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2000 DIGILAW 150 (HP)

STATE OF HP v. JOGINDER SINGH

2000-06-30

C.K.THAKKER

body2000
JUDGMENT : C. K. Thakker, C.J. (Oral) :- This appeal is filed by the State against the judgment and order passed by the Additional Sessions Judge, Kullu, on February 28, 1996 in Criminal Appeal No. 26 of 1995, quashing and setting aside the judgment of conviction and sentence recorded against the respondent by Chief Judicial Magistrate, Kullu, District Kullu, on August 4, 1995 in police Challan No. 339-1/92 and 96-II/93. 2. Three persons, namely, Brij Mohan, Lalit Kumar and Surinder Singh were prosecuted in pursuance of filing of FIR No. 56 of 1992 at SHO, Police Station, Kullu, under Section 379 read with Section 34 of the Indian Penal Code (hereinafter referred to as "the Code"). The case of the prosecution was that one Murari Lal (PW-8) reported to the police authorities that he was working as driver with one Mohinder Kumar (PW-2) and was driving his Maruti Van bearing registration No. HP-02-0600, which was registered with the Taxi Union at Kullu. On February 8, 1992, as per his usual practice, he stationed the said vehicle near P.W.D. office and dead house. The documents of the vehicle, Sterio and driving licence of the complainant were also in the vehicle itself. On the next morning, that is, February 9, 1992, when he went to the spot where the vehicle was parked, it was found missing. Search was made by the complainant, but the vehicle could not be traced. He, therefore, approached the police authorities and filed a report, which was registered as FIR No. 56 of 1992 initially under Section 379 of the Code. The matter was investigated partly by PW-6 ASI Jagat Ram and partly by PW-9 Amar Singh, SHO, Police Station, Kullu. During the course of investigation, it was found that some other persons were also involved in the theft and accordingly, case was registered under Section 379 read with Section 34 of the Code. When the case came up for trial before the learned Magistrate in January, 1995, during the course of deposition of prosecution witnesses, the court felt that two more persons, namely, Pitamber Dev and Joginder Singh (Respondent herein) should also be arrayed as accused as they were also involved in the incident as well as in the commission of offences under the Code. By exercising powers under section 319 of the Code of Criminal Procedure, 1973, both of them were added as accused and they were also charged with offences punishable under Sections 411 and 471 of the Code. 3. The learned Magistrate, after appreciating the facts and circumstances of the case, held that it was not proved by the prosecution beyond reasonable doubt that accused Nos. 1 to 4 had committed offences punishable under Sections 379 read with Section 34 of the Code. He was, however, of the view that so far as accused No. 5 Joginder Singh was concerned, it has proved that he had purchased Maruti Van bearing registration No. HP-02-0600 as stolen property which was recovered from him on March 19,1992 and the registration number was changed as PB-04A-8972. Thus, the said accused had committed offence punishable under Section 411 as well as 471 of the Code. Accordingly, the learned Magistrate convicted the said accused and ordered him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- under Section 411 and also rigorous imprisonment for one year and to pay a fine of Rs. 1000/- under Section 471 of the Code. Both the sentences were, however, to run concurrently. In default of payment of fine, he was ordered to undergo simple imprisonment for one year more. 4. Being aggrieved by the order of conviction and sentence, accused No. 5 preferred an appeal before the Sessions Court, which came up for hearing before the Additional Sessions Judge, Kullu. Before the lower appellate Court, it was contended that the Magistrate has committed a serious error of fact and of law in convicting the appellant for offences punishable under Sections 411 and 471 of the Code. It was urged that when the offence of theft was not proved, the appellant could not have been convicted for committing an alleged offences of receiving stolen property and forgery by holding him guilty of using a forged document as a genuine one. It was also contended that the learned Magistrate has committed an error of law in not appreciating the evidence in its proper perspective and it was not proved beyond doubt that the accused had received stolen property or had used forged document as genuine one. It was contended that the-prosecution had miserably proved an offence of theft said to have committed by the original accused Nos. It was contended that the-prosecution had miserably proved an offence of theft said to have committed by the original accused Nos. 1 to 3 as also the offences with which the appellant was charged. 5. The learned Additional Sessions Judge, after considering the evidence on record, once again, recorded a finding that from the evidence, it was not proved that the theft of Maruti Van was committed by the original accused Nos. 1 to 3 nor there was evidence which would connect the appellant with the crime so far as allegation against him in connection with offences punishable under Sections 411 and 471 of the Code were concerned. He also held that the prosecution evidence was not consistent. There were material contradictions and omissions in depositions of witnesses and it could not be said that the accused was guilty under the offence with which he was charged. Accordingly, the learned Additional Sessions Judge allowed the appeal filed by the appellant and set aside the order of conviction and sentence passed by the learned Magistrate. 6. The above order passed by the learned Additional Sessions Judge is challenged by the State in this appeal. I have heard Mr. M.L. Chauhan, learned Deputy Advocate General, for the appellant and Mr. Ramesh Sharma for Mr. N.K. Thakur, Advocate, for the respondent. From the facts and circumstances of the case, in my opinion, it cannot be said that an illegality was committed by the learned Additional Sessions Judge in acquitting the respondent-accused No. 5 and in setting aside the order passed by the learned Magistrate. On the basis of the evidence, the learned Additional Sessions Judge in two paragraphs numbered both as 10, recorded the reasons ; for such acquittal. He has rightly appreciated the circumstances under which the allegation had been levelled against the respondent and he was implicated as one of the accused in the trial. On the basis of the evidence recorded before the trail Court, in the opinion of the learned Addl. Sessions Judge, no conviction could have been recorded by the learned Magistrate and the said order, which was not in consonance with law, deserved to be set aside and had been set aside by him. 7. On the basis of the evidence recorded before the trail Court, in the opinion of the learned Addl. Sessions Judge, no conviction could have been recorded by the learned Magistrate and the said order, which was not in consonance with law, deserved to be set aside and had been set aside by him. 7. Regarding the provisions of Section 411, it is clear that even the learned Magistrate had not recorded a finding that the property was stolen property and that the offence under Section 379 of the Code had taken place. The contention of the learned counsel for the respondent-accused before this Court is that such a finding is a condition precedent and unless it is held by a competent court that the property in question was stolen property, no conviction can be recorded against the respondent under Section 411 of the Code. Section 411 reads as under: "411. Dishonestly receiving stolen property - whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 8. In Trimbak Vs. State of Madhya Pradesh, AIR 1954 SC 39, it was held by the Honble Supreme Court that whenever an allegation is made against an accused that he had committed an offence punishable under Section 411 of the Indian Penal Code, the prosecution has to prove that (i) the Stolen property was in the possession of the accused, (ii) some person other than the accused had possessed of the property before the accused got possession of it, and (iii) the accused had knowledge that the property was stolen property. In the opinion of their Lordships, unless all the conditions are satisfied and fulfilled, no conviction can be recorded against a person under Section 411 of the Code. Similar view was taken by the Apex Court in Mohan Lai vs. State of Maharashtra, AIR 1979 SC 1718. 9. In the instant case, as seen above, originally only three persons were prosecuted and were made accused in a criminal case for offences punishable under Section 379 read with Section 34 of the Code. The present respondent was not the accused. In fact, he was one of the prosecution witnesses. 9. In the instant case, as seen above, originally only three persons were prosecuted and were made accused in a criminal case for offences punishable under Section 379 read with Section 34 of the Code. The present respondent was not the accused. In fact, he was one of the prosecution witnesses. During the course of trial, however, the learned Magistrate felt that, over and above original accused (three in number), two more persons were also involved in commission of various crimes and accordingly, they were added. At the conclusion of the trial, all the original accused Nos. 1 to 3 were acquitted, likewise, accused No. 4 Pitamber Dev, who was subsequently added, was acquitted. Prima Facie, therefore, the contention raised by the learned counsel for the respondent appears to be well founded that unless there is positive evidence regarding theft, accused No. 5 respondent herein could not have been convicted for an offence under Section 411 of the Code. The matter, however, does not rest there. There is no clear cut and definite finding by the learned Magistrate that the theft did take place and that the property in question (Maruti Van), which was purchased by accused No. 5 was stolen property and he had knowledge about it. 10. As indicated by the Supreme Court, before a person can be convicted f under Section 411, it is incumbent on the part of the prosecution to establish that the property in question was stolen property which was in possession of the accused; that someone else was in possession earlier, that the accused got possession from that person; and the accused had knowledge about the fact that the property was stolen property. When there is no such evidence and no finding regarding the theft of car and the property being stolen property, the conviction against accused No. 5, (present respondent), could not have been recorded by the trial Court and by quashing the said order of conviction and sentence, the learned Additional Sessions Judge has acted in accordance with law. 11. So far as the allegation in respect of offence punishable under Section 471 is concerned, the learned Additional Sessions Judge, in paragraph 12 observed as under: "12. 11. So far as the allegation in respect of offence punishable under Section 471 is concerned, the learned Additional Sessions Judge, in paragraph 12 observed as under: "12. The bare perusal of the provisions contained in this Section reveals that a person who fraudulently and dishonestly uses a document as a genuine which he knows of has reasons to believe to be a forged documents, he renders himself liable for punishment under the provisions of this Section. In the present case, there is no iota of evidence to come to the conclusions that the accused has dishonestly used any forged document as genuine. The facts and circumstances of this case are not even sufficient to prove the bare ingredients of the offences under this Section, what to speak of proving the involvement of the accused or the commission of the offence under Section 471 I.P.C. I have scanned the entire record available on the trial court file and there is no evidence whatsoever that the accused has committed an offence under the provisions of Section 471 I.P.C. The only cause which appears to be against the accused in this behalf is that he had displayed fictitious number-plate on the vehicle in question, but in my opinion, the same cannot be believed to be true as this Court has already discarded the evidence of the prosecution supra regarding the recovery of the vehicle at the instance of the accused. There is thus no iota of evidence to believe that the accused has committed offence under Section 471 IPC. Thus, in my opinion his conviction under Sections 411/471 I PC by the learned trial Court is absolutely unwarranted and uncalled for and also misplaced as per the record of the case." 12. In my opinion, even regarding the alleged offence under Section 471 of the Code, the lower appellate Court was right in observing that there was no evidence worth the name to come to the conclusion that the accused had fraudulently, dishonestly or deliberately used forged document as genuine one and that his case was covered by Section 471 of the Code. As there was no evidence, the learned Magistrate was not right in convicting the accused under Section 471 of the code and the appellate Court rightly set aside even that part of the judgment by quashing the order of conviction and sentence. 13. As there was no evidence, the learned Magistrate was not right in convicting the accused under Section 471 of the code and the appellate Court rightly set aside even that part of the judgment by quashing the order of conviction and sentence. 13. For the foregoing reasons, in my view, the order passed by the learned Additional Sessions Judge, Kullu, does not deserve interference and the appeal deserves to be dismissed. The appeal is accordingly, dismissed. Ball bonds furnished by the accused-respondent shall stand discharged. The amount of fine, if not refunded to the respondent-accused, will now be refunded to him.