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In Re: Uppari Nallanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1972CriLJ433
AppellantIn Re: Uppari Nallanna and ors.
Excerpt:
.....facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 3. the only contention advanced by the learned counsel for the petitioners is that no case of the attempted commission of offence has been made out that at best the action of the accused would only amount to preparation for the offence and as long as there was locus penitentiae and they could return to their places without crossing the border, it cannot be said that an offence is made out. 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. 4. these revisions, therefore,..........gadwal taluk to talamarri village of mysore state, p. w. 1 then stopped the carts and seized the paddy bags in the presence of panchas. the same night at about 2-30 a. m. the accused concerned in s. t. c. no. 90/68 were found coming with paddy bags in their carts. they were also stopped in the same field and when questioned they stated that the paddy bags belonged to manik reddy of pedda tandrapad village, that they were engaged to cart these bags and transport them to talamarri in the mysore state and these were also seized. at about the same time, the accused concerned in s.t. c. 97/68 were found coming with their carts with rice bags. they were stopped in the field known as kommani dukki and when questioned they stated that the paddy bags belonged to one nagireddi and that they were.....
Judgment:
ORDER

A.D.V. Reddy, J.

1. These three revision petitions are against the convictions of the accused concerned in S. T. Cs. 90. 97 and 94/68 respectively on the file of the 1st, Class Magistrate. Gadwal.

2. On the night of 22-12-1967 the Special Deputy Collector, Mobile Check Post Mahaboobnagar on information that paddy was being smuggled to Mysore State, went along with his mobile staff consisting of H. C. 506 arid some constables and were lying in wait near the road leading to Talamarri village in the Mysore State and at about 2 a. m, they found the accused in S. T. C. 94/68 coming driving 8 carts with 49 bags of paddy in them going Talamarri village and they stopped them in Nadajjoni Dukki in the limits of Kutuknoor village which is two furlongs away from the Mysore border. On questioning the accused, they stated that the paddy belonged to Seetharamaiah of Pedda Tandrapad, that they were hired cart-men and were transporting the paddy from Medikunda village of Gadwal Taluk to Talamarri village of Mysore State, P. W. 1 then stopped the carts and seized the paddy bags in the presence of panchas. The same night at about 2-30 a. m. the accused concerned in S. T. C. No. 90/68 were found coming with paddy bags in their carts. They were also stopped in the same field and when questioned they stated that the Paddy bags belonged to Manik Reddy of Pedda Tandrapad village, that they were engaged to cart these bags and transport them to Talamarri in the Mysore State and these were also seized. At about the same time, the accused concerned in S.T. C. 97/68 were found coming with their carts with rice bags. They were stopped in the field known as Kommani Dukki and when questioned they stated that the paddy bags belonged to one Nagireddi and that they were transporting them from Tandirapad village to Talamarri village. These bags were also seized and the charge-sheets were filed. In support of the prosecution case, four witnesses in S. T. Cs. 90 and 94 and five in S. T. 97/68 were examined. The accused examined two witnesses in each of these cases and their contention was that the paddy belonged to D. W. 1 who was sending them from his field after harvest to his house. Disbelieving the evidence of the defence, the lower Court found the accused guilty of the charge levelled against them. This was confirmed in appeal.

3. The only contention advanced by the learned Counsel for the petitioners is that no case of the attempted commission of offence has been made out that at best the action of the accused would only amount to preparation for the offence and as long as there was Locus Penitentiae and they could return to their places without crossing the border, it cannot be said that an offence is made out. In support of this contention, he relied on In re Bavaji : AIR1950Mad44 , State v. Narain Singh AIR 1953 Madh B. 216. B.B. Kurubet v. State of Mysore 1962 Mad LJ (Crl.) 339. and Malkiat Singh v. State of Punjab : 1970CriLJ750 . What constitutes an attempt to commit an offence is pointed out in the last of the cases viz. Malkiat Singh v. State of Punjab in the following terms:

As a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising of 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. The test for determining whether the act of the accused person constituted an attempt of 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.

As can be seen from the above remarks, the line of separation between the preparation and attempt may in some cases be very fine and the question whether what has been done amounts only to preparation or constitutes an attempt must depend upon the circumstances of each case. Preparation after a stage amounts to an attempt but it still retains the character of preparation. An at-tempt is therefore a stage of preparation to commit an offence which is very near the stage of actual commission of the offence and from which an intention to commit the offence can be inferred. Therefore an attempt to commit an offence is an intentional preparatory action which fails in its object; which so fails through circumstances independent of the person who seeks its object, which so fails through circumstances independent of the person who seeks its accomplishment. In other words, for purposes of criminal liability, it is sufficient if the attempt had gone so far, that the crime would have been completed, but for extraneous intervention which frustrated its consummation. In the circumstances of each of these cases, we have got to consider whether such an attempt has been committed. The accused were caught with paddy bags within two furlongs of the village in the border of the State of Mysore and thev were also so caught in the night between 2 and 2-30 A. M. These facts are by themselves sufficient to .show that i they had not been detected and detained they would have crossed the border and taken the goods into the Mysore State. Besides this, there is the statement of the accused themselves made to P. W. 1, who is a Special Deputy Collector. Mobile Check Post empowered with magisterial powers to the effect that they were transporting the paddy bags to Talamarri village of Mysore State. There is no reason why these statements should not be believed. The effort made by D. W. 1 and his witness D. W. 2 now to show that the bags belonged to him and they were being carted from his field to his house is a belated one and put up only at the stage of his examination in the witness box. It is rather strange that he had not trade any demand for the return of these bags at any earlier stage i. e. at the time of seizure or thereafter till he came into the witness box. The offence is contravention of clauses 3 and 3 (a) of the Southern States (Regulation of Export of Rice] Order 1965 punishable under the provisions of the Essential commodities Act, and Clause 3 (a) prohibits transport or attempted transport or abetment of transport of paddy from any place outside within the limits of the border area or from within the border area to any other place within the limits of that area without a permit. Border area according to the explanation is the area within five miles belt inside the specified area and adjoining any other specified area. The object is to prevent smuggling of food-grains. Admittedly the carts were found with these bags of paddy within the belt area, very near the Mysore border going in that direction without permits. These facts do constitute an offence of which the accused have been convicted.

4. These revisions, therefore, fail and are dismissed.


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