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
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?
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.
