This article is written by Tejaswi Netam, LL.B. 2nd year studying at Campus Law Centre, Faculty of Law, University of Delhi during her Internship at LeDroit India.
Abstract
The commission of a crime involves a lot of steps. From inception of the criminal act in his mind, a criminal is engaged in thorough preparations, always dwelling in fear of a failed attempt or being caught. Even after the actual commission of offence he is never at peace. The entire process is divided in these 4 parts- the Intention or motive, Preparation, Attempt and the execution. Intention and Execution are the most straightforward points but in preparation and attempt there is a thin line that is not very easy to define. Moreover, attempt is also very confusing concept for layman. Naturally this article is going to be focused mainly on the difference between preparation and attempt and the definitions and evolution of doctrines of attempt. I am going to rely mainly on the Bharatiya Nyaya Sanhita,2023’s provisions.
Keywords: stages of crime; intention; preparation; attempt; commission.
Stages of Crime
In State of Madhya Pradesh v. Narayan Singh And Ors. [1] Supreme Court observed. – “ In the commission of an offence there are four stages viz. Intention, Preparation, Attempt and Execution. The first two stages wouldn’t attract culpability but the third and fourth stage would certainly attract culpability.”
the four stages of crime thus are-
- Intention (Formation in mind)
- Preparation
- Attempt
- Execution.
1. Intention
For a crime to be committed there has to be an intention to commit it in a person’s mind. The intention must be taken in regard to thinking of mind. For example, when in stage of preparation, a person must have something in mind i.e. what he is preparing for. It may be knowledge, reason to believe or intention to commit crime in the first place. There is always something before the preparation and that comes under the head of intention. It is where the person makes his mind a determines the course of action and make himself ready to prepare for the act.
Why Important?
“Actus non facit reum, nisi mens sit rea” is probably the most famous legal maxim meaning that the act itself does not makes a man guilty, unless the mind is also guilty. Sometimes doing a prohibited act doesn’t result in crime due to it being done in good faith. For example, a person causing hurt to a person being pursued by police. The person is hitting someone but with a “good” intention- that of helping the police officer catching the offender. Similarly, the statutes excuses children or person of unsound mind due the fact that they are unable to form design for commission of offence.
Punishable?
Intention is a mental status which cannot be traced. That thing which cannot be traced cannot be proved and therefore cannot be punished in itself. However, when coupled with a crime, it enhanced the culpability of the person according to the graveness of the intention element and accordingly attracts greater punishment.
For example, the offence of abduction as defined in the Bharatiya Nyaya Sanhita,2023 (BNS) in section 140 contains 4 sub-sections each with different punishment based on the intention of the offender.
Exceptions
The presence of Mens rea (mala fide intention) is not always an essential on an offence. Statutes sometimes put culpability on people even without presence of intention. In simpler terms, doing something innocently can also lead you before a court in some situations. These offences are known as strict liability crimes- where the liability is so strict that intention does not matter. Offences of this category includes socio-economic crimes, offences related with sexual harassment, Offences against the nation etc.
2. Preparation
It is the second stage. Generally, preparation is also not punishable due to same reason as intention- because it’s impossible to prove that the offender was preparing to commit the crime. Even if the mind was made, weapons were bought still a person can change their mind.
Exceptions
as said earlier, preparation is not punishable but there exist statues that penalise preparation. These offences if done are so grave that their preparation itself is an offence. Some examples of these are-
Preparation to wage war against the Government (Sec149 BNS), Preparation to commit dacoity (sec 310 BNS).
3. Attempt
Attempt is the third stage of any offence. It is called inchoate crime (incomplete crime) and person is convicted for such incomplete offence. Object for punishing attempt is based on the princilple that “prevention is better than cure”. Attempt is sufficient to create fear among society. Attempt under the Bharatiya Nyaya Sanhita can be divided into 3 categories on basis of its provisions.
- Sections containing attempt and actual commission of offences in same section. For example, sec- 147,151,152,158,159,195,233,235,237,250,310,311.
- Offences for which commission of offence and attempt are under different sections. For ex section- Sec 103(Punishment for murder) and Sec 109(punishment for attempt to murder)
- Offences for which there is no individual provision to deal with attempt but are dealt with a residuary provision of attempt under sec 62.
The provision of punishment of attempt is limited to offences punishable with life imprisonment or imprisonment. It is not applicable to offences which are punishable with fine only. In order to understand attempt, it would be appropriate to discuss the caselaws that explained attempt.
Meaning
Making differences between preparation can be very different. Preparation is prior stage of attempt but the line between the two is very thin. “The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime.”- Said Justice Raghubar Dayal in Abhayanand Mishra v. State of Bihar. [2]
According to learned justice,
A person is said to commit the offence of “attempt to commit a particular offence” when
- he INTENDS to commit that particular crime; and
- he, having made PREPARATIONS; and with 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.
In State of Madhya Pradesh v. Mahendra alias Golu [3], Hon’ble Supreme court observed, “Attempt starts where preparation comes to an end, though it falls short of actual commission of crime.”
It might be a very confusing at first, but let us look from a different perspective.
There was a married couple. Their relations got strained and the husband ill-treated the wife and her health deteriorated due to the maltreatment and undernourishment. She was deliberately starved and was not allowed to leave the home. Only a little bit of food that too after long intervals was being provided to her. One day, the wife got an opportunity of lifetime and escaped and reached hospital.
The husband found himself on trial for attempt to murder of his wife.
Defence argued that for attempt under sec 307 IPC, it is the last act which, if effective to cause death, would constitute the offence of attempt to commit murder. Even if the wife had been deprived of food for a certain period, the act of so depriving itself could not cause death in such short period.
However, the contention was rejected following the above mentioned ratio (Reasoning) of Justice Raghubar Dayal that penultimate act is not necessary to constitute offence under attempt to commit murder and act during curing course is sufficient. These are facts of Om Parkash vs The State Of Punjab decided by the Supreme Court in 1961.[4]
Doctrine of Locus Paenitentiae
Assume if in the above-mentioned case before things go out of hand, the husband changes his mind and repents his behaviour? The doctrine of locus paenitentiae means “time for repentance”- opportunity to withdraw from a contract or obligation or in criminal law, changing mind and deciding not to commit an intended crime.
The abovementioned case might not be right one for this doctrine but let’s discuss the case of Malkiat Singh & anr v. State of Punjab [5] in which accused was booked under the Essential Commodities Act,1955 (ECA) for exporting paddy from one state to other without authority. The truck carrying paddy was stopped at barrier withing the state (from which export alleged) about 14 miles from border. The provisions punished attempt to contravene orders made under the ECA.
Now, the court acquitted the accused, citing this doctrine and observed- “The test for determining whether the act of appellants constituted attempt of preparation is whether the acts already done are such that if offender changes his mind and does not proceed further in progress, the acts already done would be completely harmless. It was possible that the accused may have changed his mind and might not have proceeded further in their journey.
The above doctrine can be applied in the recent Judgement of Allahabad High Court in Akash and ors V. State of UP and ors. [6] [ 2025:AHC:37075] ( dated 17 March,2025) where the hon’ble court observed “ Grabbing breast of victim and breaking string of her pyjama is not sufficient to hold that a case of 376 r/w 511 ( attempt to commit rape) has been made out against accused persons.”
Impossibility Test
The impossible test states that guilty mind is punished even when the act itself is innocent. But how? It is clear from the illustrations of Sec 61 of BNS. Illustration (a) holds a person guilty of offence of attempt to commit theft who has opened a jewellery box with intention to steal some jewels even though the box is empty.
It means that practically speaking, theft of jewels is impossible due the very fact that they aren’t present in the picture yet it is possible that offence of attempt to theft can be committed. isn’t it Baffling?
There is more. In Asgarali Pradhania V. Emperor [7], Calcutta high court developed another principle.
Here the accused had intention of causing abortion of victim with a red liquid and a powder which he thought would be enough for the misdeed. He took hold of chin of the victim and tried to put the power in her mouth forcefully but her father and neighbours came, and the appellant fled.
Upon analysis of the contents and medical evidence, the powder was found harmless to the uterus unless taken in large quantity thus making the abortion impossible even if he were to be successful in the attempt.
Now one will say that even if abortion wasn’t practically possible, the intention of appellant was present and it was analogous to the illustration. But the High Court observed that in each of illustrations to section 511, an act is done ‘towards the commission of the offence’ i.e. the offence remains incomplete only because something yet remains to be done, which the person intending to commit the offence is unable to do, by reason of circumstances independent of his own violation.
In simpler words, the act of appellant was not an “act done towards the commission of act” of causing miscarriage. As neither the liquid not the powder being harmful, they could have not caused a miscarriage. The failure of appellant was not due to a factor independent of himself.
In more simpler terms, the failure should be due to factors independent of the accused.
4. Commission
When an offender achieves his desired goal, it is called execution of an offence. It is the last stage in this discussion and always punishable unless it comes under ‘general exceptions’ or in any other exception. As discussed in the header of intention, there are some offences the commission of which requires the mental element to be present in order to prosecute the person. Even if not mentioned, it is presumed to be present in the statute.
Conclusion
Law is not an exact science. There are no straightjacket formulas regulating the affairs of society. All of it depends on the perspective of the observer. That being said, one may find these differentiations questionable or may not concur to decisions or reasoning related to attempt and related laws. But it has to be kept in mind that each case depends on its own facts and one principle may not be applicable in another.
References:
[2] https://indiankanoon.org/doc/487780/
[3] https://indiankanoon.org/doc/94037777/
[4] https://indiankanoon.org/doc/1770667/
[5] https://indiankanoon.org/doc/1792155/
[6]https://images.assettype.com/barandbench/2025-03-20/726sv0c7/Akash___2_Ors_v_State___2_Ors.pdf
