Bhagwati vs The State

D.K. Triredi, J.—Criminal Revision No. 166/83 is directed against the order dated 15-3-83 passed by Shri S. B Singh, VII Addl. Sessions Judge, Lucknow in Criminal Appeal No. 215/82. The revisionist was prosecuted under Sections 379, 511 IPC. He was convicted under Sections 379, 511 IPC and sentenced to pay a fine of Rs 250 and in default of payment of fine, he shall under go imprisonment for a period of two months.

According to the prosecution case, on 16-12-81, at about 9.10 p m., P.W. 2 Shri Asim Kumar Banerjee, Junior Engineer, U.P. State Electricity-board, received a complaint, about power failure in Thimayya Road. It is said that on receiving the said information, he alongwith Shri Atnar Nath Mishra reached Thimayya Road and there ihev found some one standing on the platform of the transformer pole. Shri Banerjee, then called the person to come done but the said person jumped down and tried to run away. Shri Banerjee, than raised an alarm and it is said that two constables who were on patrol duty, reached there and arrested the revisionist at about 9.20 p.m. It was found that the person arrested is Bhagwati who is in the employment of U.P. State Electricity Board in Husainganj, Sub-station. He had a bag in his hand in which a plause, a screw driver and a hammer were recovered His cycle was also found near the transformer. It is further said that when the transformer was checked, then, it was discovered that one phase of the transformer has been closed. Revisionist Bhagwati was brought to the Police-Statioa Cantt, where a report Ext. Ka-1 was lodged against the revisionist. The case was investigated, and after completing the investigation, the charge-sheet was submitted against the revisionist.

In support of its� case, prosecution examined two witnesses. PW 1 is Shri Krishna Kumar, Constable of P S. Cantt., who stated that at the time of the incident, he was on patrol duty. PW 2 is Shri A.K. Banerjee, who also supported the prosecution case.

On the other hand, the accused denied the prosecution case and stated that he has been falsely implicated in this case. He also examined himself in defence as DW 1. He stated that he was going to his �sasural� which situated at Teli Bazar on the date of the incident He further stated that as soon as he reached near the place of the incident, kept the cycle and started passing urine standing near the pole, some milatary persons came there and arrested the applicant on the suspicion that the applicant is involved in cutting of electric wire. Both the courts below have believed the testimony of eye witnesses and recorded a finding of the fact that the prosecution has succefully proved the guilt of the revisionist. Aggrieved by the said order, the revisionist filed the present revision.

I have heard the Learned Counsel for the parties and also gone through the records of the case.

The sole contention of the Learned Counsel for the revisionist is that even accepiing the prosecution case, the case falls within the definition of preparation and it cannot be said that the revisionist is guilty for attempt to cut the electric wire. The sole question, therefore, arising out in this revision is that whether the act of the revisionist amounts to an attempt to theft or was merely an act of preparation for the commission of the said offence. According to the Learned Counsel for the revisionist, the act of the revisionist is nothing else than preparation as no wire was found cut on the spot. In my opinion no exhaustive definition of attempt is possible but attempt means any act that can clearly be described as one of the serise which un-interrupted and successful would constitute a crime. Whereas, the preparation is only preliminary arrangement. The line between the preparation and attempt is very thin and an attempt to commit an offence starts where the person acts further after completing preparation. A person before committing an offence first intents to commits the offence and, thereafter, makes preparation for the same. Upto this stage, he cannot he held guilty of any offence but after having made preparation and with intent to commit the offence if he proceeds further and acts further towards the commission, short of actual commission of an offence, then the said act comes within the definition of attempt. Attempt completed if he acts further towards commission of the offence but fails to commit the offence due to reasons beyond his control.

Keeping in mind the above mentioned proposition of law, the question is that whether climbing on the electric pole or standing on the platform of the transformer coupled with the fact that the phase of the transformer was found closed, was an act done towards the commission of the offence. In the instant case, the revisionist was charged for the attempt to cut the electrict-wire. According to the prosecution case, Shri Asim Kumar Banerjee. received an information about the failure of electricy in Cantt. Road at about 9.10 p.m. He reached the place of the occurrence immediately and he found the revisionist standing on the platform of the transformer pole. On checking it was found that one side phase of the transformer has been closed. The revisionist, seeing the witnesses jumped down and tried to run away. On the basis of the above mentioned fact, in my opinion, it cannot be said that the revisionist is only making preparation for cutting of the electric wire and he has not made any attempt to cut the electric wire. In fact, from the perusal of the evidence it appears that he failed to cut electric wire as the witnesses reached there and they challenged him. No valid explanation comes from the side of the revisionist as to why he was standing on the platform of the transforaer. The accused in his statement stated that he was arrested by the persons on the suspicion and on the ground that there was an electricity failure and the revisionist was suspected to be thief of electric wire. In support of his contention, the applicant�s counsel cited a case of Province of Bihar Vs. Bhagwat Prasad, . In the said case, the accused was the Incharge, of the godown and he was charged for an attempt to mis-appropriate the grain-bags. In this case, he scattered certain numbers of the bags in one of the rooms after removing the same from the godown. It was not disputed that he had neither manipulated the register nor actually tried to remove the said grain bags instead of scattering them in another room- In my opinion, the facts of the said case are quite different with the present case, therefore, the principle enumerated in the said case, cannot be relied upon in this case. Another case of Allahabad High Court namely Thakur Gulab Singh v. Emperor reported in 1916 CriLJ 43l , has also been cited by the applicant�s counsel but the facts of the said case are also quite different with the facts of the present case. In the said case, the Police Officer took photographs of under trial but there is no evidence to show that the intention of the Police Officer was to fabricate false evidence. In one of the case Malkiat Singh Vs. The State of Punjab, the Hon�ble Supreme Court explained the difference between preparation and attempt. The Hon�ble Supreme Court, while considering the difference observed that :

If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a hay stack at the time of the purchase. Nor can he be convicted of this offence if he approaches to stack with the matches in his pocket, but if he bends down near to stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it.

Keeping in mind of the above mentioned proposition of law, in my opinion the act of the revisionist comes within the ambit of attempt and he had crossed the ambit of preparation. In order to complete his act of wire cutting the revisionist climbed up on the electric pole and reached on the platform of the transformer. He also closed one of the phase of the transformer in order to cut the electric wire but, thereafter, he could not actually cut the wire as the witnesses arrived there on the spot and he then jumped down and tried to run away. The revisionist, thereafter, arrested by the witnesses and from his possession a plause a screw driver and a hammer were recovered.

In view of the facts stated above, in my opinion the revisionist is guilty of an attempt to cut electric� wire.

The revision has, therefore no force and is dismissed accordingly.