Shiv Kumar VERSUS The State of Madhya Pradesh

Shiv Kumar VERSUS The State of Madhya Pradesh

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Page 1 of 17
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._1503 OF 2022
(Arising out of SLP (Crl.) No. 9141 OF 2019)
Shiv Kumar Appellant(s)
VERSUS
The State of Madhya Pradesh Respondent(s)
J U D G M E N T
Hrishikesh Roy, J.
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.
Page 2 of 17
For 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 fine 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 charged with the offence
of receiving stolen property and were convicted for the
offence punishable under Section 411 of the IPC.
Page 3 of 17
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, Satna 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, Satna,
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 Crime 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 by the
present appellant Shiv Kumar and co-accused Shatrughan
Prasad allegedly knowing the articles to be stolen
Page 4 of 17
property. It is the further 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 rates.
It was, therefore, concluded that the accused were
aware of the fact that the articles seized from them
were stolen property. The appellant was, accordingly,
convicted by the trial Court and such conviction under
Page 5 of 17
Section 411 of the IPC was affirmed on appeal, by the
High Court, through the impugned judgment.
Counsel’s Submissions
9.1 Assailing 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 from the looted truck.
It is, therefore, argued that unless the knowledge of
the accused on the nature of the articles sold by them
is established, his conviction under Section 411 of the
IPC cannot be sustained in law.
10.1 On the other hand, Mr. Gopal Jha, the learned
Counsel appearing for the Respondent – State supported
the view taken 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
Page 6 of 17
of Assam1 for sustaining the impugned conviction where
Justice H.L. Dattu for invoking Article 136 power,
opined the following: -
“16. This Court, in exercise of its powers
under Article 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 is not perverse. Article 136
of the Constitution, does not confer a right
of appeal on a party. It only confers a
discretionary power on the Supreme Court to
be exercised sparingly to interfere in
suitable cases where grave miscarriage of
justice has resulted from illegality or
misapprehension or mistake in reading
evidence or from ignoring, excluding or
illegally 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 articles were being sold at cheaper rates would
lead to the logical inference that the ingredients
under Section 411 of the IPC are satisfied against the
appellant. In support of his argument, Mr. Jha has

1 (2010) 10 SCC 374
Page 7 of 17
placed reliance on Nagappa Dondiba Kalal v. State of
Karnataka2, 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 that they were stolen
property. The accused can thus be convicted
on the basis of presumption under Section 114
of the Evidence 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 Bihar3. It was observed:
“12. …….In dealing with a criminal case
where the prosecution relies upon the
confession of one accused person against
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 and the court is inclined to
hold that the said evidence may sustain
the charge framed against the said accused
person, the court turns to the confession
with a view to assure itself that the
conclusion which it is inclined to draw
from the other evidence is right....”

2 1980 (Supp) SCC 336
3 AIR 1964 SC 1184
Page 8 of 17
12. In this case, although recovery of items was made,
the prosecution must further establish the essential
ingredient of knowledge of the appellant that such
goods are stolen property. Reliance 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 property, shall be punished with
imprisonment of either description for 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.
Page 9 of 17
14. “Dishonestly” is defined under Section 24 of the
IPC as, “Whoever does anything with the intention of
causing wrongful gain to one person or wrongful loss
to another person, is said 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 certificate 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 headmaster. The court held that the accused was
guilty of forgery. White, C.J., observed:
“Intending to defraud means, of course,
something more than deceiving.” He illustrated
this by the following 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
advantage, 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:
“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

4 AIR 1963 SC 1572
Page 10 of 17
causing wrongful gain or wrongful loss. It is
not necessary that there should be an intention
to cause both. On the analogy of this
definition, it might be said that either an
intention to secure a benefit 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
were 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
unrepressed. 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
Matriculation and are entitled to the benefits
of Matriculation, when in fact, 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 have passed its
examinations is no longer a guarantee that they
have in truth fulfilled the conditions on which
alone 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 and Benson, J. This decision accepts the
principle laid down by Stephen, namely, that the
intention to defraud is made 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 definition of “dishonestly” in
Section 24 of the Code that intention to secure
a benefit or advantage to the deceiver satisfies
the 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 prosecution, it is not
Page 11 of 17
enough to prove that the accused was either negligent
or that he had a cause to think that the property was
stolen, 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
refers 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
disparate and incomparable figures, those values cannot
be reasonably inter-linked to support the guilt finding
Page 12 of 17
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 testimony of Nitin Jain
(PW-5) becomes relevant. PW-5, however, stated that
the utensils of a particular mark are not sold in the
shop of 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
Page 13 of 17
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 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 appellant,
Shiv Kumar, nowhere mentioned that the appellant was
Page 14 of 17
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
presence 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 from the above,
interestingly, the support for the testimony of SubInspector G.P. Tiwari (PW-24) is provided by SubInspector 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 Kumar to witness the
seizure. Moreover, the seizure memo being written by
Sub-Inspector G.P. Tiwari (PW-24) is also not supported
Page 15 of 17
by PW-24. Noticing all these discrepancies, the seizure
evidence is found to be totally unreliable.
21. In Trimbak vs. State of Madhya Pradesh5, this Court
discussed the essential ingredients for conviction
under Section 411 of the IPC. Justice Mehr Chand
Mahajan, in his erudite opinion rightly observed that
in order to bring home the guilt under Section 411 IPC,
the prosecution must prove,
“5. (1) that the stolen property was in
the possession of the accused, (2) that
some person other than the accused had
possession of the property before the
accused got possession of it, and (3)
that the accused had knowledge that the
property was stolen property....”
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 charge under Section 411 of the IPC
against him.

5 AIR 1954 SC 39
Page 16 of 17
23. That apart, the disclosure statement of one accused
cannot 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, notwithstanding 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.

6 William Shakespeare. Merchant of Venice, Act 1 Scene 1.
Page 17 of 17
Cork Manufacturing Co7., 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.
………………………………………………………J.
[K.M. JOSEPH]
………………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
SEPTEMBER 7, 2022

7 (2007) 8 SCC 120

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