Understanding Attempt and Theories of Attempt Under BNS (Bharatiya Nyaya Sanhita)

Attempt to Commit a Crime:

An attempt involves making a direct move towards committing an offense after all necessary preparations have been made. The law considers an attempt to be nearly as serious as the completed offense, recognizing the intent and actions taken towards committing the crime.

‘Attempt’ under the Bharatiya Nyaya Sanhita, 2023 (BNS):

While the BNS does not provide a specific definition of ‘attempt,’ it addresses attempts in various ways:

1. Offenses Against the State:

Crimes such as waging or attempting to wage war against the Government of India are covered under this category. The punishment for attempting these offenses is the same as for the completed offense. This reflects the serious nature of such crimes and the intention behind the attempt.

2. Separate Punishment for Attempt:

The BNS distinguishes between the attempt to commit a crime and the commission of the crime itself. Each has distinct punishments. For example:
- Attempt to Commit Murder: Punishable under Section 109 of BNS.
- Attempt to Commit Culpable Homicide Not Amounting to Murder: Punishable under Section 110 of BNS.
This distinction ensures that attempts are penalized appropriately, reflecting the seriousness of the intent and actions involved.

3. Attempted Suicide:

Under the Indian Penal Code (IPC), Section 309 made attempted suicide a punishable offense. However, this provision has been omitted in the BNS, reflecting a more modern approach to mental health and recognizing that individuals who attempt suicide need help rather than punishment.

4. Section 62 of BNS – General Provision for Attempt:

Section 62 serves as a catch-all provision for attempts. It states that if no specific punishment is provided for an attempt, the individual will be punished under this section. This ensures that all attempts to commit crimes are covered by the law, even if not specifically mentioned elsewhere.

Principles Governing Attempt:

Three main theories guide the determination of what constitutes an attempt:

1. Proximity Theory or Test:

Definition: This theory focuses on the closeness of the act to the completion of the substantive offense. Courts evaluate whether the accused’s actions are in close proximity to committing the crime. The nearer the act is to the intended crime, the stronger the case for it being an attempt.
Example: In a theft case, if a person forcefully breaks open a door intending to steal but is caught before taking anything, breaking the door is considered an attempt due to its proximity to the intended theft.
Importance: This theory helps determine the point at which preparatory actions turn into an attempt.

2. Doctrine of Locus Paenitentiae:

Definition: This doctrine applies when someone voluntarily abandons the attempt before completing the offense. If the accused genuinely changes their mind and stops the criminal activity, the act may be viewed as mere preparation, not an attempt.
Example: If someone plans to rob a bank but changes their mind upon arrival and leaves, the act may be considered mere preparation because of the abandonment.
Importance: This principle recognizes that individuals can have a change of heart and abandon criminal plans, thus distinguishing between those who persist and those who desist.

3. Impossibility Theory or Test:

Definition: This theory evaluates whether an act qualifies as an attempt despite facing external hindrances or the impossibility of completing the intended crime. The focus is on the intent and actions of the accused rather than the success or failure of the attempt.
Example: If a person tries to pickpocket someone unaware that the pocket is empty, the act is still an attempt because it shows a direct move towards committing the crime, even though the crime was impossible due to external factors.
Importance: This theory ensures that attempts are punishable even if the crime could not be completed due to unforeseen circumstances.

Case Laws on the Offense of Attempt:

1. R. v. Raisat Ali (1881):

Background: This case used the proximity rule to determine attempt.
Observation: The Calcutta High Court stated that an act can be seen as an attempt only when it is close to completing the substantive offense.
Importance: The ruling illustrated that actions not sufficiently close to the offense do not constitute an attempt.

2. Abhyanand Misra v. State of Bihar (1961):

Background: This case highlighted the thin line between preparation and attempt.
Observation: The court stated that attempt begins when preparations are complete, and the individual starts an act with the intent to commit the offense.
Importance: The ruling emphasized analyzing the accused’s actions in relation to their intent, providing clarity on when an act becomes an attempt.

3. Malkiat Singh v. State of Punjab (1969):

Background: The Supreme Court differentiated between preparation and attempt in this case.
Observation: The court explained that preparation involves arranging means, while an attempt is a direct move towards committing the crime after preparations.
Importance: The court applied the proximity rule and the doctrine of locus paenitentiae, stressing that acts should be sufficiently close to the offense for an attempt conviction.

Frequently Asked Questions (FAQs) on Attempt as an Offense Under Bharatiya Nyaya Sanhita, 2023 (BNS):

Q1: Can you provide examples illustrating the principles governing attempt?

Proximity Rule: Breaking a door in a theft case is deemed an attempt.
Doctrine of Locus Paenitentiae: Voluntary abandonment before committing the offense is considered mere preparation.
Impossibility Test: An attempt is evaluated based on intent despite external hindrances.

Q2: Is attempted suicide punishable under Bharatiya Nyaya Sanhita, 2023 (BNS)?

No, the provision for punishing attempted suicide under Section 309 of the IPC has been omitted in BNS, reflecting a more progressive approach to mental health.

Q3: What principles guide the determination of attempt under BNS?

The three principles are the Proximity Rule, the Doctrine of Locus Paenitentiae, and the Impossibility Test, which assess how close an act is to completing the substantive offense and the circumstances under which an attempt can be considered.

Q4: What is the definition of ‘attempt’ under the Bharatiya Nyaya Sanhita, 2023 (BNS)?

The BNS doesn’t provide a specific definition for ‘attempt’ but addresses attempts in various contexts, prescribing punishments similar to those for completed offenses.

Q5: How does BNS handle offenses against the state and attempted offenses?

Offenses like attempting to wage war against the Government of India are punishable under offenses against the state, with attempts carrying punishments equal to the completed crimes. BNS also has separate sections with distinct punishments for attempts.

Q6: What is the general provision for attempt under Section 62 of BNS?

Section 62 serves as a general clause for attempts, stating that if no specific punishment is mentioned, the individual is punished under Section 62 of BNS.

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