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
property is stolen has a direct nexus with the
receiving dishonestly knowledge stolen property.
The or his awareness that the property
is stolen has to be proved by the prosecution
by
oral
tendering
or
evidence
circumstantial.
either
documentary,
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
against
impugned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2009
Ajay Parmar,
V/s.
The State of Maharashtra
CORAM : MRS. MRIDULA BHATKAR, J.
DATE
: 19th June, 2014
Citation;2015 ALLMR(CRI)1403
This appeal is directed against the
judgment
passed
Judge,
and
by
order
the
Sewree,
dated
Ad-hoc
13th
April,
Additional
Mumbai,
2009,
Sessions
convicting
the
applicant accused for the offence punishable
under Section 411 of the Indian Penal Code
sentenced
imprisonment
him
for
to
two
suffer
years
rigorous
with
fine
of
and
Rs.2,000/- and in default of payment of fine
R.I. for three months.
2.
It is the case of the prosecution that
the appellant i.e. original accused No.2 in
1,
3
and
4
have
committed
robbery
Nos
Sessions Case No.962 of 2006 alongwith accused
5.5.2005 between 4.30 p.m. to 5.00 p.m.
they
cash of Rs.300/-, mobile phone and
snatched
on
stolen Maruti Zen car. The complainant P.W.1
Lokhande,
Suryakant
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
charged
and
for
thus
the
all
these
offences
accused
punishable
were
under
Sections 392, 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.
3.
all
All the accused were acquitted from
the
except
appellant
accused
accused
was
No.2
i.e.
convicted
for
present
charges
the offence under Section 411 read with 34 of
the Indian penal Code. Hence this appeal.
It is the case of the prosecution that
though the
4.
thereafter,
5.5.2004,
robbery
has
taken
appellant
place on
accused who
was Police Officer at the relevant time as
Detection
was
Officer,
caught
by
M.I.D.C.
Anti
Police
Corruption
Station,
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
said
Maruti
car.
It
is
the
case
of
the
painted and he also changed number plate 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
applicant
of
robbery
accused
was
and
therefore,
charged
under
the
Section
411 and was convicted for the same offence.
Hence this appeal.
5. 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
not concerned with the said case. The
appellant accused was a Police Officer,
Detection
Station,
branch,
in
M.I.D.C.
Police
the
in
he was
at the relevant time. He was trapped
by the Anti Corruption Bureau. However, the
appellant accused by the judgment and order
27th,
28th
29th
and
October,
2010,
in
dated
Special Case No.50 of 2006, has been acquitted
from the said trap case.
has
The learned counsel for the appellant
6.
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
colour
the
case
of
of the said
possession of the
the
car
prosecution.
which
appellant
was
found
The
in
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
the
acquitted,
offence
this
of
accused
robbery
also
are
for
deserve
tried
acquittal. Hence the judgment and order of the
conviction by the learned Sessions Judge be
quashed and set aside.
The learned APP while opposing this
has
submitted
that
the
appellant
appeal,
7.
accused was found in possession of the said
the real
car which was stolen property of
owner of the said property Nandkishor Gupta.
the relevant time appellant accused was
At
not having documents of the said car.
The
number of the car and its number as mentioned
in
the
F.I.R.
therefore,
the
tallies
learned
with each other,
Judge has rightly
assessed the evidence and believed the case of
the
prosecution
and
has
convicted
the
appellant accused.
8.
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
of
robbery
acquitted
and
kidnapping.
alongwith
other
tried alongwith three accused for the offence
However,
accused
he
from
is
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
stolen car,
found
in
possession
of
the
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.
incriminating
should
be
one
of
the
circumstances,
dishonest.
stolen property without
A
person
important
however,
may
it
is
receive
Possession
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.
9.
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 )
view
circumstances
of
and
the
evidence
facts
tendered
and
in
the
In
present case, the learned Judge has committed error
in invoking presumption
appellant accused. The
against
presumption
the
can
be
invoked if a person is found in possession
In the present case
'soon-after' the theft.
5th
on
24.2.2005
May,
i.e.
2004,
9
place
the incident of robbery of the car has taken
offence of robbery
to
a
10
trap
was
months
led
after
on
the
which cannot be said as
Moreover, the present
applicant his
“soon-after” the theft.
accused
in
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
possession on
burden prove
to
the
of
applicant
dishonest
the
said
accused. The
possession and
knowledge of the accused that it is a stolen
A person may receive stolen property
10.
property is on the prosecution.
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
possibilities
car for his personal use. There may be other
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.
position to
explain
The
possessor
from
whom
may
he
got
in
a
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.
In the present case the accused is a
11.
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 the
the
part
of
on
accused
that
property is stolen has a direct nexus with the
receiving
dishonestly
knowledge
stolen
property.
The
or his awareness that the property
is stolen has to be proved by the prosecution
by
oral
tendering
or
evidence
circumstantial.
either
documentary,
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
12.
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
against
impugned
In
view
order
dated
of
above
13.4.2009,
in
reasons,
appellant.
out
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.
be cancelled.
(MRS. MRIDULA BHATKAR, J.)
bail bonds, if any,
The
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