Attempt to Commit Offences**

Concept of Attempt

Criminal law punishes not only the commission of a completed offence but also certain preliminary stages, such as attempt. An attempt is an act done with the intention of committing a crime, which falls short of the completed crime.

Stages of Crime:

Generally, a crime progresses through four stages:

Intention: The desire to commit the crime.
Preparation: Making arrangements to commit the crime.
Attempt: Taking a direct step towards committing the crime, which falls short of the completed act.
Commission: The successful completion of the crime.

Intention and Preparation are generally not punishable, except for certain grave offences (like waging war, dacoity). Attempt and Commission are punishable.

Definition:

The Bharatiya Nyaya Sanhita (BNS), like the IPC, does not provide a single comprehensive definition of 'attempt' that applies to all offences. The concept is often defined and illustrated through case law and specific sections dealing with attempts of particular crimes.

However, a general understanding is that attempt involves a direct movement towards the commission of the offence after preparations have been made. It is an act done with the required Mens Rea for the completed offence, but which does not succeed in completing the offence.

Ingredients of Attempt

The essential ingredients of a criminal attempt are generally considered to be:

Mens Rea: The accused must have the intention to commit the completed offence. The required mental element is the same as that for the completed crime.
Actus Reus (The Act): The accused must do some act towards the commission of the offence. This act must be sufficiently proximate to the completed offence.
Failure to Complete: The act must fall short of the completed offence.

The main difficulty in defining attempt lies in determining when preparatory acts cross the line and become an 'attempt'. Different tests have been proposed by courts and jurists (e.g., proximity test, locus poenitentiae test, indispensible element test, social defence test), but there is no single universal test.

Distinction between Preparation and Attempt

Distinguishing between preparation and attempt is crucial, as preparation is generally not punishable while attempt is.

Feature	Preparation	Attempt
Stage	Preliminary stage before the final execution. Arranging means for the commission of the offence.	Direct movement towards the commission of the offence after preparations are made.
Proximity	Remote from the completed act.	Proximately connected with the completed act. It is a step towards the execution.
Actus Reus	Acts are merely preparatory.	Acts constitute a direct movement towards the commission of the offence.
Punishability	Generally not punishable (except for certain grave crimes like waging war, dacoity).	Generally punishable.

Example: Buying a pistol to commit murder is preparation. Loading the pistol and aiming it at the intended victim is an attempt.

The distinction often depends on whether the accused has done all that is necessary on their part to commit the offence, and only some external factor prevents its completion, or whether the act is merely preparatory and the accused could still change their mind (locus poenitentiae).

Attempt to Murder (Section 108 BNS)

Attempt to murder is a specific and serious offence dealt with under the BNS.

Provision:

Section 108 of the BNS defines Attempt to Murder (similar to Section 307 of the IPC). It states: "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished..."

Ingredients:

Mens Rea of Murder: The accused must have the intention or knowledge required for committing murder.
Act Done: The accused must do an act towards the commission of murder.
Circumstances: The act is done under such circumstances that if death were caused by that act, it would amount to murder.
Failure: The act does not actually cause death.

Example: Shooting at someone with intent to kill, but missing. Stabbing someone with intent to cause injury sufficient in the ordinary course of nature to cause death, but the victim survives due to timely medical intervention. Pushing someone from a height with intent to cause death, but they land on a safety net and survive.

The offence is complete when the act is done with the required intention/knowledge of murder, even if the completed offence does not occur. The BNS prescribes a punishment of imprisonment which may extend to ten years and fine, with enhanced penalties if hurt is caused during the attempt or if the offender is a life convict.

Attempt to commit suicide (Section 221 BNS)

Attempt to commit suicide was an offence under the IPC, but its treatment has evolved with legal and social changes. The BNS includes a provision related to attempt to commit suicide, reflecting a shift in approach.

Previous Position (IPC):

Section 309 of the IPC criminalized Attempt to commit suicide, punishable with simple imprisonment up to one year or fine or both. This provision was controversial and debated for punishing individuals in distress.

Mental Healthcare Act, 2017:

Section 115 of the Mental Healthcare Act, 2017, presumes that any person who attempts to commit suicide is suffering from severe stress and provides that such person shall not be tried and punished under Section 309 of the IPC. It mandates the government to provide care, treatment, and rehabilitation to such persons.

Provision in BNS (Section 221):

Section 221 of the BNS deals with Attempt to commit suicide. The exact wording and implications in BNS need careful examination based on the final text. However, based on legislative intent and comments during the enactment process, it appears that while the act itself is retained in the code, it might be primarily aimed at specific circumstances or abetment, rather than the individual in distress.

Section 221 states: "Whoever does any act with the intention of causing his own death, and does any act towards the commission of the offence, shall be punished..." However, a proviso is crucial: "Provided that any attempt by a person to commit suicide shall be deemed to have been committed under severe stress and shall not be subject to punishment."

This structure mirrors the Mental Healthcare Act, 2017, by retaining the formal description of the act but exempting individuals under severe stress from punishment. This effectively decriminalizes attempt to suicide for individuals in distress while possibly allowing for prosecution in specific, rare circumstances (e.g., suicide attempt as a form of protest or coercion causing public nuisance, though this is debated). The focus remains on providing support rather than punishment.

Abetment of Suicide:

Note that Abetment of Suicide (Sections 106 and 107 BNS, similar to Sections 305 and 306 IPC) remains a serious offence, punishing those who instigate or aid another person to commit suicide.

The treatment of attempt to suicide in BNS reflects a public health approach, focusing on providing care rather than criminal penalties for individuals in mental distress.

Punishment for Attempt to Commit Offences

The BNS provides for the punishment of attempts to commit various offences. The punishment for attempt is generally less severe than for the completed offence.

General Provision (Section 48 BNS):

Section 48 of the BNS (similar to Section 511 of the IPC) provides a general provision for the punishment of attempting to commit offences not specifically covered elsewhere.

Section 48 states: "Whoever attempts to commit an offence punishable by this Sanhita 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 Sanhita 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 longest term, and with such fine as is provided for the offence, or with both:..."

Explanation:

This section applies to attempts to commit offences punishable with imprisonment for life or imprisonment.
It is a residual provision; it applies only where no express provision for the punishment of such attempt is made elsewhere in the BNS (e.g., attempted murder has an express provision in Section 108).
The punishment is up to one-half of the longest term of imprisonment provided for the completed offence, and with fine as provided for the offence, or both.

Example: Attempted theft (if not falling under robbery), attempted cheating (if not causing delivery of property or specific harm), attempted simple hurt. If simple hurt is punishable by imprisonment up to one year, attempt to cause simple hurt (under Section 48) could be punishable by imprisonment up to six months.

Specific Provisions:

For many serious offences, the BNS has specific sections defining and punishing attempts. In such cases, Section 48 does not apply.

Examples:

Attempt to Murder (Section 108 BNS): Punishment up to 10 years + fine (more severe than half life imprisonment).
Attempt to commit Culpable Homicide (Section 109 BNS): Punishment up to 3 years + fine (if hurt is caused, up to 7 years + fine).
Attempt to commit Robbery (Section 312 BNS): Punishment up to 7 years + fine.
Attempt to commit Dacoity (Section 314 BNS): Punishment up to 7 years + fine.
Attempt to commit Theft (Section 302 BNS): While Section 302 defines theft, attempt to commit theft might fall under the general provision (Section 48) if not part of robbery, or could have a specific section if defined separately.

The existence of specific provisions for attempts of serious crimes highlights their gravity, often warranting punishments that are not simply half of the maximum for the completed offence. Section 48 serves as a crucial general clause to ensure that attempts of all other imprisonable offences are also criminalized and punished.