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Madhya Pradesh High Court · body

2007 DIGILAW 703 (MP)

Gopshah S/o Babushah v. State of M. P.

2007-07-10

RAKESH SAKSENA

body2007
ORDER : 1. Applicant has filed this revision against the order dated 30-9-2002, passed in Criminal Appeal No. 32/2001, affirming the judgment of conviction dated 4-1-2001, passed by Chief Judicial Magistrate, Katni, in Criminal Case No. 955/2000, convicting the applicant under section 411 of the Indian Penal Code and sentencing him to R.I. for 2 years and with fine of Rs. 2000/-. 2. In short, the facts of the case are that during the intervening night of 18/19th of June, 2000, some unknown persons entered the premises of A.C.C. Factory of Kaimore and after breaking open the lock of store department, committed theft of parts of DATA OPERATOR MACHINE which included side grain structure with wheels, one main structure, another parts of main structure, two side frames, two moving wheels, two adjustable platforms, two ladders, four assembly player, platform section. According to Officers of the Factory, the stolen property was worth Rs. 55.00 lacs. This machine was imported machine and its parts were imported aluminum parts. Despite search, the stolen property could not be found then report Exhibit-P-1 was lodged with the Police on 21-6-2000. 3. On 23-6-2000, co-accused Bhim alias Shameem, accused Narendra Singh, Rajendra Dahiya and Rakesh alias Rakku, were arrested. They disclosed that they committed theft after jumping over the wall of the factory and after breaking the machine in the parts, sold the parts to scrap dealers viz. Shameem and Gop Shah. On their information, Police recovered some parts of the machinery from the scrap shop of the applicant and co-accused Shameem. The parts were identified at the place of recovery by PW-1 Ravi Kumar Dangal and Lakhan Lal Tiwari, Security Supervisor of the factory. 4. After investigation, the charge-sheet was filed before the Court of Chief Judicial Magistrate, Katni. Except applicant and co-accused Shameem Kabadi, other co-accused persons were charged for the offence under sections 457 and 380 of the Indian Penal Code. Applicant and co-accused Shameem Kabadi were charged for the offence under section 411 of the Indian Penal Code. During the trial, all the accused pleaded false application and abjured their guilt. 5. During trial, prosecution examined 4 witnesses viz. PW-1 Rajendra Dahiya, employee of the factory, PW-2 Lakhan Lal Tiwari, Security Supervisor of the factory, PW-3 R.L. Thakur, Assistant Manager (Civil) and Investigating Officer, PW-4 B.R. Chaturvedi. 6. During the trial, all the accused pleaded false application and abjured their guilt. 5. During trial, prosecution examined 4 witnesses viz. PW-1 Rajendra Dahiya, employee of the factory, PW-2 Lakhan Lal Tiwari, Security Supervisor of the factory, PW-3 R.L. Thakur, Assistant Manager (Civil) and Investigating Officer, PW-4 B.R. Chaturvedi. 6. On trial, learned Magistrate came to hold that the evidence was in-sufficient for conviction of accused Rajendra Dahiya, Narendra, Bhim and Rakku, for the offence under sections 457 and 380 of the Indian Penal Code, therefore, by order dated 4-1-2001, acquitted them of the charges levelled against them. However, finding recovery of the stolen property, proved from the possession of the applicant, held applicant guilty for the offence under section 411 of the Indian Penal Code. Appeal preferred against the impugned judgment of conviction and sentence, was dismissed by the First Additional Sessions Judge, Katni. 7. Since none appears on behalf of the applicant, I carefully perused the evidence and material on record with the assistance of learned Panel Lawyer for the State. 8. Both the Courts below have relied upon the evidence of witnesses viz. Ravi Kumar, Lakhan Lal Tiwari and R.L. Thakur and found it proved that the alleged stolen property was seized from the possession of the applicant, and hence held the applicant guilty for the said offence. 9. Section 411 of the Indian Penal Code provides:- “411. Dishonestly receiving stolen property - Whoever dishonestly receives or retains any 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.” 10. Apparently, the main ingredient of the aforesaid offence is that the accused should dishonestly receive the stolen property, knowing or having reason to believe the same to be stolen property. 11. If in the light of the above provision, the evidence adduced by the prosecution is examined, it is seen that PW-2 Ravi Kumar Dangal who is official of the factory, stated that when he went to his factory store along with the Security personal, he found the DAT Machine missing. He lodged the report with the Police. He handed over to Police a diagram of the machine. He simply stated that police took him to the shop of Gope Shah Kabadi, where some parts of the machinery were found, which he identified. He lodged the report with the Police. He handed over to Police a diagram of the machine. He simply stated that police took him to the shop of Gope Shah Kabadi, where some parts of the machinery were found, which he identified. Certain other parts were found in the possession of Shameem Kabadi. He admitted that the machine was kept in pieces and the pieces of the machinery were recovered from the ‘Kabadi’ shop of the applicant. 12. Similarly, PW-2 Lakhan Lal Tiwari, Security Supervisor of the factory, stated that the Police had taken him to scrap shop of the applicant and had found pieces of machinery. It is on record that at the instance of acquitted accused persons, Police had seized a saw with the help of which the parts of machine were cut into pieces. PW-4 B.R. Chaturvedi, Investigating Officer, said that when he arrested, other co-accused persons viz. Rajendra Dahiya, Rakesh and Narendra they had disclosed that they had sold the parts and pieces of the said machinery to applicant and other scrap dealer. From the possession of accused Shameem and other accused persons, saw for cutting iron was also seized. When the seized pieces of machinery were sent for examination of Forensic laboratory, it was found that the parts of machinery were cut into pieces by the saw. 13. Since, there was no evidence that other co-accused persons had committed theft after entering the factory premises, they were acquitted. It is the prosecution case that other accused persons had sold the parts of the machinery, after converting it into the pieces, to applicant. 14. Since, the possession of the aforesaid pieces of the machinery was established and was recent, the presumption under section 114, Evidence Act could be raised, but it was the duty of the prosecution to prove it beyond reasonable doubt, that the said machinery was received or retained by the knowingly or that he had reason to believe that the same was a stolen property. 15. As per prosecution case, the machine was not in one piece or intact. Machine itself was kept in parts in the stores and when it was recovered from the KABADI shop of the applicant, it was in the shape of pieces of the parts. 15. As per prosecution case, the machine was not in one piece or intact. Machine itself was kept in parts in the stores and when it was recovered from the KABADI shop of the applicant, it was in the shape of pieces of the parts. From the prosecution case itself, it is apparent that applicant who was a scrap dealer, used to receive the scrap and old pieces and parts of various types of material in the course of his business, therefore, in the absence of proof that he had received the said pieces knowingly that it were stolen property, he cannot be held guilty for the offence under section 411 of the Indian Penal Code. 16. In case of Karnal Singh Uttam Singh vs. State of Maharashtra, AIR 1976 SC 1097 , it has been held that the presumption from recent possession of stolen property is an optional presumption of fact under section 114, Evidence Act. It is open to the Court to convict an accused by using the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the accused is open to the prosecution. Similarly, in the case of Baiju vs. State of M.P. AIR 1978 SC 522 , it was held that the question whether a presumption should be drawn under illustration (a) of section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. 17. On examining the evidence and material on record, in the light of above settled position of law, it is seen that there is no iota of evidence that applicant, who was a scrap dealer, received or retained the aforesaid pieces of machinery, knowingly that the same was the stolen property. There being no such evidence, the necessary ingredient making out an offence under section 411 of the Indian Penal Code is missing and therefore the applicant cannot be convicted for the said offence. There being no such evidence, the necessary ingredient making out an offence under section 411 of the Indian Penal Code is missing and therefore the applicant cannot be convicted for the said offence. 18. In view of the above, the order of conviction and sentence passed by the Courts below, is set aside. 19. Applicant is acquitted of the charge. His Bail Bonds and Surety Bonds are discharged.