Punishment for an attempt to commit an offence

Intention, preparation, attempts and commission are the four stages in a crime. By virtue of Section 511 of Indian Penal Code, 1860 “an attempt to commit an offence” is a punishable offence. Every attempt though fails must create an alarm, which of itself an injury and the normal guilt of the offender is the same, as if he had succeeded. Hence, an attempt to commit an offence is a punishable offence.

By virtue of Section 511 of Indian Penal Code, 1860 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.

An attempt means to try OR to endeavour to do something. In other words, an attempt means an act towards the commission of the offence, which fails due to circumstances independent of the attempter’s will. A person is said ((Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698))to have committed “an attempt to commit an offence” under the Indian Penal Code, if;

  • He intends to commit any particular offence; OR
  • He made preparation for it; and
  • He does any act towards its commission.

An attempt is said to be a direct movement towards the commission of an offence soon after the preparations. It is an intentional preparatory action, which fails in its object because of circumstances independent of the person who seeks its accomplishment.

An attempt to commit an offence 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 the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression attempt to commit an offence and is exactly what the provisions of Section 511 of the Indian Penal Code, requires ((Ramabai Nivrutti Chavan v. Nivrutti Nimbhaji Chavan & Others, 1988 (2) BomCR 161)).

Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependant on the nature of the offence and the steps necessary to take in order to commit it. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation ((Rameshwar v. State of Haryana, AIR 1987 SC 713)).

The test for determining whether, the act constitutes 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. But where the thing done is such that, if not prevented from extraneous cause would fructify into commission of an offence, it would amount to an attempt to commit that offence ((Malkiat Singh v. State of Punjab, AIR 1970 SC 713)). In order to constitute an offence,

  • there must be an intention to commit an offence;
  • some acts must have been done which would necessarily have to be done towards the commission of the offence; and
  • such acts must be proximate to the intended result

in other words, the acts must reveal, with reasonable certainty, in connection 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 ((State of Maharashtra v. Mohammad Yakub, AIR 1980 SC 1111)).

However, it must be noted that, Section 511 of the Indian Penal Code will not apply to cases of attempt made punishable under some other specific sections of the Indian Penal Code, viz.

  • Attempting to wage war against the Government of India (Section 121)
  • Attempt wrongfully to restrain the President and other higher officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers (Section 124)
  • Attempt to rescue State prisoners or prisoners of war (Section 130)
  • Attempt by a public servant to obtain an illegal gratification (Section 161)
  • Attempt to use as true, evidence known to be false (Section 196)
  • Attempt to commit murder (Section 307)
  • Attempt to commit suicide (Section 309)
  • Attempt to commit robbery (Section 393)
  • Attempt by one of many joint house breakers by night to cause death or grievous hurt (Section 460)

Supreme Court commutes death sentence to life imprisonment

A Bench of Justices Dipak Misra, R F Nariman and U U Lalit said that, “Though no time limit can be fixed within which the mercy petition ought to be disposed of, in our considered view the period of 3 years and 10 months to deal with such mercy petitions in the present case comes within the expression “inordinate delay.”

Supreme Court considering the period of 3 years and 10 months delay by the Centre in deciding mercy petition of a prisoner as “inordinate delay” has commuted the death sentence of the condemned prisoner to life imprisonment.

While granting relief to the convict, the Supreme Court also noted that the right of death convict was further violated by incarcerating him in solitary confinement for the last seven years ever since his death sentence was upheld by it in 2007.

The Supreme Court had earlier ruled that a death convict should never be put to solitary confinement till his mercy petition was disposed of.

It is a case where the convict Mr. Ajay Kumar Pal, who was awarded death sentence by trial court in April 2007 for killing 5 people including three children. Offence occurred in the year 2003. His conviction and sentence was upheld by the Supreme Court on March16, 2010. Within a month he sent his mercy plea. Subsequently, his mercy petition was rejected by the President of India on November 08, 2013.

Convict thereafter moved Supreme Court for commutation of his death sentence on grounds of delay on the part of Government in deciding his mercy plea. Bench observed that, “the combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner.”

Sexual intercourse forceful but not forcible does not amount to rape

Delhi High Court stating sexual intercourse which is forceful but not forcible does not amount to rape set aside the life imprisonment awarded to a man for raping and killing a 60 year old woman. Can forceful sex with a 65-year-old woman, who is beyond the age of menopause, punishable under law? In other words, whether sexual intercourse with a post-menopausal woman can be treated as rape.

In December 2010, the victim was found dead inside her house in Majnu ka Tila along with an inebriated Achey Lal by a girl at whose house the victim worked. Achey Lal was arrested and eventually sentenced to 10 years of rigourous imprisonment. The post-mortem of the victim revealed that she has sustained injuries on her vagina, and traces of alcohol were found on her, too.

The judgement, made by a bench comprising Justice Pradeep Nandrajog and Justice Mukta Gupta has let off the accused, 49-year-old Achey Lal, waiving off the punishment meted out to the accused on the grounds that even if the intercourse “has been forceful, it was not forcible”.

“As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased,” read the judgement.

Read the Judgment