The word 'attempt' clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed1. In other words, attempt is the direct movement towards the commission of an offence after preparations have been made. Once an 'act'2 enters into the arena Of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of the crime and so it is punishable in law like a completed offence. An attempt, creates alarm which of itself is an injury, and the moral guilt of the offender is the same as though he had succeeded. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is at present an intent coupled with some overt act in execution thereof.
The Indian Penal Code has not defined attempt to commit a crime but has dealt with attempt in four different ways:
(i) Firstly, the commission of an offence and the attempt to commit it are dealt with in the same section, the extent of punishment being the same for both the offence as well as its attempt. These are--
(i) offences against the State, such as, waging or attempting to wage war against the Government of India (section 121);
(ii) assaulting or attempting to assault the President of India, Governors of States, etc., with intent to counsel or restrain the exercise of any lawful power (section 124);
(iii) sedition (section 124A), waging or attempting to wage war against any Asiatic Power in alliance with the Government (section 125), public servant taking gratification (section 161), dacoity (section 391), etc.;
(ii) Secondly, attempts to commit offences and commission of specific offences have been dealt with separately, and separate punishments have been provided for attempt to commit such offences from those of the offences committed.
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1. Justice Cockburn.
2. See section 33, IPC wherein word "act or omission" denote as well as a series of acts, as a single act: the word "omission" denotes as well as a series of omissions as a single omission.
For instance, attempt to commit murder, attempt to commit culpable homicide not amounting to murder, and attempt to commit robbery have been dealt with in sections 307, 308 and 393, I.P.C. whereas murder, culpable homicide and robbery are punishable under sections 302, 304 and 392, I.P.C. respectively;
(iii) Thirdly, attempt to commit suicide is made punishable under section 309, I.P.C; and
(iv) Fourthly, attempts to commit offences in general (except those falling in the above-stated categories) have been made punishable under section 511, I.P.C. However, section 511, I.P.C. is not exhaustive. It leaves unpunished attempts of those minor offences which are punishable with fine only.
Sedition is nothing but libel (defamation) of the established authority of law, i.e., Government. Hence, it is called seditions libel in England. Sedition in the ordinary sense means a stirring up of rebellion against the Government; Kedar Nath v. State of Bihar, MANU/SC/0074/1962 : AIR 1962 SC 955. However, in law it has a technical meaning and includes all those acts and practices which have for their object to excite discontent or dissatisfaction towards the Constitution or the Government, or Parliament to create public disturbance, or to lead a civil war, and generally all endeavours to promote public discord and disorder1.
Section 124A, I.P.C. defines the offence of sedition as under:
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.--
The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.--
Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.--
Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
According to section 124A, I.P.C. the following are three essentials of sedition:
1. Bringing or attempting to bring in hatred or contempt or exciting or attempting to excite dissatisfaction towards the Government of India.
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1. Webster's Dictionary (3rd Edn., p. 652).
2. Such act or attempt may be done (i) by words, either spoken or written, or (ii) signs (iii) visible representation.
3. The act must be intentional.
Hatred implies an ill-will, while contempt implies a low opinion. In other words, hatred and contempt are the state of mind in relation to the object. The hatred and contempt in order to be punishable under this section must relate to the State or the Government. Hatred and contempt towards the Government may be created by writing, imputing to the Government base, dishonourable, contemptuous, malicious motives in the discharge of its duties or by writing that which unjustly accuses the Government of hostility or indifference to the welfare of the people; Annie Besant v. Advocate-General of Madras, AIR 1919 PC 31.
Explanation 1 to section 124A, I.P.C. does not define the word 'disaffection', but simply states that disaffection includes disloyalty and all feeling of enmity. The expression 'disaffection' may be defined as primarily meaning the contrary to affection, and it goes very much towards expressing the same as hatred and dislike. It may cover something, perhaps a little different from the expression hatred, because it includes disloyalty. To urge people to rise against the Government is tantamount to trying to excite feelings of disloyalty in their minds. Feelings of enmity include ill-will, hostility, feelings of dislike amounting to enmity, and anything of a similar class or character, which can be demonstrated under the expression disloyalty and feeling of enmity; Narayan Vasudev Phadke v. Emperor, (1940) 42 Bom LR 861: AIR 1940 PC 379.
A person may be charged not only with exciting but also with attempting to excite and both successful and unsuccessful attempts to excite dissatisfaction are placed on the same footing. So, even if a person has only tried to excite the feeling, he could be convicted for this offence; Queen Empress v. Bal Gangadhar Tilak, (1897) ILR 22 Bom 112. In Surendra Narayan Adicharya v. Emperor, (1911) ILR 39 Cal 522, it was held that sending through the post a packet containing a copy of the manuscript of a seditious publication with a covering letter requesting the addressee to circulate it to others, when the same was intercepted by another person and never reached the addressee, constitutes an attempt to commit an offence under this section.
After the Constitution of India came into operation an important question relating to the constitutionality of section 124A, I.P.C. vis-a-vis Article 19 was raised in a few cases leading to conflicting decisions. There are two divergent views in this regard. In Tara Singh v. State of Punjab, AIR 1951 EP 27 section 124A, I.P.C. was struck down as unconstitutional being contrary to freedom of speech and expression guaranteed under Article 19(1)(a).
However, in Kedar Nath v. State of Bihar, MANU/SC/0074/1962 : AIR 1962 SC 955 one Kedar Nath Singh, prosecuted before, as Magistrate 1st class, at Begusarai, in the Dist. of Munger, in Bihar. The accused had on 26th day of May 1953 at village Barauni had spoken such words as "Today the dogs of CID are loitering around in Barauni... the people of India drove out the Britishers and today these Congress goondasare ruling the country. These Congress goondas are banking upon American Dollars and imposing various kinds of taxes on the people and thereby sucking the blood of Muzdoors and Kisans. On the strength of the Muzdoors and Kisans the forward Communist Party will expose the deeds of Congress goondas and drive them out. The Congress goondas have setup Vinoba Bhave amidst us as their agent so as to divert the attention of the people from the main problems. This way the accused brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the government established by the law in the Indian Union and, thereby, committed an offence punishable under section 124A, I.P.C.
Issue Involved:
The main question in controversy is whether sections 124A and 505 of the Penal Code have become void in view of the provisions of Article 19(1)(a) of the Constitution.
Decision:
The Supreme Court held that, the provisions of sections 124A and 505 Penal Code are not unconstitutional as being violative of the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution. The restriction imposed by the impugned provisions cannot but be said to be in the interest of the public order and within the ambit of permissible legislative interference with that fundamental right.
It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional, the court would lean in favour of the former Constitution.
The explanations appended to the main body of section 124A make it clear that the criticism of public measures or comment on government action however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and mischief it seeks to impress. Viewed in that light the provisions of the sections should be so construed as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order or indictment to violence.
Thus, upholding the validity and constitutionality of the section 124A of I.P.C., the Supreme Court dismissed the appeal.
Section 307, I.P.C. deals with the offence of attempt to murder. This section reads:
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either descriptionfor a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at 2 with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z's table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.
Therefore, section 307, I.P.C. makes attempt to commit murder punishable up to 10 years of imprisonment, and if hurt is caused, upto life imprisonment with fine.
To attract the provisions of section 307, I.P.C. all ingredients of murder short of death must exist, viz,--
(a) The death of a human being must be attempted.
(b) The accused must have made the attempt.
(c) The act must be done with the intention of causing death, or it be done with the intention of causing such bodily injury as
(i) the accused knew to be likely to cause death, and
(ii) that it was sufficient in the ordinary course of nature to cause death.
(d) The accused attempted to cause such death by doing an act known to him to be so immediately dangerous that it must in all probability cause
(i) death, or
(ii) such bodily injury as is likely to cause death.
In Om Prakash v. State of Punjab, MANU/SC/0125/1961 : AIR 1961 SC 1782 the Supreme Court reiterated its earlier view and held that the offence under section 307, I.P.C. is committed, when with the intention to commit murder, the offender does any act or series of acts towards the commission of murder. It is not necessary that the act done must be the last or the penultimate act to be done for committing murder.
Regular and systematic course of starvation which would ultimately result in death amounts to an attempt to murder.
In Rajendra Harakchand Bhandari v. State of Maharashtra, MANU/SC/0368/2011 : AIR 2011 SC 1821, the Supreme Court held that where appellant gave blow with sword on the head of victim and victim got 6 injuries and become cordial. Appellants already undergone two and half years sentence which was substantive sentence. The court confirmed conviction under section 307 read with 34. Appeal allowed and time spent in convicting during the trial was reduced.
(Is Euthanasia can be treated as attempt to suicide)
Section 308, I.P.C. punishes attempt to commit culpable homicide not amounting to murder and in view of the gravity of the offence the Code has made express provision to punish an attempt to commit culpable homicide under section 308, I.P.C. instead of leaving it to be dealt with under section 511, I.P.C. which applies to all attempts to commit offences punishable with imprisonment. Section 308, I.P.C. provides that:
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
A person is said to have committed an offence under this section, if he does an act with such intention or knowledge and under such circumstances that, if he thereby caused death, he would be guilty of culpable homicide not amounting to murder as defined under Exceptions 1 to 5 to section 300, I.P.C. To invoke the section, intention to commit culpable homicide not amounting to murder must be established; Om Prakash v. State of Punjab, MANU/SC/0125/1961 : AIR 1961 SC 1782.
Generally speaking, 'suicide' as such is no crime under the Code. It is only attempt to commit suicide that is punishable under section 309, I.P.C. This section reads:
Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine, or with both.
An attempt under section 309, I.P.C. implies at least an act towards the commission of suicide, such as drawing or poisoning or shooting oneself. If A, with an intention to commit suicide, throws himself into a well, he is guilty of an attempt and is punishable under this section; Emperor v. Mulia, AIR 1919 All 376, if he is rescued or fails in his attempt.
Attempt must be intentional: The essence of suicide is an intentional self-destruction of life. Thus, if a person takes an overdose of poison by mistake or in a state of intoxication, or in order to evade capture by his pursuers Emperor v. Dwarka Poonja, (1912) 14 Bom LR 146 he is not guilty of attempt to commit suicide.
Hunger strike, which is resorted to at times for getting the demands of strikers fulfilled, poses some difficulty in this regard. These cases present difficulty in determining whether the intention of the hunger striker is to kill himself or simply to force the authorities to fulfil his demands.
In Ramsundar Dubey v. State, AIR 1963 All 262 the accused was charged under section 309, I.P.C. for an attempt to commit suicide by resorting to hunger strike. The accused admitted that he had gone on a hunger strike but denied that he had intended fasting unto death. He produced evidence to show that he was taking lemon juice in the morning and evening during the continuance of his fast. The Court below, however, did not believe this defence and reached to the conclusion that the accused actually meant to fast to death unless his demands were conceded.
Setting aside the conviction, the Allahabad High Court held that the evidence in the present case fell short of an attempt to commit suicide. If a person openly declared that he will fast unto death and then proceeds to refuse all nourishment until the stage is reached when he may collapse any moment, then there is an imminent danger of death ensuing and he will be guilty of an attempted suicide under section 309, I.P.C.
In Aruna Ramchandra Shanbaug v. Union of India, MANU/SC/0176/2011 : AIR 2011 SC 1290 this case where the victim was attacked by a sweeper in hospital who wrapped a dog chain around her neck and yanked her back. He sodomised her and twisted the chain around her neck. The next day she found lying on the floor with blood all over in an unconscious condition. Due to strangulation the supply of oxygen to the brain stopped and the brain got damaged. She also had brain stem contusion injury with associated cervical card injury. At the time of incident patient was 36 years old and now she is 60 years of age. In this 36 years it cannot be said to be a living person and there is no possibility of any improvement in her condition. Her body lies on the bed like a dead animal. The prayer of petitioner to stop feeding and let her die peacefully.
Under section 309, IPC a person attempts suicide in a depression stage and he needs help rather then punishment Active Euthanasia using lethal substances or forces to kill terminally ill patient which is illegal under section 302, 304 and suicide is crime under section 306. Patient in coma or permanent vegetative condition and discontinuation of life support and there is no consent to withdraw from life. So person incapable of any response but is able to sustain respiration and circulation cannot be said dead. This case can not be deal with under section 309, so appeal dismissed.
According to Oxford Dictionary of current English the word 'attempt' means seek to achieve or complete (a task or action); to criminal jurisprudence 'attempt' is one of the stages of commission of offence. According to criminal jurisprudence a committed offence passes through four stages which are (i) intention (ii) preparation (iii) attempt and (iv) commission. The I.P.C. section 511 has used the word attempt in this content and has defined it in the following words:--
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.
Illustrations
(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.
Thus, section 511 is a general provision of attempt and as section itself says, it applies in all the cases of life imprisonment or imprisonment where there is no express provision regarding the punishment of such attempt has not been expressly provided by the case, the only exception which can be made out from the content of section 511 are the offences punishable with capital punishment and the offence for which specific provision for the punishment of attempt has been provided by the Constitution.
Indian Penal Code did not provide any defence of attempt in order to appreciate the meaning of attempt used by I.P.C. and law laid upon attempt by court are given here to understand the stages of crime and its distinction. Basically there are three stages of a crime and fourth is the result of these three i.e., commission of offence. The first three stages are:
(1) Intention--This is mainly a mental stage and has mostly to do with the mental element. This cannot be tracked down unless same overt act is done by the person who wants to commit the crime. Merely having intention is not punishable in law though in morality this is wrong. The next what follows is the preparation.
(2) Preparation is advanced stage of the commission of crime and in this the overt acts are done. In general, preparation is not punishable because a preparation apart from its motive is generally a harmless act. This provides the clues of one's intention though the general preparation is not an offence nor is punishable under law though there are certain offences in which preparation is also punishable under law. The preparation is followed by;
(3) Attempt which basically means final implementation with the intention to get the desired result.
The law which divides the intention and the attempt is very thin. Courts advised that precaution should always been taken to demarcate that.
In Abhyanand Misra v. State of Bihar, MANU/SC/0124/1961 : AIR 1961 SC 1698 the appellant applied for M.A. examination at Patna University as private candidate and admit card for examination was issued. In the meantime University came to know that appellant's application was forged, it was held:
"What was claimed by the appellant was that what he did merely came under the preparation and not attempt."
The court observed:
"There is a thin line between the preparation and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, 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 offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence".
Thus it was held that an action said to be an attempt if the commission fails not due to any lack on the part of accused but due to reason beyond his control.
The law of attempt was more further explained in Malkiat Singh case given below:
In Malkiat Singh v. State of Punjab, MANU/SC/0534/1969 : AIR 1970 SC 713 their Lordships of the Supreme Court distinguished between preparation for the commission of an offence and an attempt to commit an offence. This was a case, where a truck loaded with paddy destined for Delhi was intercepted at Samalkha, about 40 miles from Delhi and about 18 miles from the Delhi-Punjab border at the relevant time. The export of paddy was banned under the Punjab Paddy (Export Control) Order. The case of the prosecution was that the driver made an attempt to transport paddy from Punjab to Delhi and thereby, he was guilty of an attempt to commit an act which was an offence under the Act. Holding the act of the driver to be a mere preparation for the commission of an offence, their Lordships observed:
The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence and secondly, to have done an act which constitutes the actus reus of a criminal attempt.
The court has developed three principles to test the attempt--
(i) The proximity rule or test
(ii) Doctrine of locus paenitentiae
(iii) Impossibility test
(i) The proximity rule or test.--
In order to designate an act as an attempt, it must be sufficiently near to the accomplishment of the substantive offence that the act of the accused should be considered proximate.
In the case of R. v. Raisat Ali, (1881) 7 Cal 352 the Calcutta High Court considered the case where the prisoner had given an order to pay 100 forms similar to those formerly used by the Bengal Coal Company. The first proof of the forms was also corrected by the accused. At about the stage when the accused was to make the final corrections and alternations to the printed form to make themappear exactly like the originals, he was arrested and charged with attempting to make false document under section 464, I.P.C. However, the Court held him not to be guilty as the attempt could be said to be 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 a false document, but if the prisoner had been caught in the act of writing the name of the company upon 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 entered in the crime of forgery and he would have been held guilty of the attempt to commit forgery'.
(ii) Doctrine of locus paenitentiae.--
This refers to an act amounting to mere preparation if a man on his own accord gives it up before committing the offence. This principle was explained by the Supreme Court in the Malkiat Singh's case given below:
In Malkiat Singh v. State of Punjab, MANU/SC/0534/1969 : AIR 1970 SC 713 the accused, driver and cleaner, were intercepted at Samalkha barrier post in Punjab, which is about 14 miles from the 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, 1959. The Supreme Court acquitted the accused observing that 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 complete harmless.
(iii) The impossibility test.--
The principle of impossibility test is provided in the illustrations to the section 511, I.P.C.
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