There are some offenses whose attempt and successful commission have been dealt with in the same section, providing different punishments for commission and attempt, like dacoity under Section 391 of the Indian Penal Code, 1861 ("IPC"). Also, there are some other sections in which commission and attempt make the person liable for same extent of punishment like Sedition under Section 124 A of IPC.

Yet there are some other offenses whose commission and attempt have been provided in separate sections like Section 300 provides for commission of murder and Section 307 provides for attempt to murder. Similarly, Section 308 provides for attempt to culpable homicide and Section 309 provides for attempt to commit suicide. For other such offenses, punishment of whose has not been codified in the IPC, Section 511 comes to the rescue.

This blogpost would deal with those offenses for whose attempt and commission, separate sections have been incorporated in the IPC, 1860.

The Stages Of A Crime: Where Does Attempt Fall?

The components of a criminal offence includes two elements, first one being actus rea the other one being the mens rea. The latter one is the intent to commit such an offense, it is the mental element for the commission of a crime. The former one is the acts done in order to execute the offense, it is the physical component for the commission of a crime. Actus rea does not necessarily mean acts done, but also includes within its ambit such omissions that lead to a criminal consequence.

Within the ambit of these two, comes the 4 stages of a crime, starting from intention to commit the crime, then the preparation for commission, then attempt for commission and finally the successful commission of crime. The first can be considered to be part of mens rea and the later can be considered a part of actus rea.

Chief Justice Alexander Cockburn of Queen's bench said that attempt is such act, which if succeeded, would have laid to commission of that offense. Attempt refers to a situation where the injury or consequence which was intended to be fulfilled by the criminal act is not actually achieved, where the actus rea fell short of what was intended, and the successful commission remained limited to attempt. It is a stage somewhat between preparation and the successful commission of the crime.

For Example: You have bought poison to kill someone with full knowledge that the amount you are going to make them consume would ensue death, you have done preparation. You mix poison in their food and the other person consumes it, you would be liable under this section for attempt to murder, provided that the poison did not achieve the desired consequences, i.e., the other person survived. If the other person would have died, you would've been made liable for commission of murder under Section 300 and 302 of IPC, i.e., for the commission of murder, and not just its attempt under Section 307. Thus, in criminal law, it is sufficient that an intent was there, coupled with an overt act for execution of such intent thereof.

Attempt V. Preparation: Various Tests To Solve The Confusion

'Attempt begins when stage of preparation ends'.

Often attempt and preparation are confused with each other, provided that they are consecutive stages in the commission of a crime. Punishment has been provided for attempt to commit an offense, but for preparation, punishment is provided in very exceptional cases, for instance:

• Section 122 of IPC: Collecting arms with an intent to wage war against the Government of India.
• Section 399 of IPC: Preparation to commit dacoity.

These are such grave offenses that it is of utmost importance to stop them at initial stage and punish them at the preparatory stage only.

Mere preparations do not ordinarily affect somebody's security. Also, there might be several purposes for which an object has been bought or collected, the intent might be non-criminal, hence, to present it as a stage before the attempt has been made, is next to impossible. For instance, a man may have bought a gun for his personal security and have got it licensed as well.

He is endangering nobody's security, it cannot be said that he is making preparation to kill somebody. Now if that person pulls out that gun and points it towards his enemy but fails to shoot him at the right spot, he would be held guilty for attempt to murder and now it can be said that the gun was bought as a preparation for the commission of murder. Thus, it is usually the attempt and the preparation of an offence that is liable for punishment.

Now, if a person has to be punished, it has to be ascertained that he was at the attempt stage for the commission of crime and was not just merely at the preparation stage. To draw out such distinction, the Courts have evolved following principles through their judicial pronouncements:

Proximity Rule: This Rule says that the act done, in order to be called an attempt, must be proximate to the successful commission of that offense and should not be remotely leading to the commission of such offense. The Supreme Court in Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1973 SC 2655, said that with an intent to commit the offense, having made all the preparations towards such commission, the next act done after all the preparations would constitute attempt.

Doctrine of Locus Paenitentiae Test (time for repetance): This doctorine states that an act would not be called an attempt and would be call mere preparation if that act can be given up by a person on his own accord out of repentance for his criminal intent. Hence, if after that act, person changes his intent and stops thereafter, then that act would be mere preparation.

In Malkiat Singh v. State of Punjab, where a truck driver carrying paddy in contravention to Punjab Export Control Order, 1959, stopped 14 miles away from Punjab Delhi border from moving any further. The Supreme Court held that if he had stopped because he was warned that he was contravention the law, and due to this warning, he came to know about the same, he would not be held liable for attempt, but if he had stopped in the fear that the police had found out about his attempt and he could be prosecuted upon commission, then the act of carrying paddy upto 14 miles away from border would constitute attempt.

Impossibility Test: IPC also punishes such acts which are impossible in successful commission, these are punished as attempts. For instance, shooting a person with an empty pistol, with a hope that the pistol is loaded and would cause him such injury as is likely to cause death, would be punished as attempt to murder under Section 307 of IPC.

Social Danger Test: The gravity of act and the social danger it can cause are taken into considertaion to distinguish attempt from preparation. The moral guilt of the offender is considered to be the same as if he had been successful in the commission of the crime. Thus, if a person gives some pills to a pregnant woman to procure abortion, but it had no effect because the drug was harmless, the person is liable for attempt to cause miscarriage since the act would cause an alarm to society and will have social repercussions.

Equivocality Test: That the act committed must speak for itself, that it was an attempt towards the commission of that particular crime. The indication from such act should be beyond a reasonable doubt upon an examination, otherwise it would be mere preparation if some scope of doubt is left. Doing of such acts cannot be said to have a motive other than the commission of that crime.

Hence, by applying these tests, the Courts come to a conclusion if an act is attempt of an offense or merely a preparation to commit that offense. If the former stands, then a punishment is imposed and if the later stands, then no punishment would be imposed upon the person committing such acts.

Section 307 Of Ipc: Attempt To Murder

Section 307 of IPC, 1860 is reproduced below:
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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

Ingredients: From the above stated bare wordings, following essential ingredients to constitute "Attempt to murder" can be derived:

• An attempt has been made by the accused to cause death
• The accused had an intention to cause death or intention to cause such bodily injury as likely to cause death.
• The accused had knowledge that by doing such an act, an injury likely to cause death or death would be a consequence
• The act, in its ordinary course of nature, would cause death

The most essential ingredients are intention and knowledge as to the fact that death would be a consequence of the said act. The Madhya Pradesh High Court in Ansarudin v. State of MP, stated that intention and knowledge are the matters to be kept under consideration and can be inferred from the 'totality of circumstances', rather than measuring it only from the consequences of the act committed, meaning thereby that the consequential damages might not have be the same as to what injury was intended to be caused by the act of accused.

In Liyakat Mian v. State of Bihar, the victim was shot from a very close range, but he managed to survive the shot. If he were not able to survive the same, the accused would have been surely charged for murder. Hence, his act of shooting the victim from such close quarters was reasonably sufficient to establish that he had a knowledge that the same is likely to cause death and hence, he was liable under 307 of IPC.

Continuing/series of acts constituting attempt: In an interesting case of Om Prakash v. State of Punjab, the Supreme Court, while upholding conviction of appellant under Section 307 of IPC, has held that to constitute attempt to murder, if with an intention to cause murder some efforts have been continuously made, it is not necessary that the act done must be last or penultimate act to be taken under consideration, all the series of acts would together constitute attempt.

As was the matter in this case where the husband was subjecting his wife to regular and systematic course of starvation, although before he could achieve his intent to murder his wife, he was prevent by some unexpected event. The Supreme Court held that the efforts of subjecting his wife to starvation were enough to constitute offense of attempt to murder under Section 307 of IPC.

The appellant here contended that a further period of starvation was required to cause death, hence, the very last act of starvation should constitute attempt. The Supreme Court rejected the contention by stating that the act of constitute attempt can be in the form of a series and the fact that the appellant had knowledge coupled with intent that such series of acts would conclude into causing death of his wife, was sufficient to make him and his acts liable under Section 307 of IPC.

Quantum Of Punishment Under 307 IPC:

Section 307 provides three categories of punishments:

1. Imprisonment of either description up to 10 years with a fine
2. If hurt is caused, punished with life imprisonment
3. Death punishment if hurt is caused by a person already convicted for life imprisonment

In an appeal against the decision of Allahabad High Court, the Apex Court held that the following factors are needed to be taken into consideration while sentencing the accused:

• Nature Of Offense
• Manner Of Commission Of The Offense
• Gravity Of Offense
• Motive Behind Commission
• Nature Of Injuries Sustained By Victim
• Weapons Used In Commission
• Other Extenuating Circumstances

In the concerned case, the facts fell in the second category of punishment, i.e., life imprisonment. Further, the nature of injury caused by gunshot was serious or Grave in nature and that too in the head, which is a vital part of the body. The three acussed here, with the intent to kill the three family members, went into the house of accused and fired gunshots at them, leading to death of a pregnant woman and her stillborn child, while the other two members survived. Hence, after considering these factors, the Apex Court did not interfere with award of "life imprisonment" and held it to be "proper".

Section 308 Of IPC: Attempt To Commit Culpable Homicide
Murder v. Culpable Homicide not amounting to Murder-Every murder is culpable homicide, but every culpable homicide is not murder. Culpable homicide is a wider term where the act under consideration have caused death but the person performing such act had no explicit intention to cause death, whereas in murder, the accused has a knowledge as well as an intent to cause death.

Hence, if without the intention to kill someone, as can be derived from the facts and circumstances of the case, a person does such act which leads to death of the victim, then such person would be liable for culpable homicide not amounting to murder under Section 304 of IPC.

Section 308 of IPC can be reproduced as follows:
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; and, 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.

Ingredients: Following ingredients can be derived from the bare wordings of this section:

1. Intention and knowledge that the alleged act can cause death (but not an explicit intention to cause death) the act failed to cause death of the person towards whom it was targeted

In State v. Vimal Singh, the Delhi District Court set down the following essentials to be considered as ingredients for constituting offense under Section 308 of IPC:

• The accused did something wrong,
• The conduct was carried out with the intent or knowledge of committing culpable homicide that did not amount to murder.
• The conduct was done in such a way that if the accused had caused the victim's death, he would have been charged with culpable homicide.
   

Nature of Offense: Offense under 308 of IPC is cognizable (arrest can be made without a warrant because of the serious nature of the offense), non-bailable (bail cannot be granted as a matter of right, a bail application can be put and it is upto Court's discretion whether to grant bail or not), non-compoundable (cannot he withdrawn by the complainant, has to be decided by tha Court and the parties cannot mutually decided upon the case) and triable by the Court of Sessions(as per Section 209 of Code of Criminal Procedure, the Magistrate refers these cases to the Session Courts, that have jurisdiction over cases that carry an imprisonment exceeding 7 years, life imprisonment or death).

The punishment envisaged under the said section is Simple Imprisonment upto 3 years with or without a fine if jo hurt is caused and if hurt is caused, then it is extended to Simple Imprisonment upto 7 years with or without a fine.

Decisive factors to consider intent: The type of weapon used, how it was used, the crime's motivation, the intensity of the blow, and the portion of the body where the harm was inflicted are all factors considered to evaluate the accused's intent under this provision.

In Ali Zaman v. State, the Supreme Court held that where a revolver used by the accused party did not lead to death of any person from complainant's side, then the accused would be liable under Section 308 of IPC, but if death of any one person was caused, the accused would be liable under Section 304 of IPC, i.e., Culpable Homicide not amounting to murder.

Section 309 Of Ipc: Attempt To Commit Suicide

Section 309 of IPC has been reproduced below:
Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]."

Ingredient(s) and exception(s): There is only one ingredient that can be drawn from this section, i.e., attempt or an act to attempt the commission of suicide. Another ingredient as is essential to constitute criminal offense is the intention, hence, if a person without intending to take his life, topples off a roof or consumes overdose of a medicine by mistake or in an intoxicated state, he would not be liable under this section.

Also, an exception is provided in such cases where a man out of his grief due to loss of near and dear one, a family discord or some sort of distraction, decides to take away his life but fails in the same, in such cases the man deserves 'consolation instead of punishment' as was held by the Madras High Court in Queen Emperor v. Ramakka.

The interesting fact is that only the failed commission attracts the provisions of IPC, if the person succeeds, suicide is no offense under IPC. For Example, a person jumps off the roof of a building with an intention to end his life and for some reason fails in the same, the surviving person would be liable as an offender under Section 309 of IPC.

Valuable Life of a Person: This section envisages the principle that the State protects the lives of men as it is valuable to it and men themselves should be prevented from ending such valuable lives by suicide.

The punishment for attempt to commit suicide provided under this section is upto 1 year of simple imprisonment with or without a fine.

'Severe Stress' under Mental Healthcare Act, 2017:
The Mental Healthcare Act of 2017 has diluted the rigrousness of law relating to "attempt to suicide". Section 115 of the Act says:

1. Notwithstanding anything contained in section 309 of the IPC (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
    
2. The appropriate Government shall have a duty to provide care, treatment, and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

The act has by presuming "severe stress" on part of the person who attempted on his life, has not either explicitly repealed section 309 of the IPC or made it applicable to all attempts of suicide. A person who attempts on his life is presumed to be under "severe stress" and therefore he will not be prosecuted and punished for the offence of attempt to commit suicide. Further, it puts the Government under legal obligation to treat and rehabilitate him so that the risk of recurrence of attempt to commit suicide is reduced. It seems that a person who attempts on his life happens to be a person with no "severe stress" cannot be kept out of the penal orbit of section 309. The Government is neither bound to take care of such person nor to treat and rehabilitate him.

Are Hunger Strikes under Section 309?- The Court often used to face a dilemma as to whether hunger strike would constitute an attempt to suicide. The Courts have now set a simplifying principle based upon invention that if the strike was with intention to end the striker's life, it would be attemptt under Section 309 and if thr answer is in negative, then it would not constitute attempt under this section. A landmark case is that of Ramsundar Dubey v. State, where a worker of Mental Hospital at Bareilly was suspended and was subjected to discrimination by the authorities.

To protest against the same, the work laid down near Gandhi Statue of Bareilly and started to fast, but there was no such express declaration that he would fast to death. The District an Sessions Court refused to accept the admissibility of his defence that he was consuming lemon water twice a day, so as to continue his fasts. But the Allahabad High Court held that the accused is not liable under Section 309 of IPC as the evidence is sufficient enough to defend him against liability under the said section.

The Court held that if a person expressly declares that he'd fast unto death and then refuses all the nourishment offered to him thereafter, then he would be held liable for attempt to commit suicide under Section 309 of IPC.

Right To Life v. Right to Die v. Sec. 309:
There are plethora of cases dealing with the dilemma as to whether Right to life under Article 21 of the Indian Constitution includes Right to Die or not. Each one has it's own unique points of contention and the debate still continues and has not been put to an end as of yet.

Going by the chronology, first comes the Delhi High Court's judgment in the case of State v. Sanjaya Kumar, wherein the court acquitted a young boy who attempted to commit suicide and strongly stood to omit Section 309 from the code. The court further striked the judgment on sympathetic basis by saying that a such section of IPC is "unworthy of a human society like ours" and instead of sending such people to "psychiatric clinic society", the Court sends them to "mingle with the criminals".

Then comes the Bombay High Court's judgment in Maruti Shripati Dubal v. State of Maharashtra, wherein the Court held that Article 21 of the Constitution not only provides for 'Right to Life and Liberty' but also includes for 'Right to end one's life' and hence struck down Section 309 of IPC on the ground of it being ultra vires to the Article 21 of the constitution.

As opposed to these two judgments, the Andhra Pradesh High Court in 1988, in Chenna Jagdeshwar's judgment, held that 'Right to life' does not necessarily signify 'Right to Die' and hence it would continue to be an offense under 309, thus holding the section constitutionally valid.

Then in 1994, a Division Bench of Supreme Court in P. Rathinam's case, upheld Bombay and Delhi High Court's verdict and overruled Andhra Pradesh High Court's ruling and held that 'Right to Life' includes 'Right not to live a forced life'. The Court further spoke against Section 309 by saying that a person who has attempted to end their life, does not deserve to be prosecuted.

Further in 1996, in the case of Gyan Kaur, the Supreme Court overruled its earlier decision, and held that 'Right to Life' does not include 'Right to Die' and Section 309 of IPC is well within the constitutional framework. The overt acts committed by a man who is held liable under 309 of IPC cannot be held to be included within 'Right to Life' and are liable to be punished.

Till date, the dilemma has not yet come to a conclusion amd Section 309 continues to be a part of the Code considering the State's perspective of valuing its citizens life. Hence, its omission is not being considered by the Legislature and still is an eminent part of the Code.

Section 511 Of Ipc: Punishment For Attempts To Such Crimes Which Make Liable For Imprisonment

Section 511 of IPC can be reproduced below:
"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 for life] or imprisonment, or to cause such an offence to be commit�ted, 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 imprison�ment provided for that offence], or with such fine as is provided for the offence, or with both."

Ingredients: The basic ingredients that can be derived from the bare wordings are:

1. The offense whose attempt has been made is punishable with some sort of imprisonment or life imprisonment
2. An act has been attempted towards the commission of such offense
3. No express provision to punish the attempt of such offense has been provided under IPC.

Attempt as has already been defined is the act done for the commission of an offense, which fell short of the actual intent of successful commission. The actus rea and mens rea both are present, and attempt is when the actus rea, if it were not prevented, would have led to successful commission of that offence and would have achieved the mens rea.

The punishment for such an attempt would extend upto half the imprisonment for life or upto half the term of longest term of imprisonment proposed in case if the offense had been successfully committed, with or without a fine.

Illustration: A person attempts to commit a theft but fails in commission, the bare acts provides for illustration that a person has opened a box for stealing jewels but there were no jewels in the box, such person would be liable for half the quantum on punishment provided under Section 379 of IPC, i.e., 1.5 years of imprisonment of either description or fine or both. No express provision has been provided under the code for attempt to theft, hence, the accused would be liable for half the term of imprisonment as he would have been given if he were successful in the commission of that offense.

An illustrative case where the accused was punished for attempt to commit cheating under Section 511 of IPC was Abhayanand Mishra v. State of Bihar. In this case, the accused prepared a fake application and sent it to the concerned University, along with some fake graduation and teaching-experience related documents attached to the application. As a response, the University also issued him an admission card, but for some reasons he failed to get the card and further sit in the examination. The Supreme Court held that the moment he dispatched his application to the University, he was made liable to be punished under Section 511 of IPC, for an attempt to commit cheating.

Exceptions: The exceptions to this section is served by those sections providing for express provisions for punishment of attempts of certain offenses, as has already been described above. Another exception is attempt to offenses under the local laws or special laws is not punishable by IPC, this section only envisages those attempts of offenses that have been envisaged in the IPC and other acts like Foreign Exchange Regulation Act, Arms Act, etc. as was held in Mohammed Akram v. State of Assam. Also, offenses punishable with only fine have not been covered under this Section.

In State of UP v. Ram Charan, the Allahabad High Court held that attempt is intentional act towards the commission of an offense, had it not been prevented by circumstances independent of volition of the offender, it would have not failed in successful commission. In this case, the accused was transporting wheat from one block to another in a ferry boat in contravention to clause 3 of UP Wheat (Restriction of Movement) Order, 1949.

His boat was stopped midstream and he was prosecuted under the said act. The High Court held that the act amounted to attempt to transport wheat in contravention to the concerned provisions, had he not been interrupted, he would have have successful transported wheat in a way contravening the legal provisions of the order. Hence, and attempt has been made and the accused has to be punished as per Section 511 of IPC.

Conclusion
There are 4 stages towards the commission of a crime, and attempt falls at the penultimate stage. Attempt is often confused with preparation but the courts by evolving above said tests, have tried to simplify such complex task of drawing a distinctive line between attempt and preparation. Still, the stage of crime is to be decided upon facts and circumstances of each case, which can be a confusing task. If the offense is found to be an attempt, then it is punished according to the IPC.

The IPC has specifically provided for attempt to murder, attempt to commit culpable homicide not amounting to murder, attempt to commit suicide in different specific section, and those offenses whose attempt is not provided for specifically, are to be dealt with by Section 511 of IPC. Also, a few other offenses carry punishment for commission and attempt within the same section, rather than falling under Section 511 of IPC.

Books Referred:

• K.D. Gaur: A textbook on the Indian Penal Code
• S.N. Mishra: Indian Penal Code

Cases Referred To:

• Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
• Ali Zaman v. State, AIR 1963 SC 152.
• Ansarudin v. State of MP, (1997) 2 Crimes 157 (MP).
• Chenna Jagdeshwar and anr. v. State of Andhra Pradesh, 1988 Cr LJ 594.
• Gyan Kaur v. State of Punjab, AIR 1996 SC 1275.
• Liyakat Mian v. State of Bihar, AIR 1973 SC 807.
• Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri LJ 743 (Bom).
• Mohammed Akram v. State of Assam, AIR 1951 Assam 17.
• Om Prakash v. State of Punjab, (2001) 2 AICLR 623.
• P. Rathinam v. UOI, AIR 1994 SC 1844.
• Ramsundar Dubey v. State, AIR 1963 All 262.
• State of UP v. Ram Charan, AIR 1952 All 359.
• State v. Sanjaya Kumar, 1985 Cr LJ 931.
• State v. Vimal Singh, 46 (1992) DLT 582.
• Queen Emperor v. Ramakka, 1884 ILR 8 Mad 5.