JUDGMENT : R.M. Chhaya, J. Present appeal arises out of judgment and order rendered by learned Additional Sessions Judge, Fast Track Court (Second), Mehsana on 10.04.2003 in Sessions Case No.272 of 2002, convicting the appellants-accused for the offences punishable under Sections 364-A read with Section 511, 365 read with Section 511 and Section 120-B of the Indian Penal Code, 1860 ('IPC' for short), and sentencing them in the manner stated hereinafter: (i) u/s. 364-A read with Section 511 of the IPC to undergo rigorous imprisonment ("R.I." for short) for seven years and to pay a fine of Rs.500/-, in default to further undergo R.I. for one year. (ii) u/s. 365 read with Section 511 of the IPC to undergo R.I. for three years and to pay a fine of Rs.500/-, in default to further undergo R.I. for one year. (iii) u/s. 120-B of the IPC to undergo R.I. for two years and to pay a fine of Rs.500/-, in default to further undergo R.I. for six months. The sentences imposed upon the appellants accused were ordered to run concurrently. The benefit of set-off was given. 2. It is the case of the prosecution that the appellants-accused and one another person were arrested by Crime Branch of Delhi Police in relation to an offence at Delhi. That during course of investigation of the said offence, it came to light that the appellants-accused, one person named 'Raja' and another unknown person had hatched a conspiracy to abduct an industrialist of Mehsana and his son, who runs an industrial group in the name and style of 'Apollo'. It is the case of the prosecution that Commissioner of Police, Rajkot received the said information (Exh.14) from Delhi Police, who in turn, informed Mehsana Police about the same. That as per the said information (Exh.14) an F.I.R. came to be lodged before LCB Police Station, Mehsana Police Station for the aforesaid offence against the appellants accused. 3. The investigating authorities started investigation, recorded statements of witnesses, including the industrialist, manager of Hotel Sunshine, Mehsana and other witnesses of the case, who were in knowledge of the crime under investigation. 4. 3. The investigating authorities started investigation, recorded statements of witnesses, including the industrialist, manager of Hotel Sunshine, Mehsana and other witnesses of the case, who were in knowledge of the crime under investigation. 4. Upon investigation the investigating agency found that there was ample evidence to link the appellants-accused with the offences and have filed charge-sheet before learned Judicial Magistrate, First Class, Mehsana, who in turn, committed the case to the court of Sessions, Mehsana as the offences were exclusively triable by the Court of Sessions and the same was registered as Sessions Case No.272 of 2002. 5. Charges were framed by the trial Court against the appellants-accused below Exh.1 for the offences punishable under Sections 364-A, 365, 120-B, 34 and 511 of the IPC. The accused had pleaded not guilty to the charges and claimed to be tried. 6. After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in proving the charges against the appellant’s-accused and recorded conviction by the judgment impugned in this appeal. Hence, the present appeal. 7. Heard Mr. Y.S. Lakhani, learned Sr. Advocate, with Mr. Anmol Thakkar, learned advocate, appearing on behalf of the appellants-accused, while the respondent-State has been represented by the learned A.P.P. Mr. Divyesh C. Sejpal. 8. Learned advocate Mr. Lakhani has taken me through the oral testimonies of PW-1, PW-2, PW-3 and PW-4 and has submitted that even if this evidence is read as it is, at the most, it can be said that the appellants-accused had intention to commit the crime and had undertaken preparation but it cannot be said that they had made an attempt to commit such a crime. 8.1. Mr. Lakhani has submitted that no offence under any of the provisions of the IPC is made out by the prosecution. He has further submitted that identity of the appellants-accused has not been established and no Test Identification Parade is held. He has submitted that the offences, which are alleged against the appellants-accused, are based only on the information transmitted from Delhi Police, treated to be an extra-judicial confession. Mr.Lakhani has specifically stated that every offence passes through four stages viz. - (i) intention; (ii) preparation; (iii) attempt; AND (iv) commission. He has, therefore, submitted that there is no evidence on record to show that the appellants-accused had attempted to commit the alleged offence. Mr.Lakhani has specifically stated that every offence passes through four stages viz. - (i) intention; (ii) preparation; (iii) attempt; AND (iv) commission. He has, therefore, submitted that there is no evidence on record to show that the appellants-accused had attempted to commit the alleged offence. He has further submitted that mere 'intention' or 'preparation' cannot be said to have committed the aforesaid alleged offence. Mr. Lakhani has relied upon the judgment of the Apex Court reported in (i) Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 ; and (ii) Malkiat Singh v. State of Punjab, AIR 1970 SC 713 . 8.2. Mr. Lakhani has further submitted that the appellants-accused have wrongly been implicated in the alleged offence by the prosecution and merely on the basis of the information received by the fax message, the present offence came to be investigated. He has further submitted that the statements of accused before Police is hit by Section 25 of the Evidence Act and it has no evidentiary value. He has, therefore, submitted that the appellants-accused have wrongly been implicated in the aforesaid alleged offence and even though no offences are committed nor even an attempt is made to commit such alleged offences, the trial Court has wrongly convicted the appellants-accused and, therefore, submitted that the judgment and order of conviction and sentence deserves to be set aside and the appeal deserves to be allowed. 9. Learned A.P.P. Mr. Divyesh C. Sejpal has opposed the present appeal and has submitted that the prosecution has successfully proved the case on the basis of the evidence on record to its hilt. He has further submitted that the extra-judicial confession made by the appellants-accused before Delhi Police is corroborated by the evidence on record. He has also submitted that the appellants-accused had conducted reki of the area and had made complete preparation for abducting the son of the industrialist. Mr. Sejpal has further submitted that the prosecution has proved means rea and has also proved, that in fact the appellants-accused had made an attempt but failed and returned back. He has further submitted that their presence at Mehsana was completely proved and, therefore, the prosecution has been able to prove that there was an attempt to commit the offence. Mr. Sejpal has further submitted that the prosecution has proved means rea and has also proved, that in fact the appellants-accused had made an attempt but failed and returned back. He has further submitted that their presence at Mehsana was completely proved and, therefore, the prosecution has been able to prove that there was an attempt to commit the offence. He has relied upon the judgment of the Apex Court in the case of Aman Kumar v. State of Haryana, AIR 2004 SC 1497 = (2004) 4 SCC 379 and further submitted that in the facts of the present case, the offences as alleged against the appellants-accused read with Section 511 of the IPC is proved by the prosecution. Mr. Sejpal has therefore, submitted that the trial Court has rightly convicted the appellants-accused and the appeal is devoid of any merits and the same deserves to be dismissed. 10. I have examined the record and proceedings in the context of rival submissions. 11. Upon reading the evidence of PW-1, Manibhai Virchanddas Patel, (Exh.7), I find that he has stated in his deposition that he is the resident of Mehsana and runs his industries in the name of Apollo Group. I find that he has stated that he has constructed a commercial building on the highway, opposite Simandhar Temple, named 'Apollo'. I also find that he has stated that PSI of Local Crime Branch, Mehsana on 04.12.2000 informed about the fact that the appellants-accused stayed at Hotel Sunshine, Mehsana and had hatched a conspiracy to abduct him and his son. 12. Upon reading the evidence of PW-2, Ranchhodbhai Chandubhai Chaudhary, (Exh.8), working as receptionist of Hotel Sunshine, Mehsana, I find that he has stated in his deposition that on 08.11.2000 one customer had stayed in his hotel named Dipakkumar, stated to be belonging of Ajmer. In his cross-examination I find that he has stated before the police that two persons, who were brought to the hotel by police, had stayed in their hotel from 08.11.2000 to 10.11.2000 with fictitious names. However, I find that he has admitted in the cross-examination that he was not present on the said day at the hotel. He has also stated that he could not identify them (the appellants-accused). 13. However, I find that he has admitted in the cross-examination that he was not present on the said day at the hotel. He has also stated that he could not identify them (the appellants-accused). 13. Upon reading the evidence of PW-3, Kishorkumar Naranbhai, (Exh.11), Police Constable, I find that he has just narrated that on 23.12.2000 while he was on duty near Modhera Circle, his colleague Hargovanbhai had stopped a car wherein 2-3 persons were there. However, he has stated that he was not aware thereafter what had happened. 14. Upon reading the evidence of PW-4, Chandrasinh Bikhusinh Rathod, (Exh.13), the investigating officer, I find that he has narrated that on receipt of the fax message from Crime Branch, Delhi (Exh.14) the present offence was registered and investigation was carried out. I also find that he has stated that statements were recorded before Delhi Police and receipt of the same, the details of the same and the statements recorded were found to be coinciding with each other and, therefore, the present offence was registered. In the cross-examination I find that he has denied the suggestion of the defence that the present offence was registered at the instance of higher officer. He has also stated that the preliminary investigation was carried out whether offence as per the fax message has been culled out or not. 15. The sum total of the above discussion leads to the fact that the offences, which came to be levelled against the present appellants-accused, is entirely based on the fax message (Exh.14). 16. Upon appreciating the evidence on record, PW-1 and his son, who were allegedly to be abducted by the appellants-accused, were not aware about the said incident. Similarly, PW-2, Manager of Hotel Sunshine, where the appellants-accused stated to have stayed, has also not identified the appellants-accused, as he has stated in his deposition that he was on leave on 08.11.2000. I find that except the fact that PW-2 has stated that the appellants CR. accused stayed in the hotel with fictitious names, nothing further is stated by this witness in relation to the crime. I, therefore, find that except the details given in the fax message (Exh.14), which is in the form of the extra-judicial confession before the Delhi Police, the prosecution has not been able to lead any evidence as regards the charge levelled against the appellants-accused. 17. I, therefore, find that except the details given in the fax message (Exh.14), which is in the form of the extra-judicial confession before the Delhi Police, the prosecution has not been able to lead any evidence as regards the charge levelled against the appellants-accused. 17. The Apex Court in the case of Malkiat Singh v. the State of Punjab, reported in AIR 1970 SC 173 has held as under: "4. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. 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 Article 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. Sir James Article 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.” Similarly the Apex Court in case of Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 has held as under: "11. Another contention for the appellant is that the facts proved do not go beyond the stage of preparation for the commission of the offence of 'cheating', and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, 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, therefore, 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. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of section 511, I.P.C, require. The relevant portion of section 511. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of section 511, I.P.C, require. The relevant portion of section 511. I.P.C., is: "Whoever attempts to commit an offence punishable by this Code ......or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt be punished........" These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence. 12. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 13. We may refer to some decided cases on the construction of section 511, I.P.C. 14. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 13. We may refer to some decided cases on the construction of section 511, I.P.C. 14. In The Queen v. Ramsarun Chowbey, 4 NWP 46 it was said at page 47: "To constitute then the offence of attempt under this Section (s. 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence. Two illustrations of the offence of attempt as defined in this Section are given in the code; both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition. From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted .......". The learned Judge said, further, at page 49: "I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted." 15. We do not agree that the 'act towards the commission of such offence' must be 'an act which leads immediately to the commission of the offence'. The purpose of the illustration is not to indicate such a construction of the Section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The purpose of the illustration is not to indicate such a construction of the Section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at page 48: "The circumstance stated in the illustrations to section 511, Indian Penal Code, would not have constituted attempts under the English law and I cannot but think that they were introduced in order to show that the provisions of section 511, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law" 18. Cumulatively I find that the prosecution has not been able to establish the identity of the appellants-accused. Even PW-2 has clearly stated that he could not identify the appellants-accused. There is no evidence on record to show that any attempt was made by the appellants-accused for committing the offences and taking into consideration the ratio laid down by the Apex Court in the cases of (i) Abhayanand Mishra v. State of Bihar; (ii) Malkiat Singh v. State of Punjab, and (iii) Aman Kumar v. State of Haryana (supra) in facts of the present case and it cannot be said that the appellants-accused had attempted to commit the alleged offence alleged against them. As aforesaid, there is no further evidence on record even as regards the identity of the appellants-accused. Even if the statements of the appellants-accused before Delhi Police are considered admissible in evidence, the evidence led by the prosecution has not corroborated with the same and, therefore, it cannot be said the appellants-accused are guilty of 'attempt to commit' the offence under Section 511 the IPC. I, therefore, hold that the trial Court has erred in coming to the conclusion that the prosecution has been able to prove the case against the appellants-accused. 19. In view of the above, the appeal succeeds and the same is hereby allowed. The order of conviction and sentence recorded by the trial Court against the present appellants-accused is hereby set aside. The appellants are on bail, their bail bonds are discharged. The amount of fine, if deposited, be refunded to them. Appeal allowed.