What Constitutes an Attempt to Commit a Crime?

Under Section 511 IPC and Section 62 BNS

The Four Stages of Crime

Every pre-planned crime that a human mind conceives passes through four distinct and successive stages. The first is the formation of intention — a purely mental state, invisible and impenetrable to law. The second is preparation — devising and arranging the means necessary for the commission of the contemplated offence. The third is the attempt — the direct, decisive movement towards commission after preparations are complete. And the fourth, if the attempt succeeds, is the actual commission of the crime.

Of these four stages, criminal law generally concerns itself only with the last two. Mere intention, however venomous, cannot be the subject of prosecution — for as the common law aphorism says, even the devil does not know the thought of man. Similarly, preparation is largely left unpunished, because a man who has bought arsenic may claim he bought it for rats, a man who has sharpened a knife may say it is for his kitchen. The law, in its wisdom, leaves room for the person to abandon his evil design before crossing into the realm of criminal liability. This opportunity for voluntary abandonment before the critical threshold is crossed is captured in the Latin principle of locus poenitentiae — the place of repentance. The moment that threshold is crossed — the moment the person has done an act in furtherance of the intended crime — the law intervenes.

The Statutory Provision: Section 511 IPC and Section 62 BNS

Section 511 of the Indian Penal Code, 1860 and Section 62 of the Bharatiya Nyaya Sanhita, 2023 constitute the general, residuary provision governing the law of attempt in India. The BNS retains the language of the IPC verbatim — not a word has been altered — and every judicial interpretation built upon Section 511 applies equally to Section 62.

The provision reads:

"Whoever attempts to commit an offence punishable by this 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 by this Sanhita 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 is residuary in nature — it applies only where the Code or Sanhita has not already specifically provided for the attempt to commit a particular offence. The IPC and BNS deal with attempts in four ways: some sections treat commission and attempt identically under the same provision (such as Sections 121, 124); others separately punish attempt under a distinct section (such as Sections 307 and 308 for attempt to murder and culpable homicide); yet others punish only the attempt and not the completion (such as Section 309 — attempt to commit suicide, which has now been decriminalised under BNS); and for all remaining offences where no specific provision exists, Section 511 / Section 62 steps in as a catch-all.

The Essential Ingredients

The Supreme Court, in the landmark decision of Abhayanand Mishra v State of Bihar (AIR 1961 SC 1698), crystallised the law of attempt into two essential requirements. A person commits the offence of attempt to commit a particular offence when: (i) he intends to commit that particular offence, and (ii) he, having made preparations and with that intention, does an act towards its commission. Crucially, such an act need not be the penultimate act — the very last act before the completed offence — but must be an act during the course of committing that offence.

The Element of Intention

Intention is the direction of conduct towards the object chosen upon considering the motives that suggest the choice. The law, however, does not take notice of intention without an external act. As the courts have consistently held, mere intention to commit an offence, not followed by any act, cannot constitute an offence. There must be some external act that shows that progress has been made in the direction of the criminal design. In one illustrative case, an old man raised a gun with intent to shoot the deceased, but his son, seeing his father's hands shaking, took the gun and fired it himself. The old man was nonetheless held guilty under Section 511 / 326 IPC for the attempt, because his act of raising the loaded gun had sufficiently manifested his criminal intent in an overt form.

The Element of a Step Towards Commission

The second and more difficult element is the act done towards commission. The Supreme Court in State of Maharashtra v Mohd. Yakub (AIR 1980 SC 1111) authoritatively explained that what constitutes an attempt is a mixed question of law and fact, depending largely on the circumstances of each case. An attempt defies a precise and exhaustive definition. What is essential is that the act or acts must be deliberately done, manifest a clear intention to commit the offence, and be reasonably proximate to the consummation of the offence. An overt act so closely related to the commission of the intended crime that, if not interrupted or frustrated, it would have inevitably led to the commission of the offence, is an attempt. In that case, the accused had loaded silver ingots onto trucks, concealed them, transported them to a lonely creek late at night, and unloaded them near a mechanised sea-craft — acts that had clearly transcended preparation and crossed into attempt.

Preparation versus Attempt: Where Is the Line?

This is the most difficult question in the law of attempt, and courts across the world have grappled with it for centuries. The dividing line is sometimes very thin and has to be decided on the facts of each case. As the law teaches us, attempt begins where preparation ends.

Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. Attempt, on the other hand, is the direct movement towards commission after preparations are made. There is a greater degree of determination and irreversibility in an attempt compared with preparation. Five tests have been evolved by courts to draw this line:

i. The Proximity Rule

An act, to constitute an attempt, must be sufficiently near — proximately connected — to the accomplishment of the intended crime. It need not be the last act the accused intended, but it must be the last act that was legally necessary from his side, if the contemplated result was to be brought about without further substantial conduct by him. In Sudhir Kumar Mukherjee v State of West Bengal (AIR 1973 SC 2655), the Supreme Court restated the proximity principle: the act need not be penultimate but must be done during the course of the commission of the offence. The accused in that case had prepared a false challan and obtained a signature from a superior officer — though not the very last act, it was a sufficiently proximate step towards the fraud to constitute attempt.

ii. The Doctrine of Locus Poenitentiae

The law allows the accused a window for repentance, and will not hold a person to have attempted a crime until he has passed beyond the stage of preparation. In Malkiat Singh v State of Punjab (AIR 1970 SC 713), a truck driver was stopped with paddy bags fourteen miles before the Punjab-Delhi boundary, having no licence to carry the paddy. The Supreme Court held that the driver's act still rested at preparation — it was quite possible that he might have been warned, turned back, and no offence would have occurred. The test applied was: if the offender changes his mind and does not proceed further, would the acts already done be completely harmless? If yes, it is preparation; if the acts have acquired a life and momentum of their own, it is attempt.

However, this test from Malkiat Singh was significantly qualified in Mohd. Yakub's case, where the Supreme Court cautioned that Malkiat Singh should be confined to its own facts and not treated as a universal rule — for otherwise, every accused interrupted at the last moment could claim he was about to change his mind.

iii. The Impossibility Test

Can there be an attempt even when the offence, in the circumstances, could not possibly have been completed? The two illustrations appended to both Section 511 IPC and Section 62 BNS answer this definitively:

Illustration (a): A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

Illustration (b): A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.

These illustrations make clear that under Indian law, an impossible attempt is still punishable, provided the means adopted are apparently suitable for the fulfilment of the design and the accused had the intent to commit the offence. A pick-pocketer who thrusts his hand into an empty pocket is as guilty as one who succeeds. However, the law does not punish absolutely impossible acts where the means adopted are incapable of achieving the designed purpose in any conceivable circumstance — such as trying to shoot someone with a child's toy pop-gun.

iv. The Social Danger Test

The seriousness of the crime attempted and the apprehension of social danger involved are taken into account. If, for instance, A gives pills to a pregnant woman to procure abortion, but they have no effect because the drug turns out to be innocuous, A would still be guilty of attempting to cause miscarriage — because the act creates social alarm and has real social repercussions even if it proves factually harmless.

v. The Equivocality Test

The act itself must speak for itself. To constitute an attempt, the act must clearly and unequivocally indicate the intention to commit the offence. Turner's celebrated formulation puts it thus: imagine a cinematographic film being stopped at the accused's last act, and the audience asked — to what end are these acts directed? If there is only one reasonable answer, the act is an attempt. If there is more than one reasonably possible answer, the accused has not yet done enough to be convicted.

Key Judicial Illustrations

A few Supreme Court decisions bring the concept of attempt vividly to life:

In Abhayanand Mishra v State of Bihar, the accused applied fraudulently to Patna University for permission to appear at the M.A. Examination by submitting forged certificates. The Supreme Court held that the moment he dispatched the application to the University, he entered the realm of attempt. Preparation was complete when the application was prepared; the attempt began the moment he set it in motion. He was convicted for attempting to cheat under Section 420 read with Section 511.

In Om Prakash v State of Punjab (AIR 1962 SC 1782), the accused systematically starved his wife Bimla Devi, deprived her of food for days, beat her, and locked her in a room. She managed to escape only by accident and received medical care. The Supreme Court upheld his conviction under Section 307 (attempt to murder), holding that the deliberate, sustained starvation was an act done with intent to kill — it was not merely preparation. The intervening circumstance that thwarted the attempt was her escape, not any act of repentance by the accused.

In Narayandas Bhagwandas v State of West Bengal (AIR 1959 SC 1118), the accused had concealed Rs. 25,000 in Indian currency in secret pockets sewn into his trousers, signed the customs declaration form falsely, and entered the customs enclosure at the aerodrome, with only the act of boarding the aircraft remaining. The Supreme Court held that his conduct had gone well beyond preparation and amounted to an attempt to illegally export Indian currency.

In Koppula Venkat Rao v State of AP (AIR 2004 SC 1874), the Supreme Court explained that the word "attempt" should be understood in its ordinary meaning — an act which, if not prevented, would have resulted in the full consummation of the act attempted. The court also addressed attempt to rape, holding that an attempt to commit rape requires a finding that the accused was determined to achieve sexual intercourse at all events and notwithstanding any resistance.

The Punishment

Under both Section 511 IPC and Section 62 BNS, a person guilty of an attempt is punishable with one-half of the maximum imprisonment prescribed for the main offence, or with the same fine as prescribed for the main offence, or with both. Imprisonment for life, for the purposes of calculation of half, is reckoned as equivalent to twenty years — making the maximum for an attempted life-sentence offence, ten years. This reflects the legislative philosophy that the moral guilt of the attempter is the same as if he had succeeded, but the law, in its calibrated wisdom, prescribes a lesser punishment for the incomplete act.