Asgarali Pradhania v. Emperor [1933 Cal]

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 cook shed. 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 in 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.

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 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.

It is argued that as there was no evidence to show that either the liquid or the powder was capable of causing a miscarriage, the appellant cannot be convicted of an attempt to do so.

In R. v. McPherson [1857], the prisoner was charged with breaking and entering the prosecutor’s house and stealing therein certain specified chattels and was convicted of attempting to steal those chattels. Unknown to him those chattels had been stolen already. Cockburn, C.J. held that the conviction was wrong because the word ‘attempt’ clearly conveys with it the idea that if the attempt had succeeded the offence charged would have been committed. An attempt must be to do that, which if successful, would amount to the felony charged, but here that attempt never could have succeeded.

In R. v. Cheeseman [1862] 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] Cockburn, C.J., following McPherson’s case 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.

It is clear however from the illustrations to S. 511 that Lord Macaulay and his colleagues who drafted the Indian Penal Code, which was enacted in 1860, did not intend to follow these decisions.

So far as the law in India is concerned, it is beyond dispute that there are four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit, and if the third stage is successful, the commission itself. Intention alone, or intention followed by preparation are not sufficient to constitute an attempt. But intention followed by preparation, followed by any “act done towards the commission of the offence” is sufficient. “Act done towards the commission of the offence” are the vital words in this connection.

Thus, 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.

1.  v.  Hensle:

If one who believes in witchcraft puts a spell 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 in my opinion, be convicted of an attempt to do so. And this was decided in Empress v. Mt. Rupsir Panku [1895] with which I agree. The learned Judicial Commissioner says:

In each of the illustrations to S. 511, there is not merely an act done with the intention to commit an offence which is unsuccessful because it could not possibly result in the completion of the offence, but an act is done ‘towards the commission of the offence,’ that is to say the offence remains incomplete only because something yet remains to be done, which the person intending to commit the offence is unable to do, by reason of circumstances independent of his own volition.

It cannot be said that in the present case the prisoner did an act towards the commission of the offence.’ The offence which she intended to commit was the administration of poison to her husband. The act which she committed was the ‘administration of a harmless substance’.

This reasoning is applicable to the case now under consideration. The appellant intended to administer something capable of causing a miscarriage. As the evidence stands, he administered a harmless substance. This cannot amount to an “act towards the commission of the offence” of causing a miscarriage.

But if A, with intent to hurt B by administering poison, prepares a glass for him and fills it with poison, but while A’s back is turned, C who has observed A’s act, pours away the poison and fills the glass with water, which A in ignorance of what C has done, administers to B, in my opinion A is guilty and can be convicted of an attempt to cause hurt by administering poison. His failure was not due to any act or omission of his own, but to the intervention of a factor independent of his own volition.

In Queen-Empress v. Luxman Narayan Joshi [1900 Bom] Sir Lawrence Jenkins, C. J., defined “attempt” as: An intentional preparatory action which failed in its object through circumstances independent of the person who seeks its accomplishment.

Russell on Crimes: There must be an overt act intentionally done towards the commission of some offence, one or more of series of acts which would constitute the crime if the accused were not prevented by interruption, or physical impossibility, or did not fail, for some other cause, in completing his criminal purpose.

The question in each case is whether the acts constituting the attempt were done with intent to commit the complete offence and as one or more of a series of acts directly forming some of the necessary step towards completing that offence, but falling short of completion by the intervention of causes outside the volition of the accused or because the offender of his own free will desisted from completion of his criminal purpose for some reason other than mere change of mind.

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.