Impossible Attempts

Held. The conviction was set aside and the appellant acquitted. What he did was not an act done towards the commission of the offence of causing a miscarriage. Neither the liquid nor the powder being harmful, they could not have caused a miscarriage. The appellant's failure was not due to a factor independent of himself. The judgment reviews the English authorities, notes that the illustrations to the section show that the drafters of the Indian Code did not intend to follow the older English decisions in which an attempt at the impossible could not be an attempt, and declines to lay down any general proposition.

Why it matters here. It supplies the phrase by which the boundary is drawn, and it is the only Indian authority a candidate needs on this point. The examiner's expectation is that the illustrations and this case will be reconciled, not that one will be preferred.

Reconciling them

The reconciliation is straightforward once it is seen.

In the illustrations, the method would have worked. Thrusting a hand into a pocket is exactly how a pocket is picked, and it succeeds every time there is something in the pocket. The reason for failure was a fact outside the accused: what happened to be in the pocket.

In Asgarali Pradhania, the method could never have worked. Copper sulphate does not cause miscarriage in any quantity that a person would survive. No amount of luck would have produced the offence, and the reason for failure was inside the accused's own choice of means.

Hence the phrase: was the failure due to a factor independent of himself. In the illustrations it was; in the case it was not.

The criticism

The distinction is criticised, and an LL.M. answer should say why.

It rewards incompetence. A man who tries to poison with sugar is acquitted and a man who tries with arsenic and is stopped is convicted, though both are equally dangerous in intention.

It is unstable. A dose too small to cause a miscarriage is inherently insufficient; a dose that would have worked in a stronger woman is not. The line depends on expert evidence about quantities that, in Asgarali Pradhania itself, were never ascertained.

And it does not fit the reason for punishing attempts. If the reason is the alarm created and the moral guilt of the offender, as the Supreme Court has said, then the man with the harmless powder has the same guilt and creates the same alarm.

The answer to the criticism. That the section requires an act towards the commission of the offence, and an act that could not possibly advance the offence is not such an act. The rule is a consequence of the statutory words rather than of a policy about dangerousness.

Worked example

Four attempts at the same offence.

One. Kamal fires at Lalit with a loaded pistol and misses. An attempt: the method works and the failure was outside him.

Two. Kamal fires at the bed where Lalit usually sleeps, and Lalit is out. An attempt, and this is illustration (a) in another form.

Three. Kamal fires at Lalit with a pistol whose firing pin was removed a year ago without his knowledge. Debatable, and the answer is that the failure was a factor independent of him, since he believed the weapon loaded and functional, so on the illustrations this is an attempt.

Four. Kamal, believing in witchcraft, performs a ceremony intended to kill Lalit at a distance. On Asgarali Pradhania this is not an attempt: the means could never have worked and the failure was not due to any outside factor. It is also the case that shows the criticism at its weakest, because nobody thinks the ceremony endangered Lalit.

What the four show. That the operative question is always the same, and that the hard cases are those in which the accused's belief about his means was reasonable.

What it does NOT mean

It does not mean impossibility is a defence in India. The two illustrations say the opposite for factual impossibility.

It does not mean legal impossibility is the same question. Where the intended conduct was not an offence at all, there is nothing to attempt, and that is not an impossibility rule but the ordinary principle of legality.

And it does not mean the older English rule applies. Asgarali Pradhania records expressly that the drafters of the Code did not intend to follow it.

Quick revision

• Factual impossibility: the illustrations to section 62, the empty box and the empty pocket. Both are attempts.
• Legal impossibility: no offence to attempt, so no attempt.
• Asgarali Pradhania: where the means could never have worked, no act towards the commission has been done, and the failure was not due to a factor independent of the offender.
• The reconciliation: in the illustrations the method would have worked and the failure was outside the accused; in the case the method could never have worked.
• The criticism: it rewards incompetence, is unstable on the evidence, and does not fit the alarm-and-guilt justification for punishing attempts.

Test yourself

1. Give the two illustrations to the residuary section and say what they establish. A breaks open a box to steal jewels and finds it empty, and A thrusts his hand into Z's empty pocket. Both are guilty. They establish that factual impossibility is no answer in India.

2. What is the test in Asgarali Pradhania? Whether the failure was due to a factor independent of the offender. Where the means were inherently incapable of producing the result, it was not, and no act towards the commission of the offence has been done.

3. Reconcile the case with the illustrations. In the illustrations the method used was one that would have worked, and the failure was caused by a fact outside the accused. In the case the method could never have worked in any circumstances, so the failure lay in the accused's own choice of means.

4. Give one criticism of the distinction and the answer to it. That it rewards incompetence, since the man who chooses a useless poison is acquitted and the man who chooses a real one is convicted though both are equally guilty in intention. The answer is that the section requires an act towards the commission of the offence, and an act incapable of advancing the offence is not such an act.