Study Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
A man buys arsenic. He tells the shopkeeper it is for rats. He intends to poison his wife.
He has a guilty mind and he has taken a step. He has committed no offence.
Move the facts forward. He stirs the arsenic into her tea and carries the cup towards her. She is called away and never drinks it. Now he is guilty of attempted murder, and the punishment runs to half the term for murder.
Somewhere between the chemist's counter and the teacup, the law crossed a line. Locating that line is the whole of the law of attempt — and it is examined, in one form or another, in almost every criminal law paper set in India.
What this article covers.
The three inchoate offences — attempt, abetment and criminal conspiracy — as they stand under the Bharatiya Nyaya Sanhita, 2023, with the old IPC numbering alongside throughout. These are the provisions that punish a person before the intended crime is complete, and they are among the most heavily examined heads in the entire syllabus.
The Renumbering, First
The whole of this area moved. Get the new numbers into your head before the doctrine:
| Provision | IPC, 1860 | BNS, 2023 |
|---|---|---|
| Abetment of a thing | s 107 | s 45 |
| Abettor | s 108 | s 46 |
| Abetment in India of an offence outside India | s 108A | s 47 |
| Abetment outside India of an offence in India | No equivalent | s 48 — NEW |
| Abettor present when offence committed | s 114 | s 54 |
| Criminal conspiracy (definition + punishment) | ss 120A, 120B | s 61(1), 61(2) |
| Punishment for attempt | s 511 | s 62 |
| Attempt to murder | s 307 | s 109 |
| Attempt to commit culpable homicide | s 308 | s 110 |
| Abetment of suicide | s 306 | s 108 |
| Attempt to commit suicide | s 309 | Not carried over |
Two traps in that table.
Attempted suicide is no longer an offence. IPC s 309 was not carried into the BNS. Do not answer that it is "now BNS 226" — s 226 is a different and narrower offence: attempting suicide to compel or restrain a public servant from discharging his duty. And note the collision at s 108: IPC 108 was "abettor", but BNS 108 is abetment of suicide. Citing "section 108" without naming the statute now says two opposite things.
Part One — Attempt
The Four Stages
A premeditated crime passes through four successive stages:
- Intention to commit the offence
- Preparation — devising or arranging the means
- Attempt — a direct movement towards commission
- Commission of the offence itself
The law punishes the third and fourth. It does not punish the first two.
Why intention alone escapes. Nobody can look into the breast of another to prove an evil design, and the person retains the freedom to abandon it. A principle therefore evolved that only intentions manifested in an overt act are punishable — captured in the maxim cogitationis poenam nemo patitur: no one suffers punishment for his thoughts.
Why preparation ordinarily escapes. Two reasons, one theoretical and one practical. Theoretically, it is nearly impossible to prove that the preparation was directed at a particular unlawful act. Practically, a man who buys arsenic or a gun may perfectly well say he bought it for rats or for wild animals — and if preparation were punishable, innocent people would face prosecution merely for owning things.
But five preparations are punishable. Learn these.
Where the offence is grave enough that the law will not wait, preparation itself is criminalised: (1) preparation to wage war against the Government of India (IPC 122 → BNS 149); (2) preparation to commit depredation on the territories of a friendly power (IPC 126 → BNS 154); (3) making, selling or possessing instruments for counterfeiting coin or Government stamps (IPC 233–235, 257 → BNS 181); (4) possessing counterfeit coin or Government stamps (IPC 242, 243, 259 → BNS 180); and (5) making preparation to commit dacoity (IPC 399 → BNS 310(4)). The rationale is to nip grave crime in the bud — and these acts carry almost no innocent explanation.
The Four Ways the Code Treats Attempt
Neither the IPC nor the BNS defines "attempt". Both deal with it in four distinct ways:
- Same section, same punishment as the completed offence — offences against the State, abetting mutiny, offences against public tranquillity and public justice, and offences relating to extortion, robbery and dacoity.
- Separate section, separate punishment — attempt to murder (BNS 109), attempt to commit culpable homicide (BNS 110), attempt to commit robbery (BNS 309(5)).
- Attempt to commit suicide — formerly IPC 309, now omitted.
- The residual provision — BNS 62 (IPC 511), which catches every attempt for which no express punishment is provided, and awards up to one-half of the longest term prescribed for the offence attempted.
The Definition, and Its Three Essentials
In Koppula Venkat Rao v State of Andhra Pradesh the Supreme Court adopted the classic formulation: an attempt is an act or series of acts which leads inevitably to the commission of the offence, unless something which the doer neither foresaw nor intended happens to prevent it. It is an act done in part-execution of a criminal design, amounting to more than mere preparation, falling short of actual consummation, and possessing — except for the failure to consummate — all the elements of the substantive crime.
The prosecution must therefore prove three things:
- Mens rea — an intention to commit the particular offence;
- An act more than merely preparatory, taken towards its commission; and
- Failure to complete it, for reasons beyond the doer's control.
Sir James Stephen's phrase remains the most quotable: an attempt is an act forming part of a series which would constitute the actual commission of the offence if it were not interrupted. Put shortest: an intended but unfinished crime.
Where Does Preparation End?
This is the question every examiner is really asking. The leading authority is Abhayanand Mishra v State of Bihar.
The accused applied to Patna University to sit an MA examination as a private candidate, supporting his application with forged certificates of a BA degree and of teaching experience. The University issued him an admission card before discovering the fraud. He argued he had never gone beyond preparation.
The Supreme Court convicted him of attempting to cheat and laid down the test: a person commits an attempt when (i) he intends to commit that offence, and (ii) having made preparations and with that intention, he does an act towards its commission — and that act need not be the penultimate act, but must be an act during the course of committing the offence.
Preparation ended when he prepared the application. He entered the realm of attempt the moment he despatched it.
The principle was reaffirmed in Sudhir Kumar Mukherjee v State of West Bengal, where an employee colluding with a supplier to show a false delivery had obtained a clerk's initials on a challan but had not yet signed it himself. The missing signature was essential for payment. Even so, the Court held the stage of preparation had been crossed.
The Three Tests
1. The proximity rule. The act must be sufficiently proximate to the intended offence, not remotely connected with it. The classic illustration is R v Taylor — a man found striking a match behind a haystack, who extinguished it on being seen, was guilty of attempted arson; had he merely bought the matchbox, he would not have been. Contrast R v Raisat Ali, where the accused ordered and corrected proofs of forms imitating a company's, but was arrested before affixing the seal or signature: not guilty, because the transaction that would have ended in forgery had not yet commenced.
The point most notes miss: Mohammad Yakub contains two different proximity tests.
In State of Maharashtra v Mohammad Yakub — silver ingots unloaded near a creek with the sound of a sea-craft audible — the Supreme Court restored the conviction through two separate concurring judgments advancing different criteria. Chinnappa Reddy J held that "the measure of proximity is not in relation to time and action but in relation to intention" — the act must reveal, with reasonable certainty, an intention to commit the particular offence. Sarkaria J applied physical proximity: the overt act need not be penultimate, but must be reasonably proximate to the consummation of the offence; here every step but loading onto the craft had been taken. Cite both, and say which you prefer. Sarkaria J's approach is generally regarded as the more logical, since proximity ordinarily refers to the sequence of acts leading to the offence — but an answer that notices the split scores far above one that treats the case as a single test.
2. The doctrine of locus poenitentiae. Literally, the opportunity to repent. If the steps taken still leave room for a reasonable expectation that the accused might, of his own accord, desist, he remains at preparation. In Malkiat Singh v State of Punjab a truck carrying 75 bags of paddy was intercepted at Samalkha barrier, fourteen miles short of the Punjab–Delhi border. The Supreme Court set aside the conviction: the appellants might have changed their minds at any point before the boundary, and the acts already done would then have been completely harmless.
Malkiat Singh has been confined to its own facts. This is the single most valuable point in this article.
In Mohammad Yakub the Supreme Court held that the test propounded in Malkiat Singh is not a general rule and must be understood with reference to the facts of that case. The reason is decisive: otherwise, in every case where an accused is interrupted at the last minute, he could always say that he was about to change his mind. An answer that states locus poenitentiae as a free-standing general principle is stating the law as it was, not as it is. Note too the limit built into the doctrine itself — a person who desists only because he is discovered, or because a police officer is at his elbow, gets no benefit from it. He has had no time for repentance.
3. The equivocality test. An act amounts to an attempt only if it unequivocally indicates the intention to accomplish the criminal object. The steps taken must speak for themselves. If what is done points beyond reasonable doubt to the end towards which it is directed, it is an attempt; otherwise it is preparation. The Rajasthan High Court applied this reasoning in State v Parasmal.
Attempting the Impossible
Can there be an attempt to do something that cannot be done? Yes — and the answer sits in the two illustrations to BNS 62 (IPC 511), not in the section itself:
- (a) A breaks open a box to steal jewels and finds it empty. Guilty.
- (b) A thrusts his hand into Z's pocket to pick it. The pocket is empty. Guilty.
The impossibility may be legal (the act done is, unknown to him, not a crime), physical (it cannot be done by any means he adopts), or through ineptitude (his means are inadequate). By necessary implication the illustrations establish that a person is liable if, intending the offence, he has done everything within his reach, and is frustrated by a circumstance he did not know of.
There is no Indian judgment examining these illustrations closely. The most useful authority is Munah Binti Ali v Public Prosecutor, a Malayan decision on an identically worded provision, where a woman who attempted to abort a woman who was not in fact pregnant was convicted — her attempt was frustrated by the non-existence of a circumstance she believed to exist, placing her in exactly the position of the would-be pickpocket. Compare the English position after the Criminal Attempts Act 1981 and R v Shivpuri, where a defendant who believed he was dealing in prohibited drugs was convicted although the substance was harmless.
The working test: was the accused "on the job"? A man trying to break open a steel safe with wholly inadequate tools is still guilty of attempted theft. But if he was never on the job at all, he is not liable however impossible his object.
Part Two — Abetment (BNS ss 45 to 60)
An abettor does not commit the offence himself. He commands, urges, encourages, induces, requests or helps another to bring it about.
The Three Forms — Section 45
A person abets the doing of a thing who:
- Instigates any person to do that thing; or
- Engages in a conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
- Intentionally aids, by any act or illegal omission, the doing of that thing.
Note the drafting. The section speaks of abetting a "thing", not an "offence". That is deliberate — it makes the abettor liable in some cases even where the person abetted is wholly innocent. Abetment of an offence is dealt with separately, in BNS s 46 (IPC 108).
Explanation 1 extends instigation to wilful misrepresentation and to wilful concealment of a material fact one is bound to disclose. Explanation 2 provides that whoever, before or at the time of the act, does anything to facilitate its commission is said to aid it.
Mens Rea Is Essential
The essence of abetment is active and intentional assistance. All three forms — instigating, conspiring, intentionally aiding — presuppose that the abettor knowingly encourages or assists. A person who lends support without knowing, or having reason to believe, that the act aided is criminal does not intentionally aid and is not an abettor.
Two propositions follow, both frequently examined:
- In Barendra Kumar Ghosh v King Emperor the Privy Council held that presence at the scene amounts to abetment if it is intended to encourage the commission of the offence.
- Mere proof that the crime could not have been committed without the alleged abettor's interposition is not enough.
The exception. Where the substantive offence requires no mens rea — strict liability offences under public welfare or social legislation — then no mens rea is required for the abetment either.
Instigation
To instigate is to provoke, incite, urge on, or bring about by persuasion. The law prescribes no particular form: instigation may be by words or by conduct. But there must be a close causal connection between the instigation and the act done, and the instigation must relate to the thing actually done, not to something merely likely to be done.
The negative propositions matter as much as the positive:
- Mere association with the perpetrator is not abetment.
- A silent spectator who takes no active part is not an abettor.
- A word uttered in a quarrel, in anger or on the spur of the moment, without the intent to incite, is not instigation.
- Advice alone does not necessarily amount to instigation; general advice is far too vague. It must be shown that the advice actively suggested or stimulated the offence.
Approval as instigation. Passive approval will not ordinarily do, but there are situations where it has been held sufficient — classically, members of a funeral procession who applauded a widow's resolve by shouting in praise as she immolated herself were held to have instigated her, their participation having encouraged the act.
Instigation in dowry death and abetment of suicide. In Protima Dutta v State of West Bengal a mother-in-law's sustained cruel conduct, though never amounting to express solicitation, was held to have actively suggested and stimulated the deceased to take her own life, and so constituted instigation.
Part Three — Criminal Conspiracy (BNS s 61)
Glanville Williams posed the difficulty exactly: if the mere intention of one person to commit a crime is not criminal, why should the agreement of two people to do it be criminal? The only answer, he suggested, is that the law is fearful of numbers, and treats the act of agreeing as so decisive a step that it justifies its own sanction.
A Short History Worth Knowing
The Code originally made conspiracy punishable only in two ways — as a form of abetment, and within specific offences such as being a thug or belonging to a gang of dacoits. In both, an overt act was required.
English law moved in Mulcahy v R (1868), where the House of Lords held that conspiracy consists not in the intention of two or more but in the agreement of two or more to do an unlawful act, or a lawful act by unlawful means — "the very plot is an act in itself". India followed in stages: s 121A was inserted in 1870 for conspiracies to wage war, and then the Criminal Law Amendment Act, 1913 added Chapter V-A (ss 120A and 120B), making conspiracy a substantive offence and assimilating Indian law to English law.
Ingredients of Section 61
- Two or more persons;
- An agreement between them;
- To do, or cause to be done, (a) an illegal act, or (b) a legal act by illegal means.
The proviso creates two classes. Students reverse this constantly.
Where the agreement is to commit an offence, the mere agreement is enough. No overt act need be proved. But where the agreement is to do some other illegal act, or a legal act by illegal means, some act besides the agreement must be done by one or more parties in pursuance of it. The distinction turns on the width of the word "illegal", defined in BNS s 2(15) (IPC s 43) to cover everything that is an offence, or is prohibited by law, or furnishes a ground for civil action. So "illegal" is far wider than "offence" — and it is precisely in that wider space that the overt act is required.
The Propositions to Reproduce
Drawing on Mohd Khalid v State of West Bengal, Devender Pal Singh v State (NCT of Delhi) and Mohd Hussain Umar Kochra v K S Dalip Singhji:
- Agreement is the gist of the offence. It is the rock bottom of conspiracy; the essence is the unlawful combination. The offence is complete when the combination is framed, whether or not anything is done in pursuance of it.
- The agreement may be express, implied, or partly each. It requires unity of object or purpose, not physical unity.
- Mere knowledge or discussion is not conspiracy. Neither an evil wish nor a coincidence of blameworthy intentions makes people parties to an agreement. Those who share information but drop out cannot be roped in on knowledge alone.
- Conspirators need not know each other, nor every detail, nor participate at every stage. There may be unity of object with plurality of means, some unknown to the others.
- Conspirators may join late or leave early — "conspirators may appear and disappear from stage to stage" — and all are treated as conspirators.
- If the object has been achieved, the acquittal of co-accused does not prevent conviction of the remainder, even if only one is left.
- A single general conspiracy requires a common design and common intention. Where different groups cooperate towards separate ends without privity, each combination is a separate conspiracy.
- Similarity of method is not conspiracy. Where persons act in the same manner but independently, no conspiracy is established.
The Distinction You Will Be Asked to Draw
| Abetment by conspiracy — s 45 Secondly | Criminal conspiracy — s 61 | |
|---|---|---|
| Overt act | Always required — an act or illegal omission must take place in pursuance | Not required where the agreement is to commit an offence |
| Nature | A mode of abetting | A substantive offence in itself |
| Scope | Abetment of a "thing" | Illegal act, or legal act by illegal means |
The Fifteen-Line Revision
| Point |
|---|
| 1. Four stages: intention, preparation, attempt, commission. Law punishes the last two. |
| 2. Five preparations are punishable — waging war, depredation, counterfeiting instruments, counterfeit possession, dacoity. |
| 3. "Attempt" is undefined in both Codes. BNS 62 is residual, and awards up to half the maximum. |
| 4. Abhayanand Mishra: the act need not be penultimate. |
| 5. Three tests: proximity, locus poenitentiae, equivocality. |
| 6. Mohammad Yakub has two proximity tests — Chinnappa Reddy J (intention), Sarkaria J (physical). |
| 7. Malkiat Singh is confined to its facts by Mohammad Yakub. |
| 8. No locus poenitentiae for a man who desists only because he is caught. |
| 9. Impossibility is no defence — illustrations (a) and (b) to BNS 62; Munah Binti Ali, Shivpuri. |
| 10. Abetment has three forms: instigation, conspiracy, intentional aid (BNS 45). |
| 11. Section 45 abets a "thing", not an offence. |
| 12. Silent spectator, mere association, angry words — not instigation. Presence intended to encourage is (Barendra Kumar Ghosh). |
| 13. No mens rea in the substantive offence means none needed for its abetment. |
| 14. Conspiracy: agreement is the gist; complete when the combination is framed. |
| 15. Overt act needed only where the object is not an offence — the proviso to s 61(1). |
The three offences share one idea. Criminal law does not wait for harm. It intervenes at the point where a guilty mind has produced enough conduct to be worth punishing — a step past preparation, a word of encouragement, an agreement between two. Where exactly that point lies is what the examiner is testing.
Related on Lawizard
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- Culpable Homicide and Murder Explained — Sections 100 to 106, BNS 2023
- Common Intention vs Common Object — Sections 3(5) and 190, BNS 2023, With Every Case You Need
- The Seven Situations Where Indian Law Lets You Kill: Private Defence Under Sections 34 to 44, BNS 2023
- IPC to BNS Section Converter — Search Any Section in Both Codes
Disclaimer: This article is a study note on attempt, abetment and criminal conspiracy under the Bharatiya Nyaya Sanhita, 2023, prepared for educational purposes for law students and candidates preparing for the AIBE, judicial services, UGC-NET and university examinations. The doctrinal framework follows the standard treatment of these topics in Indian criminal law scholarship, including PSA Pillai's Criminal Law, chapters 15 to 17; the discussion is written independently and no part of any copyrighted text is reproduced. The IPC–BNS correspondences in the tables have been checked against the enacted text of the Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023) as published on India Code; readers should nevertheless verify every section number against the bare Act before relying on it, particularly since several BNS section numbers differ from the numbering in the 2023 Bill that is still widely circulated online. Case law is summarised in outline only and judgments should be read in full. Offences committed before 1 July 2024 continue to be governed by the Indian Penal Code, 1860. This is general legal information and not legal advice. Please read our Disclaimer for more details.
