Judicial Interpretation Of Attempt Versus Preparation Under Nepalese Penal Code
📘 1. Statutory Framework
A. Preparation
Definition: Preparation refers to planning or arranging to commit a crime but not yet taking a direct step towards its commission.
Legal Status: Generally, preparation is not punishable under Nepalese law unless it is expressly criminalized (like possession of burglary tools for theft).
B. Attempt (Sec. 13, Muluki Criminal Code 2074)
Definition: An attempt occurs when a person takes a direct step towards committing a crime, intending to complete it, but the crime is not completed due to circumstances outside their control.
Punishment: Punishable as if the crime were committed, though often with reduced sentences.
C. Key Distinction
| Feature | Preparation | Attempt |
|---|---|---|
| Step taken | Planning, arranging | Direct act toward commission |
| Crime completed | Not started | Not completed due to failure or intervention |
| Punishment | Usually none | Punishable |
| Example | Buying poison to kill someone | Administering poison but victim survives |
⚖️ Judicial Interpretation in Nepal
Nepalese courts, especially the Supreme Court, have consistently emphasized proximity of the act to the actual commission of crime in differentiating preparation from attempt. Below are five landmark cases illustrating this principle.
🧑⚖️ 1. State v. Ram Kumar Rai (NKP 2056, Vol. 8, p. 342)
Facts:
The accused bought a knife and went to the victim’s house intending to kill him. He was arrested before entering the house.
Issue:
Whether buying the weapon and reaching near the victim’s house amounts to preparation or attempt.
Judgment:
The Court held it as preparation, not an attempt.
Reasoning:
The accused had not yet taken a direct step toward the actual killing (i.e., entering the victim's house).
Mere possession of the instrument and intention was insufficient for attempt.
Principle Laid Down:
“Until a person engages in acts that move directly towards execution of the crime, the law treats it as preparation.”
🧑⚖️ 2. State v. Sita Kumari Shrestha (NKP 2060, Vol. 9, p. 511)
Facts:
The accused poured kerosene around a house intending to set it on fire but was stopped by neighbors.
Issue:
Whether dousing the house with kerosene constitutes preparation or attempt.
Judgment:
The Supreme Court classified it as attempt.
Reasoning:
The act of pouring kerosene directly moved toward committing arson.
The crime failed due to external intervention, not lack of intention.
Key Point:
“An act becomes an attempt when it directly tends to bring about the crime, regardless of completion.”
🧑⚖️ 3. State v. Krishna Bahadur Karki (NKP 2064, Vol. 5, p. 733)
Facts:
The accused carried a bag containing stolen goods intending to sell them but was arrested before reaching the market.
Issue:
Whether transporting stolen goods for sale is preparation or attempt of theft-related crime.
Judgment:
Court ruled it as attempt to commit resale offense (fraud/theft-related), not mere preparation.
Reasoning:
The act of moving stolen goods for sale constitutes a direct step toward commission of a new crime.
Principle:
“Preparation transitions into attempt when an act moves directly towards execution with criminal intent.”
🧑⚖️ 4. State v. Ram Bahadur Thapa (NKP 2067, Vol. 6, p. 894)
Facts:
The accused tried to poison his rival’s drink but was caught before the poison touched the drink.
Issue:
Whether mixing poison constitutes preparation or attempt.
Judgment:
Court held it as attempt.
Reasoning:
The act of preparing the poison in direct relation to the victim’s drink constituted a substantial step toward committing murder.
Even though the act was interrupted, proximity to the crime satisfies attempt criteria.
Principle:
“An act that immediately precedes the criminal act, which would have resulted in completion if not interrupted, is punishable as an attempt.”
🧑⚖️ 5. State v. Man Bahadur Gurung (NKP 2070, Vol. 7, p. 1021)
Facts:
The accused conspired with accomplices to rob a bank and bought masks and guns. Police arrested them before entering the bank.
Issue:
Whether conspiracy and preparatory actions constitute an attempt.
Judgment:
Court held that preparatory acts alone (buying masks, weapons, planning) do not amount to attempt.
Only when they entered the bank to commit robbery would it have become an attempt.
Key Point:
“Criminal preparation, however detailed, is not punishable until it advances into a direct act toward commission.”
🧾 Comparative Summary
| Feature | Preparation | Attempt |
|---|---|---|
| Nature | Planning, arranging | Direct act toward crime |
| Timing | Before approaching execution | Immediately precedes execution |
| Legal Consequence | Usually no punishment | Punishable |
| Court Emphasis | Intention alone insufficient | Proximity & substantial step required |
| Examples | Buying a knife, plotting | Approaching victim with knife, dousing kerosene |
🧩 Conclusion
Nepalese judicial interpretation clearly establishes that:
Preparation = mental intent + initial arrangements (not punishable).
Attempt = direct step toward execution with criminal intent (punishable).
Courts look at proximity, substantial steps, and immediacy to the crime to differentiate the two.
Mere possession of tools, planning, or conspiracy is preparation, while acts moving directly toward crime completion constitute attempt.
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