SHIV KUMAR versus THE STATE OF MADHYA PRADESH on 7 September 2022

[2022] 7 S.C.R. 493

SHIV KUMAR

v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 1503 of 2022)

SEPTEMBER 7, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Penal Code, 1860: s.411 – Dishonestly receiving stolenproperty – Prosecution case was that the appellant-accused andco-accused received the articles looted from the truck knowing fullywell that those are stolen property – Trial court convicted both theaccused u/s.411 – High Court confirmed the conviction – On appeal,held: To establish that a person is dealing with stolen property, the‘believe’ factor of the person is of stellar import – It is not enoughfor prosecution to prove that the accused was either negligent orthat he had a cause to think that the property was stolen, or that hefailed to make enough inquiries to comprehend the nature of thegoods – The initial possession of the goods in question may not beillegal but retaining those with the knowledge that it was stolenproperty, makes it culpable – In the instant case, there is disparitybetween the figures in the FIR lodged and seizure memo as to thevalue of articles seized from the appellant’s possession – Moreover,the appellant in usual course sold utensils in his shop and nothingwas unnatural about him possessing such household articles, asseized from him – Absence of seal on the seizure memo anddiscrepancies in the testimonies made the seizure evidence totallyunreliable – The factum of selling utensils at a lower price cannot,by itself, lead to the conclusion that the appellant was aware of thetheft of those articles – Thus, prosecution failed to establish thatappellant had knowledge that articles seized from his possessionwere stolen goods – Conviction of appellant u/s.411 IPC set aside.

Allowing the appeal, the Court

HELD: 1. To establish that a person is dealing with stolenproperty, the “believe” factor of the person is of stellar import.For successful prosecution, it is not enough to prove that theaccused was either negligent or that he had a cause to think thatthe property was stolen, or that he failed to make enough

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Ainquiries to comprehend the nature of the goods procured byhim. The initial possession of the goods in question may not beillegal but retaining those with the knowledge that it was stolenproperty, makes it culpable. [Para 15][501-H; 502-A-B]

2. In the FIR, Rs. 12,50,000/- is shown as the total value ofBthe goods (utensils, clothes, hosiery goods and electrical goods)loaded in the truck. However, in the seizure memo, onlyRs.20,000/- is shown as the value of the articles (steel articles,torch, aluminium box) allegedly seized from the appellant’spossession. Considering the disparate and incomparable figures,those values cannot be reasonably inter-linked to support theCguilt finding under Section 411 of the IPC. Moreover, the appellantin usual course, sold utensils in his shop and nothing is unnaturalabout him possessing such household articles, as seized fromhim. [Para 16][502-C-D]

3. Furthermore, PW-22 was the Sub-Inspector at PoliceDStation who received information about clothes and utensils beingsold at low prices. PW-22 while proving his signature on theseizure memo, had acknowledged that the appellant-accused hada utensil store and most pertinently “because of hastiness”, sealhas not been put on the seizure memo. The testimony of PW-22Esuggested that a defective procedure was followed in preparingthe seizure memo and importantly, his testimony does not showthat the appellant was aware that he received articles, which hadany connection with the stolen goods in the truck. [Para 18][502-H; 503-A]F4. The contradiction in the testimonies of PW-5, PW-22 andSub-Inspector (PW-24) are also quite glaring. For instance, theutensils as per PW-5, were seized by PW-24 in the presence ofPW-5, however, PW-24 in his testimony has denied seizing anyproperty, owing to lacking Jurisdiction, stating “seizure must havebeen done by Police Station, Panagarh” and not by the officer fromGthe Police Station Kotwali, Satna. Apart from the above,interestingly, the support for the testimony of PW-24 is providedby PW-22 to the effect that PW-24 was not present at appellant’shouse during the seizure process. He has also denied that PW-24 called PW-5 to the house of appellant to witness the seizure.

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Moreover, the seizure memo being written by PW-24 is also notsupported by him. Noticing all these discrepancies, the seizureevidence is found to be totally unreliable. [Para 20][503-C-E]

5. By applying the legal proposition as propounded to thepresent circumstances, the inevitable conclusion is that theprosecution has failed to establish that the appellant had theknowledge that articles seized from his possession are stolengoods. This essential element was not established against theappellant to bring home the charge under Section 411 of the IPCagainst him. That apart, the disclosure statement of one accusedcannot be accepted as a proof of the appellant having knowledgeof utensils being stolen goods. The prosecution has also failed toestablish any basis for the appellant to believe that the utensilsseized from him were stolen articles. The factum of selling utensilsat a lower price cannot, by itself, lead to the conclusion that theappellant was aware of the theft of those articles. The essentialingredient of mens Rea is clearly not established for the chargeunder Section 411 of IPC. [Paras 22, 23][504-A-C]

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Haricharan Kurmi & Anr. v. State of Bihar AIR 1964SC 1184 : [1964] 6 SCR 623; Dr. Vimla v. DelhiAdministration AIR 1963 SC 1572 : [1963] 2 Suppl.SCR 585; Trimbak v. State of Madhya Pradesh AIR1954 SC 39 – relied on.

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Sambhu Das alias Bijoy Das & Anr. v. State of Assam(2010) 10 SCC 374 : [2010] 11 SCR 493; NagappaDondiba Kalal v. State of Karnataka (1980) Suppl. SCC336; Haryana State Industrial DevelopmentCorporation v. Cork Manufacturing Co. (2007) 8 SCC120 : [2007] 9 SCR 508 – referred to F

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1503 of 2022.

From the Judgment and Order dated 12.03.2019 of the High Courtof Madhya Pradesh, Principal Seat at Jabalpur in Criminal Appeal No.1261 of 2006.

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Lav Kumar Agrawal, Ms. Jyoti Mishra, Ms. Usha Garg, RajenderPrasad, Shiv Kumar Vats, Advs. for the Appellant.

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Joydip Roy, AAG, Gopal Jha, Ms. Bharti Tyagi, Umesh KumarYadav, Advs. for the Respondent.

The Judgment of the Court was delivered by HRISHIKESH ROY, J.D1. Leave granted.

2. Heard Mr. Lav Kumar Agrawal, the learned counsel appearingfor the appellant. Also heard Mr. Gopal Jha, the learned counsel appearingfor the respondent-State of Madhya Pradesh.

3. The challenge in this appeal is to the judgment dated 12.03.2019Ein the Criminal Appeal No. 1261 of 2006 whereunder the appellant’sconviction by the trial Court under Section 411 of the Indian Penal Code,1860 (for short “IPC”), was sustained by the High Court. For suchconviction, the appellant was sentenced to rigorous imprisonment (forshort “R.I.”) for 2 years and fine of Rs. 1,000 and in default of fineFpayment, additional R.I. for 3 months was ordered.

4. In this appeal, limited notice was initially issued on 4.10.2019only on the quantum of sentence but on 9.5.2022, after considering thesubmission of the learned counsel for the appellant, the Court decided toexamine the challenge to the conviction itself. Earlier, the appellant wasGexempted from surrendering by the Court’s order dated 6.9.2019.

5. In the common judgment, the High Court had disposed of threeappeals including the appeal filed by one Sadhu Singh alias VijaybhanSingh Patel who was convicted for murder and other offences and wassentenced, inter alia, to imprisonment for life. The appellant and oneShatrughan Prasad were not charged in the murder case, but were H

charged with the offence of receiving stolen property and were convictedfor 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 awritten report to the Town Inspector, City Kotwali, Satna with theinformation that a truck loaded with household articles operating underthe informant’s Excel Transport Agency had proceeded from Indore fordelivering goods at Satna. The truck driven by Gurmel Singh after startingfrom the transport office at Indore on 8.2.2003 had, however, failed toreach its destination at Satna until 12.2.2003. On 14.2.2003, the informant,on learning that the truck was standing on Galla Mandi, Satna, foundthat the loaded goods from the truck were missing. Initially, an FIR wasregistered for offence under Section 406 of the IPC in the Crime No.183/2003 but during police investigation, it came to light that the truckdriver was murdered by Sadhu Singh alias Vijaybhan Singh with co-accused Raju alias Rajendra. The loaded goods in the truck were lootedand those stolen articles were dishonestly received by the presentappellant Shiv Kumar and co-accused Shatrughan Prasad allegedlyknowing the articles to be stolen property. It is the further case of theprosecution that the goods in question were sold at cheaper rate by thetwo accused who were, accordingly, charged for offences under Section411 of the IPC.

7. The trial Court convicted the co-accused Sadhu Singh for theoffence of murder and related charges. It was also held that theprosecution is able to prove that the appellant Shiv Kumar and co-accusedShatrughan Prasad had received the articles looted from the truckknowing fully well that those are stolen property, and thereby, both accusedcommitted the offence punishable under Section 411 of the IPC.

8. The learned trial Judge noted that the articles looted from thetruck were seized from the possession of the appellant and co-accusedShatrughan Prasad, through the seizure memos (Ext. P-4 and Ext. P-5).Both accused were found selling articles at cheaper rates. It was,therefore, concluded that the accused were aware of the fact that thearticles seized from them were stolen property. The appellant was,accordingly, convicted by the trial Court and such conviction underSection 411 of the IPC was affirmed on appeal, by the High Court,through the impugned judgment.

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ACounsel’s Submissions

9.1 Assailing the legality of the guilty verdict against the appellant,Mr. Lav Kumar Agrawal, the learned counsel would submit that theessential ingredients of Section 411 IPC offence are not at all made outas the prosecution has failed to adduce any evidence to show that theBaccused had knowledge that the seized articles were stolen from thelooted truck. It is, therefore, argued that unless the knowledge of theaccused on the nature of the articles sold by them is established, hisconviction under Section 411 of the IPC cannot be sustained in law.

10.1 On the other hand, Mr. Gopal Jha, the learned CounselCappearing for the Respondent – State supported the view taken by theCourts below. According to him, there are adequate material and evidenceon record which establishes the guilt of the accused, beyond reasonabledoubt. The State Counsel has further placed reliance on Sambhu Dasalias Bijoy Das & Anr. V. State of Assam[1]for sustaining the impugnedconviction where Justice H.L. Dattu for invoking Article 136 power,Dopined the following: - “16. This Court, in exercise of its powers under Article 136of the Constitution, will not reopen the findings of the HighCourt when there are concurrent findings of facts and thereis no question of law involved and the conclusion is notEperverse. Article 136 of the Constitution, does not confer aright of appeal on a party. It only confers a discretionarypower on the Supreme Court to be exercised sparingly tointerfere in suitable cases where grave miscarriage of justicehas resulted from illegality or misapprehension or mistake inFreading evidence or from ignoring, excluding or illegallyadmitting material evidence.”

10.2 It is pointed out by the State’s counsel that the appellant wasin possession of the property from 10.02.2003 till those were recoveredon 27.06.2003, on the basis of the disclosure statement of other accusedGRaju alias Rajendra and Sadhu alias Vijaybhan Singh. As the articleswere being sold at cheaper rates would lead to the logical inference thatthe ingredients under Section 411 of the IPC are satisfied against theappellant. In support of his argument, Mr. Jha has placed reliance on H1 (2010) 10 SCC 374

SHIV KUMAR v. THE STATE OF MADHYA PRADESH[HRISHIKESH ROY, J.]

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 bestolen property received by the appellant knowing that theywere stolen property. The accused can thus be convicted onthe basis of presumption under Section 114 of the EvidenceAct and under Section 411 of Indian Penal Code as a receiverof stolen property knowing the same to be stolen.”

Analysis & Findings

11. The law governing disclosure statement was discussed by thisCourt in the case of Haricharan Kurmi & Anr. Vs. State of Bihar[3]. Itwas observed:

“12. …….In dealing with a criminal case where the prosecutionrelies upon the confession of one accused person againstanother accused person, the proper approach to adopt is toconsider the other evidence against such an accused person,and if the said evidence appears to be satisfactory and thecourt is inclined to hold that the said evidence may sustainthe charge framed against the said accused person, the courtturns to the confession with a view to assure itself that theconclusion which it is inclined to draw from the other evidenceis right....”

12. In this case, although recovery of items was made, theprosecution must further establish the essential ingredient of knowledgeof the appellant that such goods are stolen property. Reliance solelyupon the disclosure statement of accused Raju alias Rajendra and Sadhualias Vijaybhan Singh will not otherwise be clinching, for the convictionunder Section 411 of the IPC.

13. Section 411 IPC:

“411. Dishonestly receiving stolen property.– Whoeverdishonestly receives or retains any stolen property, knowingor having reason to believe the same to be stolen property,shall be punished with imprisonment of either description for 2 1980 (Supp) SCC 336

3 AIR 1964 SC 1184

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[2022] 7 S.C.R.

Aa term which may extend to three years, or with fine, or withboth.”

The penal Section extracted above can be broken down into foursegments namely: Whoever, I. Dishonestly; II. Receives or retains anystolen property; III. Knowing; or IV. Having reason to believe the sameBto be stolen property, shall be punished with imprisonment of eitherdescription for a term which may extend to three years, or with fine, orwith both.

14. “Dishonestly” is defined under Section 24 of the IPC as,“Whoever does anything with the intention of causing wrongfulgain to one person or wrongful loss to another person, is said to doCthat thing “dishonestly”. The key ingredient for a crime is, of course,Mens Rea. This was nicely explained by Justice K. Subba Rao in thecase of Dr. Vimla v. Delhi Administration[4] in the following paragraphs:- “9A. A Full Bench of the Madras High Court, in KotamrajuVenkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] hadDto consider the case of a person obtaining admission to thematriculation examination of the Madras University as aprivate candidate producing to the Registrar a certificatepurporting to have been signed by the headmaster of arecognized High School that he was of good character andhad attained his 20th year. It was found in that case that theEcandidate had fabricated the signature of the headmaster.The court held that the accused was guilty of forgery. White,C.J., observed:

“Intending to defraud means, of course, something morethan deceiving.” He illustrated this by the followingFexample:

“A tells B a lie and B believes him. B is deceived but it doesnot follow that A intended to defraud B. But, as it seams tome, if A tells B a lie intending that B should do somethingwhich A conceives to be to his own benefit or advantage,Gand which, if done, would be to the loss or detriment of B,A intends to defraud B.” The learned Chief Justiceindicated his line of thought, which has some bearing onthe question now raised, by the following observations:

“I may observe, however, in this connection that by Section24 of the Code person does a thing dishonestly who doesit with the intention of causing wrongful gain or wrongfulloss. It is not necessary that there should be an intentionto cause both. On the analogy of this definition, it mightbe said that either an intention to secure a benefit oradvantage on the one hand, or to cause loss or detrimenton the other, by means of deceit is an intent to defraud.”

But, he found in that case that both the elements werepresent. Benson, J. pointed out at p. 114:

“I am of opinion that the act was fraudulent not merely byreason of the advantage which the accused intended tosecure for himself by means of his deceit, but also by reasonof the injury which must necessarily result to the University,and through it to the public from such acts if unrepressed.The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons havefulfilled the conditions prescribed for Matriculation andare entitled to the benefits of Matriculation, when in fact,they have not fulfilled those conditions for the value of itsexaminations is depreciated in the eyes of the public if it isfound that the certificate of the University that they havepassed its examinations is no longer a guarantee that theyhave in truth fulfilled the conditions on which alone theUniversity professes to certify them as passed, and to admitthem to the benefits of Matriculation.”

Boddam, J., agreed with the learned Chief Justice andBenson, J. This decision accepts the principle laid downby Stephen, namely, that the intention to defraud is madeup of two elements, first an intention to deceive and secondthe intention to expose some person either to actual injuryor risk of possible injury; but the learned Judges werealso inclined to hold on the analogy of the definition of“dishonestly” in Section 24 of the Code that intention tosecure a benefit or advantage to the deceiver satisfies thesecond condition.”

15. To establish that a person is dealing with stolen property, the“believe” factor of the person is of stellar import. For successful A

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Aprosecution, it is not enough to prove that the accused was either negligentor that he had a cause to think that the property was stolen, or that hefailed to make enough inquiries to comprehend the nature of the goodsprocured by him. The initial possession of the goods in question may notbe illegal but retaining those with the knowledge that it was stolen property,makes it culpable.B

16. On the above aspect, Mr. Gopal Jha for the State refersparticularly to the seizure memo as also the evidence of PW-5, PW-22,and PW-24 to contend that the evidence therefrom establish that theappellant was aware that he was dealing in stolen goods. On this, cruciallyit can be noticed that in the FIR No. 407/2003 (25.6.2003),CRs. 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 shownas the value of the articles (steel articles, torch, aluminium box) allegedlyseized from the appellant’s possession. Considering the disparate and Dincomparable figures, those values cannot be reasonably inter-linked tosupport the guilt finding under Section 411 of the IPC. Moreover, theappellant in usual course, sold utensils in his shop and nothing is unnaturalabout him possessing such household articles, as seized from him.

17. The learned counsel for the State next points out that theaccused Shiv Kumar had a shop of steel utensils and some of the articlesEstolen from the truck were sold in his shop. On this, the testimony ofNitin Jain (PW-5) becomes relevant. PW-5, however, stated that theutensils of a particular mark are not sold in the shop of the appellant.More importantly, he does not remember the special marks of the utensilscarried in the truck. According to PW-5, he is unable to remember whetherFthe details of the seized goods were noted in the appellant’s house orwas prepared subsequently. His testimony also mentioned that he metS.I., G.P. Tiwari (PW-24) at the shop of the other accused ShatrughanPrasad and only after Shatrughan Prasad was arrested, the police effectedthe arrest of the present appellant, Shiv Kumar. The evidence of PW-5, by no stretch establishes that the appellant Shiv Kumar was consciousGthat 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 aboutclothes and utensils being sold at low prices. This PW-22 while provinghis signature on the seizure memo, had acknowledged that the accusedHShiv Kumar had a utensil store and most pertinently “because of hastiness”, seal has not been put on the seizure memo (Ext. P-4). Thetestimony of PW-22 suggests that a defective procedure was followedin preparing the seizure memo and importantly, his testimony does notshow that the appellant was aware that he received articles, which hadany connection with the stolen goods in the truck.

19. Likewise, G.P. Tiwari, the S.I. at Police Station Kotwali, Satnain his testimony as PW-24 while acknowledging that he had not conductedthe seizure procedure for the articles seized from the appellant, ShivKumar, nowhere mentioned that the appellant was aware that the goodsseized 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 presence ofNitin Jain (PW-5), however, the S.I. G.P. Tiwari (PW-24) in his testimonyhas denied seizing any property, owing to lacking Jurisdiction, stating“seizure must have been done by Police Station, Panagarh” and notby the officer from the Police Station Kotwali, Satna. Apart from theabove, 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 presentat Shiv Kumar’s house during the seizure process. He has also deniedthat PW-24 called Nitin Jain (PW-5) to the house of Shiv Kumar towitness the seizure. Moreover, the seizure memo being written by Sub-Inspector G.P. Tiwari (PW-24) is also not supported by PW-24. Noticingall these discrepancies, the seizure evidence is found to be totallyunreliable.

21. In Trimbak vs. State of Madhya Pradesh[5], this Courtdiscussed the essential ingredients for conviction under Section 411 ofthe IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightlyobserved that in order to bring home the guilt under Section 411 IPC, theprosecution must prove, “5. (1) that the stolen property was in the possession of theaccused, (2) that some person other than the accused hadpossession of the property before the accused got possessionof it, and (3) that the accused had knowledge that the propertywas stolen property....”

5 AIR 1954 SC 39

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A22. When we apply the legal proposition as propounded to thepresent circumstances, the inevitable conclusion is that the prosecutionhas failed to establish that the appellant had the knowledge that articlesseized from his possession are stolen goods. This essential element wasnot established against the appellant to bring home the charge underSection 411 of the IPC against him.B

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23. That apart, the disclosure statement of one accused cannotbe accepted as a proof of the appellant having knowledge of utensilsbeing stolen goods. The prosecution has also failed to establish any basisfor the appellant to believe that the utensils seized from him were stolenarticles. The factum of selling utensils at a lower price cannot, by itself,Clead to the conclusion that the appellant was aware of the theft of thosearticles. The essential ingredient of mens Rea is clearly not establishedfor the charge under Section 411 of IPC. The Prosecution’s evidence onthis aspect, as they would speak of the character Gratiano in Merchantof Venice, can be appropriately described as, “you speak an infiniteDdeal of nothing.”[6]

24. In a case like this, where the fundamental evidence is notavailable and the law leans in appellant’s favour, notwithstanding theconcurrent finding, the Court has to exercise corrective jurisdiction asthe circumstances justify. As such, taking a cue from Haryana StateIndustrial Development Corporation vs. Cork Manufacturing Co[7].,Ethe exercise of extraordinary jurisdiction under Article 136 is found to bemerited to do justice to the appellant who was held to be guilty, withoutthe requisite evidence to establish his mens rea in the crime.

25. In these circumstances where it is not established that theappellant dishonestly received stolen property with the knowledge andFbelief that the goods found in his possession were stolen, the convictionof the appellant under Section 411 IPC, in our view, cannot be sustained.Therefore, applying the test in Trimbak [supra], it must be held that theappellant was erroneously convicted. Therefore, we order the acquittalof the appellant. The appeal stands allowed with this order.

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Devika Gujral

Appeal allowed.

(Assisted by : Shevali Monga, LCRA)

6 William Shakespeare. Merchant of Venice, Act 1 Scene 1.

H7 (2007) 8 SCC 120