Understanding Attempt to Commit an Offence Under Bharatiya Nyaya Sanhita – All you need to know about it.

Introduction

An attempt to commit an offence provides a crucial link between a mere intention and the successful perpetration of a criminal act. According to Indian criminal law, an individual attempting to commit an offence can even be prosecuted as if he has committed that offence. Under the newly enacted Bharatiya Nyaya Sanhita (BNS), 2023, an attempt to commit an offence is codified under Chapter IV, Section 62. 

It is drafted with utmost precision assuring justice by walking the fine line between intent and action. This article discusses the concept, legal framework and judicial interpretations of attempt under BNS, 2023 by giving real-life examples, in order to provide a holistic understanding about its relevance in criminal jurisprudence.

What is an Attempt?

The BNS, 2023 does not specifically define the term “attempt” anywhere in the act but, it addresses offences relating to attempt in various ways. However, in legal terms, attempt refers to an act done by a person with the intent to commit a crime but is unable to accomplish it due to external intervention. It is also an offence as a person commits a direct act towards committing a crime. Key elements of an Attempt are as follows: –

1. Intention to commit a crime- The person must have a clear intent to carry out a crime.
2. Execution of an act towards crime- The person must engage in an act that brings them close to committing the offence.
3. Failure to complete the crime- The act remains incomplete, either due to external intervention or circumstances beyond their control.

Illustrations of Attempt-

• A person aims a gun at another with the intent to kill but is stopped before pulling the trigger. This is preparation and not an attempt.
• A person pulls the trigger but the bullet misses. This constitutes an attempt to murder, as the act of firing the gun brings the accused dangerously close to committing the crime.

Legal Provisions Relating to Attempt under BNS, 2023:

Under the Indian Penal Code (IPC), 1860 – previous major substantive criminal law for India, attempt was scattered in multiple sections, often leading in difficulty to properly understand its essence. However, the Bharatiya Nyaya Sanhita (BNS), 2023 consolidates and provides a well-structured approach to the provision for attempt under Chapter IV, specifically in Section 62.

Section – 62 of BNS: This provision states that if a person attempts to commit an offence that is punishable under Bharatiya Nyaya Sanhita (BNS), 2023, either with imprisonment for life or any other imprisonment, they will still be punished even if the crime was not completed. To be considered an attempt, the person must have taken an actual step towards committing the crime, not just mere thoughts and plans. The law ensures that such individuals are still held accountable. 

What happens if BNS, 2023 does not specify a separate punishment for attempting a particular crime? In that case, this general rule applies:

• The person can be punished with half of the maximum punishment for the completed offence.
• They may also be fined if the original offence includes a fine as a penalty.
• In some cases, both imprisonment and a fine can be imposed.

Other provisions under BNS, 2023 relating to attempts –  

Section 109 of BNS

It defines the punishment for attempting to commit murder, which may extend to 10 years of imprisonment and a fine.

Explanation of Section – 109(1):

This provision deals with situations where a person does something so dangerous and intentional that if their actions had actually caused someone’s death, they would have been guilty of murder. Even if no one dies, the law still holds them accountable because their act was serious enough to potentially cause death.

It provides that:

• If someone does something with the intention or knowledge that it could kill a person, and if death had actually occurred, it would have been considered murder—then they can still be punished, even if no one dies. 
• The punishment for such an act can go up to 10 years of imprisonment and may also include a fine.

Illustration- 

Imagine a person fires a gun aiming at someone’s head, but by chance, the bullet misses.

• If the person had died, it would have been murder.
• Since the bullet missed, the act is still highly dangerous and intentional, so the law punishes the offender even though no death occurred—with imprisonment for up to 10 years and a fine.
• If the bullet hits the person and injures them, the punishment can be life imprisonment because the act has now caused harm.

Explanation of Section – 109(2):

This provision deals with cases where a person who is already serving a life sentence commits another serious offence that results in hurt (injury) to someone. Since they are already serving the harshest punishment short of death, the law imposes an even stricter penalty for their actions.

It provides that: 

• If a person who is already sentenced to life imprisonment commits a crime under the earlier mentioned provision (an act so dangerous that it could amount to murder if death occurred) and someone gets hurt, then the punishment becomes even more severe. 
• In such a case, the offender can be sentenced to death or given life imprisonment again—but this time, life imprisonment means they will remain in prison for the rest of their natural life without any possibility of release.

Illustration-

Imagine a person is already serving life imprisonment for committing murder. While in prison, they attack another inmate with a sharp weapon, causing severe injury.

• Since they are already serving a life sentence, there is no further ordinary imprisonment that can be given.
• If the injury they caused was serious enough, they could be sentenced to death or given another life imprisonment, which means they will never be released from prison under any circumstances.

Explanation of Section – 110:

This provision deals with situations where a person does something dangerous and intentional, but their actions are not as severe as murder. If their act had caused death, it would be considered culpable homicide not amounting to murder—which means they are still responsible for causing harm, but the act doesn’t fully meet the criteria for murder.

It provides that:

• If someone commits an act with intention or knowledge that it could cause death, but it falls short of murder, they can be punished with up to 3 years of imprisonment, or they may have to pay a fine or both. 
• However, if the same act actually injures someone, the punishment becomes more severe. 
• In that case, they can face up to 7 years of imprisonment, or afine, or both.

Illustration- 

Suppose a person gets into a fight and hits someone on the head with a heavy rod.

• If the victim dies, the case might be treated as culpable homicide not amounting to murder (depending on circumstances). 
• If the victim survives but is injured, the attacker can be punished more severely—up to 7 years in prison.

Attempt v. Preparation – The Thin Line:

In criminal law, it is important to distinguish between attempt and preparation because their consequences are vastly different. While preparation is the preliminary stage wherein a person schemes or prepares to commit a crime, an attempt is when he actually takes a step towards its commission. The law does not punish preparation in general but attempts, as these present an imminent threat to society. But where is the line to be drawn? That is where things get complicated.

Understanding Preparation – The Initial Steps:

Preparation refers to everything a person does before actively committing the crime. It includes planning, gathering weapons, making arrangements and setting up conditions needed for the offence. However, at this stage the crime is still not close to happening and it is just an intention taking shape.

Examples of Preparation:

• Buying poison to kill someone but not using it yet.
• Purchasing weapons with the intent to commit robbery but not carrying them to the crime scene.
• Writing a fake will to commit fraud but not yet presenting it as real.

Understanding Attempt – When Action Begins:

An attempt is when a person goes beyond preparation and takes a direct step towards committing the crime, but for some reason the crime remains incomplete. The law punishes attempts because at this stage the danger to society is real and if left unchecked, the crime might succeed.

Examples of Attempt:

• A person buys poison and actually puts it in someone’s food, but the victim does not eat it.
• A thief breaks into a house with a weapon but is caught before he can rob anything.
• Someone fires a gun at a person but misses.

Importance of Distinction-

The law punishes attempts but not always preparation because mere planning does not necessarily harm anyone. If preparation were punishable in all cases, many innocent people could be convicted just for thinking or planning something bad even if they changed their minds later. However, once a person takes a step that directly leads to a crime, the legal system intervenes before it is too late.

Judicial Interpretations of Attempt in India:

The Supreme Court of India has played a pivotal role in defining what constitutes an attempt. Several landmark judgments provide clarity:

1. Abhayanand Mishra v. State of Bihar (24 April, 1961): In this case, Abhayanand Mishra wanted to get admitted to a university for the Master of Arts (M.A.) course. However, he submitted false documents and forged certificates to prove that he was eligible. 

Before he could actually secure admission the authorities discovered the fraud and stopped the process. The Supreme Court ruled that Mishra had done more than just preparation as he had taken direct steps to deceive the university. Since the fraud was only stopped because the authorities caught him, it was considered an attempt to cheat under the law.

2. Koppula Venkata Rao v. State of Andhra Pradesh (10 March 2004): In this case, Koppula Venkata Rao was accused of attempting to commit rape. The prosecution claimed that he had made advances towards the victim to commit the crime, but he was stopped before he could complete the act. The Supreme Court ruled that an act must be proximate to the offence and not just a distant preparatory step.
3. State of Maharashtra v. Mohd. Yakub S/O Abdul Hamid & Ors. (4 March, 1980): In this case, Mohd. Yakub and others were involved in smuggling activities. They had arranged for contraband goods to be smuggled out of India. The accused had loaded the smuggled goods onto a truck and brought them to a specific place near the port, ready for transportation. 

Before they could complete the smuggling, law enforcement officers caught them red-handed. The Supreme Court ruled that since the accused had already taken a direct step towards smuggling, they were dangerously close to completing the crime. This was not mere preparation but an unequivocal overt act, meaning an action that clearly shows the accused was about to commit the offence.

Conclusion:

The attempt to commit an offence under the Bharatiya Nyaya Sanhita, 2023, is a reasonable balance between punishing bad intentions and protecting society from harm. The criminal justice system, by punishing attempts ensures that those who make tangible steps towards committing a crime are not left unpunished, even though the crime is not completed. Simultaneously, it makes a sharp distinction between preparation and attempt so that no one can be unjustly punished for harboring criminal intent without a direct step toward execution.

About Author

This article is written by Alshan Husain Shah, a second-year LL.B. student at K.G.K. (P.G.) College, Moradabad (U.P.), and it explains clearly about Attempt to Commit an Offence Under Bharatiya Nyaya Sanhita.