Author : Mrinal Kedar
In legal language, mens rea means “the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused”, also actus reus means “action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused”.
That means to fulfil the criteria of a completed crime there have to be two essential criteria:
a mental element i.e the intention to commit the crime and a physical element i.e the action of committing the crime. But attempt to commit an offence means to have both mens rea and actus reus but it never results in the successful completion of the act.
In criminal law, an attempt means that an accused made a plan to commit the crime but when acted on it, it did not succeed.
The proposed definition of Attempt:
- There is a definition of attempt proposed in the Indian Penal Code Amendment Bill. A new Section 120C is proposed to be added for defining Attempt.
According to this proposed section, a person attempts to commit an offence when-
- he, with the intention or knowledge requisite for committing it, does any act towards its commission.
- that act so done is closely connected with, and proximate to the commission of the offence, and
- the act fails in its object because of facts not known to him or because of circumstances beyond his control.
What is attempt to commit offence under Indian Penal Code?
There is only one provision under an attempt to commit offences in the Indian Penal Code i.e Section 511.
Section 511: Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.—
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.
There is no clear definition of an attempt to commit offences given in the Indian Penal Code. The only provision given is the punishment for attempting to commit the offence.
Stages of a criminal conduct:
Preparation: Preparation consists of devising a plan or arranging any necessary means for the successful commission of the offence. Normally, the preparation of an offence is not punishable. The reasons are given below:-
Preparation apart from the intention is a harmless crime.
It is highly impossible to prove that the preparation was directed towards a wrongful act.
If the court were to punish everyone for preparation then there will be innumerable offences.
Attempt: Attempts to commit a violation are an accurate move to committing the envisioned crime after arrangements have been made. The way cannot be eliminated.
Once an attempt is executed, the perpetrator cannot alter their determination and retort to its initial status without committing a crime.
Intention: A malicious intention cannot be proved by looking into the brains of the criminals. It is the psychology of the criminal. However, the act of the crime along with the intention is important.
The actual Commission of Crime: The actual commission of the crime leads to unlawful liability. If the accused ensues in his attempt, the crime is performed. If he missed then it is regarded as an attempt.
Theories of Attempt:
The Proximity Rule:
The proximity rule is embodied in Latin maxim as “cogitationis poenam nemo patitus” which means that nobody deserves punishment for thought.
The Proximity Rule checks how much close the defendant was to performing that offence. The deliberate difference is the gap between preparation for the offence and successful fulfilment of that offence.
The Doctrine of Locus Poenitentiae :
This doctrine deals mostly with the cases where an individual had made all the preparation to commit the crime but decided against it at the end moment. The withdrawal at the last moment before committing the crime goes unpunished.
The Equivocality Test:
‘Equivocality Test’ is used to distinguish between preparation and attempt in a criminal case. When the conduct of the person itself is deemed suspicious then it is concluded that the person intended to commit the crime and that conduct if the criminal is termed as an attempt to commit that crime
An act is proximate if it symbolises beyond rational thinking which direction it is headed.
When a person executes an act which is one step away from him committing that crime and doing such an act cannot be explained as having an altered purpose than the commission of that particular crime.
Attempting an Unthinkable Act:
Any person who tries to attempt an unimaginable crime then they will be held liable under the Indian Penal Code.
Mostly it is believed that a successful commission of the crime is the only criteria for being punished. But it is important to mention that any attempt to commit a crime is punishable under the Indian Penal Code.
Even though the act was not completed the preparation, intention, etc was there to fulfil the criteria for an attempt to commit the offence.
Also along with the planning and intention, there is always the step taken by the accused which leads to an attempt.
Without that first step, the accused will not be found punishable for just planning because then it has to be proved that the plan was to commit an unlawful act which is a rather tedious job.
Only an attempt to commit the crime is punishable under this provision.