The Indian Penal Code, 1860 uses the word 'Offence' in place of crime.

Section 40 of the IPC

defines Offence as an act punishable by the Code. An Offence takes place in two ways, either by
commission of an act or by omission of an act.

When a Crime is done, any member of the public can institute proceedings against the person
accused of the offence. Only in certain exceptional cases, the persons concerned alone can
institute the criminal proceedings. Example of such crimes includes Matrimonial cases, dowry
case, defamation etc.

Ordinarily, a crime is a wrong which affects the security and well being of the public generally
so that the public has an interest in its suppression. The Indian Penal Code does not define the
term ‘crime’. In Halsbury’s Laws of England, crime is defined as follows: ‘A crime is an
unlawful actor default which is an offence against the public and renders the person guilty of the
act or default liable to legal punishment’. Russell in his classic work On Crimes has said that
‘crime is the result of human conduct which the penal policy of the state seeks to prevent’. The
fundamental principle of criminal liability is that there must be a wrongful act- actus reus,
combined with a wrongful intention- mens rea. This principle is embodied in the maxim, actus
non facit reum nisi mens sit rea, meaning ‘an act does not make one guilty unless the mind is
also legally blameworthy. A mere criminal intention not followed by a prohibited act cannot
constitute a crime. Actus reus has been defined as ‘such result of human conduct as the law seeks
to prevent’. Mens rea which is a technical term generally taken to mean some blameworthy
mental condition, covers a wide range of mental states, the existence of which would give a
criminal hue to actus reus. Depending upon the existence of these two constituent elements of
crime i.e. mens rea and actus reus.

Many jurists have defined crime in their own ways some of which are as under:

• Blackstone defined crime as an act committed or omitted in violation of a public law

either forbidding or commanding it.

• Stephen observed a crime is a violation of a right considered in reference to the evil

tendency of such violation as regards the community at large.

• Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or

injurious to the public welfare.

In every crime, there is firstly intention to commit it; secondly, preparation to commit it; thirdly,
attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete.
If the attempt fails, the crime is not complete but the law punishes the person attempting the act.
Generally, criminal law does not penalize the first two stages, viz, intention and preparation. The
third and fourth stages, namely, attempt to commit an offence and the actual commission of the
offence, are always punishable. An attempt to commit a crime and the commission of the crime
are, thus, perceived as substantive offences.
Elements of Crime ;

Four main Elements :-

•Human BeingThe first essential element of a Crime is that it must be committed by a human
being. In case, the crime is committed by an animal, its owner is subject to Civil/Tortious
liability.

•MensReaA crime is done with a criminal intent. Mensrea is the mental intention, ill intention, or
fudge the defendant's state at the time of offense, sometimes called the guilty mind. In the IPC,
1860, Mensrea is expressed as "ACTUS NON FACIT REUM NISI MENS SIT REA" as a
fundamental principle for penal liability. Intent and Act, both must concur to constitute a crime.
An act itself is no crime, unless it is coupled with an evil / criminal intent.

•ActusReusThere should be an external act. The Act and the mensrea should be concurrent and
related.

•.InjuryThere should be some injury or the act should be prohibited under the existing law. The
act should carry some kind of punishment..

As it was held in the case of state of maharashta vs mayerhans george1 that the common law
doctrine of mens re ais not applicable to statutory crimes in india. However, K subbarao J , after
examining a plethora of judicial dicta dealing with the dealing with the applicability of the
doctrine of mens rea to statutory crimes, in his dissenting opinion, observed that though it is a
well settled principle of common law that mens rea is an essential ingredient of a criminal
offence , a statute can exclude it. But it is sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an offence in conformity with the
common law rather than against it unless statute expressly or by necessary implication excluded
mens rea. There is thus a presumption that mens rea is an essential ingredient of a statutory
offence. It, nevertheless may rebuted by the express words of a statute creating the offence or by
necessary implication.

1
AIR 1965 SC 722
STAGES OF A CRIME

The commission of crime by a person, generally, travels through four distinct and successive
stages. They are:

(i) The formation of the Intention to commit it;

(ii) The Preparations for commission of the contemplated crime;

(iii) The Attempt to commit it; and

(iv) The Commission of the intended crime.

1. Intention- 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.
Not Punishable - Intention to commit a crime is not punishable under the Indian
Penal Code because it is impossible to read the mind of a man. Even the devil himself
knoweth not the thought of man and so it is absolutely difficult to define
contemplation in the mind of a man and to punish him for ideas in his head. Further,
it is always possible for the person to give up his evil intentions or designs. It is based
on these considerations that a principle of law has come to be evolved, which makes
only those intentions punishable that are accompanied by some express words or
overt act aimed towards achieving the intention. The law does not take notice of an
intention without an act. Mere intention to commit an offence, not followed by any
act, cannot constitute an offence. The will is not to be taken for the deed, unless there
be some external act which shows that progress has been made in the direction of it,
or towards maturing and effecting it. In an attempt to commit an offence, there must
be intention to commit the crime combined with doing of some act adopted to, but
falling short of its actual commission.2
As in the case of Niranjan singh vs Jitendra Bhimraj3 accused wanted to eliminate
two persons by name Raju and Keshav for gaining supremacy in the underworld ,

2
P S A Pillai, Criminal Law, 11th Edn., p.177
3
AIR 1990 SC 1962
 they were charged for committing terrorist offence under TADA , in this context
Supreme Court held that from the evidence it was clear that the intention of the
accused person was to eliminate the rivals and supremacy in the under world so that
they may be known as the bullies of the locality and would be dreaded as such but it
cannot be said that there intention was to strive terror in the people or a section of
people , the consequence of such killing is bound to cause panic and fear, but the
intention of committing the crime cannot be said to strike terror in the people or any
section of the people. Therefore, in the absence of an intention to strike terror,even if
the consequence of their act resulted in creating terror, it acquitted the accused.
2 Preparation- Preparation consists in devising or arranging means or measures
necessary for the commission of an offence.4 The stage of preparation, as a general
rule, is not punishable.5 For, apart from the difficulty of establishing the intention, it
would be impossible in most cases, to establish that the preparation was actuated by
an evil intention, or that it was directed towards achieving a particular wrongful or
illegal act. This is because it is quite possible that the person who originally had the
intention to commit an offence may before actually attempting to commit it, give up
or desist from committing it, either due to fear of the consequences or punishment, or
even due to change of heart at the last moment.6
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.
2.2.1 Exceptional punishable cases- There are, however, exceptional cases, wherein
the contemplated offence may be so grave that it would be of the utmost importance
to stop it at its initial stage and punish it at the preparatory stage itself. These are
preparations to:
(i) Collecting arms, etc. with the intention of waging war against the Government of
India (s 122, IPC);

(ii) Committing depredation on territories of power or at peace with the Government

of India (s 126, IPC);

(iii)Making or selling or being in possession of instruments for counterfeiting coins or

Government stamps (ss 223-235, 257, IPC);

(iv) Possession of counterfeit coin, Government stamp, false weight or measure

(ss242, 243, 259 &266, IPC); and

4
Mayne’s Commentaries on the Indian Penal Code quoted in Queen v Peterson, (1876) 1 ILR All 316
5
Kailash Chandra Pareek v State of Assam, (2003) Cr L J 3514 (Gau)
6
Hari Singh Gour, Penal Law of India, vol 4, 11th edn, p 4912
 (v) Making preparation to commit dacoity (s 399, IPC).7

As in the case of K.M Nanavati vs state of Maharashta8 The crux of the case was
whether Nanavati shot Ahuja in the "heat of the moment" or whether it was a
premeditated murder. In the former scenario, Nanavati would be charged under the
Indian penal code for culpable homicide, with a maximum punishment of 10 years.
This is because he could have invoked exceptions 1 and 4 of section 300 of IPC
(which defines murder). Exception 1 states:"Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes the
death of any other person by mistake or accident.

Exception 4 states:"Culpable homicide is not murder if it is committed without

premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or acted in a cruel or unusual
manner.

Explanation – It is immaterial in such cases which party offers the provocation or

commits the first assault."

In the latter scenario (i.e. premeditated murder), Nanavati would be charged with
murder, with the sentence being death or life imprisonment. Nanavati pleaded not
guilty and his defence team argued it a case of culpable homicide not amounting to
murder, while the prosecution argued it was premeditated murder.

The jury in the Greater Bombay Sessions Court had only task: to pronounce a person
as 'Guilty' or 'Not Guilty' under the charges. They could not indict any accused nor
could punish the accused. The jury in the Greater Bombay sessions court pronounced
Nanavati as not guilty under section 302 under which Nanavati was charged, with an
8–1 verdict. Mr. RatilalBhaichand Mehta (the sessions judge) considered the acquittal
as perverse and referred the case to the Bombay High Court.
The prosecution argued that the jury had been misled by the presiding judge on four
crucial points:

The onus of proving that it was an accident and not premeditated murder was on
Nanavati.

7
Ibid
8
AIR 1962 SC 605
 Was Sylvia's confession grave provocation for Nanavati, or any specific incident in
Ahuja's bedroom or both?
The judge wrongly told the jury that the provocation can also come from a third
person.
The jury was not instructed that Nanavati'sdefence had to be proved, to the extent that
there is no reasonable doubt in the mind of a reasonable person.
The court accepted the arguments, dismissed the jury's verdict and the case was
freshly heard in the high court. Without any proper study comparing existing judicial
systems and without any effort to improve the system, it was claimed that jury had
been influenced by media and was open to being misled, the Government of India
abolished jury trials after this case.
2.3 Attempt
2.3.1 Meaning and essential elements- An attempt to commit a crime is essentially a
direct movement towards the commission of the contemplated offence after
preparations are made.9 ‘An attempt to commit a crime’, observed Sir James
Stephen, ‘is an act done with intent to commit that crime, and forming part of a series
of acts which would constitute its actual commission if it were not interrupted.10 It is
an act which a person does towards the commission of the offence, the commission of
the offence being hindered by circumstances beyond his control. The IPC has not
defined the term attempt. The Supreme Court, in Koppula Venkat Rao v State of
Andhra Pradesh11, observed:
The word ‘attempt’ is not defined, and must, therefore, be taken in its ordinary
meaning….. 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. An attempt may be
described to be an act done in part execution of a criminal design, amounting to more
than mere preparation, but failing short of actual consummation, and, possessing,
except for failure to consummate, all the elements of the substantive crime.
There are three essentials of the offence of attempt to commit an offence that are
required to be proved by the prosecution to secure conviction of the perpetrator. They
are:
Firstly, he had an intention or mens rea to commit the contemplated or intended
offence,
Secondly, he has done some act or taken a step forward towards the commission of
the contemplated offence,

9
P S A Pillai, Criminal Law, 11th Edn., p.178
10
Sir James Stephen, A Digest of Criminal Law, 9th edn, art 29
11
AIR 2004 SC 1874
 Thirdly, he, for reasons beyond his contemplation or control, failed to commit the
intended offence. 12
An attempt to commit an offence, thus, can be said to begin when the preparations are
complete and the doer commences to do something with the intention of committing
the desired offence and which is a step towards the commission of the offence. The
moment he, after making necessary preparations, commences to do an act with the
necessary intention, he commences his attempt to commit the offence. Such an act
need not be the penultimate act towards the commission of the offence.13
2.3.2 Why Punishable? A criminal attempt not only poses a threat to bodily and
proprietary security but also infringes the right to security. Such an infringement
constitutes, in itself, a harm that penal law seeks to punish. Hyman Gross, pressing
the point, observed:
Attempt may usefully be regarded as a second order harm: in itself it is the sort of
conduct that normaly presents a threat of harm; and that, by itself, is a violation of an
interest that concerns law. The interest is one in security from harm and merely
presenting a threat of harm violates that security interest.
An attempt to commit a crime poses no less a danger to the legally protected interests
than does the completed crime.14 It therefore becomes necessary for criminal law, in
the social interests, to identify and prevent a criminal attempt at the earliest feasible
moment and to, through punitive sanctions, deter the perpetrator.
2.3.3 Attempt under the Indian Penal Code, 1860- The IPC has dealt with ‘attempt’ in
a specific and general way. It treats a criminal attempt in four different ways. They
are : 15
(1) The commission of an offence and the attempt to commit it are dealt with in the
same section and the extent of punishment prescribed is the same for both. The
attempts that fall in this category are:
i. Offences against the State (ss 121, 124, 124-A, 125, 130);
ii. Abetting mutiny (s 131);
iii. Offences against the public tranquility (ss 152 and 153-A);
iv. Offences against public justice (ss 196, 198, 200 and 213);
v. Offences relating to coins and government stamps (ss 239- 241 and 251);
vi. Offences relating to extortion, robbery and dacoity (ss 385, 387, 389, 391, 397
and 398); and
vii. Criminal trespass (s 460).

12
Abhayanand Mishra v State of Bihari AIR 1961 SC 1698; Sudhir Kumar Mukherjee v State of West Bengal AIR
1973 SC 2655
13
P S A Pillai, Criminal Law, 11th Edn., p 184
14
Koppula Venkat Rao v State of Andhra Pradesh AIR 2004 SC 1874
15
P S A Pillai, Criminal Law, 11th Edn., pp 181- 182
 (2) Attempt to commit specific offences are dealt side by side with the offences
themselves, but separately, and separate punishments are provided for the attempts
and the offences. The offences which fall in this category are:
i. Attempt to commit murder (s 307);
ii. Attempt to commit culpable homicide not amounting to murder (s 308); and
iii. Attempt to commit robbery (s 393).
Murder, culpable homicide and robbery are punishable separately under sections 302,
304 and 392 respectively.

(3) Attempt to commit suicide (s 309).

(4) Attempt to commit offences, for which no specific punishment is provided in the
IPC (s 511).

2.3.3.1 Scope of Sec 511- Section 511, which is the solitary provision included in the last
chapter ‘Of Attempts to Commit Offences’ of the Penal Code, makes an attempt to commit an
offence punishable. It lays down general principles relating to attempts in India.16 The scope of
the section is, however, limited only to those attempts where no express provisions have been
made by the Code for the punishment. This section does not apply to attempt to murder which
is fully and exclusively covered by section 307.17 Also, attempt to commit an offence under
special or local law is not punishable under the Code.18 The section further leaves unpunished
attempts to commit those offences which are punishable with fine only. The section applies to –
(a) Attempts to commit an offence punishable with imprisonment for life or imprisonment, and
(b) Attempts to cause such an offence to be committed and in such attempt an act is done
towards the commission of the offence.

Punishment for attempt to commit an offence under section 511 may extend up to half of the
imprisonment for life or one-half of the longest term of imprisonment provided for that offence,
or such fine as is provided for the offence, or both.

2.4 Preparation and Attempt -- The Thin Line

On occasions more than one, courts in India have stressed that there is a thin line between the
preparation for, and an attempt to commit, an offence.19 It is also difficult to distinguish
between the two. But such a task is crucial as, ordinarily, preparations to commit an offence do
not attract criminal liability. A doer becomes liable once he enters into the arena of attempt.
The difference is starkly illustrated in R v Raisat Ali,20 in which the Calcutta High Court
considered the case where the prisoner had given an order to print 100 forms similar to those
formerly used by Bengal Coal Company. The first proof of the forms was also corrected by the
16 Koppula Venkat Rao v State of Andhra Pradesh AIR 2004 SC 1874
17 Queen Empress v Nidha, (1891) ILR 14 All 38
18 Mohammed Akram v State of Assam, AIR 1951 Assam 17
19 Abhayanand Mishra v State of Bihari AIR 1961 SC 1698; Sudhir Kumar Mukherjee v State of West Bengal AIR 1973

SC 2655; Aman Kumar & Anr v State of Haryana AIR 2004 SC 1498
20 (1881) ILR 7 Cal 352
accused. At about the stage when the accused was to have made the final corrections and
alteration to the printed form to make them appear exactly like the originals, he was arrested
and charged with attempting to make a false document under section 464, IPC. However, the
court held him to be not guilty as the attempt could be said to have been completed only after
the seal or the signature of the company had been affixed. Consequently, the act done was not
an act towards making one of the forms of false documents, but if the prisoner had been caught
in the act of writing the name of the company on the printed form and had completed a single
letter of the name, then, in the words of Lord Blackburn, ‘the actual transaction would have
commenced which would have ended in the crime of forgery and he would have been guilty of
the attempt to commit forgery.’

2.4.1 Tests to distinguish Preparation and Attempt- It is debatable as to when preparation

has ended and the actual attempt has begun. An important question that has baffled jurists and
judges from time to time is how to draw a dividing line between the act of preparation and that
of an attempt to commit a crime. Various tests or principles have been developed and employed
by courts in India for distinguishing an attempt to commit an offence from preparation made
therefor. A few prominent among these are- (1) the Proximity Rule, (2) Doctrine of Locus
Poenitentiae, (3) Equivocality Test, and (4) Impossibility Test.21

2.4.1.1 The Proximity Rule- The act or a series of acts, in order to be designated as an attempt
to commit an offence, must be sufficiently proximate to the accomplishment of the intended
substantive offence. An act of the accused is considered proximate, if, though, it is not the last
act that 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. The
proximity rule was the basis for the Supreme Court ruling in Abhayanand Mishra v State of
Bihar22. In this case, the accused applied to the Patna University for permission to appear as a
private candidate in the MA degree examination. In support of his eligibility, he forwarded
certificates showing that he had obtained his BA degree and that he had been teaching in a
certain school. The university accepted his application and issued him an admission card.
However, it was found that he was not a graduate and the certificates were fake, so the
university prosecuted him for forgery and attempting to cheat. The trial court convicted him
only for attempting to cheat the university. Rejecting the contention of the appellant that he
had not crossed the stage of preparation for ‘cheating’ the university, the Supreme Court held
the accused guilty of having committed the offence contrary to sec 420, read with sec 511 of
IPC. It ruled that the preparation was complete when the accused prepared the application for
submission to the university, and that the moment he dispatched it, he had entered the realm of
attempt to commit the offence of cheating. The Apex Court summarized the scope of the law of
attempt embodied in sec 511 as:
A person commits the offence of ‘attempt to commit a particular offence’ when: (i) he intends to commit
that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an

21 P S A Pillai, Criminal Law, 11th Edn., p.185

22 AIR 1961 SC 1698
act towards its commission, such an act need not be the penultimate act towards the commission of that ofence but
must be an act during the course of committing that offence.

The usual illustration of a proximate act is found in R v Taylor,23 wherein A, who was found in
the act of striking a match behind a haystack, which he extinguished on perceiving that he was
being watched, was held guilty of attempt to commit arson of haystack. But, if he had merely
purchased a box of matches, he would not have been found guilty of attempted arson, however
evident it might be that he intended to set fire to haystack when he purchased the matchbox.

An authoritative pronouncement was given by the Supreme Court in State of Maharashtra v

Mohammad Yakub24. In this case, the accused were arrested by officials of the Central Excise for
attempting to smuggle silver out of India. Based on secret information, customs officials kept a
watch over the accused and apprehended them when they had brought silver ingots in a truck.
The accused were found to have kept some small and heavy parcels on the ground. At the same
time, the sound of a mechanized sea-craft was also heard. The accused were held guilty of
committing the offence of attempting to export silver out of India by sea in contravention of
the Imports and Exports (Control) Act 1947, the Customs Act 1962 and the Foreign Exchange
Regulation Act, 1947. Two separate, but concurring judgments were delivered by Sarkaria and
Chinnappa Reddy JJ. However, these two judicial pronouncements advance different criteria for
identifying a proximate act for distinguishing preparation from attempt.

Justice Chinnappa Reddy, delving into the proximity rule, observed:

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 the offence
and, third, such 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. The act must reveal, with reasonable certainity, in conjunction with other facts and
circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to
commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention,
but that it must be indicative or suggestive of the intention.

However, Sarkaria J considered proximity in terms of actual physical proximity, rather than
intention oriented proximity, to the objective of intended crime. He observed:
Broadly speaking, overt act or step in order to be criminal need not be the penultimate act towards the
commission of the offence. It is sufficient if such act or acts manifest a clear intention to commit the offence aimed,
being reasonably proximate to the consummation of the offence.

Applying the proximity rule in the instant case, Sarkaria J ruled:

They had reached close to the sea shore and ahd started unloading the silver there, near a creek from
which the sound of the engine of a sea craft was also heard. Beyond the stage of preparation, most of the steps
necessary in the course of export by sea had been taken. The only step that remained to be taken towards the
export of silver was to load it on a sea craft for moving out of the territorial waters of India. But for the
intervention of the officers of law, the unlawful export of silver would have consummated.

23 1895 I F & F 511, cited in R C Nigam, Law of Crimes in India, 1965, pp 119
24 AIR 1980 SC 1111
2.4.1.2 Doctrine of Locus Poenitentiae (time for repentance)- An act will amount to
mere preparation if a man on his own accord gives it up, before the criminal act is carried out.
That is to say, so long as the steps taken by the accused leave room for a reasonable expectation
that he might of his own accord, or because of the fear of the consequences that might befall
him, desist from the contemplated attempt, he will be treated at the stage of preparation. In
Malkiat Singh v State of Punjab25 the appellant, a truck driver, who was carrying paddy out of the
jurisdiction of the State of Punjab without a licence, in violation of the Punjab (Export) Control
Order, 1959, was stopped 14 miles away from the Punjab-Delhi border, and was prosecuted for
an attempt to contravene the said order. The Supreme Court, while allowing the appeal, said
that the act of carrying paddy did not amount to a criminal attempt. The 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 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
minds at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in
their journey.

2.4.1.3. The Equivocality Test- The equivocality test, a continuation of the proximity rule
and the doctrine of locus poenitentiae, suggests that an act done towards the commission of the
offence would amount to an attempt to commit the offence if, and only if, it unequivocally
indicates the intention of the doer to accomplish the criminal object. If what is done indicates
beyond reasonable doubt that the end is towards which it is directed, it is an attempt, otherwise
it is a mere preparation. In other words, the steps taken or the acts done by the accused must
speak for themselves. In State v Parasmal & Ors,26 the Rajasthan High Court, plausibly referring
to the equivocality 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, 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 the definition of
attempt should in all circumstances be the penultimate act towards the commission of the offence.

2.4.1.4. Impossibility Test- At one time, it was supposed that it would be no crime if a person
attempted to do something, which in fact was impossible to perform, for it was treated at par
with a mere preparation.27 However, it is now perceived that impossibility of performance of an
act does not per se render the attempt to do it an innocent act.28

The legal framework relating to law of attempts sketched under the IPC does not specifically
deal with an attempt to do an impossible act. Nevertheless, a careful reading of illustrations (a)
and (b ) appended to section 511 show that a person can be held guilty of attempt to do an act
which is impossible.
25 AIR 1970 SC 713
26 AIR 1969 Raj 65
27 Queen v Collins 9 Cox. C.C. 407, R v Mc Pherson (1857) 7 Cox. 281
28 R v Brown (1889( 24 QBD 357, R v Ring (1892) 17 Cox. CC 491, R v Shivpuri (1986) 2 All ER 334
 Illustrations to section 51129

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box,
that there is no jewel in it. He has done an act towards the commission of theft, and therefore, is
guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the
attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

These two illustrations, by necessary implication, lay down a rule that a person becomes liable
for attempting to commit an impossible act (stealing jewels from the empty box or something
from the empty pocket) if he, with intent to commit the intended offence, has done everything
within his reach to commit the intended offence but his criminal objective was frustrated
because of reasons unknown to him or circumstances beyond his control. The crucial test for
determining as to whether he has crossed the stage of preparation is the overt act that
manifests his intention to commit the intended offence. In R v Shivpuri30 the appellant was
arrested by Customs Officers while in possession of a suit case which he believed to contain
prohibited drugs whereas on analysis the drugs found in the suit case were only snuff or
harmless vegetable matter. The accused had admitted to the Customs Officers after his arrest
that he was dealing in prohibited drugs. He was charged under section 1 of the Criminal
Attempts Act, 1981 with attempting to commit the offence of being knowingly concerned in
dealing with and harbouring prohibited drugs in violation of section 170(1)(b) of the Customs
and Excise Management Act. 1979.

The House of Lords held that a person could be held guilty of an attempt only if he did an act
which was more than merely preparatory to the commission of the offence which he intended to
commit, even if the facts were such that the actual offence was impossible. In the present case,
where the accused was charged with being knowingly concerned with harbouring or dealing
with goods whose import was prohibited, it would be sufficient if it is proved that the person
knew that the goods concerned were prohibited goods. No proof was required that the person
knew which category of prohibited drugs the goods he handled belonged to.

The principle laid down in the above case is that the accused is punished for his guilty mind,
although the act committed is actually innocent. Thus, impossibility to do the offence cannot be
a defence in India and in England and a person’s subjective belief to commit a particular crime
is sufficient to convict him.

29 Indian Penal Code, 1860

30 (1986) 2 All ER 334