There are several stages in the commission of an offence. When an offence has crossed some of these stages but has not reached its fulfilment as a criminal act, it is called an incomplete or inchoate act. Since this act upon its completion is categorised as an offence, such an incomplete act becomes an inchoate offence. The stages involved in the commission of a criminal act are the formation of an intention to commit the crime, preparation to commit the crime, an attempt to commit the crime followed by the actual commission of the crime. These stages attract different penalties in law.
The difference between an attempt and intent or preparation is highlighted in the case of R v Eagleton (1855), “The mere intention to commit an offence is not criminal. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.” Hence, while preparation happens before the actual commission of a crime, an attempt crosses that line and contains in it, any act that is performed in the commission of the crime.
While a mere intent is usually not punishable in law, the Indian Penal Code contains specific provisions to punish the preparation of serious offences. Albeit, preparation is only punishable in these rare instances such as preparing to wage war against the Government of India is punishable under section 122 of the Indian Penal Code. Preparation to plunder/attack any powers in alliance with the government of India is punishable under Section 126 of the Indian Penal Code. It is interesting to note that most of the instances when preparation is punishable in law, it is for an offence against the state.
An attempt is punishable in law in most instances. Sometimes an attempt is placed equivalent to the commission of an offence in law, such as sedition, which is punishable under 124A of the Indian Penal Code. In such instances, the offence is so grave and serious that an attempt is placed equivalent to the commission. Section 511 of the Indian Penal Code further provides that when a person attempts to commit such an offence which is punishable by imprisonment, then the attempt of such an offense shall be punished with half of the term which the commission of the offence warrants when there is no explicit punishment for the attempt mentioned elsewhere in the act.
This act provides that punishment for attempting an offence should be proportionate with the punishment which the actual offence carries. It is important to note that this section only extends to cover such offences which are punishable with imprisonment and not those which incur fines. Hence, the gravity of the crime also plays an important role so far as attempts are concerned.
An attempt can be defined as “an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted” An attempt has both the actus reus as well as a mens rea. The only thing which prevents a crime from occurring is the fact that the end result is not obtained. Hence, an attempt is made up of three elements: The intention to commit a crime, an act towards its commission, and the failure to commit it due to reasons outside the control of the offender. The law commission also attempted to defined attempt in the Indian Penal Code by replacing section 511 with section 120C, according to which,
“A person attempts to commit an offence punishable by the code, when- (a) he, with the intention or knowledge requisite for committing it, does any act towards its commission; (b) the act so done is closely connected with, and proximate to, the commission of the offence; and (c) the act fails in its object because of facts not known to him or because of circumstances beyond his control.”
This definition is exhaustive and covers the definition of an attempt well. However, it is yet to be introduced into the actual code. For example, in the case of R v White (1910), A man attempted to kill his mother by poisoning her tea, however, she died of a heart attack before drinking the tea. Even though he did not cause her death, he was held to be liable for attempting to murder his mother. There was conduct on his part which made his act sufficient to be interpreted as murder.
When attempts to commit offences are rendered impossible by circumstances which would result in such an attempt being futile and incapable of ever resulting in the actual occurrence of the intended crime, they are known as impossible offences. This impossibility is of three types, it could either be a physical impossibility, a legal impossibility, or an impossibility arising from a lack of proper aptitude in an offender. For example, if A intended to steal B’s jewellery, but B shows up without any jewellery, hence, it becomes physically impossible for A to steal B’s jewellery even if he had the intention, made the proper preparation and actually tried to steal his jewellery.
An example of legal impossibility is a person X, who under the impression that eating somebody else’s food is illegal, proceeds to eat Y’s popcorn anyway. However, in the country where they reside, eating other people’s food is perfectly legal. In this case, even though X ate Y’s popcorn knowing it was illegal, it will not be an attempt due to being a legal impossibility. An example of ineptitude impossibility would be if a person V attempts to set W’s house on fire but fails to adequately light the fire, resulting in an impossibility.
Criminal conspiracy is defined in section 120A of the Indian Penal Code,
“When two or more persons agree to do, or cause to be done- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]”
The elements for a criminal conspiracy to occur are two or more people to be involved in the conspiracy. The involved parties agree to do or cause to be done, an act which is either illegal in itself, or a legal act using illegal ways, or any act which is done according to a conspiracy. Section 120B of the Indian penal code lays down the punishment for a criminal conspiracy. According to this section, when a conspiracy occurs for the commission of such offences which are punishable with rigorous imprisonment of 2 years or more and death, shall be punished as if they were abetments to the same. For all other conspiracies, the punishment is contained in the second clause of the section, as imprisonment up to 6 months or fine.