Wednesday, July 8, 2015

Section 511 and Attempting the Impossible

Can I murder someone by firing at her using an unloaded gun? Certainly not. But would that action still count as an attempt to murder someone? Similarly, my firing at a block of wood thinking its my rival cannot lead to my conviction for murder. However, would it not still count as an attempt to murder her? And finally, my smuggling drugs in my suitcase would certainly be an offence. But would my smuggling of tea leaves, thinking they were drugs, be an attempt to smuggle contraband? Any consistent account of the law on attempts has to provide answers to these situations, for they occur more commonly than one might think. Does the Indian Penal Code [IPC] provide us with any answers to liability for such seemingly impossible attempts? Continuing from the last post, nothing but the text of the Act will be considered here.

Section 511 and the Illustrations
If you pick up the IPC and read Section 511, you might ask why am I writing this post. Section 511, recall, is the general provision criminalising attempts to commit offences under the Code. Like many provisions in the IPC this also contains illustrations to help explain the application of the text. Given the amount of interpretive scope possible, a few more (and diverse) illustrations would have helped. For instance, how about an illustration to help determine whether actually any act would help foist liability for attempts? What we have are two illustrations that try and address rather similar situations:

a. A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

b. A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

Impossible attempts clearly covered right? Not really.

Unresolved Issues Galore
If you recall the set of examples at the start of this post and place them in these illustrations, do you think each of them would involve liability? It might help to consider the following points

1. The illustrations follow the syntax of the section and reveal the difficulties involved with such a formula. A "makes an attempt" to commit an offence [theft/assault], and "does any act [breaks box/thrusts hand] towards commission of such attempt." The illustration infers the act that was towards the picking of said pocket. But how can we infer the particular mental element involved by only considering just a set of acts/omissions? Especially when these might connote several offences: assault/theft/criminal force in this case.

2. The illustration assumes an act/omission can be described in one way only. But that need not be the case. The scenario is considered from the viewpoint of A. But what if we adopted the viewpoint of an objective observer. So, A is not just thrusting his hand into a pocket, but A is thrusting his hand into an empty pocket. Does the law on attempts always adopt one of the two standpoints?  

3. Both situations involve accused persons who did everything in their capacity to commit the offence involved. Failure was only due to existence of circumstances beyond their knowledge and control. The illustration makes it appear A did not know of the box and the pocket being empty. Does that mean only those supposedly impossible attempts are offences where failure is occasioned due to circumstances external to the accused?

Did I manage to instill reasonable doubt?

Consider the following examples:

A makes an attempt to murder Z by firing a gun. A fails in the attempt in consequence of the gun being a replica with blank cartridges. 

A makes an attempt to poison Z by administering a foul mixture. A fails in the attempt in consequence of the mixture not being poisonous. 

Would A be guilty of an attempt under Section 511? Its very difficult to answer. The amount of trickery involved with a section as broad as Section 511 couldn't possibly be dealt with in two illustrations. I've tried to show that in fact, because of the inference heavy interpretation that these suggest, the illustrations themselves raise several issues. Today, simply looking at the text, its surely impossible to explain them all.


  1. Couple of things that came to my head when I read this (in the order of your 3 "unresolved issues"):

    1. "The illustration infers the act that was towards the picking of said pocket". Did you mean, "The illustration infers that the act was towards the picking of said pocket"? Got confused for a bit.

    You will write about this more? It's really quite scary that an act can be characterised that way. What would the police pick - the gravest crime possible? Would that then make that conception of attempt void for vagueness?

    The point on considering mental element only from the set of acts/omissions is really interesting. While mens rea and actus reus must be viewed and judged together, shouldn't mens rea also be treated independently? To understand intention purely in terms of the act seems to blur the distinction between the two.

    2. Might be slightly nitpicky - From the point of an 'objective' viewer, A is thrusting his hand into a pocket. The viewer does not know that the pocket is empty or contains something.

    3. What is the value of illustrations in interpretation? Isn't the position that it is an aid, but not conclusive. Since illustrations are present only in our old statutes (mostly crim ones, that too), I was wondering if you knew anything particular about how it is used. I would think that your conclusion/question at the end is unwarranted. Surely illustrations cannot define the scope of a section?

    1. Hey
      1. Pardon my English. You're reading is proper.
      2. So the issue about choosing offences is very interesting and although I can't promise, I'd love to write about it sometime. Attempt as void for vagueness is an interesting argument which I don't think has been raised in India at least.
      3. I don't quite follow the mens rea being considered independently aspect. Would love some clarity more on that.
      4. Well, when I say objective viewer I consider a neutral observer who has all facts before her.
      5. Illustrations are a guide, but perhaps the clearest expression of legislative intent on at least one way the section should be read. So, in some cases I do think it can lead to great weight. A good example being the illustrations to Section 114 in the Evidence Act

  2. I forge a bank Cheque...the Cheque number belongs to one account holder.the signature of another account holder.I attempt to cash the Cheque but is arrested at the stage of depositing the Cheque in the bank( Real case details)... What say- Impossible act? Can't wait to hear from you

    1. Hi SIdharth

      I think it depends on how you characterise the act (read reply above). Impossibility may arise in case of an offence of cheating itself. But I would argue that forgery is complete (so that's an offence under Sections 465, and 467). It could also be argued that 468 (forgery for purposes cheating) is now complete. The gravamen of these offences is creating false documents etc. which stands complete in your situation.