Shiv Kumar v. the State of Madhya Pradesh
HRISHIKESH ROY, J.
1. Leave granted.
2.Heard Mr. Lav Kumar Agrawal, the learned counsel appearing
for the appellant. Also heard Mr. Gopal Jha, the learned counsel appearing
for the respondent-State of Madhya Pradesh.
3.The challenge in this appeal is to the judgment dated 12.03.2019
in the Criminal Appeal No. 1261 of 2006 whereunder the appellant’ s
conviction by the trial Court under Section 411 of the Indian Penal Code,
1860 (for short “IPC”), was sustained by the High Court. Fo r such
conviction, the appellant was sentenced to rigorous imprisonment (for
short “R.I.”) for 2 years and fine of Rs. 1,000 and in default of fi ne
payment, additional R.I. for 3 months was ordered.
4. In this appeal, limited notice was initially issued on 4.10.2019
only on the quantum of sentence but on 9.5.2022, after considering the
submission of the learned counsel for the appellant, the Court decided to
examine the challenge to the conviction itself. Earlier, the appellant was
exempted from surrendering by the Court’s order dated 6.9.2019.
5.In the common judgment, the High Court had disposed of three
appeals including the appeal filed by one Sadhu Singh alias Vijaybhan
Singh Patel who was convicted for murder and other offences and was
sentenced, inter alia, to imprisonment for life. The appellant and one
Shatrughan Prasad were not charged in the murder case, but were
497
charged with the offence of receiving stolen property and were convicted
for the offence punishable under Section 411 of the IPC.
6.The prosecution’s case, as revealed from the impugned judgment,
is that on 14.2.2003, complainant Abhay Kumar Jain (PW-26) gave a
written report to the Town Inspector, City Kotwali, Sat na with the
information that a truck loaded with household articles operating under
the informant’s Excel Transport Agency had proceeded from Indore for
delivering goods at Satna. The truck driven by Gurmel Singh after starting
from the transport office at Indore on 8.2.2003 had, however, failed to
reach its destination at Satna until 12.2.2003. On 14.2.2003, the informant,
on learning that the truck was standing on Galla Mandi, Satn a, found
that the loaded goods from the truck were missing. Initially, an FIR was
registered for offence under Section 406 of the IPC in the Crim e No.
183/2003 but during police investigation, it came to light that the truck
driver was murdered by Sadhu Singh alias Vijaybhan Singh with co-
accused Raju alias Rajendra. The loaded goods in the truck were looted
and those stolen articles were dishonestly received b y the present
appellant Shiv Kumar and co-accused Shatrughan Prasa d allegedly
knowing the articles to be stolen property. It is the fu rther case of the
prosecution that the goods in question were sold at cheaper rate by the
two accused who were, accordingly, charged for offences under Section
411 of the IPC.
7. The trial Court convicted the co-accused Sadhu Singh for the
offence of murder and related charges. It was also held that the
prosecution is able to prove that the appellant Shiv Kumar and co-accused
Shatrughan Prasad had received the articles looted from the truck
knowing fully well that those are stolen property, and thereby, both accused
committed the offence punishable under Section 411 of the IPC.
8. The learned trial Judge noted that the articles looted from the
truck were seized from the possession of the appellant and co-accused
Shatrughan Prasad, through the seizure memos (Ext. P-4 and Ext. P-5).
Both accused were found selling articles at cheaper r ates. It was,
therefore, concluded that the accused were aware of the fac t that the
articles seized from them were stolen property. The appellant was,
accordingly, convicted by the trial Court and such conviction unde r
Section 411 of the IPC was affirmed on appeal, by the Hig h Court,
through the impugned judgment.
SHIV KUMAR v. THE STATE OF MADHYA PRADESH
[HRISHIKESH ROY, J.]
Counsel’s Submissions
9.1Assailing the legality of the guilty verdict against the appellant,
Mr. Lav Kumar Agrawal, the learned counsel would submit that the
essential ingredients of Section 411 IPC offence are not at all made out
as the prosecution has failed to adduce any evidence to show that the
accused had knowledge that the seized articles were stolen f rom the
looted truck. It is, therefore, argued that unless the knowledge of the
accused on the nature of the articles sold by them is esta blished, his
conviction under Section 411 of the IPC cannot be sustained in law.
10.1 On the other hand, Mr. Gopal Jha, the learned Co unsel
appearing for the Respondent – State supported the view take n by the
Courts below. According to him, there are adequate material and evidence
on record which establishes the guilt of the accused, beyond reasonable
doubt. The State Counsel has further placed reliance on Sambhu Das
alias Bijoy Das & Anr. V. State of Assam1 for sustaining the impugned
conviction where Justice H.L. Dattu for invoking Article 136 powe r,
opined the following: -
“16. This Court, in exercise of its powers under Articl e 136
of the Constitution, will not reopen the findings of the High
Court when there are concurrent findings of facts and there
is no question of law involved and the conclusion i s not
perverse. Article 136 of the Constitution, does not confer a
right of appeal on a party. It only confers a discr etionary
power on the Supreme Court to be exercised sparingl y to
interfere in suitable cases where grave miscarriage of jus tice
has resulted from illegality or misapprehension or mistake i n
reading evidence or from ignoring, excluding or ill egally
admitting material evidence.”
10.2 It is pointed out by the State’s counsel that the appellant was
in possession of the property from 10.02.2003 till those were recovered
on 27.06.2003, on the basis of the disclosure statement of other accused
Raju alias Rajendra and Sadhu alias Vijaybhan Singh. As the a rticles
were being sold at cheaper rates would lead to the logical inference that
the ingredients under Section 411 of the IPC are sati sfied against the
appellant. In support of his argument, Mr. Jha has placed re liance on
1 (2010) 10 SCC 374
499
Nagappa Dondiba Kalal v. State of Karnataka 2, where Justice S.
Murtaza Fazal Ali observed as under: -
“3. …At the utmost as the ornaments have been proved to be
stolen property received by the appellant knowing t hat they
were stolen property. The accused can thus be convi cted on
the basis of presumption under Section 114 of the Ev idence
Act and under Section 411 of Indian Penal Code as a receiver
of stolen property knowing the same to be stolen.”
Analysis & Findings
11. The law governing disclosure statement was discussed by this
Court in the case of Haricharan Kurmi & Anr. Vs. State of Bihar 3. It
was observed:
“12. …….In dealing with a criminal case where the prosecution
relies upon the confession of one accused person ag ainst
another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory a nd the
court is inclined to hold that the said evidence ma y sustain
the charge framed against the said accused person, the court
turns to the confession with a view to assure itsel f that the
conclusion which it is inclined to draw from the other eviden ce
is right....”
12. In this case, although recovery of items was ma de, the
prosecution must further establish the essential ingredient of knowledge
of the appellant that such goods are stolen property. Relia nce solely
upon the disclosure statement of accused Raju alias Rajendra and Sadhu
alias Vijaybhan Singh will not otherwise be clinching, for the conviction
under Section 411 of the IPC.
13. Section 411 IPC:
“411. Dishonestly receiving stolen property.– Whoever
dishonestly receives or retains any stolen property, knowing
or having reason to believe the same to be stolen pro perty,
shall be punished with imprisonment of either description for
2 1980 (Supp) SCC 336
3 AIR 1964 SC 1184
SHIV KUMAR v. THE STATE OF MADHYA PRADESH
[HRISHIKESH ROY, J.]
a term which may extend to three years, or with fine, or with
both.”
The penal Section extracted above can be broken down into four
segments namely: Whoever, I. Dishonestly; II. Receives or retains any
stolen property; III. Knowing; or IV. 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.
14. “Dishonestly” is defined under Section 24 of the IPC a s,
“Whoever does anything with the intention of causin g wrongful
gain to one person or wrongful loss to another person, is sai d to do
that thing “dishonestly”. The key ingredient for a crime is, of course,
Mens Rea. This was nicely explained by Justice K. Subba Rao in the
case of Dr. Vimla v. Delhi Administration4 in the following paragraphs:-
“9A. A Full Bench of the Madras High Court, in Kotamraju
Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had
to consider the case of a person obtaining admission to the
matriculation examination of the Madras University as a
private candidate producing to the Registrar a cert ificate
purporting to have been signed by the headmaster of a
recognized High School that he was of good character and
had attained his 20th year. It was found in that case that the
candidate had fabricated the signature of the headm aster.
The court held that the accused was guilty of forgery. Whit e,
C.J., observed:
“Intending to defraud means, of course, something more
than deceiving.” He illustrated this by the followi ng
example:
“A tells B a lie and B believes him. B is deceived but it does
not follow that A intended to defraud B. But, as it seams to
me, if A tells B a lie intending that B should do something
which A conceives to be to his own benefit or advantag e,
and which, if done, would be to the loss or detriment of B,
A intends to defraud B.” The learned Chief Justice
indicated his line of thought, which has some bearing on
the question now raised, by the following observations:
4 AIR 1963 SC 1572
501
“I may observe, however, in this connection that by Section
24 of the Code person does a thing dishonestly who does
it with the intention of causing wrongful gain or wrongful
loss. It is not necessary that there should be an inte ntion
to cause both. On the analogy of this definition, it might
be said that either an intention to secure a benefi t or
advantage on the one hand, or to cause loss or detriment
on the other, by means of deceit is an intent to defraud .”
But, he found in that case that both the elements w ere
present. Benson, J. pointed out at p. 114:
“I am of opinion that the act was fraudulent not merely by
reason of the advantage which the accused intended to
secure for himself by means of his deceit, but also by reason
of the injury which must necessarily result to the University,
and through it to the public from such acts if unrepresse d.
The University is injured, if through the evasion of its bye-
laws, it is induced to declare that certain persons have
fulfilled the conditions prescribed for Matriculati on and
are entitled to the benefits of Matriculation, when in f act,
they have not fulfilled those conditions for the value of its
examinations is depreciated in the eyes of the public if it is
found that the certificate of the University that they hav e
passed its examinations is no longer a guarantee that they
have in truth fulfilled the conditions on which alon e the
University professes to certify them as passed, and to admit
them to the benefits of Matriculation.”
Boddam, J., agreed with the learned Chief Justice a nd
Benson, J. This decision accepts the principle laid d own
by Stephen, namely, that the intention to defraud is mad e
up of two elements, first an intention to deceive and second
the intention to expose some person either to actual injury
or risk of possible injury; but the learned Judges were
also inclined to hold on the analogy of the definiti on of
“dishonestly” in Section 24 of the Code that intentio n to
secure a benefit or advantage to the deceiver satisfies t he
second condition.”
15. To establish that a person is dealing with stolen property, the
“believe” factor of the person is of stellar import. For successful
SHIV KUMAR v. THE STATE OF MADHYA PRADESH
[HRISHIKESH ROY, J.]
prosecution, it is not enough to prove that the accused was either negligent
or that he had a cause to think that the property was stole n, or that he
failed to make enough inquiries to comprehend the nature of the goods
procured by him. The initial possession of the goods in question may not
be illegal but retaining those with the knowledge that it was stolen property,
makes it culpable.
16. On the above aspect, Mr. Gopal Jha for the State r efers
particularly to the seizure memo as also the evidence of PW-5, PW-22,
and PW-24 to contend that the evidence therefrom establish that the
appellant was aware that he was dealing in stolen goods. On this, crucially
it can be noticed that in the FIR No. 407/2003 (25. 6.2003),
Rs. 12,50,000/- is shown as the total value of the goods (utensils, clothes,
hosiery goods and electrical goods) loaded in the truck No. MP 09/D0559.
However, in the seizure memo (27.6.2003), only Rs.20,000/- is shown
as the value of the articles (steel articles, torch, aluminium box) allegedly
seized from the appellant’s possession. Considering the dispa rate and
incomparable figures, those values cannot be reasonably inter-linked to
support the guilt finding under Section 411 of the IPC. Moreover , the
appellant in usual course, sold utensils in his shop and nothing is unnatural
about him possessing such household articles, as seized from him.
17. The learned counsel for the State next points out that the
accused Shiv Kumar had a shop of steel utensils and some of the articles
stolen from the truck were sold in his shop. On this, the te stimony of
Nitin Jain (PW-5) becomes relevant. PW-5, however, stated th at the
utensils of a particular mark are not sold in the shop o f the appellant.
More importantly, he does not remember the special marks of the utensils
carried in the truck. According to PW-5, he is unable to remember whether
the details of the seized goods were noted in the appellant ’s house or
was prepared subsequently. His testimony also mentioned that he met
S.I., G.P. Tiwari (PW-24) at the shop of the other accused Shatrughan
Prasad and only after Shatrughan Prasad was arrested, the police effected
the arrest of the present appellant, Shiv Kumar. The evidence of PW-5,
by no stretch establishes that the appellant Shiv Kumar was conscious
that the goods seized from his shop, were stolen articles.
18. Furthermore, one Bharat Singh Thakur (PW-22) was the Sub-
Inspector at Police Station, Pannagarh who received information about
clothes and utensils being sold at low prices. This PW-22 while proving
his signature on the seizure memo, had acknowledged that the accused
Shiv Kumar had a utensil store and most pertinently “because of
503
hastiness”, seal has not been put on the seizure memo (Ext. P- 4). The
testimony of PW-22 suggests that a defective procedure was followed
in preparing the seizure memo and importantly, his testimony does not
show that the appellant was aware that he received articles, which had
any connection with the stolen goods in the truck.
19. Likewise, G.P. Tiwari, the S.I. at Police Station Kotwali, Satna
in his testimony as PW-24 while acknowledging that he had not conducted
the seizure procedure for the articles seized from the a ppellant, Shiv
Kumar, nowhere mentioned that the appellant was aware that the goods
seized from him were stolen property.
20. The contradiction in the testimonies of Nitin Jain (PW-5), Sub-
Inspector Bharat Singh Thakur (PW-22), and Sub-Inspector G.P. Tiwari
(PW-24) are also quite glaring. For instance, the utensils as per PW-5,
were seized by Sub-Inspector G.P. Tiwari (PW-24) in the pr esence of
Nitin Jain (PW-5), however, the S.I. G.P. Tiwari (PW-24) in his testimony
has denied seizing any property, owing to lacking Jurisdiction, stating
“seizure must have been done by Police Station, Panagarh ” and not
by the officer from the Police Station Kotwali, Satna. Apart f rom the
above, interestingly, the support for the testimony of Sub-Inspector G.P.
Tiwari (PW-24) is provided by Sub-Inspector Bharat Singh Thakur (PW-
22) of Police Station, Panagarh to the effect that PW-24 was not present
at Shiv Kumar’s house during the seizure process. He has also denied
that PW-24 called Nitin Jain (PW-5) to the house of Shiv Kum ar to
witness the seizure. Moreover, the seizure memo being written by Sub-
Inspector G.P. Tiwari (PW-24) is also not supported by PW-24. Noticing
all these discrepancies, the seizure evidence is found to be totally
unreliable.
21. In Trimbak vs. State of Madhya Pradesh 5, this Court
discussed the essential ingredients for conviction under Section 411 of
the IPC. Justice Mehr Chand Mahajan, in his erudite opinion right ly
observedthat in order to bring home the guilt under Section 411 IPC, the
prosecution must prove,
“5. (1) that the stolen property was in the possessio n of the
accused, (2) that some person other than the accuse d had
possession of the property before the accused got pos session
of it, and (3) that the accused had knowledge that the propert y
was stolen property....”
5 AIR 1954 SC 39
SHIV KUMAR v. THE STATE OF MADHYA PRADESH
[HRISHIKESH ROY, J.]
22. When we apply the legal proposition as propounded to the
present circumstances, the inevitable conclusion is that the prosecution
has failed to establish that the appellant had the knowledge that articles
seized from his possession are stolen goods. This essential element was
not established against the appellant to bring home the ch arge under
Section 411 of the IPC against him.
23. That apart, the disclosure statement of one accused ca nnot
be accepted as a proof of the appellant having knowledge of utensils
being stolen goods. The prosecution has also failed to establish any basis
for the appellant to believe that the utensils seized from him were stolen
articles. The factum of selling utensils at a lower price cannot, by itself,
lead to the conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens Rea is clearly not established
for the charge under Section 411 of IPC. The Prosecution’s evidence on
this aspect, as they would speak of the character Gratiano in Merchant
of Venice, can be appropriately described as, “you speak an infinite
deal of nothing.” 6
24. In a case like this, where the fundamental evidence is not
available and the law leans in appellant’s favour, notwithsta nding the
concurrent finding, the Court has to exercise corrective jurisdiction as
the circumstances justify. As such, taking a cue from Haryana State
Industrial Development Corporation vs. Cork Manufactu ring Co 7.,
the exercise of extraordinary jurisdiction under Article 136 is found to be
merited to do justice to the appellant who was held to be guilty, without
the requisite evidence to establish his mens rea in the crime.
25. In these circumstances where it is not established that the
appellant dishonestly received stolen property with the knowledge and
belief that the goods found in his possession were stolen, the conviction
of the appellant under Section 411 IPC, in our view, cannot be sustained.
Therefore, applying the test in Trimbak [supra], it must be held that the
appellant was erroneously convicted. Therefore, we order the acquittal
of the appellant. The appeal stands allowed with this order.
Devika Gujral Appeal allowed.
(Assisted by : Shevali Monga, LCRA)
6 William Shakespeare. Merchant of Venice, Act 1 Scene 1.
7 (2007) 8 SCC 120