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

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[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.

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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