1

ATTEMPT TO COMMIT OFFENCE WITH SPECIAL REFERENCE TO S. 511, IPC

(1) Introduction
(2) Object
(3) Meaning of Attempt,
(4) Proposed definition1 [Law Commission of India, 42nd Report, (1971) (pp. 138 & 139).
(5) Differences between Attempt & Preparation
(6) Stages of commission of offences
(i). Intention to commit offence
(ii). Preparation
(iii). Attempt
(iv). Actual commission of offence
(7) Analysis of Section 511.
(8) Principle related to attempt
(i). Proximity Rule [Cogitationis Poenam Nemo Patitus].
 Abhayanand Mishra v. State of Bihar
 Om Prakash v. State of Punjab
 Sudhir Kumar Mukherjee v. State of West Bengal
 State of Maharashtra v. Mohammad Yakub
(ii). Doctrine of Locus Paenitentiae (Time for Repentance)
 Queen-Empress v. Ramakka
 Malkiat Singh v. State of Punjab
(iii). Impossible Test
 Section 511, Illustration (a)
 Section 511, Illustration (b)
 Asgarali Pradhania v. Emperor.
 Munah Binti Ali v. Public Prosecutor
 R. v. Shivpuri
(iv). Social Danger Test
(v). Equivocality Test
(vi). Job Test.
(9) Analysis of Section 309 and its leading Cases
(10) Conclusion.
(11) Suggestions.

(1) INTRODUCTION
Attempt is called ‘Inchoate Offence/Crime’. Inchoate Offence means incomplete offence and
person is convicted for such incomplete offence. Abetment and conspiracy are also example of
inchoate crime.
Attempt under Indian Penal Code can be divided into four category on the basis of its
provisions. There are few sections which contain attempt and actual commission of offences

1
Available at: https://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on April 10, 2021).
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in same section. There are few offences for which commission of offence and attempt are under
different sections. Attempt to suicide comes under third category which is punishable under
Section 309, but actual commission of crime is not punishable. There are certain offences for
which there are provisions for commission of offence but there is no provision for attempt to
offences. Section 511 deals residuary offences
There are several principles have been developed by Courts to decide differences between
attempt and preparation. Reason of development of these principles is that preparations for
commission of offences, as a rule, is not punishable. Attempt is punishable.
(2) OBJECTS
Object for punishing of attempt to commission of offence is based on ‘Prevention is better than
cure’. Person must be punished at the initial stage if his activities denote that he was about to
commit crime. Attempt is sufficient to create fear among persons and society. Purpose of state
is to provide free and healthy environment for the growth of individuals and nation.
(3) MEANING OF ATTEMPT
Sir James Stephen
“An act done with intent to commit that crime, and forming part of a series of acts which would
constitute its actual commission if it were not interrupted. The point at which such a series of
acts begins cannot be defined, but depends upon the circumstances of each particular case.”
Justice Raghubar Dayal2 said,
“The distinction between preparation and attempt may be clear in some cases, but, in most of
the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is
whether the last act, if uninterrupted and successful, would constitute a crime.

(4) PROPOSED DEFINITION3

[Law Commission of India, 42nd Report, (1971) (pp. 138 & 139)].

Law Commission of India in its 42nd report suggested to repeal Section 511 and adding New
Chapter VB containing Sections 120C & 120D to collect all inchoate offences. He also
suggested to redefine Sections 307 and Section 308.
In Section 120C defines attempt. Section 120D deals punishment for such attempt. In the
definition all important principles have been covered. This is following –
Section 120C – A person attempts to commit an offence punishable by this Code, when –
(a) He, with the intention or knowledge requisite for committing it does any act towards its
commission;
(b) The act so done is closely connected with, and proximate to, the commission of the
offence; and
(c) The act fails in its object because of the facts not known to him or because of
circumstances beyond his control.

2
Abhayanand Mishra v. State of Bihar (1961).
3
Available at: https://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on April 10, 2021).
 3

(5) DIFFERENCE BETWEEN PREPARATION AND ATTEMPT

As a rule in case of preparation person will not liable while in case of attempt person will be
liable. So to establish clarity between preparation and attempt following principles have been
accepted. It depends upon judge in which case he is going to apply which principle. These are
following principles –
(I) Proximity Rule
(II) Doctrine of Locus Paenitentiae
(III) Impossibility Test
(IV) Social Danger Test
(V) Equivocality Test
(6) STAGES OF CRIME
There are four stages of crime-
(1) Intention to commit crime (Not punishable) - Intention is mental status, which cannot
be traced, so mere intention is not punishable.
(2) Preparation to commit crime - (Not punishable except in few cases – Sections
122,126,223-235, 242, 243, 257, 259, 266 & 399) –
Generally preparation is also not punishable. But there are some exceptional cases when
at the stage of preparation, offence is punishable, namely,
 Preparation to wage war against the Government (Section 122)
 Any one commits damages to the property and destruction of property within
the territories of our country and the country which is with peace with our
government (Sec. 126)
 Preparation for counterfeiting of coins or Government Stamps (Sections 233 to
235, 255 and 257).
 Possessing counterfeit coins, false weights or measurements and forged
documents (Section 242, 243, 259, 266 and 474)
 Making preparation to commit dacoity (Section 399)
(3) Attempt to commit crime – It is punishable in all cases.
(4) The actual commission of crime – It is punishable in all cases.

(7) ANALYSIS OF SECTION 511.

Section 511 (Residuary Section)

“Section 511- Punishment for attempting to commit offences punishable with imprisonment for
life or other imprisonment.-

 Whoever attempts to commit an offence punishable by this Code

 with imprisonment for life or
 imprisonment, or
 to cause such an offence to be committed, and
 in such attempt does any act towards the commission of the offence, shall,
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 where no express provision is made by this Code for the punishment of such attempt,
 be punished with imprisonment of any description provided for the offence, for a term
which may extend to
 one-half of the imprisonment for life or, as the case may be,
 one-half of the longest term of imprisonment provided for that offence, or
 with such fine as is provided for the offence, or
 with both.

Section
511

Offence Punishment

Illustrations
(a) Empty box Theft Impossible Theory
(b) Empty pocket Theft Impossible Theory

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so
opening the box, that there is no jewel in it. He has done an act towards the
commission of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails
in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this
section.”

Section 511 can be elaborated with the help of following points -

(1) Residuary Section (……where no express provision is made by this Code for the
punishment of such attempt….)
There are four types of provisions under IPC namely,
a. Same section for offence and attempt – Same sections which deal offence and
attempt within own sphere and provide same punishment. For example Sections
121, 124, 124A, 161 &196 etc.
b. Different sections- In second category those provisions come which discuss
separately for commission of offence (section 302) and attempt to commission
of offence (section 307). There are also different punishment for commission of
offence and attempt to commission of offence.
c. Only attempt is an offence while actual completion of act is not an offence.
For example section 309.
d. No specific provision for attempt – There are several offences for which there
is no specific provisions for attempt. For example theft (sections 378 – 382).
For such types offences section 511 has been provided.
Section 511 covers attempt for all types of offences for which there is no
specific provisions which deals attempt and not punishable by death sentence
or only fine.
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(2) Limited application (……with imprisonment for life or imprisonment……..)

a. This section will be applicable only offence is punishable either with
imprisonment for life or imprisonment.
b. If any offence is punishable only either with death sentence or fine, section 511
will not be applicable.
(3) Half Punishment
a. Section 57 Fractions of terms of punishment - In calculating fractions of
terms of punishment, imprisonment for life shall be reckoned as equivalent
to imprisonment for twenty years.
b. ….. one-half of the imprisonment for life (Half of 20 years – 10 years) or, as
the case may be, one-half of the longest term of imprisonment provided for that
offence (Section 376B – Minimum 2 years and maximum seven years –Half
of maximum punishment i.e. three & half years), or with such fine ( Full fine
, rather than half of fine) as is provided for the offence, or with both.
(4) Meaning of attempt
a. ……….. does any act towards the commission of the offence…..

(8) PRINCIPLE RELATED TO ATTEMPT

As a rule in case of preparation person will not liable while in case of attempt person will be
liable. So to establish clarity between preparation and attempt following principles have been
accepted. It depends upon judge in which case he is going to apply which principle. These are
following principles –
(I) Proximity Rule (II) Doctrine of Locus Paenitentiae (III) Impossibility Test (IV) Social
Danger Test (V) Equivocality Test

(I) Cogitationis Poenam Nemo Patitus (Proximity Rule)

No man can safely be punished for his guilty purpose, save so far as they have manifested
themselves in overt acts which themselves proclaim his guilt. Proximity must be not in relation
to time and action but to intention.
(1) Abhayanand Mishra v. State of Bihar (24 April, 1961 S.C. Justice Raghubar Dayal).
(2) Om Prakash v. State of Punjab (24 April, 1961 S.C. Justice Raghubar Dayal).
(3) Sudhir Kumar Mukherjee v. State of West Bengal, 1973 (Justice A. Alagiriswami).
(4) State of Maharashtra v. Mohammad Yakub (March 04, 1980, Justice R.S. Sarkaria]
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Abhayanand Mishra v. State of Bihar4

(Sections 420 r/w 511)
Date of Judgment: 24 April,1961.
Author of Judgment: Justice Raghubar Dayal

Facts –
 Abhayanand Mishra applied to the Patna University for permission to appear at the
1954 M. A. Examination in English as a private candidate, representing that he was a
graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a
certain school.
 In support of his application, he attached certain certificates purporting to be from the
Headmaster of the School, and the Inspector of Schools.
 The University authorities accepted the appellant’s statements and gave permission and
wrote to him asking for the remission of the fees and two copies of his photograph.
 The appellant furnished these and on April 9, 1954.
 Proper admission card for him was dispatched to the Headmaster of the School.
 Neither Teacher nor graduate - Information reached the University about the
appellant’s being not a graduate and being not a teacher.
 Inquiry - Inquiries were made and it was found that the certificates attached to the
application were forged, that the appellant was not a graduate and was not a teacher
 Consequences of Inquiry –
 He had been debarred from taking any University examination for a certain
number of years on account of his having committed corrupt practice at a
University examination.
 The matter was reported to the police who, on investigation, prosecuted the
appellant. He was arrested for committing offence under section 420 r/w section
511.

Supreme Court

Issues:
 Whether admit card amount to property under Section 415, IPC?
Answer – Yes.
 Whether acts done be Abhayanand Mishra only amount to preparation or he had crossed
stage of attempt?
Answer – He had crossed stage of preparation. His acts amount to attempt.
 Whether Abhayanand Mishra had caused offence of attempt to cheating?
Answer- Yes.

Arguments of Appellant in Supreme Court - The appellant contended that on the facts found
the conviction was unsustainable on the grounds

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24 April,1961 S.C. Justice Raghubar Dayal
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(1) that the admission card had no pecuniary value and was therefore not property under
Section 415, and
(2) that, in any case, the steps taken by him did not go beyond the stage of preparation for
the commission of the offence of cheating and did not therefore make out the offence
of attempting to cheat.

Observation of Supreme Court

Supreme Court observed following important points -

(1) Meaning of Attempt - Supreme Court said, “We may summarize our views about the
construction of s. 511, Indian Penal Code, thus:
A person commits the offence of ‘attempt to commit a particular offence’ when
(i) he intends to commit that particular offence; and
(ii) he, having made preparations and with the intention to commit the offence, does an act
towards its commission; 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.” penultimate
act means final act.
Intention Preparation Attempt

(2) Preparation by accused - The Court held that preparation was complete when the accused
prepared the application for submission to the university and that the moment, he had
dispatched

(3) Essential ingredient of section 415 and this case – There are following essential
ingredient of section 415 –

(i). Deception- There must be deception of any person. (A person deceives another when
he causes to believe what is false or misleading as to matter of fact, or leads into error).
(ii).Property - fraudulently or dishonestly induces (FDI) the person so deceived
a. to deliver any property to any person, or
b. to consent that any person shall retain any property,
(iii). Injury (To do or omit to do) –
a. intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and
b. which act or omission causes or is likely to cause damage or harm to that person
in body, mind, reputation or property.

Now we have to compare this case with ingredient of section 415 -

The appellant would therefore have cheated the University if he had

(i) deceived the University;

(ii) fraudulently or dishonestly induced the University
(iii)to deliver any property to him; or
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(iv) had intentionally induced the University to permit him to sit at the M.A. Examination
which it would not have done if it was not so deceived and
(v) the giving of such permission by the University caused or was likely to cause damage
or harm to the University in reputation.

Supreme Court said, “There is no doubt that the appellant, by making false statements about
his being a graduate and a teacher, in the applications he had submitted to the University, did
deceive the University and that his intention was to make the University give him permission
and deliver to him the admission card which would have enabled him to sit for the M.A.
Examination. This card is ‘Property’. The appellant would therefore have committed the
offence of ‘cheating’ if the admission card had not been withdrawn due to certain information
reaching the University.
(4) Conviction - He was convicted for 420 r/w 511.

Om Prakash v. State of Punjab5 (1961)

(Section 307: Attempt to cause death of married woman by starvation)

Facts - Bimla Devi was married to the appellant in October, 1951. Their relations got strained
by 1953 and she went to her brother’s place and stayed there for about a year, when she returned
to her husband’s place at the assurance of the appellant’s maternal uncle that she would not be
maltreated in future. She was, however, ill-treated and her health deteriorated due to alleged
maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was
not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as
alms are given to beggars. She was denied food for days together and used to be given gram
husk mixed in water after five or six days. She managed to go out of the house in April 1956,
but Romesh Chander and Suresh Chander, brothers of the appellant, caught hold of her and
forcibly dragged her inside the house where she was severely beaten. Thereafter, she was kept
locked inside a room.
On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband
away and, availing of the opportunity, went out of the house and managed to reach the Civil
Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings. The
appellant and his mother went to the hospital and tried their best to take her back to the house,
but were not allowed to do so by the lady Doctor. Social workers got interested in the matter
and informed the brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and,
after learning all facts, sent information to the Police Station by letter on June 16, 1956.
Arguments of Appellant - Contention for the appellant is that the ingredients of an offence
under section 307 are materially different from the ingredients of an offence under section 511,
IPC. The difference is that for an act to amount to the commission of the offence of attempting
to commit an offence, it need not be the last act and can be the first act towards the commission
of the offence, while for an offence under section 307, it is the last act which, if effective to
cause death, would constitute the offence of an attempt to commit murder. The contention

5
24 April,1961 S.C. Justice Raghubar Dayal
 9

really is that even if Bimla Devi had been deprived of food for a certain period, the act of so
depriving her does not come under section 307, as that act could not, by itself, have caused her
death, it being necessary for the period of starvation to continue for a longer period to cause
death.
The Court rejected this contention.
Relation between section 511 and 307 - The expression ‘whoever attempts to commit an
offence’ in section 511, can only mean ‘whoever intends to do a certain act with the intent or
knowledge necessary for the commission of that offence’. The same is meant by the expression
used in section 307 ‘whoever does an act with such intention or knowledge and under such
circumstances that if he, by that act, caused death, he would be guilty of murder’.
According to section 33, act denotes series of acts.

In Emperor v. Vasudeo Balwant Gogte - a person fired several shots at another. No injury was
in fact occasioned due to certain obstruction. The culprit was convicted of an offence under
section 307. Beaumont, C. J., said

“I think that what section 307 really means is that the accused must do an act with such a guilty
intention and knowledge and in such circumstances that but for some intervening fact the act
would have amounted to murder in the normal course of events”.

This is correct. In the present case, the intervening fact which thwarted the attempt of the
appellant to commit the murder of Bimla Devi was her happening to escape from the house
and succeeding in reaching the hospital and thereafter securing good medical treatment.

“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 in this section. A places the food
on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence
defined in this section.”
A’s last act, contemplated in this illustration, is not an act which must result in the murder of
Z. The food is to be taken by Z. It is to be served to him. It may not have been possible for A
to serve the food himself to Z, but the fact remains that A’s act in merely delivering the food
to the servant is fairly remote to the food being served and being taken by Z.
Penultimate act is not necessary to constitute offence under section 307.

Conviction under section 307 was upheld.

Sudhir Kumar Mukherjee v. State of West Bengal

24 September, 1973 S.C. Justice A. Alagiriswami

The accused person Sudhir Kumar Mukherjee, an employee of a firm had attempted, in
collusion with a limestone dealer, to show false delivery of limestone to his company by
forging the signature of his superior on the invoice after which it would be presented for
payment. At the time when he was caught, he had himself not signed the challan evidencing
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receipt of the goods. S.C. followed the ratio of Abhayananda case held that the fact that a
challan had been prepared and that the initial of the concerned clerk had been obtained by the
accused on the challan showed that definite steps had been taken by the accused to commit the
offence of cheating. He was liable for cheating under section 420 r/w section511.

State of Maharastra v. Mohammad Yakub

4March 1980 S.C., Justice R.S. Sarkaria

The prosecution alleged that on the night of the occurrence the respondents carried in a truck
and a jeep silver ingots some of which were concealed in a shawl, and some others hidden in
saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were unloaded
near the creek the sound of the engine of a mechanized sea-craft from the side of the creek was
heard by the Customs officials.
He was held liable.

(II) Doctrine of Locus Paenitentiae (Time for Repentance)

An opportunity to withdraw from a contract or obligation before it is completed or to decide
not to commit an intended crime.

Queen-Empress v. Ramakka
Date of Judgment: 11.10.1884.

(Section 309)
Madras High Court
In this case a woman on account of a quarrel with her father and brother rushed towards a well,
shouting that she would jump into it. The Court held that she could not be held guilty for
attempt to suicide as her act amounted only to a preparation to commit suicide. She must have
reached into the well and done a further act, such as trying to jump from the parapet wall of the
well, for her to be liable for conviction.
It was held that she had not gone past the Locus Paenitentiae allowed to her by the law, i.e.
there was every chance that she could have repented at the very last moment and not gone
ahead with her threats and therefore her acts were merely preparatory and not an attempt. She
was acquitted.

Malkiat Singh v. State of Punjab

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Date of Judgment: 8 November, 1968

Court: S.C.
Author of Judgment: Justice V. Ramaswami.
Remarks: Section 511 is not involved although concept of attempt was involved. Special Laws
are involved.
Statutory Provision
 Essential Commodities Act, 1955 section 3 and section 7.
 Punjab Paddy (Export Control) Order, 1959, para 3.
Facts -
In this case consignment of paddy from Punjab to Delhi was involved. Truck carrying paddy
stopped by police at Samalkha barrier post within Punjab which is about 14 miles from the
Punjab-Delhi Border.
On October 19, 1961 Sub Inspector Banarasi Lal of Food and Supplies Department was present
at Smalkha Barrier along with Head Constable Badan Singh and others. The appellant
Malkiat Singh then came driving truck no. P.N.U. 967. Babu Singh was the cleaner of that
truck. The truck carried 75 bags of paddy weighing about 140 maunds. As the export of paddy
was contrary to law, the Sub Inspector took into possession the truck as also the bags of paddy.
Provisions of Essential Commodities Act, 1955, section 3 and section 7 and Punjab Paddy
(Export Control) Order, 1959, para.3 were involved in this case.

Decision - Justice V. Ramaswami said, “The test for determining whether the act of the
appellants constituted an attempt or preparation 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.
Section 8 of the Essential Commodities Act states that “any person who attempts to contravene,
or abets a contravention of, any order made under Section 3 shall be deemed to have
contravened that order”. But there is no provision in the Act which makes a preparation to
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commit an offence punishable. It follows therefore that the appellants should not have been
convicted under Section 7 of the Essential Commodities Act.”

Conclusion
Malkiat Singh was acquitted.

(III) Impossibility Test

Impossible Test

Mind is guilty Act is innocent

In the impossible test

 guilty mind is punished
 even when the act itself is innocent.
The crucial aspect is the belief of the person and intention preceding his action to do a particular
act. Illustration (a) and (b) of section 511 is based on impossible test.
These illustrations are following –
(a) Empty box Theft Impossibility Test
(b) Empty pocket Theft Impossibility Test

(a) Opening an empty box - A makes an attempt to steal some jewels by breaking open a box,
and finds after so opening the box, that there is no jewel in it. He has done an act towards the
commission of theft, and therefore is guilty under this section.

(b) Thrusting hand into empty pocket -A makes an attempt to pick the pocket of Z by thrusting
his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his
pocket. A is guilty under this section.
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These illustrations clearly shows, it does not matter that it is after breaking open a box with the
intention of stealing jewels which he believes to be inside it or the person who picks another’s
pocket with the intention of picking whatever valuable he finds inside both persons find their
intentions incapable of fulfillment.
The crucial test was whether they had crossed the stage of preparation.

Asgarali Pradhania v. Emperor. 21 July, 1933

(He was not held liable for miscarriage)

(Sections312r/w 511)
The complainant was 20 years of age, and had been married but divorced by consent. She was
living in her father’s house, where she used to sleep in the cook shed. The appellant was a
neighbour who had lent money to her father, and was on good terms with him. He was a married
man with children. According to the complainant he promised to marry her. As a result sexual
intercourse took place and she became pregnant. She asked him to fulfil his promise, but he
demurred and suggested that she should take drugs to procure a miscarriage. One night he
brought her a bottle half full of a red liquid, and a paper packet containing a powder. After he
had gone she tasted the powder, but finding it salty and strong, spat it out. She did not try the
liquid. The following night the appellant came again and finding that she had not taken either
the powder or the liquid, he pressed her to take them, but she refused saying that she was afraid
for her own life, and that the powder irritated her tongue. Thereupon he asked her to open her
mouth, and approached her with the bottle, and took hold of her chin. But she snatched the
bottle from him and cried out loudly, and her father and some neighbours came, and the
appellant fled. The police were informed, and upon analysis, sulphate of copper was detected
in the powder, but the amount was not ascertained. No poison was detected in the liquid.

Medical evidence -According to the medical evidence, copper sulphate has no direct action on
the uterus, and is not harmful unless taken in sufficiently large quantities, when it may induce
abortion.

McNair, J. “On the facts stated in this case, and for the reasons already given, the appellant
cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an “act
done towards the commission of the offence” of causing a miscarriage. Neither the liquid nor
the powder being harmful, they could not have caused a miscarriage. The appellant’s failure
was not due to a factor independent of himself. Consequently, the conviction and sentence must
be set aside and the appellant acquitted.”
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He was not held liable for miscarriage.

Neighbouring to each other Divorcee Woman Married Person having children

Saxual relation between both She became preganant He bought and brought copper
in cook shed. He had made sulphate and red lequide. Test
promised to get marriage. was salty.
Neither the liquid nor the She denied consume these. He was not convicted for
powder being harmful, they He forcefully caught her attempt to causing miscarriage.
could not have caused a chin. She raised alarm. He It was merely preparation.
miscarriage. ran away.

Munah Binti Ali v. Public Prosecuter (1958)

Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one
Chee Yew Cheng to have miscarriage and in such attempt did insert an instrument into her
vagina.
Whether an accused is liable for an attempt to cause abortion, when the woman (complainant)
was not actually pregnant, as it came to be known later.
Accused was convicted under section 312 r/w section 511of the Malaysian Penal Code.

R. v. Shivpuri
Court: House of Lords
Date of Judgment: May 1986.
In this case there was matter of smuggling of prohibited drugs. Accused believed that he was
carrying prohibited drugs. When he was arrested he confessed. In due course the powdered
substance in the several packages was scientifically analysed and found not to be a controlled
drug but snuff or some similar harmless vegetable matter.
Whether an offence which is impossible to commit amounts to a conviction of an attempt.
House of Lords held that accused had committed offence. Principle laid down in this case is
that the accused is punished for his guilty mind although the act actually committed was
innocent.

Job Test is connected to impossibility.

A person on the job may be held guilty. A man trying to break steel safes with totally
inappropriate or inadequate instrument would still be guilty of attempting to steal, even though
it is probably impossible to actually achieve it.

SOCIAL DANGER TEST

A gives pills to a pregnant woman to procure abortion, but they have no effect because the drug
turns out to be innocuous. A would be guilty of an attempt to cause miscarriage since the act
would cause an alarm to society and would have social repercussions.
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Constitutional validity of section 3096

Section 309. Attempt to commit suicide - Whoever attempts to commit suicide and does any act
towards the commission of such offence, shall be punished with simple imprisonment for a term
which may extend to one year 4[or with fine, or with both.

With the help of following judgments constitutional validity of section 309 can be understood
properly –

Courts Years Name of Cases RIGHT TO DIE

HC 1987 Maruti Shri Pati Right to life includes right to die. Section 309 has
Dubal v. State of been declared unconstitutional
Maharashtra
HC 1988 Chenna agadeeswar Right to life does not include right to die. Section
and Anr. v. State of 309 is constitutional.
Andhra Pradesh
SC 1994 P.Rathinam v. UOI Right to life includes right to die. Section 309 has
been declared unconstitutional.
SC 1996 Gian Kaur v. State of Right to life does not include right to die. Section
Punjab 309 is constitutional.
EUTHANASIA
SC 2011 Aruna R.Shanbaugh J.Markandey Katju- Passive euthanasia was
v. UOI allowed and for this guidelines were laid down.
SC 09 Common Cause (A (1) Right to die with dignity is a fundamental right
March Regd. Society) v. under Article 21,
2018 Union of India and (2) Passive euthanasia is legally valid and
Another. (3) Living will is legally valid.
Meaning of Living Will- Living will is a written
document that allows a patient to give explicit
(express) instructions in advance about the medical
treatment to be administered when he or she is
terminally ill or no longer able to express informed
consent.

Gian Kaur v. State of Punjab (1996 SC)

The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court
under Section 306,IPC 1860 and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in
default, further R.I. for nine months, for abetting the commission of suicide by Kulwant Kaur.

6
Question 1(b): Critically analyze the Constitutional validity of section 309.
 16

On appeal to the High Court, the conviction of both has been maintained but the sentence of
Gian Kaur alone has been reduced to R.I. for three years. These appeals by special leave are
against their conviction and sentence under Section 306.
The conviction of the appellants has been assailed, inter alia, on the ground that Section 306 is
unconstitutional. The first argument advanced to challenge the constitutional validity
of Section 306 rests on the decision in P.Rathinam v. UOI ,(1994) SCC 394, by a Bench of two
learned Judges of this Court wherein Section 309 has been held to be unconstitutional as
violative of article 21 of' the Constitution. It is urged that right to die' being included in article
21 of the Constitution as held in P. Rathinam declaring sec.309 to be unconstitutional, any
person alletting the commission of suicide by another is merely assisting in the enforcement of
the fundamental right under article 21 and, therefore, section 306 penalising assisted suicide is
equally violative of Article 21.
Decision – Section 306 and section 309 both are constitutional and they are not violative.
P.Ratthinam Case was overruled by Constitutional Bench.

Reason of decision
Relation between Article 21 and section 309- (1)To give meaning and content to the word
‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which
makes it dignified may be read into it but not that which extinguishes it and is, therefore,
inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right
to die’, if any, is inherently inconsistent with the ‘right to life’ as is ‘death with life’.
(2) ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural
termination or extinction of life and, therefore, incompatible and inconsistent with the concept
of ‘right to life’.
 17

LLB-DU [2014] Question 8

Write notes on the following:

(b) Impossible attempts

Answer - Impossible attempts

In the impossible test guilty mind is punished even when the act itself is innocent. The crucial
aspect is the belief of the person and intention preceding his action to do a particular act.
Illustration (a) and (b) of section 511 is based on impossible test. These illustrations are
following -
(a) Opening an empty box - A makes an attempt to steal some jewels by breaking open a
box, and finds after so opening the box, that there is no jewel in it. He has done an act
towards the commission of theft, and therefore is guilty under this section.
(b) Thrusting hand into empty pocket -A makes an attempt to pick the pocket of Z by
thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having
nothing in his pocket. A is guilty under this section.
These illustrations clearly shows, it does not matter that it is after breaking open a box
with the intention of stealing jewels which he believes to be inside it or the person who
picks another’s pocket with the intention of picking whatever valuable he finds inside
both persons find their intentions incapable of fulfillment.

The crucial test was whether they had crossed the stage of preparation.

Munah Binti Ali v. Public Prosecuter (1958)

Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one
Chee Yew Cheng to have miscarriage and in such attempt did insert an instrument into her
vagina. Whether an accused is liable for an attempt to cause abortion, when the woman
(complainant) was not actually pregnant, as it came to be known later. Accused was convicted
under section 312 r/w section 511of the Malaysian Penal Code.
Asgarali Pradhania v. Emperor ( 21 July, 1933)
McNair, J. “On the facts stated in this case, and for the reasons already given, the appellant
cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an “act
done towards the commission of the offence” of causing a miscarriage. Neither the liquid nor
the powder being harmful, they could not have caused a miscarriage. The appellant's failure
was not due to a factor independent of himself. Consequently, the conviction and sentence must
be set aside and the appellant acquitted.” He was not held liable for miscarriage.
This judgment can be criticized and in this case impossible test should have been applied.
Reason is that he had intention of causing miscarriage. After this he purchased liquid and
powder for this purpose. It was preparation. Once he provided those liquid and powder for that
purpose. He had attempted. Again once he tried to put the liquid and powder into her mouth by
holding her chin was also attempt.
Later on in Abhayanand Mishra v. State of Bihar (1961 SC) Justice Raghubar Dayal
defined the word “attempt” in wider sense and said- “A person commits the offence of ‘attempt
to commit a particular offence’ when (i) he intends to commit that particular offence; and (ii)
 18

he, having made preparations and with the intention to commit the offence, does an act towards
its commission; 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.” penultimate act
means final act.

R. v. Shivpuri (House of Lords, May 1986)

In this case there was matter of smuggling of prohibited drugs. Accused was believing that he
was carrying prohibited drugs. When he was arrested he confessed. In due course the powdered
substance in the several packages was scientifically analysed and found not to be a controlled
drug but snuff or some similar harmless vegetable matter.
Whether an offence which is impossible to commit amounts to a conviction of an attempt.
House of Lords held that accused had committed offence. Principle laid down in this case is
that the accused is punished for his guilty although the act actually committed was innocent.
DU LL.B 2018 Question (8) (b)
Is ‘A’ liable for committing an attempt to commit an offence in the following cases:
(i)
‘A’ during the quarrel with a woman ‘B’, flung her child about 2 years old into a 4 feet deep
pond out of anger. But ‘C’ who was standing near the pond immediately picked up the child
from the pond and the child did not die.
Answer – Attempt to murder (Section 307).
(ii)
‘A’ enters into ‘B’s house and peeps through a window into B’s room where B’s coat is hanging
on chair. ‘A’ mistaking the coat for ‘B’ fires.
Answer – Attempt to murder. Social danger theory and American Case. ( ‘Wharton’ – Whether
it is book or case, I am searching.)

Some Important Illustration –

(1) A with intention to cause death of B gave sugar under believe that sugar was arsenic. B ate
sugar. A had not caused any offence. UK (J) 2005.
 19

OBJECTIVE QUESTIONS

Question 1 - “We may summarize our views about the construction of s. 511, Indian Penal
Code, thus: A person commits the offence of ‘attempt to commit a particular offence’ when (i)
he intends to commit that particular offence; and (ii) he, having made preparations and with
the intention to commit the offence, does an act towards its commission; 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.” penultimate act means final act.
In which of the following case Supreme Court observed above ratio for application of section
511 of IPC –
(a) Abhayanand Mishra v. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(b) Om Prakash v. State of Punjab 1961 (24 April,1961 S.C. Justice Raghubar Dayal).
(c) Sudhir Kumar Mukherjee v. State of West Bengal (1973 Justice A. Alagiriswami)
(d) State of Maharashtra v. Mohammad Yakub (1980, Justice R.S. Sarkaria)
Answer -A
Question 2 – Which is the first case in which Doctrine of Locus Paenitentiae (Time for
Repentance) was discussed thoroughly -
(a) Malkiat Singh v. State of Punjab
(b) Asgarali Pradhania v. Emperor
(c) Queen-Empress v. Ramakka
(d) Munah Binti Ali v. Public Prosecutor

Answer – C.
Question -3 –Preparation to commit murder is
(a) Punishable
(b) Not punishable
(c) Punishable with fine
(d) All the above
Answer – B
Question 4 – For the purpose of calculation of life imprisonment, according to section 57
life imprisonment means –
(a) 10 Years
(b) 20 Years
(c) 30 years
(d) Period of life imprisonment cannot be calculated. A person may survive for 10
years or 15 years or 50 Years.
Answer - B
 20

Question 5 – Match List-I with List-II and give the correct answer by using the code given
below:

List - I List-II

(a) State of Maharastra v. Mohammad Yakub (i) 1968

(b) Sudhir Kumar Mukherjee v. State of West Bengal (ii) 1973
(c) Queen-Empress v. Ramakka (iii) 1980
(d) Malkiat Singh v. State of Punjab (iv) 1884

Code: (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iii) (iv)
(d) (ii) (i) (iii) (iv)

Answer – A