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Attempt To Define “Attempt” Is A Frustrating Exercise

Evolution of the concept:

Section 511 of IPC, in India Defines Attempt however its true color and meaning is difficult to grasp.

In early days of development of English common law, attempt was not a crime. Over the time, the law on this point was evolved. A defendant who committed attempt resulting in severe harm was punished for a minor crime, typically a misdemeanour. An attempt to define ‘attempt’ first came up in Rex v. Scofield, In Scofield, a servant was convicted of a misdemeanour for attempting to burn down his master’s house with a lighted candle.

Furthermore, in Rex v. Higgins, upheld an indictment for attempted theft and firmly established the crime of attempt in English jurisprudence. In modern times, most states criminalize attempt, the majority in statutes, except in some states that permit common-law crimes. However, even in statutes, the word “attempt” remains not defined, forcing courts to interpret the scope and definition from common-law principles.


The intention coupled with some overt act to achieve that intention amounts to crime as it is an attempt to commit a crime. An attempt is thus known as preliminary crime or inchoate crime since it is an incomplete act. Thus, even if the crime is not committed successfully, the mere attempt to do so will amount to crime too.

Eg: If a person buys a gun and keeps it ready and loaded, with the intention to use it on a particular person, but no overt act is committed against that person, then it is at the preparation stage and is still not punishable. But if he tries to shoot or use the weapon by his overt act or if is caught arrested with a loaded gun or pistol before he is able to conclude the attack or if the attack or the attempt is unsuccessful, then he has committed the offence of attempting to murder. Essentials of the Attempt:

  1.  there must be “an intention to commit a crime”

  2. Act so done must be “in furtherance of that intention” or “towards the accomplishment of that crime”

  3. The act must be “an incomplete work” or “fall short of a completed crime” Hence, if the above ingredients are fulfilled, it is evident that the act done was an attempt to commit a specific crime or crimes and is held to be punishable.

Tests to determine Attempt:

There are various tests to determine what constitutes an attempt to commit a crime and they are applied depending on the facts of each case.

Proximity Test

The proximity rule is embodied in the Latin maxim cogitationis poenam nemo patitus which means that no man can be punished for his guilty purposes, except so far as they have manifested themselves to proclaim his guilt. The proximity test postulates the defendant’s progress by determining how close the defendant is to completing the offense.

For instance, A shoots at B intending to kill him but misses the mark for want of skill or any other defect in the gun and the like. There A would be liable for attempt where A points a gun at B and proceeds to pull the trigger in order to shoot him dead, but it turns out that the gun was not loaded, A would be liable for attempt because he has done everything in his hand towards the commission of the offence.

An act of the accused is considered proximate, if, though it is not the last act which 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. Since the probable wrongdoer could change his mind at any point before the crime is committed; the state should wait until the last possible minute to ensure that the intention is going to be realized.

The rule is a mixture of principles laid down in a number of decided cases.


  1. The gravity of the offence intended,

  2. the nearness of the act to completion of the crime

  3. The probability that the conduct will result in the offence.

In Sudhir Kumar Mukherjee case and Abhayananda Mishra case , the Supreme Court explained the offence of attempt with the help of the proximity test, saying that a person commits the offence of „attempt to commit a particular offence‟ when a) He intends to commit that particular offence; and b) He having made preparation with the intention to commit the offence, does an act towards its commission; such an act need no to be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.

Example of the Proximity Test

Shelly and Thomas decide they want to poison their neighbour’s dog because it barks aloud all night. Shelly buys some rat poison from a local store. Thomas coats a raw filet mignon with the poison and throws it over the fence into the neighbour’s yard. Fortuitously, the neighbours are on an overnight camping trip, and the dog is with them. The next day, after a night of silence, Shelly feels guilty and regrets doing what they did and climbs over the fence to see what happened to the dog.

When she sees the filet untouched on the ground, she took it with her and disposed it in a trash can. If Shelly and Thomas are in a jurisdiction that follows the proximity test, Shelly and Thomas have probably committed the criminal act element required for attempt. Shelly and Thomas finished every act necessary to commit the crime of destruction of property or animal cruelty (poisoning the dog). The only reason the crime was not successfully consummated was the absence of the dog, which is a circumstance outside their control.

Thus Shelly and Thomas could most likely be charged with and convicted of this offense. If Shelly bought the rat poison but thereafter changed her mind and talked Thomas out of poisoning the dog, her actions would be a preparation, not a positive step toward commission of the crime. If Thomas coated the filet with poison but then changed his mind and threw the filet away, he would still be “too far” away from completing the offense. However, once the filet is thrown over the fence, the crime is proximate to completion; the only step left is the victim’s (dog’s) participation.

Res Ipsa Loquitur Test

Res ipsa loquitur means “the thing speaks for itself”. The res ipsa loquitur test, also known as the unequivocality test. It is applied depending on the facts of each case independently. To constitute an attempt the act must be such as to clearly and unequivocally indicate the intention to commit the offence. The act must be referred to the commission of the crime and it must be evident and clear on examination.

The intention followed by preparation is not sufficient to constitute an attempt. But intention and then preparation must be followed by an act toward the commission of crime. The act must be revealed with reasonable certainty in conjunction with other facts and circumstances an intention to commit the particular offence.

Under res ipsa loquitur or unequivocality, the trier of fact must determine that at the moment the defendant stopped going towards completion of the offense, it was clear that the defendant had no other purpose than commission of the specific crime at issue.

Example of the Res Ipsa Loquitur Test

Sam wants to kill his wife Kelly for the proceeds of her life insurance policy. Sam contacts his friend Joe, who is reputed to be a “hit man,” and sets up a meeting for the next day. Sam meets with Joe and asks him if he will murder Kelly for one thousand dollars. Joe agrees, and Sam pulls out a wad of cash and pays him.

Unfortunately for Sam, Joe is a law enforcement decoy. If the state in which Sam paid Joe recognizes the res ipsa loquitur or unequivocality test, Sam has most likely committed attempted murder (along with solicitation to commit murder, which is discussed shortly). Sam’s actions in contacting and thereafter hiring and paying Joe to kill Kelly indicate that he has no other purpose than the commission of Kelly’s murder. Hiring and paying a hit man is more than just preparation. Note that evidence of Kelly’s life insurance policy is not needed to prove the attempt act. Sam’s conduct “speaks for itself,” which is the essence of res ipsa loquitur or unequivocality.

Probable Desistance Test

The probable desistance test examines how far the defendant has progressed toward commission of the crime, rather than analyzing how much the defendant has left to accomplish. Pursuant to this test, a defendant commits attempt when he or she has crossed a line beyond which it is probable he or she will not desist unless there is an interruption from some outside source, law enforcement, or circumstances beyond his or her control.

Example of the Probable Desistance Test

Wooly, who works at Zeus jewellery outlet, tells her Facebook friends that she is going to steal a diamond necklace out of the safe that evening. Wooly drives to Zeus at 12 o’clock after the store has closed. She enters the building using her key and quickly disables the store alarm. She then turns off the store security camera. As she crouches down by the safe and begins to enter the combination, all the lights go on and she blinks, startled by the sight of several police officers pointing their guns at her. If the state in which Wooly lives follows the probable desistance test,

Wooly has most likely committed attempted larceny, along with burglary. Wooly informed others of her plan, drove to the crime scene, entered the building unlawfully, disabled the store alarm, and turned off the store security camera. This series of actions indicate that Wooly crossed a point of no return. It is unlikely that Wooly would have desisted without the law enforcement interruption, which fulfills the attempt act requirement pursuant to the probable desistance test.

Social Danger Test

In order to distinguish criminal attempt from preparation the following two factors are contributed:

a) The seriousness of the crime attempted

b) The apprehension of the social danger involved.

In this test the accused’s conduct is not examined only partially but the consequences of the circumstances and the fullness of the facts are taken into consideration.

Eg: A administers some pills to a pregnant woman in order to procure abortion. However, since the pills are innocuous they do not produce the result.

In spite of this A would be held liable for an attempt from the view point of the social danger test, as his act would cause an alarm to society causing social consequence. The gravity of the crime attempted has been one of the criteria in deciding the liability in cases of attempt. If the facts and circumstances of a case lead to the inference that the resultant consequences would have been severe, the crime of attempt is complete. In fact it is the apprehension of social danger which the particular crime is considered to exist that determines liability for an attempt. As crimes against women are crimes against society, in such cases the Courts have taken a stringent view.

In Asgarali Pradhania v. Emperor the appellant was convicted under Section 312/511 of the Indian Penal Code of an attempt to cause miscarriage. The complainant was a divorced woman who came to be impregnated by the appellant on the promise that he would marry her. He was married with children. He wanted to cause miscarriage and tried to administer a liquid for it. On her making noise her father and others came and the appellant fled. On investigation it was found that he was trying to administer was copper sulphate in less quantity than was sufficient for causing miscarriage. But he was trying to do a very dangerous act although the quantity was insufficient. The accused had done the act which was sufficient to create alarm in the society.

On the Job Theory

In R v Osborne, the accused had sent some pills giving impression that they would provide abortion. They were taken but were found to be innocuous. It was held that the accused was not on the job and hence he is not liable for attempt. The reason for this may be three fold: First, it is a case of absolute inadaptability of means adopted to bring about the evil consequences, secondly, it causes no alarm to the society, and thirdly, the whole thing is nonsense. However this case has been overruled in R. v. Spicer and therefore it would now be an attempt. The earlier view was based on the concept that since no harm is caused then it is not punishable.

But later on it was realized that the accused who is trying to do an offence by employing some inadequate means and become failure for that, he will be more dangerous in coming days. To prevent him from doing harm to another he should be punished in the stage where he was trying to do that with an inadequate means. In another case P entered into the house of Q at night and with an intention to kill B, fired in darkness at the bed on which Q regularly slept.

The aim was perfect but no harm was caused because bed happened to be empty. P is guilty of attempt. In both the cases the actor was “on the job”. From the illustration to the Section 511 of Indian Penal Code, it appears that offence intended must not be completed due to interference by some fact or circumstances beyond the control of the accused.

But the Supreme Court differed from this interpretation. In Abhayanand Mishra v. State of Bihar the Court observed that the stage of preparation was completed when the accused prepared the application to submit to the university and the moment it was dispatched the offence of attempt was complete. As conventionally formulated, the test requires conduct that "in the ordinary course of events would result in the commission of the target crime except for the intervention of some extraneous factor.

Hence, when the defendant abandons, one might suppose that since it can hardly be true that the defendant would have completed the crime but for "some extraneous factor," the defendant's conduct cannot be sufficient for attempt. But this is a misunderstanding of the nature of the probable desistance test. Conduct is sufficient under this test once it reaches a point where it is reasonable to judge that the defendant, unless stopped, will continue and do the last act.

The above judgment is a counterfactual prediction rather than a prediction of what will actually happen. Thus, as applied to a defendant arrested at some point before doing the last act, the test requires a prediction that the defendant, having reached that point, would have continued and (if not stopped) done the last act or, equivalently, would not have abandoned before doing the last act. That prediction can be counterfactually correct (reasonable) or incorrect (unreasonable), and if one believes it to be the former, then one finds the defendant's conduct sufficient for attempt. It follows that there is no contradiction in finding conduct sufficient when the defendant abandons.

Why is defining attempt termed ‘frustrating’?

The theories, rules and doctrines are significant for the area of criminal attempt. It is already discussed that there is very thin demarcation between the stage of preparation and attempt. So, the theories, rules and doctrines have been serving some guidelines for determination of what constitute a criminal attempt. Impossible attempt and abandonment which are defences of criminal attempt are to be taken in to consideration in the light of the theories rules and doctrines.

The various theories are resorted to depending upon the facts and circumstances of each case. Thus, it is very difficult to determine in which case which theory will apply. Thus, it is seen as a frustrating attempt.

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