An oddity in sentencing discretion for attempts to commit rape?

The reform of India's rape law in the wake of the Verma Committee Report led to an overhauling of how the core of the offence was defined. It also led to a recognition of fresh kinds of aggravated forms of the rape offence depending on various circumstances, with varying punishment schemes in place to properly sentence offenders for such crimes. 

One such example is Section 376(3) of the Indian Penal Code 1860, which states that:

"Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine ..." [Emphasis supplied]

So, there is a mandatory minimum of twenty years in prison for committing rape on a woman below the age of sixteen years, and the maximum possible sentence is that of life imprisonment.

The insertion of a mandatory minimum punishment in any kind of offence has been the subject of intense debate and scrutiny across the globe. What I am interested in here is not that debate, but the peculiar set of consequences that clauses such as Section 376(3) have when considered from the prism of attempts to commit crimes.

Section 376 does not separately punish attempts to commit rape. Therefore, resort must be had to Section 511 of the Penal Code, which states that:

"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." [Emphasis supplied]

If you are wondering how do you calculate one-half of life imprisonment, look no further than Section 57 of the Penal Code, which states that for calculating fractions of punishment, life imprisonment shall be reckoned as equivalent to imprisonment for twenty years.  

This poses an interesting quandary for cases where the allegation is an attempt to commit offences such as Section 376(3) [or, for that matter, Section 4(2) of the Protection of Children from Sexual Offences Act 2012]. Reading Section 376(3) with 511 confers the judge with discretion to convict someone for a term which may extend to one-half of twenty years, so theoretically a figure anywhere between 0 to 10 years in prison. But, because Section 376(3) carries a mandatory minimum term of twenty years imprisonment, conferring any sentence below one-half of that prescribed limit would, technically, offend that mandatory minimum. 

Effectively, then, does the judge have any discretion to award a sentence other than ten years in prison for attempts to commit the offence under Section 376(3) IPC, no matter how different they all might be? If we read Section 376(3) IPC read with the attempt clause in this manner which eliminates all possibility of sentencing discretion, then would it not fall foul of the rule laid down by the Supreme Court in Mithu [AIR 1983 SC 473] that vesting discretion with the judge is what makes sentencing just, fair and reasonable from the perspective of Articles 14 and 21 of the Constitution?

If anyone can point to more discussion on this then that will be great!

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?

Conclusion
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.

The IPC and Attempts

Try and try, till you succeed. Everyone has heard that one before, in multiple contexts. The thing is, in the criminal law we may need to alter that old cliche: try and try, but it doesn't always matter if you succeed. Consider any set of actions by persons as an attempt to do/not do something. When these attempts fit the criteria of an offence as prescribed by law, it becomes punishable as the offence. So, my successful attempt to kill someone is punished as murder, for Section 300 of the Indian Penal Code 1860 [IPC] squarely covers such acts. But, an unsuccessful attempt also renders one liable under offences that specifically punish an "attempt to commit the offence". From hereon, attempt will refer to this unsuccessful commission of the offence alone. Unlike most other posts, here I won't engage with case law but only interpret the text of the IPC, to hopefully learn more about the nature of attempt liability under the Code. 

Many Possible Classifications 

The IPC doesn't separately define attempts like it does similar offences of abetment and conspiracy. Perhaps taking this, cue most commentaries don't explain attempts as a concept either. Rather, they discuss it in a piecemeal fashion wherever the word occurs in the Code. A unified understanding is helpful and raises important questions, and I'll try one here. At the broadest level, we find that in the IPC attempts may be punished either as severely as commission of the offence itself, or with a lighter sentence. Where Section 121 punishes attempts to wage war as severely as waging war itself, Section 307 imposes a lighter sentence for attempting to commit murder as against committing murder. Flowing from this, is a twofold classification where lighter sentences are imposed: there is the general punishment formula prescribed in Section 511, together with specific offences which prescribe the punishment for attempting to commit particular offences as under Section 307.

Here, one may ask why such a distinction is made in the imposition of sentence. Why should the outcome of my criminal enterprise matter in the determination of my punishment only for some cases but not others? At first, you may assume the class of offences is key. It isn't, because this equal punishment can be found in offences against the state, against justice, and against the body. Further, of the several offences against the body, only three pertaining to extortion carry equal punishments for attempts. This, and the absence of any clear theory underlining punishment standards under the IPC, make intelligent guesses difficult on the point.

Scope of Attempts and the Basic Text

Section 511 punishes attempts generally, but neither does it only punish attempts nor does it punish attempts to commit all offences. It also punishes causing the commission of an offence. Further, only attempts to commit offences punishable with imprisonment are covered; those only attracting fines are excluded. In Section 511, attempts themselves are not defined but only the punishment for such conduct is detailed. This scheme is followed in the other, more specific, offences of attempt. On a closer look though, there is some amount of understanding we can derive. The Section reads: "whoever attempts to commit an offence ... and in committing such an attempt does any act towards the commission of the offence". This means that only attempts to commit offences together with an act towards such commission make one's conduct punishable. Section 307 is similar: it specifies that any act done with the specified mental element would qualify for liability.

The specific usage of "any" act means the possible scope behind punishing attempts is rather broad. This also carries the possibility of rendering attempt liability quite vague and framing charges rather discretionary. How so? Well, its notorious how difficult providing proof of intention/knowledge can be in crime. The best evidence is usually conduct, and here we find the possible scope of conduct to consider being stretched to the widest possible spectrum. This creates situations where a conviction depends solely on the judge and little else, making the law highly arbitrary. One judge may view my going around the same house at night looking at a window as an attempt to commit house trespass; another may think of me as just another curious bystander, while yet another may look at the hoodie I was wearing and find enough reason to convict on attempted robbery. Such arbitrariness is clearly unwelcome in an area where certainty is of utmost importance.

Doing away with the Preparation Riddle?
Upon a simple reading of the text of Section 511, it is clear that there is a separation between the attempt and the act. It seems to imply that an attempt is complete in itself without an overt act being involved, since the latter is separately mentioned to make the attempt punishable. Why is this interesting? Because traditionally, we always understand attempts as including at least some act. Otherwise, where do we draw the line between attempts and mere preparation? Maybe, one might argue, the IPC sought to do away with the entire attempt-preparation separation and instead provided a simpler rule - anything done might possibly attract liability, depending on how the magistrate views things. Given the immense discretion vested in magistrates throughout the Code, such a reading is not implausible.

Conclusions
A bare reading of the IPC brings forth quite a few interesting issues on perhaps the trickiest area in criminal law. To prevent the death by boredom induced by a painfully long post, I limited myself to only a few of these. Two other issues that I think connect well with what is discussed here are that of an accused having a locus poenitentiae, and the possibility of committing impossible attempts. In another post, hopefully, one of these will be discussed at greater length.