Attempt under Section 62 BNS: Meaning, Ingredients and Landmark Cases

The criminal law does not wait for a completed crime. It reaches back to the stage of attempt, punishing the person who tries and fails. A poisoner whose target vomits out the poison; a pickpocket whose hand touches an empty pocket; a would-be murderer whose gun misfires: each has attempted an offence, and each is liable to be punished, whether or not the underlying offence was ever completed. Section 62 of the Bharatiya Nyaya Sanhita, 2023, formerly Section 511 IPC, is the residual provision that catches every attempt not otherwise punished by a specific section. This module walks through Section 62, the ingredients of attempt, the specific attempt provisions elsewhere in the BNS, and the leading Indian cases.

1. Meaning and Concept

Attempt as the third stage of crime

Every intentional crime moves through four stages: intention, preparation, attempt, and commission. The first two, intention and preparation, are ordinarily not punishable. The fourth, commission, is the completed offence. The third, attempt, sits between preparation and commission. It is the stage at which the actor has moved beyond planning and has begun to execute, but has not yet succeeded. The criminal law recognises attempt as a distinct offence and punishes it separately, with punishment usually less than for the completed offence but nonetheless real.

Why attempt is punished

The three reasons the law punishes attempt

Moral culpability. The person who tries to commit a crime has demonstrated the same guilty mind as the person who succeeds. The failure of the crime, often due to circumstances beyond the actor's control, does not erase his moral fault.
Public safety. A person who has tried and failed once is likely to try again. The criminal law intervenes early to prevent the completed crime and to remove the threat.
Deterrence. Punishing attempts deters people from trying at all. If only completed crimes were punished, the calculus of risk and reward would favour attempts.

The two-fold framework in the BNS

The Bharatiya Nyaya Sanhita punishes attempt in two ways. First, specific sections deal with specific attempts. Section 109 punishes attempt to murder, Section 110 attempt to culpable homicide, and other sections deal with other specific attempts. Where a specific section applies, it governs. Second, Section 62 BNS is the residual provision. It catches every attempt to commit an offence for which no specific attempt provision is made. Together, the two ensure that no attempt goes unpunished.

2. Statutory Framework

Section 62 BNS as the residual provision

Section 62 BNS, formerly Section 511 IPC, is the general provision on attempt. It punishes any attempt to commit an offence for which no express provision has been made by the Sanhita for the punishment of the attempt. Its scope is thus subject to two conditions: an attempt to commit an offence, and the absence of a specific attempt provision. Where either is missing, the section does not apply.

Specific attempt provisions in the Sanhita

A number of sections in the BNS deal with specific attempts, and where they apply, Section 62 is displaced.

Section 109 BNS: attempt to murder. Punishable with imprisonment up to ten years, or in specified aggravated cases up to life imprisonment or death.
Section 110 BNS: attempt to commit culpable homicide. Punishable with imprisonment up to seven years.
Section 226 BNS: attempt to commit suicide with intent to compel or restrain a public servant. Narrower than the deleted Section 309 IPC; ordinary attempted suicide is no longer an offence.
Section 147 BNS: attempt to wage war. Punishable with death or life imprisonment.
Section 148 BNS: attempt to overawe by criminal force. Punishable with life imprisonment or specified imprisonment.
Attempts specifically punished in the chapters on offences against property, forgery, and offences against the state.

Interaction with Section 3(5) BNS (common intention)

Attempt is often committed by several persons acting together. Section 3(5) BNS on common intention applies to attempts as much as to completed offences. Where several persons attempt an offence in furtherance of a common intention, each is liable for the attempt as if he had done it alone. Barendra Kumar Ghosh's principle applies at the attempt stage.

3. Section 62 BNS: Text and Analysis

Text of the section

Section 62 BNS (formerly Section 511 IPC)

Whoever attempts to commit an offence punishable by this Sanhita 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 of the offence, shall, where no express provision is made by this Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

Structural analysis

The section has four working parts:

The scope: attempts to commit any offence punishable by the Sanhita with imprisonment for life or imprisonment.
The conduct requirement: the attempt must involve doing any act towards the commission of the offence. Mere intention or preparation is not enough.
The residual character: the section applies only where no express provision is made for the punishment of the attempt.
The punishment: up to one half of the longest term prescribed for the substantive offence, or fine, or both.

4. Ingredients of Attempt

Intention to commit an offence

Attempt requires a specific intention to commit the underlying offence. The actor must have intended the completed crime. The intention needed is the same intention that would be required for the substantive offence. For attempt to murder, the intention must be to kill; for attempt to steal, the intention must be to take dishonestly. Where the intention falls short of the substantive offence's mental element, no attempt is made out.

An act done in pursuance of that intention

Attempt requires an act. Mere intention, however clearly formed, is not attempt. There must be some physical step towards the commission of the crime. This is the classical rule that the criminal law does not punish thoughts alone, however wicked they may be.

The act is a step towards commission and not mere preparation

The most difficult ingredient. The act done must be a step towards commission, not mere preparation. Where the actor has done everything necessary to make the crime possible but has not yet done anything that itself begins to execute the crime, he is at preparation. Once he begins to execute, he is at attempt. Distinguishing the two is often the central question in attempt cases, and a separate module in this series is devoted to it.

The act need not be the penultimate act

📖 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698

The Supreme Court held that the act constituting attempt need not be the penultimate act, that is, the act immediately preceding the completed offence. It is enough that the actor has taken a step towards commission after preparation is complete. Rule: attempt does not require the actor to have reached the point where only one more act stands between him and success.

This principle is important because it widens the scope of the attempt doctrine. If only the penultimate act constituted attempt, the criminal law would be able to intervene only at the very last moment. Abhayanand Mishra permits earlier intervention, provided the actor has moved from preparation into the execution phase.

5. Distinguishing Preparation from Attempt

The line between preparation and attempt is the central puzzle of the attempt doctrine. A separate module in this series (Module: Preparation vs Attempt) walks through the tests applied by the courts: the proximity test (R v Eagleton), the locus poenitentiae test (Malkiat Singh), the doctrine of equivocality, and the impossibility test. In brief:

If the actor could have stopped and withdrawn without doing anything more, and no harm would have followed, he was at preparation.
If the actor had committed himself to the criminal course and could not have withdrawn without doing something to reverse what he had done, he was at attempt.
The transition from preparation to attempt is not a bright line, and each case turns on its facts.

6. Specific Attempt Provisions in the BNS

Section 109: attempt to murder

Section 109 BNS (formerly Section 307 IPC)

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempt to murder has its own extensive doctrinal treatment. The intention or knowledge required is the same as for murder, but no death results. Where hurt is caused by the attempt, the punishment is enhanced. Where the attempt is by a person serving a life sentence, Section 109(2) provides for the death penalty in specified circumstances.

Section 110: attempt to commit culpable homicide

Section 110 BNS (formerly Section 308 IPC) covers attempt to commit culpable homicide not amounting to murder. The intention required is the same as for Section 105 BNS (culpable homicide not amounting to murder), and the punishment is imprisonment up to seven years. Where hurt is caused, the punishment may be enhanced.

Section 226: attempt to commit suicide (narrow)

The former Section 309 IPC punished attempted suicide generally. Section 226 BNS narrows the offence significantly: it punishes attempt to commit suicide only where done with intent to compel or restrain any public servant from discharging his official duty. Ordinary attempted suicide is no longer an offence under the BNS, following the Mental Healthcare Act, 2017, which had effectively decriminalised it.

Attempts specifically punished in other chapters

Section 147 BNS: attempt to wage war against the Government of India.
Section 148 BNS: attempt to overawe by criminal force.
Section 302 BNS: attempt to commit robbery or dacoity.
Section 310(4) BNS: attempt to commit dacoity.
Section 316 BNS: attempt to commit criminal breach of trust.

7. Punishment under Section 62 BNS

Where Section 62 BNS applies (that is, where no specific attempt provision governs), the punishment is:

Up to one half of the longest term of imprisonment prescribed for the substantive offence, or
Fine as prescribed for the substantive offence, or
Both.

For attempt at an offence punishable with life imprisonment (where no specific attempt provision applies), the punishment is up to ten years' imprisonment (half of the twenty year construction of life imprisonment under Section 6 BNS). For attempt at an offence punishable with ten years' imprisonment, the punishment is up to five years. And so on.

8. Judicial Elaboration

Abhayanand Mishra v. State of Bihar

Discussed above. The act need not be the penultimate act. The foundational modern Indian case on attempt.

📖 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698

The accused had submitted a false application, along with a forged certificate, to Patna University for permission to take a certain examination. He was found out before the exam. The Supreme Court held that he was guilty of attempt to cheat: he had done acts towards the commission of the offence (submission of the false application), which went beyond mere preparation. He had thereby entered the phase of attempt.

Malkiat Singh v. State of Punjab

📖 Malkiat Singh v. State of Punjab, AIR 1970 SC 713

The accused, a truck driver, had loaded his truck with paddy in Punjab and was on his way to Delhi. Punjab law prohibited the export of paddy from the state. The truck was stopped 32 miles inside Punjab. The Supreme Court held that the truck driver had not attempted to export paddy from Punjab. He was still within Punjab, and could have turned back without committing the offence. The doctrine of locus poenitentiae was applied: room to withdraw remained available. Rule: preparation and attempt are distinct, and the actor must have crossed the threshold of preparation before attempt is made out.

Om Prakash v. State of Punjab

📖 Om Prakash v. State of Punjab, AIR 1961 SC 1782

The accused had systematically starved his wife over an extended period, intending to kill her. She managed to escape and complain. The Supreme Court held that the accused was guilty of attempt to murder. Starvation over an extended period, with intention to cause death, and where death would have resulted but for the escape, was an attempt. The last act was not required. Rule: continuing conduct with intention to kill may constitute attempt even where an escape has intervened.

State of Maharashtra v. Mohd. Yakub

📖 State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57

The accused had loaded silver ingots into a truck and driven to a place near the sea, from where the silver was to be smuggled out of India. They were caught before the ingots reached the sea. The Supreme Court held that the accused had gone beyond preparation and had entered the phase of attempt. The loading and transporting were acts towards the smuggling, and the accused could not have withdrawn without doing something to reverse them. Rule: acts that commit the offender to the criminal enterprise are acts of attempt.

Koppula Venkat Rao v. State of Andhra Pradesh

📖 Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602

The Supreme Court considered attempt to commit rape. The accused had attempted to force himself upon the victim but had been stopped. The Court held that the accused's conduct amounted to attempt, not mere preparation. The distinction, and the tests to be applied, were reviewed. Rule: modern statement of the attempt doctrine in sexual offences.

R. v. Eagleton

📖 R. v. Eagleton, (1855) 6 Cox CC 559

The accused had received money from the parish for supplying bread to the poor. He was charged with attempt to obtain money by false pretences. The English court held that the act constituting attempt must be an act immediately connected with the commission of the offence, not merely a step in the preparation. The classical proximity test emerged from this judgment. Rule (proximity test): the act must be immediately, and not remotely, connected with the commission of the offence.

9. Impossibility and Attempt

Where the offence attempted is impossible to complete (the pocket picked was empty, the poison poured was harmless, the victim shot at was already dead), can the actor still be convicted of attempt? Indian law follows the general rule that impossibility is no defence to attempt, provided the actor took steps towards the offence with the required intention.

📖 Asgarali Pradhania v. Emperor, AIR 1933 Cal 893

The accused administered a substance to the complainant intending to cause miscarriage. The substance turned out to be harmless. The Calcutta High Court held that the accused was not guilty of attempt to cause miscarriage, because his act could never have caused the offence. The judgment applied a doctrine of legal impossibility.

📖 Munah binte Ali v. Public Prosecutor, [1958] MLJ 159

The Malaysian court took the opposite view: an accused who had administered a substance believing it capable of causing miscarriage, where the substance was in fact incapable, was guilty of attempt. The doctrine of impossibility was rejected. This is closer to the modern Indian position.

The modern Indian position, reflected in Section 62 BNS through its focus on the act done towards the commission of the offence with the required intention, tends towards Munah binte Ali. Where the actor takes steps intending to commit the offence, and would have succeeded but for a fact he did not know, he is guilty of attempt. The classical Asgarali Pradhania position, treating impossibility as a defence, has been substantially eroded.

10. Consolidated Landmark Judgments

Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698. Foundational case. Act need not be penultimate.
Malkiat Singh v. State of Punjab, AIR 1970 SC 713. Paddy in Punjab. Locus poenitentiae applied. Preparation, not attempt.
Om Prakash v. State of Punjab, AIR 1961 SC 1782. Starvation of wife. Continuing conduct as attempt.
State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57. Silver ingot smuggling. Committing acts constitute attempt.
Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602. Modern statement of attempt in sexual offences.
R. v. Eagleton, (1855) 6 Cox CC 559. Foundational English case. Proximity test.
Asgarali Pradhania v. Emperor, AIR 1933 Cal 893. Classical impossibility doctrine. Now largely eroded.
Munah binte Ali v. Public Prosecutor, [1958] MLJ 159. Impossibility rejected as a defence. Closer to modern position.
Haughton v. Smith, [1975] AC 476. English case on impossibility. Later modified by the Criminal Attempts Act, 1981.
R. v. Robinson, [1915] 2 KB 342. English case. Insurance fraud. Act too remote to constitute attempt.
Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1973 SC 2655. Attempt in the context of Sections 511 IPC and Section 4 of the Prevention of Corruption Act.

Frequently Asked Questions

What is Section 62 BNS?

Section 62 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 511 IPC), is the residual provision on attempt. It punishes any attempt to commit an offence punishable by the Sanhita with imprisonment for life or imprisonment, for which no express punishment is provided elsewhere. The punishment is up to one half of the longest term prescribed for the substantive offence, or the fine, or both.

What are the ingredients of an attempt?

Four ingredients: (i) intention to commit an offence; (ii) an act done in pursuance of that intention; (iii) the act is a step towards commission, not mere preparation; and (iv) the act need not be the penultimate act. All four must be established. The most litigated ingredient is the third: distinguishing preparation from attempt.

What is the punishment for attempt to murder under Section 109 BNS?

Section 109 BNS (formerly Section 307 IPC) punishes attempt to murder with imprisonment up to ten years, and where hurt is caused by the attempt, punishment may extend to life imprisonment. Under Section 109(2), a person serving a life sentence who attempts murder may be sentenced to death, in specified circumstances. Section 109 is a specific attempt provision that displaces Section 62 in murder cases.

Is impossibility a defence to attempt in India?

Modern Indian law tends against treating impossibility as a defence. Section 62 BNS focuses on the act done towards the commission of the offence with the required intention. Where the actor takes steps intending to commit the offence, and would have succeeded but for a fact he did not know, he is guilty of attempt. Asgarali Pradhania v Emperor (1933), applying the classical impossibility doctrine, has been substantially eroded, and the position is closer to Munah binte Ali v Public Prosecutor.

What is the difference between preparation and attempt?

Preparation is the arrangement of the means to commit an offence. Attempt is a step towards commission after preparation is complete. The classical test (Malkiat Singh v State of Punjab, 1970) is locus poenitentiae: if the actor could have withdrawn without doing anything more, he was at preparation; if he had committed himself to the criminal course, he was at attempt. Modern courts also apply the proximity test (R v Eagleton) and the equivocality test.

Does the act constituting attempt have to be the last act before the offence?

No. Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698, held that the act need not be the penultimate act. It is enough that the actor has taken a step towards commission after preparation is complete. This principle permits the criminal law to intervene earlier than the very last moment before the offence would be completed.

Attempt Section 62 BNS