Stages of Crime
Criminal offence is committed either in the spur of the moment or pre-planned. In the latter type, there are four stages to be passed for the commission of the offence: -
Intention
Preparation
Attempt
Commission
STAGE 1: INTENTION
Malafide intention is the primary ingredient to constitute a crime. Without intention, no action can be concluded as a crime. Intention has been discussed in detail in an earlier article. To read, click here.
Forming an intention to commit an offence is the first stage to commit a crime. Intention is what guides our path, it can either be direct or inferred. In both cases, it is not punishable.
Consider a simple example, you were walking by the road where you met two girls who assaulted you. You filed an FIR against them. But due to heavy pockets and golden spoon in their mouths, they remained untouched. One night, you had a dream where you burnt the two girls to death.
Question – Can Police arrest you for THINKING? For committing this heinous crime in your dream? The foremost question is, will they ever find out what is going inside your brain or what are you thinking?
NO
Consider another example, you were abducted by three men for ransom. After taking the ransom, for fun, they beat you to serious injuries. Now you think that I will kill them one day. You even think about how you would do it. Will anybody know about it?
NO!
Therefore, only forming an intention to commit a crime cannot and is NOT Punishable under Indian Law.
STAGE 2: PREPARATION
After Intention comes preparation. It is the manifestation of intention physically. For example, A man wants to kill his wife who is having an affair with her secretary. His intention was to kill the wife by a sword. He bought a sword. Now before he could kill her wife, the policeman came and caught him. Will he punished? Should he be punished? A good defense lawyer would primarily argue that the buying of a sword cannot imply that he was about to kill his wife with it. He can use it for showcasing or if he is a Rajput, he can claim the sword for religious purposes. In all police cannot charge him with anything.
Take another example, the wife planned to kill her husband by strangling. She sent gave all her house servants a day off when she planned to kill her husband. As soon as her husband came from work, she was supposed to take a black cloth and strangle him to death. But before she could imply all of it, police came and arrested her. Can she be held liable? If yes, for what? Does giving a holiday for all her staff imply that she was about to murder her husband? NO
Hence for preparation also, no punishment is imposed. UNLESS there is some specific preparation that shows the intention to commit a particular crime.
For example, hypothetically, an unlawful assembly club near Alok Nagar in Noida bought 1400Kg of RDX. Their intention was to blast Parliament. Before they could do anything, the police came and arrested them. Can they be held liable? YES. For what? Their intention to blast the parliament can be inferred from the unusual act of buying and storing 1400Kg of RDX. In such a case intention is enough to prove the guilty mind because 1400kg of RDX would not be bought for commercial purpose, would it?
Modify the above example and consider that the unlawful assembly had only 1kg of RDX. One can claim that this amount of RDX was to turn down a building legally or a fountain legally. This situation has a possibility of innocent accused. However, in the case of 1400Kg, no one can be said innocent.
Under IPC there are five exceptions to the rule of preparation. In these five situations preparation amounts to criminal offence:
Preparation made for waging war against the government of India (sec 122)
Preparation made for committing depredation on territories of any power in alliance or at peace with the government of India. (sec 126)
Making or selling or being in possession of instrument for counterfeiting coins or government stamps. (ss 233-235 and 257)
Possessing counterfeits coins, government stamps, false weight, or measures (ss 242,243,259, and 266,) and
Preparation made for committing dacoity. (section 399).
Preparation is ignored or not punishable only when there is a chance of innocent intention behind the act alleged. However, in these five cases, any preparation would amount to clear malafide intention.
Interesting and Important
Consider a situation where I planned out the murder of my friend Adi. I have everything written on a paper and there are weapons in my room. The police came and arrested me. Can this amount to preparation that is punishable?
The answer is NO, such preparation would not be punishable under IPC. However, under the Criminal Code of procedure, the police may use the preventive detention power given under section 151 to keep the suspect away from the victim in order to prevent any criminal injury.
STAGE 3: ATTEMPT
What do we mean by attempt?
According to Black’s Law Dictionary, attempt means “An effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design.”
“An attempt to commit an offence, under the IPC, seems to be a direct movement towards commission of the offence, which, due to some interruptions beyond control of the doer, remained unaccomplished” – Kailash Chandra Pareek v State of Assam (2003) Cr LJ 3514(Gau).
The Supreme Court, in Koppula Venkat Rao v State of Andhra Pradesh AIR 2004 SC 1874, observed: “The word ‘attempt’ is not itself 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 falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation or completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.”
In simpler terms, an attempt is a step forward towards the commission of the offence. For example, A intended to kill B. One day, A pulled the trigger of a fully loaded gun in the direction of B. B was saved as the bullet hit the tree beside B instead. This act was is a classic case of attempt. Why?
To constitute an act of attempt, it must possess four characteristics [State v. Ainsworth, 146 Kan. 665]:
It must be a step forward in the direction of the contemplated criminal offence;
It must be apparently (but not necessarily in reality) adapted to the purpose intended;
It must come dangerously near to success;
It must not succeed.
In the above example, Pulling the trigger of a fully-loaded gun was a step towards the commission of a contemplated offence. If B would have been 5 inches to the left, he would have died. However, it did not get completed. Compare the 4 characteristics with the situation. Now think, whether it would amount to attempt to murder or not? YES. Therefore, it is an attempt.
WHY ATTEMPT IS PUNISHABLE?
An attempt is a transition from preparation to the commission of the offence. It is considered to have dangerous effects due to the fact that it would lead to the complete commission of the offence if not have been interfered. If we look at it technically, an attempt would constitute a criminal offence. Let us recall the ingredients of any criminal offence:
Human Being
Mens rea
Actus reus
Injury
An attempt is an offence committed by a human being, with the prior intention to commit an offence, and the act of attempt is itself an act in furtherance of the intention. Injury caused can be of two types by an attempt:
Mental – Where injury may not be caused but the victim might have faced a mental injury or mental suffering.
Physical – Where intention was to commit murder but only amputation of hand was caused. Amputation is a physical injury caused.
Since all the ingredients are satisfied technically, attempt in its general form constitutes to be a criminal offence. Therefore, it is punishable under all circumstances under Indian Law if committed by a guilty mind.
Under IPC, there are four categories of attempt:
General: Where commission and attempt have the same extended punishment under the same section.
Specific: Where an attempt is categorized under different section with different (less) punishment.
Attempt to suicide – Where suicide is not declared as an offence, but its attempt is an offence. This is because the offence of suicide is a crime where victim and offender are the same person. And when the offence of suicide would be completed/committed there would be no offender alive thereby making it difficult to punish them for their actions. However, in an attempt to commit suicide, the offender and the victim (being the same person) are alive and can be punished.
Section 511 – Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment and there is no specific punishment for abetment provided under IPC—Whoever attempts to commit an offence punishable by this Code 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 Code 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.
DISTINCTION BETWEEN PREPARATION AND ATTEMPT
Indian courts have many times stated the need to differentiate between preparation and attempt and have much often drawn a line between the two. However, it still remains difficult to differentiate between the two. It is debatable as to when preparation ends and when the attempt begins.
In various cases, the supreme court has stated that the preparation is the surface and harmless start of the commission of the offence, however, an attempt is the step towards the commission of the contemplated offence. For example, a graduate submitted his documents in Patna university to apply for MA Exams. He claimed that he was a teacher at a school and submitted documents supporting that. Later it was found that the documents were fake and in fact, the student was barred to give any university examination due to past corrupt practises. In this case, the supreme court stated that the formation of fake documents was the preparation and as soon as they were dispatched to the University, they were said to be the beginning of an attempt to cheat. This is the elementary case where difference and scope of preparation and attempt were laid down. [Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698].
To differ attempt from preparation, there are 3 tests described and referred under various judgments:
Proximity test
The doctrine of Locus Poenitentiae
The Equivocal test
PROXIMITY TEST
Proximity rule states that the act or series of acts claimed to be attempt should be directly associated with the contemplated crime or in other words the acts performed should be directly and not remotely associated with the intended substantive offence. The classic example of a proximity test is explained in R v Taylor 1895 I F & F 511, wherein A was accused of attempt to arson of haystack as was found behind a haystack burning a matchstick. However, as soon as he saw the other person, he extinguished the burning match stick. The court held that the act of standing behind the haystack and burning the match stick is direct proximate action and shows the clear intention of the accused. The court further illustrated that if the accused had only bought a matchstick and was standing near the haystack doing nothing would not amount to attempt since his action of standing would not lead to the contemplated offence.
The principle of proximity is based on a Latin maxim cogitationis poenam nemo patitur, which means that no man can safely be punished for his guilty purposes, save so for as they have manifested themselves in overt acts which themselves proclaim his guilt.
Under Indian law, the judgment of Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698 was based on proximity rule. In another important judgment of State of Maharashtra v Mohammad Yakub (1980) 3 SCC 57, where the accused was a suspect for trading silver illegally outside India. While police were secretly keeping an eye on the accused, he collected silver in a huge truck and when the truck has loaded the sound of a mechanised sea-craft was also heard. The officials of central excise arrested the accused for attempting to smuggle silver out of India. The trial court and the appellate court held that the act by the accused was still at the stage of preparation and did not amount to attempt. However, the supreme court stated that the sea-craft and loading-unloading of silver ingots state that the act was, in fact, an attempt.
Sarkaria and Chinnappa Reddy JJ delivered two separate judgments advancing the criteria for examining a ‘proximate act’ for distinguishing ‘preparation’ from ‘attempt’.
Justice Chinnappa Reddy, while analysing 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....[T]he act must reveal, with reasonable certainty, 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 the actual physical proximity, rather than the intention-oriented proximity, to the objective of the 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 an act or act s...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 seashore and had 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 the 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 the law, the unlawful export of silver would have been consummated.”
The concept of proximity is stated differently by different judges and it primarily depends on facts and circumstances of a particular case.
DOCTRINE OF LOCUS POENITENTIAE
The doctrine of Locus Poenitentiae refers to the possibility that a person can have a change of heart and can decide to not commit the offence. For example, in the case of Malkiat Singh v State of Punjab, AIR 1970 SC 713, a person who was supposed to deliver paddy in Punjab was caught at Punjab Delhi border. It is said that if the person had a change of heart and would have decided to go back then the harm would have been nil. Therefore, in such situations where if we consider the change of heart of the accused and retract its act(s) and if they lead to a harmless act, it is said to be preparation and not an attempt.
The Supreme Court while setting aside the punishment of the accused, 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.”
THE EQUIVOCALITY TEST
The third and the final test is the equivocality test that is an enhancement of the proximity rule and the doctrine of locus poenitentiae. It states that if the act committed will unequivocally indicate that the act would be directed towards the commission of the offence otherwise it would merely be considered preparation. In State v Parasmal AIR 1969 Raj 65, the Rajasthan High Court, 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 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.”
STAGE 4: COMMISSION
The last stage is the commission stage, where the offence intended is completed. In this stage, the accused if proven guilty will be punished with punishment in accordance with IPC.
These are the four stages of crime. Crime is a social offence that is understood in stages in order to impose appropriate punishment on the accused. These stages decide whether the accused have to be punished or not and further whether the punishment would be for preparation (specific offences), attempt or murder.
BY
LAWVASTUTAH
References
- KD Gaur: Criminal Law-Cases and Materials, 9th ed.
- PSA Pillai: Criminal Law,12th Edition.
- Ratanlal & Dhirajlal: Indian Penal Code (PB), 36th ed.
- Indian Penal Code 1860.
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