(c) Conviction of Elizabeth under Section 380 of the IPC

Section 511 of the IPC, 1860, states the punishment for attempting to commit offences
punishable with imprisonment for life or other imprisonments. The bare act wordings are:
“Whoever attempts to commit an offence punishable by this Code with [imprisonment for
life] or imprisonment, or to cause such an offence to be committed, and in such attempt does
any act towards the commission of the offence, shall, 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.”

This section states that if a person attempts to commit an offence or instigates an offence to
be committed thereby does an act which amounts to the offence, which is punishable under
the Code with imprisonment for life or imprisonment, wherein no express provisions are
made under this Code punishing such an attempt, may be punished with a term which
extends to one-half of the life imprisonment or one half of the longest term of imprisonment
as can be provided for that offence, or with fine which is levied for committing such an
offence , or with both the imprisonment and the fine. .

This section, therefore, punishes a person for attempting to commit an offence which is not
punishable under the provisions of the Code, thereby treating the attempt to commit an
offence, as an offence in itself. The key term to be noted here is the attempt to commit the
offence. Moreover, this section punishes only the attempt to commit such offences for which
the punishments either in the form of imprisonment or with a fine has been specifically
mentioned under the Code. The punishment granted for attempting to commit such an offence
shall not exceed one half of the life imprisonment or one half of the longest term which can
be passed for committing the offence, or with a fine or both. The attempt to commit the
offence has the same cognizance of the offence when committed. .
This section has been farmed in order to punish the moral wrong committed when an attempt
is made to commit an offence. An attempt is made punishable, because every attempt,
although it falls short of success, must create alarm, which by itself is an injury, and the
moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to
injury in order to justify punishment. As the injury is not as great as if the act had been
committed, only half the punishment is awarded.
Theft in Dwelling houses is defined under Section 380 of the IPC, it states that, any person
who commits the offence of theft in a building or a vessel which is used for the purpose of
human dwelling or is being used for the custody of the property will be punished with an
imprisonment of a description for a term of seven years (maximum) and it can be less than
that also and he shall also be liable to fine. The provisions of the bare act are: “Whoever
commits theft in any building, tent or vessel, which building, tent or vessel is used as a human
dwelling, or used for the custody of property, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.”
The section is applicable in the present case as the place of theft is Diana’s house which falls
under the ambit of “human dwelling”.

The word “attempt” is not itself defined under the Code, it has however been amply
described by the Supreme Court in the case of Koppula Venkat Rao v. State of Andhra
Pradesh, (2004) 3 SCC 602. Where in it was stated that “ an attempt to commit an offence is
an act, or a series of acts, which leads inevitably to the commission of the offence, unless
something, which the doer of the act neither foresaw nor intended, happens to prevent this.
An attempt may be described to be an act done in part execution of a criminal design,
amounting to more than mere preparation, but falling short of actual consummation,
and, possessing, except for failure to consummate, all the elements of the substantive
crime. In other words, an attempt consists in it the intent to commit a crime, falling short of,
its actual commission or consummation/completion. It may consequently be defined as that
which if not prevented would have resulted in the full consummation of the act attempted.”

The difference between the attempt and preparation has also been drawn in the case of
Malkiat Singh & Anr vs State Of Punjab, 1970 AIR 713, wherein it was held that “A culprit
first intends to commit the offence, then makes preparation for committing it and thereafter
attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it
fails due to reasons beyond his control, he is said to have attempted to commit the offence.
Attempt to commit an offence can be said to begin when the preparations are complete and
the culprit commences to do something with the intention of committing the offence and
which is a step towards the commission of the offence. The moment he commences to do an
act with the necessary intention, he commences his attempt to commit the offence. .
An attempt to commit a crime is to be distinguished from an intention to commit it, and from
preparation made for its commission. Mere intention to commit an offence, not followed by
any act, cannot constitute an offence. The will is not to be taken for the deed unless there be
some external act which shows that progress has been made in the direction of it, or towards
maturing and affecting it. The intention is the direction of conduct towards the object chosen
upon considering the motives which suggest the choice. Preparation consists of devising or
arranging the means or measures necessary for the commission of the offence. It differs
widely from an attempt which is the direct movement towards the commission after
preparations are made.”

Applying the judgements of the above cases to the case in hand, it is seen that the actions of
Elizabeth were not merely an “attempt” but were complete in nature the second she was
successful in clicking the photographs of Diana’s documents in her mobile-phone. Section
511 of the IPC, talks about punishment for the “attempt” of certain punishable offences
specified in the Act, whereas Section 380 of the IPC talks about the actual commission of
theft in a human dwelling place which is the actual fact of the scenario.

Thus, since there was no “attempt”, but actual commission of theft by Elizabeth, the counsel
contends that Elizabeth should be convicted under Section 380 of the IPC and not Section
511 of the same.