Inchoate Offences in Nepal: Incitement, Conspiracy, and Attempt in Nepal

Inchoate offenses, also known as incomplete or preliminary crimes, refer to actions that are undertaken with the intent to commit a crime but where the crime itself has not been fully executed. These offenses recognize the danger posed by individuals who take significant steps toward committing a crime, even if the final illegal act does not occur. Common examples of inchoate offenses include attempt, conspiracy, incitement, or solicitation.

The rationale behind criminalizing inchoate offenses lies in the prevention of harm and the protection of society. By penalizing conduct that demonstrates a clear intent and substantial step toward committing a crime, the law acts as a deterrent against future criminal acts. Inchoate offenses differ from completed crimes in that the actual harm or result intended by the offender may not have materialized, but the legal system still considers such conduct culpable.

These offenses often require proof of mens rea (criminal intent) and an actus reus (an overt act toward the commission of the crime), even if the crime is not completed. Recognizing inchoate offenses helps law enforcement intervene early and strengthens the legal framework’s ability to uphold public safety and order by addressing criminal threats at their formative stages.

Crimes that are not complete may also give criminal liability. Such inchoate offenses can be divided into three categories. They are incitement, conspiracy, and attempt. These offenses are independent in some instances. But they are interrelated, too. They below. are discussed

1. INCITEMENT

Incitement is a form of inchoate offense where a person encourages or instigates another to commit a crime with the intention that the individual will act accordingly. The actus reus (guilty act) of incitement involves provoking or urging someone, either through speech or conduct, to engage in unlawful activity. The mens rea (guilty mind) requires that the inciter intends for the encouraged individual to actually commit the offense.

If the incited crime is carried out, the person who incited it is treated as an accomplice and faces a more severe punishment than would be given for a standalone inchoate offense. However, even when the crime is not committed, the inciter remains legally liable. In such cases, since no direct harm has occurred, the punishment tends to be more lenient.

Incitement carries a dual nature in criminal jurisprudence, it functions both as an independent offense and as a contributing factor to a completed crime. These dimensions are separate yet interconnected, emphasizing the seriousness of the intention behind incitement regardless of the outcome. Beyond these basic elements, the offense includes various additional aspects that influence criminal responsibility, making it a significant part of the legal system's preventive framework.

2. CONSPIRACY

Conspiracy is an inchoate offense that involves an agreement between two or more individuals to commit a crime. The actus reus (guilty act) in conspiracy is the formation of this agreement, without an actual agreement, no conspiracy exists. The mens rea (guilty mind) requires that the agreement be made to carry out a criminal act.

Unlike a single person merely planning or preparing to commit a crime, who cannot be prosecuted until they attempt the act, conspiracy allows for earlier legal intervention. When two or more individuals come together with the shared intent to commit a crime, their mutual agreement alone can establish the offense of conspiracy, even if the crime itself is never carried out. This makes conspiracy a powerful preventive tool in criminal law.

The rationale behind criminalizing conspiracy lies in the increased threat posed by collective criminal intent. When people coordinate for illegal purposes, the likelihood of the crime being executed grows. Thus, the law intervenes at the preparatory stage to protect public order and prevent potential harm. Conspiracy emphasizes that the collaboration to commit a crime, regardless of whether it is eventually attempted or completed, itself constitutes a serious threat deserving of punishment.

There can be no conspiracy without involvement of two or more persons to commit a crime. If prosecution is instituted against A,B,C and D, but court does not find evidences against B,C,D and acquits them, A cannot be held liable to conspiracy. S/he also deserves acquittal, since there can be no conspiracy by a single person. If A is charged along with other unknown members in committing conspiracy, s/he may be convicted even though the other members are not known to the prosecutor. Conspirators are held as a combined group single person so long as they are acting in furtherance of a common goal. Act by one person can be given as evidence against the other.

Classification of conspiracy

Simple conspiracy

Conspiracy can be classified into three divisions. They are simple, wheel and chain conspiracy. If two or more persons converge together and plan to commit a crime, it is simple conspiracy. It is not complicated. It can easily be detected.

Wheel conspiracy

If a conspiracy is organized in wheel-like form, it is known as a wheel conspiracy. Here, the ring leader sits in the center and mobilizes several people in the field. The people working in the field would not be acquainted with each other. They work as per the instructions from the center. In this type of operation, since the members of the conspiracy are kept in anonymity, it is very difficult for the police to detect and arrest them all. If the ring leader is in a foreign land, s/he cannot be arrested without the cooperation of the country concerned.

Chain conspiracy

Chain conspiracy operates in chain like form. Information flows from A to B, B to C, C to D and the like to the ground level. Here, also all the members are not familiar to each other. They know only those members who are in immediate contact with them. Detection of this type of offense is also difficult for the police. If this type of activity is in institutionalized form it is known as organized crime. Regional or international cooperation becomes necessary to keep control over such crime.

If a conspiracy is carried out as per the plan, the very conspirators are divided into perpetrator and abettor, and they are liable as per the law concerned.

Muluki Criminal Code section 33 provides that group involvement in a grave and heinous crime has differential liability than in an ordinary offense punishable with not more than three years' imprisonment. In a grave and heinous crime conspiracy, all the members are equally liable if the crime is carried out into action. In ordinary offenses, the perpetrator is liable for the full punishment, and the abetting persons are liable up to half the punishment. In all types of cases, if the conspiracy has not come into action, the persons involved in it are liable for half the punishment.

3. ATTEMPT

An attempt is an inchoate offense that refers to an unsuccessful effort to commit a crime. It occurs when a person, with the intention of committing a specific offense, takes a substantial step toward its commission, but ultimately fails to complete the act. In legal terms, the person is still held liable because their conduct poses a threat to society, even if the intended harm does not occur.

To establish criminal liability for an attempt, it must be proven that the accused had a clear intention (mens rea) to commit the crime. Mere recklessness or negligence is not sufficient. Additionally, the person’s actions must have gone beyond mere preparation and entered the stage of execution (actus reus). For example, buying a weapon may be considered preparation, but pointing it at the victim could qualify as an attempt.

However, distinguishing between preparation and attempt can be challenging in practice, as the line is often blurred. Courts assess the circumstances and the immediacy of the act to determine whether it qualifies as an attempt. Despite the crime not being completed, the law penalizes such conduct to deter individuals from endangering others through deliberate, unlawful acts, even if those acts fall short of completion.

Inchoate offenses, incitement, conspiracy, and attempt play a crucial role in criminal law by addressing criminal conduct in its formative stages. These offenses recognize that harmful intent and preparatory actions can pose significant threats to public safety, even if the intended crime is not ultimately carried out. By criminalizing such conduct, the legal system reinforces deterrence, empowers early intervention by law enforcement, and protects society from potential harm.

Incitement criminalizes the act of provoking or encouraging others to commit crimes, emphasizing the seriousness of influencing others toward unlawful behavior. Conspiracy punishes individuals who agree to commit a crime together, highlighting the increased danger posed by collective criminal intent. Attempt holds accountable those who take substantial steps toward completing a crime, even if the crime remains unfulfilled.

All three offenses require the presence of mens rea (intent) and actus reus (a significant act), ensuring that only those with a clear criminal purpose and conduct are prosecuted. These offenses often overlap in practice but serve distinct functions in criminal jurisprudence. By recognizing and penalizing inchoate offenses, the law not only addresses incomplete crimes but also strengthens preventive mechanisms, enabling a proactive approach in the maintenance of law, order, and justice in society.