Attempt (Sec 511 of IPC/Sec 62 of BNS)

Introduction

‘Attempt’ in general meaning is said to be an effort to achieve

tasks or activities. “An ‘Attempt to crime’ is when someone tries
to commit a crime but fails. ‘Law of Attempt’ under IPC prevents
offenders from attempting the offence again and helps keep
society safer.

‘Attempt’ is not defined in the Indian Penal Code. Section 511 of

the IPC only dealt with punishment for attempting to commit
offences.

‘A’ makes an attempt to steal some valuable things by breaking

a box and finds after opening the box, that there is nothing in
it. In this case, there is no crime occurred but it is punishable
under the Indian Penal Code because it is considered as an
“Attempt to Commit a crime”.

What is an Attempt to Commit a Crime?

Attempt to commit a crime occurs when a person makes a

proper mindset to do a criminal act and put a step forward for
fulfilling by arranging the means and methods necessary for the
commission of that crime but fail to do so.

A person with a proper mindset to commit a crime and also put

a step forward to commit that crime by arranging the means and
methods necessary for the commission but fails. Then we will
say that the person has attempted to commit a crime.

Why is an Attempt to Commit a Crime Punishable?

An attempt to commit a crime is a crime under the Indian Penal

Code. Every attempt, falls short of success must create a threat
in the mind of people which by itself is an injury and the moral
guilt of the offender is the same as if he had succeeded.
According to Section 511 of the IPC, only half of the punishment
is awarded because the injury is not as great as if that crime had
been committed.

An Attempt to Commit a Crime – An Inchoate Crime?

The term “inchoate” means “undeveloped”, “just begun”,

“incipient”, “in an initial or early stage”.

Inchoate offences cannot be understood in isolation and must

be read in conjunction with substantive offences. A
characteristic feature of these offences is that they are
committed even if the substantive offence does not reach a
stage of completion and no consequence ensues.

Thus, if the offence of crime has not been completed, even then
a person can be guilty of an attempt to commit a crime.

Actus reus and mens rea are essentials for a commission of any
crime.
Actus reus: Action or conduct which is an element of a crime,

Mens rea: The intention or knowledge of wrongdoing that

constitutes part of a crime.

Here, actus reus to commit a crime is not completed but mens

rea to commit the same crime is completed in an attempt and
therefore attempt itself would be said to have been committed
at this stage.

However, some scholars disagree with the usage of the term

“inchoate” because according to them, offences like a
conspiracy, attempt, and incitement are complete in themselves
although they form steps in the process of reaching an end, that
is Actual commission.

The Indian Penal Code 1860 and the Law of Attempt

The word attempt is not defined in IPC but there are some cases
in which the Supreme Court has tried to clear the concept of
attempt.

In the case of Koppula Venkata Rao vs State of A.P. the Supreme

Court has said that ‘Attempt’ should be taken as ordinary
meaning. The ordinary meaning of ‘Attempt’ to commit an
offence is an act or series of acts which leads inevitably to the
commission of the offence unless something which the doer of
the act neither foresaw not intended happens to prevent this.
Section 511 of IPC deals with “Punishment for attempting to
commit offences punishable with imprisonment for life or other
imprisonments”.

This section deals with the one-half of imprisonment for life or

one-half of fine as provided for offences or both.

Stages in the Commission of an Offence

There are four stages in the commission of an offence:

 intention to commit an offence;

 preparation to commit an offence;

 attempt to commit an offence; and

 the actual commission of the offence.

1. Intention: Everyone cannot prove malice by looking at the

brains of criminals. It is a psychological factor. It is impossible
to know exactly the intention of a person. However, the acts of
people and the context in which they act are often used to
clearly indicate the intention of a person. So, it is not
punishable.
But there are some exceptions in which ‘Intention to commit a
crime’ are punishable. These exceptions are:

i) Waging war against the Government (Section 121,122,123)

ii) Sedition (Section 124 A)

2. Preparation: Preparation means ‘to arrange the means or
measure for intending criminal act’. It is difficult to prove that
the preparation was made for committing an offence.

For example: ‘A’ buys a knife for the purpose of killing ‘B’ but
after some time, his intention to kill ‘B’ has changed and he used
that knife in the kitchen. In this way, we can not be held liable
for arranging means and measure for murder. So, mere
preparation is not punishable under IPC.

But there are some exceptions in which mere preparation is

punishable in IPC:

i) Preparation to commit Dacoity (Section 399);

ii) Preparation for counterfeiting coins and government stamps;

iii) Waging war (Section 122).

3. Attempt: Attempts to commit a crime are basically a positive

step toward committing the contemplated crime after
preparations have been made. The trail cannot be cancelled.
Once an attempt is made, the perpetrator cannot change his/her
mind and return to its original state without committing a
crime.

4. Commission of Crime: The actual commission of the offence

leads to criminal liability. If the accused succeeds in his
attempt, the offence is accomplished. If he missed then it is
considered as an attempt.
“If ‘A’ shoots ‘B’ by pistol to kill him. If ‘B’ dies, then ‘A’ is liable
for murder. If ‘B’ is injured, then ‘A’ is liable for Attempt to
murder”.

“If ‘A’ makes an attempt to pick the pocket of ‘Z’ by inserting

his hand into Z’s pocket. ‘A’ fails in the attempt in reason of Z’s
having nothing in his pocket. But ‘A’ is guilty under Section 511
of the ‘Indian Penal Code’ because he has attempted to commit
the offence by putting a positive step towards the commission
of the offence.

An Attempt to Commit all Offence: Approach of the Indian

Penal Code 1860

There are four different ways to deal with an offence in the

Indian penal code:

 In some cases, the commission of offences and attempt

to commit that offence have been dealt with the same
section and the same punishment is prescribed for
both.Such provisions are contained in Sections
121, 124, 124-A, 125, 130, 131, 152, 153-
A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251
, 385, 387, 389, 391, 394, 395, 397, 459 and 460.

 Attempt to commit offence and commission of the same

offence, both have separate punishment in Indian penal
 code e.g. Section 302 dealt with punishment of murder
and Section 307 dealt with an attempt to murder.

 Section 309 dealt with punishment of attempt to commit

suicide.

 There are some cases where no specific provisions are

made regarding an attempt. Section 511 of the IPC deals
with such type of cases, which provided that accused
shall be punished with ½ of the longest term of
imprisonment mentioned for the offence or with fine
mentioned for offence or both.

Attempt

Stages in the Commission of an Offence

and Essential Elements

An attempt is defined in the case of Aman Kumar v. State of

Haryana as follows:

 Attempt consist in it the intent to commit the crime.

 If any person failed to achieve that intention.

Abhayanand Mishra v state of Bihar

In this case, the Supreme Court has described essential elements

of ‘Attempt’ as follows:

i) Accused has an intention or means rea to commit the intended

offence.
ii) He has taken a step forward (that is an act or step which was
more than preparatory to the commission of the intended
offence towards the commission of the contemplated offence).

iii) He failed to commit that intended offence by any reason.

When does Preparation end and Attempt Begin?

In Aman Kumar v State of Haryana, the Supreme Court held that

the word ‘Attempt’ is to be used in its ordinary meaning. There
is a difference between intention to commit offence and
preparation. Attempt begins and preparation ends. It means
when any step is taken towards committing that offence is
considered as ends of preparation and begins of attempt.

Tests for Determining Whether an Act Amounts to a Mere

Preparation or an Attempt to Commit an Offence

At what stage an act or series of acts is done toward the

commission of act intended would be an attempt to commit an
offence. Some principles have been evolved to solve that issue:

(a) The Proximity Rule: Proximity in Relation to Time and

Action or to Intention?

The Proximity test examined how much the defendant close to

completing that offence. Measured difference is the distance
between preparation for the offence and successfully
completion of that offence. In the case of Commonwealth v.
Hamel, it was held that the proximity rule amount left to be
done, not what has already been done, that is analyzed.

(b) The Doctrine of Locus Poenitentiae

It deals with those cases in which an individual made

preparation to commit the crime but changes his mind at the
end, thereby pulling out at the last instant. Such intentional
withdrawal prior to the commission or attempt to commit the
act will be termed as mere preparation for the commission of
the crime and no legal liability will be imposed.

(c) The Equivocality Test

‘Equivocality Test’ is used to differentiate

between preparation and attempt in a criminal case. When a
person’s conduct, in itself, shows that the person actually
intends to carry out a crime without reasonable doubt, then the
conduct is a criminal attempt to commit that crime.

An act is proximate if it indicates beyond reasonable doubts

what is the end towards which is directed. The Act to commit a
specific crime is constituted when an accused person does an
act which is a step towards the commission of that crime and
doing of such an act cannot reasonably be regarded as having
another purpose than the commission of that specific crime.

(d) Attempting an Impossible Act

If a person attempts to commit a crime which is impossible,

then also it will be punishable under the Indian Penal Code.
If a person attempts to kill someone by empty gun, or steal
something from an empty pocket, or steal jewels from empty
jewel box. Then it is considered as an impossible attempt of
committing that crime but here intention to commit the crime
is present and also a step is taken towards completion of that
crime. Thus it is considered as ‘attempt to crime’ under Section
511 of the IPC.

Landmark Judgment

Abhayananda Mishra vs. State of Bihar

Introduction
The most infamous and intractable issues have occurred in the
field of attempts across the spectrum of inchoate crime
covering the principles of attempt, conspiracy, and provocation
or accusation. A crime is often viewed as a socially unacceptable
act that shakes the public’s conscience. In criminal law, there
are three steps of committing a crime: intention, plan, and
attempt, which are both connected. In the case of Abhayanand
Mishra vs. The State of Bihar, the court distinguishes between
“preparation” and “attempt” to commit an offence and goes into
great detail about the commission of the massive fraud. In the
above case, Abhayanand Mishra was the petitioner and The State
of Bihar was the respondent. The pleaders for the petitioner are
H. J. Umrigar, P. Rana and M. K. Ramamurai and H. R. Khanna
and T. M. Sen, for the respondent. The judgment was given by
the Bench of two Justice Raghubar Dayal and k. Subbarao. The
author has taken a course of doctrinal research methodology for
this case commentary to pave the way for a comparative study
among legal proceedings related to the given case.

Facts of the case

1. The petitioner wanted Patna University to give

permission to sit as a private candidate for the 1954 M.
A. exam in English. Informing him that he was a former
student who received his B.A. in 1951 and that he had
been employed as a teacher in a particular school.

2. He attached those authentications dispatched to the

Headmaster of a School and the Inspector of Schools
mentioned in his application.

3. The University specialists accepted the litigant’s official

statements, granted permission, and followed with him,
demanding a charge reduction and two duplicates of his
photo.

4. It was outfitted by the petitioner, and on April 9, 1954, a

suitable confirmation card for him was sent to the
School’s Headmaster.

5. The university received information that the appealing

party is not an alumnus or a teacher. Requests were
made, and it was discovered that the application’s
qualifications were fraudulent and fictitious, that the
appealing party was not an alumnus or a teacher, and
 that he had been prohibited from taking any university
test for a period of time due to his submission of
degenerate practice at a university examination.

6. As a result, the problem was reported to the cops, who

investigated and took disciplinary action against the
petitioner. The petitioner was found not guilty of
fabricating such declarations but was convicted for
attempting to steal when he deceived the university and
persuaded the specialists to issue the affirmation card,
which would have been sent to the litigant if the bribery
had not been detected.

Issues raised

 The first is that the facts discovered did not add up to

the appealing party attempting to cheat/swindle the
university-based solely on his development of fraud
arrangements.

 Second, regardless of whether the appealing party

obtained the confirmation card and appeared at the M.
A. Exam, no charge of bribery under Section 420 of the
Indian Penal Code will have been filed so the university
would not have suffered any harm to its tarnished image.
The chances of the university falling into financial ruin
are very low.

 The facts presented do not go beyond the stage of

recovery for the commission of the offence of
 “cheating,” nor do they create the offence of “attempting
to cheat”.

Judgment

In this case, the appellant meant to mislead the university to

obtain the necessary permission and approval stamp, so he not
only submitted an application for authorisation to sit at the
university assessment, but he then tailed it off, after receiving
the necessary authorisation, by dispatching the necessary
charges and submitting duplicates of his photo, which the
university accepted and issued his admit card.

In this way, it’s hard to argue that the litigant’s actions didn’t
add up to his attempting to execute the crime and that he hadn’t
progressed beyond the stage of negotiation. When he had
arranged the document with the intention of being admitted to
the university, the preparation was complete. He penetrated the
realm of crime trying to commit cheating, the moment he
dispatched it. He was effective in duping the university into
issuing the concealed passport. He simply failed to obtain it and
sit for the examination when something beyond his influence
happened, including the fact that the University was informed
of his status as neither an alumni nor a teacher.

Abhayanand was charged with attempting to defraud, which is

punishable under Sections 420 and 511 of the Indian Penal
Code (45 of 1850). The judges decided that Abhayanand had
committed cheating and that it was not simply a prelude to
cheating because he had done whatever he could to defraud the
University on his own. As a result, he had moved from training
to attempt. He was found guilty of attempting to defraud the
court and the appeal was rejected.

Case analysis

On my point of view-A an individual intends to commit an

offence punishable by this Code when: (a) he performs any act
towards its commission with the reason or knowledge required
for doing so; (b) the act is directly associated with, and
proximate to, the commission of the offence; and (c) the act fails
in its purpose because of evidence not known to him (legal
impossibility). The court noted Section 511 and attempted
under the Indian Penal Code differently, citing the cases
of Queen vs. Paterson, Regina vs. Padala Venkatasami, and Reg.
vs. Chessman.

Petitioner’s arguments

The litigant argued that the prosecution was unfeasible based

on the evidence contained that:

(1) the admit card had no monetary value and hence was not
property under Section 415; and

(2) Purely on the basis, his methods did not go beyond laying
the groundwork for the commission of the crime of deceit and
did not, in this way, make out the offence of attempting to
mislead or cheat.
Respondent’s argument

The litigant defrauded the university by-

1. leading the university in the wrong way;

2. inducing the university to transfer some property to him

in a fraudulent or unscrupulous manner; or

3. had purposefully induced the university to allow him to

sit for the M.A. Assessment, which it would not have
done if it had not been duped, and the university’s
granting of such permission caused or was likely to
cause harm or loss to the university’s reputation. There
is no doubt that the litigant misled the university by
making false statements about his status as an alumnus
and a teacher in the applications he sent to the
university, and that his intention was to get the
university to agree and send him the confirmation card
that would have enabled him to sit for the M.A.
examination.

Conclusion

In the above case, the attempts, having begun and an illegal

crime has rendered it ineffective with the commission of the
attempted act, do not appear in criminal attempts as per the
author’s opinion, unless the person committing the crime does
or can apologise before the attempt is done. Section 511 uses
the word “attempt” in a very broad sense; one cannot ignore that
such an attempt might be made up of a series of actions, each
of which is capable of resulting in the punishment, even though
the act doesn’t have the terms related to attempt. It doesn’t
really say that the key action culpable under the field is the last
act that will shape the last piece of an effort in the larger sense.
It expressly states that anybody who engages in such an
attempt, simply using the term in its broadest sense, will be
held liable for any act/demonstration, and so on. The
expression “every act/demonstration” ignores the notion that
the last act/demonstration is strictly prosecuted if it falls short
of genuine commission.