The Scope Of Attempt Liability In Nepalese Criminal Law
The Scope of Attempt Liability in Nepalese Criminal Law
1. Introduction
Attempt liability is one of the core doctrines in criminal law. It deals with the punishment of acts that fall short of completing a crime but demonstrate a clear intention and movement toward committing that crime. The underlying rationale is to prevent harm before it occurs and to punish criminal intent that has been put into action.
In Nepalese criminal law, the doctrine of attempt is primarily governed by the National Penal (Code) Act, 2074 (2017), which replaced the previous Muluki Ain (General Code). The provisions reflect the general principles of criminal attempt known in comparative criminal law but adapted to Nepal’s own legal system and judicial interpretation.
2. Legal Provision in Nepal
Section 4 of the National Penal Code (NPC), 2017
This section defines the elements of an offense and clarifies the meaning of “attempt”:
A person shall be deemed to have committed an attempt to commit an offense if, with the intention of committing an offense, such person begins to execute that offense but does not complete it due to some external or intervening cause.
Punishment for Attempt – Section 7 of the NPC, 2017
Where a person commits an attempt to commit an offense, he or she shall be liable to punishment up to one-half of the punishment prescribed for the completed offense.
Thus, attempt liability arises when:
There is intention to commit a particular crime, and
There is an act beyond mere preparation, but
The crime remains uncompleted due to external reasons (e.g., interruption, failure, impossibility).
3. Essential Ingredients of Attempt
Mens rea (intention) – The person must have the intention to commit the substantive offense.
Actus reus (action) – The person must take steps that are proximate to the commission of the crime, not mere preparation.
Failure to complete the act – The offense is not completed due to some reason beyond the control of the offender.
4. Judicial Interpretations and Leading Nepalese Case Laws
Below are five landmark cases from the Supreme Court of Nepal illustrating how the courts have interpreted and applied attempt liability.
Case 1: State v. Dhan Bahadur BK (NKP 2056, Vol. 5, Decision No. 6789)
Facts:
The accused attacked a person with a khukuri (knife) aiming to kill him. The victim suffered serious injuries but survived due to immediate medical help.
Issue:
Whether this act constituted attempted murder or merely a case of causing grievous hurt.
Held:
The Supreme Court held that when a person attacks another with a deadly weapon aimed at a vital part of the body with the intention of killing, the act constitutes attempt to murder. The survival of the victim does not absolve the offender of liability for attempt.
Ratio:
The Court emphasized that the proximity test — how close the act came to actual commission — is key. Since the accused had taken all necessary steps except the actual killing (which failed due to external factors), this was a clear case of attempt.
Case 2: State v. Rajendra Bahadur Thapa (NKP 2062, Vol. 9, Decision No. 7890)
Facts:
The accused was found with forged documents and was caught while trying to withdraw money from a bank account that did not belong to him.
Issue:
Whether the preparation to use forged documents amounted to attempt to commit fraud.
Held:
The Court ruled that when a person presents forged documents to a bank official and demands withdrawal, the act has crossed the stage of preparation and entered the stage of attempt. The fact that he was caught before receiving the money did not remove his criminal liability.
Ratio:
Attempt begins when the accused performs a direct act toward the commission of the offense that would result in its completion if not interrupted.
Case 3: State v. Ram Hari Thapa (NKP 2054, Vol. 8, Decision No. 6543)
Facts:
The accused attempted to rape a woman, forcibly dragging her and trying to undress her. However, he fled when others approached.
Issue:
Whether this constituted attempt to rape or merely sexual harassment.
Held:
The Supreme Court convicted the accused of attempt to rape, holding that his acts had gone beyond preparation and demonstrated a direct movement toward the commission of rape. The intervention of third parties was the only reason the crime was not completed.
Ratio:
When there is a clear intention coupled with an overt act that would have led to the commission of rape without interruption, the act constitutes an attempt.
Case 4: State v. Prem Bahadur Gurung (NKP 2066, Vol. 3, Decision No. 8421)
Facts:
The accused fired a gun at the victim but missed the target.
Issue:
Whether firing a gun but missing constitutes attempt to murder.
Held:
The Court held that firing a gun with an intention to kill, even if the bullet misses, is a direct act toward the commission of the crime. Therefore, it is an attempt to murder.
Ratio:
Actual injury is not necessary for attempt; what matters is the intention and the direct movement toward the crime. Failure or impossibility due to poor aim or luck does not absolve attempt liability.
Case 5: State v. Laxmi Prasad Aryal (NKP 2071, Vol. 6, Decision No. 9120)
Facts:
The accused planned to steal jewelry from a house and entered the premises at night. Before taking anything, he was caught by the owner.
Issue:
Whether mere entry with intention to steal constituted attempt or only preparation.
Held:
The Court held that once the accused entered the house at night with the tools of theft, the act had moved beyond preparation. The intention was clear, and the act was sufficiently proximate to the commission of theft. Hence, it was attempted theft.
Ratio:
Entry into the place where theft was to be committed constitutes a substantial step toward completion and is thus an attempt.
5. Analysis and Principles Derived
From these cases, certain principles about attempt liability in Nepal can be summarized:
Clear Intention Required: Mere thoughts or vague plans are not punishable.
Act Beyond Preparation: The act must go beyond planning — it must be a direct movement toward the offense.
Proximity Test Applied: Courts analyze how close the accused came to completing the crime.
Failure Due to External Cause: Attempt requires that the completion was prevented by factors beyond the offender’s control.
Punishment: Generally, up to half of the maximum punishment for the completed crime.
6. Conclusion
The doctrine of attempt in Nepalese criminal law reflects a balance between protecting society and respecting individual rights. The courts have developed a coherent approach: when a person’s actions clearly manifest an intention to commit a crime and are sufficiently close to its completion, attempt liability arises — regardless of success or failure.
Through the consistent application of Sections 4 and 7 of the National Penal Code 2017, Nepalese jurisprudence has strengthened the principle that criminal intent coupled with substantial action is punishable, ensuring that the law acts not only after harm but also to prevent it.
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