CHAPTER 6 IMPOSSIBILITY, ABANDONMENT, THEORIES AND RULES IN THE LAW OF CRIMINAL ATTEMPT

Transcription

1 227 CHAPTER 6 IMPOSSIBILITY, ABANDONMENT, THEORIES AND RULES IN THE LAW OF CRIMINAL ATTEMPT 6.1 Impossibility The impossibility is a situation where the defendant believes he can commit a crime but, for reasons that are not known to him, it is impossible to actually commit the crime. Actions that would ordinarily be enough for a conviction may, in some circumstances, not constitute attempt because of the impossibility of actually committing the crime. Earlier the law regarding the impossible attempt was that it would be no crime if a person attempting to do something, which in fact was not possible to perform, it was treated as mere preparation and no punishment was provided for that. However, it is now perceived that impossibility of performance of an act does not per se render the attempt to do it an innocent or an act free from guilt. The previous rule was that it would be no crime if a person attempted to do something, which in fact was impossible to perform. It was treated at par with a mere preparation. It was laid down in Queen v. Collins 1 case where it was held that if A puts his hand into the pocket of another with an intention to steal but finds nothing he cannot be convicted of an attempt to steal. 1 (1864) 9 Cox. C.C. 497

2 228 The line of reasoning is that when the specific crime cannot be consummated then whether attempt to commit the crime which is not at all there be possible? Similarly in R. v. Mc. Pherson 2, the court had observed that a person cannot be held guilty for breaking and entering a building and attempting to steal goods which were not there. In this case the prisoner had been convicted on an indictment charging that he had broken and entered a dwelling-house and had stolen certain specified goods therein. It appeared that the goods specified had previously been stolen from the house by some other person, and that M pherson had in fact stolen nothing before he was apprehended. The case was reserved and the conviction quashed on the ground that certain goods were specifically set out in the indictment whereas the jury had found the prisoner guilty of attempting to steal other goods, namely those which were still in the house. Bramwell, J. cited an illustration in R.v. Mc. Pherson 3 case that if A mistaking a log of wood for B and intending to murder B, strikes the log of wood with an axe, A has not committed attempt to murder B. A administers to B a drug with intent to procure an abortion. The drug is found to be harmless. A is held not guilty. 4 In R. v. Dodd 5 was also decided on the above lines where it was held that a person could not be convicted of an attempt to commit an offence which he could not actually commit. All these cases were reviewed in R v. Brown s 6 where the court for 2 (1857) 7 Cox Ibid 4 Wharton, Criminal Law, 10 th Edition, 1896, p (1868) 18 L.T. (N.S.) Cox C.C. 715; 24, Q B D. 537.

3 229 Crown cases Reserved held R v. Collins 7 was no longer a law. And it was said that the above cases were decided on a mistaken view of the law. In R v. Ring 8 it appeared that Ring and other man had been observed trying to pick pocket but no evidence was adduced that the pocket contains anything. The case was stated to the Divisional Court on the point whether R v Collin 9 was to be followed, and the court declared that R v Collins 10 had been overruled by R v Brown 11. Since R. v. Ring 12, impossibility had not been accepted as a defense. 13 Illustration (b) to Section 511 of the Indian Penal Code is law now. The previous cases were overruled in R. v. Ring 14. In this case Henry Ring, Thomas Atkins and William Jackson were charged with an attempt to steal. It was proved that the prisoners were seen to hurry on the platform at a station just as the train was about to start. But they did not got by that train. On the arrival of the next train the prisoners crowded round and hustled a woman who was entering a compartment and Atkins was seen endeavoring to find the pocket of her dress. The prisoners entered the train, get out at the next station and there again crowded round and hustle a woman who was entering the train Atkins again endeavored to find the pocket. They once again tried similarly and were later on arrested. 7 Supra note 1 8 (1892) 117 Cox Supra note 1 10 Ibid 11 Supra note 6 12 Supra note 8 13 Russell on Crime, J.C. Cecil Turner 12 th edition, first Indian reprint, vol.1, 2001, p Supra note 8

4 230 It was argued on their behalf on the authority of R. v. Collins 15 that they were not guilty. The counsel for prosecution argued that Collins case was overruled by R. v. Brown 16. Lord Coleridge C.J. delivering the judgment held that the conviction must be affirmed. This is the landmark decision on law on impossibility. It is, of course, just as impossible to take valuable from an empty pocket as to take life from a dead body. Yet doubts have sometimes been expressed as to whether it could be the crime of attempted murder if a person fired a bullet into a statute believing it to be a man or into a corpse believing it to be alive. 17 These are difficult cases of impossibility as a defense Legal Impossibility Impossibility may arise due to legal one where act done by the accused, for reason unknown to him, is not a crime. In case of legal impossibility the accused has done everything within his means, he used proper means to achieve his desired goal but he does not know, what he has done does not amount to a crime. For instance, A, husband of B wants to marry C during the lifetime of his wife. But the reason unknown to him that B is not alive or A tries to have illicit relationship with C thinking her to be wife of someone in fact she is a widow or divorced woman or an unmarried girl. In this case of legal impossibility the defendant s misunderstanding concerns the law itself. In other words he mistakenly believes that the law criminalizes his 15 Supra note 1 16 Supra note 7 17 R. v. Taylor (1959) 1 F &F 511.

5 231 actions when in fact it does not. In such a case the defendant will be able to mount an impossibility defense. Pure legal impossibility arises when the law does not proscribe the result that the defendant seeks to achieve. Hybrid legal impossibility exists if the defendant s goal is illegal, but commission of the offence is impossible due to a factual mistake and not simply a misunderstanding of law regarding the legal status of an attendant circumstance that constitutes an element of charged offence. Legal impossibility is a defendant s mistake regarding criminal law. The rule of legal impossibility is that an act cannot be penalized only because of defendant s mistaken belief about criminal law. Here the offence is impossible in the sense that the intended result is not a crime at all but because of his ignorance or mistake of criminal law, believes that it is an offence. In this regard he has committed no offence. The principle of legality implies that when certain injuries or effect are not criminal, an attempt to cause them is not criminal 18. Where there is no harm no liability is attached. In Taafe 19 a person imported into UK certain package which he believed to contain foreign currency. He thought it was a crime to import foreign currency. But it was not. He could not on that fact, commit any offence or an attempt to commit offence. The intention to import foreign currency, believing it to be a crime did not constitute the mens rea of any crime. But he has done all that which are necessary to break the law which he is thinking it to a crime, in fact it is not. In Haughton v Smith 20 a van containing stolen goods was stopped by the police. It transpired that the van was 18 Jerome Hall, General Principles of Criminal Law, 2 nd edition, 1960, p (1984) AC (1975) AC 476, (1973) 3 All ER 1109

6 232 proceeding to Hertfordshire where the defendant was to make arrangements for the disposal of the goods in the London area. In order to trap the defendant the van was allowed to proceed on its journey with policemen concealed inside. The van was met by the defendant who began to play a prominent role in assisting in the disposal of the van and its load. Finally the trap was sprung and the defendant was arrested. The prosecutor was of the opinion that, once the police had taken charge of the van, the goods had been restored to lawful custody, and was therefore, no longer stolen goods. Accordingly the defendant was not charged with handling 'stolen goods', contrary to Section 22 Theft Act, 1968, but with attempting to handle stolen goods. The House of Lords held that a person could only be convicted of an attempt to commit an offence in circumstances where the steps taken by him in order to commit the offence, if successfully accomplished, would have resulted in the commission of that offence. A person who carried out certain acts in the erroneous belief that those acts constituted an offence could not be convicted of an attempt to commit that offence because he had taken no steps towards the commission of an offence. In order to constitute an offence under Section 22 of the Theft Act, 1968 the goods had to be stolen goods at the time of the handling; it was irrelevant that the accused believed them to be stolen goods. It followed that, since the goods which the defendant had handled were not stolen goods, he could not be convicted of attempting to commit the offence of handling stolen goods. House of Lords further observed that impossibility is generally a defense; the only exception recognized being the case where the attempter was using inadequate means to achieve his object.

7 Factual Impossibility Factual impossibility is where the defendant sets out to commit an act that, if successful, would constitute a crime but, because of certain factors that the defendant does not know about, it is impossible for him to actually commit the crime. In this situation the defendant s mistake is not in regard to the actual law but, rather, in regard to the factual circumstances surrounding his actions. The physical impossibility arises due to impossible circumstances. For example, A intends to steal from safe, breaks it but finds it empty. There is nothing to steal. 21 The legal framework relating to law of criminal attempt sketched under the Indian Penal Code, 1860 does not specifically deal with an attempt to do an act that is impossible to do. But a careful analysis of illustrations (a) and (b) of Sec.511 of Indian Penal Code, 1860 shows that a person can be held guilty of attempting to steal some jewels from an empty jewel box or something from an empty pocket. The important aspect is the belief of the person, and the intention preceding his action to do a particular act. It does not matter that it is after breaking open a box with the intention of stealing jewels which he believes to be inside it, or the person who picks another s pocket with the intention of picking or lifting whatever valuable he find their intentions incapable of fulfillment. From these illustrations it can be deduced that a person becomes liable for attempting to commit an impossible act if he, with intent to commit the intended offence, has done everything within his reach to commit the intended 21 Partington v. Williams[1975] 62 Cr.Ap. R.220.

8 234 offence, but his criminal objective was frustrated because of reason unknown to him or circumstances beyond his control or comprehension. 22 An attempt to commit an offence is possible even when the intended offence is not possible to commit. 23 The main emphasis will be given for determining as to whether he has crossed stage of preparation, it seems, is overt act that manifests his intention to commit the intended offence. However, the Calcutta High Court, in Riasat Ali, 24 laid down that a person could not be convicted of an attempt to commit an offence under Section 511 of IPC unless the offence would have been committed if the attempt charged had succeeded. It based its decision on the observation of Cockburn, C.J., in M Phersons 25 where it was observed that the word attempt clearly conveys with the idea, that if the attempt had succeeded, the offence charged would have been committed, and of Blackburn, J., in Cheeseman 26 where it was observed that if the actual transaction has commenced which would have ended in crime if not interrupted, there is clearly an attempt to commit the crime. But the Allahabad High Court has not followed Riasat Ali. 27 It has remarked in Queen v. Ramsarun Chowbey 28 and in MacCrea R 29 that the rulings of English Judges on the criminal law of Englamd are inapplicable to the interpretation of the Indian Penal 22 Re T Munirathnam Reddy AIR 1955 SC QE v. Mangesh Jivaji (1887) 11 Bom 376 p (1881) 7 Cal Supra note (1862) L & C 149, Supra note (1872) 4 NWP (1893) 15 All 173, 178

9 235 Code, which the courts of India must interpret on the same principles of interpretation as they would employ in the interpretation of any other Act of legislature. In Munah Binti Ali v. Public Prosecutor 30 the accused came to know that the woman was not pregnant only after she attempted to cause miscarriage. The Court of Appeal held that: In the present case the evidence clearly showed that it was the intention of the appellant to bring about a miscarriage and she could not have made the attempt unless she believed that complainant to be pregnant. If the complainant was not pregnant, then the failure of the attempt was due to a factor independent of the appellant herself. Her attempt was due to prevalent or frustrated by the non-existent of a circumstance which she believes to exist. The scope of the applicability of the impossibility test is clearly brought out in the following illustrations: D Shoots at P, whose back is turned to him. The attempt is rendered abortive by the fact that P is beyond the range of D s Weapon. D is guilty of attempt. 2. D did not intend to kill B, knew the limited range of his weapon and was merely practicing it in fact. No mens rea, and hence no attempt. Thus, it is clear that the question whether, there is attempt or not, depends exclusively on mens rea. 30 (1958) 24 Mad LJ 159(CA) 31 K. I. Vibhute, PSA Pillai s Criminal Law 10 th edition, 2008, 5 th reprint, 2011, p. 268

10 236 If there is mens rea, it is capable of establishing as an actus reus, an act that would otherwise be not only legally, but morally and socially, innocent. An attempt is possible, even when the offence attempted cannot be committed, as when someone, intending to pick another person s pocket, thrusts his hand into the pocket, but finds it empty. That such an act would amount to a criminal attempt, appears from the illustrations to sec.511 of the Indian Penal Code. But in doing such an act, the offender s intention is to commit a complete offence, and his act only falls short of the offence by reason of an accidental circumstance which has prevented the completion of the offence. It is possible to attempt to commit an impossible theft, and so offend against the code, because theft is itself an offence against the code, and may, therefore, be attempted within the meaning of the code. 32 In a case 33 a woman with a view to poisoning her husband administered to him a substance which was harmless and which could not in any circumstance bring about his death, but which she believed to be a poison. It was held that she could not be convicted. This case was decided on the basis of the act she has done. But she could have been convicted because her intention was to kill. She has completed her last step but the reason unknown to her the substances are harmless. These types of cases should be decided in the light of subjective approach. An attempt is an act of such a nature that 32 Per Birdwood, J. in Mangesh Jivaji (1887) 11Bom 376, p. 380, 381). 33 Rupsir Panku (1895) 9CPLR (G) 14

11 237 it is itself evidence of the criminal intent with which it is done. A criminal attempt bears the criminal intent upon its face. The things speak for itself. 34 An attempt is possible, even when the offence attempted cannot be committed; as when a person, intending to pick another person s pocket, thrust his hand into the pocket, but there was nothing to steal as has been stated above. In objectivist approach it is the actor s act which is taken to be considered. However, the actor s perception as in subjective sense plays an important role and crime may be committed. In Queen v. Whitechurch, 35 Lord Coleridge C.J. expressed doubt as to whether a woman who was not pregnant could be indicted for an attempt to procure abortion on herself. No guideline was there till Peggy Anderson 36 where the court held that a woman must be pregnant before the crime of attempting to procure abortion can be committed. The nineteenth century has witnessed two very famous decisions on empty pocket cases which are quite at antonym to each other. The two cases namely Collins 37 and Ring 38. Collins 39 was decided solely on objectivist approach and acquitted the actor of attempting to commit theft of an empty pocket; consummation of the specific offence of theft being not possible, however, Ring 40 was decided quite contrary to the decision 34 Ganapati Udahyai v T. A. Chinnayya Mudaliar, AIR 1953 Mad. 609 at 610: 1953 Cr. LJ (1890) 24 QBD (1928) JC 1 (Scotland) 37 Supra note 1 38 Supra note 8 39 Supra note 1 40 Supra note 8

12 238 in Collins 41. Although subjectivist approach can play the major role in convicting the actor of attempt to commit theft of an empty pocket of another private person, yet it can be reconciled by another plausible explanation. The manifest criminality regarding picking a pocket of another is quite evident from the conduct of the actor and at the same time he took the satisfaction or the last step of entering his hand inside the pocket of the other person. Both these objects being clear enough from the face of it, it now requires to extend the objectivist approach in an ingenuous manner which points towards the character of dangerousness of the actor to convict him. This is how the decisions can be harmonized. The actor who naturally picks another person s pocket so as to attempt to deprive other s legitimate movable property might be considered an antisocial element who is a potential threat to the society and as such there must be societal reaction against him resulting in the actor s conviction of attempting to commit theft although the pocket may be empty. The decision in Ring is now the law in empty pocket cases. 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 attempted to commit theft because there is merely a mistake in 41 Supra note 1

13 239 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 of Indian Penal Code But 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.

14 240 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 should be 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 precludes 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 negative 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.

15 241 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. 6.2 Abandonment One of the recurrent themes in the law of criminal attempts is the problem of pinpointing the time in the unfolding of a criminal plan at which the actor becomes liable for an attempt. The problem is specifying the point at which the accused passes the threshold of criminality. This is important not only if the plan is unsuccessful but also if it is interrupted and it is necessary to know that the aborted plan constitutes a punishable offence. Doctrine of Locus Penitentiae has played a very important role in administration of criminal justice. It refers to the possibility of a person who, having made preparations to commit an offence, actually backs out of committing it, owing to a change of heart or out of any other type of compulsion or fear. 42 The law allows locus penitentiae to every person before he brings himself within the grip of the criminal law and that this is the stage to which he can go and beyond which he cannot. The Latin expression speaks about time for repentance. In Locus Penitentiae the word Locus means, a place, a word frequently used to denote the place in or at which some material 42 Supra note 31, p. 262

16 242 act or even such as crime, or breach of contract took place. Locus Penitentiae 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 his 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 cannot be punished. The idea of an abandonment defense to attempt apparently originated in medieval Italy 43, its modem influence dates from the attempt provision in the French Penal Code of That provision, widely copied in nineteenth-century Penal Codes, prohibits conduct that fails "only because of circumstances independent of the perpetrator's will," thus excluding abandonment cases from attempt liability. The German Penal Code of 1871, in a separate provision, exempted from punishment one who "abandoned the completion of the intended act, not having been prevented from such completion by circumstances independent of his will. In Queen v. Dhundi 44 the accused had made a false statement in order to obtain a certificate which would have enabled him to obtain a refund of octroi duty. The certificate however was not granted and in consequence the attempt failed. The trial court observed that the prisoner had not 43 Meehan, The Trying Problem of Criminal Attempt-Historical Perspectives, 14 U. BRIT. COLUM. L. REV. 137, 144 (1979). 44 (1886) 8 ILR All 304

17 243 completed an attempt to cheat but had only made preparation for it. The learned Sessions Judge said: Even supposing that Dhundi by false representation had succeeded in getting the refund certificate, yet he had a locus penitentiae. He had got it endorsed at the outpost and had to present it on the following Saturday for encashment before he finally lost all control over it and could no longer prevent the commission of the offence. Before that time he might have altered his mind even from prudence, if not from penitence, and torn up the certificate and no cheating could then have happened. Accordingly, after applying the doctrine of locus Penitential the prisoner was acquitted. A person attempting an offence may abandon his idea at any stage before completion though initially he had the intention. Voluntary abandonment is a defense. Repentance expressed by the perpetrator through the voluntary withdrawal from an already criminal attempt coupled with the utmost exertion to oust the harm, never did constitute an exculpation at common law but a California Court has recognized it which is based on sound and commendable penal policy. 45 If a person freely and voluntarily abandoned the idea of committing the crime then he cannot be punished. In Malkiat Singh v. State of Punjab 46 the Supreme Court taking recourse of the doctrine of locus penitential ordered acquittal of the driver and helper of truck convicted of attempting to smuggle paddy out of Punjab. The accused driver and cleaner were intercepted at Samalkha barrier post in Punjab, which is about 14 miles , American Survey of Annual Law, AIR 1970 SC 713.

18 244 from Punjab-Delhi border, driving a truck, containing 75 bags of paddy. They along with others were charged with the offence of attempting to export paddy in violation of the Punjab (Export) Control Order The Supreme Court observed: The test for determining whether the act of the appellants constituted an attempt or preparation 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 State of Maharashtra v. Mohd. Yakub 47 the court held the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation and intention, as distinguished from a mere desire or object, to commit the particular offence though the act by itself may merely be suggestive or indicative of such intention, but that it must be, i.e., it must be indicative or suggestive of the intention. Inchoate crimes, which are also referred to as incomplete crimes, are acts involving the tendency to commit, or to indirectly participate in a criminal offense, without achieving the desired result. Criminal conduct may be analyzed in six different stages: (1) Conceiving the idea of committing a legally proscribed harm; (2) Deliberation; (3) The mens rea or contemplation; 47 AIR 1980 SC 1111.

19 245 (4) Preparation; (5) Attempt stopped before the necessary conduct was completed; and (6) Completion of that conduct, with or without attainment of the end sought. The first two stages have some ethical value but they are not legally significant. The time for giving necessary thought to effect change of mind is a consideration which cannot be lost sight of. 48 Theory of change of mind is propounded with reference to particular facts of a case and not as a general rule. Otherwise, in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind. 49 An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something which the doer of the act neither foresaw nor intended, happens to prevent this whenever some statute declares a series of acts to constitute a crime, any person who has entered upon that series of acts must from that moment stay his hand, and if he proceeds to the completion of the series of acts he is guilty of the crime. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of such particular case Darbara Singh v. State of Haryana, 1980, Cr. LJ State of Maharashtra v. Mohd Yakub 1980 SC Stephen s Digest of Criminal Law, 9 th edition. As quoted in Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698

20 Finalized Attempt An attempt to commit an offence is a step forward in the direction of the commission of the intended offence. However, every act or series of acts committed in the direction of the contemplated offence does not amount to an attempt. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. If attempt succeeds, he has committed the offence, if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. In Kailash Chandra Parekh v State of Assam 51 the court held that an attempt to commit an offence, which, due to some interruptions beyond control of the doer, remained unaccomplished. Sometimes the culprit abandoned the idea before attempting due to some intervening factor like arrival of police before completion of crime, intervention by some other person; falsely thinking that somebody is coming etc. He fails to commit the crime in these types of cases. Since the abandonment is no voluntary, he will be punished accordingly. If A' intents to rape a girl, accordingly spread a blanket on the floor and forcibly laid her on the blanket and thereupon forcibly ride upon her, opened her cloth and about to make naked her body. At this stage, because of some intervening factor he would not be able to succeed punishment should be awarded because it is a case of finalized attempt. He is guilty of attempt to commit rape. 51 (2003) Cr.LJ 3514 (Gau)

21 247 Attempters are often in situations where, unless they abandon their efforts, they are likely to succeed. So, it is argued, the defense should be recognized in order to encourage abandonment, "thereby diminishing the risk that the substantive crime will be committed." Proponents of this argument often assume that without the defense abandonment will have "no legal effect." 52 But in most jurisdictions the penalties for attempts are less than the penalties for the respective substantive crimes. 53 In most jurisdictions, then, the argument requires the existence of attempters who, despite the greater penalty for the crime attempted, will not abandon unless abandonment is also a defense to attempt. On the assumption that the penalty structure already encourages abandonment, the existence of such attempters is doubtful. But the root of the matter is whether the defense will encourage abandonment in any event. The possibility of avoiding attempt liability is not by itself a motive for abandoning an attempt. So the claim must be that there are attempters who, though they have a motive to abandon, would nevertheless decide not to abandon, except that they know abandonment is a defense. Although this might happen, one has no good reason to believe it would be anything other than very unusual. One may hope that some attempters will abandon their attempts because of the defense, but the claim that they actually will is an article of faith. Even if recognition of the defense will encourage abandonment, a diminished risk of substantive crimes will 52 Schwenk, Criminal Codification and General Principles of Criminal Law in Argentina, Mexico, Chile, and the United States: A Comparative Study, 4 LA. L. REV. 351, 367 (1942). 53 Robinson & Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 736 & n.248 (1983).

22 248 not necessarily follow. For if knowledge of the defense will also encourage people to make attempts they would not otherwise make, and if not all such attempts will be abandoned, then the number of these encouraged attempters might equal or exceed the number of attempters who abandon because of the defense. One thus has no grounds for claiming that the defense will prevent more substantive crimes by encouraging abandonment than it will produce by encouraging attempts Non-finalized Attempt Some cases are there, where before attempting the culprit abandoned his intention to commit crime voluntarily. Voluntary abandonment is a defense under Criminal Law. So, in case of non-finalized attempt a person cannot be punished. In case of non-finalized attempt idea of abandonment comes from the culprit without any intervening factor. However, if there be both an act and intention, it constitute an attempt, any subsequent change of intention would not alter the character of the act. If a thief intending to rob a house goes up to the gate with the implements of house-breaking, but on reaching the door, he finds it on fire and hearing cries of distress he rushes into rescue the sufferers, he could not be convicted of an attempt. But after he has affected his entry with criminal intent, he remained there without rescuing the sufferers he would be guilty of attempted house-breaking because his entry with that intention completed that offence and his subsequent change of intention would not alter a criminal act into a guiltless one. Direct or specific intention is the most important aspect for liability in criminal attempt and this requirement excludes abandonment cases because abandonment

23 249 "reveals that the actor's criminal will was insufficiently resolute to carry through. The abandonment raises doubts about the actor's intention up to that time. The principle is that the intent required for an attempt is not merely a firm resolve up to the time the attempt is complete as a punishable act. Let it be imagined that A would be rapist, breaks and enters with intent to commit rape and now one may assume that this is sufficient for liability for criminal attempt. If he after entry changes his mind and abandons his effort, he will still be liable for burglary because he broke and entered with intent to commit rape. His abandonment does not show that he lacked the requisite intent. He will not be liable for attempted rape because he did not have the intent to commit rape but he will be punished for what he has done before he abandoned his idea to commit his intended act. It is the peculiar quality of the intent required for an attempt. It has been replied that this presumes that the actor plans to withdraw all along and thus never commits himself to consummating the substantive crime. These encouraged attempters, however, need not plan to abandon, and once they begin some of them may finish. One is forced simultaneously to hold both that A's abandonment does, and that it does not, negate his intent to commit rape. There is nothing mysterious about the relationship between abandonment and the intent requirement for attempt. An attempter must intend to engage in conduct or cause a result that constitutes the substantive crime attempted. In abandonment the burden is on the prosecution to prove the following:- 1) That the actus reus, or the act committed by the accused was something which in the eye of law marked the commission of an offence; and

24 250 2) With reference to mens rea, that in taking this step, he was inspired with the serious intention to attain a particular or definite object, which would constitute a specific felony or misdemeanor. There are two essentials for valid abandonment: Firstly, the withdrawal or abandonment of the attempt must be entirely voluntary. This means that the withdrawal cannot be based on any circumstances regarding the difficulty of actually committing the crime or the chances of being caught that the defendant was unaware of when he began his attempt. For example: P decides to rob a bank. He then proceeds to case out the bank and gather special drilling tools that he will use in breaking into the bank s vault. However, he eventually realizes that the security at the bank is better than he initially thought it would be and so he abandons his plan to rob the bank. In this situation, although P has withdrawn from his attempt to rob the bank, he can still be convicted of the attempt because his withdrawal was not completely voluntary. Rather, it was based on circumstances that initially he was unaware of the difficulty of successfully committing the crime. This argument is completely based on subjective consideration. Objectively considered arguments would have acquitted the actor and thus one more future potential criminal could have been added to the society. But if he abandoned his idea to rob because of the realization that stealing is not the right thing to do, his abandonment is voluntary and offer him a legitimate defense to a charge of attempted robbery. Secondly, in order for the withdrawal or abandonment to be valid, it must be complete. That is to say, the defendant must completely cancel his plans to commit the

25 251 crime. If he only postpones his plans to commit the crime it is not considered a complete withdrawal and he can still be charged with the attempt. Thus, abandonment is also invalid where the defendant simply postpones the criminal plan until another time for his own advantage as depicted by the Model Penal Code of USA. Under the Model Penal Code, the defendants are not guilty of an attempt if they: (1) Abandon the effort to commit the crime or prevent the crime from being committed, and (2) Their behavior manifests a complete and voluntary renunciation of the criminal purpose But the renunciation is not complete if motivated in whole or part by one of the following: (1) They postpone the criminal conduct to a more advantageous time, or to transfer the criminal effort to another but similar objective or victim. (2) They are merely reacting to circumstances that increase the probability of detection or apprehension. (3) They are reacting to a change in circumstances that makes the crime harder to commit.

26 Theory, Rules and Doctrines The inclusive meaning of the term theory is the knowledge of a subject, which is acquired without any practical objectives in view. It is mainly concerned with the ultimate ideas which comprise the foundation of a science or social discipline. A theory of criminal law is constructed of a set of ideas by reference to which every penal law can be significantly understood and explained in a precise manner. On the other hand the rules of penal law are elucidated by being to more general propositions, which are organized in terms of a theory of penal law. A theory of penal law should be tested by the significance of its implantation of existing penal law and the scholar s primary vocation is the increase of that knowledge. 54 A descriptive- normative theory of criminal law is mainly concerned with certain types of proposition which it distinguished as the rules, doctrines and principles of criminal law. The principle of legality is the most fundamental of all principles as it is conceiving various rules and doctrines which qualifies the meaning of both crime and punishment. There were some rules for centuries defining specific criminal attempts before there was a doctrine of criminal attempt. Common law theories are implicit in case law which just opposes other theories is that criminal attempt is different from state of preparation as former is harmful and require penalty but the latter is not harmful like former. 54 Supra note 18, p. 2

27 253 The criminal attempt is a matter of controversy as the defendant takes the defenses of impossibility and abandonment to prove that he was in the preparatory stage. But it is a difficult task to differentiate preparation and attempt as there is no definite line between attempt and preparation. For that some theories, rules and doctrines are adopted by proper authority to get a clear picture in this regard and to punish the wrongdoer for his act. Courts have repeatedly held that the test to determine whether a meticulous act amounts only to preparation or whether it actually amounts to an attempt to commit an offence is based on the facts and circumstances of each case. The following rules/doctrines had been innovated by the judiciary to distinguish between attempt and preparation: Proximity Rule The proximity rule is embodied in the Latin maxim cogitationis poenam nemo patitus which means that no man can be punished for his guilty purposes, save so far as they have manifested themselves to proclaim his guilt. It covers cases where nonproduction of the consequence may be solely due to want of skill on the part of the offence or it may be due to other causes operating on the offender. For instances, A shoots at B intending to kill him but misses the mark for want of skill or any other defect in the gun and the like. There A would be liable for attempt where A points a gun at B and proceeds to pull the trigger in order to shoot him dead, but it turns out that the

28 254 gun was not loaded, A would be liable for attempt because he has done everything in his hand towards the commission of the offence. 55 An act of the accused is considered proximate, if, though it is not the last act which he intended to do, is the last act that was legally necessary for him to do, if the contemplated result is afterwards brought about without further conduct on his part. 56 Since the probable wrongdoer could change his mind at any point before the crime is committed; the state should wait until the last possible minute to ensure that the intention is going to be realized. The rule is a mixture of principles laid down in a number of decided cases i.e. an act of attempt must be sufficiently proximate to the crime intended; it should not be tenuously leading towards the commission of an offence. All these cases, seem to be agreed that in order to constitute an attempt the act must be done towards the commission of the offence, but it must not be the penultimate act, but may be any act proximate or remote so long as it is done towards the commission of the offence. It is not necessary that the accused should complete every stage in the actual offence except the final stage. 57 In order to determine whether a given act constitutes an attempt the following factors are considered S.N. Misra, Indian Penal Code, 1860, 11 th edition,p Glanville Williams, Textbook of Criminal Law: The General Part, second edition, 1983, Indian Reprint by Universal Publishers, New Delhi, 1999, p Emperor v. Raghunath AIR 1941 Oudh 3 at P Paul H. Robinson, Fundamentals of Criminal Law, 1988, p. 463.

29 255 The gravity of the offence intended, the nearness of the act to completion of the crime and the probability that the conduct will result in the offence. In Sudhir Kumar Mukherjee case 59 and Abhayananda Mishra case 60, the Supreme Court explained the offence of attempt with the 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 no to be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence The Indispensable Element Approach Some decisions seem to stand for the proposition that, if the successful completion of a crime requires the assent or actions of some third person, that assent or action must be forthcoming before the actor can be guilty of an attempt. Thus if A and B plan to defraud a life insurance company by pretending that, A, the insured, is dead, and if C the beneficiary, must fill a formal claim before any proceeds can be paid, it has been held that the acts of A and B cannot amount to an attempt to defraud the insurance company until C files a claim or agrees to file a claim. Judicial pronouncement firmly established that a person cannot be held guilty of an attempt if he lacks a means 59 AIR 1973 SC AIR 1961 SC 1698

30 256 essential to completion of the offence intended. Nearer the gravity and probability of the act to the crime, stronger is the case for calling the act an attempt Unequivocality Test Unequivocality theory was presented originally by Carrara, which denies that there is any factual difference between states of preparation and criminal attempt, and rests wholly on the proof of mens rea. The gist of this theory was modified by Salmond in The King v. Barker 61 is that : An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence aliunde as to the purpose with which it is done.the ground of the distinction between preparation and attempt is evidential merely. 62 An act is proximate, if and only, if it indicates beyond reasonable doubt what is the end towards which it is directed. The actus reus of an attempt of a exact crimes is constituted when the accused person does an act which is a step towards the commission of that specific crime and the doing of such act cannot reasonably be regarded as having any other reason than the commission of that specific crime. In other words, acts must be clearly referable to the commission of crimes and must converse for themselves. 61 (1924), N. Z..L.R.865, Salmond, Jurisprudence 404 (7 th edition 1924)

31 257 To constitute an attempt the act must be such as to clearly and unequivocally indicate the intention to commit the offence. The act must be referred to the commission of the crime and it must be evident and clear on examination. The intention followed by preparation is not sufficient to constitute an attempt. But intention and then preparation must be followed by an act toward the commission of crime. The act must be revealed with reasonable certainty in conjunction with other facts and circumstances an intention to commit the particular offence. 63 The Supreme Court observed that in case of attempt to commit murder by firearms, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence of attempt to commit murder is made out. 64 In State v Parasmal and Others 65 the Rajasthan High court, referring the unequivocallity test, observed: When a person intends to commit a particular offence, and then he conducts himself in such a manner which clearly indicates his desire to translate that intention into action, and in pursuance of such an intention if he does something which may help him to accomplish that desire, then it can safely be held that he committed an offence of attempt to commit a particular offence. It is not necessary that the act which falls under 63 Asgarali Pradhania v. Emperor, AIR 1933 Cal Om Parkas v. State of Punjab, AIR 1961 SC AIR 1969 Raj. 65

32 258 the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. That act may fall at any stage during the series of acts which go to constitute an offence under Section 511 of the Indian Penal Code. In case of unequivocality where a person is trying to open a car, nobody can predict what he is going to do. May be his intention was to steal the car or he just wanted to sleep there for the night or there might be reason that wants to go for a joy ride. There is lot of probabilities. In this context the intention is more important. Here the person who was trying to open the car with a screwdriver, one can say the man s intention was to cause harm to the vehicle. Here, harm may be caused to the vehicle or to the owner of the vehicle. If he is caught by the police while he was trying to open the car, it can be said that it is an attempt to commit theft of the vehicle. Now actually the question arises that whether it was an attempt to commit theft of the vehicle or not? In this case if he takes away the car, he has committed theft, on the contrary, if the owner saw him taking away the car, intercept him and called the police, he was still in the attempt stage. Now if he was caught when he was only trying to open the car then was it really an attempt to commit theft? In the Indian context, it is an attempt to commit theft. It will be suggested out rightly that it is seen as an equivocal case and not an unequivocal case. Therefore it is very difficult to predict whether they were going to commit theft of the vehicle or not or simply they were trying with screwdriver on the vehicle and they have been apprehended. Therefore, whether trying to cause harm to the vehicle is more appropriate than to commit theft of the vehicle itself. Or, it may have happened that the screwdriver was not workable enough, what he has and then what