2018

Types of INCHOATE OFFENCES

Umang Dixit -2ND YEAR

3/23/2018
SUBMITTED TO- Dr. Sadia
 TYPES OF INCHOATE OFFENCES

Contents
ACKNOWLEDGEMENT ......................................................................................................... 2
INTRODUCTION ..................................................................................................................... 3
INCHOATE CRIMES ........................................................................................................... 3
Types of Inchoate offences .................................................................................................... 3
CRIMINAL ATTEMPT ............................................................................................................ 4
(1) Complete Attempt.................................................................................................... 4
(2) Incomplete Attempt ................................................................................................. 4
(3) Impossible Attempt.................................................................................................. 4
Elements of Criminal Attempt ............................................................................................... 4
Criminal attempt under the ipc 1860 ..................................................................................... 5
Attempt to commit capital offences like murder, culpable homicide and robbery; ........... 5
ATTEMPT TO COMMIT SUICIDE .................................................................................... 6
ATTEMPT TO COMMIT OFFENCES IN GENERAL UNDER SECTION 511 OF THE
IPC 1860; ............................................................................................................................... 7
Five tests by Court ................................................................................................................. 8
CONSPIRACY ........................................................................................................................ 12
CRIMINAL CONSPIRACY UNDER INDIAN PENAL CODE ........................................ 13
Defences and Other Issues: .................................................................................................. 15
Conspiracy forms: .......................................................................................................... 15
CRIMINAL SOLICITATION/ ABATEMENT UNDER COMMON LAW .......................... 17
Elements of solicitation: .................................................................................................. 17
Renunciation of Criminal Solicitation ............................................................................. 18
ABATEMENT UNDER INDIAN PENAL CODE ...................................................... 18
Instigating ........................................................................................................................ 19
Abatement by Engaging ................................................................................................... 19
CONCLUSION ........................................................................................................................ 21
BIBLIOGRAPHY .................................................................................................................... 22

1|Page
 TYPES OF INCHOATE OFFENCES

ACKNOWLEDGEMENT
I feel myself highly exhilarated to work on this project involving “TYPES OF INCHOATE
CRIMES.” I take this opportunity to thank Dr. Sadia who had played the role of a central
character and always given me the courage and wisdom to shape my ideas in right direction.
Special thanks to the staff and library staff who have devoted their valuable time to give me all
sorts of suggestions, ideas and facilities regarding this topic.
Last but not the least I thank all the members of the Faculty of law, J.M.I. and all others who
have helped me in the completion of this work.
-UMANG DIXIT

2|Page
 TYPES OF INCHOATE OFFENCES

INTRODUCTION

INCHOATE CRIMES
The word Inchoate offence in ordinary sense means “just begun” or “underdeveloped”, and is
used in English criminal law to refer to situations where, although a substantial offence has not
been committed, the defendant has taken steps to commit it, or encouraged others to do so. An
inchoate can be defined as a preparation for committing a crime. The inchoate offences can
also be termed as preliminary crimes or anticipatory crimes. Inchoate offence “has been defined
as conduct deemed criminal without actual harm being done provided that the harm that have
occurred is one the law tries to prevent”.. For an inchoate offence there must be Mens Rea and
in some cases there must be Actus Reus also…. Example: If A after procuring a loaded gun
fires at B but however B escapes, but even though A will be liable for punishment for
attempting the offence.
And also in above case there exits Mens Rea and Actus Reus but however it does not made any
injury. Criminal liability is not limited to those people who succeed in committing it also
exceed to those who try to commit an offence whether they succeed or fails are not in question
of matter. The Penal Code 1860 has accordingly made provision for the punishment of persons
involved in such preparatory acts in order to prevent the crimes from being committed.
According to English law the crime which penalize conduct before the commission of the crime
are known as inchoate offences. Common law has developed the three types of inchoate
offences such as:-
Attempt :where the defendant has taken steps towards carrying out a complete crime.
Incitement : where the defendant has encouraged others to commit a crime
Conspiracy : where the defendant has agreed with others to commit a crime.
In each case, the defendant “has not performed the actus reus but is sufficiently close to doing
so or persuading others to do so, for the law to find it appropriate to punish him”.

Types of Inchoate offences

The inchoate or preliminary crimes are classified into:
(1) Abetment
(2) Criminal conspiracy
(3) Criminal Attempt

3|Page
 TYPES OF INCHOATE OFFENCES

CRIMINAL ATTEMPT
Attempt in criminal law is an offence that 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. 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 attempt Act, 1981’. Mainly there
are three types of criminal attempt.

(1) Complete Attempt : That when a person takes every action required to commit a
crime but fails to succeed it that is for example- A after procuring a loaded gun fires at
B but however B escapes, this is a complete attempt.
(2) Incomplete Attempt : This is when a person abandons or is prevented from
completing a crime due to an event beyond his control such as due to arrival of police
on the spot etc. can be categorized in this type.

(3) Impossible Attempt : It arises when the convict makes a mistakes in committing
a crime for example- A took a gun pull the trigger but the bullet did not come/ or/ firing
the gun only to realize that it was not loaded.
It can be drawn that criminal offences by a person have a distinct stages:
(1) Intention
(2) Preparation
(3) Attempt
(4) Commission

Among these, criminal law does not penalize the first two stages because it is not possible to
look so deep into the mind of a person to prove his inner intention. The devil himself does not
know the thought of a man, so it is absolutely difficult to define the contemplation in the mind
of an individual and punish him for the idea in his head.in early times criminal attempt was not
punished under common law or by IPC. This is because it would be impossible to prove that
the object of an accused was to commit an offence. Early common law did not punish attempts;
the law of attempt was not recognized by common law until the case of
Rex v. Scofield in 1784- This is the first case in which law of Attempt was recognized by
common law.
R. v. Higgins- It was the first case in which it was clearly decided that an Attempt to commit a
crime is at common law itself a crime.

Elements of Criminal Attempt

1. Intention to commit a crime
2. An act towards the commission of a crime
3. A failure to commit crime.

4|Page
 TYPES OF INCHOATE OFFENCES

Criminal attempt under the ipc 1860

Attempt to commit capital offences like murder, culpable homicide and

robbery;
Section307. Attempt to commit Murder.- hosoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act caused death, he would be
guilty of murder, shall be punished with imprisonment of either description for a to any person
by such act, the offender shall be liable either to[imprisonment of life], or to such punishment
as is hereinbefore mentioned.

Illustrations
i. A shoots at Z with intention to kill him, under such circumstances that, if death ensued.
A would be guilty of murder. A is liable to punishment under this section
ii. 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 defined in this
section. A place the food on Z’s table or delivers it to Z’s servant to place it on Z’s
table. A has committed the offence defined in this section.

Ingredients.- To attract the provisions of section 307, IPC all the ingredients of murder
short of death must exist, viz.-
I. The death of a human being must be attempted.
II. The accused must have made the attempt.
III. The act must be done with the intention of causing death, or it be done with the intention
of causing such bodily injury as:
a) The accused knew to be likely to cause death, and
b) That it was sufficient in the ordinary course of nature to cause death.
IV. The accused attempted to cause such death by doing an act known to him to be so
imminently dangerous that it must in all probability cause:
a) Death, or
b) Such bodily injury as is likely to cause death.

5|Page
 TYPES OF INCHOATE OFFENCES

Cases :
Om Prakash v. State of Punjab1
The appellant was charged and convicted by the sessions Court under sec.307, IPC. Attempt to
commit murder his wife, Bimla Devi by deliberately and systematically starving her for food
for days together and locked her in the room.
The high Court on appeal confirmed the conviction. The supreme Court held that the offence
under section 307 IPC is committed, when with the intention to commit murder, the offender
does any act or series of acts towards the commission of murder. It is not necessary that the act
done must be the last or the penultimate act to be done for committing murder. Regular and
systematic course of starvation(of accused’s wife) which would ultimately result in death
amounts to an attempt to murder, even though it is thwarted by a happening not expected by
the offender, and even though a further period of starvation was needed before death would
result.

Emperor v. Vasudeo Balvant Gogte2

The accused took a gun and went to the governor of Bombay, he kept his weapon to point of
range then pull the trigger but the bullet did not came out because of some defect in the gun.
The court held him guilty under section 307 IPC, attempt to commit murder.
Section 308. Attempt to commit culpable homicide.-whoever does any act with such intention
or knowledge and under such circumstances that, if he by that act caused death, he would be
guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both; if hurt
is caused to any person by such act, shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or with both.

Illustration : A on grave and sudden provocation , fires a pistol at Z, under such

circumstances that if he thereby caused death he would be guilty of culpable homicide not
amounting to murder. A has committed the offence defined in this section.

ATTEMPT TO COMMIT SUICIDE

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 *[or with fine, or with both].
Suicide as such is no crime under the code. It is only attempt to commit suicide that is
punishable under this section. In other words, it is only when a person is unsuccessful in
committing suicide that the Code is attracted. If the person succeeds, there would be no
offender who could be brought within the purview of the law. The section is based on the

1
AIR 1961 SC, 1782
2
AIR 1932 Bom 279

6|Page
 TYPES OF INCHOATE OFFENCES

principle that the lives of men are not only valuable to them but also to the state which protects
them. The State is under an obligation to prevent persons from taking their lives as it prevents
them from taking the lives of others.
At common law, although the offender who succeeded in an attempt to suicide was beyond the
reach of law, his guilt resulted in the forfeiture of his property. However, attempt to suicide in
England has now ceased to be a crime by virtue of section 1 of the Suicide Act, 1961 which
says that ‘the rule of law where it is a crime for a person to commit is hereby abrogated.’

ATTEMPT TO COMMIT OFFENCES IN GENERAL

UNDER SECTION 511 OF THE IPC 1860;
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 of 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
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.

Illustration: 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.

Abhayanand Mishra v. State of Bihar3

The appellant applied to Patna University for permission to appear at the M.A. examination in
English as a private candidate, representing that he was a graduate having obtained his B.A.
degree and that he had been teaching in a school. In support of his candidature he attached
certain certificates purporting to be from the Headmaster of the school and the Inspector of
Schools. Thereuponan admission card giving him permission to appear in the M.A.
examination was sent.
Later, just before the commencement of the examination it was discovered that the certificates
were forged and that the accused had neither obtained a B.A. degree nor was he a teacher. Held,
by making the false statement about his being a graduate and a teacher in the application
submitted to the University, the accused did deceive the University. His intention clearly was
to make the University give him permission to appear in the M.A. examination. An admission
card is property within the meaning of section 420, IPC. The accused would have succeeded in

3
AIR 1961 SC 1698,(1962) 2 SCR 241.

7|Page
 TYPES OF INCHOATE OFFENCES

the commission of the offence of cheating, if the admission card had not been withdrawn.
Under the circumstances, the accused was guilty of attempting to cheat under section 420 read
with section 511, IPC.

Malkiat Singh v. State of Punjab4

In this case the appellant was a truck driver and was carrying paddy out of the jurisdiction of
the state of Punjab without license, in violation of the Punjab (export) control order, 1959,was
stopped 14 miles away from the Punjab-Delhi border, and was prosecuted for an attempt to
contravene the said order. The Supreme Court, while allowing the appeal, said that the act of
carrying paddy did not amount to a criminal attempt. The court observed: - 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 license to carry
the paddy and they may have changed their minds at any place between Samalkha Barrier and
the Delhi-Punjab boundary and not have proceeded further in their journey.

Mens Rea in Criminal Attempt

Mensrea in inchoate offences is not merely a condition of fault. It is a component of the danger
of criminal harm. That determines the need for forceful intervention. A criminal intention
includes a dual intention
I. Those are an individual must intentionally do an act that are proximate to completion
of a crime.
II. That an individual must possess the specific intent or purpose to achieve criminal
objective

Actus Reus in Criminal Attempt

In criminal attempt, the objective approach requires an act that comes extremely close to the
commission of the crime. It also distinguishes preparation or the planning and purchasing of
the materials to commit a crime. And the objective approach stresses the danger posed by a
defendant’s acts; the subjective approach focuses on the danger to society presented by a
defendant who possess a criminal intent. There also exits subjective approach to attempt
focuses on an individual’s intent rather than on his or her acts.

Five tests by Court

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 other begins. To solve this riddle various
tests have been laid down by the courts. These are as follows:

4
AIR 1970 SC 713, [1969] 2 SCR 663

8|Page
 TYPES OF INCHOATE OFFENCES

I. The Proximity Test : (followed by Indian Court) 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. For instance, A intending to kill Z, buys a
gun and loads it with the intention to kill Z. A is not yet guilty of An attempt to commit
murder. Buying the gun is simply an act of preparation which is not punishable.

A shoots at Z, intending to kill him, but misses the mark either for want of skill, or because of
a defect in the gun. Since A’s act did not cause Z’s death, A could not be liable for murder. But
A would be liable for attempt to murder, because A has done what was legally necessary for
him to do under the circumstances. If A could not succeed in his object, it was not because of
his desisting the act of killing, but because of something beyond his control.
In Sudhirkumar Mukherjee v. State of west Bengal and Abhayanand Mishra v. State of
Bihar, the supreme court explained the offence of attempt with the help of the proximity test,
saying that:- “A person commits the offence of attempt to commit a particular offence’ when-
a) 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 penultimate act towards the
commission of that offence but must be an act during the course of committing the
offence.
II. The Locus Poenitentiae Test: 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
withdrawn 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 either the arena of attempt. He is, thus at the stage of
preparation which cannot be punished.

For example : A girl going for suicide but suddenly changes her mind because of the fear of
unpleasant consequences. She was not guilty and cannot be punished.
A intending to murder Z by poison, purchases poison and mixes the same with food which
remains in A’s keeping. A is not yet guilty of an attempt to murder, because there is still time
when better reason might prevail any moment and A might change his mind and desist from
giving that food to Z.

9|Page
 TYPES OF INCHOATE OFFENCES

In case of State of Maharashtra v. MohdYakub5 it was held that this is not a general principal
and depend upon the facts of the cases and court is free to apply it or not.

III. Impossibility Test : ‘An act which is impossible to commit cannot be attempted
and so it is not culpable’. In AsagaraliPradhani v. Emperor, what the appellant did was
not an “act done towards the commission of offence”, and therefore, he could not be
convicted, but in Malaysian case the accused was liable for an attempt to cause abortion
when the women 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 sec 511. The act itself is impossible of performance and yet it constitutes an offence
of attempt to commit crime.

Cases:
R v. Collins (1864)-it was held that a person is not guilty of an attempt to steal if the accused
put his hand into the pocket of another but the pocket was empty.
R v. McPherson (1857)- A person was not held liable for attempting to commit theft, if he
finds the house empty on entering into the building after breaking open the doors.

R v. Dodd, - the accused hit the log with an axe thinking it was B. – it was held that he was
not liable for attempting to commit murder.

R v. Brown (1889) – the above referred cases were reviewed and Lord Coloridge observed
that earlier decisions were based on a mistaken view of law.
R v. Ring (1892)-the court overruled all the three earlier cases and the accused was held liable
of attempt to steal from the pocket of a lady though her pocket was empty.

IV. 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) 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 eg :- A administers
some drugs to a pregnant women in order to do abortion. However, they do not produce the
result. In spite of this A 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.

5
(1980) Cr LJ 793, AIR 1980 SC 1111

10 | P a g e
 TYPES OF INCHOATE OFFENCES

Cases :
R v. Osbrone – in this case the accused gave some pills to a pregnant lady in order to do
abortion. But that does not cause any effect to that lady. So he was not held liable.
R v. Spicer – In this case the court overruled the above decision and said if pills are given to
a lady for miscarriage but does not cause any effect even then the accused be held guilty.

V. The Equivocality Test : it is a situation wherein there are two opinions about the
crime here, 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. It 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. That is to say, the act must refer to the commission of the crime
and it must be evident and clear on examination.

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

11 | P a g e
 TYPES OF INCHOATE OFFENCES

CONSPIRACY
“An agreement between two or more persons to engage jointly in an unlawful or criminal
act, or an act that is innocent in itself but becomes unlawful when done by the combination
of actors.”

A criminal conspiracy exists when two or more people agree to commit almost any unlawful
act, then take some action toward its completion. The action taken need not itself be a crime,
but it must indicate that those involved in the conspiracy knew of the plan and intended to break
the law. One person may be charged with and convicted of both conspiracy and the underlying
crime based on the same circumstances.

For example, Andy, Dan, and Alice plan a bank robbery. They

1) visit the bank first to assess security,

2) pool their money and buy a gun together, and

3) write a demand letter. All three can be charged with conspiracy to commit robbery,
regardless of whether the robbery itself is actually attempted or completed.

What is Criminal Conspiracy?

Conspiracy is the term for a broad category of crimes involving multiple actors coming together
to engage in criminal activity. Specific federal anti-conspiracy statutes are found throughout
federal law. State statutes also contain anti-conspiracy laws. Criminal conspiracy is a felony,
even when the crime planned and carried out is a misdemeanor.

In recent years, a growing number of white collar criminal prosecutions have included
allegations of conspiracy. A person or business generally is guilty of conspiracy to commit a
crime if that person or business does one of the following:

• with the purpose of facilitating or promoting its commission, agrees with another person
or business to engage in conduct that constitutes a crime or an attempt or solicitation of
a crime; or

• agrees to aid another person or business in planning, committing, or attempting to solicit

a crime.

12 | P a g e
 TYPES OF INCHOATE OFFENCES

In criminal law, a conspiracy is an agreement between two or more persons to commit a crime
at some time in the future. Criminal law in some countries or for some conspiracies may require
that at least one overt act must also have been undertaken in furtherance of that agreement, to
constitute an offense. There is no limit on the number participating in the conspiracy and, in
most countries, no requirement that any steps have been taken to put the plan into effect
(compare attempts which require proximity to the full offence). For the purposes of
concurrence, the actus reus is a continuing one and parties may join the plot later and incur
joint liability and conspiracy can be charged where the co-conspirators have been acquitted or
cannot be traced. Finally, repentance by one or more parties does not affect liability .

CRIMINAL CONSPIRACY UNDER INDIAN PENAL

CODE

Section 120A in The Indian Penal Code, 1860

120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause
to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof. Explanation.- It is immaterial whether the
illegal act is the ultimate object of such agreement, or is merely incidental to that object.
A plain reading of S.120A of the IPC reveals that the criminal conspiracy envisages an
agreement between two or more persons to commit an offence or carry out an illegal act by
unlawful means.6
Section 120B in The Indian Penal Code, 1860
120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
2[ imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
To make a person liable for the offence of conspiracy, it is not necessary that the offender ought
to have been present from the very beginning or even during the entire period of the
conspiracy.7

6
Yogesh v. State of Maharashtra AIR 2008 SC 2991
7
R. Balakrishna Pillai v. The State(1996) Cr LJ 757

13 | P a g e
 TYPES OF INCHOATE OFFENCES

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for
a term not exceeding six months, or with fine or with both.] may reduce their sentence.
Criminal conspiracy main elements are:
• Two or more people
• Agreement to commit a crime: The essence of conspiracy is an agreement. It doesn't have
to be a written one. Usually, it's inferred from the facts or circumstances. Because a
conspiracy by itself is almost treated as a substantive crime in itself, this is the only inchoate
offence that the law permits a person to be charged with in addition to the target crime (that
is, a person can be charged with both murder and conspiracy to commit murder, e.g.).
Agreement is the rock bottom of criminal conspiracy. Agreement is sine qua non for
constituting the offence of criminal conspiracy.Its essence is the unlawful combination. Neither
entertaining an evil wish8 nor mere coincidence of blemish intentions among persons makes
them parties to an agreement.9
Conspiracy is the favourite tool of prosecutors. There are a lot of presumptions and procedural
rules that favour the prosecution. It's easy to get a conviction for conspiracy because, basically,
all the prosecutor has to do is present all the evidence and let the judge tell the jury what test
will be used to determine whether an agreement existed.
• An overt or open act to carry out the plan One can't be charged with conspiracy unless
someone else agrees to commit the crime.
In most jurisdictions, proof of the agreement is sufficient; no further (overt) act is required. In
jurisdictions requiring an overt act, the standard is not as high as the law of attempt, and is
basically proven by showing at least one of the conspirators had at least the intent to commit a
substantive offense. Conspiracy is still a specific intent crime, so "purposively" must be used,
not just knowledge, although there's a whole string of inconsistent case law that indicates
erosion in this area.
The elements of conspiracy include:
(1) mens rea -- a specific intent to attain a particular criminal objective on the part of at least
one person in the partnership. Purpose can be inferred from circumstances surrounding the
combination, such as failure to keep records, clandestine meetings, quantities involved,
continuity of the relationship, etc. There are different rules used by different jurisdictions on
the kinds of relationships that qualify:
• unilateral rule -- the idea that among a group of conspirators, there is at least one
individual with criminal intent
• bilateral rule -- the idea that one cannot conspire alone; at least two guilty persons are
required

8
State of Tamil Nadu v. Nalini AIR 1999 SC 2640
9
Leenart Schussler v. Director of Enforcement(1970) 1 SCC 152

14 | P a g e
 TYPES OF INCHOATE OFFENCES

• wharton's rule -- the idea that because conspiracy charges imply a danger to society,
there must be more (>2) partners than the minimum number required to commit the
crime (a third party must be involved), so therefore, conspiracy to commit adultery,
bigamy, and incest will require 3 people
(2) actus reus -- proof of an agreement is proof of the actus reus for conspiracy. Proof of an
unwritten understanding will suffice. Most agreements are of two types, and the judge is
obligated to instruct the jury how to determine the types:
• chain conspiracy -- this usually involves the distribution of something, like drugs,
where each person in the conspiracy handles the commodity at different points in the
process, like with the stages of manufacture, distribution, and sale
• wheel conspiracy -- this is where a hardcore group of participants ("middlemen")
handle most of the transactions, like a hub, protecting those at the top and those at the
bottom (the spokes) by only allowing them to participate is some of the transactions

Defences and Other Issues:

Police officers cannot initiate a conspiracy -- that would automatically be entrapment. They
can, however, give somebody an opportunity to enter into an existing conspiracy where the
police agent is a feigned accomplice. The defences of impossibility and abandonment are of no
use in conspiracy law as they are considered the same as no defence. However, some
jurisdictions will permit abandonment, but the standard is high, the defendant has to show their
complete and total withdrawal by notifying the authorities about their own involvement and
taking steps to thwart the conspiracy. Conspiracy doesn't recognize anything sacrosanct about
the husband-wife relationship, and a corporation can also be charged as a person with
conspiracy if more than one corporation is involved.

Statutory Conspiracy
Section 1(1) of the Criminal Law Act 1977 creates and defines the offence of statutory
conspiracy. This offence is triable only on indictment, even if the parties agreed to commit a
criminal offence triable only summarily. It is not limited to agreements to commit a statutory
crime (agreements to commit the common law offence of murder are charged under this
offence).

Conspiracy forms:
I. Statutory conspiracy consists of an agreement between two or more people to commit a
criminal offence.

II. Common law conspiracies, on the other hand, fall into two categories;

a) "conspiracy to defraud" : The standard definition of a conspiracy to defraud was

provided by Lord Dilhorne in Scott v Metropolitan Police Commissioner, when he said

15 | P a g e
 TYPES OF INCHOATE OFFENCES

that it is clearly the law that an agreement by two or more by dishonesty to deprive a
person of something which is his or to which he is or would be entitled and an
agreement by two or more by dishonesty to injure some proprietary right of his, suffices
to constitute the offence of conspiracy to defraud, and
b)
"conspiracy to corrupt public morals": Conspiracy to "corrupt public morals" has no
definitive case law; it is unknown whether or not it is a substantive offence, and Herring
sees it as unlikely that conspirators will be prosecuted for this offence.
III. A third category which existed at the time of the 1977 Act, "conspiracy to outrage public
decency", has now become a statutory offence. Indeed, corrupting public morals may have
become a statutory offence; the situation is unclear.

Merger doctrine

The doctrine of merger has been abandoned in many jurisdictions in cases involving a
conspiracy, allowing an accused to be convicted of both conspiracy and the principal offence.
However, an accused cannot be convicted of either attempt or solicitation and the principal
offense.

Renunciation as a Defence to Criminal Conspiracy - At common law, renunciation was not

a defence to conspiracy.

Withdrawal Before Target Offence is Committed as a Barrier to Liability for Target Offence
- A different issue, one that may be mistakenly confused with renunciation of the target
inchoate offense, is the effect of voluntary withdrawal (some may call it "abandonment") from
a conspiracy before its completion on one's liability for the completed target offense.
Concerning the inchoate offense of conspiracy, renunciation is no defence. There are two
different traditional ways under the general law to withdraw from or withdraw from liability
for the substantive offense so as not to be liable for the target substantive offense, namely, (1)
cease all activity in furtherance of the conspiracy to commit the target offense and notify the
other co-conspirators of one's intent to abandon so that they can consider doing likewise and
(in some jurisdictions) nullify your contribution to the conspiracy, e.g., "Sorry group, but you
cannot use my gun for the robbery," or (2) cease all activity in furtherance of the conspiracy
and timely notify the police or make some effort, albeit unsuccessful, to prevent the
commission of the planned substantive target offense.

16 | P a g e
 TYPES OF INCHOATE OFFENCES

CRIMINAL SOLICITATION/ ABETMENT

UNDER COMMON LAW
The English common law recognized Solicitation in 1801 and the least of the common law
inchoate offenses. Criminal solicitation is when one person commands, encourages or asks
another to commit a crime. A common example is prostitution. The crime is complete when
one person asks another to commit an illegal act. It is typically a crime of words that entice,
incite, order, advise or otherwise encourage another person to commit a crime. No overt act in
furtherance of the solicitation is required. In some ways, solicitation is related to the formative
stages of a conspiracy. One way, it differs from conspiracy is that, no agreement is necessary
by the person being solicited. One person can be guilty of solicitation. The crime solicited does
not need to be committed.
The gist of common law solicitation is incitement, asking someone else to commit an offense
with the intent that, that person (the doer) commits the offence as a first degree principal.
At common law, solicitation included these elements:
(1) the request, enticement, urging, or encouragement by the soliciting person,
(2) of another person,
(3) to commit a crime (at English common law, a felony or a misdemeanour that would breach
the peace, obstruct justice or otherwise be injurious to public welfare; only a felony at American
common law) as the actual doer, e.g., first degree principal, and
(4) with intent that the solicited crime be committed.
A person can't be charged with the actual crime solicited and criminal solicitation.
At common law, the defendant is not guilty of solicitation if he asks another person to assist
him in committing the target crime. When you encounter a "do it with me" scenario, it isn't
common law solicitation. Common law required an accomplice-perpetrator relationship. To be
guilty, the solicitor must ask the person solicited to commit the offense himself. i.e., a "do it
for me" scenario. Also, at common law the words of the solicitor must be successfully
communicated to the person solicited. Re merger, solicitation at common law merges with the
substantive crime and the conspiracy crime.
Thus, under modern common law, a defendant cannot be convicted of both solicitation and the
completed crime (or conspiracy). Also, solicitation merges with attempt, as where D1 attempts
to murder V at D2's request but fails, D2 is liable as a party to the attempt under complicity
theory and cannot be convicted of both the solicitation of D1 and the attempt crime committed
by D1 in compliance with D2's solicitation.

Elements of solicitation:
Presently, it’s essential elements are as follows:
(1) with the purpose of promoting or facilitating a crime,

17 | P a g e
 TYPES OF INCHOATE OFFENCES

(2) the solicitor commands, encourages, or requests another person to engage in specific
conduct,
(3) which specific conduct would be a crime, an attempt, or would amount to complicity.
The elements of solicitation include:
(1) mens rea -- not intent to commit a crime, but specific intent to persuade someone else to
commit a crime; also not joking around or making casual comments ("I wish that person would
drop dead") but "purposely" wanting to persuade someone.
(2) actus reus -- words that contain some sort of inducement; words that are on the list of
proper utterances for the crime of solicitation; uttering the words is the actus reus, and it doesn't
matter if the means of utterance is oral, written, or electronic.
Defences: Impossibility of any type is the same as no defence. Some jurisdictions allow
withdrawal or renunciation.

Renunciation of Criminal Solicitation - At common law, renunciation was not a

defence to solicitation. Now only complete and voluntary renunciation of purpose in
solicitation is recognized.

ABETMENT UNDER INDIAN PENAL CODE

Chapter V, section S 107 to 120, relating with Abetment.
When several persons take part in the commission of an offence, each one of them may
contribute in a manner and degree different from the others to the commission of it. The offence
may be committed by the hands of one person at the instigation of another person, while some
other may only be present for offering help at the time of commission of it, and still others may
help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature
and degree of participation of each of the persons to determine their degree of culpability.
However several gradations of action do not necessarily imply different measures of guilt with
a view to distinctions in punishment.
In Barendra Kumar Ghosh v. King Emperor10 held that the presence of a person at the scene of
occurrence does amount to abetment if it is intended to encourage the commission of an
offence. Mere proof that crime charged could not have been committed without the
interposition of the alleged abettor is not enough.11
In English Law, differently treat the principle offender who may be of first degree and
accessories who may be second degree.
IPC- The Indian penal code makes a brad distinction between principals and abettors but does
not recognize the accessory after the fact except that offenders has been made a substantive
offence in some cases.

10
AIR 1925 PC 1
11
Shri Ram v. State of Uttar Pradesh AIR 1975 SC 175

18 | P a g e
 TYPES OF INCHOATE OFFENCES

Under IPC abatement is constituted in the following ways:

1. Instigating.
2. Engaging
3. Aiding.

Instigating
Means the act of inciting another to do a wrongful act. One may abet the commission of an
offence by counseling, suggestions, encouraging, pouring or commanding another to do an
act. In order to constitute abatement by instigation some active proceeding towards the
preparation of the crime is necessary. To instigate means to actively suggest or stimulate by
any means or language, direct or indirect, whether it take the form of express solicitation or of
hints, insinuation or encouragement, or to provoke, incite, urge or encourage to do an act. Any
form of language may be used but there must be reasonable certainty in regard to the meaning
of the words which an inciter may use.
Instigation may be in any form. Law does not require instigation to be in a particular form or
that it should only be in words. The instigation may be by conduct.12
Illus-
A and B discovering that C intended to commit theft in Z's house. Arrange together to persuade
him to steal there from certain articles form them. Here A and B will be liable for abatement
and C for theft.
Mere acquiescence, silent assent or verbal permission would not constitute instigation.
A tells B that he intends to murder C,B says do as you like, A kills C, here B cannot be said to
have instigated.
Reason- it was meant actively to suggest or stimulate the commission of an offence.
Willful misrepresentation or Concealment:
Explanation I of section 107 of IPC says that instigation may be constituted of willful
misrepresentation or willful concealment of a material fact by one who is bound to disclose it.
Instigation by Letter: Instigation may be direct or it may be by a letter. Where A writes a
letter to B instigating thereby to murder C, the offence of abatement by instigation is completed
as soon as the contents of the letter become know to B. if the letter never reaches B, it is only
an attempt to abet but not abatement.

Abatement by Engaging
Abatement by conspiracy: abatement of conspiracy consist when two or more person engage
in a conspiracy for doing a thing which is illegal thing or act or illegal omission.
Thus in order to constituted abatement by conspiracy following conditions must be there:

12
Ram Kumar v. State of Himachal Pradesh AIR 1995 SC 1965

19 | P a g e
 TYPES OF INCHOATE OFFENCES

1. A conspiracy between two or more person.

2. An act or illegal omission may take place of that conspiracy.
Conspiracy means an agreement between two or more persons:
i. To do an illegal act or
ii. To do an act which is not illegal by illegal means.

Thus clause II of section 107 of IPC, is a mere combination of person or agreement is not
enough , an act or illegal omission must also take place in pursuance of the conspiracy and the
act or illegal omission must also be in order to the doing of the thing agreed upon between
them.
But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an
offence. Clause 2 has to be read together with Explanation 5 of section 108, which provides
that it is not necessary to the commission of the offence of abatement by conspiracy that the
abettor should concert the offence with the person who commit it. It would be sufficient if he
engages in the conspiracy in pursuance of which the offence is committed.

Conviction for conspiracy-

No person can be convicted for conspiracy, if the charge against all other conspirators has
failed, or if other alleged conspirators are acquitted.
Abatement by Aid-
A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the
doing of that thing. It would be clear if we read clause 3 of s107 with explanation 2, that a
person cannot be held guilty of aiding the doing of an act when the act has not been done at all.
Mere intention to facilitate, is not sufficient to constitute abatement, unless the act which it is
intended to facilitate actually take place.
A mere giving aid does not amount to abetment by aid if he does not know that the offence was
being committed or contemplated. Intention to aid the commission of an offence is the gist of
the offence of abetment by aid.13 A person aiding the commission under coercion of fear,
therefore, does not come within purview of the provision.14

Illustration-
A servant keeps open the gate of his master's house, so that thieves may come, and thieves do
not come. But the servant intended and informed thieves the door is open and they can come,
he would be held liable for abatement.

Mere giving of aid- A mere giving of help is not amount of abatement, until the person
who provides the aid does not know that an offence was being committed or constituted.

13
Trilok Chad v. State of Delhi AIR 1977 SC 666
14
Dalpal Singh v. State of Rajasthan AIR 1969 SC 17

20 | P a g e
 TYPES OF INCHOATE OFFENCES

Illustration-A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C

provide the aid, but he did not know that A wanted to kill B. So he would not be held liable for
abatement.

Mere presence does not amount to aiding-

Mere presence at the commission of an office done not amount to intentional aid, unless it was
intended to have that effect., and the present aware that an offence is about to be committed an
office, or he actively support or present hold some position, authority, or rank in committing
the offence.

Aid by illegal omission-

When law impose a duty on someone and he intentionally for adding some one in an illegal,
failed to discharge his duty he shall be liable for abatement

CONCLUSION
Therefore, we can clearly see from these inchoate crimes that they are not similar to the other
crimes as stated under the Indian Penal Code. These crimes do not look into the merger of the
requisite mens rea to commit a crime and its subsequent actus reus which is the commission of
that crime. Such inchoate crimes are those crimes wherein there has been a change made in the
normal rules of criminal law to facilitate such a crime. In criminal conspiracy, though there is
not an actus reus which is similar to the mens rea in the sense that the mens rea is the satisfaction
of the ultimate objective whereas the actus reus is the crime that the person does which is not
the ultimate goal of the conspiracy as such and is just an act done in furtherance of the final
goal. In the offence of attempt, there is an inherent difference between the actus reus and the
mens rea of the individual. It is however considered that as the individual when committing the
act believes that the actus reus will be the same as the mens rea, in the sense that they will both
be towards the same act, this belief is considered as enough to prosecute these individuals. In
the offence of abetment, the same place true.
The mens rea will be the fulfillment of the final goal of the individual whereas the actus reus
will be an incitement or an omission or assistance given in the furtherance of the crime to be
committed which is the end goal. It is to be noted that as these offences fall short of the offence
that the individual really wants to commit, as in the individual in this case fails to commit the
offence he intends to do, the punishments for such offences are less grievous than what is
prescribed if the intended offence would have been committed. Therefore, fro this we can
clearly see that inchoate offences are a new breed of offences which are different from all other
offences in the Indian Penal Code and these offences are mainly to discourage the commission
of the original intended offence. These offences discourage people from committing a grievous
offence as a failure to commit the offence will still lead to their prosecution under the law for
a sizable amount of time. Inchoate offences are therefore those offences whose main reason for
establishment was the public interest. Public would now think twice before the commission of
an offence. Even if they failed to achieve their end goal, they would be prosecuted in a less
rigorous but still a fairly harsh manner.

21 | P a g e
 TYPES OF INCHOATE OFFENCES

BIBLIOGRAPHY

▪ STATUTES
➢ INDIAN PENAL CODE, 1860
➢ COMMON LAW STATUTES
▪ BOOKS REFERRED
➢ Hari Singh Gour, Penal Law of India, Volume 4, 11th Edition, Law
Publishers, Allahabad, 1998.
➢ K.I.Vibhute, PSA Pillai’s Criminal Law, 11th Edition, Lexis Nexis
Butterworths Wadhwa Nagpur.
➢ K.D.Guar, Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.
▪ WEBSITES
➢ www.indiankanoon.com
➢ www.lawctopus.com
➢ www.manupatra.com
➢ www.scconline.com

22 | P a g e