TOPIC: Inchoate Crimes

Introduction
The criminal law punishes not only completed crimes but also short of
completion of crimes.
This category of uncompleted crimes is often called “inchoate
crimes.” In this regard, incomplete criminal conducts raise a question
as to whether it is proper to punish someone who has harmed no one
or to set free that person who was determined to commit a crime.
The term inchoate crimes refers to acts engaged in toward the
commission of criminal act, or which amount to indirect participation
in a criminal act. While such an action may not be a crime in and of
itself, it is engaged in for the purpose of furthering or advancing a
crime. These types of acts are illegal because it is in the public’s best
interest to deter people from engage in crime-promoting activity.
An inchoate crime as a criminal act that has just begun, or which is
not fully formed or developed. Technically, inchoate crimes are
incomplete crimes, in the sense that they involve such acts as:
• Planning and preparing to commit a crime
• Attempt to commit a crime, even if unsuccessful
• Conspiracy to commit a crime
• Aiding and abetting a crime
• Solicitation to commit a crime
The act may be sufficiently harmful to society ads a whole by reason
of its close proximity to the completed offence classed as a crime. A
criminal attempt not only poses a threat to bodily and proprietary
security but also infringes the right to security. Such an infringement
constitutes, in itself, a harm that penal law seeks to punish. Criminal
liability for attempt may be justified even in the absence of any harm.
An attempt to commit a crime poses no less a menace to the
legitimately confined interests of the individuals than does the
complete crime.

History of inchoate crimes

Anticipatory incipient incomplete, and preliminary crimes are all
other words for inchoate crimes act that imply an inclination to
commit a crime even though the crime is never completed. The word
“inchoate” means underdeveloped or unripened. Because of the
social need to prevent crimes before they occur, the common law long
ago established three separate and distinct categories of inchoate
crimes- the crimes of attempt, conspiracy and solicitation. Over the
years, there has been little addition to this category of crime with the
possible exception of possession (as in possession of burglar tools,
bomb materials, gun arsenal etc) and another, seldom-heard offence
based on the notion of preparation which has normally not been
associated with inchoate crimes.
Traditionally, inchoate crimes have always been considered
misdemeanours, but over the years they have been merged into
felonies as society as put more power in the hands of law enforcement
and prosecutors to deal with recalcitrant problems such as organized
crime, white collar crime, and drug crime. Traditional rules that exist
are (1) a person should not be charged which both the inchoate and
choate offence, according to the so-called doctrine of Merger, with the
exception of conspiracy which can be a separate charge (2) lesser
penalties should ideally be imposed for inchoate crimes, but in many
cases the penalty should be exactly the same as for the completed
offense. (3) inchoate crimes should have specific intent, spelling out
clearly what the mens rea elements are and (4) some evert action or
substantial step should be required in the direction of completing the
crime. This set of rules is sometimes referred to as the doctrine of
inchoate crimes.
Generally all inchoate crimes is originally incorporated in Indian
Penal Code of 1860. For example preparation, abetment, conspiracy
and attempt. But criminal conspiracy was not originally in Indian
penal code of 1960. It was incorporated in 1913 by way of chapter V
A in Indian Penal code of 1860.
The main logic behind making the preparation, abetment, conspiracy
and attempt punishable is to prevent the crime at its inception.
Precaution is better than cure, so it is proper to make punishable, the
very early stage of a crime.

Meaning and scope of inchoate crimes

Offences can be generally divided into four distinct and successive
stage-
1. Intention to commit
2. Preparation
3. Attempt to commit it
4. The actual commission of the offence
There are four stages of a complete crime. Out of these four stages
normally the liability under criminal law exists in the third and the
fourth stages only, and the accused is generally not guilty if his act
falls under the first or the second stage that is to say under the mental
stage or the preparatory stage. For instance if a wants to kill B but
does not do anything further in this regard he, being still in the mental
stage, is not guilty for any crime. With such intention if he buys a
revolver and gets a license for the same, even then he does not
commit a crime because he is still in the preparatory stage.
As we have already noticed, two elements are always necessary to
constitute a crime, namely, mens tea and actus reus. Where there is
only mean rea, there is no crime. So also, a mere evil intent or design
unaccompanied by any over act (prohibited act ), which is technically
called actus reus.
Though actus reus is necessary to constitute a crime, yet there may be
a crime even where the whose of the actus reus that was intoned has
not been consummated. For instance, a shoots at B, but misses the
aim, no actus reus is consummated and so there is clearly no murder,
but nevertheless a crime has been committed. Liability begins only at
a stage when the offender has dome some act which not only
manifests his mens rea but goes some way towards carrying it out.
These are known as inchoate crimes. Modern authors criticism the
use of the term inchoate a misleading because the word inchoate
connotes something which is not yet completed, and it is therefore not
accurately used to donate something, which is itself complete even
though it be a link in the chain of events leading to some object which
is not yet attained. The offence of incitement is fully performed even
though the person incited immediately repudiates the suggested deed.
A conspiracy is committed although the conspirator has not yet
moved to execute the proposed crime and the performance of a
criminal attempt must always have been reached before the end is
gained. In all these instances, it is the ultimate crime which is
inchoate and not the preliminary crime. The position indeed being
just the same as in the example of a man who stole a revolver and
committed other crimes to effect his purpose of murder. There the
murder was inchoate but theft and other crimes including the attempt
were completed.

Literal meanings of inchoate crimes

Inchoate {in-koe-ate} adjective
1. In an initial or early stage : incipient. 2. Imperfectly formed or
developed: a vague, inchoate idea.
(latin inchotus, past participle of inchore to begin, alteration of
incohre)
- Inchoately (adv.)
- Inchoateness (n.)
 Formal: just begun and not yet properly developed

Following are general rules regarding inchoate crimes:

a) A person cannot be charged with an inchoate offense and the
actual crime at the same time. For example, a person cannot be
charged at the same time with attempted murder as well as
murder. The person can only be charged with one or the other
at the same time. However, conspiracy is an exception to this
common rule. Accordingly, a person can be charged with muder
and conspiracy to commit murder at the same time.
b) To be convicted of an inchoate crime, it must be proven that the
person to be convicted had the specific intent (mens rea) to
commit or contribute to the actual crime.
c) Inchoate crimes must involve some outward action or a
substantial step in the completion of the crime. The person to be
convicted should have done some act in furtherance of the
crime.
An attempt to commit a crime is an act done with intent to commit
that crime and forming part of series of act which would constitute
its actual commission if it were not interrupted.
The doctrine of inchoate crimes is applied specifically to three
crimes: attempt, conspiracy and abetment.

Attempt
The term attempt has nowhere been described in the IPC chaper
XXIII titled as of attempts of commit offences does not give any
definition of attempt but simply provides for punishment for
attempting to commit an offence punishable with imprisonment for
life or imprisonment. The term however means the direct
movement towards the commission of crime after necessary
preparations have been made.
Attempt includes complete incomplete and impossible attempts.
Complete attempts occur when the perpetrator takes every
necessary step in the commission of a crime and yet is unable to
commit it. An incomplete attempt occurs when the perpetrator
takes some steps towards committing the crime but is stopped by
some intervening force outside of their control before they are able
to complete the attempt. An impossible attempt occurs when a
perpetrator takes steps towards committing a crime, only to realize
that there is something in the way making it impossible for the
crime to be completed. This would include something like trying
to commit murder when the target is already dead.
Statutes on inchoate crimes provide that individuals may be held
criminally responsible for the intent to commit a crime, even if the
crime is not actually committed. Inchoate crimes require that an
individual have the intent to commit the criminal act and they take
some step to achieve the goal.
The Indian penal code 1860 deals with attempt in three
different ways:
1. In some cases the commission of an offence and the attempt to
commit it are dealt with in the same section and the extent of
punishment is also the same for both.
Such provisions are contained in Section 121, 124, 124-A,
125,130,131,152,153A,
161, 162, 163, 165, 196, 198, 200, 213, 239, 240, 241, 251, 385,
387, 389, 391, 394, 395, 397, 459 and 460
2. In some cases attempts are treated as separate offence and are
punished accordingly. There are four grave offences, attempts
are described separately but side by side with the offence and
specific punishment is prescribed for them. These are: -
a) Murder is defined under section 300 penal provision is there in
section 302 of Indian penal code 1860 and attempt to murder
under section 307.
b) Culpable homicide not amounting to murder is punishable under
section 304 and attempt to commit culpable homicide is under
Section 308.
c) Attempt to commit suicide punishable under Section 309.
However 309 stands as a class by itself as the completed offence
here is not punished as it cannot be punished. This is a very
controversial area and the constitutional validity of Sec.
d) Dacoity with murder is punishable under Section 396 and
dacoity with an attempt to cause death is punishable under
Section 397. Voluntarily causing hurt in committing robbery is
punishable under Section 394 and attempt to cause grievous hurt
in committing robbery is punishable under Section 397.
3. Provision has been made in Section 511 in respect of those
offences which are not covered by the above two categories i.e.
which are not otherwise provided for in the Indian Panal Code.
The Indian Penal code has not defined the word ‘attempt’.
Therefore it must be taken in its ordinary meaning. This is exactly
what the provision of Sec. 511 requires. Sec. 511 is the solitary
provision included in the last Chapter of the Indian Penal Code,
1860, under the title “of Attempt to Commit Offences”. It makes
attempt to commit a crime a punishable offence. This section
provides for punishment for attempting to commit offences
punishable with imprisonment for life or other imprisonment.
The fifth Law Commission of India expressed its dissatisfaction
about the manner in which the law of attempt, in general, and
Section 511, in particular, is sketched and made operative in India.
Terminology of Section 511, according to it, is most mystifying. It
is not only of “little assistance” in defining “attempt” but, contrary
to legislative intent, also suggests that each act, in series of acts
done by an accused “towards the commission of the offence”, is
punishable as an attempt. Such an interpretation obliterates the
inbuilt distinction between “preparation” and “attempt”. So, the
Law Commission, after making an enriching survey of prevailing
definition of attempt, proposed some structural as well as
substantive changes. It proposed deletion of Section 511 and
insertion of a new Chapter VB entitled “Of attempt” consisting of
the two Sections 120C and 120D after Chapter VA dealing with
“Criminal Conspiracy”. It is an effort to group inchoate crimes
together.

Conspiracy
A conspiracy occurs when two or more people agree to commit an
illegal act and take some step toward its completion. Conspiracy is
an inchoate crime because it does not require that the illegal act
actually have been completed. For instance, a group of individuals
can be convicted of conspiracy to commit burglary even if the
actual burglary never happens. Conspiracy is also unique in that,
unlike attempt, a defendant can be charges with both conspiracy to
commit a crime, and the crime itself if the crime is completed.
120A. Definition of criminal conspiracy – When two or more
persons agree to do, or cause to be done.
(1) an illegal act
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
 Explanation – It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental to that
object.
Ingredients – The ingredients of this offence are:-
(1) That there should be an agreement between the persons who are
alleged to conspire.
(2) That the agreement should be: (i) for doing of an illegal act (ii)
for doing by illegal means an act which may not itself be illegal.

Elements of a Conspiracy
Conspiracy first requires a showing that two or more people were in
agreement to commit a crime. This agreement does not have to be
formal or in writing. All that is required is that the parties had a
mutual understanding to undertake an unlawful plan. Second, all
conspirators must have the specific intent to commit the objective of
the conspiracy. This specific intent requirement does not require that
each individual knows all the details of the crime or all of the
members of the conspiracy. As long as an individual understands that
the act being planned is a criminal one and proceeds nonetheless, he
can be charges with conspiracy.
Finally, in most states, conspiracy requires an “over act” taken in
furtherance of the crime. This overt act does not have to be the
crimeitself, nor does it have to be an act that is illegal. Rather, the act
must merely be a step taken in furtherance of the criminal objective,
such as buying a weapon or holding a meeting to plan an attack. The
act must also take place after the group of individuals ha agreed to
conspire. Actions taken before the agreement do not fulfil this
requirement.
General conspiracy and separate conspiracies – In order to
constitute a single general conspiracy there must be a common design
and a common intention of all to work in furtherance of the common
design. It is not required that a single agreement should be entered
into by all the conspirators at one time. Each conspirator plays his
separate part in one integrated and united effort to achieve the
common purpose. Each one is aware that he has a part to play in a
general conspiracy though he may not know all its secrets or the
means by which the common purpose is to be accomplished. The evil
scheme may be promoted by a few, some may drop out and some may
join at a later, stage, I but the conspiracy continues until it is broken
up. The conspiracy may develop in successive stages. There may be
general plan to accomplish the common design by such means as may
from time to time be found expedient. New techniques may be
invented and new means may be devised for advancement of the
common plan.
In facts the steps adopted by one or two of the conspirators without
the knowledge of others will not affect the culpability of others when
they are associated with the object of the conspiracy. It is not
necessary that a person should be a participant in a conspiracy from
start to finish. Conspirators may appear and disappear from stage to
stage in the course of a conspiracy.

Abetment
Abetment will be examined in two parts. In the first portion, we shall
examine the scope of s 107 providing for abetment and definition of
abettor is s 108. In the second part, we shall study the provision
proposing liability for abetment in its various manifestations and
results, and the punishment imposed for the various offences.
Section 107 defines abetment of a thing. A person abets the doing of a
thing when: (1) he instigates any person to do that thing: or (2)
engages with one or more other persons in any conspiracy for the
doing of that thing: or (3) intentionally aids, by act or illegal
omission, the doing of that thing. These thing are essential to
complete abetment as a crime. The abetment, thus, may be by
instigation, conspiracy or intentional aid.
The definition of abetment in the chapter is general in nature. It does
not make the abetment of an ‘offence’ but of a ‘thing’, which may or
may not be an offence. This makes the abettor solely liable in some
case, even though the person abetted may be wholly innocent.
There are sometimes when the individual incites another to commit a
crime for him, thus absolving him of any actus reus and thereby any
responsibility for the crime. Through the offence of incitement and
abetment, the legal system takes a strong stand against any wrongful
act of an individual that leads to the commission of a crime. Thus, the
main rationale behind inchoate crimes is to discourage individuals
from the commission of a crime not only themselves, but also through
the incitement.
In such offences, it is not the main aim that is being punished, but is
the act or thought in pursuance of the main aim that is punished. It is
of the belief that the offense that the individual wishes to commit is of
such grievous nature that in case of failure to commit the said crime,
it is in the public interest to prosecute the acts done in pursuance of
the crime. People prosecuted for the commission of inchoate crimes
do not commit direct harm through the actions undertaken, but for the
harm that they could have caused if the act had been committed.
Inchoate crimes are basically incomplete crimes are acts involving the
tendency to commit, or to indirectly participate in a criminal offense.

Defenses to Inchoate Crime

A person charged with an inchoate crime may have several options to
present a defense.
Possible defences to inchoate crime would vary by jurisdiction.
Abandonment
An individual may claim, as a defense to inchoate crime charges, that
he had abandoned his efforts to commit the crime, even though he
may have engaged in some amount of planning. He may argue that he
did not conspire, nor attempt, to commit the crime. In order to prove
abandonment as a defense to inchoate crime, it must be shown that he
had voluntarily and completely abandoned his efforts toward
committing the crime. In fact, to successfully prove abandonment as a
defense to an inchoate crime, the defendant must prove that he did at
least one of the following: Impossibility
An impossibility defense relies on the defendant’s claim that whatever
illegal act he had been planning simply could not be accomplished
because of some unforeseen event. Impossibility can be divided into
two basic categories: legal impossibility, and factual impossibility.

Legal impossibility
If a defendant argues that what he had intended to do turned out to not
be a crime after all, he is taking a legal impossibility defense.

Factual Impossibility
A defendant may claim a defense of factual impossibility if
circumstances made it impossible for him to have completed the
crime he intended to commit.