what is an "attempt" ? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control." This definition is too narrow.
What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. (vide State Of Maharashtra vs Mohd. Yakub 1980 AIR 1111)
Take for illustration "A walks towards the shop of B with a clear intention in his mind to loot it. Yet at the last minute changes his mind. This is not an attempt . However, if he enters the shop tries to loot something but finds a police patrol nearby , then drops the looted item and runs away that , will be attempt." If A has a fake currency note which he wishes to use and mixed with it are real currency note too. He goes to the shop of B with a clear intention to deceive B by passing a fake currency note. But due to a mistake he gives B a real currency note instead of a fake one. A here too is not guilty of an attempt." If a contractor who was supplying milk to a hospital was found in hospital compound with a gallon of stale milk , going in the direction of the place where cows are about to be milked , his milk-can being similar to the one in which cows were milked .It would only amount to preparation.
If W walked towards well declaring that he would jump in it and commit suicide. the well being 500 meters away , mere walking in that direction will not constitute attempt and if he is caught and subsequently prosecuted under 309 IPC it won't amount as an attempt to suicide.
As pointed out in Abhayanand Mishra v. State of Bihar - there is a distinction between 'preparation' and 'attempt'. Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
In The Queen v. Ramsarun Chowbey it was said :
"To constitute then the offence of attempt under this section (s. 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence.
In England Parke B described the characteristics of an 'attempt' in Reg. v. Eagleton as follows:-
"the mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit but acts immediately connected with it are..... "
The dictum of Parke B is considered as the locus classicus on the subject and the test of 'proximity' suggested by it has been accepted and applied by English Courts, though with occasional but audible murmur about the difficulty in determining whether an act is immediate or remote Test of last possible act disapproved : As a general principle the test of 'the last possible act before the achievement of the end' would be entirely unacceptable. If that principle be correct, a person who has cocked his gun at another and is about to pull the trigger but is prevented from doing so by the intervention of someone or something cannot be convicted of attempt to murder.
Another popular formulation of what constitutes 'attempt' is that of Stephen in his Digest of the Criminal Law where he said:
"An attempt to commit a crime is 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. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case".
Another attempt at definition was made by Professor Turner in  5 Cambridge Law Journal 230, and this was substantially reproduced in Archbald's Criminal Pleading, Evidence and Practice (36th Edn.). Archbald's reproduction was quoted with approval in Davey v. Lee and was as follows:
'........... the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime".
Editing 12th edition of Russell on Crime and 18th edition of Kenny's Outlines of Criminal Law, Professor Turner explained his modified definition as follows:
"It is therefore suggested that a practical test for the actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves clearly indicate that was the end towards which they were directed. In other words the steps taken must themselves be sufficient to show, prima facie, the offender's intention to commit the crime which he is charged with attempting. That there may be abundant other evidence to establish his mens rea (such as a confession) is irrelevant to the question of whether he had done enough to constitute the actus reus".
In Haughten v. Smith,Hailsham L. C. quoted Parke B from the Eagleton case and Lord Parker, C.J. from Davey v. Lee (supra) and proceeded to mention three propositions as emerging from the two definitions:
"(1) There is a distinction between the intention to commit a crime and an attempt to commit it........ (2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted...... (3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in Reg. v. Eagleton, as being 'proximate' to the completion of the offence in Davey v. Lee  1 Q.B. 366, 370, as being 'immediately and not merely remotely connected' with the completed offence...... "
In Director of Public Prosecutions v. Stonehouse,(1) Lord Diplock and Viscount Dilhorne, appeared to accept the 'proximity' test of Parke B, while Lord Edmund-Davies accepted the statement of Lord Hailsham as to what were the true ingredients of a criminal attempt. Whatever test was applied, it was held that the facts clearly disclosed and attempt in that case.
In Malkiat Singh & Anr v. State of Punjab, a truck which was carrying paddy, was stopped at Samalkha 32 miles from Delhi and about 15 miles from the Delhi-Punjab boundary. The question was whether the accused were attempting to export paddy from Punjab to Delhi. It was held that on the facts of the case, the offence of attempt had not been committed. Ramaswamy. J., observed:
"The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha barrier and the Delhi-Punjab boundary and not have proceeded further in their journey". (locus poenitentiae (time for repentence) )
(test propounded by the first sentence should be understood with reference to the facts of the case. The offence alleged to be contemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further, his earlier acts being completely harmless. That was what the Court meant, and the reference to 'the appellants' in the sentence where the test is propounded makes it clear that the test is propounded with reference to the particular facts of the case and not as a general rule. Otherwise, in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind.)
Leading judgment on attempt and its test :
Supreme Court of India
State Of Maharashtra vs Mohd. Yakub S/O Abdul Hamid & Ors on 4 March, 1980
The respondents were charged with the offence of attempting to smuggle out of India 43 silver ingots in violation of the Foreign Exchange Regulation Act, 1947, Imports and Exports (Control) Act, 1947 and the Customs Act, 1962.
The prosecution alleged that on the night of the occurrence the respondents carried in a truck and a jeep silver ingots some of which were concealed in a shawl, and some others hidden in saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were unloaded near the creek the sound of the engine of a mechanised sea-craft from the side of the creek was heard by the Customs officials and that therefore they were guilty of attempting to smuggle silver out of India.
The respondents pleaded that they were not aware of the presence of silver ingots in the vehicles, that they were only employed for driving the jeep and the truck to another
destination and that the police stopped them en route and had driven them to the creek.
In order to constitute 'an attempt', first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be 'proximate' to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsad Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver. The fact that the truck was driven upto a lonely creek from where the silver could be transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course of intercoastal trade. But, the circumstance that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported.
(the appellants were convicted in this case and it was upheld by the Supreme court . Smuggling is an antisocial activity which adversely affects the public revenues, the earning of foreign exchange, the financial stability and the economy of the country. A narrow interpretation of the word "attempt" therefore, in these penal provisions which will impair their efficacy as instruments for combating this baneful activity has to be eschewed. These provisions should be construed in a manner which would suppress the mischief, promote their object, prevent their subtle evasion and foil their artful circumvention. Thus, construed, the expression "attempt" within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. The inference arising out of the facts and circumstances established by the prosecution, unerringly pointed to the conclusion, that the accused had committed the offence of attempting to export silver out of India by sea, in contravention of law.)
In R. v. Cheeseman (1862) L & C 140 Lord Blackburn said:
There is no doubt a difference between the preparation antecedent to an offence and the actual attempt. But if the actual transaction had commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
In R. v. Collins (1864) 33 LJM C 177 Cockburn, C.J., following McPherson's case (1857) D & B 202 held that if a person puts his hand into the pocket of another, with intent to steal what he can find there, and the pocket is empty, he cannot be convicted of an attempt to steal. Because an attempt to commit felony can only in point of law be made out where, if no interruption had taken place, the attempt could have been carried out successfully, so as to constitute the offence which the accused is charged with attempting to commit.
if a man thrusts his hand into the pocket of another with intent to steal, he does an act towards the commission of the offence of stealing, though unknown to him the pocket is empty. He tries to steal, but is frustrated by a fact, namely the emptiness of the pocket, which is not in any way due to any act or omission on his part. He does an act towards the commission of the offence of pocket picking, by thrusting his hand into the pocket of another with intent to steal. Similarly, he may fail to steal the watch of another because the latter is too strong for him, or because the watch is securely fastened by a guard. Nevertheless he may be convicted of an attempt to steal.
Impossibility test reiterated in Asgarali Pradhania vs Emperor on 21 July, 1933
originally held in:
Empress v. Mt. Rupsir Panku (1895) 9 CPL R (Cri) 14
But if one who believes in witchcraft puts a spall on another, or burns him in effigy, or curses him with the intention of causing him hurt, and believing that his actions will have that result, he cannot in my opinion be convicted of an attempt to cause hurt. Because what he does is not an act towards the commission of that offence, but an act towards the commission of something which cannot, according to ordinary human experience result in hurt to another, within the meaning of the Penal Code. His failure to cause hurt is due to his own act or omission, that is to say, his act was intrinsically useless, or defective, or inappropriate for the purpose he had in mind, owing to the undeveloped state of his intelligence, or to ignorance of modern science. His failure was due, broadly speaking, to his own volition. Similarly, if a man with intent to hurt another by administering poison prepares and administers some harmless substance, believing it to be poisonous, he cannot be convicted of an attempt to do so.
(Rider of impossibility test is that impossibility must be absolute not relative)
Calcutta High Court
Asgarali Pradhania vs Emperor on 21 July, 1933
The appellant was convicted under Section 312/511, I.P.C., of an attempt to cause a miscarriage. The complainant was 20 years of age, and had been married but divorced by consent. She was living in her father's house, where she used to sleep in the cookshed. The appellant was a neighbour who had lent money to her father, and was on good terms with him. He was a married man with children. According to the complainant he gave her presents, and promised to marry her. As a result sexual intercourse took place and she became pregnant. She asked him to fulfil his promise, but he demurred and suggested that she should take drugs to procure a miscarriage. One night he brought her a bottle half full of a red liquid, and a paper packet containing a powder. After he had gone she tasted the powder, but finding it salty and strong, spat it out. She did not try the liquid. The following night the appellant came again and finding that she had not taken either the powder or the liquid, he pressed her to take them, but she refused saying that she was afraid for her own life, and that the powder irritated her tongue. Thereupon he asked her to open her mouth, and approached her with the bottle, and took hold of her chin. But she snatched the bottle from him and cried out loudly, and her father and some neighbours came, and the appellant fled. The police were informed, and upon analysis, sulphate of copper was detected in the powder, but the amount was not ascertained. No poison was detected in the liquid. According to the medical evidence, copper sulphate has no direct action on the uterus, and is not harmful unless taken in sufficiently large quantities, when it may induce abortion.
Court held : on the facts stated in this case, and for the reasons already given, the appellant cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an "act done towards the commission of the offence" of causing a miscarriage. Neither the liquid nor the powder being harmful, they could not have caused a miscarriage. The appellant's failure was not due to a factor independent of himself. Consequently, the conviction and sentence must be set aside and the appellant acquitted.
Supreme Court of India
Sudhir Kumar Mukherjee vs State Of West Bengal on 24 September, 1973
S. 511 was not meant to cover only the penultimate act towards the completion of an offence; acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission we're also covered.
"The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence as contemplated by s. 51 1. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence."
This Court finally summarised its views about the construction of s. 51 1 thus:
"A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence, and
(ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission: such an act need not be the penultimate act towards the commission of that offence but must be an -act during the course of committing that offence."
In Emperor v. Vasudeo Balwant Gogte (1) a person fired several shots at another. No injury was in fact occasioned due to certain obstruction. The culprit was convicted of an offence under s. 307. Beaumont, C. J.,said at p. 438:
"I think that what section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events".
in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under s. 307 is made out.
In Jeetmal v. State it was held that an act under s. 307, must be one which, by itself, must be ordinarily capable of causing death in the natural ordinary course of events.
Rex v. White . In that case, the accused, who was indicted for the murder of his mother, was convicted of attempt to murder her. It was held that the accused had put two grains of cyanide of potassium in the wine glass with the intent to murder her. It was, however, argued that there was no attempt at murder because 'the act of which he was guilty, namely, the putting the poison in the wine glass, war, a completed act and could not be and was not intended by the appellant to have the effect of killing her at once; it could not kill unless it were followed by other acts which he might never have done'. This contention was repelled and it was said:
"There seems no doubt that the learned judge in effect did tell the jury that if this was a case of slow poisoning the appellant would be guilty of the attempt to murder. We are of opinion that this direction was right, and that the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt to murder even although this completed act would not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but would nonetheless be an attempt".
Supreme Court of India
Om Parkash vs The State Of Punjab on 24 April, 1961
B was married to the appellant in October, 1951, but their relations got strained by 1953. She was ill-treated and her health deteriorated due to maltreatment and under-nourishment. In 1956 she was deliberately starved and not allowed to leave the house in which they were living and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. On June 5,1956, she managed to escape from the house and went to the Civil Hospital at Ludhiana.
Her brother came down to Ludhiana on learning of the facts and made a complaint to the police. The doctor who attended on B sent a note to the police saying that she was seriously ill and might collapse any moment. The appellant was prosecuted for the offence of attempting to murder B under s. 307 Of the Indian Penal Code. The trial Court acquitted him but, on appeal, the High Court came to a finding, on the evidence, that the object of the appellant was to confine B and deprive her of regular food in pursuance of a scheme of regular starvation in order to accelerate her end, and convicted him under S. 307 Of the Indian Penal Code. On behalf of the appellant it was contended, inter alia, that whereas under S. 511 Of the Code for an Act to amount to the offence of attempting to commit an offence it need not be the last act and can be the first act towards the commission of the offence, under S. 307 it is the last act which, if
effective to cause death, would constitute the offence of an attempt to commit murder, and that even if B had been deprived of food for a certain period, the act of so depriving her did not come under s. 307 as that act could not, by itself have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death.
Held, that a person commits an offence under s. 307 Of the Indian Penal Code when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not.In the present case the course of conduct adopted by the appellant in regularly starving his wife B, comprised a series of acts which though they fell short of completing the series sufficient to kill her, came within the purview Of S.307 Of the Indian Penal Code. The High Court was, therefore, right in convicting the appellant under that section. Injury on victim is not sine qua non for conviction under section 307 IPC : State of Maharashtra v Balram Bama Patil [(1983) 2 SCC 28],wherein it was held that:
To justify a conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
State of M P v Saleem [(2005) 5 SCC 554], wherein it was held that:
It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
Jage Ram v State of Haryana[(2015) 11 SCC 366], wherein it was held that:
For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc
In State of Madhya Pradesh v. Kanha @ Omprakash decided 4th February 2019, Supreme Court pronounced that forensic/other evidence of grievous/life-threatening hurt is not a sine qua non/essential condition for the offence of “attempt to murder” under Section 307 of the Indian Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances.
As to line between indecent assault and attempt to rape :-
Supreme Court of India
Koppula Venkat Rao vs State Of Andhra Pradesh on 10 March, 2004
Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. In order to find an accused guilty of an attempt with intent to commit a rape. Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
In In re: T. Munirathnam Reddi it was said at p. 122:
"The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder. The illustrations in the section (s. 511) bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case."
Supreme Court of India
Abhayanand Mishra vs The State Of Bihar on 24 April, 1961
A personal commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating'. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher.