About this topic
Attempt is the stage at which a person has started to carry out a crime but has not completed it. Not every unfinished crime is treated alike: some people who stop short of the full offence are guilty of attempt, while others have committed no offence at all. These notes cover why attempt is punished, the stages of a crime, Section 62 of the B.N.S., the special attempt provisions, the tests that separate preparation from attempt, impossible attempts and the effect of regret.
Problem 1: Late one night, Prince cuts the grill of a jewellery showroom in Indore and forces open the locker. It is empty, because the owner had taken everything home that evening.
Problem 2: Farhan, a bank cashier, secretly copies the strong room key and notes the guard's timings. On a Sunday night he drives to the branch. At the gate he thinks of his family, turns the car around and goes home.
Problem 3: From a rooftop in Lucknow, Aadil fires at a business rival. The bullet misses and nobody is hurt. A week later, full of regret, Aadil confesses to the police.
Which of them has committed a crime? The answers are given at the end of these notes.
Why the law punishes attempt
A person who attempts a crime has shown a guilty mind and the will to act on it. If the plan fails, the reason is usually luck or an alert guard, not a sudden change of character.
The law punishes the danger already created by an attempt, not the damage that happened to be avoided.
A drunk driver is stopped at a police checkpoint. The police do not wait for an accident, because the danger is already on the road. Attempt works the same way.
Elements of a crime and the place of injury
A completed crime usually has four elements:
- a human being who acts;
- mens rea, which means a guilty mind;
- actus reus, which means a guilty act; and
- injury.
Section 2(14) of the B.N.S. defines injury as "any harm whatever illegally caused to any person, in body, mind, reputation or property".
An attempt can be complete without any harm. In an attempt, injury may be entirely missing. A guilty mind joined with a sufficiently advanced act is enough.
Stages of a crime
A crime passes through four stages: intention, preparation, attempt and commission. Attempt begins when the person starts carrying out the plan.
Think of baking a cake. First comes the idea (intention). Then comes shopping for flour and eggs (preparation). Then comes the baking, when the tray goes into the oven (attempt). Finally, there is the finished cake (commission). Attempt begins with the baking.
| Stage | Cake analogy | How the law treats it |
|---|---|---|
| Intention | The idea | Ignored, because thoughts should not be punished. |
| Preparation | Shopping for flour and eggs | Generally ignored, because most preparation looks innocent and there is still time to drop the plan. Only a few very dangerous offences punish preparation itself. |
| Attempt | The baking, when the tray goes into the oven | Punishable: the person has started carrying out the plan. |
| Commission | The finished cake | The crime is complete. |
Offences where preparation itself is punishable
- Section 149, B.N.S.: whoever collects men, arms or ammunition, or otherwise prepares to wage war against the Government of India.
- Section 310(4), B.N.S.: making any preparation for committing dacoity.
Attempt under the B.N.S.: Section 62
Attempt sits in Chapter IV of the B.N.S., 2023, titled "Of abetment, criminal conspiracy and attempt". Abetment, criminal conspiracy and attempt are the three inchoate offences. Inchoate means begun but not completed.
The B.N.S. never defines attempt. Section 62 only tells us when an attempt is punishable.
Text of Section 62
"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."
Four checks under Section 62
- Target offence: the offence attempted must be punishable with imprisonment for life or imprisonment. Offences punishable only with fine are outside Section 62.
- Attempt: the person must attempt to commit that offence, or to cause it to be committed.
- Act towards commission: the person must do some act towards the commission of the offence. Thinking or talking alone is not enough.
- No express provision: the B.N.S. must have no express provision for punishing that particular attempt.
Because it applies only where no express provision exists, Section 62 is a residuary provision, a fall-back rule for attempts.
Punishment under Section 62
- Imprisonment of the kind the offence carries, for a term up to one-half of the longest term provided for that offence (or one-half of imprisonment for life); or
- the fine provided for the offence; or
- both.
Theft in a building used for the custody of property, under Section 305, carries up to 7 years. Its attempt, under Section 62, can bring up to 3 and a half years.
Half of imprisonment for life: Section 6
For offences carrying imprisonment for life, Section 6 of the B.N.S. supplies a counting rule:
"In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided."
So one-half of imprisonment for life works out to 10 years.
The 20-year equivalence is only for calculating fractions. An actual sentence of imprisonment for life ordinarily means imprisonment for the rest of the convict's natural life.
Special provisions on attempt
Section 62 is only the general route. Where an offence carries its own rule for attempt, that rule applies instead. These special provisions come in three shapes.
| Shape | Provisions | Effect |
|---|---|---|
| Attempt built into the offence | Section 147 (waging war); Section 310(1) (dacoity) | Attempt carries the full punishment of the offence. |
| Attempt as a separate offence with lighter punishment | Section 109 (attempt to murder); Section 309(5) (attempt to commit robbery) | Attempt is punished separately and less severely than the completed offence. |
| Only the attempt can reach a court | Section 226 (attempt to commit suicide to compel or restrain a public servant) | A completed suicide leaves no accused, so only the attempt is punished. |
1. Attempt built into the offence (full punishment)
- Section 147: punishes whoever wages war against the Government of India, "or attempts to wage such war", with death or imprisonment for life, and fine.
- Section 310(1): dacoity is committed "When five or more persons conjointly commit or attempt to commit a robbery".
Five people who try to rob a bus and fail have already committed dacoity.
2. Attempt as a separate offence with lighter punishment
| Completed offence | Punishment | Attempt | Punishment for attempt |
|---|---|---|---|
| Murder (Section 103) | Death or imprisonment for life, and fine | Attempt to murder (Section 109) | Up to 10 years and fine; can rise to imprisonment for life if hurt is caused |
| Robbery (Section 309(4)) | Rigorous imprisonment up to 10 years (up to 14 years if on a highway between sunset and sunrise), and fine | Attempt to commit robbery (Section 309(5)) | Rigorous imprisonment up to 7 years, and fine |
Updated from the lecture: the lecture gave the punishment for attempt to commit robbery simply as up to 7 years, and for robbery as ordinarily rigorous imprisonment up to 10 years, without mentioning fine. The correct position is that under Section 309(5) of the B.N.S. an attempt to commit robbery is punishable with rigorous imprisonment up to 7 years and the offender is also liable to fine; under Section 309(4) robbery is punishable with rigorous imprisonment up to 10 years and fine, extendable to 14 years if committed on a highway between sunset and sunrise. Source: India Code: B.N.S..
3. Only the attempt is punishable: attempt to commit suicide
Here only the attempt can ever reach a court, because a completed suicide ends the life of the only possible accused. Even here the B.N.S. is narrow. Section 226 provides:
"Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service."
Section 226 targets a person who tries to end their life in order to force an officer to drop a lawful action, such as a demolition.
A person who attempts suicide out of despair commits no offence under the B.N.S. Such a person needs care, not prison. Only an attempt made with the intent to compel or restrain a public servant from discharging official duty is punishable under Section 226.
Preparation or attempt: where is the line?
The statute does not say where preparation ends and attempt begins. Judges examine the border through three tests, which can be remembered as three lenses:
- the U-turn lens (locus poenitentiae test);
- the distance lens (proximity test); and
- the CCTV lens (equivocality test, or res ipsa loquitur test).
The U-turn lens: locus poenitentiae test
This test asks whether, when stopped, the person could still have turned back, leaving everything done so far completely harmless. If yes, the conduct is still preparation.
Locus poenitentiae is a Latin phrase meaning room for repentance. The law keeps this room open deliberately, because it would rather see a person abandon a crime than feel already guilty and carry on.
Malkiat Singh v. State of Punjab (1968), decided by the Supreme Court on 8 November 1968.
Facts: A control order of 1959 provided that no person shall export, or attempt to export, paddy out of Punjab without a permit. On 19 October 1961, officials at the Samalkha barrier stopped a truck driven by Malkiat Singh, with Babu Singh as cleaner. It carried 75 bags of paddy, booked from Malerkotla to a firm in Delhi, with no permit. Samalkha was then in Punjab, about 32 miles from Delhi, while the boundary lay at about the 18th mile. The truck was still well inside Punjab. Both were convicted under Section 7 of the Essential Commodities Act, 1955, and the Sessions Court and the High Court let the conviction stand.
Arguments: The State argued that driving the paddy towards Delhi was at least an attempt to export it. The defence replied that nothing had left Punjab.
Issue: Whether these acts had crossed from preparation into attempt.
Held: The Supreme Court allowed the appeal, finding neither export nor attempt to export. It said: "The preparation consists in devising or arranging the means or measures necessary for the commission of the offence." The test 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." The two might have been warned that they had no licence, and might have changed their minds anywhere before the boundary. The conviction was set aside, and the forfeiture of the truck and the paddy was cancelled.
Principle: So long as the accused can still turn back and leave the acts already done completely harmless, the conduct is only preparation. Here a stretch of road still lay ahead, and so did the chance to turn back.
The distance lens: proximity test
The U-turn lens looks at what was still possible. The distance lens looks at how much ground was already covered. This is the proximity test; proximity means nearness. Nearness cannot be measured with a ruler or a stopwatch.
A car thief strolling through a parking lot is far from the crime. The same thief pushing a master key into a car door is very near it.
State of Maharashtra v. Mohammad Yakub (1980), decided by the Supreme Court on 4 March 1980.
Facts: Customs officers had secret information that silver would be moved in a jeep and a truck from Mumbai to a coastal place near Vasai. On the night of 14 September 1968 they kept watch. The vehicles did not take the road to Vasai; they turned towards a creek and stopped near a bridge. The accused removed some small but heavy bundles from the truck and put them on the ground. As the officers rushed in, they heard the engine of a mechanised sea craft from the side of the creek. Four silver ingots (bars of silver) lay near the footpath to the creek. More were hidden in a shawl in the jeep and under sawdust bags in the truck: 43 ingots in all, over 1,300 kilograms, worth about 8 lakh rupees.
Proceedings: The accused claimed they were only hired to drive the vehicles and knew nothing of the silver. The trial Magistrate convicted them. The Sessions Court acquitted them, holding that until the silver was put into a boat it was only preparation. The High Court agreed.
Issue: Whether bringing the silver secretly to the water's edge was already an attempt to export it.
Held: The Supreme Court set aside the acquittal and convicted the accused under the Customs Act, 1962, read with the Imports and Exports Control Act, 1947. Justice Ranjit Singh Sarkaria, writing the main judgment, held that the act need not be the penultimate act, meaning the very last step before completion. It is enough that the acts are deliberate, show a clear intention, and are reasonably proximate to completing the offence. Only loading the silver onto the sea craft remained. But for the officers, the export would have been completed, and the disappearance of the sea craft strengthened that inference.
Concurring opinion (Justice O. Chinnappa Reddy): An attempt needs three things: (1) an intention to commit a particular offence; (2) some act done towards its commission; and (3) that act must be proximate to the intended result. "The measure of proximity is not in relation to time and action but in relation to intention." Had the truck been searched at the start of its journey, the silver might have shown only preparation. But the clandestine movement at dead of night revealed the intention to export with reasonable certainty.
Principle: The act need not be the last step; acts that are deliberate, show a clear intention and are reasonably proximate to completion amount to attempt, and proximity is judged in relation to intention. These principles still guide courts applying Section 62 of the B.N.S.
Ingredients of attempt (Chinnappa Reddy J.): intention to commit a particular offence, some act done towards it, and proximity of that act to the intended result. Proximity is measured in relation to intention, not time and action. The act need not be the penultimate act.
The CCTV lens: equivocality test (res ipsa loquitur test)
The concurring opinion in the silver case read the act together with its surroundings. This leads to the third test, which books call the equivocality test or the res ipsa loquitur test. Res ipsa loquitur means the thing speaks for itself.
Imagine silent CCTV footage, with no sound and no confession. Does the conduct alone show that a crime is being carried out?
- If the conduct is equivocal, meaning open to more than one reading, it is not yet an attempt.
- If the conduct is unequivocal, allowing only one reasonable reading, it is an attempt.
A man in gloves near an ATM on a winter night is equivocal. The same man fitting a hidden card-reading device into the card slot is unequivocal.
Weakness: many guilty acts look innocent when seen alone. So, as the silver case showed, Indian courts read the act along with the surrounding facts.
The three tests compared
| Lens | Test | Question asked | Illustration |
|---|---|---|---|
| U-turn lens | Locus poenitentiae (room for repentance) | Could the person still turn back, leaving everything done so far completely harmless? If yes, it is preparation. | Malkiat Singh v. State of Punjab |
| Distance lens | Proximity test | How much ground has already been covered? Are the acts reasonably proximate to completing the offence, judged in relation to intention? | State of Maharashtra v. Mohammad Yakub |
| CCTV lens | Equivocality test (res ipsa loquitur) | Does the conduct alone, without words or confession, unequivocally show that a crime is being carried out? | Gloved man near an ATM (equivocal) versus fitting a card-reading device (unequivocal) |
No single test fits every case. In practice, judges use all three tests together.
Impossible attempts
What if the crime was impossible from the start? Section 62 answers this through its illustrations:
- A person breaks open a box to steal jewels and finds none.
- A pickpocket thrusts a hand into a pocket that is empty.
Both are guilty of attempt, because the impossibility came from facts they did not know, while the mind and the act were as dangerous as in a successful theft.
Impossibility arising from facts unknown to the accused is no defence to a charge of attempt.
Regret and abandonment: timing is everything
Regret felt before the border between preparation and attempt is the U-turn that the law respects. Regret felt after that border is crossed comes too late.
The illustrations to Section 109 mark the border:
- Buying a gun and loading it is not yet attempt to murder.
- Firing it at the victim is attempt to murder.
The three problems answered
- Prince (empty locker): This is an impossible attempt, and it is still punishable. Section 305 has no attempt provision of its own, so Section 62 applies, with punishment up to 3 and a half years. Breaking in at night is a separate offence too.
- Farhan (turned back at the gate): Everything he had done would stay harmless once he stopped, so he never crossed from preparation into attempt.
- Aadil (fired and missed): No one was hurt, but the shot crossed the border. This is attempt to murder under Section 109. His confession may help at sentencing, but it cannot undo the crime.
Thought is free, preparation is mostly free, but the first real step towards the crime is not.
