Attempt presentation 2080

Chapter :- Attempt

Group-5

Aftab Sameer
Brikshya Sharma
Sneha Sigdel
Karuna karna

In general What is Attempt?

In Nepalese criminal law, an attempt (प्रयास) is defined as an act done with the intention to

commit a specific offense, which is not completed due to circumstances beyond the

control of the offender.

To be guilty of an attempt, a person must have taken a substantial step towards committing
the crime, which demonstrates that they intended to carry out the crime, but for some reason
were unable to complete it.

The act must be more than mere preparation or planning, and must come close to
completing the offense, but still fall short.

An attempted crime is considered a separate offense and is punishable under criminal law,
but the punishment is typically less severe than that for the completed offense.

In order to hold any person liable on the charge of attempt, his/her intention to commit the

crime must be proved. Negligence or recklessness are not relevant on the charge of attempt.

Examples

Here are some examples to help you understand the concept of attempt in criminal law:
If someone breaks into a house but is caught before they are able to steal anything, they can
still be charged with attempted burglary.

If someone shoots at another person with the intent to kill them, but misses and does not
cause any harm, they can still be charged with attempted murder.

If someone is caught with a large quantity of drugs and evidence shows that they intended to
sell them, but they are caught before making any sales, they can still be charged with
attempted drug dealing.

If someone attempts to use someone else's credit card to make a purchase but is caught
before the transaction is completed, they can still be charged with attempted fraud.

If someone threatens a bank teller with a weapon but is unable to steal any money due to
the teller's actions or the police's intervention, they can still be charged with attempted
robbery.

Essentials of Attempt are:

1. Intent: The offender must have the intent to commit a specific crime.

2. Actus Reus: The offender must have taken a substantial step towards committing the
offense, which goes beyond mere preparation or planning.

3. Proximity: The offender's conduct must be in close proximity to the completed offense.

4. Failure to complete the crime: The offender must have failed to complete the crime due to
circumstances beyond their control.

5. Punishment: Attempted crimes are considered separate criminal offenses and are
punishable under criminal law, but the punishment is typically less severe than that for the
completed offense.

It is difficult to draw a boundary line between preparation and attempt. Therefore, different

theories have been evolved to mark a line between preparation and attempt.

The following are some of the main theories related to attempted crimes in criminal law:
Proximity theory:

The proximity theory of attempt in criminal law is based on the idea that an individual can be
held criminally liable for attempting to commit a crime even if they were not able to complete
the crime. This theory takes into consideration the proximity between the individual's actions
and the intended crime.

For example, let's say that Aftab and Prabhakar plan to rob a convenience store. They
purchase masks, gloves, and a gun, and they drive to the store. However, when they arrive,
they realize that there is a police car parked outside. Aftab and Prabhakar decide not to go
through with the robbery and drive away.

Even though they did not actually commit the robbery, they can still be charged with
attempted robbery under the proximity theory. This is because their actions were in close
proximity to the intended crime, and they took a substantial step towards completing it by
purchasing the necessary equipment and driving to the store.

In this example, Aftab and Prabhakar's actions demonstrate their intention to commit the
crime of robbery, and they took significant steps towards carrying out that intention.
Therefore, they can be held criminally liable for attempted robbery, even though they did not
actually complete the crime.

Substantial Step Theory:

The Substantial Step Theory of attempt in criminal law states that an individual has
committed an attempt when they take a substantial step towards the commission of a crime,
but fall short of completing it. Let me give you an example using the names Aftab and
Prabhakar.

Aftab and Prabhakar plan to rob a convenience store. They decide that Aftab will wait
outside in the car while Prabhakar goes in with a gun to rob the store. Before Prabhakar
enters the store, the police arrive and arrest both Aftab and Prabhakar. In this scenario,
Aftab and Prabhakar have not completed the crime of robbery, but they have taken a
substantial step towards committing the crime. Aftab waited outside in the car as a lookout,
while Prabhakar had a gun and was about to enter the store to commit the robbery.
Therefore, they both can be charged with attempted robbery under the Substantial Step
Theory of attempt in criminal law.

Locus Penitentiae Theory

The "locus penitentiae" theory of attempt in criminal law is a legal defense that argues that
the defendant had a change of heart before completing the criminal act and made a genuine
effort to abandon the attempt.
Under this theory, if a defendant abandons their attempt to commit a crime before they have
completed it, and does so voluntarily and with the intent to abandon the attempt, they may
be able to use the locus penitentiae defense to avoid being charged with attempt.

According to The Locus Penitentiae Theory, a person who begins to commit a crime but then
changes their mind and decides not to go through with it can use their change of heart as a
defense in court.

For example, let's say that Aftab and Prabhakar plan to rob a convenience store. They both
enter the store with masks on and guns in hand, but as they approach the cashier, Aftab
suddenly has a change of heart and decides not to go through with the robbery. He drops
his gun, takes off his mask, and tells the cashier that they are not going to rob the store after
all. Prabhakar, however, continues with the robbery and takes money from the cash register.

Later, Aftab is arrested and charged with attempted robbery. However, he can use The
Locus Penitentiae Theory as a defense, arguing that he abandoned the crime before it was
completed and therefore should not be held fully responsible for his actions. If the court
accepts this defense, Aftab may be charged with a lesser offense, such as attempted theft or
disorderly conduct, rather than the more serious offense of attempted robbery.

On the other hand, Prabhakar cannot use The Locus Penitentiae Theory as a defense, since
he did not abandon the crime before it was completed. He may be charged with the full
offense of robbery and face more severe penalties than Aftab.

Overall, The Locus Penitentiae Theory recognizes that people can change their minds and
make different choices, even in the middle of a criminal act. This theory can help ensure that
individuals are not punished excessively for crimes they did not fully commit, while still
holding them accountable for their actions.

The impossibility of accomplishment theory:

The "impossibility of accomplishment" theory of attempt in criminal law suggests that an
individual cannot be guilty of an attempt to commit a crime if the crime is objectively
impossible to accomplish.

Under this theory, if an individual attempts to commit a crime but it is impossible to complete
the crime, they cannot be guilty of attempt. The impossibility can be either factual, meaning
that the circumstances make it impossible to complete the crime, or legal, meaning that the
law makes it impossible to commit the crime.
Let's consider a hypothetical scenario where Aftab and Prabhakar plan to rob a bank. They
conduct thorough research and find out that the bank has an advanced security system,
making it nearly impossible to break in.

Despite this knowledge, Aftab and Prabhakar decide to go ahead with their plan. However,
they are apprehended by the police before they even reach the bank. The police charge
them with attempted robbery.

Under the Impossibility of Accomplishment Theory of Attempt in Criminal Law, Aftab and
Prabhakar cannot be convicted of attempted robbery because their plan was impossible to
accomplish. Even though they had the intention to commit the crime, it was legally
impossible for them to do so because of the advanced security system.

Therefore, in this scenario, Aftab and Prabhakar would not be found guilty of attempted
robbery, even though they had the intention to commit the crime.

Last Stage Theory:

Under this theory, an individual's actions constitute an attempt when they have taken the
final step towards committing the crime, but for some intervening circumstance, they did not
complete it. This means that the individual must have taken the last act necessary to
complete the crime, and the only thing preventing them from committing the crime was an
external factor or circumstance beyond their control.

For example, if a person attempts to rob a bank and they have entered the bank,
approached the teller with a weapon, and demanded money, but before they can take the
money, they are apprehended by the police, they may be charged with attempted robbery
under the last step theory.

It's important to note that not all jurisdictions recognize the last step theory of attempt, and
even in jurisdictions where it is recognized, it may only apply to specific crimes or
circumstances. Therefore, it's important to consult with a qualified legal professional if you
have questions about attempted crimes.

Provisions related to attempts in Nepal according to The National Penal (Code) Act, 2017
The Nepal Penal Code 2017 contains provisions related to attempt in Chapter 3 under the
title "Criminal Conspiracy, Attempt, Abetment and Accomplice" .

The provisions related to attempt in Nepal are as follows:

Section 34. Prohibition of attempt to commit offence:

(1) No person shall make attempt to commit an offence.

(3) Except as otherwise provided elsewhere in this Act, a person who attempts, or causes
attempt, to commit an offence shall be punished with one half of the punishment specified for
such offence.

Section 57. Prohibition of assault on President:

(1) No person shall assassinate or attempt to assassinate the President of Nepal.

Punishment: Lifetime imprisonment

Section 183. Prohibition of committing attempt to murder:

(1) No person shall, with the intention of committing murder of anyone, commit an
attempt to murder.
Punishment: shall be liable to a sentence of
imprisonment for a term not exceeding ten years and a fine not exceeding one hundred
thousand rupees.

Section 188 (5) If an act done by a person in making attempt to cause the death of a
pregnant woman does not cause the death of the woman but causes the termination of her
pregnancy of twenty-five weeks or more, the offender shall be liable to a sentence of
imprisonment for a term not exceeding five years, in addition to the sentence to be imposed
under this Act or other law.

Section 245. Prohibition of movement carrying tools to be used in commission of theft:

(1) No person shall, with the intention of committing theft or robbery, move around or enter
into or attempt to enter into the house of any person carrying instruments such as any tool,
object, arms, duplicate key, gloves and ladder that may be used in the
commission of theft or robbery.

Punishment: shall be liable to a sentence of imprisonment for a term not exceeding one year
or a fine not exceeding ten thousand rupees or both the sentences.

Human Trafficking and Transportation (Control) Act, 2064: Section 15 (h)

 - The person engaged in provocation, conspiracy and attempt of an offence of human
trafficking or transportation or an abettor of that offence shall get half out of full
punishment envisioned for that offence. (For example: 20 years of imprisonment and
200 thousand rupees of fine for selling and buying of a human being/half
punishment)

These provisions reflect the principle of criminal law that a person may be held responsible
for an attempted crime, even if the crime was not completed. The severity of the punishment
for an attempted crime is less than that for the completed offense, but it still serves as a
deterrent to potential criminals.

Nepalese case law related to attempt:

There have been several cases related to attempt that have been decided by the Nepalese
courts. Here are a few examples:

Jiwan BK Vs Government of nepal NKP 2078

DN 10739

accused was held responsible for attempt to murder after attacking a girl with acid. Verdict
was made that there were clear signs of intention of murder in the accused actions of
preparation like buying a horlicks bottle where the mouth of the bottle was wide, waking up
early for the execution of plan etc.
The accused was punished for 10 years imprisonment.

Ishwori Raj bohaju Vs hmg NKP 2041

DN 2191

Accused was charged with attempt to murder for attempting to kill his own brother who
suffered severe injuries in the due process. He was held for fifteen years of imprisonment.

Raju Lama vs. Government of Nepal,

The Supreme Court of Nepal held that the accused could not be convicted of attempt to
murder, as the evidence did not prove that he had the intention to kill the victim.

HMG vs bakhtu tamangni NKP 2045 P. 1163

Accused was arrested after detaining a lady of hos own village into cowshed with the
intention of trafficking her. He got prosecuted for attempt for human trafficking.

Ramesh Adhikari vs. Government of Nepal,

the Supreme Court of Nepal held that the accused could be convicted of attempt to rape,
even though he did not complete the act of rape, as he had taken substantial steps towards
committing the offence.

Ganga Bahadur Bista vs. Government of Nepal,

the Supreme Court of Nepal held that the accused could be convicted of attempt to commit
theft, even though he did not succeed in stealing the property, as he had taken substantial
steps towards committing the offence.

Overall, these cases show that in Nepal, an accused can be convicted of attempt if they take
substantial steps towards committing an offence, even if they do not complete the offence.
The courts will consider the intention of the accused and the extent of their actions in
determining whether or not they can be convicted of attempt.

International case law related to attempt.

People v. Lee Kong (1896):

This case established the concept of "proximity" in attempt crimes, meaning that the
defendant must have taken a direct step towards the commission of the crime.

Commonwealth v. Peaslee (2002): This case determined that the defendant must have the
specific intent to commit the crime in order to be guilty of an attempt.

State v. Rizzo (2010):

In this case, the court clarified that abandonment of an attempt can be a defense, but the
defendant must show that they abandoned their attempt voluntarily and that the
abandonment was a complete and voluntary renunciation of their criminal purpose.

These cases demonstrate the various factors that are considered when determining whether
a defendant is guilty of an attempt crime, such as the defendant's intent, the substantial
steps taken towards the crime, and whether the intended victim was real or fictitious."