Criminal law is a body of rules and statutes that defines conduct prohibited by the state because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts. Criminal law differs from civil law, whose emphasis is more on dispute resolution than in punishment.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and prescribe punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which state enforces this substantive law—through the gathering of evidence and prosecution – is generally considered a procedural matter.
If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment.
My research project on Stages of Crime – An Overview revolves around these four activities which essentially required to be fulfilled in order of an offence to become a crime under Indian Penal Code.
Objectives of Study
•The major objective of this project is to study various stages of Crime with respect to the Indian Penal Code as well as English laws and critically examining situation through various case laws. •To analyze each a every stage of crime with respect to illustration and case laws.
It is largely based on secondary & electronic sources of data. Books, case laws, journals & other reference as guided by faculty of IPC are primarily helpful for the completion of this project.
Intention is the first stage in the commission of an offence and known as mental stage. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.
This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans. There is an intention to cause harm but he hasn’t yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can’t read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential
ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.
In simple words, at this stages, a person consolidates his devious ideas and identifies ways of doing it. There is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. Mens Rea or bad intention is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans. There is an intention to cause harm but he hasn’t yet taken any action that manifests his intention, S0, it is not a crime in itself. But this an essential ingredient of crime because without bad intention to cause harm or do wrong, there can be no crime. Also, even a thoughtless act, without any deliberation, can be crime if there is an intention to cause crime.
Intention differs from motive or desire (Per Lord Bridge R v Moloney ). Thus, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering, may well act out of good motives. Nevertheless, this does not prevent them having the necessary intention to kill…in the case of R v Inglis .
Types of Intention:
Intention can be divided into direct intent and oblique intent.
The majority of cases will be quite straight forward and involve direct intent. Direct intent can be said to exist where the defendant embarks on a course of conduct to bring about a result which in fact occurs. Example D intends to kill his wife. To achieve that result he gets a knife from the kitchen, sharpens it and then stabs her, killing her. The conduct achieves the desired result.
Oblique intent is more complex. Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result. Eg D intends to kill his wife. He knows she is going to be on a particular airplane and places a bomb on that airplane. He knows that his actions will result in the death of the other passengers and crew of the airplane even though that may not be part of his desire in carrying out the action. In this situation D is no less culpable in killing the passengers and crew than in killing his wife as he knows that the deaths will happen as a result of his actions.
As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example purchasing poison. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables and therefore preparation means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime.
Illustration – If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing B.
Preparation consists of arranging or building things that are needed to commit the crime. At this stage, the intention to cause harm starts manifesting itself in the form of physical actions. At this stage, it is however possible for the person to abandon his course of action without causing any harm to anyone. Generally, preparation is itself alone not a crime because it cannot be proved beyond doubt the goal of preparation. For eg; buying match-box and kerosene oil to burn a house, alone, cannot be determined as an offence.
The law ignores, as general rule, the acts of preparation also. It only interferes when such preparation precludes the possibility of an innocent intention. Only such preparations are punished.
Preparation not Punishable: In general preparation is not punishable, because a preparation apart from its motive would generally be a harmless act. It would be impossible in most cases to show that the preparation was directed to a wrongful end, or was done with an evil motive or intent, and it is not the policy of law to create offences that in most cases it would be impossible to bring home the culprit, or which might lead to harassment of innocent persons. Besides, a mere preparation would not ordinarily affect the sense of security of the individual intended to be wrong , nor could society be disturbed or its sense of vengeance aroused by what to all outward appearances would be an innocent act .
Take a case of murder. Purchasing a gun is not punishable, being merely preparation, but if a man having procured the gun pursues his enemy with it, but fails to overtake him, or is arrested before he is able to complete the offence, or fires without effect, this amounts to attempt and, none of the considerations which justify the exclusion of preparation from the crime will apply.
Exceptions to Preparation (When it is an offence under IPC) – Generally, preparation to commit any offence is not punishable but in some exceptional cases preparation is punishable, following are some examples of such exceptional circumstances-
1.Collecting arms with an intention of waging war against the government of
2.Preparing to commit depredation on terrritories of any power in alliance or at peace with the Govt. of India (Sec-126)
3.Counter feiting operations for currency (Sec-235)
4.Preparation to commit dacoity (Sec-399)
The word ‘attempt’, said chief justice Cockburn, clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed. In other words, attempt is the direct movement towards the commission of an offence after the preparation has been made. According to English law, a person may be guilty of an attempt to commit an offence, if he does an act which is more than merely preparatory to the commission of the offence and a person may be guilty or attempt to commit an offence even though the facts are such that the commission the offence is impossible.
Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of crime and so it is punishable in the law like the completed offence.
Why attempt is an Offence:
An attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the same as though he had succeeded. The act may be sufficiently harmful to society by reason of its close proximity to the completed offence classed as a crime. Hence, unlike civil law, criminal law takes notice of attempts to commit punishable wrongs and punishes them according to the nature and gravity of the offence attempted. If this stage is successful, then the crime is completed and the accused will be liable according to the offence committed by him. Thus an attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is
at present intent coupled with some overt act in execution. Some legal system penalize from the stage of preparation. They depending upon the importance of the system gives to the value of ‘crime prevention’ declare certain offences to be criminal and punishable from the stage of preparation.
This third stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is bound to happen and prevention of crime is equally important for healthy society. For eg.- According to Sec-307, if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. It is also clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe, this concept evolved from the case of Om Prakash vs. State of Punjab and State of Maharashtra vs. Balram Bana Patil
In other words this stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.
Attempt to commit crime under the Indian Penal Code –
The code does not define this expression, the following are the provision wherein it has dealt with attempt:
a)In some cases the commission of an offence as well as the attempt to commit it is dealt within the same section and the extent of punishment prescribes is the same for both. There are twenty seven such section in this
Sections: – 121,124,124A,125,130,131,152,153A,161,162,163,165,196,198,200,213,239,240,241,251,385,387,389,391,397,398 and 460.
In all these cases, both the actual commission of the offence and the attempt to commit are made punishable equally.
b)In some cases attempts are treated as separate offences and punished accordingly. There are four such offences,
I) Attempt to commit murder (section 307),
II) Attempt to commit culpable homicide (section 308), III) Attempt to commit suicide (section 309),
IV) Attempt to commit robbery (section 393).
It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crimes, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime.
Distinction between Attempt and Preparation:
Attempt to commit crime is punishable, whereas preparation is not. This is because preparation would generally be a harmless act, e.g. attempt to commit murder creates a disturbance in the society and the sense of insecurity in an individual, while preparation may not create alarm in society. According to Indian penal Code an “attempt” is a continuous proceeding which at one stage assumes criminal character.
In Sudhir kumar Mukharjee v. State of W.B , Supreme Court held that, attempt to commit an offence begins when the preparation are complete and the
culprit commences to do something with the intention of committing the offence and which is a step forward toward the commission of the offence. In Abhyanand Mishra v. State of Bihar , Supreme court held that, the movement culprit commences to do an act with the necessary intention, he commences his attempt to commit an offence. Such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
Test for Distinction:
Five Tests laid down by courts – Thus, it is simple to say that an attempt to commit offence begins where preparation to commit it ends, but it is difficult to find out where one ends and the other begins. To solve this riddle various tests have been laid down by the courts.
These are as follows:
The Proximity test,
The locus poenitentiae test,
The impossibility test,
The social danger test, and
The equivocal test.
1.The Proximity Test- Proximity cause as explains is the causal factor which is closes, not necessarily in time or space, but in efficacy to some harmful consequences; in other words, it must be sufficiently near the accomplishment of the substantive offence. In Sudhir kumar Mukherjee case and Abyanand Mishra’s case, the Supreme Court explained the offence of attempt with help of the proximity test, saying that:-
“A person commits the offence of ‘attempt to commit a particular offence’ when-
a)He intends to commit that particular offence; and
b)He having made preparation with the intention to commit the offence, does an act towards its commission; such an act need not to be the
penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
2.The Locus Poenitentiae test – In Locus Poenitentiae the word Locus means, a place,- a word frequently used to denote the place in or at which some material act or even such as crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to withdraw from a bargain before it has become fully Constituted and become binding.
In simple language an act will amount to a mere preparation if a man on his own accord, before the criminal act is carried out, gives it up. It is, thus, possible that he might of its own accord, or because of the fear of unpleasant consequences that might follow, desists from the completed attempt. If this happens, he does not go beyond the limits of preparation and does not enter the arena of attempt. He is, thus at the stage of preparation which can not be punished.
Malkiat Singh case explains this second test, in this case, a truck carrying a paddy was stopped at Samalkha Barrier, a place 32 miles away from Delhi. Evidently, there was no export of paddy within the meaning of para 2(a) f the Punjab Paddy (Export Control) Order, 1959, the Court decided that there was no attempt to commit the offence export. It was merely a preparation. Distinguishing between attempt and preparation Supreme Court observed that the test of distinction between two is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case, it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey.
3.Impossibility Test – In Queen Express v. Mangesh Jivaji, the Bombay high court held that within the meaning of section 511 of IPC, an attempt is possible, even when the offence attempted cannot be committed.
In Asagarali Pradhaniu v. Emperor , what the appellant did was not an “act done towards the commission of offence”, and therefore, he could not be convicted. But in a Malaysian case the accused was held liable for an attempt to cause abortion when the woman was not pregnant.
The act itself is impossible of performance and yet it constitutes an offence of attempt to commit crime. This was precisely the position in English Law before Houghton v. Smith case. In R v. Shivpuri it has been held that, if the mental element has proceeded to commit the act but failed his responsibility for attempt would be evaluated in the light of facts as he thought them to be (putative facts). 4.Social Danger Test – In order to distinguished and differentiate an act of attempt from an act of preparation the following factors are contributed.
•The seriousness of the crime attempted;
•The apprehension of the social danger involved.
In this test the accused’s conduct is not examined only partially but the consequences of the circumstances and the fullness of the facts are taken into consideration.
For example, X administers some pills to a pregnant woman in order to procure abortion. However, since the pills are innocuous they do not produce the result. In spite of this X would be held liable for an attempt from the view point of the social danger test, as his act would cause as alarm to society causing social repercussions.
5.On the Job or unequivocality Test – If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. So, attempt is done when the offender takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.
Case law dealt in detail:- State of Maharashtra vs. Mohd. Yakub 1980.
The Case of State of Maharashtra v. Mohd.Yakub –
A jeep driven by the respondent and a truck was stopped at about midnight near a bridge. The respondents started removing the bundle from the truck. At this time customs officials acting on a clue reached the spot and accosted the respondents. At the same time, the sound of a mechanized sea-crafts engine was heard near the side of the creek. Two persons from the neighborhood were called and in their presence silver ingots were recovered from the vehicles. Respondent no-1 had a pistol, a knife and some currency notes. On the questioning it was found that the respondents were not the dealers in silver.
The trial court convicted the accused u/s 135(1)(a) read with section 135(2) of the Customs Act for attempting to smuggle out of India silver ingots worth about Rs 8 lakhs in violation of Foreign Exchange Regulation Act, the Imports and Exports (control) Act and the Custom Act. But the Additional session judge acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had ‘attempted’ to export silver in contravention of the Law. The High Court upheld the acquittal. The Supreme Court however allowed the appeal and set aside the acquittal.
Two separate but concurring judgments of Justice Sarkaria and Justice Chinnappa Reddy call for a critical evaluation with a view to appreciating their import for the law of Attempt in India
•Justice Sarkaria Observed: – “what constitutes an ‘attempt’ is a mixed question of law and fact depending largely upon the circumstances of a particular case. ‘Attempt’ defies a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts is proceeded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertaines the idea or intention to commit an offence. In the second stage, he makes preparation to commit it. The third stage is reached when the culprit takes deliberate overt act or step to commit the offence. Such overt act or step in order to be ‘criminal’ need not be penultimate act towards the commission of the offence.
It is sufficient if such act or act were deliberately done, and manifest a clear intention to commit aimed, being reasonable proximate to the consummation of the offence.” •Justice Chinnapa Reddy undertook the definitional exercise even more rigorously. He explored the English decisions and finally concluded: – “In order to constitute an ‘attempt’ first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of offence, and third, such act must reveal with reasonable certainty, in conjunction with the other facts and circumstances and not necessarily in isolation, an intention, as distinguished from mere desire or object, to commit that particular offence”
On the question of definition of attempt the two decisions can be summed up as follows:
oBoth the opinions support the traditional view relating to the stages in the commission of a crime and would place attempt stage in a sequence after the preparation stage. oBoth the opinions agree that for constituting an attempt the requirement of mens rea i.e. the state of mind to commit the offence attempted, and the actus reus, i.e. an overt act, must be established. oBoth the opinions agree that it must be established through independent evidence that the accused had the intention of committing the offence attempted. oHowever, on the question of precise type of actus reus required the two opinions seems to be taking different line. Justice Sarkaria specifically prefers the actus to be “reasonably” proximate to the consummation of the offence, but no such condition appears to emerge from Justice Chinnapa Reddy’s opinion.
IV. ACCOMPLISHMENT OR COMPLETION
The last stage in the commission of an offence is its accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an attempt only.
For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it
will be a case of attempt to murder.
Through this research and finding of my research project of Indian Penal Code on Stages of Crime, it is concluded that the each and every stage must be taken into account for charging someone as an offender or criminally liable and it is essential that all the stages are fulfilled or satisfied simultaneously and if even one stage is absent it will not amount to crime under IPC. For the commission of crime by person involves four stages viz, formation of the intention or mental element, preparation for commission of crime, acting on the basis of preparation, commission of the act resulting in an event proscribed by law.
1.Prof. S.N.Mishra; Indian Penal Code; Central Law Publications, Allahabad, Tenth Edition (September) 2001. 2.K.D. Gaur; A Text Book of The Indian Penal Code, Universal Law Publishing Company Pvt. Limited, New Delhi, Third Edition 2004. 3.O.P. Srivastava; Principles of Criminal Law, Eastern Book Company, Lucknow, Fifth Edition, 2010.
Articles and Journal Referred:
Attempt in criminal law by Suwarn Rajan, Advocate, Supreme Court of India