PROJECT REPORT ON CRIMINAL ATTEMPT

ASSIGNMENT ON INDIAN PENAL CODE

PROJECT REPORT ON CRIMINAL ATTEMPT

2018-2019

NAME- SWAPNIL DUBEY

B.A.LL.B 5TH SEMESTER

TEACHER- PROF. SAADIYA SULEMAN

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 PROJECT REPORT ON CRIMINAL ATTEMPT

ACKNOWLEDGEMENT

It gives me immense pleasure and gratitude to thank my, Law teacher, Dr. SAADIYA
SULEMAN who gave me opportunity to do this wonderful project which helped me in doing
a lot of research and I came to know about so many new things. I am thankful to her.

Secondly, I would like to give thanks to all my seniors who have guided throughout the research
process.

Lastly, I feel that my project would not have been completed without the help of my parents
and friends.

YOURS SINCERELY,

SWAPNIL DUBEY

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 PROJECT REPORT ON CRIMINAL ATTEMPT

INDEX

S NO. TOPIC PAGE NO.

1. LIST OF CASES 4

2. INTRODUCTION 5

3. CHAPTER 1 6

4. COMMON LAW ORIGIN OF DOCTRINE OF CRIMINAL 7

ATTEMPT
5. DEFINING ATTEMPT AND SETTLED POSITIONS IN 7
BRITAIN & INDIA
6. EXCLUSIVENESS OF SECTION 511 8-10

7. OVERVIEW: CRIMINAL ATTEMPT TO SEXUAL OFFENCES 10-12

8. CONCLUSION 13

9. BIBLIOGRAPHY 14

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List of Cases
1. Abhyanand Misra v. State of Bihar, AIR 1961 SC 1698
2. Aman Kumar v. State Of Haryana, 2004 4 SCC 379
3. Amarjit Singh v. State of Harayana,(1996) 3 RCR 612 (P&H)
4. Bharwada Bhoginbhai HirjiBhai v. State of Gujarat, AIR 1973 SC 753
5. Empress v. Raisat Ali, (1881)ILR 7 Cal 352
6. Jugendra Singh v. State of U.P. , (2012) 6 SCC 297
7. Koppula Venkat Rao v. State of A.P., 2004 3 SCC 602
8. Manik Debnath v. State of Tripura, 1999 Cr LJ 4650
9. Queen Empress v. Mangesh Jivaji, (1887) 1 Bom 376, p. 381
10. Queen Empress v. Niddha, ILR 14 ALL 38 (1891)
11. Reg. v. Cheesman, 1 L. & C. 140, 1862
12. R v. Collins, 9 Cox, C.C. 407
13. R. v. Dodd, 18 Law Times N.S. 89, 1896
14. Regina v. Francis Cassidy , (1867) 4 B.H.C.R. Crl. 17
15. R. v. Higgins, (1801) 2 East 5 : 102 ER 269
16. R v. Linnekar, [1906] 2 KB 99
17. Re R Mac Crea, (1893) ILR 15All 173
18. R. v. McPherson, D. & B. , p.197
19. R. v. Ring, 17 Cox, p.49
20. R. v. Scofield, (1784) Cald 397
21. R. v. Tulsha, ILR 20 ALL 143 (1891)
22. Satvir Singh v. State of Punjab, AIR 2001 SC 2828
23. Shiv Shankar v. State of U.P. , 2002 Cr LJ 2673
24. State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 Cr LJ 4003
25. State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111
26. Subli Hajam v. State, 2003 Cr LJ 281 (J&K)

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INTRODUCTION

The law of criminal attempts comes under the broader bracket of offences in criminal law
termed as inchoate offences, which may be defined as offences that involve taking a definite
step towards the fulfilment of a criminal intention, but which step does not result in the full
commission of the offence intended. In other words, inchoate offences are those steps towards
the commission of an offence that are "sufficiently serious to be punishable, although the crime
in view has not been accomplished."1 While inchoate offences can be of various types such as
conspiracy, criminal facilitation, solicitation etc., perhaps the most commonly enforced form
of inchoate offences is criminal attempt.

While several definitions of 'attempt' exist in juristic works as well as court judgements, it is
clear that a universally agreed definition or even one which can be uniformly applied in a
particular legal system eludes us. In the words of Justice Sarkaria of the Supreme Court -
"Attempt defies a precise and exact definition."2. However, the law of criminal attempts can be
seen in virtually every legal system of the world, in one form or the other.

In India, the law of attempts is governed by the residual provision of Section 511 of the Indian
Penal Code. It is residual in scope in the sense that it prescribes the punishment for attempting
to commit those offences in the IPC that do not have an express provision for the punishment
of such an attempt. Moreover, as is evident from the wording of the Section as well as various
judicial precedents3, the provision deals only with the attempt to commit those offences which
are punishable in the IPC with life imprisonment, or imprisonment. Attempts to commit those
offences which are punishable only with fine or with the death penalty are not within the scope
of this provision. The provision is also not applicable to attempts to commit offences under
special or local laws4. The Section has remained unchanged since the enactment of the IPC
since 1860.

1
MONICA CHAWLA, CRIMINAL ATTEMPT AND PUNISHMENT xi (1st ed. 2006).
2
State of Maharashtra v. Mohammad Yakub, (1980) 3 SCC 57.
3
Satvir Singh v. State of Punjab, AIR 2001 SC 2828.
4
LEXIS NEXIS, HALSBURY'S LAWS OF INDIA 216 (Vol 5(1), 2008 Reprint).

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Chapter 1

This Chapter seeks to trace the evolution of Criminal Attempts and to clarify the question of
exclusivity of Section 511. In addition to this, the chapter would also provide an overview on
Attempt to commit Sexual offences. Indian judiciary has developed several tests to punish
criminal attempts and the basis behind such rationale needs to be understood. In particular, this
Chapter will analyze the legal basis provided by the courts for incriminating criminal attempts
while tracing its evolution.

It is very important to know the history or the evolution of concept to understand it better and
in the case of Criminal Attempts it becomes even more important as ‘attempt’ has been one of
the focal points of discussion in criminal law and criminal liability for commission of an
attempt has now become an integral part of the criminal justice system.

Common law origin of the doctrine of Criminal Attempt

The law of criminal attempt as told above has always been a matter of great interest to jurist
and even to philosophers. The idea has always been so much complicated that it has been
discussed and deliberated upon since centuries. Traces of the idea to punish criminal attempt
date back to the days of Plato who stated that one who has a purpose and intention to slay
anther who is not his enemy and whom the law does not permit him to slay, and he wounds
him, but is unable to kill him.5 Here it can be understood from the statement that in that period
of time people were deliberating upon the concept of criminal attempt and thus also on the
question o attribution of criminal liability to such attempts. 16th Century Courts of Star
Chamber can be said to be the first courts to deal with matters of criminal attempt as they were
setup to do away with the defects of the common law. Several crimes were dealt in those courts
and one of those offences was termed as “lying in wait with an intention to murder”.6

Lord Mansfield, for the first time tried to codify the doctrine of criminal attempt in his decision
in R. v. Scofield7 in 1784. It was a matter of an attempt by a tenant to burn the house he was
residing in and in this matter the court held that the attempt to commit felony is in itself a felony

5
Jerome Hall, Criminal Attempt : A Study of the Foundations of Criminal Liability,49 Yale LJ 791
6
Fredrick Pollock, William Maitland, The History of English Law, Vol. I, 2 nd Edn. 476, Note 5
7
(1784) Cald 397

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and the doctrine was briefly laid down by stating “nor is the completion of an act, criminal in
itself, necessary to constitute criminality”.8

This doctrine was clearly explained in R. v. Higgins9 where Justice Lawrence stated, it must be
admitted that “an attempt to commit a felony in many cases is at the least a misdemeanour and
even a misdemeanour … (sic) has been shown in many cases to be itself a misdemeanour” and
such misdemeanour was made punishable.

The concept of attempt which is followed in India was laid down in R. v. Ring10 which clarified
the earlier judgments of Reg. v. Cheesman11 , presided by Justice Blackburn, and R. v.
McPherson12 relating to the matter of distinction between Attempt and Preparation. In fact, the
illustration attached to the Section 511 is the actual case of R v. Collins13 in which it was ruled
out that a person cannot be convicted for attempt to steal in case the pockets are empty. Similar
reasoning was put forth in another case of R. v. Dodd.14 Though t his was clarified in the matter
of R. v. Ring wherein a person was convicted for an attempt to steal when the purse was empty
thus overruling the earlier judgment of Collins. It was clarified by the court that it was too
dangerous to allow someone to roam on the streets who is a known pickpocket but cannot be
arrested until it is detected by the police officials that the people around him do not have empty
pockets.

So, the rationale behind culpability of criminal attempt was drawn from the intention a person
has coupled with an overt act which manifests that intention. The courts in India have followed
this reasoning and it was only after the case of R. v. Ring that the Section 511 was added to the
Indian Penal Code as it was not present in the draft of 1840.

Defining Attempt and Settled positions in Britain and India

There have been several attempts to define ‘ attempt’ but no such definition can be held to be
complete in itself, yet the explanation of the definition of Attempt by Prof. Turner is worth
mentioning. According to it the prosecution needs to prove that the acts taken by the accused
reached such a point that it was prima facie clear to make out his intention to commit the

8
Id
9
(1801) 2 East 5 : 102 ER 269, 274-75
10
17 Cox, p.491
11
1 L. & C. 140, 1862
12
D. & B. , p.197
13
9 Cox, C.C. 407
14
18 Law Times N.S. 89, 1896

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crime.15 Also, it is important to look at the definition given by Black’s Law Dictionary (9th
Edn.) which says16:

1. The act or an instance of making an effort to accomplish something, esp. without

success.
2. Criminal law. An overt act that is done with the intent to commit a crime but that
falls short of completing the crime. • Attempt is an inchoate offense distinct from
the intended crime. Under the Model Penal Code, an attempt includes any act that
is a substantial step toward commission of a crime, such as enticing, lying in wait
for, or following the intended victim or unlawfully entering a building where a crime
is expected to be committed.

These definitions make it very clear that it is an overt act done with the required intention to
commit a crime which falls short of reasons beyond the control of the accused.17 It is also worth
mentioning here what the Supreme Court said in the matter of Aman Kumar v. State Of
Haryana18 regarding the reason behind culpability for commission of an attempt. It mentions
that it has been the policy of law to destruct the potential anti social elements from the very
beginning and it is necessary to punish these elements because though they fall short of success
they create an alarm in the society and the moral guilt is same as the offender had succeeded.19

After understanding the definition it is important that we get to know about some unsettling
positions that existed and which brought in the need to make additional clarification to the
definition of attempt as described in Section 511.The unsettled position arose due to a
difference in the application of the definition in India and Britain as the English Law demanded
that the act should be the penultimate one so as to constitute an attempt.20 This principle was
adhered in the case of Empress v. Raisat Ali21 while a different reasoning was applied in the
case of Re R Mac Crea22 which questioned the test of proximity and explained that the chain
of acts in commission of a crime involves a lot of time and as it is nowhere to be found that the
last act should be the one for which punishment is to be attributed the wording in the section

15
Prof. J.W. Cecil Turner, Kenny’s outline on Criminal Law, 18 th edn.
16 Black’s Law Dictionary, 9th Edn.
17
Satvir Singh v. State of Punjab, AIR 2001 SC 2828
18
2004 4 SCC 379
19
Koppula Venkat Rao v . State of A.P., 2004 3 SCC 602
20
S.K Sarvaria, R.A. Nelson’s INDIAN PENAL CODE, Vol. 4 , 9th Edn.,4817-4818
21
(1881)ILR 7 Cal 352
22
(1893) ILR 15All 173

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should be understood in a wider view and thus any overt act from among the series of acts
which is criminal i.e. conducive to the commission of the offence intended is to be punished.23

The Supreme Court in a later judgment of Abhyanand Misra v. State of Bihar24 settled the
position by mentioning that the overt act to be punished need not be the penultimate act.
Supreme Court judges in a later case of Mohd. Yakub25 which is now the law governing
Criminal attempts agreed on the following aspects of the definition of Attempt:

 Both the judges greed to the conventional observation of the stages in a crime and lace
attempt after preparation
 The requirement of guilty mind coupled with an overt act manifesting the same is to be
necessarily established
 Such establishment should be based on an evidence which is independent of the act to
prove the intention 26

In addition to the third point above it is also clear that there must be a evidence of an overt
act manifesting the mens rea.27 Also it is important to understand that the section does not
punish a person for an attempt at such an offence which is not punishable under the code.
This position was clearly laid down in the year 1887 in the Mangesh Jivaji.28

Exclusiveness of the Section 511

The matter related to the exclusivity was always settled but a broader understanding on the
matter led the Bombay High court in the case of Regina v. Francis Cassidy29 to decide that the
scope of section 511 was so wide that it was needed to punish the accused under section 511
rather than sec. 307 or sec. 308 and thus is applicable on attempt to commit murder and attempt
to commit culpable homicide. This understanding was not followed by the Allahabad High
Court and totally disagreeing with the same they in the matter of R. v. Tulsha30and in the famous
case of Queen Empress v. Niddha31 did not apply the reasoning in Cassidy and expressly

23
Id.
24
AIR 1961 SC 1698
25
AIR 1980 SC 1111
26
B.B. Pande, An Attempt on ‘Attempt’,(1984) 2 SCC J-42, at J-45
27
R v. Linnekar
28
(1887) 1 Bom 376, p. 381
29
(1867) 4 B.H.C.R. Crl. 17
30
ILR 20 ALL 143 (1891)
31
ILR 14 ALL 38 (1891)

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mentioned that as these crimes have been exclusively provided for in the IPC such wider view
was redundant.

The section 511 of IPC expressly reads, ‘shall where no express provision is made by this code
for the punishment of such attempt’ and clearly implies that there exists a need to identify a
case of attempt distinct of those provisions of attempt which the code already provides for
separately.

Also, in the case of Satvir Singh v. State of Punjab32 it is mentioned in Para 10 that the section
requires two conditions to be completed for its attraction and these are that the offender should
have done some overt act towards the offence and the other reads that such an attempt should
not be expressly covered as a penal provision elsewhere in the code.

Such wider interpretation would not only lead to a deviation from the normal course of strict
interpretation but would also be against the intention of the legislature which by using the
phrase, ‘and in such attempt does any act towards the commission of the offence’ may have
intended the section to be applicable on limited class of crimes and did not want the section to
become an overarching one.33

Overview: Criminal Attempt to sexual offences

Criminal attempts falling short in the commission of a sexual offence are very prominent in
India and there are several cases on the matter. The law in this keeps on changing so as to
include better laws and thus provide justice and relief to the sufferer and also to create
deterrence in the public against such heinous crimes.

One of the important cases in this light is Bharwada Bhoginbhai HirjiBhai v. State of Gujarat34
which laid down a general rule that if there is no basic infirmity in the evidence and the
probability factor does not affect the credence of such evidence, there would be no reason to
insist on corroboration. In another case of Manik Debnath v. State of Tripura35 it was held that
the medical evidence should corroborate the testimony of the victim who is claiming rape. In
such a matter if no spermatozoa is found in the vaginal swab the conviction of the accused
under section 376 is to be altered under 376/511,IPC.

32
See para 10, AIR 2001 SC 2828
33
See Shamsul S. Huda , Lectures on Law of Crimes, p. 50
34
AIR 1973 SC 753
35
1999 Cr LJ 4650

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In the important case of State of Maharashtra v. Rajendra Jawanmal Gandhi 36 it was held that
the accused intended to commit rape on the girl, but in the commission of which he discharged
and thus could not penetrate and was unable to complete the offence of rape; as a necessary
condition for the attraction of Section 376 is penetration without the consent of the girl which
was not completed. The Court held that despite the fact that there was no charge u. section 376
read with 511 of IPC, it is possible to charge the accused under the same sections due to Sec.
222 of the CrPc, 1973. Therefore, he was held guilty of attempt to commit rape and the
conviction under Section 57 of the Bombay Children Act, 1948 was also upheld. In the
Halsburys’ Statutes of England and Wales (Fourth Edition), Vol. 12 it is stated that even the
slightest degree of penetration is enough to prove sexual intercourse.

There are some other important provisions in addition to the judgments by the court which are
worth learning. Alteration of conviction from sections 376/511 to section 354 is possible when
the use of force by the accused is judged not to be of such gravity that would convince the court
that the intention was to commit rape but it could be dealt under section 354 which talks about
outraging the modesty of a Woman. Such force can be used to make the victim fall down 37 or
in another case the higher degree of determination to commit rape may be absent.38 Simply it
can be said that in situations where in some kind of indecent assault is made upon a woman but
rape is not committed then the culprit can be charged under Section 354.Also, the accused can
always try to prove that in question is of immoral character as any of her evidence will not be
taken into account if this is proved.

Sentencing also differs in the matters as it is based on case to case rather being fixed. The
general sentence for attempt to rape is half the sentence prescribed under the main offence39
and is so because, though the moral guilt remains to be the same as that related to the
commission of the offence the damage is not such and thus the sentence is halved.40 Stringent
punishments have been awarded by the courts in matters wherein the social circumstances were
such that the accused should have been deterred by them but despite such circumstances he
went on to commit the act.

36
1997 Cr LJ 4003
37
Shiv Shankar v. State of U.P. , 2002 Cr LJ 2673
38
Subli Hajam v. State, 2003 Cr LJ 281 (J&K)
39
Amarjit Singh v. State of Harayana,(1996) 3 RCR 612 (P&H)
40
Supra, note 14

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Thus, to prove an accused guilty of an attempt to commit a rape and also to distinguish it from
an assault or act to outrage the modesty of a woman it is to be proved in the court of law that
the accused not only sought to gratify his passions upon the sufferer but also that his
determination to commit the act was of such higher degree that the desire to commit the act
would not withstand any resistance on her part or any other occurrence beyond his control.
Circumstantial evidence has great importance in such cases and such intent has to be gathered
from it.41 Courts in such matters have always understood them as one which destroy the social
equilibrium and mar the reputation of the victim and thus have awarded punishments
accordingly as per law.42

Now a look on laws regarding attempt to commit offences as a crime, that have been given
effect to by The Criminal Law (Amendment), Act,2013 ,based on Justice J.S. Verma
Committee Report :

1. Insertion of a clause in Section 100, after clause sixthly which makes ‘attempt to
throwing or administering of acid causing apprehension of grievous hurt’ an
offence, against which right of private defence is extended.43
2. Insertion of Section 165A and 165B which punish public servants for knowingly
disobeying the directions under law or failing to record any information given to
them and for non treatment of the victim.44
3. Insertion of Section 326B which inculpates for voluntarily causing grievous hurt by
use of acid.45
4. Insertion of section 354D which inculpates for attempt to Stalk.46

41
Supra, note 15
42
Jugendra Singh v. State of U.P. , (2012) 6 SCC 297
43
Sec. 2, The Criminal Law (Amendment) Act, 2013
44
See Sec. 3 of The Criminal Law (Amendment) Act,2013
45
Sec. 5, The Criminal Law (Amendment) Act, 2013

46
Sec. 7, The Criminal Law (Amendment) Act, 2013

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CONCLUSION

This chapter thus hereby clearly concludes that the definition of attempt has been now clearly
laid down in the country by various judgments of the Supreme Court and there remains no
question regarding exclusivity of Section 511 and its scope which was settled by the Supreme
Court in Satvir Singh’s case.

The tests necessary for the determination of a Criminal Attempt, as they have been evolved by
the Supreme Court have been discussed in the subsequent chapters.

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BIBLIOGRAPHY

BOOKS

 PSA PILLAI CRIMINAL LAW, K.I VIBHUTI, 13TH ED. 2016

 RATANLAL & DHIRAJLAL, INDIAN PENAL CODE, 12TH ED. 2017
 K.D GAUR, INDIAN PENAL CODE, 15TH ED. 2017

WEBSITES

 https://www.lawteacher.net/free-law-essays/criminal-law/the-criminal-attempts-
act.php
 https://www.academia.edu/6820085/IPC_PROJECT.
 http://shodhganga.inflibnet.ac.in/bitstream/10603/63023/13/13_conclusion%20and%2
0suggestions.pdf.

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