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Arjun Singh Yadav & Anr vs The State Of Bihar on 20 December, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.2432 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

1. Bimlesh Kumar @ Bimal Kumar, Son of Surendar Singh, R/o Village- Bhagya
Nagar.

2. Ravi Singh @ Ravia, Son of Pratap Singh Chouhan, R/o Village- Pubiya,

3. Sarvesh Kumar Son of Ganga Ram Sharma, All R/o Village- Kishuni, P.S.-
Kishuni, District- Manipuri (U.P.).

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 2514 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

1. SHAMBHU BURNWAL @ SHAMBHU SINDURIA @ SHAMBHU DAS Son
of Huro Modi, Resident of Village- Bichkorwa, Police Station- Chakai, District-
Jamui.

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 2470 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

1. Arjun Singh Yadav, Son of Bhajan Lal, R/o Village- Khajiriya,

2. Umed Singh Son of Panchilal Yadav, R/o Village- Harichandarpur, Both are
P.S.- Alao, District- Manipuri (U.P.),
…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 2483 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

1. Karu Miyan @ Mustafa Miyan, Son of Md. Sultan, Resident of Village-
Dhodhari, Police Station- Simuttalla, District- Jamui.

…. …. Appellant/s
Versus

1. The State of Bihar.

Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

2/21

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 2834 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

1. PARAMVEER YADAV @ PARVEER YADAV Son of Late Rash Bihari Yada v
Resident of Village – Punsiya, P.S. Rajoun, District – Banka.

…. …. Appellant/s
Versus

1. The State of Bihar.

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 3141 of 2017
Arising Out of PS.Case No. -54 Year- 2015 Thana -SIM ULTALA District- JAM UI

Chandra Kishor Das
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

(In CR. APP (SJ) No.2432 of 2017)
For the Appellant/s : Mr. Yogesh Chandra Verma, Advocate
Mr. Pankaj Kumar Jha, Advocate
For the Respondent/s : Mr. D.K. Sinha, APP
For the IOC : Mr. Ajay Kumar Thakur, Adv.
(In CR. APP (SJ) No.2514 of 2017)
For the Appellant/s : Mr. Mr. Yogesh Chandra Verma, Advocate
Mr. Pankaj Kumar Jha, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
For the IOC : Mr. Ajay Kumar Thakur, Adv.
(In CR. APP (SJ) No.2470 of 2017)
For the Appellant/s : Mr. Yogesh Chandra Verma, Advocate
Mr. Pankaj Kumar Jha, Advocate
For the Respondent/s : Mr. D.K. Sinha, APP
For the IOC : Mr. Ajay Kumar Thakur, Adv.
(In CR. APP (SJ) No.2483 of 2017)
For the Appellant/s : Mr. Mr. Yogesh Chandra Verma, Advocate
Mr. Pankaj Kumar Jha, Advocate
For the Respondent/s : Mr. D.K. Sinha, APP
For the IOC : Mr. Ajay Kumar Thakur, Adv.

(In CR. APP (SJ) No.2834 of 2017)
For the Appellant/s : Mr. Mr. Sanjay Kumar Jha, Advoate
Mr. Satyaveer
For the Respondent/s : Mr. Binod Bihari Singh, APP
For the IOC : Mr. Ajay Kumar Thakur, Adv.
(In CR. APP (SJ) No.3141 of 2017)
For the Appellant/s : Mr. Pankaj Kumar Sinha, Advocate
For the Respondent/s : Mr. Mayanand Jha, APP

Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

3/21

For the IOC : Mr. Ajay Kumar Thakur, Adv.

Mr. Krishna Chandra, Adv.

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V. JUDGMENT
Date: 20-12-2017

These appeals have been preferred by the appellants against the

common judgment dated 24.07.2017 and order of sentence dated

24.07.2017 passed by Sri Rajesh Kumar, Additional Sessions Judge, –

I, Jamui in Sessions Trial No. 250 of 2016, whereby the appellants

were convicted for the offences punishable under Sections 379/511 of

the Indian Penal Code and were sentenced to undergo R.I. for two

years, under Section 401 of the Indian Penal Code and sentenced to

undergo R.I. for three years, under Section 3 of the Prevention of

Damage to Public Property Act, and were sentenced to undergo R.I.

for three years, and further convicted the appellants under Section

15(2) of Petroleum and Minerals Pipeline Act, 1962 and were

sentenced to udnergo R.I. for five years, with a fine of Rs. 5,000/- and

on default of payment of fine, further S.I. of three months. All the

above sentences were directed to run concurrently.

2. Facts indispensable for adjudication of present appeals are that

Officer In-charge, (P.W. 1) Simultalla police Station, recorded his self

statement stating there in that on 23.12.2015 at 12.30 A.M., he

received a secret information that at Simultalla Chandramnadih Road

near Bijonabad, a car is parked and some persons were standing there

and on that information, he along with his police force proceeded

towards the said place and surrounded that place and found some
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persons were digging the field. On seeing the police party, some

persons tried to flee away but seven persons including appellants,

namely, Bimlesh Kumar @ Bimal Kumar, Karu Miyan @ Mustaffa,

Ravi Singh @ Raviya, Sarvesh Kumar, Arjun Singh Yadav, Umed

Singh and Chandra kishor Das and the persons, who were

apprehended on the spot disclosed the name of persons, who had

succeeded in fleeing away as Shambu Burnwal @ Shambu Sindurai

(appellant) and Pramvir Yadav (appellant). It has also been alleged

that police found two ditch near the pipe line in the field of one

Monka Yadav measuring 2‟ length 3‟ width and 2 ½”. Further on

search police recovered one Mahindra Maxico, one Hero Honda

generator, digging and welding machine, Kudal, Gaita, Rod and other

articles. Seizure list was prepared and the same was handed over to all

the accused persons.

3. On the basis of above, Simultalla P.S. Case No. 54 of 2015,

under Section 379/511 and 401 of the Indian Penal Code, Section

15(2) and 14(4) of the Petroleum and Mineral Pipeline Act, Section

3/4 of the Explosive Substance Act and Section 3/4 of the Prevention

of Damage to Public Property Act, was registered against the

appellants and others and after investigation, charge-sheet was

submitted on 19.02.2016 vide charge sheet no. 06 of 2016 against the

seven above named accused persons except the appellant Paramveer

Yadav and Shambu Burnwal @ Shambhu Sinduria.

4. Cognizance of the offence was taken and, thereafter, the case
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was committed to the court of sessions, which ultimately traveled to

the file of Sri Rajesh Kumar, learned Additional Sessions Judge, -I,

Jamui, for trial and disposal.

5. Charges were framed under Sections 379, 511 and 401 of the

Indian Penal Code, Section 3 /4 of Prevention of Damage to Public

Property Act, Section 3/4 of the Explosive Substance Act and Section

15(2) and 15(4)of the Petroleum and Mineral Pipeline Act.

6. In this case altogether five witnesses have been examined from

the side of the prosecution, who happens to be police personnel and

they are: P.W. 1- Navnish Kumar (informant), P.W. 2- Sachidanand

Dubey, P.W. 3-Narendra Singh, P.W. 4- Sheo Kumar Mandal, P.W. 5

– Ashwani Kumar (Investigating Officer).

7. Apart from above, following documentary evidences have been

admitted into evidence and marked as ; Ext. 1. writing and signature

of informant on written petition, Ext. 2. Signature of Narendra Singh

on seizure list and Ext. 3 Formal F.I.R. Further articles seized were

produced in the Court and they were marked as:-

Ext. I – Honda Generator EU65, 5.5 KVA
Ext. II – Welding machine
Ext. III – Valve of 50 MM
Ext. IV – Iron rod with 8″ drill beat annexed.
Ext. IV/A – Two threaded iron rod of 38″ long
Ext. V – Welding Electrode Rod 38″ long 67 pieces and 14″ long 92
pieces
Ext. VI – Iron disk of four holes.

Ext. VII – Iron disk of four holes
Ext. VIII – G.I. Pipe having one disk on top
Ext. IX – G.I. Pipe having a plate 5″x7″ in one side and a iron disk on
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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other side.

Ext. X – Drill
Ext. XI – Pipe wrench of 50 MM
Ext. XII – Electrode holder
Ext. XIII – 10″ long wire
Ext. XIV – Iron clamp 8.5″ long
Ext. XV – 2 ½” round clamp
Ext. XVI – Two wrench 24/26
Ext. XVI/A – One wrench 24/27
Ext. XVI/B – One wrench 30/32
Ext. XVI/C – One wrench 14/15
Ext. XVI/D – One wrench 16/17.

Ext. XVII – One steel pipe
Ext. XVIII – 12 pieces nut and bolt
Ext. XIX – One nut bolt of 4.6″

Ext. XIX/A – One nut bolt of four bashers
Ext. XIX/B – One nut bolt of 3″

Ext. XIX/C – Six pieces barring basher
Ext. XX – Six pieces M-seal
Ext. XXI – One iron plate
Ext. XXII – Carbide wrapped in polythene
Ext. XXIII – One nut bolt length 8″

Ext. XXIV – Two plastic ropes of 20″ each
Ext. XXV – One black spectacle.

Ext. XXVI – One spade.

Ext. XXVII- One Gainta
Ext. XXVIII – Black and white colour mobile.
Ext. XXVIII/A- Black colour mobile of Spice company
Ext. XXVIII/B – One mobile of green colour
Ext. XXVIII/C – One white mobile.

8. It appears from perusal of the records that neither any oral nor

any documentary evidence has been adduced on behalf of the defence

and from the statement of the appellant recorded under Section 313

Cr.P.C, the defence of the appellants appear to be of innocence and
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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false implication.

9. Learned Trial Court after conclusion of trial convicted the

appellants under Sections 379/511 of Indian Penal Code, Section 401

of the Indian Penal Code, Section 3 of the Prevention of Damage to

Public Property Act and Section 15(2) of Petroleum and Minerals

Pipeline Act, and sentenced him as stated above.

10. Aggrieved by the said judgment, appellants preferred the

present appeal.

11. P.W. 1, is the informant of this case and he has stated in his

evidence that he was posted as SHO of the Simultallah police station

and on 21.12.2015, he received information at about 12 „O‟ clock in

the night that a vehicle is being parked near the petroleum pipeline,

situated near the Bijonabad Kothi, and some persons are standing

there and on that information, he formed a team of police officials and

proceeded and surrounded the place and found that some persons were

digging the field and, thereafter, apprehended Karu Mian, five other

accused persons and one driver, they disclosed the name of two other

persons, namely, Shambu Burnwal@ Shambhu Sinduria and

Paramveer Yadav @ Parveer Yadav, who succeeded in fleeing away,

taking advantage of the night. His evidence also discloses that several

articles including Mahindra Maxico, one Hero Honda generator,

digging, dragging and welding machine, Kudal, Gaita, Rod etc., were

seized and as there was no independent person available to become

the witness of seizure list in the night, accordingly, seizure list was
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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prepared and two police personnel present there became the seizure

list witness. His evidence also disclosed that earlier also a case was

lodged for committing theft of petroleum products from same place.

His evidence further disclosed that the field, which was alleged to

have been dug by the appellants, was a fertile land. He has also stated

in his evidence that at the time of raid, no hole was found in the

pipeline and there was no oil coming out from the said pipeline. His

evidence further shows that he had not recorded the statement of any

of the accused persons. He has also admitted in his evidence that

names of Shambhu Burnwal @ Shambu Sinduria and Paramveer

Yadav @ Parveer Yadav have been disclosed by the accused persons,

arrested on the spot and both these appellants have no criminal

antecedents.

12. P.W. 5 is the Investigating Officer in this case and his evidence

also shows that he has produced the seized articles in the court, which

has been marked as material exhibits I to XXVIII/C. This witness has

admitted that there is no seal nor any signature of police official over

the seized articles. His evidence in para -2 also shows that at the place

of occurrence besides the pipeline, a ditch was being dug and he has

also given the boundary of the same. He further stated that accused

persons were trying to extract the oil by making hole in the pipeline.

13. P.W. 2, 3 and 4 are also police personnel and as per their

evidence, they were present at the place of occurrence at the time of

arrest of the accused persons and seizure of articles. Evidence of
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P.W. 2 in para -1 also shows that a ditch was being dug near the

parked vehicle on which, generator was loaded and other articles were

also there. He also stated about arrest of the seven accused persons.

This witness has also admitted in para -8 of his evidence that he had

not seen any hole in the pipeline nor the oil was coming out from the

pipeline. This witness has further stated in his evidence in chief about

digging of a ditch and arrest of seven accused persons. Evidence of

P.W. 3 also shows that ditch was being dug near the place of

occurrence. P.W. 4 has stated that the pipeline was crossing through

the Bijonabad Kothi and he along with others reached there and

arrested the accused persons and seized the articles. This witness has

also stated about digging of a ditch near the pipeline.

14. On perusal of the above prosecution evidence, it appears that

there are consistent prosecution evidence about the arrest of the

appellants other than appellants in Criminal Appeal (SJ) No. 2514 of

2017 and Criminal Appeal (SJ) No. 2834 of 2017 and they have also

consistently stated about the seizure of material exhibits from there

and their evidence further shows that a ditch was being dug near the

pipeline.

15. Submission of learned counsel for the appellants in all the

appeals is that they have falsely been implicated in this case and there

is nothing available on record to show that they were making any

attempt to commit theft of petroleum products from the pipeline.

There is also nothing on record to show that appellants were trying to
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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penetrate the pipeline or were inserting any device to extract

petroleum products from the said pipeline rather the evidence on

record shows that no theft of petroleum product was made and though

it is alleged that some of the accused persons were digging ditch and

some were standing, however, it has not been proved that those

ditches were new ones or old, whereas, the evidence disclosed that

earlier a theft of petroleum product was committed at that place.

Further submission is that neither any independent witness of the

locality nor the chowkidar of that area nor the owner of the field,

where ditches were found, has been examined. Further no official of

Indian Oil Corporation of that area has been examined in support of

the prosecution case of digging ditches near the pipeline.

16. Further contention of learned counsel for the appellants is that

even if the entire evidence is believed to be true, at best it can be a

case of preparation, which will not come under the definition of

attempt to commit theft and preparation and attempt to commit theft

are two different things, which has been considered in catena of

decisions of Hon‟ble Apex Court. In support of his contention,

learned counsel for the appellants has relied upon the Judgment of

Hon‟ble Supreme Court in the case of Malkiat Singh and Another v.

State of Punjab, reported in AIR 1970 Supreme Court 713, in the

case of Chaturi Yadav and others vs. State of Bihar reported in

AIR 1979 Supreme Court 1412 and further on the decision of this

Court in the case of Manoj Kumar @ Manoj Kumar Gupta vs.
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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State of Bihar reported in PLJR 2007(1) 320. It has also been

contended that only circumstance that has come against the appellants

except appellants in Criminal Appeal (SJ) No. 2514 of 2017 and

Criminal Appeal (SJ) No. 2834 of 2017, is that they were arrested on

the spot and one ditch was found dug near the pipeline and seizure of

material exhibits from the place of occurrence, on which also, no

signature of any police official or witness are mentioned to show that

the same has been recovered from the place of occurrence in

connection with present case. The above circumstance is not in itself

sufficient to convict the appellants in this case.

17. Further contention of learned counsel for the appellants is that

so far appellants, namely Shambhu Burnwal @ Shambhu Sinduria and

Paramveer Yadav @ Parveer Yadav are concerned, even according to

prosecution case, they were not arrested on spot nor any incriminating

material has been recovered from them and their names have been

disclosed by the other appellants before the police, which is not

admissible in law. Further submission is that against appellant

Chandra kishor Das, evidence has come about his presence, but the

prosecution evidence itself shows that he was driver of the vehicle.

18. On the basis of above submission, learned counsel for the

appellants urged that conviction and sentence of appellants under

Sections 379/511 of the Indian Penal Code, Section 401 of the Indian

Penal Code, Section 3 of the Prevention of Damage to Public Property

Act and Section 15(2) of Petroleum and Minerals Pipelines Act, 1962,
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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is not sustainable in the eye of law and fit to be set aside.

19. On the other hand, learned counsel for the State as well as

learned counsel for Indian Oil Corporation has submitted that the

appellants were caught on the spot in the dead night near the place of

occurrence and some of them were found digging the ditch near the

pipeline as well as the fact that material exhibits have been recovered

from the place of occurrence and all these facts goes to show that they

were making attempt to commit theft of the oil from the pipeline and

were also causing mischief to damage the pipeline, which is a public

property and were making or caused to make unauthorized connection

to extract petroleum product from said pipeline. The conduct of the

appellants is also relevant under Section 8 of the Indian Evidence Act,

which goes against them. Further, there is no explanation by the

appellants for their presence at the place of occurrence and recovery

of material exhibits from the place of occurrence. On the basis of the

above, it has been contended that conviction of appellants under

Sections 379/511 of the Indian Penal Code, Section 401 of the Indian

Penal Code, Section 3 of the Prevention of Damage to Public Property

Act and Section 15(2) of Petroleum and Minerals Pipeline Act, 1962,

is just and proper and does not require any interference.

20. It appears that main thrust of the argument of learned counsel

for the appellants is that no case is made out either under any section

of Indian Penal Code or under Prevention of Damage to Public

Property Act as well as Petroleum and Minerals Pipeline Act, against
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

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the appellants as the evidence only shows about their presence at the

place and some devices were seized and except that there is nothing

against the appellants and at best it will come under purview of

preparation. This court is well aware that preparation and attempt are

two different thing and attempt is something more than preparation.

On going through the para -4 of the judgment as relied upon by

learned counsel for the appellants in the case of Malkiat Singh and

Another v. State of Punjab (supra), it appears that the Hon‟ble Apex

Court has observed as under:-

“The preparation consists in devising or arranging the means or
measures necessary for the commission of the offence. On the
other hand, an attempt to commit the offence is a direct
movement towards the commission after preparations are made.
In order that a person may be convicted of an attempt to commit
‘a crime, he must be shown first to have had an intention to
commit the offence, and secondly to have done an act which
constitutes the actus reus of a criminal attempt. The sufficiency
of the actus reus is a question of law which had led to difficulty
because of the necessity of distinguishing between acts which
are merely preparatory to the commission of a crime, and those
which are sufficiently proximate to it to amount to an attempt to
commit it. 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 haystack at the time of the
purchase. Nor can he be convicted of this offence if he
approaches the stack with the matches in his pocket, but, if he
bends down near the 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. Sir James Stephen, in his Digest
of Criminal Law, art. 50, defines an attempt as follows:

“‘an act done with intent to commit that crime,
and forming part of a series of acts which would
constitute its actual commission if it were not
interrupted. The point at which such a series of
acts begins cannot be defined, but depends upon
the circumstances of each particular case.”

The test for determining whether the act of the appellants
constituted an attempt or preparation is whether the overt acts
already done are such that if the offender changes his mind and
does not proceed further in its progress, the acts already done
would be completely harmless. In the present case it is quite
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possible that the appellants may have been warned that they had
no licence to carry the paddy and they may have changed their
mind at any place between Samalkha Barrier and the Delhi-
Punjab boundary and not have proceeded further in their
journey. Section 8 of the Essential Commodities Act states that
“any person who attempts to contravene, or abets a
contravention of, any order made under section 3 shall be
deemed to have contravened that order”. But there is no
provision in the Act which makes a preparation to commit an
offence punishable. It follows therefore that the appellants
should not have been convicted under s. 7 of the Essential
Commodities Act.”

21. Similarly, in Chaturi Yadav and others vs. State of Bihar,

Hon‟ble Apex Court while considering a case under Section 399/402

of Indian Penal Code has held that ” The evidence led by the

prosecution merely shows that eight persons were found in the school

premises. Some of them were armed with guns, some had cartridges

and others ran away. The mere fact that these persons were found at 1

A.M. does not, by itself, prove the appellants had assembled for the

purpose of committing dacoity or for making preparations to

accomplish that object. While dealing with a similar issue, a

single Bench of this Court in the case of Manoj Kumar @ Manoj

Kumar Gupta vs. State of Bihar (supra) has also relied upon the

above judgment in Malkiat Singh and Another v. State of Punjab

(supra). While dealing with a case under Section 376/511 Indian

Penal Code, the difference between preparation and attempt has also

been considered by Hon‟ble Apex Court in the case of Aman Kumar

and Another v. State of Haryana reported in AIR 2004 Supreme

Court 1497 and it has been observed by Hon‟ble Apex Court in para

9, 10 and 11 that:-

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“9 A culprit first intends to commit the offence, then makes
preparation for committing it and thereafter attempts to commit
the offence. If the attempt succeeds, he has committed the
offence; if it fails due to reasons beyond his control, he is said to
have attempted to commit the offence. Attempt to commit an
offence can be said to begin when the preparations are complete
and the culprit commences to do something with the intention of
committing the offence and which is a step towards the
commission of the offence. The moment he commences to do an
act with the necessary intention, he commences his attempt to
commit the offence. The word ‘attempt’ is not itself defined, and
must, therefore, be taken in its ordinary meaning. This is exactly
what the provisions of Section 511 require. An attempt to
commit a crime is to be distinguished from an intention to
commit it; and from preparation made for its commission. Mere
intention to commit an offence, not followed by any act, cannot
constitute an offence. The will is not be taken for the deed
unless there be some external act which shows that progress has
been made in the direction of it, or towards maturing and
effecting it. Intention is the direction of conduct towards the
object chosen upon considering the motives which suggest the
choice. Preparation consists in devising or arranging the means
or measures necessary for the commission of the offence. It
differs widely from attempt which is the direct movement
towards the commission after preparations are made.
Preparation to commit an offence is punishable only when the
preparation is to commit offences under Section 122 (waging
war against the Government of India) and Section
399 (preparation to commit dacoity). The dividing line between
a mere preparation and an attempt is sometimes thin and has to
be decided on the facts of each case. There is a greater degree of
determination in attempt as compared with preparation.

10. An attempt to commit an offence is an act, or a series of
acts, which leads inevitably to the commission of the offence,
unless something, which the doer of the act neither foresaw nor
intended, happens to prevent this. An attempt may be described
to be an act done in part execution of a criminal design,
amounting to more than mere preparation, but falling short of
actual consummation, and, possessing, except for failure to
consummate, all the elements of the substantive crime. In other
words, an attempt consists in it the intent to commit a crime,
falling short of, its actual commission. It may consequently be
defined as that which if not prevented would have resulted in
the full consummation of the act attempted. The illustrations
given in Section 511 clearly show the legislative intention to
make a difference between the cases of a mere preparation and
an attempt.

11. In order to find an accused guilty of an attempt with intent to
commit a rape, Court has to be satisfied that the accused, when
he laid hold of the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her part. Indecent
assaults are often magnified into attempts at rape. In order to
come to a conclusion that the conduct of the accused was
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indicative of a determination to gratify his passion at all events,
and in spite of all resistance, materials must exist. Surrounding
circumstances many times throw beacon light on that aspect.”

22. In the background of the above judgment, it is now settled that

there is clear demarcation between preparation and attempt. In the

present case, on perusal of the evidence as discussed above, there is

consistent evidence that the seven appellants except appellants,

namely, Shambhu Burnwal @ Shambhu Sinduria and Paramveer

Yadav @ Parvir Yadav, were arrested on the spot in the dead night

and ditch was being dug near the pipeline and several devices like

generator, welding machine, drilling machine etc., were found at the

place of occurrence. The aforesaid evidence of their presence in dead

of night near pipeline along with devices like generator welding

machine, Kudal and several other devices certainly goes against them

and they have to explain as to why they were present in that dead

night with such devices and as to why the ditch was being dug near

pipeline. Defence of some of appellants is that they have falsely

been implicated in this case as they were going to Deoghar but as

their vehicle broke down near the place of occurrence, they were

standing there. Further defence of appellant Karu Mian in Criminal

Appeal (SJ) No. 2483 of 2017 is that he had a chicken shop and as he

was not obliging the police, he has falsely been made accused in this

case. Similar is the defence of appellant Chandra kishor Das as his

vehicle was demanded by the police and when he refused, he has been
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made accused in this case. From evidence it also appears that

appellant Chandra kishor Das was driver of the vehicle, which was in

the name of his father, however no paper was produced in support of

this contention. From perusal of the evidence, it also appears that so

far appellant Sarvesh Kumar and Umed Singh are concerned, they

belong to Mainpuri, U.P., However, nothing has been brought on

record on behalf of defence in support of their explanation rather there

is consistent prosecution evidence that they were arrested near the

pipeline and a ditch was also being dug and they were carrying

various devices along with themselves including generators, welding

machine etc., which are not essential articles to be carried to

Deoghar. Though appellants have tried to create doubt on the

genuineness of material exhibits as there was no seal on the material

exhibits produced before the Court nor there is any signature over the

seized articles, which are easily available in the market. No doubt,

they may be easily available but their presence in the dead night near

the pipeline and arrest of appellants near the place of occurrence is

certainly an incriminating circumstance against them and the

witnesses had seen them digging the ditch, which is another

circumstance against the appellants and certainly goes against them.

Evidence is consistent about arrest of appellants except appellants,

namely, Shambu Burnwal @ Shambu Sinduria and Paramveer Yadav

@ Parveer Yadav. Evidence is also consistent about recovery of

seized articles which has been produced in the court, which cannot be
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

18/ 21

brushed aside on the ground of some technicalities not being

followed.

23. Submission of learned counsel for the appellants that neither

any independent witness nor the official of Indian Oil Corporation

have been examined, it is well settled that evidence of police

witnesses cannot be thrown out only because they are police witnesses

rather the prosecution has to show that those police witnesses were

prejudiced against the appellants and also supports their false

implication rather the evidence of prosecution witnesses is considered,

which appears to be consistent. In such circumstances, to my opinion

in the above facts and circumstances of the case, non examination of

Investigating Officer shall not make those evidence and incriminating

circumstances redundant.

24. As discussed above, there is difference between preparation and

attempt but in the present case, there is consistent evidence that some

of the appellants were digging a ditch and some were found standing

near the pipeline. As such the aforesaid act of appellants is something

more than the preparation as they were not only present along with

certain devices but also were seen digging ditches i.e. an actus reas,

which will come under the definition of attempt and the aforesaid act

will also show that action of appellants of digging near a pipeline

armed with devices will also come under the mischief in order of

damage to public property, which is punishable under Section 3 of

Prevention of Damage to Public Property Act and further their act also
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

19/ 21

comes within the purview of Section 15(2) of Petroleum and Mineral

Pipelines Act, as they were causing to make an unauthorized

connection by willfully inserting a device to extract the petroleum

product.

25. However, so far appellants, namely, Shambhu Burnwal @

Shambhu Sinduria and Paramveer Yadav @ Parveer Yadav in

Criminal Appeal (SJ) No. 2514 of 2017 and Criminal Appeal (SJ) No.

2834 of 2017, respectively, are concerned, they were neither arrested

from the spot nor there is any recovery from their possession and they

have been made accused only on the basis of confession of other

appellants before the police and except that there is nothing against

these two appellants.

26. Considering the entire discussions made above, so far the

appeals with regard to appellants, namely, Shambhu Burnwal @

Shambhu Sinduria and Paramveer Yadav @ Parveer Yadav in

Criminal Appeal (SJ) No. 2514 of 2017 and Criminal Appeal (SJ)

2834 of 2017, respectively is concerned, the same is allowed and their

conviction and sentence under Sections 379/511 of the Indian Penal

Code, Section 401 of the Indian Penal Code, Section 3 of the

Prevention of Damage to Public Property Act and Section 15(2) of

Petroleum and Minerals Pipelines Act, 1962, passed by Sri Rajesh

Kumar, Additional Sessions Judge, -I, Jamui in Sessions Trial No.

250 of 2016, is not sustainable in the eye of law.

27. So far appellants, in Criminal Appeal (SJ) Nos. 2432 of 2017,
Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

20/ 21

2470 of 2017, 2483 of 2017 and 3141 of 2017, are concerned,

considering the facts and circumstances, I find sufficient and

consistent evidence available against them about their presence at the

place of occurrence and also about recovery of certain devices like

generator, welding machine, drilling machine etc., and no satisfactory

explanation as been given about their presence and though appellant

Karu Mian has come with a case that he used to run a chicken shop

and as he did not oblige the police, he has falsely been implicated in

this case and appellant Chandra kishor Das has come with a case that

he is only a driver of the vehicle, which is in the name of his father,

however, nothing has been produced by them to substantiate their

contentions. Hence I find no infirmity in the impugned judgment

convicting the appellants under Sections 379/511 of the Indian Penal

Code, Section 401 of the Indian Penal Code, Section 3 of the

Prevention of Damage to Public Property Act and Section 15(2) of

Petroleum and Minerals Pipelines Act, 1962, appears to be just and

proper.

28. So far question of sentence is concerned, it appears that all the

appellants have remained in custody for about two years except

appellant, Chandra kishor Das, who also appears to be in custody for

about eight months and all the appellants are young and they also

have to look after their families, as such their sentences are reduced to

the sentence already undergone by them in custody. However, the

sentence of fine shall remain intact.

Patna High Court CR. APP (SJ) No.2432 o f 2017 dt. 20-12-2017

21/ 21

29. With the above modification in sentence, Criminal Appeal (SJ)

Nos. 2432 of 2017, 2470 of 2017, 2483 of 2017 and 3141 are

dismissed.

30. So far Criminal Appeal (SJ) Nos. 2514 of 2017 and 2834 of

2017 are allowed and conviction and sentence against appellants

Shambhu Burnwal @ Shambhu Sinduria and Paramveer Yadav @

Parveer Yadav are set aside.

31. As the appellants, namely, Shambhu Burnwal @ Shambhu

Sinduria and Paramveer Yadav @ Parveer Yadav are in judicial

custody, they are directed to be released forthwith, if not required in

connection with any other case.

(Vinod Kumar Sinha, J)

sunil/-

AFR/NAFR AFR
CAV DATE 13.12.2017
Uploading Date 21.12.2017
Transmission 21.12.2017
Date

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