[Cites 13, Cited by 0]
Bombay High Court
Mahanor S/O. Sudmal Kale vs The State Of Maharashtra on 18 February, 2026
2026:BHC-AUG:7703
907.APEAL.760.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 760 OF 2024
Mahanor S/o. Sudmal Kale,
Age : 23 Years, Occu : Agri.,
R/o. Salbatpur, Tq. Newasa,
District Ahmednagar ...APPELLANT
VERSUS
The State of Maharashtra,
Through Police Inspector,
Police Station, Shrirampur (City).
Shrirampur ...RESPONDENT
WITH
CRIMINAL APPLICATION NO. 4292 OF 2019
IN
CRIMINAL APPEAL NO. 760 OF 2024
***
Mrs. Renuka V. Ghule-Palve, Advocate for the Appellant.
Ms. M. N. Ghanekar, APP for Respondent - State.
***
CORAM : RAJNISH R. VYAS, J.
DATE : FEBRUARY 18, 2026
JUDGMENT :
1. The accused has approached this Court challenging the
judgment dated 25th September 2017 passed in Sessions Case No.12 of
2010 by the Additional Sessions Judge, Shrirampur, by which he was
convicted for the commission of offence punishable under Section 399
of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for the
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sake of brevity) and directed to suffer rigorous imprisonment for term
of eight years and pay fine of ₹ 8,000/-. A default sentence of two
years was also imposed upon him.
2. In short, it is the case of the prosecution that police officers
attached to the respondent police station received certain information
based on which a raid was decided to be conducted. Accordingly, the
necessary arrangements were made. The spot of the incident was
raided by the police authorities, where it was found that a few persons
were sitting in a thorny bush at night, talking in sign language. When
the police officers tried to apprehend the persons, a few ran away, but
two of the accused were caught. The present appellant is one of the
accused.
3. It is the case of the prosecution that chilli powder and a
shock-up of a vehicle were recovered from the accused persons. It is
against this background that the first information report was lodged
and the investigation carried out. During the course of the
investigation, the necessary seizures were made, and the spot
panchnama was also prepared. After completion of the investigation, a
charge sheet bearing No.30 of 2010 was filed against the three
accused. Mr Vijay Balu Bhosale was shown as accused No.1, the
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present appellant as accused No.2, and one Ramesh Bhosale was
shown as accused No.3.
4. The record reveals that the charge was framed against the
present appellant on 22nd June 2017, to which he did not plead guilty.
The other two accused were not be tried for want of their presence.
5. The prosecution, to bring home the charge, examined total
of six witnesses. The accused was then questioned under Section 313
of the Code of Criminal Procedure 1973 (hereinafter referred to as
"Cr.P.C." for the sake of brevity), in which he took a defence of false
implication. The accused neither entered the witness box nor
examined any other witnesses.
6. Considering the evidence available on record, the Trial
Court awarded the conviction and sentenced the accused - appellant
as stated above.
7. The learned counsel for the appellant contended that the
evidence available on record shows that the prosecution did not prove
the ingredients of the offences registered and that, in fact, it was a case
of false implication.
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8. According to her, even if the evidence tendered by the
prosecution is taken as it is, it would reveal that there is nothing
against the present appellant. She submits that different witnesses
have advanced different stories, which weaken the prosecution's case.
She thus prays for acquittal.
9. Per contra, Ms Ghanekar, learned APP, contended that the
prosecution has led cogent and reliable evidence and that, in fact,
recovery at the instance of the appellant establishes his guilt. She
submitted that the evidence tendered by the police officers is cogent
and reliable and was thus rightly considered by the Trial Court.
10. I have heard the respective counsel and also gone through
the record of the case. Since the accused was charged under Section
399 of the Indian penal code ( IPC), it is necessary to see what the said
provision speaks about.
11. Section 399 of the IPC speaks about preparation to commit
dacoity. It states that whoever prepares to commit dacoity shall be
punished with rigorous imprisonment for a term which may extend to
10 years. A fine is also prescribed.
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12. Dacoity is defined under the provisions of Section 391 of
IPC, which states that when five or more persons conjointly commit or
attempt to commit a robbery -----, it is said to have committed dacoity.
13. The discussion regarding the applicability of Section 391 of
IPC would not be complete unless and until the definition of robbery is
perused, which can be found in Section 390 of IPC.
14. Section 390 of IPC defines robbery in two contingencies:
when the theft is robbery and when extortion is robbery.
15. The theft is robbery if, in orderto committing of the theft,
or in committing the theft, or carrying away or attempting to carry
away property obtained by the theft, the offender, for that end
voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt, or of
instant wrongful restraint.
16. Though in the present case the question is regarding
preparation to commit dacoity, the definition of theft will also have to
be appreciated, which is defined under Section 378 of the IPC. In
simple language, theft means an act intending to take dishonestly any
movable property out of the possession of any person without that
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person's consent. Section 378 of the IPC defines theft at length.
17. At this juncture, it is necessary to mention here that there
are four stages in the commission of a crime: (1) an intention, (2)
preparation, (3) attempt and (4) completion.
18. Thus, it will have to be seen whether the case of
prosecution falls short of an attempt and is one step ahead of
intention, and consequently or proves preparation.
DIFFERENCE BETWEEN ATTEMPT AND PREPARATION
19. In Abhayanand Mishra Vs. State of Bihar1 1961 SCC
OnLine SC 67 and in case of In re : T. Munirathnam Reddi it was
observed at p. 122:
"The distinction between preparation and attempt
may be clear in some cases, but, in most of the cases,
the dividing line is very thin. Nonetheless, it is a real
distinction. The crucial test is whether the last act,if
uninterrupted and successful, would constitute a
crime. If the accused intended that the natural
consequence of his act should result in death but was
frustrated only by extraneous circumstances, he
would be guilty of an attempt to commit the offence
1 1961 SCC OnLine SC 67
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of murder. The illustrations in the section (Section
511) bring out such an idea clearly. In both the
illustrations, the accused did all he could do but was
frustrated from committing the offence of theft
because the article was removed from the jewel box
in one case and the pocket was empty in the other
case." The observations "the crucial test is whether
the last act, if uninterrupted and successful, would
constitute a crime" were made in connection with an
attempt to commit murder by shooting at the victim
and are to be understood in that context. There, the
nature of the offence was such that no more than
one act was necessary for the commission of the
offence.
24. We may summarise our views about the construction
of Section 511 IPC, thus : A person commits the
offence of attempt to commit a particular offence
when (i) he intends to commit that particular
offence; and (ii) he, having made preparations and
with the intention to commit the offence, does an act
towards its commission; such an act need not be the
penultimate act towards the commission of that
offence but must be an act during the course of
committing that offence.
25. In the present case, the appellant intended to deceive
the University and obtain the necessary permission
and the admission card and, not only sent an
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application for permission to sit at the university
examination, but also followed it up, on getting the
necessary permission, by remitting the necessary fees
and sending the copies of his photograph, on the
receipt of which the University did issue the
admission card. There is therefore hardly any scope
for saying that what the appellant had actually done
did not amount to his attempting to commit the
offence and had not gone beyond the stage of
preparation. The preparation was complete when he
had prepared the application for the purpose of
submission to the University. The moment he
despatched it, he entered the realm of attempting to
commit the offence of "cheating". He did succeed in
deceiving the University and inducing it to issue the
admission card. He just failed to get it and sit for the
examination because something beyond his control
took place inasmuch as the University was informed
about his being neither a graduate nor a teacher."
20. In State of M.P. v. Mahendra, alias Golu2, distinction
between "preparation" and "attempt" to commit rape, is aptly decided
and it was observed as under :
"12. It is a settled proposition of criminal jurisprudence
that in every crime, there is first, mens rea (intention
to commit), secondly, preparation to commit it, and
2 (2022) 12 SCC 442
907.APEAL.760.2024
thirdly, attempt to commit it. If the third stage, that
is, "attempt" is successful, then the crime is
complete. If the attempt fails, the crime is not
complete, but law still punishes the person for
attempting the said act. "Attempt" is punishable
because even an unsuccessful commission of offence
is preceded by mens rea, moral guilt, and its
depraving impact on the societal values is no less
than the actual commission.
13. There is a visible distinction between "preparation"
and "attempt" to commit an offence and it all
depends on the statutory edict coupled with the
nature of evidence produced in a case. The stage of
"preparation" consists of deliberation, devising or
arranging the means or measures, which would be
necessary for the commission of the offence.
Whereas, an "attempt" to commit the offence, starts
immediately after the completion of preparation.
"Attempt" is the execution of mens rea after
preparation. "Attempt" starts where "preparation"
comes to an end, though it falls short of actual
commission of the crime.
18. Even prior thereto, this Court in [Madan Lal v. State
of J&K [(1997) 7 SCC 677] opined that the. degree
of the act of an accused is notably decisive to
differentiate between "preparation" and "attempt" to
commit rape. It was held thus : (SCC p. 689, para
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12)
"12. The difference between preparation and an
attempt to commit an offence consists
chiefly in the greater degree of
determination and what is necessary to
prove for an offence of an attempt to
commit rape has been committed is that
the accused has gone beyond the stage of
preparation. If an accused strips a girl
naked and then making her lie flat on the
ground undresses himself and then forcibly
rubs his erected penis on the private parts
of the girl but fails to penetrate the same
into the vagina and on such rubbing
ejaculates himself then it is difficult for us
to hold that it was a case of merely assault
under Section 354 IPC and not an attempt
to commit rape under Section 376 read
with Section 511 IPC. In the facts and
circumstances of the present case the
offence of an attempt to commit rape by
the accused has been clearly established
and the High Court rightly convicted him
under Section 376 read with. Section 511
IPC."
19. The difference between "attempt" and "preparation"
in a rape case was again elicited by this Court in
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Koppula Venkat Rao v. State of A.P. [Koppula Venkat
Rao v. State of A.P., (2004) 3 SCC 602] , laying down
that : (SCC p. 606, paras 10-11)
"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 or
consummation/ completion. 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 rape, court has to be
satisfied that the accused, when he laid hold of
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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 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."
Thus what emerges from the aforesaid observation is
that though preparation, which is stage in
commission of offence may not cause direct injury to
any person, but the law acts in proactive manner to
control the commission of offence."
21. In this regard, it is necessary to consider the testimony of
PW-2 Kachru Chothve, who was a Police Head Constable and driver
attached to Police Station Shrirampur. He deposed that on 20 th
December 2009, at about 10:30 to 11:00 p.m., he was called by PI-
Pandole, who informed him that they had to go somewhere;
accordingly, PW-2, along with Panchas and other persons, proceeded
from the police station and came near Ashok Petrol Pump. PW-2
deposed that the vehicle was parked there, and they walked up to the
907.APEAL.760.2024
FCI Godown. They noticed 5 to 6 people sitting in a thorny bush,
signalling to each other. PW-2 and others chased the said persons, and
only two persons were apprehended. PW-2 further deposed that he
fell due to a scuffle and sustained injury to his left hand. Thereafter, PI
- Pandole and PSI - Ballayya, along with other staff, prepared the
panchnama, and chilli powder, a motorcycle shock-up, and one iron
rod were found. Those two people were then brought to the police
station. This witness identified the articles produced in the Court,
namely chilli powder, a motorcycle shock absorber(shock up), and an
iron rod. He then identified the accused, who was present in the
Court.
22. In cross-examination, PW-2 has admitted that the
Shrirampur - Newasa road is a highway and that there are hotels and
shops on both sides of that road between the petrol pump and the
railway bridge. There was darkness at that time, but PW-2 volunteered
that there were stars in the sky. He admitted he was assigned to drive
the jeep, but denied the suggestion that he could not leave it due to
the wireless. He stated that he was unable to state the weight of chilli
powder with its wrapper, and also admitted that chilli powder can be
purchased from a grocery shop and that any person can bring a stick,
907.APEAL.760.2024
an iron rod, or a shock-up.
23. PW-2, in cross-examination, further admitted that he was
unable to state which of those persons was possessing which particular
item. He also admitted that, due to the darkness, he could not see the
faces of those persons.
24. So far as the testimony of this witness is concerned, it is
necessary to mention here that he was a driver who had sustained
injuries on his body in a scuffle. Though he identified the accused in
the dark, the fact remains that, in cross-examination, he admitted he
could not see the faces of those persons. It is worth mentioning that
the incident in question occurred on 20th December 2009, whereas the
examination and evidence of this PW-2 were recorded on 26 th July
2017; thus, his identification of the accused after a lapse of more than
eight years seems to be highly doubtful.
25. As PW-2 has stated that he has sustained injury, let us see
the testimony of PW-4, Dr Anil Momle, who stated that on 21st
December 2009, he examined PW-2 and found two injuries: (1)
abrasion left elbow measuring 3x3 cm, and (2) contusion with
abrasion left on the knee joint measuring 2x4 cm. He stated that the
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injury occurred within 24 hours. During cross-examination, he
admitted that no signature or thumbprint of the patient was obtained
on the certificate.
26. The evidence of the aforesaid witness shows that he
examined the patient, PW-2, on 21 st December 2009 and, after
examination, issued an injury certificate. As rightly pointed out by the
learned counsel for the appellant, the said medical certificate does not
bear any thumb impression or signature of the PW-2. Further, at the
bottom of the medical certificate (Exhibit 62), the outward number of
the MLC and the date of the MLC are not mentioned, and the column
for forwarding the copy to PSI is also not filled. Thus, this raises a
doubt regarding the examination of PW-2 at the hands of PW-4.
27. This takes me to the testimony of PW-3 Shankar Bahirath,
who was attached to Shrirampur City Police Station as a Head
Constable. According to him, on 12 th December 2009, at about 10:30
to 11:00 p.m., PI - Pandole called the police staff and informed them
that they were required to carry out a raid. Accordingly, all those
persons went to the spot in a government vehicle. He stated that PI
Pandole told PSI Ballayya to proceed to the incident site on a
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motorcycle with two police personnel. When they reached the spot,
some persons were found near the FCI Godown, sitting in a circle.
When the police officials arrived, those persons started running, and
two were caught.
28. He deposed that a scuffle took place between those persons
and PW-2, due to which PW-2 fell and sustained injury. During the
personal search of those two persons, accused Bhosale was found in
possession of chilli powder, and the present appellant was found in
possession of a steel rod. He stated that wooden logs were found lying
at the spot; accordingly, the panchnama was prepared there, and those
persons were taken to the police station. The report was lodged below
Exhibit 60. The PW-3 identified the muddemal shown to him in the
Court, as well as the accused-appellant.
29. In cross-examination, he admitted that the steel rod he
referred to was a rod of the shock-up of a truck. He further admitted
that in the report he had incorrectly stated that the steel rod was of a
truck, when in fact it was of a motorcycle.
30. PW-3, in his cross-examination, has stated that when the
incident had taken place, it was dark and he did not personally catch
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anybody. He also stated that the incident occurred within the railway's
jurisdiction and that there were localities on both sides of the railway
line; the Newasa road was also situated beside the railway line. He
deposed that there was traffic on the Newasa road at that time, and
that they did not call any drivers of those vehicles for a panchnama,
nor did they record their names. He further admitted that no third
person had filed a complaint with the police regarding the presence of
those persons at the spot. He denied other suggestions.
31. The testimony of this witness would reveal that, though he
was occupying the post of Assistant Sub Inspector, he admitted that the
rod which he stated in the police report was not the shock-up rod of a
truck. He stated that it was incorrectly stated that the steel rod was
from a truck. This testimony, if taken into consideration in the
background of the entire prosecution case, would reveal that the
possibility cannot be ruled out that the police authorities set the
criminal law in motion against the accused persons without having
cogent and reliable evidence.
32. PW-5 is one Prasad Salve, who was a Police Constable
attached to Shrirampur City Police station, and who deposed about the
information given by PI- Pandole for effecting a raid behind the FCI
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godown beside the railway line, and thereafter they reaching the spot.
He stated that their staff member proceeded from behind the FCI
godown with PI - Pandole towards the railway line. PI - Pandole
received a call from PSI - Ballayya, whose team had gone to the
incident site by private vehicle. PSI - Ballayya then gave a signal to PI
- Pandole that some persons were holding discussions beside the
bushes, and when the police staff encircled those persons, they found
that all those persons were sitting in a circle, with one person in the
middle portion giving signals to them. The raid was conducted, and
two persons were caught, while the others ran away from the scene,
taking advantage of the darkness.
33. PW-5 has deposed that, on enquiry, those two persons
disclosed their names, and also revealed the name of another accused.
PSI - Ballayya then conducted a personal search of those persons, in
which chilli powder was found in the possession of one of the accused.
In contrast, a motorcycle shock-up pipe was found in the possession of
another accused. A panchnama was prepared, and the accused were
taken into custody. He also deposed about the injury received by PW-2
during the course of the raid. He identified the present appellant in
the Court.
907.APEAL.760.2024
34. PW-5 was then subjected to cross-examination, in which he
admitted that the panchas were called by PHC - Bahirath and that no
information was received that those persons were sitting at the spot for
the purpose of committing theft. The attention of this witness was
drawn to the portion marked A in his statement, which stated that PSI
Balaiyya had asked him to reach the spot with his staff from the
northern direction.
35. This witness admitted that the raiding party was holding
sticks and pistols and also had vehicles, and that all the accused
persons were encircled by the raiding teams from all sides. He
admitted that the incident occurred between 11:00 p.m. and 12:00
a.m., when it was dark, but he volunteered that there were stars in the
sky. He admitted that, due to the darkness, he could not tell what was
in the accused persons' hands. He further showed his inability to state
the time required to reach the spot. He stated that he had known the
accused for a long time. The other suggestions were denied.
36. At this juncture, it is necessary to mention here that the
conduct of this particular witness fails to provide any confidence. The
reason is that, though the raiding party was holding sticks and pistols,
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had a vehicle, and had encircled those persons from all sides, only two
were caught. The raiding party consisted of eight to ten persons,
whereas this witness did not mention the number of persons sitting on
the spot.
37. PW-6 is one Bharat Ballayya, who was attached to
Shrirampur City Police Station as a PSI and stated that the
investigation of the crime was handed over to him. On 20 th December
2009, PI - Pandole informed PW-6, i.e., Ballayya, and the staff that a
raid was to be effected near the FCI Godown based on information
received by him. Police Constable Bahirath then called two panchas,
and PW-6, along with the staff, proceeded to the incident site in
government and private vehicles at 10:30 p.m. Some dacoits were
found sitting on the northern side of the said godown in the light of
stars, and they effected the raid.
38. He deposed that they nabbed two of the dacoits, while four
dacoits managed to flee by taking advantage of the darkness. On
personal search, chilli powder wrapped in paper and a motorcycle
shock-up rod pipe were found in the custody of the two accused
apprehended. The weapons were then seized by preparing the
panchnama below Exhibit 56, which commenced from 23:00 hours
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and was completed on 23:45 hours. The said panchnama shows that,
in the search for the two persons apprehended, chilli powder, one steel
motorcycle shock-up pipe, three iron rods and one iron bar were
seized. Though the panchnama shows that chilli powder was found in
a pocket of Vijay Bhosale's pants, there is nothing on record to confirm
whether it was chilli powder. PW-6 identified the present appellant in
the Court.
39. In cross-examination, he stated that he was not in a
position to state the exact number of persons who went to effect the
raid. He admitted that he conducted the raid, prepared the
panchnama, and investigated the crime. He further deposed that he,
along with his staff, went by a four-wheeler, while others went by a
private car. When question was put whether he could state as to which
particular person from the staff caught which of the two persons, he
replied that all of them caught those two persons. He further stated
that he did not recall whether they conducted a personal search of
those persons. He admitted he could not understand the question and
later denied that the panchas' personal search was conducted. He
admitted that there was no panchnama for the personal search of his
staff and himself. He further admitted that no statement of
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independent witnesses was recorded other than that of the police staff
and that the spot of the incident was situated near the railway bridge.
40. This witness, in cross-examination, admitted that it was
not mentioned in the report that a truck shock-up was found in the
custody of the accused and stated that the portion marked A in the
report was correct. He further stated that he recorded the statement of
Prasad Salve, and that the portion marked A of the said statement was
correct.
41. At this juncture, it is necessary to mention here that,
though PW-6 admitted that he had conducted the raid, prepared the
panchnama, and investigated the crime, he surprisingly also deposed
that he was not in a position to state the exact number of persons who
went to effect the raid. The aforesaid fact also casts a light of
suspicion on the testimony of this witness.
42. The witness discussed earlier stated that, at the time of the
raid, there was a discussion between the accused persons who were
sitting in thorny bushes, but what the discussion was about is not
mentioned in the panchnama. The brief description could have clearly
shown the accused's intention, which could have provided foundation
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to test whether it was a case of preparation to commit dacoity. The
prosecution has not brought anything on record to show that the
accused were intending to commit theft, robbery, and consequently,
dacoity.
43. The entire story advanced by the prosecution appears to be
doubtful. Merely because two persons were having a shock-up rod and
the alleged chilli powder would not, in the peculiar facts and
circumstances of the case, constitute the commission of an offence
under Section 399 of IPC. The overall testimony of the prosecution
witnesses clearly shows that the prosecution has not established the
ring of truth, in its case. In that view of the matter, there is nothing on
record to show that the prosecution has proved the case beyond a
reasonable doubt.
44. So far as the findings of the Trial Court are concerned,
suffice it to say that the evidence was not appreciated in the proper
perspective. That being so, the present appeal is liable to be allowed
and is accordingly allowed.
45. Hence, I pass the following order.
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ORDER
A) The judgment passed by Additional Sessions Judge,
Shrirampur, on 25th September 2017, in Sessions
Case No.12 of 2010, so far as convicting the
appellant for the commission of an offence
punishable under Section 399 of the Indian Penal
Code, is set aside.
B) The appellant, accused Mahanor Sudmal Kale, is
acquitted for the commission of an offence
punishable under Section 399 of IPC. He be set at
liberty, if custody is not required in any other case.
C) Fine amount, if deposited, be returned to him.
46. The learned appointed counsel for appellant has argued
the case at length and has invited my attention to various pieces of
evidence; her fees are quantified at ₹ 10,000/-.
47. Pending applications, if any, also stand disposed of.
( RAJNISH R. VYAS, J. )
