This article is written by Kushang, a student from Himachal Pradesh National Law University (HPNLU). This article discusses the different types of inchoate offences under the Indian Penal Code and various defences available against them.
We all know that all crimes are punishable by the law. But what if the crime was not committed completely? Can we still say that an offence has been committed? Interestingly, the answer to such questions is yes. Even incomplete crimes are punishable. Such offences are known as Inchoate Offences. We come across the terms like ‘attempt to murder, conspiracy, attempt to suicide, or abetment to murder’. These terms are related to Inchoate offences. They are based upon the thought that “Prevention of crime is better than the punishment of crime”. Thus, it intends to stop the crime from the very beginning.
What are Inchoate offences
Inchoate offences refer to “incomplete offences”. In a literal sense, the word inchoate means ‘unfinished’ or ‘underdeveloped’. These acts are not complete offences as they are performed in the process of the commission of the final crime. It helps or aids in the final crime. For offences, there are 2 most essential elements: Mens rea, which means a guilty intention to commit a crime and Actus Reus, which means the actual commission of the act. In this sense, inchoate offences are incomplete offences as they only fulfil the mens rea aspect and not the Actus reus element of the crime.
In such offences, it is not the main crime for which the person is punished. It is the steps taken in order to commit the crime which is held illegal and hence, punished. Here, the act is not considered as serious as the final crime which was intended to be committed by the person and that is why the punishment for such offences is not as strict as the real offence. For instance, Punishment for Murder under IPC Section 302 is more strict than punishment for attempt to murder under IPC Section 307.
Also, these inchoate offences relate to some serious offence. For example Attempt to Murder, Abetment to suicide, and criminal conspiracy. Thus, they are not interpreted in isolation. These inchoate offences relate to mainly 3 offences namely attempt, abetment, and conspiracy.
The presence of Inchoate offences was not much in the earlier times. However, with the change in time, the English jurists started to talk about the inclusion of such offences in the law. The need for this started as a precautionary method to stop the commission of gross crimes in society. In a simple sense, they believed in the prevention of the actual crime by making the step taken for the furtherance of a crime as an offence. This started from the 16th Century and then the development of the inchoate offence started taking place.
Earlier it was restricted only to attempt to commit a crime. However, with the passage of time other concepts like abetment and conspiracy also developed.
In IPC, all these inchoate crimes were included since 1860. But, the new concept of criminal conspiracy was added in the year 1913 by the inclusion of chapter V A in the IPC of 1860. The main motive to include these offences was to prevent the crime from the initial stage itself.
Types of Inchoate crimes
Let’s discuss various types of crimes which fall under Inchoate crimes:
When a person doesn’t commit a crime himself but instead persuades the other person to commit the crime, then such offences are termed as abetment. This offence is covered in chapter v of the Indian Penal Code of 1860. Section 107 and Section 108 of the IPC relates to the meaning of abetment. As per these sections, any person abates a doing of a thing when he instigates, engages or aids by any act in the doing of a thing. For instance, A assists or aids B in the murder of C, then A is liable for abetment.
In abetment, the act of instigating, encouraging or aiding is seen as actus reus and the intention behind doing this relates to mens rea. Thus, abetment satisfies both elements needed to be called an offence. However, it is important that the action of instigating, encouraging, or aiding should clearly show that the person has the intention to commit the crime.
Abetment by Incitement
This is a part of abetment where the person incites or supports the commission of a crime. However, it is necessary to prove that the person wilfully did such an act. Also, mere association with the criminal doesn’t mean the person is involved in abetment of the crime.
Abetment by Conspiracy
Conspiracy and abetment have been mentioned in different sections of the IPC. However, abetment of conspiracy has a smaller scope than a criminal conspiracy. A person may be held liable for abetment to conspiracy only after the offence takes place. However, as per Section 120 A of IPC, conspiracy can take place with a mere agreement between parties to commit a crime.
Abetment by illegal omission
In this type of abetment, the person abets the commission of crime through not only non-interference but also by not interfering in matters in which he has a legal obligation to intervene.
For instance, A, a senior policeman, left his police station during the shift and the constables attacked the prisoners and abused them. Then A would be liable for abetment by illegal omission.
Abetment through assistance
A person is held liable for this type of abetment when he helps in procuring or supplies an item which aids in the commission of the crime. Thus, all the above mentioned are different types of abetment and forms a part of abetment offence as a whole.
An attempt has not been defined directly in the Indian Penal Code,1860. However, chapter XXIII of the IPC mentions the punishment to attempt an offence with imprisonment or life imprisonment as the case may be. For a Crime to be committed, there are 4 stages:
- Idea or Intention to commit Crime
- Preparation for committing the Crime
- Attempt to Crime
- Actual Commission of the Crime
Thus, here we are discussing the third stage i.e Attempt. In a simple sense, it means to direct movement towards committing the crime after preparation has been done. However, the actual commission of the crime doesn’t take place. Attempt to Crime is also an offence.
For instance, A, a person intends to kill B. He shoots at B but misses the target and hence the actual crime of murder or culpable murder doesn’t take place. In such case, A will be charged with the offence of Attempt to Murder under Section 307 of the IPC.
The IPC deals with the attempt in 3 different ways:
- In some cases, the commission of the offence and its attempt are both dealt with the same section and same punishment. For example, Sedition under Section 124 A of the IPC.
- In some cases, they are treated as separate offences and thus are punished accordingly. For example, Attempt to Murder under Section 307, Attempt to Culpable Homicide under Section 308 and Attempt to Suicide under Section 309.
- All other offences which are not covered by the above 2 categories. This is provided in Section 511 of the IPC, where it mentions the punishment of life imprisonment or simple imprisonment for committing such offence.
A conspiracy takes place when parties agree to commit an illegal act and take steps to complete the crime. This is different from an attempt in the sense that a person can be charged with both conspiracy to commit the crime and for the crime itself if the commission of the crime is successful.
In the Indian Penal Code, criminal conspiracy is mentioned in chapter V in the section 120 A and 120 B. It states that the act should be committed by 2 or more persons and there should be an agreement between them to commit an illegal act or a legal act by illegal means. This is an inchoate offence as does not require the completion of the crime.
For example, A and B conspire together to commit the murder of C. But they are not able to kill C. In this case, A and B will be charged with the offence of criminal conspiracy even though the crime did not take place. Thus, these were the main inchoate offences namely Abetment, Attempt, and Conspiracy.
The proximity rule
The Proximity rule is used in finding the liability of the defendant in inchoate offences. This rule means that the act or series of acts done in order for the commission of the substantive offence should be proximate to the intended offence, then only it can lead to liability on the part of the defendant.
For example, in the case R v. Taylor, the defendant lit a matchstick near a haystack to destroy it but extinguished a fire when he realised that someone was looking at him. The defendant was prosecuted because his act was proximate to the crime. If he wouldn’t have lit the matchstick then the liability for the attempt to commit the crime would not be present in the case.
Defences to inchoate crimes
There are few defences available to the person charged with the inchoate offence. These defences vary in different jurisdictions. These defences are mentioned below-
In this defence, the person states that he had abandoned his effort to perform the crime. Although he might have been involved in planning, he did not prepare or attempt to commit the crime. In order to prove this defence, the person has to show that he had voluntarily and completely abandoned his efforts towards committing the crime. This can be done by showing that he had stopped working to commit the crime, or tried to stop the crime while it was ongoing, or tried to stop other people involved in such activity with him.
For example, a person plans to commit burglary with a few other men involved with him. Preparation for committing the act is completed. However, after this stage, the person decides to abandon from committing the act and also persuades others involved to stop in their act. But they don’t agree, as a result, he reports to the police. In such a case, the person can take the defence of abandonment as it can be inferred from the facts and the activity of the defendant that he had actively abandoned himself from the crime.
As the name suggests, the defendant can claim the impossibility of conducting the crime as a defence. This defence has seen major changes in various places. These impossibilities can be on two grounds-
Here, the defendant claims that the act that he intended to commit or the act for which he made an attempt is actually not a crime according to law, then the defence of legal Impossibility can be taken.
For instance, a hunter shoots for hunting an animal but it hits another person. Here, there is no intention to hit the other person. Thus the hunter cannot be charged with attempt to murder but instead with some other offence.
Here, the act of the defendant becomes impossible to commit crime due to the situation of the case. In this, circumstances develop in such a manner that crime cannot be committed.
For example, a person plans to demolish a property but that property is destroyed the next day due to natural calamity. Here the commission of the act has become impossible as the property has already been destroyed. Here, the situation became such that actual crime was not possible to be committed. However, this defence is not accepted everywhere as the courts think that the person still had the intention to commit the crime.
Thus, many offences are punishable even if the actual crime doesn’t take place. These include the attempt, conspiracy, and abetment. With the change in time, the need to add more subjects to inchoate offences is increasing. The main reason for this is to prevent even the thought of committing the crime. The concept of such offences was developed in recent times and as time is progressing, more and more improvements are being added to criminal jurisprudence for achieving a peaceful society.
- Indian Penal Code, 1860
- R. v. Taylor (1859) 1 F. & F. 511
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