An attempt to commit an offence is itself an offence. BNS S.62 is the general residuary provision that punishes attempt wherever no specific provision exists. It occupies Stage 3 in the chain from intention to commission and is the point at which the law first imposes liability on a single individual acting alone.
BNS S.62 = IPC S.511 (general attempt). BNS S.109 = IPC S.307 (attempt to murder). BNS S.110 = IPC S.308 (attempt to commit culpable homicide). Confidence: high, verified.
BNS S.62: The General Attempt Provision
"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."
When S.62 Applies
| Situation | Applicable provision |
|---|---|
| Attempt to murder | S.109 (specific provision), not S.62 |
| Attempt to commit culpable homicide | S.110 (specific provision) |
| Attempt to commit robbery with deadly weapon | S.312 (specific provision) |
| Attempt to commit any other offence with no specific attempt section | S.62 (residuary) |
S.62 is residuary: it applies only "where no express provision is made" for the punishment of the attempt.
Elements of Attempt
| Element | Content |
|---|---|
| Intent to commit an offence | The accused must intend to commit the substantive offence |
| An act done towards the commission | Not merely preparation; must go beyond and move towards the commission |
| The offence is not completed | If completed, the charge is for the full offence, not attempt |
The Preparation-Attempt Boundary (Restated)
This is covered in detail in CRIM-1.2. The summary:
| Test | Content | Authority |
|---|---|---|
| Proximity test (Indian position) | The act must be sufficiently proximate to the completed offence | Abhayanand Mishra (1961), Mohd Yakub (1980) |
| Last act test | Everything done, only external factors prevent completion | English origin, not the sole Indian test |
| Unequivocality test | Act objectively points only to the offence | Supplementary |
Specific Attempt Provisions
S.109: Attempt to Murder
| Sub-section | Content | Punishment |
|---|---|---|
| (1) | Does any act with intent or knowledge that if death were caused, he would be guilty of murder | Up to 10 years + fine; if hurt caused, imprisonment for life or such punishment |
| (2) | If the offender is under sentence of imprisonment for life and causes hurt | Death, or imprisonment for life (remainder of natural life) |
S.110: Attempt to Commit Culpable Homicide
| Content | Punishment |
|---|---|
| Does any act with intent or knowledge that if death were caused, it would be culpable homicide not amounting to murder | Up to 3 years, or fine, or both; if hurt, up to 7 years or fine or both |
Why Attempt to Murder Carries Heavier Punishment
The maximum for S.109(1) is 10 years (or life if hurt), while S.62 would give only half of the maximum for murder. The legislature provides a specific higher tariff because the proximity to the most serious offence justifies it, and because the gravity of attempted murder (the victim survives only by chance) demands a strong deterrent independently of the general formula.
Impossible Attempts
Where the offence is factually or legally impossible to complete, but the accused believed it was possible and did an act towards it:
| Situation | Position in India |
|---|---|
| Picking an empty pocket | Attempt to theft: punishable (BNS S.62 Illustration (b)) |
| Shooting at a person already dead, believed to be alive | Attempt to murder: generally punishable |
| Attempting to steal from a place where there is nothing to steal | Attempt to theft: punishable (S.62 Illustration (a)) |
Facts: The accused attempted to cause miscarriage of a woman who was not in fact pregnant.
Issue: Is an attempt punishable where the offence is impossible to complete?
Held: The attempt is punishable. The impossibility of the result does not affect the culpability of the actor, who did everything in his power with the requisite intention.
Relevance: Early Indian authority on impossible attempts. The BNS illustrations confirm this position.
Recall Check
- What is the general punishment for attempt under S.62?
- When does S.62 not apply?
- Is an impossible attempt punishable?
- State the elements of attempt.
Key Cases
Abhayanand Mishra v State of Bihar (1961) Abhayanand Mishra v State of Bihar 1961
Issue: Line between preparation and attempt (submitting false application).
Rule: Proximity test; the accused had done everything in his power.
Held: Attempt to cheat.
State of Maharashtra v Mohd Yakub (1980) State of Maharashtra v Mohd Yakub 1980
Issue: Whether being at the seashore with smuggled goods waiting for a boat was attempt.
Rule: Proximity sufficient; last act not required.
Held: Attempt to smuggle.
Queen Empress v Mangesh Jivaji (1887) Queen Empress v Mangesh Jivaji 1887
Issue: Impossible attempt (causing miscarriage of non-pregnant woman).
Rule: Impossibility does not negate the attempt.
Held: Punishable.
Distinctions
| Basis | Attempt (S.62 / specific sections) | Criminal Conspiracy (S.61) |
|---|---|---|
| Parties | May be one person | Requires two or more |
| Stage | Stage 3 (act beyond preparation) | Stage 2 (agreement) |
| External act | Essential: must go beyond preparation | Not needed for serious offences |
| Focus | The individual act towards commission | The meeting of minds |
| Punishment (general) | Up to half the maximum | Same as abetment of the offence |
| Basis | Attempt (S.62) | S.109 (Attempt to Murder) |
|---|---|---|
| Scope | Residuary: all offences where no specific provision exists | Specific to murder |
| Punishment | Up to half the maximum (10 years for life = half of 20) | Up to 10 years; if hurt caused, life imprisonment |
| Hurt enhances? | No specific enhancement | Yes: life imprisonment if hurt caused |
| Previous conviction enhances? | No | Yes: S.109(2) for life convicts |
| Basis | Attempt | Preparation |
|---|---|---|
| Proximity | Proximate to commission | Remote |
| Punishability | Always | Generally not (exceptions: S.149, S.181, S.310(4)) |
| Ambiguity | Unequivocal | Ambiguous |
| Example | Pointing loaded gun at victim | Buying a gun |
Flashcards
What is the general punishment for attempt under BNS S.62?
Up to one half of the longest term of imprisonment for the offence (or half of life = 10 years), or fine, or both.
When does S.62 NOT apply?
Where a specific provision for the attempt exists (e.g. S.109 for attempt to murder, S.110 for attempt to commit culpable homicide).
Is an attempt to commit an impossible offence punishable?
Yes. The impossibility of the result does not negate the attempt (Queen Empress v Mangesh Jivaji, 1887; S.62 Illustrations).
What is the proximity test for attempt?
The act must be sufficiently proximate to the completed offence; the last act need not have been done (Abhayanand Mishra, 1961; Mohd Yakub, 1980).
What additional punishment does S.109 carry if hurt is caused?
Imprisonment for life (or if the offender is a life convict, death or life imprisonment for the remainder of natural life).
Exam Scenario
Problem: Ganesh loads a pistol, drives to his enemy Hari's house, parks outside, and waits for Hari to emerge. After 30 minutes, Hari steps out. Ganesh fires three shots, all of which miss. Hari is unhurt. The prosecution charges Ganesh under BNS S.109 (attempt to murder). Ganesh argues that since no hurt was caused and the shots missed entirely, this is at most a case under S.62 (general attempt) and not S.109. Advise.
Step 1: Identify the offence that would have been committed if the attempt had succeeded
If any shot had hit Hari and killed him, Ganesh would have been guilty of murder under S.101 (act done with intention of causing death). The attempt is therefore an attempt to murder.
Step 2: Apply S.109(1)
S.109(1) covers 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."
| Element | Ganesh's case |
|---|---|
| Act | Firing three shots at Hari |
| Intention or knowledge | Intention to cause death (loaded pistol, aimed at Hari, three shots fired) |
| If death had been caused | Murder under S.101(a): act done with intention of causing death |
S.109 is made out.
Step 3: Reject the S.62 argument
S.62 is a residuary provision. It applies only "where no express provision is made." S.109 is the express provision for attempt to murder. S.62 is therefore excluded.
Ganesh's argument that S.62 applies because no hurt was caused confuses the enhancement (S.109 provides life imprisonment if hurt is caused) with the base offence (S.109 applies regardless of hurt). The absence of hurt reduces the maximum from life to 10 years but does not move the case out of S.109.
Step 4: Assess the punishment
| If hurt caused | Punishment |
|---|---|
| No hurt (shots missed) | Imprisonment up to 10 years + fine |
| Hurt caused | Imprisonment for life or 10 years + fine |
Ganesh faces up to 10 years.
S.62 is excluded when S.109 applies. The absence of hurt does not push the case to S.62. S.109 covers the attempt whether or not hurt results; hurt only enhances the punishment.
All three shots missing does not negate attempt. The proximity test is satisfied: Ganesh did everything in his power (loaded, aimed, fired three times). The miss is a matter of chance, not a deficiency in the attempt.
Conclusion. Ganesh is liable under BNS S.109(1) for attempt to murder. The maximum is 10 years (no hurt). S.62 does not apply.
See Also
- Stages of Crime : the full treatment of preparation vs attempt with the proximity test.
- Criminal Conspiracy : the stage before attempt, where the agreement itself is punishable.
- Culpable Homicide and Murder : the completed offence that S.109 attempts.