The Elements and Stages of a Crime

Criminal law is a body of rules and statutes that defines conduct prohibited by the state
because it threatens and harms public safety and welfare and that establishes punishment to
be imposed for the commission of such acts. Criminal law differs from civil law, whose
emphasis is more on dispute resolution than in punishment.

The term criminal law generally refers to substantive criminal laws. Substantive criminal
laws define crimes and prescribe punishments. In contrast, Criminal Procedure describes the
process through which the criminal laws are enforced. For example, the law prohibiting
murder is a substantive criminal law. The manner in which state enforces this substantive
law—through the gathering of evidence and prosecution—is generally considered a
procedural matter.

If a person commits a crime voluntarily or after preparation the doing of it involves four
different stages. In every crime, there is first intention to commit it, secondly, preparation to
commit it, thirdly attempt to commit it and fourthly the accomplishment.

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II. History:

The first civilizations generally did not distinguish between civil law and criminal law. The
first written codes of law were designed by the Sumerians around 2100-2050 BC. Another
important early code was the Code Hammurabi, which formed the core of Babylonian law.
These early legal codes did not separate penal and civil laws. Of the early criminal laws of
Ancient Greece only fragments survive, e.g. those of Solon and Draco.

After the revival of Roman law in the 12th century, sixth-century Roman classifications and
jurisprudence provided the foundations of the distinction between criminal and civil law in
European law from then until the present time. The first signs of the modern distinction
between crimes and civil matters emerged during the Norman invasion of England. The
special notion of criminal penalty, at least concerning Europe, arose in Spanish Late
Scolasticism, when the theological notion of God's penalty (poena aeterna) that was inflicted

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solely for a guilty mind, became transfused into canon law first and, finally, to secular
criminal law. The development of the state dispensing justice in a court clearly emerged in
the eighteenth century when European countries began maintaining police services. From this
point, criminal law had formalized the mechanisms for enforcement, which allowed for its
development as a discernible entity.
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III. Definition Of Crime:

Many jurists have defined crime in their own ways some of which are as under:
· Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it.
· Stephen observed a crime is a violation of a right considered in reference to the evil
tendency of such violation as regards the community at large.
· Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or
injurious to the public welfare.
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IV. Fundamental Elements Of Crime:

There are four elements which go to constitute a crime, these are:-

· Human being
· Mens rea or guilty intention
· Actus reus or illegal act or omission
· Injury to another human being

Human Being- The first element requires that the wrongful act must be committed by a
human being. In ancient times, when criminal law was largely dominated by the idea of
retribution, punishments were inflicted on animals also for the injury caused by them, for
example, a pig was burnt in Paris for having devoured a child, a horse was killed for having
kicked a man. But now, if an animal causes an injury we hold not the animal liable but its
owner liable for such injury.

So the first element of crime is a human being who- must be under the legal obligation to act

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in a particular manner and should be a fit subject for awarding appropriate punishment.

Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes
artificial or juridical persons.

Mens Rea- The second important essential element of a crime is mens rea or evil intent or
guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every
crime requires a mental element and that is considered as the fundamental principle of
criminal liability. The basic requirement of the principle mens rea is that the accused must
have been aware of those elements in his act which make the crime with which he is charged.

There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea”
which means that, the guilty intention and guilty act together constitute a crime. It comes
from the maxim that no person can be punished in a proceeding of criminal nature unless it
can be showed that he had a guilty mind.

Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus.
In other words, some overt act or illegal omission must take place in pursuance of the guilty
intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was
the first writer to use the term ‘actus reus’. He has defined the term thus- “such result of
human conduct as the law seeks to prevent”.

Injury- The fourth requirement of a crime is injury to another person or to the society at
large. The injury should be illegally caused to any person in body, mind, reputation or
property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever
illegally caused to any person in body, mind, reputation or property.
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V. Stages Of A Crime:

If a person commits a crime voluntarily or after preparation the doing of it involves four
different stages. In every crime, there is first intention to commit it, secondly, preparation to
commit it, thirdly, attempt to commit it and fourthly the accomplishment. The stages can be

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explained as under-

1. Intention- Intention is the first stage in the commission of an offence and known as
mental stage. Intention is the direction of conduct towards the object chosen upon considering
the motives which suggest the choice. But the law does not take notice of an intention, mere
intention to commit an offence not followed by any act, cannot constitute an offence. The
obvious reason for not prosecuting the accused at this stage is that it is very difficult for the
prosecution to prove the guilty mind of a person.

This stage is a significant progress from mere deliberation towards actual commission of the
crime. At this stage, the person has made up his mind to actually implement or execute his
devious plans. There is an intention to cause harm, but he hasn't yet taken any action that
manifests his intention. Further, there is no way to prove an intention because even devil can't
read a human mind. Thus, this is not considered a crime. For example, intention to kill
anyone is not a crime in itself. However, it is an essential ingredient of crime because without
intention to cause harm, there can be no crime. On the other hand, even a thoughtless act,
without any deliberation, can be a crime if there is an intention to cause harm. In simple
words, at this stages, a person consolidates his devious ideas and identifies ways of doing it.

There is no action taken and there is no harm done to anybody nor is there any intention to
cause injury to anybody. Mens Rea or bad intention is a significant progress from mere
deliberation towards actual commission of the crime. At this stage, the person has made up
his mind to actually implement or execute his devious plans. There is an intention to cause
harm but he hasn't yet taken any action that manifests his intention, S0, it is not a crime in
itself. But this an essential ingredient of crime because without bad intention to cause harm or
do wrong, there can be no crime. Also, even a thoughtless act, without any deliberation, can
be crime if there is an intention to cause crime

Intention differs from motive or desire (Per Lord Bridge R v Moloney). Thus, a person who
kills a loved one dying from a terminal illness, in order to relieve one dying from a terminal
illness, in order to relieve pain and suffering, may well act out of good motives.

Nevertheless, this does not prevent them having the necessary intention to kill in the case of
R v Inglis

Types of Intention:

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Intention can be divided into direct intent and oblique intent.

 Direct intent:

The majority of cases will be quite straight forward and involve direct intent. Direct intent
can be said to exist where the defendant embarks on a course of conduct to bring about a
result which in fact occurs.

Example D intends to kill his wife. To achieve that result he gets a knife from the kitchen,
sharpens it and then stabs her, killing her. The conduct achieves the desired result.

 Oblique intent:

Oblique intent is more complex. Oblique intent can be said to exist where the defendant
embarks on a course of conduct to bring about a desired result, knowing that the consequence
of his actions will also bring about another result.

Example D intends to kill his wife. He knows she is going to be on a particular airplane and
places a bomb on that airplane. He knows that his actions will result in the death of the other
passengers and crew of the airplane even though that may not be part of his desire in carrying
out the action. In this situation D is no less culpable in killing the passengers and crew than in
killing his wife as he knows that the deaths will happen as a result of his actions.

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2. Preparation- Preparation is the second stage in the commission of a crime. It means to

arrange the necessary measures for the commission of the intended criminal act. Intention
alone or the intention followed by a preparation is not enough to constitute the crime.
Preparation has not been made punishable because in most of the cases the prosecution has
failed to prove that the preparations in the question were made for the commission of the
particular crime.

If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter
enemy B, but does nothing more. A has not committed any offence as still he is at the stage
of preparation and it will be impossible for the prosecution to prove that A was carrying the
loaded pistol only for the purpose of killing B.

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As this stage, the intention to cause harms starts manifesting itself in the form of physical
actions. Preparation consists of arranging or building things that are needed to commit the
crime. For example purchasing poison. In general, preparation is not considered a crime
because it cannot be proved beyond doubt the goal of the preparation. For example,
purchasing knife with an intention to kill someone is not a crime because it cannot be
determined whether the knife was bought to kill someone or to chop vegetables and therefore
preparation means to arrange the necessary measures for the commission of the intended
criminal act. Intention alone or the intention followed by a preparation is not enough to
constitute the crime.

At this stage, it is however possible for the person to abandon his course of action without
causing any harm to anyone.

Generally, preparation is itself alone not a crime because it cannot be proved beyond doubt
the goal of preparation. For eg; buying match-box and kerosene oil to burn a house, alone,
cannot be determined as an offence. The law ignores, as general rule, the acts of preparation
also. It only interferes when such preparation precludes the possibility of an innocent
intention. Only such preparations are punished.

Preparation not Punishable: In general preparation is not punishable, because a preparation

apart from its motive would generally be a harmless act. It would be impossible in most cases
to show that the preparation was directed to a wrongful end, or was done with an evil motive
or intent, and it is not the policy of law to create offences that in most cases it would be
impossible to bring home the culprit, or which might lead to harassment of innocent persons.
Besides, a mere preparation would not ordinarily affect the sense of security of the individual
intended to be wrong, nor could society be disturbed or its sense of vengeance aroused by
what to all outward appearances would be an innocent act.

Take a case of murder. Purchasing a gun is not punishable, being merely preparation, but if a
man having procured the gun pursues his enemy with it, but fails to overtake him, or is
arrested before he is able to complete the offence, or fires without effect this amounts to
attempt and, none of the considerations which justify the exclusion of preparation from the
crime will apply.

 Preparation When Punishable- Generally, preparation to commit any offence is not

punishable but in some exceptional cases preparation is punishable, following are

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 some examples of such exceptional circumstances-

· Preparation to wage war against the Government - Section 122, IPC 1860;

· Preparation to commit depredation on territories of a power at peace with

Government of India- Section 126, IPC 1860;

· Preparation to commit dacoity- Section 399, IPC 1860;

· Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S.

255 and S. 257;

· Possessing counterfeit coins, false weight or measurement and forged documents.

Mere possession of these is a crime and no possessor can plead that he is still at the
stage of preparation- Sections 242, 243, 259, 266 and 474.

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3. Attempt- The word 'attempt', said chief justice Cockburn, clearly conveys with it the idea
that if the attempt had succeeded, the offence charged would have been committed. In other
words, attempt is the direct movement towards the commission of an offence after the
preparation has been made. According to English law, a person may be guilty of an attempt to
commit an offence, if he does an act which is more than merely preparatory to the
commission of the offence and a person may be guilty or attempt to commit an offence even
though the facts are such that the commission the offence is impossible. Once an act enters
into the arena of attempt, criminal liability begins, because attempt takes the offender very
close to the successful completion of crime and so it is punishable in the law like the
completed offence.

 There are three essentials of an attempt:-

· Guilty intention to commit an offence;

· Some act done towards the commission of the offence;

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 · The act must fall short of the completed offence.
 Why attempt is an Offence:

An attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the
same as though he had succeeded. The act may be sufficiently harmful to society by reason of
its close proximity to the completed offence classed as a crime. Hence, unlike civil law,
criminal law takes notice of attempts to commit punishable wrongs and punishes them
according to the nature and gravity of the offence attempted. If this stage is successful, then
the crime is completed and the accused will be liable according to the offence committed by
him. Thus an attempt in order to be criminal need not be penultimate act. It is sufficient in
law, if there is at present intent coupled with some overt act in execution. Some legal system
penalize from the stage of preparation. They depending upon the importance of the system
gives to the value of 'crime prevention' declare certain offences to be criminal and punishable
from the stage of preparation.

For eg.- According to Sec-307, if a person intentionally does something to kill another and if
the other person is not killed, he would be liable for attempt to murder. However, his action
must be capable of killing. It is also clear that a person is liable under this section even if no
injury is caused to anyone. However, if hurt is caused, the punishment is more severe, this
concept evolved from the case of Om Prakash vs. State of Punjab and State of Maharashtra
vs. Balram Bana Patil. In other words this stage is attained by performing physical actions
that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly
show that the person has absolutely no intention to abandon his plan and if the person is left
unrestricted, he will complete the commission of the crime. Since the intention of the person
can be determined without doubt from his actions, an attempt to commit a crime is considered
a crime because if left unpunished, crime is bound to happen and prevention of crime is
equally important for a healthy society.

 Attempt to commit crime under the Indian Penal Code:

The code does not define this expression, the following are the provision wherein it has dealt
with attempt:

a)In some cases the commission of an offence as well as the attempt to commit it is dealt
within the same section and the extent of punishment prescribes is the same for both.

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There are twenty seven such section in this Code, namely,

Sections: - 121,124,124A,125,130,131,152,153A,161,162,163,165
196,198,200,213,239,240,241,251,385,387,389,391,3 97,398 and 460.

In all these cases, both the actual commission of the offence and the attempt to commit are
made punishable equally

b)In some cases attempts are treated as separate offences and punished accordingly. There are
four such offences.

I) Attempt to commit murder (section 307),

II) Attempt to commit culpable homicide (section308),

Ill) Attempt to commit suicide (section 309)

IV) Attempt to commit robbery (section 393)

It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner
does an act which is a step towards the commission of the specific crimes, 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

 Distinction between Attempt and Preparation:

Attempt to commit crime is punishable, whereas preparation is not. This is because

preparation would generally be a harmless act, e.g. attempt to commit murder creates a
disturbance in the society and the sense of insecurity in an individual, while preparation may
not create alarm in society. According to Indian penal Code an "attempt" is a continuous
proceeding which at one stage assumes criminal character.

In Sudhir kumar Mukharjee v. State of W.B, Supreme Court held that, attempt to commit an
offence begins when the preparation are complete and the culprit commences to do
something with the intention of committing the offence and which is a step forward toward
the commission of the offence.

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In Abhyanand Mishra v. State of Bihar , Supreme court held that, the movement culprit
commences to do an act with the necessary intention, he commences his attempt to commit
an offence. 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.

 Test for Distinction

Five Tests laid down by courts Thus, it is simple to say that an attempt commit offence
begins where preparation to commit it ends, but it is difficult to find out where one ends and
the other begins. To solve this riddle various tests have been laid down by the

courts:

These are as follows:

 The Proximity test,

 THE locus poenitentiae test,
 The impossibility test,
 The social danger test, and
 The equivocal test.

1.The Proximity Test- Proximity cause as the causal factor which is closes, not necessarily
in explains is time or space, but in efficacy to some harmful consequences; in other words, it
must be sufficiently near the accomplishment of the substantive offence.

In Sudhir kumar Mukherjee case and Abyanand Mishra's case, the Supreme Court explained
the offence of attempt with help of the proximity test, saying that:

"A person commits the offence of 'attempt to commit a particular offence' when

a)He intends to commit that particular offence, and

b)He having made preparation with the intention to commit the offence, does an act towards
its commission; such an act need not to be the penultimate act towards the commission of that
offence but must be an act during the course of committing that offence.”

2.The Locus Poenitentiae test - In Locus Poenitentiae the word Locus means, a place,- a
word frequently used to denote the place in or at which some material act or even such as
crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to
withdraw from a bargain before it has become fully Constituted and become binding.

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In simple language an act will amount to a mere preparation if a man on his own accord,
before the criminal act is carried out, gives it up. It is, thus, possible that he might of its own
accord, or because of the fear of unpleasant consequences that might follow, desists from the
completed attempt. If this happens, he does not go beyond the limits of preparation and does
not enter the arena of attempt. He is, thus at the stage of preparation which can not be
punished.

Malkiat Singh case explains this second test, in this case, a truck carrying a paddy was
stopped at Samalkha Barrier, a place 32 miles away from Delhi. Evidently, there was no
export of paddy within the meaning of para 2(a) f the Punjab Paddy (Export Control) Order,
1959, the Court decided that there was no attempt to commit the offence export. It was
merely a preparation. Distinguishing between attempt and preparation Supreme Court
observed that the test of distinction between two 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.

3.Impossibility Test In Queen Empress v. Mangesh Jivaji, the Bombay high court held that
within the meaning of section 511 of IPC, an attempt is possible, even when the offence
attempted cannot be committed.

In Asagarali Pradhaniu v. Emperor, what the appellant did was not an "act done towards the
commission of offence", and therefore, he could not be convicted. But in a Malaysian case
the accused was held liable for an attempt to cause abortion when the woman was not
pregnant. The act itself is impossible of performance and yet it constitutes an offence of
attempt to commit crime. This was precisely the position in English Law before Houghton v.
Smith case.

In R v. Shivpuri it has been held that, if the mental element has proceeded to commit the act
but failed his responsibility for attempt would be evaluated in the light of facts as he thought
them to be (putative facts).

4.Social Danger Test In order to distinguished and differentiate an act of attempt from an act
of preparation the following factors are contributed. The seriousness of the crime attempted;
The apprehension of the social danger involved. In this test the accused's conduct is not

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examined only partially but the consequences of the circumstances and the fullness of the
facts are taken onto consideration.

For example, X administers some pills to a pregnant woman in order to procure abortion.
However, since the pills are innocuous they do not produce the result.In spite of this X would
be held liable for an attempt from the view point of the social danger test, as his act would
cause as alarm to society causing social repercussions.

5.On the Job or unequivocality Test : If a person does something that shows his
commitment to follow through and commit the crime then it is an attempt. So, attempt is done
when the offender takes deliberate and overt steps that show an unequivocal intention to
commit the offence even if the step is not the penultimate one.

 Case law dealt in detail:- State of Maharashtra vs. Mohd. Yakub 1980

The Case of State of Maharashtra v. Mohd.Yakub

A jeep driven by the respondent and a truck was stopped at about midnight near a bridge. The
respondents started removing the bundle from the truck. At this time customs officials acting
on a clue reached the spot and accosted the respondents. At the same time, the sound of a
mechanized sea-crafts engine was heard near the side of the creek. Two persons from the
neighborhood were called and in their presence silver ingots were recovered from the
vehicles. Respondent no-1 had a pistol, a knife and some currency notes. On the questioning
it was found that the respondents were not the dealers in silver.

The trial court convicted the accused u/s 135(1) (a) read with section 135(2) of the Customs
Act for attempting to smuggle out of India silver ingots worth about Rs 8 lakhs in violation of
Foreign Exchange Regulation Act, the Imports and Exports (control) Act and the Custom
Act. But the Additional session judge acquitted them on the ground that the facts proved by
the prosecution fell short of establishing that the accused had 'attempted' to export silver in
contravention of the Law. The High Court upheld the acquittal. The Supreme Court however
allowed the appeal and set aside the acquittal.

Two separate but concurring judgments of Justice Sarkaria and Justice Chinnappa Reddy call
for a critical evaluation with a view to appreciating their import for the law of Attempt in
India.

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Justice Sarkaria Observed: - "what constitutes an 'attempt' is a mixed question of law and fact
depending largely upon the circumstances of a particular case.

'Attempt' defies a precise and exact definition. Broadly speaking all crimes which consist of
the commission of affirmative acts is proceeded 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 preparation to commit it. The
third stage is reached when the culprit takes deliberate overt act or step to commit the
offence. Such overt act or step in order to be 'criminal' need not be penultimate act towards
the commission of the offence. It is sufficient if such act or act were deliberately done, and
manifest a clear intention to commit aimed, being reasonable proximate to the consummation
of the offence."

Justice Chinnapa Reddy undertook the definitional exercise even more rigorously. He
explored the English decisions and finally concluded:

"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 offence, and third, such act must reveal with reasonable certainty,
in conjunction with the other facts and circumstances and not necessarily in isolation, an
intention, as distinguished from mere desire or object, to commit that particular offence"

On the question of definition of attempt the two decisions can be summed up as follows:

oBoth the opinions support the traditional view relating to the stages in the commission of a
crime and would place attempt stage in a sequence after the preparation stage.

oBoth the opinions agree that for constituting an attempt the requirement of mens rea i.e. the
state of mind to commit the offence attempted, and the actus reus, i.e. an overt act, must be
established.

oBoth the opinions agree that it must be established through independent evidence that the
accused had the intention of committing the offence attempted.

oHowever, on the question of precise type of actus reus required the two opinions seems to
be taking different line. Justice Sarkaria specifically prefers the actus to be "reasonably"

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proximate to the consummation of the offence, but no such condition appears to emerge from
Justice Chinnapa Reddy's opinion

4. Accomplishment Or Completion- The last stage in the commission of an offence is its

accomplishment or completion. If the accused succeeds in his attempt to commit the crime,
he will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of
an attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be
guilty for committing the offence of murder and if B is only injured, it will be a case of
attempt to murder.

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VI. References :

1. Prof. S.N.Mishra; Indian Penal Code; Central Law Publications, Allahabad, Tenth
Edition (September) 2001.
2. K.D. Gaur; A Text Book of The Indian Penal Code, Universal Law Publishing
Company Pvt. Limited, New Delhi, Third Edition 2004
3. O.P. Srivastava; Principles of Criminal Law, Eastern Book Company, Lucknow,
Fifth Edition, 2010

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