Authored By: Jaspreet Kaur Grewal
B.A.LL.B | LL.M | NTA UGC NET
CONCEPT OF INCHOATE OFFENCES
Inchoate has come from the latin word –‘Inchoare’ means begun. It literally means undeveloped or unfinished. Inchoate offence means the step towards the commission of an act. It simply means the offences which are incomplete. It signifies the acts which are just close to the commission of the offence.
CATEGORIZATION OF INCHOATE OFFENCES
The inchoate offence addressed in IPC, 1860 are Common law offences of attempt, criminal conspiracy and abetment. Attempt and Abetment always attaches with a crime and criminal conspiracy always attaches to a crime or an unlawful activity.
CONCEPT OF ABETMENT
Abetment literally means inciting the other person to commit an illegal ac or omission. What conduct constitutes Abetment may or may not be an offence. Definition of abetment is complete when Section 107IPC is read with Section 108IPC, 1860. The person, who can not commit a crime, may however command, urge, encourage, induce or help third person to bring it about and thereby be guilty of the offence of Abetment. Abetment involves two essential components of a crime i.e. Actus Reus and Mens Rea. The person who incites the other person to commit that act is known as Abettor and the one who is incited is known as Abetted. In Corpus Juris Secundum, the meaning of the word “abet” has been defined as:
To aid; to assist; or to give aid; to command; to procure, or to consul; to countenance; to encourage, counsel, induce, or assist, to encourage or to set another on to commit.
Ingredients of Abetment and Penal Provisions in relation to it:
Section 107 of the IPC, 1860 provides the essential ingredients of Abetment as following:
- There must be minimum two or more than two persons. One person cannot abet himself.
- They must abet that means act of one person falls under any of the following three circumstances in relation to other person
- One person instigates other person or
- They must engages other person into conspiracy or
- One person directly aids commission of the offence by other person.
One person directly aids commission of the offence by other person.
That the act abetted must be an offence or would amount to an offence if committed by a competent person (Section 108IPC’1860).
EXPLANATION OF THE ABOVE INGREDIENTS:
1. There must be two persons:
It means that there must be at least two persons or a group of persons as one person cannot abet himself. This is clear from the wording of section 107IPC, 1860.
2. They must abet:
Actus reus of the abettor must be in nature of instigation or conspiracy or direct aiding any other person.
a) What is meant by instigation?
It is not defined under the Penal Code. It simply, means to incite, to provoke, to consul, to solicit the other person to do or not to do any act.
b) Abetment by conspiracy:
Conspiracy as such is not defined. If we talk about its meaning in constraint of abetment, it constitutes following elements-
- That abettor has brought other person into a conspiracy. Thus abettor must be an active agent who has brought other person into conspiracy.
- Conspiracy involves agreement between two or more than two persons which was initiated by the abettor. Agreement means when two persons agree upon same thing in same sense. For conspiracy by agreement, it is not necessary that all conspirators must know each other or all conspirators must know all the details of that agreement. What is required is that all the conspirators’ fall within the general framework of that agreement.
- Mere agreement alone will not constitute abetment by conspiracy. Further requirement is some overt act must have taken place by any one of the member of that conspiracy towards execution of that agreement.
- The agreement so concluded must be to commit an offence. If it’s not an offence it would not constitute Abetment by conspiracy.
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Law Commission in its 42nd report has recommended that abetment by conspiracy be excluded from definition of Abetment because a specific offence of criminal conspiracy is already there in the Code.
c) Abetment by direct aiding:
This term again is not defined in the IPC, 1860. It means any actus reus on part of abettor which is done by him to facilitate the commission of an offence. Thus in all the cases, act of abettor must take place either before commission or at the time of commission of an offence but in all cases it must be prior to commission of offence in point of time.
Penal provisions regarding it are:
- Section 107 to Section 120 of the IPC, 1860 deals with Abetment and punishments for committing the offence of abetment.
- Section 108IPC, 1860 further provides that if the act abetted in India but is committed outside India, it will fall within the definition of Abetment.
Example: A abets somebody in USA to commit murder there, if murder is committed person would be liable in India.
Section 111 and 113 of IPC, 1860 further expand the scope of offence of abetment. Section 111 of IPC:
Where one act is abetted by accused but difference act is done then, the abettor shall be liable for act actually done provided the following two conditions are there –
- That the act done must be in consequence of that abetment.
- The act done was probable consequences of the act abetted.
Example: A instigates B to commit Robbery in the house of X. A has given revolver to X for the purpose of committing Robbery. When X is committing Robbery, resistance takes place and X kills somebody to meet that resistance. A will be liable for abetment of murder.
Section 112 of the IPC, 1860:
It further provides in cases covered by section 111, abettor shall be liable for both act abetted as well as act done by the abettor.
Section 113 of the IPC, 1860:
It provides where one act is abetted with the intention of causing particular consequences or effects but different consequences are produced by doing that act provided two conditions are there:
The act was done as a consequence of abettor.
That effect caused or harmful consequences caused were such which were likely to be caused to knowledge of the abettor,then the person would be liable for the consequences actually caused.
Section 114 of the IPC, 1860:
It provides for principle of vicarious liability. Where one person has abetted the commission of an offence and in pursuance to that abetment, an offence is committed then if the abettor is present at the place where offence is committed, then abettor be liable for offence committed.
Some decisions of Supreme Court provides that an act of abetment and act of committing the offence in consequence to that abetment must be in different transaction to make it fall under Section 114of the IPC, 1860.
Second opinion is its not necessary that the act of abetment and act of commission of an offence be two different transactions.
The view is more in consonance with the objective of S.114 of IPC, 1860.
CERTAIN EXPLANATIONS RELATING TO OFFENCE OF ABETMENT
- Since Abetment is an offence, so abetment of abetment is also an offence.
Example: A instigates B to instigate C to commit an illegal act.
That for abetment it’s not necessary that desired consequences must have been produced or any consequences must have been produced.
Where abetment is of illegal omission then it’s not necessary that abettor must also be bound to do that act.
Deceased poured kerosene on own self and burned herself. Her husband did nothing to save her and was prosecuted for abetment of murder. High Court acquitted him that there was no legal duty upon him to save his wife.
CONCEPT OF ATTEMPT
Haugh J. described Attempt as “an act done by the accused with specific intent to commit a particular crime. It’s an intentional direct act towards commission of an offence after preparatory stage. J. Chhinappa Reddy defined Attempt as:
- There must be an intention to commit particular offence.
- Some act must have been done which would necessarily have to be done towards commission of that offence.
- Such act must be proximate to the intended result.
Definition of Attempt under Criminal Attempts Act 1981(UK)
If with intention to commit an offence, a person does an act which is more than mere preparation to commission of that offence, it is an attempt.
PRINCIPLES SEPARATING ATTEMPT FROM PREPARATION
It constitutes that actus reus of the accused is close to the desired result. Whether it is proximate depends upon relevant factors.
Accused was caught with truck loaded with silver near Bombay Sea coast. He was prosecuted for attempt to smuggle silver out of India under FERA. High court acquitted him applying the harm principle but Supreme Court convicted him applying the proximate principle.
It talks about change of mind of the accused at time when he was prevented to proceed further and decides to go back and retreat from that situation then-
- If the act is harmless, it is preparation.
- If the act is harmful, it constitutes attempt.
Fault based principle:
Person is held liable for attempt on the basis of his guilty intention. So why he has failed in his act is immaterial, especially in cases of impossible attempts.
Penultimate act principle:
This principle means the last act towards commission of the act.
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POSITION OF ATTEMPT IN IPC, 1860
There is no specific definition of attempt in IPC, 1860. But it is provided under IPC in following three ways:
- Where no distinction is made between attempt and principle offence like Sedition, waging war against government.
- Specific Attempts like Attempt to Murder, Attempt to Culpable Homicide, Attempt to commit suicide.
- All other offences which are not covered by 1st two categories.
POSITION OF IMPOSSIBLE ATTEMPTS IN INDIA
Impossible Attempt means an attempt to commit an offence which remains incomplete. These can also be termed as an “imaginary crimes”. If the act of the person who is committing an offence is devoid of the ingredients of Attempt to commit an offence, then his act is considered as an Impossible Attempt. Neither any Judicial Precedent nor there is any Statute providing about the liability of the accused in case of Impossible Attempts. There is no provision in relation to it which would uniformly regulate the punishment for all the offences of Impossible Attempts. But two illustrations have been enumerated under Section 511 of the Indian Penal Code, 1860 which relate to these kinds of offences. The two illustrations provide liability in case of impossible attempts of property offences only. These illustrations suggest us about the determining factor in such cases is the mental element i.e. mens rea. So it can be easily construed from this conclusion that in human body offences also the determining factor in case of impossible attempt to such offences is the evilness of mind of the accused.
Example: ‘A’ is a married man. He goes for second marriage and completes 6 steps towards ceremony. He would be liable for attempt to bigamy if he already intended not to complete all the ceremonies of marriage. So his liability depends upon evilness of his mind.
Categories of Impossible attempts under IPC, 1860
Purely factual impossibility:
In this case, person would be liable for the impossible attempt although he was not able to reach at the intended results.
Example: A fire with a gun which is defective. He would be liable under this category.
- Purely legal impossibility: person would not be liable if his actus reus does not constitute an offence.
- Mixed question of factual and legal impossibility: Liability in this case, depends upon the nature of the offence and the likely harmful consequences from such an act.
IMPOSSIBLE ATTEMPT UNDER ENGLISH CRIMINAL LAW
Similar position existed in UK regarding attempt offence as in India. So, legislation regarding it was made i.e. Criminal Attempts Act, 1981 by the British Parliament to end the scope of conflicting decisions regarding attempt cases. The principle enunciated in this Act was that whatever the person wrongly perceives, if it’s true then if he is guilty of that offence, he shall be made liable for attempt in case of impossible attempt.
Thus, under English law any kind of impossible attempt whether legal or factual or mixed will not condone the liability of person from attempt to commit that offence. What decides the liability is the “guilty mind” of the accused and whether it was possible to produce intended result is immaterial.
Such explanation is also required under Section 511 of IPC, 1860.
Besides impossible attempts, few specific attempts are also provided under IPC, 1860. Such as Attempt to Murder (Section- 307), to culpable homicide (Section 308), Attempt to commit suicide (Section 309).
ATTEMPT TO MURDER:
Section 307 of the IPC, 1860 provides for the offence of Attempt to Murder. Following requirements must be fulfilled to constitute the offence of Attempt to Murder:
- Gravity of the offence depends upon intention of the accused to cause death. Along with intention various other factors are considered like nature of the weapon used, injury caused, medical opinion etc.
- Accused should have actually acted to cause the death of other person.
- His act must have reached beyond the preparatory stage.
Accused shot a person from nearby quarters causing injuries on the abdomen and left arm. It was held that from these circumstances, the knowledge that the injury caused by him would result in death could be imputed to the accused. The accused was held liable and convicted under Section 307 of the IPC, 1860.
Accused made his wife starve for many days which lead to deteriorating conditions of his wife’s life. Accused was held liable by the court stating that accused starved her to accelerate her end, though it was not the penultimate act, which if effective, would cause death.
ATTEMPT TO CULPABLE HOMICIDE (SECTION 308, IPC):
If the person does any act with intention or knowledge and with that act he causes death of the other, he would be guilty of culpable homicide not amounting to murder.
A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of Culpable Homicide not amounting to murder. A has committed this offence.
ATTEMPT TO COMMIT SUICIDE:
There has been a long time debate whether to decriminalise it or not. There are types of approaches regarding it:
- If the person is victim of the circumstances, then he should not be treated as an offender because he needs care and protection, counselling and not the punishment giving punishment in such cases would aggravate those circumstances.
- It its decriminalised then people could misuse that provision.
Constituting components of Section 309 IPC, 1860:
- Accused must have formed an intention to end his life.
- He should have taken any step towards it.
- It should be more than mere preparation or he should have reached beyond preparatory stage.
It is deliberate act of the accused to cease his life. If any person is forced to do so due to any illegal act of the others then it does not remain the deliberate act and the person would be guilty under Section 309.
Constitutional validity of Section 309 IPC, 1860:
Section 309 of the IPC was declared as unconstitutional and an irrational provision and violative of Article 21 of the Constitution of India.
P. Rathinam dictum was reversed and a SC constitutional bench upheld the constitutional validity of Section 309, IPC and indicated that it did not violate Article 14, 19 and 21 of the Constitution.
The essential requirement to kill oneself is absent in hunger strike. It’s done for improvement, advancement or amelioration of some situation. Thus, only in cases where accused intends to preserve to the end, refuses all nourishment and reaches such a stage that there is imminent danger of death, only he can be held guilty under section 309 of the IPC, 1860.
The nomenclature inchoate offence is not appropriate to describe these offences. Its the offence which was ultimate object of the accused that was incomplete not these offences. It includes attempt , abetment and criminal conspiracy as inchoate offences.
5th Law Commission of India has expressed its dissatisfaction regarding Attempt law in India and section 511 of the IPC, 1860. It suggested some substantive and structural changes in
- Definition of attempt.
- Deletion of section 511 of the IPC, 1860.
- Insertion of new chapter as chapter V b in relation to it.
14th Law Commission dissented to make these reforms in IPC, 1860.
1 Kartar Singh Vs. State of Punjab 994 CrLJ 3139 SC,para62
2 Raj Kumar Vs. State AIR 1983 HC.
3 State of Maharashtra Vs. Mohd. Yakub 1980SC.
4 R Vs. Shivpuri 1986 HL
5 Liyakat Mian Vs. State of Bihar AIR 973 SC 807.
6 Om Prakash Vs. State of Punjab AIR 1961 SC 1782.
7 P Rathinam Vs. union of India AIR 1994 SC 1844
8 Gian Kaur Vs. State of Punjab AIR 1996 SC 946
Authored By: Jaspreet Kaur Grewal
B.A.LL.B | LL.M | NTA UGC NET