Stages of Crime and Inchoate Crimes: Abetment, Conspiracy, Attempt

1. Intention: the mental decision to commit the crime. Not punishable (no actus reus; thought alone is never an offence).

2. Preparation: arranging the means (buying a weapon, collecting poison). Generally not punishable, because the act is equivocal and the person may desist. Exceptions where preparation itself is punishable: preparing to wage war against the Government (BNS s.149; IPC s.122), preparation to commit dacoity (BNS s.310(4)-(5); IPC ss.399-402), making or possessing instruments for counterfeiting coin, currency notes or stamps, and possessing explosives or arms under special laws.

3. Attempt: a direct movement towards commission after preparation is complete. Punishable (BNS s.62 and offence-specific sections).

4. Commission (accomplishment): the offence is completed; punishment is for the full offence. If the final result is not achieved only because of external factors, the conduct is an attempt.

Remember: the line between preparation and attempt is a question of fact; the Indian courts focus on whether the accused has done an act that is a proximate step to the offence.

A. Definition (s.45; IPC s.107)

A person abets the doing of a thing who:

1. Instigates any person to do that thing;

2. Engages with one or more persons in a conspiracy for the doing of it, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or

3. Intentionally aids, by any act or illegal omission, the doing of that thing.

Key explanations: (a) wilful misrepresentation or wilful concealment of a material fact which one is bound to disclose, by which a person voluntarily causes or procures a thing to be done, is instigation; (b) a person who, either before or at the time of the offence, does anything to facilitate its commission aids the doing of it.

• Instigation means to goad, urge, provoke, incite or encourage. It needs active suggestion or stimulation, usually positive acts; mere acquiescence or passive consent is not instigation. Cases: Amritlal Hazra v. Emperor (1915); Ramesh Kumar v. State of Chhattisgarh (2001) (an angry outburst such as "go and die" may be a mere remark without mens rea); Sanju @ Sanjay Singh Sengar v. State of M.P. (2002) (a casual "go and die" remark in a quarrel did not amount to instigation of suicide); Chitresh Kumar Chopra v. State (Govt. of NCT Delhi) (2009) (instigation requires a mens rea to bring about the act); M. Mohan v. State (2011); Amalendu Pal v. State of W.B. (2010); Ude Singh v. State of Haryana (2019).

• Conspiracy as a mode of abetment needs an act or illegal omission in pursuance of the agreement (unlike s.61 criminal conspiracy, which needs agreement only for an offence).

• Aid must be intentional, and it must be given before or during the offence (help after the offence is not abetment, it may be an accessory-after-the-fact offence such as harbouring).

• The offence abetted need not be committed (s.46, Explanation 2; IPC s.108, Explanation 2). The person abetted need not be capable of committing the offence or have the same guilty mind (Explanation 4 and 5), and abetment of abetment is also abetment (Explanation 3).

• Abettor in India for offence outside India (BNS s.47; IPC s.108A) and abettor outside India for offence in India (BNS s.48, new) are also covered.

B. Punishment provisions (memorise by number)

• Abetment of suicide: BNS s.108 (IPC s.306): imprisonment up to 10 years and fine; BNS s.107 (IPC s.305) covers abetment of suicide of a child or a person of unsound mind (the heavier punishment includes death in IPC 305; check the BNS text for the exact wording). Attempt to commit suicide (IPC s.309) is no longer an offence in general; BNS s.226 punishes only an attempt to commit suicide to compel or restrain exercise of lawful power by a public servant (community service or simple imprisonment up to one year).

• Related cases: Gian Kaur v. State of Punjab (1996) (right to life does not include right to die; abetment of suicide remains punishable; s.309 upheld at that time, overruling P. Rathinam (1994)); Aruna Shanbaug v. Union of India (2011) and Common Cause v. Union of India (2018) (passive euthanasia and living wills allowed); the Mental Healthcare Act, 2017, s.115 presumes severe stress in a person attempting suicide.

• Dowry death (BNS s.80; IPC s.304B) involves a presumption in the Evidence law (BSA s.118; Evidence Act s.113B); abetment of suicide of a married woman within seven years raises a presumption (BSA s.117; Evidence Act s.113A).

• Definition (s.61(1); IPC s.120A): 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, the agreement is called a criminal conspiracy. Proviso: no agreement except to commit an offence amounts to criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance of it. In other words, an agreement to commit an offence needs no overt act; an agreement to do a non-offence illegal act needs an overt act.

• Punishment (s.61(2); IPC s.120B): (a) conspiracy to commit an offence punishable with death, life imprisonment or rigorous imprisonment for two years or more is punished as if the conspirator had abetted the offence (and no express provision exists); (b) any other criminal conspiracy: imprisonment up to six months, or fine, or both.

• Nature: a separate, substantive and continuing offence; liability does not depend on achieving the object. The essence is agreement and the agreement is rarely proved by direct evidence; it is inferred from circumstances.

• Number of parties: at least two; if all except one are acquitted, the remaining one cannot be convicted of conspiracy (Topan Das v. State of Bombay, 1955), unless others are unknown or not tried.

• Evidence: the acts and statements of a conspirator in reference to the common design are admissible against all conspirators (BSA s.8; Evidence Act s.10).

• Landmark cases: Kehar Singh v. State (Delhi Administration) (1988) (Indira Gandhi assassination; conspiracy is hatched in secrecy and proved by circumstantial evidence); State (NCT of Delhi) v. Navjot Sandhu (2005) (Parliament attack; Afzal Guru); State v. Nalini (1999) (Rajiv Gandhi assassination; conspiracy as a continuing offence; chain and wheel conspiracy); Ajay Agarwal v. Union of India (1993) (a conspirator need not know all details; conspiracy is continuing); Mohd. Khalid v. State of W.B. (2002); Yakub Abdul Razak Memon v. State of Maharashtra (2013) (1993 Bombay blasts); Firozuddin Basheeruddin v. State of Kerala (2001) (each conspirator need not know the other; the common design links them).

• Types: wheel conspiracy (one hub linked to many separate spokes) and chain conspiracy (each link is connected to the next). Rim of the wheel requires each spoke to share the common design.

• Definition: the BNS and IPC do not define attempt. It is an act done with intent to commit an offence, going beyond mere preparation, but falling short of completion.

• General provision (s.62; IPC s.511): whoever attempts to commit an offence punishable with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission, shall (if no express provision) be punished with up to one-half of the longest term of imprisonment provided for the offence, or with the prescribed fine, or both (death-punishable offences are within the ambit of life-imprisonment terms). Illustrations: (a) pulling out an empty box in an attempt to steal jewels (the conduct is attempted theft, even though nothing was inside); (b) breaking open a box to steal jewels.

• Specific attempts with their own punishment: attempt to murder (BNS s.109; IPC s.307), attempt to commit culpable homicide (BNS s.110; IPC s.308), attempt to commit suicide to compel a public servant (BNS s.226), attempt to commit robbery when armed with a deadly weapon (IPC s.398), attempt to commit rape (punished through the sexual-offence sections, e.g., assault to outrage modesty s.74).

• Tests of attempt:

  • Last act test (R v. Eagleton, 1855): the accused must have done the last act within his power.

  • Proximity test: the act must be so near to the completed offence as to be proximate; adopted by Indian courts. Abhayanand Mishra v. State of Bihar (1961): the applicant, who submitted a false application to the university for admission to an examination claiming a degree, was guilty of attempt to cheat once the application was sent; preparation ended and attempt began.

  • Equivocality test: the act is clearly unambiguous as to its purpose.

  • Unequivocal act / substantial step (modern approach).

• Preparation versus attempt in cases: Malkiat Singh v. State of Punjab (1970) (carrying paddy to a place near Delhi from Punjab, with Delhi limits not yet crossed, was only preparation); State of Maharashtra v. Mohd. Yakub (1980) (silver being taken in a truck to the sea-shore for export: the proximate stage; attempt to export); Aman Kumar v. State of Haryana (2004) (attempt in context of a direct movement toward commission); Sudhir Kumar Mukherjee v. State of W.B. (1973) (attempt to murder); Om Prakash v. State of Punjab (1961) (attempt to murder: the act must be done with intention or knowledge so as to cause death).

• Impossible attempt: factual impossibility is not a defence under the Indian illustrations (the empty box example); the English House of Lords reached the same conclusion in R v. Shivpuri (1986), overruling Anderton v. Ryan. Legal impossibility (the act is not an offence at all) is not an attempt.

• Attempt to murder (BNS s.109(1)): imprisonment up to 10 years and fine; if hurt is caused, up to life imprisonment (or up to ten years). A life convict who attempts murder and causes hurt can be punished with death or imprisonment for life (s.109(2) in BNS, IPC s.307 second part). The accused needs the intention or knowledge that would make the act murder if death resulted; the actual injury need not be fatal and no hurt is needed.