This article is written by Arya Mittal from Hidayatullah National Law University. The article seeks to analyse the various elements or stages involved in the commission of a crime through various legal provisions and judicial pronouncements.

This article has been published by Rachit Garg.

Introduction

A crime is defined as the commission of an act that is prohibited by law, or an omission of an act that is obligated by the law. In other words, crime may be defined as the disobedience of law. Another important aspect of a crime is that it affects the public interest, rather than the rights of a single individual, which shall be a part of civil law.

In India, criminal law is operated through substantive as well as procedural law. The substantive law includes the Indian Penal Code, 1860 (the Code), and the procedural law includes the Code of Criminal Procedure, 1973 (Cr.P.C.). These laws implicitly and also various cases have enunciated that in the commission of a crime, there exist four stages. The same forms the scope of the present article and has been discussed hereafter.

Stages of crime

The stages of crime or elements of a crime include intention, preparation, attempt and accomplishment. The constitution of a crime includes all the elements. Some of these elements are even punishable before the accomplishment of the crime. All the stages can be explained further as follows:

Intention

The fundamental elements of a crime are ‘mens rea’ and ‘actus reus’, the former being the intention to commit a crime and the latter being the act done in furtherance of the intention. The criminal liability of a person shall be decided only when he or she has a mala fide intention. It is the direction of conduct towards the objects chosen upon considering the motive which suggests the choice. Mere intention shall not constitute a crime, as it is almost impossible to know the intentions of a person. As the famous saying goes “the devil himself knoweth not the intention of a man”. Since it is hard to know the intentions of a man, a criminal liability at this stage cannot be drawn.

Mens rea 

Mens rea literally means guilty mind. This basically implies that a person committing the crime is mindful of his/her actions and knows that accomplishment of that act would result in a crime. To simplify, the intention of the person committing a crime should be mala fide. Further, mens rea can be further divided into four levels depending upon the degree of intent of committing the crime. These four levels are:

  1. Negligence: This is the least and in fact the mildest form of mens rea where the person is negligent of his/her actions and does not ensure reasonable care in his/her act/omission.
  2. Recklessness: This is of a slightly higher amplitude than negligence where the person can anticipate the crime which may arise out of the act/omission but did not expect or intended the same and acts negligently. 
  3. Knowledge: The third level is knowledge where the person is associated with the risks that may occur on his act/omission and still continues with such act/omission. Here, he/she is not negligent.
  4. Intent: This is of the highest amplitude where the person intentionally carries out an act or omits something in order to commit the crime.

Actus reus 

Actus reus is the act or omission on part of the person which causes a crime and involves some physical activity. It is imperative to note that not just an act but an omission can also be a crime. For example, non-payment of taxes or maintenance is a crime. 

To know more about these two elements, check out this article.

Preparation

The next stage of a crime is preparation. It can be understood as an act in furtherance of the mala fide intention of a person. It is an act that shall be a means to the attempt and accomplishment of the crime. In the previous illustration, if A purchases a weapon legally and carries it with himself, it shall amount to the preparation of the crime.

Reasons why preparation is not punishable

The general rule under the law is that the preparation of a crime shall not be punishable. The reason behind the general rule is that it is nearly impossible to prove that the accused made the preparation to execute the crime. Apart from this, the test of locus poenitentiae is applied in cases where the culpability of preparation is in question. The test provides that a person has an opportunity to withdraw from his act before he actually commits the intended crime. The test has been further explained in the subsequent sections.

Exceptions in which criminal liability may be imposed

Exceptions to the general rule that a person cannot be held criminally liable for the preparation of an act have been provided under the Code. These exceptions include:

  1. Preparation to wage a war against the Government of India – Section 122 of the Code provides that collection of arms, ammunition, or associating with people with an intention to wage a war against the State shall be a punishable offence with imprisonment for a term that may not exceed ten years, and such the offender shall also be liable for fine.
  2. Counterfeiting coins – Section 233, Section 234, and Section 235 of the Code provide the punishment for counterfeiting any coin, including an Indian coin and the possession of any counterfeit coin. These provisions also provide punishment for the preparation of producing or using a counterfeit coin.
  3. Manipulation of the weight of the coins – Section 244, Section 246 and Section 247 of the Code provide the punishment for altering or diminishing the weight of any coin. In these circumstances, even the preparation to commit such crimes is punishable.
  4. Counterfeiting Government stamps – Section 255 of the Code provides that “Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any stamp issued by Government for the purpose of revenue shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” In addition to this, the provision also criminalises the possession (Section 256) and selling (Section 257) of counterfeiting Government stamps.
  5. Preparation to commit a dacoity – Section 399 of the Code provides that “Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 
  6. Possession of forged documents – Section 474 of the Code provides the punishment for the possession of forged documents. The intention behind the provision is to prevent any type of fraud that may occur by using such forged documents.

These offences are punishable at the stage of preparation due to the gravity of the outcome of the crime, if committed.

Attempt

There exists a very thin line of distinction between the preparation of a crime and an attempt to commit the same. It may be defined as an action in furtherance of the intention and preparation of a person to commit a crime. Thus, an attempt to commit a crime is often termed “preliminary crime”. An attempt to commit a crime is punishable under the Code. It has been provided under various provisions for specific crimes. However, in case of the absence of punishment for an attempt to commit a particular crime, Section 511 of the Code comes into the picture. Some of the specific provisions of the Code under which an attempt to commit a crime have been enumerated hereunder:

Circumstances under which attempt becomes impossible

In the 19th century, English law established that an attempt to commit an impossible act shall not be punishable. Cases of the early 19th century were decided on the notion that an attempt cannot be made on a crime that cannot be committed. Thus, where a pickpocket thrusts his hand in an empty pocket of a person, he shall still not be held liable.

However, the courts found the notion to be illogical and unreasonable in the later part of the 19th century, and hence, overruled the judgements. This was the first time an attempt to commit an impossible act was made punishable.

Section 511 of the Code particularly provides that any attempt to commit an impossible act is punishable. The illustrations provided under the provision are indicative of the same. Thus, under the Indian Penal Code, an attempt to commit an impossible act is punishable.

Difference between preparation and attempt

The difference between the preparation and attempt to commit a crime is a crucial one. It can determine the criminal liability of a person. The prime difference between the two is the fact that whether the act that has already been finished during the stages of crime, has an impact on the victim. If it has an impact, it is considered to be an attempt, otherwise, it is considered to be mere preparation. The Courts in various cases have attempted to differentiate between the two through various tests, which shall be discussed hereunder.

Tests for determining an attempt to commit a crime

  • Proximity rule – The proximity rule provides that in cases where the accused accomplishes a series of acts in furtherance of his intention to commit a crime, the liability shall be decided upon the proximity with the completion of the Act.
  • Locus Poenitentiae – The doctrine of locus poenitentiae provides that where a person withholds himself from the actual commission of the crime, it would amount to mere preparation. The doctrine was propounded after analysing that a person has a reasonable opportunity to withdraw himself from committing the crime.
  • Equivocality Test – The equivocality test states that when an act of a person can prove beyond reasonable doubt the likeliness of committing the crime, it shall constitute as an attempt to commit the crime rather than mere preparation.

Accomplishment

The accomplishment of a crime is when an attempt to commit a crime is successfully executed. Every person shall be liable for the act, offence or crime that he commits or accomplishes. The provisions of the Code provide for specific punishments for various crimes in the country.

Stage at which liability commences

The above discussion reveals how these four stages of crime decide the criminal liability of an accused. Undisputedly, at the level of accomplishment, the criminal liability of a person shall arise. Nevertheless, the above discussion reveals how the liability can commence even at the stage of the attempt and in some cases, even at the stage of preparation. Usually, in such instances, the crime committed is very serious and poses a threat to society. Hence, the main object of ascertaining liability at such stages is to create a deterrent effect in the minds of people and prevent them from committing such heinous crimes. 

Judicial Pronouncements

Asgarali Pradhania v. Emperor (1933)

In this case, the Calcutta High Court, while distinguishing between an attempt to commit an offence and its preparation, was of the opinion that not every act done by the accused can constitute an attempt to commit the said offence. The facts of the case included the accusation of an attempt to cause a miscarriage of his ex-wife. The Court held that if the accused, with an intention to administer a drug which shall cause a miscarriage, administers any harmless substance instead, he shall not be liable for the attempt to cause miscarriage. However, if the failure of the accused is caused by someone else, it shall result in the contrary.

Madan Lal v. State of Rajasthan (1986)

In this case, the convict was sentenced to rigorous imprisonment for two years when found guilty of attempting to commit rape of the victim under Section 376 read with Section 511 of the Code. The facts of the case included three prime witnesses, who found the convict laid down naked on the victim, who was also found naked, and the mouth of the victim was covered by the convict’s hand. It was established the convict himself removed his clothes and that of the victim and had an intention to rape the victim.

The Court, while analysing the stage of attempt, held that “It is the stage beyond preparation and it precedes the actual commission of the offence. An attempt to commit an offence is not meant to cover only the penultimate act towards the completion of an offence but it also covers all those acts or series of acts which travel beyond the scope of preparation and exhibit a definite intention and determination to commit a particular offence. It need not be an act which just precedes the last act on the happening of which the offence itself is committed but it covers all those acts or series of acts which may precede the penultimate act towards the commission of that offence.” 

State of Madhya Pradesh v. Narayan Singh (1989)

In this case, the Hon’ble Supreme Court held that the commission of an offence involves four stages; i.e. intention, preparation, attempt and commission. The first two stages of these offences would not attract culpability, however, the last two stages would attract it. In this case, the respondents were trying to export fertilisers without a permit from Madhya Pradesh to Maharashtra. Hence, the act was considered to be an attempt of the offence rather than just preparation.

Nasim v. Senior Superintendent of Police (2002)

This case is related to cow slaughter which attracts criminal liability as per UP Prevention of Cow Slaughter Act, 1955. The petitioner, in this case, was found to be holding a knife, 38cm in length, and to be sitting on the top of a cow with all of its legs tied. The instant petition was filed for quashing an FIR registered under Section 3 and Section 8 of the impugned Act. Relying upon the Narayan Singh case (1989) as discussed above, the Hon’ble Allahabad High Court held that preparation had been done by the petitioner and he would have moved to the third stage i.e. attempt had he not been stopped. Resultantly, he had criminal liability as attempt and accomplishment of crime would have attracted liability under the said Act.

Mathivanan v. the State of Tamil Nadu (2021)

In this case, the Madras High Court reiterated that the first and the second stage (intention and preparation) are generally not culpable, whereas the third and the fourth stage (attempt and accomplishment) are culpable. However, exceptions to this general notion are the offences under Section 122 and Section 399 of the Code. 

Commenting on Section 122 of the Code, the Court opined that “To wage war would require several steps and crossing of stages. There has to be mobilisation of men as well as accumulation of arms and ammunition. That would require a concerted effort. Each individual who is a party to the conspiracy to wage war may be allotted a particular task. One may be tasked with collecting men, another with arms and the third with ammunition. The expression “otherwise prepares” in this context should not be construed on the application of the principle of ‘ejusdem generis’. A person may be engaged in fund-raising. Another may be responsible for providing reinforcements. Some may be engaged in making logistical arrangements. Some may be engaged in the intellectual front. There could be several dimensions. All of them would fall within the scope of “otherwise prepares”. But as already held, when it comes to application of the provision to concrete facts, courts will apply a higher threshold.”

Satvir Singh v. State of Punjab (2001)

In this case, the appellants were accused of abetting an attempt to commit suicide, which was done by the wife of the primary appellant. The issue before the court was whether it was whether, in an episode of an attempt to suicide made by a person due to harassment by another, the person harassing such person shall be liable for an attempt to abet the commission of suicide. The Court answered in negative, stating that an attempt to abet shall only be punishable if the said offence has been committed, hence providing successful abetment. In case the said offence has not been committed, the abettor shall not be held liable.

Abhayanand Mishra v. State of Bihar (1961)

In this case, the appellant was a candidate appearing in an entrance examination of the Patna University for the course of M.A. in English. In his application form, the appellant had provided that he was a graduate and was also teaching in certain schools after his graduation. However, the University, only after dispatching his admit card for the examination, found the information to be forged. He was convicted by the lower court and the High Court under Section 420 read with Section 511 of the Code. Under the appeal before the Hon’ble Supreme Court, the contention of the appellant was that it was mere preparation to commit fraud and not an attempt. The Court rejected the argument and held that when the appellant submitted the forged information, it constituted preparation to commit fraud, and when the said forged documents were dispatched, it amounted to an attempt. The court reiterated that an attempt may not be seen as only the penultimate act, rather, it means any act in furtherance of the preparation.

Conclusion

The four stages of a crime have been defined and adopted by the judiciary for a long time now. The classification of these stages is necessary in order to decide the culpability of a crime at each stage. Generally, the liability arises during an attempt and the actual commission of the crime, as the courts cannot overlook the legal maxim of locus poenitentiae. The problem before the courts that arises more than often is the differentiation between the preparation and the attempt to commit a crime.

Various cases have been adjudicated by the courts wherein an attempt has been made to distinguish the thin line between an attempt and preparation of a crime. The courts have been of the view that an attempt shall not be considered only as the penultimate act of the crime. Rather, a series of acts shall constitute an attempt to commit the crime and the differentiation between preparation and attempt shall depend on the facts and circumstances of each case.

References

  • C.K. Takwani, Indian Penal Code (EBC Reader 2014).
  • K.A. Pandey, Indian Penal Code (EBC Reader 2017).
  • K.D. Gaur, Commentary on the Indian Penal Code, 3rd ed. (Central Law Publications 2019).
  • Ratanlal & Dhirajlal the Indian Penal Code (LexisNexis 2020).

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