The section contemplates that the offender must attempt to commit such an offence which is punishable by the Code either with imprisonment for life or with imprisonment. This means that the section is not applicable to cases of attempt of any such offence which is not punishable with imprisonment, such as, for instance, an offence which is punishable with fine only. Or, the offender must cause such an offence to be committed. In such attempt he must do any act towards the commission of the offence. One-half of imprisonment for life which the section provides as one of the punishments would , by virtue of section 57, be one-half of imprisonment for twenty years, that is to say, ten years.
Syed Shamsul Huda held reservations about the words ‘and in such attempt does any act towards the commission of the offence’ in section 511 on the ground that the very essence of the idea of an attempt is something done towards the commission of the act attempted to be done, and in this view the above-quoted words seem unnecessary. Could there be any attempt at all unless something had been done towards the commission of the offence attempted? And yet it is noticed that in illustration (a) and many reported cases considerable stress has been laid on these words in determining whether certain acts are punishable under section 511 or not. That the words are redundant seems also clear from the fact that in other sections on attempt, except under section 309 of the Code, no such qualifying words are used. Can it be reasonably contended that the legislature intended to deal with a different and more limited class of attempts in section 511?
Section 307 and section 511:
The judgment of the Bombay High Court in Cassidy v. Emp caused an unnecessary controversy in which the accused who pointed an uncapped gun at his superior officer, believing the gun to be capped, with the intention of causing his death, but his rifle having been pushed up and he having been prevented from pulling the trigger, was held guilty of attempt to commit murder under section 511 and not under section 307, the court observing that there could be an attempt under section 511 which would not come under section 307.
Subsequently, the Bombay High Court itself cast doubts on this view in Vasudev Balwant Gogte v. Emp. in which the accused fired two shots by a revolver at point blank range at the acting Governor of Bombay but no damage was done perhaps because a thick leather wallet and currency notes in his pocket withstood the impact. He was held guilty under section 307 and not under section 511.
The High Courts of Allahabad and Lahore also disapproved the earlier view of the Bombay .High Court, and subsequently the Patna and Delhi High Courts have followed suit. The former Chief Court of Punjab held the view that section 511 is much wider than section 307 in the sense that while under section 307 the act done must be capable of causing death and it must also be the last proximate act necessary to constitute the completed offence, no such requirement is necessary in section 511 wherein the act may be any act in the course of the attempt towards commission of the offence.
This last proximate act theory is not the correct exposition of the law any more and it has been rejected. In Om Prakash v. State, the accused and his mother deliberately starved and ill- treated the accused’s wife as she had not brought enough dowry in marriage. Her health deteriorated and one day she managed to escape to a hospital where she was admitted as an indoor patient.
When the accused and his mother requested the doctor to allow the accused’s wife to go with them, he refused to oblige on medical grounds. It took almost ten months for the woman to recover her health. The accused and his mother were held guilty of attempted murder under section 307 of the Code. The Supreme Court observed that as in section 511, in section 307 also to secure conviction the act of the accused need not be the last proximate act.
A crime is committed in four stages—of mind, preparation, attempt, and actual commission. The first stage, the stage of mind or the mental stage, is generally manifested in the form of intention or knowledge. Words like dishonestly, fraudulently, rashly, negligently, wantonly, voluntarily, and the like, used in different sections of the Indian Penal Code also show this stage with respect to that particular crime with which the same has been used. The second stage, the stage of preparation or the preparatory stage, is that stage where the accused, after passing through the first stage, moves a little further and starts making preparations for the crime which he has made up his mind to commit. For instance, if he has decided to kill his enemy he would procure poison or a revolver by which he intends to commit that crime. This falls under the stage of preparation.
When he moves further ahead from this stage, he enters into the third stage, the stage of attempt. For example, after procuring a revolver if he fires by it at the enemy, he has gone beyond the stage of preparation and has entered into the stage of attempt. When the accused is successful in the third stage, the stage of attempt, only then results the fourth or the final stage, the stage of completion or commission of the crime. In the event of the accused remaining unsuccessful in his attempt, the fourth stage, the actual commission of the crime, can never take place.
Out of these four stages, normally the liability under criminal law exists in the third and the fourth stages only, and the accused is generally not guilty if his act falls under the first or the second stage, that is to say, under the mental stage or the preparatory stage. For instance, if A wants to kill B but does not do anything further in this regard he, being still in the mental stage, is not guilty of any crime. With such intention if he buys a revolver and gets a licence for the same, even then he does not commit a crime because he is still in the preparatory stage.
The reason as to why the mental stage and the stage of preparation to commit a crime is generally not punishable is that neither of these two stages affect the society and criminal law will punish an act only when the same affects the interest of the society. However, there are certain exceptional situations in the Indian Penal Code where an accused, even though in the stage of preparation, has been made liable for his act. These provisions are as under:
1. Section 122— Preparation to wage war against the State.
2. Section 126— Preparation to commit depredations in the territory of a friendly power.
3. Section 399— Preparation to commit dacoity.
4. Sections 233, 234, 235, 256 and 257 — Making, selling or being in possession of instruments for counterfeiting of coins or stamps.
5. Sections 242, 243, 259 and 266 — Possession of counterfeit coins, false weights and forged documents.
6. Sections 472, 473, 474, 475 and 476 — Making or possessing counterfeit seals etc., and possessing forged record of court, public register, valuable security or will etc., and possessing counterfeiting marked material etc.
7. Section 485 and 486 — Making or possessing instrument for counterfeiting a property mark, and selling or possessing goods with counterfeit property mark.
8. Sections 489-C and 489-D — Possesssing forged or counterfeit currency-notes or bank-notes, or making or possessing instruments or material for forging or counterfeiting currency-notes or bank-notes.
Following are four kinds of attempt under the Indian Penal Code:
1. Sections 124-A, 153-A, 171-B, 171-C, 171-D, 196, 198, 213, 225-B, 239, 240, 241, 250, 251, 254, 295-A, 385, 387, 389 and 391 wherein the main offences and their attempts have been made punishable in the same section.
2. Sections 307, 308 and 393 wherein the attempts have been made punishable separately but side by side the main offences.
3. Sections 309 which is the only kind in the Code wherein if the offender succeeds in his attempts, he could not be punished.
4. Section 511 which deals with rest of the attempts for which no separate provision has been made by the Code. That is why this provision is sometimes referred to as general attempt. Since mere mention of this section against an accused will only indicate a case of attempt against him and attempt of which offence will not be clear it is mentioned along with the punishment section of the offence committed. For instance, an accused who is charged for attempting to commit theft will be charged under sections 379/511 of the Code.
Out of all these sections an almost identical expression has been used in only two sections, sections 309 and 511. Section 309 uses the expression “does any act towards the- commission of such offence’ while the expression used in section 511 is ‘does any act towards the commission of the offence’.
One of the most difficult tasks in attempt cases has been to find out the dividing line between preparation and attempt. In a case the customs department received a secret information that silver would be transported in a jeep and a truck. Customs officers kept a watch on these vehicles and followed them at midnight. The vehicles stopped near a bridge over a creek and some small and heavy bundles were removed from the truck and kept on the ground.
The customs officers then surrounded the vehicles and thereafter they heard the sound of a mechanised seacraft from the side of the creek. Many silver ingots were recovered from under the sawdust bags in the truck. While the trial court convicted the accused for attempting to smuggle silver out of India, the court of session acquitted them as proof of the charge fell short and the High Court confirmed the order. Agreeing with the trial court’s decision, the Supreme Court held that the charge against the accused that silver was being exported in violation of the law out of India was proved.
It was observed by the court that the main purpose of the law was to prevent the evil of smuggling precious metal out of India and a narrow interpretation of the word ‘attempt’ would defeat that purpose. Thus, moving the contraband goods deliberately to the place of embarkation is an act proximate to the completion of the unlawful export.
Where a married woman sleeping on the roof of her home was asked by the accused persons to accompany them, and on her refusing to do so was physically lifted to be taken away, but on her raising an alarm was dropped there, the accused making good their escape, it was held that they had committed the offence of attempt to abduct the woman and thus were guilty under section 366 read with section 511.
Where in a town S the second accused directed the first accused to take a minor girl away to another town T in the Nizam territory to be dedicated to the goddess there and the first accused did the same with the intent or knowledge that she would be forced into prostitution, it was held that while both the accused were at the place S their intention did not constitute any offence and their going with the girl to the place T did not by itself constitute abetment because beyond the mere intention and indirect preparation there was no distinct offence by way of instigating the act committed out of British India, and mere intention not followed by any act could not amount to an offence while an indirect preparation not amounting to an act which amounted to a commencement of an offence did not constitute either a principal offence or an attempt or abetment of the same.
Where the accused with the intention of causing miscarriage of a pregnant woman administered a harmless substance to her or administered a substance which was not proved capable of causing miscarriage at all or in the quantity administered, he could not be convicted of attempt to cause miscarriage as his act was not an act ‘done towards the commission of the offence’ under section 511 of the Code.
Where the accused after having reached the roof of a house started to go down a ladder into the courtyard of the house when he suddenly changed his mind, retraced his steps and jumped out from the back of the roof, it was held that he could not be said to have entered into the house but was guilty of attempting to cause house-breaking.
Where a person went at night with another person on the roof of a house taking a stick and an instrument used for house-breaking along with, they would be guilty of house-trespass and not of attempt to commit house-breaking by night because mere passing on the roof of a house could not be termed as ‘an act done towards the commission of the offence’ under section 511, and further while being on the roof they could yet make up their mind to recede, and thus their act was still in the stage of preparation only.
Where the accused pushed his hand into the pocket of the complainant with a view to remove his purse but the complainant held the purse from outside his pocket by one hand while holding the accused’s wrist by the other, it was held that the accused had attempted to commit theft and would consequently be punishable under section 379 read with section 511.
The accused persons were moving towards the international border carrying a tin box in their hands. But when they saw the police build up sealing all routes they immediately turned around and ran away. They were chased into the house of one of the accused persons where they were found hiding the tin box in a heap of wheat.
The Supreme Court held that the accused were guilty of attempting to smuggle currency-notes and the overt acts already done by them were enough proof of the attempt. On the other hand, where a truck carrying seventy-five bags of paddy was stopped by the authorities about thirty two miles from Delhi, well inside the territory of Punjab, this could not be held to be an export of paddy outside Punjab in violation of rules as it was merely a preparation on their part since it was quite possible that the accused might have been warned that they did not possess licence to carry paddy and thus they might have changed their mind at any place between the boundaries of Punjab and Delhi and might not have proceeded any further.
Taking the thumb impression of someone on a blank paper by itself may not amount to attempt to cheat as it may fall only on the preparatory stage. But where the same is done with the requisite guilty mind as given in section 415 of the Code, it would then amount to attempt to cheat. The Supreme Court has held that an offender would be guilty of attempting to cheat even though the intended victim does not believe in the representations made to him and is not misled by him but only feigns belief in order to trap the offender.
In Abhayanand Mishra v. State the accused applied to the Patna University for permission to appear at the M.A. (Previous) English examination as a private candidate slating in his application that he was a graduate and that he had been teaching in a school. He attached certain certificates purporting to be from the Head Master of the school and the Inspector of Schools.
The University permitted him to take the examination and sent him the admission card. Later on it was found on inquiry that he was neither a graduate nor a teacher and his certificates enclosed with the form were false. The University withdrew the permission given to him earlier to appear at the examinations, and prosecuted him.
It was held by the Supreme Court that the accused had committed an offence under section 420 read with section 511 of the Code. It was observed that the stage of preparation on the part of the accused was complete when the application along with all relevant documents was ready for dispatch, and the moment he despatched the same, attempt on his part was complete.
Debtor sending less or no money under registered insured post:
The courts have given different decisions with respect to the liability of a debtor who allegedly has sent to the creditor less or no money by registered insured cover. For a full discussion, please see the comments under section 415 of the Code.
Purchasing stamped paper in another’s name:
Even though the Allahabad High Court had first ruled that purchasing a stamped paper in the name of the person in whose name it was intended to forge does not constitute an attempt, subsequently the same High Court on similar facts and situations gave a contrary decision. A abetted B to personate C and purchase a stamp paper in the name of C. As a result, the stamp vendor endorsed the name of C on it as the purchaser. Vs intention was to use such endorsement against C in a judicial proceeding. It was held that B had committed the offence of fabricating false evidence and A was guilty of abetting the same. In another case, A went lo a stamp vendor with C and purchased a stamped paper from him in the name of B. A and C then went to a petition writer and asked him to write for them a bond for fifty rupees payable by C. The petition writer began to write and then became suspicious and took them to a police station. It was held that C was guilty of attempting to commit the offence of forgery of valuable security etc. under section 467 and A of abetment of such attempt. In both these latter mentioned cases the Ramsarun’s case decided earlier was distinguished.
Where the accused caught hold of a girl, dragged her by force by the side of I he bushes, threw her down on the ground, removed her undergarments, got over her and attempted to penetrate, but before he could succeed the girl started bleeding, it was held that the accused was guilty of attempted rape.
In Slate of M.P. v. Udhe Lal a case for the offence of attempt to commit rape was pending against the accused for the past sixteen years. The Madhya Pradesh High Court ruled that the sentence of rigorous imprisonment for two years and a fine of Rs. 5,000 was sufficient.
Robbery or dacoity:
Where persons from whom money was demanded were not injured though fired at, nor was any money taken from them, it was held that the accused were guilty under section 397 read with section 511 and not under section 397 simpliciter.
Where the accused made certain alterations in his affidavit under the honest belief that this was necessary for clearance by the customs, it was held by the Supreme Court that his conviction under section 420 read with section 511 deserved to be set aside.
An offence punishable by this Code:
The use of the words ‘an offence punishable by this Code’ in section 511 shows that the section is limited to offences punishable by this Code only, and does not apply to acts which have been made offences under some special or local laws. Naturally, this section is not attracted if an offence under some special or local law is attempted.
An attempt has sometimes been divided into possible and impossible attempts. A possible attempt is that where if the attempt is successful, the main offence would result, like where A fires at B with the intention of killing him. Here if the bullet hits B, there is every possibility that he would die. Such attempts have already been discussed above. An impossible attempt, on the other hand, is such an attempt where an attempt would never bring about the main crime whatever the efforts be on the part of the accused, like where A fires at a statue believing it to be his enemy, or A thrusts his hand in B’s pocket with intention to steal but there is nothing in B’s pocket.
In R. v. M’Pherson the accused broke open and entered a dwelling house and stole certain goods therein. Other persons had already stolen all those goods before the accused had entered the house, but there were other goods of the complainant which he might have stolen if he were not interrupted. He was held not guilty of attempt to commit theft. Cockburn. C.J.. observed that the word ‘attempt’ conveyed the idea that if the attempt succeeded the offence charged would have been committed.
In R. v. Clieesenian the master of the accused handed over some meat to the accused which was to be weighed outside and delivered to a customer. The accused by using a false weight kept back a part of the meat with the intention to steal it, but before he could move away with it, the fraud was detected.
He was held guilty of attempted theft and Blackburn, J., observed that if the actual transaction had commenced which would have ended in the crime if not interrupted, there would clearly be an attempt to commit the crime. In Queen v. Collins the accused someone as a result of which he does not die, the offender should be held guilty of attempt to commit murder because it is a case of relative impossibility of death.
The reason behind the first theory as to why impossible attempts should not be punished at all is that such acts cause no alarm to society. The second theory, on the other hand, says that when the object is absent there should not be any liability, but where there is a mistaken belief in the mind of the offender, he should be held guilty of attempt.
For instance, firing at a shadow believing it to be enemy is not punishable because the object, the enemy, is absent. But thrusting a hand in a pocket with the intention of stealing is attempt to commit theft because there is merely a mistake in the mind of the offender. This theory is not convincing because in both the illustrations mentioned above there is absence of object as well as mistaken belief.
An act or a series of act constitutes an attempt (1) if the offender has completed all. or at any rate, all the more important steps necessary to constitute the offence, but the consequence which is the essential ingredient of the offence does not take place, or (2) if the offender has not completed all the steps necessary to constitute the offence but has proceeded far enough to necessitate punishment for the protection of society. Regarding (1), the non-production of the consequence may be due solely to want of skill, or other causes operating on the offender personally, or causes in no way connected with the offender. In all such cases the attempt is complete, such as, for instance, in firing but missing the mark for want of skill, or for defect in the gun. or the circumstances as shown in the two illustrations to section 511.
Put the Indian Penal Code has graded the offences relating to human body such as assault, hurt, grievous hurt, culpable homicide not amounting to murder, murder etc. The emphasis is on the objective element, that is to say, the injury caused. On the other hand, in offences relating to property, little or no emphasis is placed on the objective element, that is to say, the amount of property taken. This perhaps shows that different principles should be applicable in impossible attempts in human body and property cases. Some exceptional situation may, however, exist where the general principle may not be followed.
For example, where the accused shoots at an empty carriage believing it to be occupied by his enemy he will be held guilty of attempt to commit murder, and where the accused shoots at an overcoat hanging from a peg under the belief that he was shooting at his enemy standing near the wall, he will be held guilty of attempted murder, and where the accused gave a drug to a woman to cause abortion but it afterwards transpired that the woman was not pregnant at all, he was held guilty of attempt to cause miscarriage.
Regarding the (2) above, the following cases should result in conviction of the offender for attempt. For instance, chasing an enemy with an open gun in hand but not being able to fire shots at him as he was out of the range of the gun, would result in conviction for attempted murder. Or, establishing an imported machine for counterfeiting coins or stamps at a secluded place would make the accused guilty of attempt to make bad money or stamps. The reasons for conviction in such cases would be that the nature of preparation in such cases preclude the possibility of a change in the intention of the offender and the preparation being made for an innocent purpose.
But merely purchasing a stamp paper with the intention of forging a document is no attempt because the presumption of innocence is not negatived and because of the remoteness and consequent probability of a change of intention. However, as soon as the offender begins to write on the paper, it becomes an attempt on his part because it is not reasonable to assume that once he has begun to write he would not complete the document.
But if the accused had begun to write the document a year ago but left the writing unfinished, it would be no attempt on his part as his conduct shows a change of intention and there is a gap between starting to write something and then commencing it once again. But buying silver for making coins is merely a preparation as silver could be used in various other ways as well. Shooting at a shadow sufficiently near another as to put that person in danger will be attempt to commit murder.