of its close proximity to the completed offence classed as a crime. Hence, unlike civil law, criminal law takes notice of attempts to commit punishable wrongs and punishes them according to the nature and gravity of the offence attempted.[10]

And if the third stage is successful, then the crime is completed and the accused will be liable according to the offence committed by him. Thus an attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is at present intent coupled with some overt act in execution. Generally, the commission of a crime by a person involves four stages a) formation of the intention or mental element b) preparations for the commission of the crimes c) acting on the basis of the preparation and d) commission of the act resulting in an event prescribed by the law. Some legal system penalize from the stage of preparation. They depending upon the importance of the system gives to the value of ‘crime prevention’ declare certain offences to be criminal and punishable from the stage of preparation.[11] There may not be the responsibility for attempt if the person was negligent or reckless inasmuch as attempt is a crime of purpose. However, knowledge, recklessness or negligence in appreciating the material surrounding circumstances can support the charge of attempt.

From Preparation to ‘Attempt’- Legal Principles: -[12] It is when an act has gone beyond the stages of preparation, towards achieving the intention, that law of attempt begins and criminal liability covers the acts committed. This is based on the premise that the attempt, by going beyond the stages of preparation, takes the offender close to achieving the evil intention or the crime, and therefore, the very act of attempt ought to be punished in a manner similar to the completion of offence itself. In England, the law of attempt came to be formulated in 1784 in R v. Scofield, followed thereafter in R v. Higgins (1801). As it came to be crystallized subsequently, in English Law, there are three elements liability in an attempt:

• There must be evidence of some Overt Act;
• There must be evidence of mens rea; and
• There must have been an interruption to the series of acts and omission which, but for the interruption, would have culminated in the commission of an offence.

Whatever be the nature of intervention, whether due to charge of heart or due to reasons, the burden is on the prosecution to prove the following:-

1)      That the actus reus, or the act committed by the accused was something which in the eye of law marked the commission of an offence; and

2)      With reference to mens rea , that in taking this step, he was inspired with the serious intention to attain a particular or definite object, which would constitute a specific felony or misdemeanor.

Thus, as with any other crime, an attempt should also have the two elements mens rea and actus reus.

Kenny, elaborates about the English law in his Book ‘Outlines of Criminal Law’ that,

It is true that the criminality of the attempt lies in the intention, the mens rea. But this mens rea must be evidenced by what the accused has actually done towards the attainment of his ultimate objective. Thus, the actus reus of attempt is reached in such act of performance as first gives clear prima facie evidence of mens rea.

                        The element of actus reus or act committed, sufficient to bring the act under the coverage of ‘attempt’, is starkly brought out in the following:-[13]

“It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crimes, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime.”

What is Preparation?:-  As discussed above Preparation is the second stage. It consists in devising or arranging means or measures necessary for the commission of the offence. The law ignores, as general rule, the acts of preparation also. It only interferes when such preparation precludes the possibility of an innocent intention. Only such preparations are punished.[14]

Preparation not Punishable- In general preparation is not punishable, because a preparation apart from its motive would generally be a harmless act. It would be impossible in most cases to show that the preparation was directed to a wrongful end, or was done with an evil motive or intent, and it is not the policy of law to create offences that in most cases it would be impossible to bring home the culprit, or which might lead to harassment of innocent persons.

                                                     Besides, a mere preparation would not ordinarily affect the sense of security of the individual intended to be wrong , nor could society be disturbed or its sense of vengeance aroused by what to all outward appearances would be an innocent act .[15] Take a case of murder. Purchasing a gun is not punishable , being merely preparation, but if a man having procured the gun pursues his enemy with it, but fails to overtake him, or is arrested before he is able to complete the offence, or fires without effect, this amounts to attempt and, none of the considerations which justify the exclusion of preparation from the crime will apply.

Preparation punishable in Exceptional cases:- There are exceptional cases wherein the contemplated offence may be so grave that it would be of the utmost importance to stop it at initial stage and punish it at the preparatory stage itself. These are preparations thereto:-[16]

1)      Collecting arms, etc, with the intention of waging war against the Government of India (section 122, IPC);

2)      Committing depredation on territories of power or at peace with the    Government of India (section 126, IPC);

3)      Making or selling or being in possession of instrument for counterfeiting coin or Government stamps (section 223-235and 257, IPC);

4)      Possession of counterfeit coin, Government Stamp, False weight, or measure (section 242, 243, 259 and 266, IPC); and

5)      Making preparation to commit dacoity (section 399, IPC).

“Attempt to commit crime” under the Indian Penal Code:-  The code does not define this expression, the following are the provision wherein it has dealt with attempt:

a)      In some cases the commission of an offence as well as the attempt to commit it is dealt within the same section and the extent of punishment prescribes is the same for both. There are twenty seven such section in this Code, namely, Sections 121,124,124A,125,130,131,152,153A,161,162,163,165,196,198,200,213,239,240,241,251,385,387,389,391,397,398,and 460. In all these cases, both the actual commission of the offence and the attempt to commit are made punishable equally.

b)      In some cases attempts are treated as separate offences and punished accordingly. There are four such offences, I) Attempt to commit murder (section 307),

      II) Attempt to commit culpable homicide (section 308), 

     III) Attempt to commit suicide (section 309),

     IV) Attempt to commit robbery (section 393).

Attempt to commit a crime and preparation: Distinction:- Attempt to commit crime is punishable, whereas preparation is not as discussed above. This is because preparation would generally be a harmless act, e.g. attempt to commit murder creates a disturbance in the society and the sense of insecurity in an individual, while preparation may not create alarm in society. According to Indian penal Code an “attempt” is a continuous proceeding which at one stage assumes criminal character.

In Sudhir kumar Mukharjee v. State of W.B[17] , Supreme Court held that, attempt to commit an offence begins when the preparation are complete and the culprit commences to do something with the intention of committing the offence and which is a step forward toward the commission of the offence.

In Abhyanand Mishra v. State of Bihar[18] , Supreme court held that, the movement culprit commences to do an act with the necessary intention, he commences his attempt to commit an offence. 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 that offence.

Five Tests Laid down by courts:-  Thus, it is simple to say that an attempt to commit offence begins where preparation to commit it ends, but it is difficult to find out where one ends and the other begins. To solve this riddle various tests have been laid down by the courts. These are as follows:[19]

Ø  The Proximity test,

Ø  The locus poenitentiae test,

Ø  The impossibility test,

Ø  The social danger test, and

Ø  The equivocal test

1)      The Proximity Test:- Proximity cause as  explains is the causal factor which is closes, not necessarily in time or space, but in efficacy to some harmful consequences; in other words, it must be sufficiently near the accomplishment of the substantive offence.

In Sudhir kumar Mukherjee case and Abyanand Mishra case, the Supreme Court explained the offence of attempt with help of the proximity test, saying that:-

“A person commits the offence of ‘attempt to commit a particular offence’ when-

a)      he intends to commit that particular offence; and

b)      he having made preparation with the intention to commit the offence, does an act towards its commission; such an act need not to be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.

2)      The Locus Poenitentiae test:- The Latin expression speaks about time for repentance. In Locus Poenitentiae the word Locus means, a place,- a word frequently used to denote the place in or at which some material act or even such as crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to withdraw from a bargain before it has become fully Constituted and become binding.

                                                In simple language an act will amount to a mere preparation if a man on his own accord, before the criminal act is carried out, gives it up. It is, thus, possible that he might of its own accord, or because of the fear of unpleasant consequences that might follow, desists from the completed attempt. If this happens, he does not go beyond the limits of preparation and does not enter the arena of attempt. He is, thus at the stage of preparation which can not be punished.

Malkiat Singh case[20] explains this second test, in this case, a truck carrying a paddy was stopped at Samalkha Barrier, a place 32 miles away from Delhi. Evidently, there was no export of paddy within the meaning of para 2(a) f the Punjab Paddy (Export Control) Order, 1959, the Court decided that there was no attempt to commit the offence export. It was merely a preparation. Distinguishing between attempt and preparation Supreme Court observed that the test of distinction between two is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey.

3)      Impossibility Test:-  In Queen Express v. Mangesh Jivaji, the Bombay high court held that within  the meaning of section 511 of IPC,[21] an attempt is possible, even when the offence attempted cannot be committed.

In Asagarali Pradhaniu v. Emperor[22], what the appellant did was not an “act done towards the commission of offence”, and therefore, he could not be convicted. But in a Malaysian case the accused was held liable for an attempt to cause abortion when the woman was not pregnant. Even the appeal court held the accused liable because the circumstances in this case seemed to be exactly covered by the illustration to section 511 IPC.

The act itself is impossible of performance and yet it constitutes an offence of attempt to commit crime. This was precisely the position in English Law before Houghton v. Smith case.

                  In R v. Shivpuri [23] it has been held that, if the mental element has proceeded to commit the act but failed his responsibility for attempt would be evaluated in the light of facts as he thought them to be (putative facts).

4)      In Social Danger Test:- In order to distinguished and differentiate an act of attempt from an act of preparation the following factors are contributed.

A)    The seriousness of the crime attempted;

B)    The apprehension of the social danger involved.

In this test the accused’s conduct is no examined only partially but the consequences of the circumstances and the fullness of the facts are taken into consideration. For example, X administers some pills to a pregnant woman in order to procure abortion. However, since the pills are innocuous they do not produce the result. In spite of this X would be held liable for an attempt from the view point of the social danger test, as his act would cause as alarm to society causing social repercussions.

5)      The Equivocality test:- It is a situation wherein there are two opinions about the crime here, as decided by the Madras High court, an attempt is an act of such a nature that it speaks for itself or that it is in itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. In other words, if what is done indicates unequivocally and beyond reasonable doubt the intention to commit the offence, it is an attempt, or else it is a mere preparation.

Analyzing the Attempt through English cases:-        In  R v. O’ Toole[24], the appellant who was a regular customer of public house was barred from that public house. At closing time the appellant returned with a can of petrol and slashed it around the vestibule at the entrance of the public house. When he was questioned by the Barmaid he stated that he did care whether she burned alive. He had earlier been heard to say that he would smash the public house. When arrested  he told the police that if he did not smash up the public house that night he would do it the following night……

                        He took the defence that he was drunk. He had the can of petrol with him because he was filling the petrol reservoir of his motor car, and while doing so he had heard noise from the public house. He decided to speak with the landlord. While trying to look through a window he had accidentally spilled petrol into the vestibule.

                        The appellant was charged with two counts, the second alleging that ha had attempted to damage the same or being reckless as to whether it would be damaged and intending to endanger the life of barmaid.

                        The defendant was convicted of count 2 by the jury. The Court of Appeal in allowing the appeal and quashing the conviction held that intent is an element inherent in the definition of attempt and is the same at least not greater than the intent necessary to constitute the full offence. It was held that, “The learned trial judge was in error in relating back to the question of recklessness and intent to damage. There was no room for a reckless damage to property when the offence itself is an attempt because the attempt must have the necessary intent”.

                        In R v. Khan [25], RUSSEL C.J.- These appeals raise the short but important point whether the offence of attempted rape is committed when the defendant is reckless as to the women’s consent to sexual intercourse. The appellant submits that no such offence is known to law. The defendant and other three were convicted of the attempted rape of a 16 year old by the Central Criminal Court. After a dance the girl was taken away by the defendant in the car. But he could not succeed. After this three could not succeed in having intercourse with her. After the ordeal she went to a friend’s house and made a complaint.

In the Judgment C.J. accepted the analysis of the offence of rape which is as follows:-

(1)   the intention of the offender is to have sexual intercourse with a women;

(2)   the offence is if, but only if, the circumstances are that (a) the women does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.

Precisely the same analysis can be made of the offence of attempted rape:

(1) the intention of the offender is to have sexual intercourse with a women;

(3)   the offence is if, but only if, the circumstances are that (a) the women does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.

The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. A man does not recklessly have sexual intercourse, nor does he recklessly attempt it. Recklessness in rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse. The only ‘intent’ giving that word its natural and ordinary meaning, of the rapist is to have sexual intercourse. He commits the offence because of the circumstances in which he manifests that intent i.e. when the woman is not consenting and he either knows it or could not care about the absence of consent.

The Case of State of Maharashtra v. Mohd.Yakub:- [26] A jeep driven by the respondent and a truck was stopped at about midnight near a bridge. The respondents started removing the bundle from the truck. At this time customs officials acting on a clue reached the spot and accosted the respondents. At the same time, the sound of a mechanized sea-crafts engine was heard near the side of the creek. Two persons from the neighborhood were called and in their presence silver ingots were recovered from the vehicles. Respondent no-1 had a pistol, a knife and some currency notes. On the questioning it was found that the respondents were not the dealers in silver. The trial court convicted the accused u/s 135(1)(a) read with section 135(2) of the Customs Act for attempting to smuggle out of India silver ingots worth about Rs 8 lakhs in violation of Foreign Exchange Regulation Act, the Imports and Exports (control) Act and the Custom Act. But the Additional session judge acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had ‘attempted’ to export silver in contravention of the Law. The High Court upheld the acquittal. The Supreme Court however allowed the appeal and set aside the acquittal.

Two separate but concurring judgments of Justice Sarkaria and Justice Chinnappa Reddy call for a critical evaluation with a view to appreciating their import for the law of Attempt in India [27]

Justice Sarkaria Observed: - “what constitutes an ‘attempt’ is a mixed question of law and fact depending largely upon the circumstances of a particular case. ‘Attempt’ defies a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts is proceeded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertaines the idea or intention to commit an offence. In the second stage, he makes preparation to commit it. The third stage is reached when the culprit takes deliberate overt act or step to commit the offence. Such overt act or step in order to be ‘criminal’ need not be penultimate act towards the commission of the offence. It is sufficient if such act or act were deliberately done, and manifest a clear intention to commit aimed, being reasonable proximate to the consummation of the offence.”

Justice Chinnapa Reddy undertook the definitional exercise even more rigorously. He explored the English decisions and finally concluded: - “In order to constitute an ‘attempt’ first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of offence, and third, such act must reveal with reasonable certainty, in conjunction with the other facts and circumstances and not necessarily in isolation, an intention, as distinguished from mere desire or object, to commit that particular offence”

On the question of definition of attempt the two decisions can be summed up as follows:[28]

1. Both the opinions support the traditional view relating to the stages in the commission of a crime and would place attempt stage in a sequence after the preparation stage.
2. Both the opinions agree that for constituting an attempt the requirement of mens rea i.e. the state of mind to commit the offence attempted, and the actus reus, i.e. an overt act, must be established.
3. Both the opinions agree that it must be established through independent evidence that the accused had the intention of committing the offence attempted.
4. However, on the question of precise type of actus reus required the two opinions seems to be taking different line. Justice Sarkaria specifically prefers the actus to be “reasonably” proximate to the consummation of the offence, but no such condition appears to emerge from Justice Chinnapa Reddy’s opinion. 

Conclusion:-  The reasoning behind the imposition of responsibility for criminal attempts has been stated to be to control dangerous conduct or person. What are the values which criminalizes the attempt? Answer to this question lies in the values which impose the criminal liability to commission of crime. For the commission of crime by person involves four stages viz, formation of the intention or mental element, preparation for commission of crime, acting on the basis of preparation, commission of the act resulting in an event proscribed by law. To criminalize attempts these four stages are involved but the last stage fails to complete. As stated by Kenny, criminal liability will not begin until the offender has done some act which not only manifests his mens rea but also goes some way towards carrying out it. In this regard, to commit offence of attempt mens rea, preparation and actus reus are necessary values but the actus reus is failed to be completed. This values generally criminalize the attempt and impose criminal liability on the person who commits the offence of Attempt.