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Try: An Incohate crime?

Attempt: An Incohate crime? written by Prapti Kothari student of Institute of Law, Nirma university



The complainant was divorced by mutual consent and then lived in the house of her father. The appellant was the complainant’s neighbor and had good terms with the father of the complainant. The appellant, who was a married man with a family, used to give the complainant gifts and indulged in sexual intercourse with a promise to marry the complainant. The complainant became pregnant and begged him to fulfill the vow, but he relented and said she should take medication to make a miscarriage happen.
One night, to trigger miscarriage, the appellant gave her a paper packet containing copper-sulphate powder and a half-full bottle of red-colored liquid. The complainant spat it out by finding the powder salty and powerful and did not even try the liquid. The next night the accused came back and found that she hadn’t either taken the powder or the liquid, he pressured her to take them, but she declined. The Appellant then forced the complainant to consume the same thing. However, the complainant began to scream and so the appellant fled.


Whether the appellant was liable for the ‘attempt’ to cause a miscarriage to the complainant?


The appellant contended that the complainant, was an accomplice herself and that her evidence was not substantiated, that she wanted to get the uterus empty in order to destroy the fetus but she was afraid of the ramifications of the process to herself.
Referring to medical evidence, copper sulphate has no direct effect on the uterus and is not detrimental unless ingested in extremely large amounts, and thus, neither the liquid nor the powder is capable of inducing a miscarriage, the appellant cannot be accused of any attempt to do so. The appellant administered a harmless drug to induce miscarriage as the evidence stands. Thus, it would not be an act of inducing a miscarriage in the execution of the offense.

Moreover, in R v. McPherson (1857) the accused was vindicated from the attempt because of the uncertainty of an incident due to external interference. It was merely a preparation-case and should not be considered as an ‘attempt.’ In R. V. Cheeseman (1862) it was held that preparation and attempt were two distinct stages and external interruption doesn’t absolve. In addition, in Empress v. Mt. Rupsir Panku (1895), it was held that Act to the commission of offense should be an act that is strong enough to engender the intended outcome. Unless the act isn’t having the required potent, then it’s not enough to be an attempt.


The complainant argued that the appellant attempted to cause miscarriage with an intent to destroy the fetus by advertently bringing to her abortion-inducing substances, the copper- sulphate powder, and the red-colored liquid to the complainant and forcing her to consume them to commit the crime of miscarriage, which forms a part of series of acts which would have constituted its actual commission if he were not interrupted by the complainant. Had the appellant not been prevented, it would have resulted in the full consummation of the act attempted. Consequently, the intention followed by the preparation, followed by any act toward the commission of the offense “is sufficient” to constitute an attempt of the offense.
The conclusion in the cases of McPherson (1857) and Collins (1864) 33 LJM C 177 is completely incompatible with the examples in Section 511. One who assumes that a certain state of fact exists commits or omits an act in which, if that state in fact existed, it would be an effort to commit an offense, tries to commit that crime, even if its execution in the manner suggested was unlikely at the time of the act or omission because of the non-existence of that state of fact would be enough to constitute as an attempt of the offense.


This case is an eye-opener because in common parlance the word ‘attempt’ is being used to describe an act of trying to do something. If we go with this definition, then this case would be an open and shut case. However, in legal terms, under section 511 of the Indian Penal Code, the word attempt is not merely trying to do something but it shall be preceded by intention and preparation without any interruption. Here not only the commission of the offense is important, but that commission should be without any interruption or intervention.
Moreover, Intention alone or Mens Rea alone, or intention followed by preparation, is not sufficient to constitute an attempt. Yet, intention followed by preparation followed by any “act done towards the execution of the offense” is sufficient. Readers should also throw light upon the word “sufficient” which played a very important role in this case. Had the quantity of the powder or liquid not been insufficient, the appellant would not have been acquitted. As the quantities of the liquid or powder were inadequate and harmless, unless ingested in extremely large amounts, they were incapable of rendering a miscarriage which discharged the accused from conviction.
Any act is indictable as an attempt to commit an offense when it is a move towards the implementation of the criminal intent and is an act that is actively linked to, or closely related to, the commission of the crime that the person doing so is contemplating. There must be an intentional act knowingly committed against the execution of some offense, one or more of a series of acts that would establish the crime if the perpetrator were not stopped by interference or physical failure, or unable to accomplish his criminal intent for any other reason.
In this case, the focal point was whether the actions depended upon constituting the attempt, were carried out with the intention of committing the complete offense and as one or more of a series of acts or omissions constituting some of the essential steps to complete the offense, although falling short of completion by the intercession of causes outside the accused’s volition, or because the accused of his own free will for some reason other than mere dubiousness has refrained from completing his criminal purpose.


On the facts mentioned in this case, the appellant cannot be charged with an attempt to cause a miscarriage for the reasons already given, in law.
What the appellant did was not an “act to commit the offense” of inducing a miscarriage. Without being harmful, either the liquid or the powder, they could not have induced a miscarriage. The failure of the appellant was not due to a cause which was independent of itself. The conviction and sentence were therefore set aside, and the appellant was acquitted.

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