Attempt to Commit Offence

Attempt: The Crime That Almost Happened

Criminal law punishes attempts for a principled reason: a person who tries to commit a crime and fails through circumstances beyond their control — the gun misfires, the victim escapes, the alarm sounds — is not less culpable than one who succeeds. The harm intended was the same; only fortune prevented completion. Punishing attempts serves both the deterrence and retribution purposes of criminal law.

Preparation vs. Attempt: The Key Distinction

The most contested question in attempt jurisprudence is when preparation ends and attempt begins. Indian courts have developed the 'proximity' or 'last act' test: an attempt begins when the accused performs an act 'proximate' to the completed offence — so close that but for some external intervention or mischance, the offence would have been committed. Tests used: (a) Proximity test: How close was the act to completion? (b) Locus Poenitentiae: Had the accused passed the point of no return — the last point at which they could have voluntarily desisted? (c) Equivocality test: Does the act itself unequivocally point to an intention to commit the offence? All three tests produce similar results in most cases.

Impossible Attempt

A difficult sub-issue: can there be an attempt to commit an impossible act? Example: A fires a gun into what they believe is a sleeping person's body — but the person is already dead. A 'attempted' murder — but it was technically impossible to murder the corpse. Indian courts (following the English position) hold that the attempt is punishable even if completion was factually impossible — the accused's guilty intent is what matters, not whether the harm could have eventuated. Section 62 BNS covers this by focusing on the accused's act and intent, not on the feasibility of the completed offence.

“The attempted criminal is just as dangerous as the successful one — they were stopped by circumstance, not by change of heart. To acquit them because they failed would send the wrong signal: that only success is punished. Attempt liability closes this gap.”