Govinda Menon, J., observed : “The dividing lines between a mere preparation and an attempt to commit a crime may be rather there in some cases and the question whether there has been an attempt or only a preparation to commit it is to be decided on the facts of each particular case”.
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A huge volume of case-law—both Indian and English —developed on the question as to how or where attempt differs from preparation. This huge volume represents a many sided approach and instead of resolving the controversy it has only added to it.
ADVERTISEMENTS:
The case of Ashfaq Hussain v. The Crown, reported in Pak. Cases 1950 Lahore 593, in so far as it summarises all that has so far been said on the subject, may be said to be a leading case on the point.
The facts of the case are that the accused rushed into the court-room with a blood-stained dagger and wanted to stab a person who was bleeding from a wound already received outside the court-room, but the accused was prevented from doing so by the Sub-Inspector who pointed a revolver at him and made him drop the dagger and by the Magistrate, who shouted at the accused to stop and asked the people present in Court to seize him.
The Lahore High Court held that the accused had clearly gone beyond the stage of preparation. His act was more than an assault and constitute an attempt. The observations by the learned High Court when the matter came up before it in appeal are worthwhile for our purpose. They are as follows:
“In every crime there are four stages; first, the intention to commit it- second, the preparation; third, the attempt and fourth, the crime. If the attempt fails the crime is not complete but the attempt is punishable because it creates alarm which of itself is an injury, and the moral guilt of offender is the same as if he had succeeded.
ADVERTISEMENTS:
An attempt to commit a crime must be distinguished from the intention or the preparation to commit it. Intention is inferred by the direction of conduct towards the object. Will is not taken for the deed unless there be some external act which shows that progress has been made in the direction of the deed.
Preparation is in devising or arranging the measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission, after preparation has been made.”
The question whether a certain act is merely one of the preparation or one committed in the course of an attempt is a question of fact. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it, but acts immediately connected with it are.
The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination in an attempt as compared with preparation and such greater degree of determination may be estimated in various ways. Where an act towards the commission of an offence is illegal per se, it is proof of fixed determination. Where the act is open and not hidden, that is a further proof of determination.
ADVERTISEMENTS:
There is a clear difference between the definition of attempt in Section 511 and that given in Section 307. To convict a man of an attempt to murder under Section 307, it must be shown that he has done some act with such intention that if by that act he caused death he would be guilty of murder. But under Section 511 it is only necessary to prove an act done in the attempt towards the commission of the offence.
Under Section 307, the act done must be one capable of causing death and it must also he last proximate act necessary to constitute the completed offence; under Section 511 the act may be any act in the course of the attempt towards the commission of the offence. Attempt, according to the wording of Section 511 is not complete unless some act is done towards the commission of the offences; and when such an act is done the offence of attempt is complete. The act must, however, be one immediately and directly tending to the execution of the principal crime.
Section 511 was never meant to cover only the penultimate act towards completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence and are done with the intent to commit it and are directed towards its commission.
The illustrations to this section show that accused has used all possible means for the commission of the offence as he would have used if he had been successful, but the offence could not be committed because the box or the pocket was empty. An attempt is intentional preparatory action which fails in object, which so fails through circumstances independent of the person who seeks its accomplishment.
The Patna High Court has held in the Province of Bihar v. Bhagwat Prasad, that an attempt to commit an offence is act or series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act or acts neither foresaw nor intended, happens to prevent this. An act towards the commission of the offence unless it is followed or perhaps, preceded by other acts; is merely an act of preparation.
The accused Bhagwat Prasad was in charge of a godown where bags of grain were stocked. He removed and concealed some bags in one of the rooms so as to misappropriate them in future but had not manipulated the registers accordingly.
Was the act of the accused an act tending towards the commission of the offence? Shearer, J., held that the act of the accused only indicated that the accused had formed a criminal intention and made a preparation for committing the offence.
It would have been an attempt at misappropriation if the accused had manipulated the registers and at the time when they were discovered, there was a line of bullock-carts outside the godown waiting for the bags to be loaded on them, i.e., prevented from removing them which would have been the last act to complete the offence and in which the act of the accused would have failed to achieve its object by the intervention of the factors independent of his will.
The preparation is a mental act followed by certain external acts. An attempt to commit the offence is a direct movement towards the commission of offence. In Fagna Bhoi v. State of Orissa, the High Court upheld that for the conviction of an attempt to commit crime two things are necessary— First—intention to commit crime, secondly actus reus, to do certain criminal acts in furtherance of intention. So “an attempt may be stated to be an act done in part execution of a criminal design amounting to more than mere preparation”.
Defining an attempt to commit an offence, the Supreme Court in case,
Ramkripal v. State of M.P.,1 has held that an attempt to commit an offence can be said to began, when the preparations, are complete and the culprit commences to do something with the intention of committing of offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence.
The word ‘attempt’ is not itself defined and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 IPC require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence not followed by any act cannot constitute an offence.