INCHOATE OFFENCES

This article was written by Bregitha PG, a student of National University of Advanced Legal Studies.

The term “inchoate” means “undeveloped”, “just begun”, “incipient”, “in an initial or early stage”. Inchoate offences cannot be understood in isolation and must be read in conjunction with substantive offences. A characteristic feature of these offences is that they are committed even if the substantive offence does not reach a stage of completion and no consequence ensues. Thus, if the offence of crime has not been completed, even then a person can be guilty of an attempt to commit a crime. Some scholars disagree with the usage of the term “inchoate” because according to them, offences like a conspiracy, attempt, and incitement are complete in themselves although they form steps in the process of reaching an end,that is Actual commission.

Attempt to commit a crime occurs when a person makes a proper mindset to do a criminal act and put a step forward for fulfilling by arranging the means and methods necessary for the commission of that crime but fail to do so. An attempt to commit a crime is a crime under the Indian Penal Code. Every attempt, falls short of success must create a threat in the mind of people which by itself is an injury and the moral guilt of the offender is the same as if he had succeeded. According to Section 511 of the IPC, only half of the punishment is awarded because the injury is not as great as if that crime had been committed. Actus reus and mens rea are essentials for a commission of any crime. Actus reus: Action or conduct which is an element of a crime,Mens rea: The intention or knowledge of wrongdoing that constitutes part of a crime. Here, actus reus to commit a crime is not completed but mens rea to commit the same crime is completed in an attempt and therefore attempt itself would be said to have been committed at this stage. Attempts to commit a crime are basically a positive step toward committing the contemplated crime after preparations have been made. The trail cannot be cancelled. Once an attempt is made, the perpetrator cannot change his/her mind and return to its original state without committing a crime.

For example, if A intends to kill B, he has the requisite mens rea in such a commission of the act. If he loads the gun in order to commit the act but falls short due to either being caught before he could complete the act or because the gun would not fire, he will not be liable for the murder of B but for the attempted murder of B. The term attempt has not been defined in the Indian penal code. It is considered as a direct move immediately after necessary preparation is made. Attempt stage is believed to have a greater degree of determination when compared to the preparation stage.

The following are the essentials of an attempt to commit a crime-

1.  there must be “an intention to commit a crime”
2. Act so done must be “in furtherance of that intention” or “towards the accomplishment of that crime”
3. The act must be “an incomplete work” or “fall short of a completed crime”

Hence when the above essentials are fulfilled it is proved that the act done was an attempt to commit a specific crime or crimes and is held to be punishable. “Section 511 of IPC states Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. In the case of State of Maharashtra v. Balram Bama Patil[1], the assault took place between two groups of each respective political party. The accused were acquitted on the ground that it was not a case falling under the ambit of section 307 and held they are only criminally liable for causing simple injuries.But the supreme court objected to this acquittal and said that the case might not follow the exact wording of section 307 i.e., assault to cause death in the ordinary course of circumstances. But the act must also be coupled with the aspect of intention and knowledge which was active in the accused and their execution thereof and held convicted.

Indirectly participating in committing an offence itself may also become a punishable offence. In such crimes, the offenders do not directly involve themselves in the offence. However, their abetment can become punishable in itself. These offences relate to Section 107, IPC under the chapter of abetment. Chapter 5 of the Indian Penal Code, 1860 deals with offences relating to abetment. Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.

The expression “instigate” is not defined in the Code. However, the Hon’ble Apex Court in the case of – Ramesh Kumar Versus State of Chhattisgarh[2],elucidated the word “Instigation” in paragraph 20 as belows:

“Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

In the case of Public prosecutor v. BUT[3] , BUT had displayed premeditation and deception. He was the sole mastermind of the conspiracy. BUT capitalised on the fact that he had introduced V to soft-bondage practices and could therefore get her to participate in a threesome against her express wishes. The abetment of rape here was insidious and it was not necessary for BUT to utilise the threat of violence. Rather, he had deployed a significant degree of deception and abuse of V’s trust to procure her unknowing participation in the rape offences.

Conspiracy basically means an agreement between two or more persons to commit an unlawful act. Merely intending to commit an offence is not sufficient for this purpose.Thus, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable. For example, in dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.

A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its completion. Conspiracy is an inchoate act because it does not require that the illegal act actually have been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed. These are the main inchoate offences attempting to commit, encouraging or assisting(formerly inciting) crime and conspiring to commit.

[1] (1983) 2 SCC 28

[2] (2001) 9 SCC 618

[3] [2019] SGHC 37