1. 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. One to three grains may be used as an astringent, two to ten grains as an emetic, one ounce would be fatal. According to Taylor's Medical Jurisprudence (Edn. 5), p. 166,
there is no drug or combination of drugs which will, when taken by the mouth, cause a healthy uterus to empty itself, unless it be given in doses sufficiently large to seriously endanger, by poisoning, the life of the woman who takes it or them.
2. The defence was a denial of all the facts, some suggestion that the complainant was of loose character, and a statement that the prosecution was due to enmity. Two-points have been raised on behalf of the appellant, one being that the complainant was an accomplice and that her evidence was not corroborated, that she was willing to destroy the foetus but was afraid of the consequences to herself. On the facts stated I am satisfied that the complainant cannot be regarded as an accomplice, and in any case there is some corroboration of her evidence, in the discovery of the drugs and the appellant's flight, which was observed by several witnesses. The other is a point of some importance, namely, that the facts proved do not constitute an attempt to cause miscarriage. This depends upon what constitutes an attempt to commit an offence, within the meaning of Section 511, I.P.C., which provides as follows:
Whoever attempts to commit an offence punishable by this Code with transportation 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 be punished etc.
Illustrations: (A) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section. (B) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.
3. 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. This contention depends upon a correct definition of the word 'attempt' within the meaning of the section. In R. v. McPherson (1857) D & B 202, 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' dearly 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 the attempt never could have succeeded.
4. 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.
5. 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. It is clear however from the illustrations to Section 511, that Lord Macaulay and his colleagues who drafted the Indian Penal Code, which was enacted in 1880, did not intend to follow these decisions, and I agree with the remarks upon this point made in Mac Crea's case (1893) 15 All 173. The Calcutta High Court in Empress v. Riasat Ali (1881) 7 Cal 352 held that the definitions in McPherson's case (1857) D & B 202 and Cheeseman's case (1862) L & C 140 were sound. In England the decisions were reconsidered in R. v. Brown (1889) 24 QBD 357 and R. v. Ring (1892) 17 Cox 491. The Judges expressed dissatisfaction with the decisions in R. v. Collins (1864) 33 LJM C 177 and with that in R. v. Dodd (1877) Unreported which proceeded 'upon the view that a person could not be convicted of an attempt to commit an offence which he could not actually commit, and expressly overruled them saying that they were no longer law. The judgment in Brown's case (1889) 24 QBD 357 however has been criticised as unsatisfactory, and it has been contended that R. v. Brown (1889) 24 QBD 357 and R. v. Ring (1892) 17 Cox 491 have not completely overruled R. v. Collins (1864) 33 LJM C 177: Pritchard's Quarter Sessions (Edn. 2). In Amrita Bazar Patrika Press, Ltd. AIR 1920 Cal 478 the decision in R. v. Collins (1864) 33 LJM C 177 was again quoted with approval, apparently in ignorance of the fact that it had been expressly overruled in the English Courts. Mookerjee, J., held that in the language of Stephen (Digest of Criminal Law; Article 50):
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. To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing except for failure to consummate, all the elements of a substantive crime; in other words an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to but falling short of its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.
6. The decision in McPherson's (1) and Collins cases (1864) 33 LJM C 177 are clearly incompatible with illustrations to Section 511, and in my opinion are not law either in India or in England. Nevertheless, the statements of law to which I have referred are correct, so far as they go, and were not intended to be exhaustive or comprehensive definitions applicable to every set of facts which might arise. So far as the law in England is concerned, in the draft Criminal Code prepared by Lord Blackburn, and Barry, Lush, and Stephen, JJ., the following definition appears (Art. 74):
An attempt to commit an offence is an act done or omitted with intent to commit that offence, forming part of a series of acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted either by the voluntary determination of the offender not to complete the offence or by some other cause. Everyone who believing that a certain state of facts exists does or omits an act the doing or omitting of which would, if that state of facts existed, be an attempt to commit an offence, attempts to commit that offence, although its commission in the manner proposed was by reason of the non-existence of that state of facts at the time of the act or omission impossible.
7. To this definition the Commissioners appended a note to the effect that the passage between the asterisks 'declares the law differently from R. v. Collins (1864) 33 LJM C 177' which at the date of the drafting of the Code had not been overruled. The first part of this definition was accepted in R. v. Laitwood (1910) 4 Cri App Rep 248 at 252, and purporting to be in accordance with the latter part, it was held by Darling, J., that if a pregnant woman, believing that she is taking a 'noxious thing' within the meaning of the offences against the Poison Act, 1861, Section 58, does with intent to procure her own abortion take a thing in fact harmless, she is guilty of attempting to commit an offence against the first part of that section: R. v. Brown (1899) 63 JP 790. In Russell on Crimes (Edn. 8), Vol. 1 at p. 145, two American definitions are quoted from Bishop:
Where the non-consummation of the intended criminal result is caused by an obstruction in the way, or by the want of the thing to be operated upon, if such an impediment is of a nature to be unknown to the offender, who used what seemed appropriate means, the punishable attempt is committed. Whenever the laws make criminal one step towards the accomplishment of an unlawful object done with the intent or purpose of accomplishing it; a person taking that step with that intent or purpose and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt it could be fully carried into effect in the particular instance.
8. 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 connexion.
9. 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. Blackburn, and Mellor, JJ.: R. v. Hensle 11 Cox 570, at p. 573.
10. 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 in my opinion, be convicted of an attempt to do so. And this was decided in Empress v. Mt. Rupsir Panku (1895) 9 CPL R (Cri) 14, with which I agree. The learned Judicial Commissioner says:
In each of the illustrations to Section 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 intendedto commit was the administration of position to her husband. The act which she committed was the 'administration of a harmless substance'.
11. 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. This important distinction is correctly stated by Turner, J., in Ramsaran's case (1872) 4 NWP 46, at pp. 47 and 48, where he observes that
to constitute an attempt there must be an act done with the intention o committing an offence and in attempting the commission. In each of the illustrations to Section 511 we find an act done with the intention of committing an offence, and immediately enabling the commission of the offence, although it was not aft act which constituted a part of the offence, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition,
12. In Queen-Empress v. Luxman Narayan Joshi (1900) 2 Bom LR 286 Sir Lawrence Jenkins, C.J., defined 'attempt' as:
An intentional preparatory action which failed in object through circumstances independent of the person who seeks its accomplishment. 'And in Queen-Empress v, Vinayak Narayan (1900) 2 Bom LR 304 the same learned Judge defined 'attempt' as when a man does an intentional act with a view to attain a certain end, and fails in his object through some circumstance independent of his own will'.
13. These also are good definitions so far as they go, but they fail to make clear that there must be something more than intention coupled with mere preparation. As was said in Raman Chettiar v. Emperor AIR 1927 Mad 77, at p. 96(of 28 Cr. L.J.):
The actual transaction must have begun and an act to bear upon the mind of the victim must have been done before a preparation can be said to be an attempt.' Here it is necessary to observe the distinction that 'an act to bear' is not the same thing as 'an act which has borne'.
14. In Empress v. Ganesh Balvant (1910) 34 Bom 378, it was said that:
some external act, something tangible and ostensible of which the law can take hold as an act showing progress towards the actual commission of the offence
is necessary to constitute an offence. 'It does not matter that the progress was interrupted.'
15. In Queen-Empress v. Gopala (1893) Rat Un Cri Cases 865, Parsons and Ranade, JJ., stated that, in their opinion, a person physically incapable of committing rape cannot be found guilty of an attempt to commit rape, because his acts would not be acts 'towards the commission of the offence.' In the American and English Encyclopedia of Law Vol. 3, p. 250, (Edn. 2) 'attempt' is defined as
an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime.'
16. In Russell on Crimes, (Edn. 8), Vol. 1, pp. 145 and 148, the following definitions are given:
No act is indictable as an attempt to commit felony or misdemeanour, unless it is a step towards the execution of the criminal purpose, and is an act directly approximating to, or immediately connected with, the commission of the offence which the person doing it has in view. There must be an overt act intentionally done towards the commission of some offence, one or more of a 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 relied on constituting the attempt were done with intent to commit the complete offence, and as one or more of a series of acts or omissions directly forming some of the necessary steps 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.
17. I do not propose to embark upon the dangerous course of trying to state any general proposition, or to add to the somewhat confusing number of definitions of what amounts to an 'attempt,' within the meaning of Section 511, Penal Code, I will content myself with saying that, 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.
18. I agree.