What are the Punishments for Attempting to Commit Offences?

Section 511 of IPC

Dhruva Vig

The phrase law of the land is a legal term, which refers to all the laws in force within a country or region, including statute law and case-made law. The scope of such law should entail and provide for all the necessary rights and duties of everyone, as well as the state and non-state bodies. One such right is the protection against personal harm. However, such right is not limited to the physical contact between two individuals, but also deals with the concept of preparation and attempt to commit such harm. Therefore, we can say that law not only punishes the act or omission committed by a person, but also the instances where commission of such wrongful act was intended or attempted to come into fruition but was unable to do so.

Definitions

Under Black’s Law Dictionary, ‘attempt’ has been defined as “the act or an instance of making an effort to accomplish something, especially without success.”^[1] Under criminal law, it is referred to as “an overt act that is done with the intent to commit a crime but that falls short of completing the crime.”

Thus, attempt is an inchoate offense which is distinct from the intended crime. An attempt shall include any act in its purview, that forms or acts as a substantial step toward commission of an offence or a crime, such as enticing any person, lying in wait for an offence to happen or be committed, or following the potential/intended victim (stalking) upon whom the crime may be committed, or unlawfully entering a premise (trespass) where a crime is expected to happen.

Stages of a Crime

When the wrongful act, when coupled with a wrongful intent, is constituted as an offence or a crime. It is usually considered that a crime generally consists of 4 stages. These are:

• Intention
  This is the initial stage where the inception of the crime takes place. In this, the person develops the mens rea to commit an offence to another person or party, which is against the law. It is the mental stage of a crime which may or may not be committed. Although, mere intention without any act is very difficult to prove in most instances.
• Preparation
  This is the second stage of a crime, where the preparation to commit a wrongful act takes place. Here, the individual may arrange the means or the materials for the commission of the said offence, even if it does not come into fruition.
• Attempt
  This is the third stage of a crime where an attempt is made in furtherance to his wrongful intention. This is the physical stage where the wrongdoer commits a physical act which cements his intention towards the completion of the offence. The Indian Law recognises such attempts as an illegal object, and thus, provides certain legal provisions for punishing such acts.
• Completion
  This is the final stage of a crime, where the offence is said to have been carried out by one party towards another. All three stages prior to this shall be performed so as to lead to this stage by the wrongdoer. Thus, this stage denotes that the person was successful in his attempt and completed the said offence.

Inchoate offences

In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. Some common forms of inchoate offences may be associated with the act of attempting to commit some wrongful act; encouraging or assisting (formerly inciting) for a crime to be committed; and conspiring to commit any wrongful act with the aid of another party or providing such aid.

Such acts are considered crimes even though the intended result of the person committing such act have not been achieved. It is the intention rather than the act which makes the person liable under such offences.

Can ‘Attempt’ be considered a crime?

According to Salmond, “an attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is the essence of the attempt. Though every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer. ‘I’ may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt.“^[2]

Under Kenny’s outlines of Criminal Law, “ ‘attempt’ is the most common of the preliminary crimes. It consists of steps taken in furtherance of an indictable offence which the person attempting intends to carry out if he can. As we have seen there can be a long chain of such steps and it is necessary to have some test by which to decide that the particular link in the chain has been reached at which the crime of attempt has been achieved; that link will represent the actus reus of attempt ….”^[3]

Indian Context

In Indian context, the term ‘attempt’ is considered as an inchoate crime under the code, where any person or individual, with the intent to actually commit an offence under the code, undertakes any action or gesture in furtherance of such offence, but ultimately fails to complete such act.

However, the term ‘attempt’ has not been defined in the Indian Penal Code. Section 511 deals with the offence of attempting to commit a wrongful act.

Attempt is therefore comprised of three elements:

• intent (mens rea) to commit a crime
• conduct which constitutes a substantial step towards the completion of the said crime
• a failure to complete such crime.

If such conditions are fulfilled, a person shall be held liable under the offence of Section 511 of the IPC.

Illustrations

• ‘A’ makes an attempt to steal some jewellery by breaking open a safe, and finds after so opening the safe, that there is no jewellery in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
• ‘A’ makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. ‘A’ failed in the attempt to steal, and in consequence of Z’s having nothing in his pocket, A shall be held guilty under this section.
• ‘A’ goes to a party where a lot of guests are present. ‘A’ decides to steal a necklace from one such guest and gets caught in doing so. Here, the failed attempt by A is punishable under this section.
• ‘A’ makes an attempt to rob a house but is thwarted by the security dog of the owner. A is guilty under this section.

Legal provisions

The Penal Code has provided a general provision to deal with the offences relating to attempts made by any party. These are:

Under Chapter XXIII of IPC, under the head ‘Attempts To Commit Offences’

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 2 [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, where no express provision is made by this Code for the punishment of such attempt, be punished with 3 [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.”

Classification of offence

Punishment for this offence shall either be imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both. It is according to the offence committed, that the offence is cognizable or non-cognizable, shall be decided. It is according to the offence committed, that the offence attempted by the offender is bailable or not, shall be decided. And lastly, it is triable by the court by which the offence attempted is triable. Non-compoundable in nature as well.

Case laws

• Koppula Venkat Rao v. State of Andhra Pradesh^[4]

Held: “Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. Attempt to commit an offence can be said to begin when the preparations are complete, and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment culprit commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning.”

• Kapoor Chand Maganlal Chanderia v Delhi State (Adm.)^[5]

Held: Accused had altered his own affidavit for securing customs clearance. The explanation the accused gave was that he did so under an honest belief found reasonable on facts, and as such act complained of, may or may not amount to offence under Section 420 read with Section 511. Here, the accused neither cheated nor attempted to cheat the Customs Department. The accused had already suffered a prosecution under Section 420 and nearly 20 years have elapsed since commission of the alleged act. In the current circumstances, it was held, that it would not be expedient in the interest of justice to maintain High Court’s order passed about ten years ago remanding the case to the Magistrate concerned for trying the accused under Section 420 read with Section 511.

• Chaitu Lal v. State of Uttarakhand^[6]

Held: The issue of an attempt to commit an offence of rape was taken up, and when such an offence begins. It was held that such is the concept of attempt which begins when the accused commences to do an act with the necessary intention (i.e., means rea) behind such action. Conduct of the accused should be indicative of his definite intention to commit said offence.

• Sagayam v. State of Karnataka^[7]

Held: The stages in commission of a crime were reiterated in this case. “There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete, but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.”

• Abhayanand Mishra v. State of Bihar^[8]

Held: “The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence as contemplated by Section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.”

• The Queen v. Ramsarun Chowbey^[9]

Held: The act towards the commission of such an offence need not be an act which leads immediately to the completion of an offence.

• In the matter of the petition of R. MacCres^[10]

Held: The purport of the decision taken in this case was explained to be that Section 511 was not meant to cover only the penultimate act towards the completion of the offence. Any act precedent, if those acts are done in the course of the attempt to commit the offence and were done with the intent to commit it and done towards its commission were also to be covered in its purview.

• Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal^[11]

Held: In this case, a chalan was prepared and that was the most important and crucial step towards cheating. The court held that the acts of the accused did not stop at the stage of preparation but had reached the stage of attempt. Therefore, the court upheld the conviction of the appellants under Section 511 r.w. section 420 of IPC.

• Lachman Singh v. State of Haryana^[12]

Held: The court heavily relied on several judgements in the said case, and held that an attempt, in order to be criminal, need not be the penultimate act.

• Aman Kumar v. state of Haryana^[13]

Held: “Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.”

• Koppula Venkat Rao v. State of A.P.^[14]

Held: Three separate major issues were decided by the court in this landmark judgement, where the apex court went into great detail to talk about the different aspects of an offence under section 511. The first was with respect to attempt to commit rape, and the essential requirements to be satisfied for such conviction under such section. The court then laid down the meaning of “attempt” and when does such attempt commences, with relation to the distinguishing features between “intention’ and “preparation’ to commit crime. Lastly, the court gave the reasoning as to why an “Attempt to commit an offence” is made punishable under the law. “Section 511 makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.”

Conclusion

In conclusion, we can understand from the above discussion that Section 511 is a general provision which deals with attempts to commit offences not made punishable by other specific sections under the code. Section 511 makes punishable all attempts to commit offences punishable with imprisonment, and not only those punishable with death.

The idea behind making an attempt punishable is that because every attempt, although it falls short of success, must create alarm in the mind of another or the public, which by itself is an injury to the affected party, be it an individual or the general public, and the moral guilt of the person committing the offence in such cases, is the same as if he/she had succeeded in completion of such offence.

1. Black’s Law Dictionary 9^th Ed. Pg. 146. ↑
2. John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947). ↑
3. J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 79 06th ed.1952). ↑
4. Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602. ↑
5. Kapoor Chand Maganlal Chanderia v Delhi State (Adm.), 1985 (Supp) SCC 268 ↑
6. Chaitu Lal v. State of Uttarakhand, (2019) 20 SCC 272 ↑
7. Sagayam v. State of Karnataka, (2000) 4 SCC 454 ↑
8. Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241 : AIR 1961 SC 1698 : (1961) 2 Cri LJ 822 ↑
9. The Queen v. Ramsarun Chowbey, (1872) 4 NWP 46 ↑
10. In the matter of the petition of R. MacCres, ILR 15 All 173 : 1893 AWN 71 ↑
11. Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of W.B., (1974) 3 SCC 357 ↑
12. Lachman Singh v. State of Haryana, (2006) 10 SCC 524 ↑
13. Aman Kumar v. state of Haryana, (2004) 4 SCC (Cri) 1266 : 2004 Cri LJ 1399 : AIR 2004 SC 1497 ↑
14. Koppula Venkat Rao v. State of A.P., (2004) 3 SCC 602 ↑