Attempt to Commit a Crime:
An attempt signifies a direct movement towards the commission of an offense after necessary preparations have been made. The law considers attempt punishable similar to a completed offense.
'Attempt' under the Bharatiya Nyaya Sanhita, 2023 (BNS):
While the BNS does not provide a specific definition for attempt, it addresses attempted offenses in various ways:
1. Offenses Against the State:
- Offenses such as waging or attempting to wage war against the Government of India fall under this category, with the punishment for attempt being the same as for the completed offense.
2. Separate Punishment for Attempt:
- Attempted offenses and commission of specific offenses are dealt with separately, each having distinct punishments. For instance, attempt to commit murder and attempt to commit culpable homicide not amounting to murder have separate sections with distinct punishments from the corresponding completed offenses. Attempt to commit murder is punishable under Section 109 of BNS, Attempt to commit culpable homicide not amounting to murder is punishable under Section 110 of BNS.
3. Attempted Suicide:
- Section 309 of the IPC made an attempt to commit suicide punishable, however, the provision of attempt of suicide has been omitted under Bharatiya Nyaya Sanhita, 2023 (BNS).
4. Section 62 of BNS - General Provision for Attempt:
- Section 62 of the BNS serves as a general provision for attempt. It states that if no express provision is made for the punishment of an attempt, the individual shall be punished under section 62 of BNS.
Principles Governing Attempt:
Three theories guide the determination of attempt:
1. Proximity Theory or Test:
The Proximity theory emphasizes how close an act is to the completion of the substantive offense to be considered an attempt. Courts evaluate whether the actions taken by the accused are in close proximity to the commission of the crime. The closer the act to the intended offense, the stronger the case for an attempt.
Example: In a theft case, if a person forcefully breaks open a door intending to steal, but is caught before taking anything, the act of breaking the door can be deemed an attempt due to its proximity to the intended theft.
2. Doctrine of Locus Paenitentiae:
This doctrine comes into play when a person voluntarily abandons the attempt before committing the offense. If the accused changes their mind, genuinely desists, and abandons the criminal endeavor, the act may be considered mere preparation rather than a criminal attempt.
Example: A person plans to rob a bank, but on arriving at the bank, he suddenly experiences a change of heart, he abandons the plan and goes back. In this case, the act may be viewed as mere preparation due to the abandonment.
3. Impossibility theory or Test:
The Impossibility theory evaluates whether an act qualifies as an attempt despite facing external hindrances or impossibility of completing the intended offense. The focus is on the intent and actions of the accused rather than the success or failure of the attempt.
Example: If an individual attempts to pickpocket someone, unaware that the intended victim has an empty pocket, the act is still an attempt because it reflects a direct movement towards the commission of the offense, even though the intended crime was impossible due to external factors.
Let us now see sone case laws on the offence of attempt.
1. Abhyanand Misra v. State of Bihar (1961):
- This case emphasized the thin line between preparation and attempt. The court clarified that attempt begins when preparations are complete and the culprit commences an act with the intention of committing the offense. The ruling highlights the importance of analyzing the accused's actions in relation to the intention to commit the crime.
2. Malkiat Singh v. State of Punjab (1969):
- In this case, the Supreme Court distinguished between preparation and attempt, asserting that preparation involves arranging means, while an attempt is a direct movement towards the commission after preparations are made. The court applied the proximity rule and the doctrine of locus paenitentiae, emphasizing that acts done should be sufficiently close to the substantive offense for an attempt conviction.
3. R. v. Raisat Ali (1881):
- The Calcutta High Court's decision in this case illustrated the proximity rule. It held that an act can be deemed an attempt only when it is sufficiently close to the accomplishment of the substantive offense. The accused was not found guilty as he was arrested before completing the act that would constitute forgery.
Frequently Asked Questions (FAQs) on attempt as an offence under Bharatiya Nyaya Sanhita, 2023 (BNS)
Q1: What is the definition of 'attempt' under the Bharatiya Nyaya Sanhita, 2023 (BNS)?
A1: The BNS doesn't provide a specific definition for attempt but addresses attempted offenses in various ways, categorizing them under different sections and prescribing punishments similar to completed offenses.
Q2: How does BNS handle offenses against the state and attempted offenses?
A2: Offenses like attempting to wage war against the Government of India fall under offenses against the state, with attempt carrying punishments equivalent to the completed offense. BNS also has separate sections for attempt with distinct punishments.
Q3: Is attempted suicide punishable under Bharatiya Nyaya Sanhita, 2023 (BNS)?
A3: No, Section 309 of the IPC, which made an attempt to commit suicide punishable, has been omitted under BNS.
Q4: What is the general provision for attempt under Section 62 of BNS?
A4: Section 62 serves as a general provision for attempt, stating that if no express provision is made for the punishment of an attempt, the individual shall be punished under certain principles.
Q5: What principles guide the determination of attempt under BNS?
A5: The three principles are the Proximity Rule, Doctrine of Locus Paenitentiae, and Impossibility Test, which assess how close an act is to the completion of the substantive offense and under what circumstances an attempt can be considered.
Q6: Can you provide examples illustrating the principles governing attempt?
A6: Examples include the Proximity Rule, where breaking a door in a theft case can be deemed an attempt; the Doctrine of Locus Paenitentiae, where voluntary abandonment before committing the offense may be considered mere preparation; and the Impossibility Test, where an attempt is evaluated based on intent despite external hindrances.
Attempt and theories of attempt under BNS (Bharatiya Nyaya Sanhita)
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