Distinction between Preparation and Attempt PDF

Preview

Summary

Distinction between Preparation and Attempt...

Description

The distinction between Preparation and Attempt The line between preparation and attempt is razor thin. While the IPC does not define either, it is critical to distinguish between them because attempting is a crime but preparing is not. Preparation and Attempt are both physical manifestations of criminal intent. However, the attempt is much more important than the preparation for the actual occurrence of the crime. There is a chance that the person will abandon his plan while in Preparation, but attempting leaves no room for that. For example, keeping a pistol in one's pocket and looking for an enemy to kill is preparation because one can abandon the plan at any time, whereas pulling out the piston and pulling the trigger is an attempt because it leaves the pistol unattended. Thus, in general, preparation entails gathering material, resources, and planning for committing an act, whereas attempt denotes a direct movement towards commission following preparation. Normally, the following elements are required to constitute an attempt:

1. mens rea to commit the crime 2. ant act which constitutes the actus reus of a criminal attempt 3. failure in accomplishment

Lord Blackburn identified a key difference between the two in the case of R vs Cheesman 1862. He claims that if the actual transaction has begun, which would have resulted in the crime if it had not been interrupted, there has clearly been an attempt to commit the crime. This is not, however, the only criterion for determining an attempt. The four tests listed below can help you tell the difference between the two -

Last Step Test or Proximity Rule According to this test, anything less than the final step is preparation, not an attempt. This is because the person can abandon the crime as long as there is a step left to complete it. For example, A obtains poison in order to kill B and mixes it with food that B is supposed to consume. But he hasn't yet given B the food. As a result, it is still in the planning stages. The last step is completed when he keeps the food from where B eats every day on the table, and it becomes an attempt. In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms

that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for an attempt to make a false documents under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete. In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.

Indispensable Element Test or Theory of Impossibility As per this test, all of the indispensable elements must be present to equal attempt. For example, a person has a gun to kill but he forgot the bullets. In this case, it would not be an attempt. Further, he goes to the place where the victim should be but if not then he is not guilty of an attempt under this test. In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt. This test has generated a lot of controversies ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of an attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there. However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the handbag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.

But For the Interruption Test If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.

Unequivocality Test or On the job Theory If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a...