CENTRAL UNIVERSITY OF SOUTH BIHAR

LAW OF CRIMES-I
LAW 202
THEORIES OF ATTEMPT
SUBMITTED BY: SUBMITTED TO
AMRESH KUMAR Dr. PAWAN KUMAR MISHRA
CUSB1713125005 ASSOCIATE PROFESSOR
B.A LL.B (H) 2017-22 CUSB

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 CONTENTS
CHAPTER I
INTRODUCTION……………………………………………….……..3
ATTEMPT IN OTHER COUNTRIES………………………………..4
CHAPTER II
ATTEMPT……………………………………………………………………….5-7
CHAPTER III
PREPARATION………………………………………………………………….8
CHAPTER IV
DISTINCTION BETWEEN ATTEMPT AND PREPARATION……..8-9
CHAPTER V
THEORIES OF ATTEMPT……………………………………………………11-15
PROXIMITY RULE………………………………………..11-12
LOCUS POENITENTIAE…………………………….....12-13
EQUIVOCALITY TEST……………………………………13-14
SOCIAL DANGER TEST…………………………………14
IMPOSIIBILITY TEST……………………………………..14-15
CONCLUSION…………………………………………………………15

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 CHAPTER I
INTRODUCTION
An attempt to commit an offence is essentially a direct movement towards the commission of
contemplated offence after preparations are made. Neither a mere intention howsoever
blameworthy it may be, to commit a crime nor do the means arranged, howsoever effective they
may be to commit it, therefore amounts to an offence unless some steps, believed to be
necessary as far. One of the most difficult questions in criminal law which creates riddled is “why
the attempt to commit an offence is being criminalized?” How the penal law should treat those
acts, which cross the stage of being preparatory to the commission of an offence, constitute an
attempt to commit the offences but for some reason are not actually completed, has been the
subject of great amount of debate and discussion among jurist, judges and all concerned.
Criminal law punishes not only completed crimes but also conduct short of completion of a crime.
Criminal attempt falls in the category of inchoate crimes. The law of attempt continues to be
somewhat enigmatic and notorious for its intricacies. The factors that contribute to the unusual
state of the law.The definitions for criminal attempt in which the defendant ultimately fails to
pull off the crime -- vary from state to state. But generally, attempted offenses occur when an
individual has an actual intent to commit a crime (in legal terms, specific intent), and takes direct
action toward completion of the crime. Typically, an individual will have failed to complete the
crime, but this is not necessarily required. One common example of an attempted crime would
be attempted murder, where an individual must have the intent to kill another individual, then
take action towards that end but fall short of actually doing so. An attempt is made punishable,
because every attempt although it fails or success, must create alarm, which of itself is an injury
and the moral guilt of the offender is the same as if he succeeded. Moral guilt must be united to
injury in order to justify the punishment or the injury is not as great as if the act had been
committed only half the punishment is awarded. According to Stephen “the offence of
attempting to commit a crime may be committed in cases which the offender voluntarily desists
from the actual commission of the crime itself.One group of theories in criminal law is that
attempt to commit an act occurs when a person comes dangerously close to carrying out a
criminal act, and intends to commit the act, but does not in fact commit it. The person may have
carried out all the necessary steps (or thought they had) but still failed, or the attempt may have
been abandoned or prevented at a late stage. The attempt must have gone beyond mere
planning or preparation and is distinct from other inchoate offenses such as conspiracy to
commit a crime or solicitationof a crime. There are many specific crimes of attempt, such
as attempted murder, which may vary by jurisdiction. Punishment is often less severe than would
be the case if the attempted crime had been carried out. Abandonment of the attempt may
constitute a not guilty defence, depending partly on the extent to which the attempt was
abandoned freely and voluntarily. Early common law did not punish attempts; the law of attempt
was not recognised by common law until the case of b. Rex v. Scofie in 1784.

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ATTEMPT IN OTHER COUNTRIES:
In English law an attempt is defined as 'doing an act which is more than merely preparatory to
the commission of the offence' according to the Criminal Attempts Act 1981. "The test of
proximity was that the defendant must have ...crossed the rubicon, burnt his boats, or reached a
point of no return". So the defendant has reached that part of the series of acts, which if not
interrupted, frustrated, or abandoned would inevitably result in the commission of the intended
offence. But section 1(1) of the Criminal Attempts Act 1981 defines the actus reus as that is
"...more than merely preparatory to the commission of the offence," that allowed liability to
attach slightly earlier in the sequence of acts. Subsequent ratio decidendi have abandoned the
more formal common law last step test, leaving it to the jury to decide. A defendant who changes
their mind after the act is sufficiently proximate, is still guilty of an attempt although the change
of heart could be reflected in the sentencing.

However, there is some uncertainty as to what exactly 'more than merely preparatory' means. It
is upon the discretion of the judges and the jury to decide. Major criticism was attracted after
the judgement in R v Geddes, where the court acquitted the defendant who was trying to kidnap
a young boy, stating that he had not gone far enough, and his acts were 'merely preparatory'.

In New York law, the element of actus reus is that the person engages in conduct that "...tends
to effect the commission of such crime."[8] The test this requires either:

 An action that reveals a criminal intent, that is, res ipsa loquitur, or "the thing speaks for
itself," or

 The person has dangerous proximity, or is "dangerously near and close to the
accomplishment of the crime.

Difference between section 511 and section 307

In R vs. Francis [(1867) 4 BHC (Cr.C) 7] the Bombay High Court held that section 511 is wide
enough to include all kinds of attempts punishable under the Act including the attempt to commit
murder which has been specifically provided in section 307 of the code. In the case of Om Prakash
vs. State of Punjab [(1961) 2 Cr LJ 848 (SC)] the accused denied food to his wife for several days
by keeping her confined in a room with a view to accelerate her death though she ultimately
managed to escape. The court held that it was a case of slow poisoning. It might be the beginning
of the attempt but would nonetheless be an attempt. Thus the court upheld the conviction.

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 CHAPTER II
ATTEMPT
A person is guilty of an attempt to commit a crime when such person, with the intention to
actually commit the crime, does an act which is a substantial step toward the commission of the
crime, but not the actual commission of the crime. Therefore, an attempt to commit a crime
consists of two elements:1. An intent to engage in crime; and 2. A conduct constituting a
substantial step towards commission of the crime. A statute may forbid an attempt to commit a
specified crime. An attempt to commit a crime, when punishable, is an offense that is separate
and distinct from the crime that was attempted. To qualify as a substantial step, something more
than mere preparation should be done. Preparation alone, or a mere statement of the person’s
intent to commit a crime, is not sufficient to constitute an attempt. However, the step should be
lesser than the actual commission of the crime. To establish attempt, the alleged conduct must
support the person’s criminal intention to commit the crime. The person must have engaged in
some activity that is a substantial portion of the crime. An attempt must be an action on the part
of the person that comes very close to the accomplishment of the desired results. A person who
fails to commit the attempted crime is also regarded to have attempted to commit the
crime.Intent is an important element when determining whether an attempt to commit a crime
has occurred. The person making the attempt should have the intention to complete the acts
that constitutes the crime. It is the intent to commit the crime, not the possibility of success that
determines whether the person’s act or omission constitutes the crime of attempt. A person can
be convicted for an attempt to commit a crime only when such person has a direct and specific
intent. Therefore, acts done as a result of negligence or recklessness cannot be considered as an
attempt to commit the crime as there is no intention to commit the crime. Defining an attempt
to commit an offence, the supreme court in ramkripal v. state of M.P1, has held that an attempt
to commit an offence can be said to began when the preparation are complete and culprit
commences to do something with the intention to committing offence and which is a step
towards the commission of offence. The moment he commences to do an act with necessary
intention, he commences his attempt to commit an offence. The word ‘attempt’, said chief justice
Cockburn, clearly conveys with it the idea that if the attempt had succeeded, the offence charged
would have been committed. In other words, attempt is the direct movement towards the
commission of an offence after the preparation has been made. According to English law, a
person may be guilty of an attempt to commit an offence, if he does an act which is more than
merely preparatory to the commission of the offence and a person may be guilty or attempt to
commit an offence even though the facts are such that the commission the offence is impossible.

1
AIR 2007 SCW 220

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Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the
offender very close to the successful completion of crime and so it is punishable in the law like
the completed offence. An attempt creates alarm which of itself is an injury, and the moral guilt
of the offender is the same as though had succeeded. The act may be sufficiently harmful to
society by reason of its close proximity to the completed offence classed as a crime. Hence, unlike
civil law, criminal law takes notice of attempts to commit punishable wrongs and punishes them
according to the nature and gravity of the offence attempted. And if the third stage is successful,
then the crime is completed and the accused will be liable according to the offence committed
by him. Thus an attempt in order to be criminal need not be penultimate act. It is sufficient in
law, if there is at present intent coupled with some overt act in execution. Generally, the
commission of a crime by a person involves four stages: firstly, formation of the intention or
mental element secondly, preparations for the commission of the crimes thirdly, acting on the
basis of the preparation and fourth, commission of the act resulting in an event prescribed by the
law. Some legal system penalize from the stage of preparation. They depending upon the
importance of the system gives to the value of ‘crime prevention’ declare certain offences to be
criminal and punishable from the stage of preparation. There may not be the responsibility for
attempt if the person was negligent or reckless inasmuch as attempt is a crime of purpose.
However, knowledge, recklessness or negligence in appreciating the material surrounding
circumstances can support the charge of attempt.In some cases the commission of an offence as
well as the attempt to commit it is dealt within the same section and the extent of punishment
prescribes is the same for both. There are twenty seven such section in this Code, namely,
Sections 121,124,124A,125,130,131,152,153A,161,162,163,165,196,198,200,
213,239,240,241,251,385,387,389,391,397,398,and 460. In all these cases, both the actual
commission of the offence and the attempt to commit are made punishable equally. b) In some
cases attempts are treated as separate offences and punished accordingly. There are four such
offences,

I) Attempt to commit murder (section 307),

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

III) Attempt to commit suicide (section 309),

IV) Attempt to commit robbery (section 393).

The word ‘attempt’, said chief justice Cockburn, clearly conveys with it the idea that if the
attempt had succeeded, the offence charged would have been committed. In other words,
attempt is the direct movement towards the commission of an offence after the preparation has
been made. According to English law, a person may be guilty of an attempt to commit an offence,
if he does an act which is more than merely preparatory to the commission of the offence and a

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person may be guilty or attempt to commit an offence even though the facts are such that the
commission the offence is impossible. Once an act enters into the arena of attempt, criminal
liability begins, because attempt takes the offender very close to the successful completion of
crime and so it is punishable in the law like the completed offence. An attempt creates alarm
which of itself is an injury, and the moral guilt of the offender is the same as though had
succeeded. The act may be sufficiently harmful to society by reason of its close proximity to the
completed offence classed as a crime. Hence, unlike civil law, criminal law takes notice of
attempts to commit punishable wrongs and punishes them according to the nature and gravity
of the offence attempted.

In Abhayanand Mishra vs. State of Bihar AIR 1961 SC 1698, the appellant applied to the Patna
University for permission to appear at the 1954 M.A. Examination in the 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. He attached bogus certificates in this regard. The
University gave the permission and issued admit-card. In the meantime, however, the University
came to know about the forged application of the applicant.
The issue before the Court was whether appellant was guilty of an 'attempt to cheat' the
University, under Section 415, IPC, in as much as he, by making false representation, deceived
the University and induced the authorities to issue admit-card. The arguments on behalf of the
appellant was that what he did was just a preparation and not an attempt to cheat; further,
admit-card was not property and had no pecuniary value in itself.
The Apex Court observed that a personal 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.
The Court held that appellant did deceived the University, as a dishonest concealment of facts is
a deception and thus cheating under Section 415, IPC. Admit-card is a 'property' as it has
immense value to a candidate. It is not true that appellant did not gone beyond the stage of
preparation. The preparation was complete when he had prepared the application for the
purpose of submission to the University. The moment he dispatched it, he entered the realm of
attempting to commit the offence of cheating. He did succeed in deceiving the University and
inducing it to issue the admit-card. He just failed to get it and sit for the examination because
something beyond his control took place inasmuch as the University was informed about his
being neither a graduate nor a teacher.

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 CHAPTER III
PREPARATION
Preparation consist in devising or arranging means or measures necessary for the commission of
offence. Ordinarily preparation is not punishable. The reasons as to why preparation is not
punishable are four fold:

1. Firstly, a preparation apart from its motive is generally a harmless act.

2. Secondly, it would be impossible in most of the cases to show that preparation was
directed to a wrongful end or was done with an evil motive or intent. It is not possible to
say definitely that the preparation made by a person was not with a view to commission
of a crime.
3. Thirdly, it is not the policy of law to create and multiply offences and if preparation is to
be punished innumerable offences will be created.

Apart from the above reasons pointed by s. Huda, if preparation is made punishable there is
a danger of innocent people being harassed when such preparation was even for innocent
purpose. Furthermore there is always chance of person repeating and going back from their
evil determination even though had made preparation for the same.

Under Indian penal code there are certain exceptions to the rule that preparation is not
punishable. These are

1. Collecting arms with intention of waging war against the government of India (Sec. 122)
2. Committing depredation or making preparation to commit depredation on territories of
any power in alliance or at peace with the government of India (Sec. 126)
3. Making or selling instrument for counterfeiting coin (Sec. 233) making or selling
instrument for counterfeiting of Indian coin (Sec. 234).
4. Making preparation to commit dacoity (Sec. 399).
It was held in raman chettiar2 that mere writing out of bogus telegrams with a view to
despatch them for the purpose of cheating amounts only to preparation

CHAPTER IV

2
.(1926) 51 M.L.J 635

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

In Sudhir kumar Mukharjeev.3 State of W.B, Supreme Court held that, attempt to commit an
offence begins when the preparation are complete and the culprit commences to do
something with the intention of committing the offence and which is a step forward toward
the commission of the offence. In Abhyanand Mishra v. State of Bihar4, Supreme Court held
that, the movement culprit commences to do an act with the necessary intention, he
commences his attempt to commit an offence. Such an act need not be the penultimate act
towards the commission of that offence but must be an act during the course of committing
that offence.. An attempt to commit a crime must be distinguished from the intention or the
preparation to commit it. Intention is inferred by the direction of conduct towards the object. Will is
not taken for the deed unless there be some external act which shows that progress has been made
in the direction of the deed. Preparation is in devising or arranging the measures necessary for
the commission of the offence. It differs widely from attempt which is the direct movement
towards the commission, after preparation has been made.” The question whether a certain
act is merely one of the preparation or one committed in the course of an attempt is a
question of fact. Acts remotely leading towards the commission of the offence are not to be
considered as attempt to commit it, but acts immediately connected with it are. The
difference between mere preparation and actual attempt to commit an offence consists
chiefly in the greater degree of determination in an attempt as compared with preparation
and such greater degree of determination may be estimated in various ways. Where an act
towards the commission of an offence is illegal per se, it is proof of fixed determination.
Where the act is open and not hidden, that is a further proof of determination. In Riasat Ali
vs. State, the accused gave an order to the printing press to print certain Receipt Books
identical with those of Bengal Coal Company, with an intention to use such receipts and
collect money. The accused checked spelling mistakes and proofs. At this stage, the police
arrested him. The Court held that mere printing receipt books could be neither preparation
nor attempt, unless the accused used at least one paper of such receipt books. The Court
acquitted the accused.

3
(1974) 3 SCC 357
4
AIR 1961 SC 1698

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Criminal Attempt and the Importance of Intent:
Because attempt crimes are typically incomplete (by their own nature), establishing the intent of
an individual is often the key to securing a conviction. Thus, it is important to note that it would
not be enough for an individual to intend only harm or even serious harm to a victim, for purposes
of an attempted murder conviction. In some jurisdictions, the actions or acts taken for an
attempted crime must go beyond "mere preparation" for the offense. In these cases, the
defendant will have had to actually taken material steps toward committing the murder,
regardless of any premeditated plans. However, other jurisdictions permit a conviction based on
a wider range of actions taken towards completing a crime, perhaps a detailed, written plan and
possession of a would-be murder weapon procured specifically for that purpose.

Stages of an Incomplete Crime

You may be charged with attempt if you have "set the wheels in motion," so to speak, somewhere
along the line between deciding to commit the crime and completing it (without actually
succeeding). A crime is incomplete if the defendant either:

 Abandoned the commission of the crime after taking steps to commit it (such as arranging
a robbery and procuring a handgun); or

 Failed to complete the crime after taking steps to commit it (for instance, being foiled by
an alarm system or security guard).

Generally, the stages of an incomplete crime consist of the following:

1. The perpetrator considers committing a crime, weighing the pros and cons before
deciding whether to do it (it's just a thought at this point)

2. Perpetrator affirmatively decides to commit the crime (again, still just a thought)

3. Perpetrator prepares for the crime, perhaps bringing in accomplices or purchasing

materials (guns, disguises, etc.)

4. Perpetrator begins the commission of the crime (drives to the location of the crime, etc.)

5. Crime is committed and completed

Not all crimes can be "attempted," legally speaking, only those with specific intent. Specific intent
refers to the state of mind in which an individual plans to commit a certain crime, knowing what
the outcome may be. For instance, attempted battery is not a criminal charge because the crime

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of battery does not require a premeditated intent to cause harm. But someone who threatens
bodily harm may be charged with assault.

CHAPTER V
THEORIES OF ATTEMPT
Thus, it is simple to say that an attempt to commit offence begins where preparation to commit
it ends, but it is difficult to find out where one ends and the other begins. To solve this riddle
various tests have been laid down by the courts. These are as follows:

1. PROXIMITY RULE
2. DOCTORINE OF LOCUS POENITENTIAE
3. THE EQUIVOCALLITY TEST
4. THE SOCIAL DANGER TEST
5. THE IMPOSSIBILITY TEST
PROXIMITY RULE:
The Proximity Rule states that the act or a series of acts, in order to be designated as an attempt
to commit an offence, must be sufficiently proximate to the accomplishment of the intended
substantive offence.5 A very major case in relation to this rule is that of R v. Taylor6 wherein A
bought a matchbox and lit it near a haystack. He then extinguished it perceiving that someone
was looking at him. If he had merely bought the matchbox and not lit the matchstick, he would
be absolved of any responsibility. The lighting of the matchstick is the actus reus necessary for
prosecuting him for an attempt to commit a crime. Proximity cause as explains is the causal factor
which is closes, not necessarily in time or space, but in efficacy to some harmful consequences;
in other words, it must be sufficiently near the accomplishment of the substantive offence. In
Sudhir kumar Mukherjee case and Abyanand Mishra case, the Supreme Court explained the
offence of attempt with help of the proximity test, saying that: “A person commits the offence
of ‘attempt to commit a particular offence’ when he intends to commit that particular offence;
and b) he having made preparation with the intention to commit the offence, does an act towards
its commission; such an act need not to be the penultimate act towards the commission of that
offence but must be an act during the course of committing that offence. The act or series of an
act in order to be designated as an attempt to commit an offence must be sufficiently proximate
to the accomplishment of the intended offence. Maxim cogiationis poenam nemo patitur which
means that no man can safely be punished for his guilty purpose, save so far as they have

K I Vibhuti, Attempt, PSA Pillai’s Criminal Law, 185, Lexis Nexis Butterworths Wadhwa, 11 th edition
5
6
1895 IF & F 511, cited in RC Nigam, Law of Crimes in India, Asia, London, 1965, p 119

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manifested themselves in overt act which themselves proclaim his guilt. An act of attempt must
be sufficiently proximate to the crime intended, it should not be remotely leading towards the
commission of an offence. The act of accused is proximate if, though it is not the last act that he
intended to do, it is the last act that is legally necessary for him to do, if the contemplated result
is afterwards brought about without further conduct on his part.In State of Maharashtra vs.
Mohd. Yakub and others, two vehicles halted near a bridge at a Creek. Some small and heavy
bundles were removed from the Truck and were kept on the ground. The Customs Officers
surrounded them. At the same time the sound of the engine of a mechanised sea-craft from the
side of the creek was heard by the officers. There were number of ingots lying under saw-dust
bags in the Truck. The Supreme Court held that the accused had committed the offence of
attempting to export Silver out of India by sea by applying the proximity rule stating that the
silver was to be loaded in the ship had the officers not stopped them.

THE LOCUS POENITENTIAE TEST:

The doctrine locus poenitentiae refers to the possibility of a person who, having made
preparation to commit an offence, actually backs out of committing it, owing to a change of heart
or out of any other type of compulsion or fear. Thus an act amount to mere preparation and not
an attempt, if the person, on his accord, gives up the idea of committing a crime before the
criminal act carried out. In other words so long as the steps taken by the accused leave room for
a reasonable expectation that he might either of his own accord, because of the fear of
consequences that might befall him or for whatever reason, desist from going ahead with the
contemplated act, then he will be treated in law as only being in the stage of preparation, and no
criminal liability will be fastened to him. However, if he desist from proceeding further owing to
his acts being discovered or because police officer was at his elbow, he cease to be a beneficiary
of the doctrine of locus poenitentiae, as thereafter he has no time for repentance. The Latin
expression speaks about time for repentance. In Locus Poenitentiae the word Locus means, a
place,- a word frequently used to denote the place in or at which some material act or even such
as crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to
withdraw from a bargain before it has become fully Constituted and become binding. In simple
language an act will amount to a mere preparation if a man on his own accord, before the criminal
act is carried out, gives it up. It is, thus, possible that he might of its own accord, or because of
the fear of unpleasant consequences that might follow, desists from the completed attempt. If
this happens, he does not go beyond the limits of preparation and does not enter the arena of
attempt. He is, thus at the stage of preparation which cannot be punished.

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Malkiat Singh case7 explains this second test, in this case, a truck carrying a paddy was stopped
at Samalkha Barrier, a place 32 miles away from Delhi. Evidently, there was no export of paddy
within the meaning of para 2(a) of the Punjab Paddy (Export Control) Order, 1959, the Court
decided that there was no attempt to commit the offence export. It was merely a preparation.
Distinguishing between attempt and preparation Supreme Court observed that the test of
distinction between two is whether the overt acts already done are such that if the offender
changes his mind and does not proceed further in its progress, the acts already done would be
completely harmless. In the present case, it is quite possible that the appellants may have been
warned that they had no license 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. This doctrine was the basis for the Supreme Court for ordering acquittal of the
driver and helper of truck convicted by lower court of attempting to smuggle paddy out of the
Punjab in the said case.

THE EQUIVOCALLITY TEST:

To constitute an attempt, the act must be such as to clearly and un equivocally indicate the
intention to commit an offence. If what is done indicates beyond reasonable doubt that the end
is towards which it is directed, it is an attempt, otherwise it is a mere preparation. The act must
refer to the crime and it must be evident and clear on examination. The acts must speak for
themselves. The equivocality test is a continuation of the proximate rule and the doctrine of locus
poenitentiae, suggest that an act done towards the commission of the offence would amount to
an attempt to commit the offence if, only if, it unequivocally indicates the intention of the doer
to accomplish the criminal object. If what is done indicates beyond reasonable doubts that the
end is towards which it is directed, it is an attempt, otherwise it is mere a preparation. In other
words the steps taken or acts done by the accused must speak for themselves. In state vs
parasmal8, the rajasthan high court plausibly referring to the unequivocally test observed: “when
a person intends to commit a particular offence and then he conducts himself in such a manner
which clearly indicates his desire to translate that intention into action, and in pursuance of such
an intention if he does something which may help him to accomplish that desire. Then it can
safely be held that he committed an offence of attempt to commit a particular crime. It is not
necessary that the act falls under the definition of an attempt should in all circumstances be a
penultimate act towards the commission of that offence. That act fall at any stage during the
series of acts which go to constitute an offence under section 511 of the Indian penal code.”-It is
a situation wherein there are two opinions about the crime here, as decided by the Madras High

7
Malkiatsingh v. state of Punjab, (1969) 1 SCC 157
8
AIR 1969 Raj 65

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court, an attempt is an act of such a nature that it speaks for itself or that it is in itself evidence
of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face.
In other words, if what is done indicates unequivocally and beyond reasonable doubt the
intention to commit the offence, it is an attempt, or else it is a mere preparation.

THE SOCIAL DANGER TEST:

In order to distinguished and differentiate an act of attempt from an act of preparation the
following factors are contributed.

A) The seriousness of the crime attempted; B)

B) The apprehension of the social danger involved.
In this test the accused’s conduct is no examined only partially but the consequences of the
circumstances and the fullness of the facts are taken into consideration. For example, X
administers some pills to a pregnant woman in order to procure abortion. However, since the
pills are innocuous they do not produce the result. In spite of this X would be held liable for an
attempt from the view point of the social danger test, as his act would cause as alarm to society
causing social repercussions. The seriousness of crime attempted and the apprehension of the
social danger involved is taken into account to distinguish an act of attempt from that of
preparation. A gives some pills to a pregnant woman to procure abortion, but it had no effect
because the drug turned out to be innocuous. A would be guilty of attempt to cause miscarriage
since the act would cause an alarm to society and will have social danger.

THE IMPOSSIBILITY TEST:

In Queen Express v. Mangesh Jivaji, the Bombay high court held that within the meaning of
section 511 of IPC, an attempt is possible, even when the offence attempted cannot be
committed. In Asagarali Pradhaniu v. Emperor9, what the appellant did was not an “act done
towards the commission of offence”, and therefore, he could not be convicted. But in a Malaysian
case the accused was held liable for an attempt to cause abortion when the woman was not
pregnant. Even the appeal court held the accused liable because the circumstances in this case
seemed to be exactly covered by the illustration to section 511. The act itself is impossible of
performance and yet it constitutes an offence of attempt to commit crime. This was precisely the

9
(1934) ILR 61, 64

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position in English L aw before Houghton v. Smith case. In R v. Shivpuri10 it has been held that, if
the mental element has proceeded to commit the act but failed his responsibility for attempt
would be evaluated in the light of facts as he thought them to be (putative facts). In R v. Shivpuri,
it has been held that, if the mental element has proceeded to commit the act but failed in his
attempt, the offence would be evaluated in the light of facts as he thought them to be.

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

10
(1987) 1 AC 1 (HL)

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REFRENCES:
1. MISHRA S.N 20TH EDITION INDIAN PENAL CODE, ALLAHABAD
CENTRAL LAW AGENCY
2. PILLAI P.S 12TH EDITION(2016), CRIMINAL LAW, HARYANA LEXISNEXIS
3. GAUR K.D 6TH EDITION(2016), INDIAN PENAL CODE HARYANA
LEXISNEXIS
4. WWW.LAWYERSCLUBINDIA.COM RETRIVED ON OCTOBER 29, 2018
5. WWW.JUDICIARYNOTESBLOGSPOT.COM/2017 RETRIVED ON
OCTOBER 28, 2018
6. WWW.LEGALBITES.COM RETRIVED ON NOVEMBER 2, 2018
7. WWW.WIKIPEDIA.COM RETRIVED ON NOVEMBER 3, 2018

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