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2014 DIGILAW 1298 (BOM)

Ajay Parmar v. State of Maharashtra

2014-06-19

MRIDULA BHATKAR

body2014
JUDGMENT Mridula Bhatkar, J. 1. This appeal is directed against the judgment and order dated 13th April, 2009, passed by the Ad-hoc Additional Sessions Judge, Sewree, Mumbai, convicting the applicant accused for the offence punishable under Section 411 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years with fine of Rs. 2,000/- and in default of payment of fine R.I. for three months. It is the case of the prosecution that the appellant i.e. original accused No. 2 in Sessions Case No. 962 of 2006 alongwith accused Nos. 1, 3 and 4 have committed robbery on 5.5.2005 between 4.30 p.m. to 5.00 p.m. they snatched cash of Rs. 300/-, mobile phone and stolen Maruti Zen car. The complainant P.W.I Suryakant Lokhande, is a driver of one Nandkishor Gupta the owner of the car. When complainant had gone to Santacruz in hazi Niwas building to take his owners wife, the accused Nos. 1 to 4, kidnapped him and thereafter changed the number plate of Maruti Zen Car and thus all these accused were charged for the offences punishable under Sections392, 397, 365, 201 read with Section 34 of the Indian Penal Code. The accused No. 1 and present appellant (accused No. 2) were charged for the offence of receiving stolen property i.e. Maruti Car under Section 411 of the Indian Penal Code. 2. All the accused were acquitted from all the charges except accused No. 2 i.e. present appellant accused was convicted for the offence under Section 411 read with 34 of the Indian penal Code. Hence this appeal. 3. It is the case of the prosecution that though the robbery has taken place on 5.5.2004, thereafter, appellant accused who was Police Officer at the relevant time as Detection Officer, M.I.D.C. Police Station, was caught by Anti Corruption Bureau on 24.02.2006 when a trap was led and appellant accused was arrested while accepting bribe of Rs. 5,000/-. The trap was led in the Maruti Car in which appellant accused was found. It is the case of the prosecution that the appellant accused was using the said car. He was in possession of the said car. He got that car painted and he also changed number plate of the said Maruti car. 5,000/-. The trap was led in the Maruti Car in which appellant accused was found. It is the case of the prosecution that the appellant accused was using the said car. He was in possession of the said car. He got that car painted and he also changed number plate of the said Maruti car. It is the case of prosecution that the true number of the Maruti car was MH-02-KA-4788 and changed number of the car when it was found at the time of trap with the appellant accused was MH-04-BN-5041, thus, it is the case of the prosecution that as appellant accused was found with the said car. The chasis number and engine number after verification were found as one and the same which was of the stolen car at the time of commission of robbery and therefore, the applicant accused was charged under Section 411and was convicted for the same offence. Hence this appeal. 4. The learned counsel for the appellant accused has submitted that the incident of robbery and incident of laying of the trap are two different offences. The appellant accused is acquitted from the offence of robbery and he was not concerned with the said case. The appellant accused was a Police Officer, in the Detection branch, in M.I.D.C. Police Station, at the relevant time. He was trapped by the Anti Corruption Bureau. However, the appellant accused by the judgment and order dated 27th, 28th and 29th October, 2010, in Special Case No. 50 of 2006, has been acquitted from the said trap case. 5. The learned counsel for the appellant has submitted that there are many discrepancies in the evidence tendered by the prosecution. He submitted that P.W.4 Kumarvel Nadar Mani, and P.W.6 Ravindra Jadhav, Constable from M.I.D.C. Police Station did not support the case of the prosecution. The colour of the said car which was found in possession of the appellant accused is different, than mentioned in the F.I.R. He further submitted that ingredients of offence punishable under Section 411 are not proved. Therefore, as the principal accused who were tried for the offence of robbery are acquitted, this accused also deserve acquittal. Hence the judgment and order of the conviction by the learned Sessions Judge be quashed and set aside. 6. Therefore, as the principal accused who were tried for the offence of robbery are acquitted, this accused also deserve acquittal. Hence the judgment and order of the conviction by the learned Sessions Judge be quashed and set aside. 6. The learned APP while opposing this appeal, has submitted that the appellant accused was found in possession of the said car which was stolen property of the real owner of the said property Nandkishor Gupta. At the relevant time appellant accused was not having documents of the said car. The number of the car and its number as mentioned in the F.I.R. tallies with each other, therefore, the learned Judge has rightly assessed the evidence and believed the case of the prosecution and has convicted the appellant accused. 7. The learned counsel for the appellant has taken me through the relevant evidence and also relevant portions of the judgment of the Sessions Court. In this case the accused was tried alongwith three accused for the offence of robbery and kidnapping. However, he is acquitted alongwith other accused from the offence of robbery. They are also acquitted from the offence of destruction of evidence under Section 201 of the Indian Penal Code. Under such circumstances prosecution needs to tender concrete evidence to establish guilt of the accused simpliciter under Section 411 of IPC. The evidence tendered by the witnesses that the appellant accused when was trapped on 24.2.2006, was found in possession of the stolen car, is not a sufficient evidence to prove offence against the accused. The burden is on the prosecution to prove all the ingredients of Section 411 of the Indian Penal Code. The offence of dishonestly receiving stolen property with knowledge that property was stolen, is required to be proved. Possession is one of the important incriminating circumstances, however, it should be dishonest. A person may receive stolen property without having knowledge that it is a stolen property. In order to prove offence under Section 411, it is necessary for the prosecution to show that the accused had knowledge or he had reason to believe that the said property was stolen. In the absence of proof of knowledge or he had reason to believe that the property was stolen, the dishonest possession cannot be made out. 8. The learned Sessions Judge has relied on the presumption under Section 114(a) of the Evidence Act which reads thus :-- "114. In the absence of proof of knowledge or he had reason to believe that the property was stolen, the dishonest possession cannot be made out. 8. The learned Sessions Judge has relied on the presumption under Section 114(a) of the Evidence Act which reads thus :-- "114. Court may presume (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;" (emphasis supplied) In view of the facts and circumstances and evidence tendered in the present case, the learned Judge has committed error in invoking presumption against the appellant accused. The presumption can be invoked if a person is found in possession 'soon-after' the theft. In the present case the incident of robbery of the car has taken place on 5th May, 2004, a trap was led on 24.2.2005 i.e. 9 to 10 months after the offence of robbery which cannot be said as "soon-after" the theft. Moreover, the present applicant accused in his statement under Section 313 has explained the possession that he has received car from accused No. 2 in December, 2004 and he has been using the same since then. The learned Sessions Judge has committed error in placing burden of giving satisfactory explanation of the said possession on the applicant accused. The burden to prove dishonest possession and knowledge of the accused that it is a stolen property is on the prosecution. 9. A person may receive stolen property from anybody under a different situations. A possibility that person may receive a car from a friend on the representation that the car belongs to his friend and may start using the car for his personal use. There may be other possibilities of receiving the property it might have been given by the friend, or could have been purchased on some false promise, or have been hypothecated and so the possessor may not be ware of stealing or robbery. A question to that effect is to be put to him in a statement under Section 313 of the Code of Criminal Procedure. The possessor may be in a position to explain from whom he got the possession of the goods, but the burden to explain the possession beyond doubt is not on the accused. A question to that effect is to be put to him in a statement under Section 313 of the Code of Criminal Procedure. The possessor may be in a position to explain from whom he got the possession of the goods, but the burden to explain the possession beyond doubt is not on the accused. The burden to prove dishonest intention to resume or retain is to be proved by the prosecution. 10. In the present case the accused is a police officer. Hence, he accepting car from any person, undoubtedly is against the norms and ethics of public servant, however, that is misconduct violating service rules. This cannot be said that he had knowledge that the car was stolen especially when accused No. 2 is acquitted from the offence of robbery. The knowledge on the part of accused that the property is stolen has a direct nexus with the dishonestly receiving stolen property. The knowledge or his awareness that the property is stolen has to be proved by the prosecution by tendering evidence either documentary, oral or circumstantial. However, in the absence of such evidence, fact of possession alone cannot constitute all the circumstances completing the chain of the evidence. This may be a suspicious situation and is helpful to do guess work, but it is unsafe to come to the conclusion of the proof of offence. In the present case in the absence of nexus between the accused and the offence, I am of the view that the learned Judge has committed error in coming to conclusion that offence under Section 411 of the IPC is made out against appellant. In view of above reasons, impugned order dated 13.4.2009, in Sessions Case No. 962, passed by the learned Ad-hoc Additional Sessions Judge, holding the appellant accused guilty under Section 411 of the Indian Penal Code is quashed and set aside and he is acquitted of the said offence. The bail bonds, if any. be cancelled.