Stage Three: What an Attempt Is

Why it matters here. It is the definition every later Indian case starts from, and its rejection of the penultimate act test is what makes the definition workable. The identification of the exact moment, the despatch of the application, is the model for how a court decides these cases.

The rejection of the penultimate act test

The older view, in England and in some Indian decisions, was that an attempt is the last act the accused can do before the offence is complete. The Supreme Court rejected it twice in the same month.

Om Parkash v. State of Punjab, AIR 1961 SC 1782, decided on 24 April 1961.

Facts. The appellant's wife, married to him in 1951, was ill-treated and undernourished, and in 1956 was deliberately starved and not allowed to leave the house, being only sometimes thrown a morsel. On 5 June 1956 she escaped and reached the Civil Hospital at Ludhiana, where the doctor sent a note to the police saying she was seriously ill and might collapse at any moment. The High Court found his object was to confine her and deprive her of regular food in pursuance of a scheme of regular starvation to accelerate her end, and convicted him of attempt to murder. He argued that depriving her of food could not by itself have caused death, the starvation needing to continue longer.

Held. A person commits an attempt to murder when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission, irrespective of whether that act is the penultimate act or not. The word "act" in the section does not mean only a particular act but denotes, under the general explanations, a series of acts as well as a single act. Abhayanand Mishra was followed.

Why it matters here. Its facts show why the penultimate act test is unworkable. A scheme of starvation has no single last act, so a test that asks for one produces an acquittal in the clearest possible case.

The statutory provision

Section 62 of the Bharatiya Nyaya Sanhita: whoever attempts to commit an offence punishable by the Sanhita 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 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 provided for that offence, or with such fine as is provided for the offence, or with both.

Its two illustrations are the statute teaching the impossible attempt point. A makes an attempt to steal jewels by breaking open a box and finds after opening it that there is no jewel in it: he has done an act towards the commission of theft and is guilty. A makes an attempt to pick Z's pocket by thrusting his hand into it and fails because Z's pocket is empty: A is guilty.

Why the punishment is half

Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602, gives the reason in the Court's own words: 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 to justify punishment, and as the injury is not as great as if the act had been committed, only half the punishment is awarded.

That single sentence explains both why an attempt is an offence and why the section fixes the penalty at half.

Worked example

Anita, intending to poison her employer, buys poison, keeps it in her bag for a week, then pours it into his tea and places the cup on his desk. He is called away and never drinks it.

Intention to commit that offence? Yes, to cause death.

Preparations complete? Yes, when the poison was bought and carried.

An act towards the commission? Yes, pouring the poison and placing the cup. On Abhayanand Mishra it need not be the last act; the offence would be complete on drinking, and the pouring is an act during the course of committing it.

Would it matter that he never drank? No. It is not necessary that the transaction commenced must end in the offence if not interrupted.

Would it matter that the poison was too weak to kill? That is a different question, and it is the subject of the chapter on impossible attempts.

When exactly did the attempt begin? Follow Abhayanand Mishra's method and identify the moment: not at the purchase, not at the carrying, but at the pouring, which is the first act referable to nothing but the offence.

What it does NOT mean

It does not mean any act after preparation is an attempt. The act must be reasonably proximate to the offence, and that is the next chapter.

It does not mean the attempt must be capable of succeeding on the facts. The illustrations to section 62 show the opposite for two cases.

And it does not mean an attempt is a half-offence. It is a distinct offence, punished at half the maximum because the injury is less, not because the guilt is.

Quick revision

• Three ingredients: the intention to commit that particular offence; preparations made; and an act towards its commission.
• Abhayanand Mishra: the act need not be the penultimate act but must be an act during the course of committing the offence; and it is not necessary that the transaction would have ended in the offence if uninterrupted. Preparation was complete on preparing the application; the attempt began the moment he despatched it.
• Om Parkash: an attempt to murder is complete on an act in pursuance of the intention irrespective of whether it is the penultimate act, and "act" includes a series of acts.
• Section 62: any act towards the commission, where no express provision exists, punished with up to one-half of the imprisonment provided for the offence. Its two illustrations cover the empty box and the empty pocket.
• Koppula Venkat Rao: an attempt is punished because it creates alarm, which is itself an injury, and the punishment is half because the injury is less.

Test yourself

1. State the three ingredients of an attempt. The intention to commit that particular offence; preparations having been made; and an act done towards the commission of the offence with that intention.

2. Must the act be the last act the accused could do? No. Abhayanand Mishra holds that it need not be the penultimate act, and Om Parkash applies the same rule to attempt to murder, where a scheme of starvation has no single last act.

3. What punishment does section 62 provide, and when does it apply? Up to one-half of the imprisonment for life or of the longest term provided for the offence, or the fine provided, or both. It applies only where no express provision is made for the punishment of the attempt.

4. Why is the punishment half? Because the moral guilt is the same as if the offender had succeeded, but the injury is less; the alarm created by the attempt is itself an injury, and punishment requires moral guilt united to injury.