Delhi District Court
State vs . Deepak Kumar Etc. on 25 August, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
FIR NO. : 201/00
PS : Preet Vihar
Offence complained of : 379/411/34 IPC
Date of commission of offence : 21.05.2000
Unique Case ID No. : 02402R0099552004
STATE Vs. Deepak Kumar etc.
1. Deepak Kumar S/o Sh. Vinod Kumar (P.O. vide order dated 18.02.12).
R/o 522 A, Halkara Kuan, Jwala Nagar, Vivek Vihar, Delhi.
2. Manoj S/o Sh. Ved Prakash
R/o H. No. 554, Badi Ram Leela Ground, Jwala Nagar, Shahdara, Delhi.
................ Accused persons
Gopal Dutt Dimari S/o Sh. Gangadhar Dimari
R/o H. No. X1894, Rajgarh Extn., Gali No. 12, Delhi.
................ Complainant
Date of Institution : 17.10.2000
Plea of accused : Pleaded not guilty
Date of reserving judgment : 25.08.2012
Date of pronouncement : 25.08.2012
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
1. The story of the prosecution is that on 21.05.2000 near Jagat Cinema
within the jurisdiction of PS Jama Masjid, both the accused persons were found in
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possession of a stolen motorcycle bearing No. DL3SH8189 (accused Deepak was
driving the motorcycle and accused Manoj was sitting as pillion rider) belonging to
complainant Gopal Dutt Dimari, which was stolen from the area of PS Preet Vihar
on 17.05.2000. Thus, both the accused persons are alleged to have committed an
offence punishable u/s 411 IPC.
FIR
2. On the complaint of the complainant Gopal Dutt Dimari, an FIR
bearing number 201/00 under section 379 IPC was lodged at Police Station Preet
Vihar on 17.05.2000.
CHARGE
3. After investigation, chargesheet under section 173 Cr.P.C was filed
on 17.10.2000.
Accused persons were summoned to face trial and they were supplied
the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the chargesheet, a charge for the offence punishable
under section 411 IPC was framed against both the accused persons and read out
to the said accused persons, to which the accused persons pleaded not guilty and
claimed trial on 31.03.2003.
During the course of proceedings accused Deepak Kumar was
pronounced Proclaimed Offender vide order dated 18.02.2012.
LEGAL REQUIREMENT
4. Both the accused persons are alleged to have committed an offence
punishable u/s 411 IPC.
In order to prove the allegations of offence punishable under section
411 IPC, the prosecution need to prove the following essential ingredients :
(1)That the accused persons have dishonestly received or
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retained any stolen property.
(2)That such property has been received or retained by the accused
persons knowing or having reason to believe the same to be stolen
property.
PROSECUTION EVIDENCE
5. In order to prove the above said allegations, the prosecution has
examined 5 witnesses namely HC Pramod Kumar as PW1, complainant Gopal
Dutt Dimari as PW2, ASI Tahir Hussain (Recovery witness) as PW3, HC Raj
Kumar as PW4 and Retd. SI Abdul Karim (Recovery Witness) as PW5.
5.1 PW - 1 HC Pramod Kumar is the Duty Officer, who had recorded the
FIR of the present case on the basis of rukka brought by Ct. Raj Kumar on
17.05.2000 and proved the carbon copy of FIR as Ex. PW1/A.
5.2 PW - 2 Complainant Gopal Dutt Dimari deposed that in the year
2000 he had parked his motorcycle bearing No. DL3SH8189 at main road F153,
Jagat Puri in front of his shop in the morning and at about 8:30 PM he noticed that
his motorcycle was not there. Thereafter, he went to PS and gave his written
complaint Ex. PW2/A. He further deposed that within one week he came to know
regarding the recovery of his motorcycle and he got released his motorcycle on
superdari upon furnishing superdarinama Ex. PW2/B. Thus, this witness proved
the fact as regards theft of motorcycle bearing No. DL3SH8189.
5.3 PW - 4 HC Raj Kumar deposed that on 17.05.00 on receipt of DD
No. 34 A Ex. PW4/A he along with HC Mahavir reached H. No. F153, Main Road,
Jagat Puri where complainant Gopal met them. IO inquired from complainant and
recorded his statement Ex. PW2/A.
5.4 PW - 3 ASI Tahir Hussain and PW - 5 Abdul Karim are the
recovery witnesses and the prime witnesses of the prosecution and it is only
through the testimony of these witnesses, the prosecution can prove recovery of
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stolen motorcycle from the possession of accused persons.
They deposed that on 21.05.2000 they along with HC Harun, Ct.
Issruddin and Ct. Satyavir were on patrolling duty at Jama Masjid Chowk and at
about 8:00 PM on receipt of secret information a raiding party was consisted and at
about 8:20 PM two boys came on a black colour motorcycle bearing No. DL3SH
8189 from the side of Jagat Cinema. Both the persons were apprehended at the
instance of secret informer. They further deposed that on inquiry both the persons
could not produce the documents of the motorcycle and disclosed that they had
stolen the said motorcycle from the area of PS Preet Vihar. Thereafter, motorcycle
was seized vide memo Ex. PW3/A and accused persons were arrested and sent to
custody.
5.5 IO/ HC Mahavir Singh could not be traced even despite summons
through DCP (E), hence, this witness was dropped on 29.06.2012.
6. Statement u/s 313 Cr.P.C of accused Manoj was recorded on
06.08.2012 and in the said statement he stated that he was falsely implicated in the
present case and that he was lifted from his house by the police officials, however,
he declined to lead any defence witness.
7. I have heard the Ld. APP for the state and Ld. Defence counsel and
have also carefully perused the entire record and the relevant provisions of the law.
JUDICIAL RESOLUTION
8. It is argued by defence counsel vehemently that all the witnesses of
recovery examined by the prosecution are police personnel and in absence of any
public witness, their testimony alone, should not be held sufficient for convicting the
accused.
8.1 It is settled proposition of criminal law that prosecution is supposed to
prove its case on the judicial file by leading cogent, convincing reliable and
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trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall
or stand on its own legs and it cannot drive any benefit from the weakness if any, in
the defence of the accused. It is not for the accused to disprove the case of the
prosecution and onus to prove the case against the accused beyond reasonable
doubts never shifts and it always remains on the prosecution. Further, benefit of
doubt in the prosecution story always goes to the accused and it entitles the
accused to acquittal.
8.2 From careful perusal of testimonies of these witnesses, it reveals that
the witnesses admitted in examination that several public persons were available
at the spot prior to formation of raiding party and even at time of recovery and arrest
but they were not made witness in the present case and it is a serious lapse on the
part of IO/ Investigating Agency and there are also several material contradictions
in the testimony of the PWs.
8.3 In the present case, the Investigating Officers have not joined any
independent public witness despite availability. Admittedly, several public
witnesses were present at the time of preparation of raiding party and apprehension
of accused (as admitted by PW3 and PW5 (recovery witnesses) in their cross
examination) and while completing the formalities.
8.4 Investigating Agency had sufficient opportunity to join a public witness
as the accused persons were apprehended after formation of raiding party. Merely
stating that they tried to join public witness, but public persons refused to join, is
insufficient as they have not obtained even the names of such public persons and
have also failed to explain as to why the provisions of section 174 IPC r/w Section
42 of the Cr. P.C. was not brought into action against such public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125,
Hon'ble Supreme Court held:
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"The failure of the prosecution to examined independent witnesses
though available is fatal for their case."
In the case titled State of Punjab Vs. Gurdyal Singh 1992(1) RCR
(DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of
Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court
that :
"Where the IO has failed to even note down the names and addresses of
the persons, who have refused to join a public witnesses, couple with the
fact that no action was taken against them, the case is rendered
doubtful."
The Court would also like to refer to the judgment titled Ritesh
Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480
the division bench of Honorable Justices Sh. S. B. Sinha and Sh. Dalveer Bhandari
Observed:
"If it was a busy place, the officers would expectedly ask those to be
witnesses to the seizure memo who were present at the time in the place
of occurrence. But, not only no such attempt was made, even nobody
else who had witnessed the occurrence was made a witnesses. Even
their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act
reads thus :
"The Court may presume
(a) ***
(b) ***
(c ) ***
(d) ***
(e) ***
(f) ***
(g)that evidence which could be and is not produced would, if produced
be, unfavourable to the person who holds its." An adverse inference,
therefore, could be drawn for nonexamination of material witnesses."
(emphasis supplied)
8.5 In absence of a public witness to the recovery and also in absence of
an explanation as to why a public person was not joined in the investigation, the
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prosecution has failed to prove the recovery of motorcycle bearing No. DL3SH
8189 from the accused persons beyond reasonable doubt.
9. Further, there is one material lacuna in the prosecution evidence as
none of the two recovery witnesses i.e, PW3 and PW5 identified accused Manoj
as the person who at the time of recovery of motorcycle was found to be sitting as
pillion rider. PW3 despite presence of Manoj in the court stated that accused
Manoj was not present and identified Manoj as Deepak in his chief as well as in his
cross, hence, he wrongly identified accused Manoj. PW5 Abdul Karim on the other
hand remained absolutely silent as regards identification of accused Manoj. Thus,
even the identity of accused Manoj do not stand established as per law.
10. However, even if it is presumed that the recovery was made from the
accused persons as per the story of prosecution and that at the time of recovery
accused Deepak was driving the motorcycle and accused Manoj was sitting as
pillion rider, still the prosecution is required to prove that too beyond reasonable
doubt that the accused persons including accused Manoj had received or retained
the motorcycle recovered from them either knowing that the same was a stolen
property or having reason to believe that it was a stolen property.
10.1 In order to prove the mens rea, the Ld. APP for the state relies upon
section 114 of Indian Evidence Act and submitted that in view of the factum of
recovery, the court should presume the requisite mens rea on the part of the
accused persons including accused Manoj.
10.2 In this regard the court would like to refer to following judgments
before deciding as to whether mens rea stands proved in this case or not.
In judgment titled Trimbak v. State of M.P., (SC) 1954 A.I.R. (SC) 39
: 1954 Cri.L.J. 335 Hon'ble SUPREME COURT OF INDIA while referring to section
411 of IPC observed as under :
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5. We are satisfied that this was not the correct way of approaching the
decision of a case under Section 411, I.P.C. It is the duty of the
prosecution in order to bring home the guilt of a person under Section
411, I.P.C. to prove, (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. There is no reliable evidence to prove either of these facts.
6. When the field from which the ornaments were recovered was an open
one, and accessible to all and sundry, it is difficult to hold positively that the
accused was is possession of these articles. The fact of recovery by the
accused is compatible with the circumstance of somebody else having
placed the articles there and of the accused somehow acquiring knowledge
about their whereabouts and that being so, the fact of discovery cannot be
regarded as conclusive proof that the accused was in possession of these
articles. (emphasis supplied)
In judgment titled Radha Kishan v. State of U.P., (SC) 1963 A.I.R.
(SC) 822 : 1963(Sup1) SCR 408 before Hon'ble SUPREME COURT OF INDIA
(Before : S.J. Imam, N. Rajagopala Ayyangar and J.R. Mudholkar, JJ.) the
prosecution case was that when the house in which the appellant lived along with
his father Diwan Singh, a retired Police Head Constable, was searched by the C. I.
D. Inspector, S. N. Singh, along with Masood Murtaza, SubInspector of Police,
Bulandsahr on May 12,1956 in connection with a case against Messrs Greenwood
Publicity, they accidentally discovered a large number of letters and postcards and
also the five registered letters in question. At the time of the search the appellant
who happened to be a trade union official, was not in Bulandsahr but was away on
leave at Delhi in connection with a postal conference. These articles were found in
an almirah, the key of which was produced by the appellant's father. The articles
were not listed at the spot but were taken to the Kotwali in a sealed packet and later
on listed there. Hon'ble Apex Court while referring to section 411 of IPC observed
as under :
11. The next and in our opinion, the most important question to be
considered is whether the prosecution has established that the five
registered letters in question were recovered from the possession of
the appellant. As already stated, all, that the prosecution has been able to
prove in this case is that these letters were found in an almirah of the house
in which the appellant lives jointly with his father and of which the key was
furnished by the father. Dealing with this question the High Court has
observed as follows:
"In the first place, the respondent alone had the opportunity and the means to
FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 8 / 14
secure such a large number of postal articles.
(2) that at least nine of those postal articles were addressed to the respondent himself (vide Ex. Ka9, serial No. 66), (3) that Dewan Singh, who, we are informed is a very old man, would not ; foist the said incriminating articles on his son and thus ruin his career for ever, and (4) that the respondent alone can be said to have had some motive for secreting and concealing the registered letters and other postal articles in question.''
12. Before the High Court could take into consideration the circumstance that as between himself and his father the appellant had a better opportunity to get at postal articles it had to find affirmatively that the almirah was in the exclusive possession of the appellant. We have not been able to discover anything in the judgment which directly bears on this question. As the key was produced by the appellant's father and there is no evidence that it was ever with the appellant it would not be legitimate to infer that the almirah was even in the appellant's joint, much less in his exclusive, possession. The circumstance that the almirah contained, apart from the registered letters in question, certain other articles belonging to the appellant cannot sustain an inference that the almirah was in the appellant's possession exclusively or even jointly with his father. We may recall that the almirah contained a large number of articles belonging to the father and since he had the key with him it must be he who must be deemed to be in possession of the almirah and consequently its contents including the registered letters in question.
13. Apart from that, out of the four reasons given by it the last, as pointed out by the high Court itself, is a speculative reason and must, therefore, be left out of consideration. The second 'reason' is no reason at all because a very large number of article, found in the almirah admittedly belong to the father. The third reason that the father would not foist articles to incriminate the son and thus ruin his career assumes that had the father kept the articles he could have done so only if he wanted to incriminate the son. We cannot understand why the father, if he happened to get possession of the articles from some source may not have kept them in the almirah in the same way in which he had kept the other articles belonging to him. That leaves, therefore, only the first reason. We doubt if on the basis of this reason alone the High Court could have held that though the locked almirah was not in the exclusive possession of the appellant, these articles were in his exclusive possession. If the point to be established was whether the appellant had availed himself of the opportunity to procure the articles it could have been established by showing that he was n their exclusive possession. But to say, that he must be deemed to be in exclusive possession of those articles and not merely in joint possession along with his father because he had the opportunity to get at the articles, and then infer that he must have utilised the opportunity and FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 9 / 14 was therefore in their exclusive possession would be arguing in a circle. Moreover since entrustment of the articles has not been established, the taking away of the articles by the appellant from the post office (if that is how he came by the articles) would be theft but it has not been found that he committed any theft. Indeed, had it been so found he could have been convicted under S. 52 withoutthe Court having to consider whether he had secreted the articles. We may mention that Mr. Mathur who appears for the State does not even suggest that the articles were stolen by the appellant. Therefore, the contention that he had an opportunity to get at the articles loses all significance and can possibly have no bearing on the question as to the nature of possession attributable to the appellant.
14. In the circumstances we must hold that the prosecution has failed to prove that these letters were in the exclusive possession of the appellant. No presumption can therefore, be drawn against him that he had secreted them from the mere fact that they were found in the almirah which, at best, may be regarded as being in the joint possession of himself and his father. But, as already stated, even an inference of joint possession would not be legitimate. (emphasis supplied) In judgment titled Sabitri Sharma v. State of Orissa, (Orissa) 1987 Cri.L.J. 956 before Hon'ble ORISSA HIGH COURT the facts of the case were that P.W. 2, an employee in the office of the Revenue Divisional Commissioner, Sambalpur, was living in R.D.C. Colony, Sambalpur. In the month of November, 1979 he lost a cow which had gone out for grazing with a cowherd boy (P.W. 4). Although P.W. 2 searched and reported the fact to the residents of the colony he did not lodge a missing report at the police station. On 1021980 the cow with a new born heifer was found in the house of one Halayudh Nanda serving as an Assistant Settlement Officer and residing in the nearby H.L.O. Colony. When P.W. 2 along with his companions (P.W. 1 and others) met Halayudh Nanda, the latter gave out that he had purchased the cow from the petitioner for a consideration of Rs. 400/. He could not, however, produce a written document. He also promised to return the cow to her. On the same day P.W. 2 lodged F.I.R. (Ext. 1) at the police station. The cow with the new born heifer, as a matter of fact, was seized from the petitioner's cowshed on the same day and chargesheet was submitted against her under Section 379, I.P.C. It was observed by the Hon'ble High Court as under :
5. In the absence of any evidence whatsoever the learned Judicial Magistrate was justified in holding that the petitioner a Marwari woman did not commit theft of the cow. But in my view both the learned courts below committed an error of law, as rightly contended by Mr. B. Pujari, learned counsel appearing for the petitioner, in convicting her under Section 411, I.P.C. In order to establish a case under Section 411, I.P.C. the following ingredients FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 10 / 14 must have to be satisfied :
(i) The property was stolen.
(ii) It was dishonestly received or retained by the accused.
(iii)The accused knew or had reason to believe that the property was stolen property.
(iv)Some person other than the accused was in possession of the stolen property before the accused obtained possession.
...................Now coming to the petitioner, there is no doubt that the cow with the new born heifer was seized from her cowshed as deposed to by her neighbour (P.W. 5). There is, however, no evidence on record to show that she had received the cow and the heifer dishonestly either knowing the same to have been stolen or having reason to believe that they were stolen property. The mere act of possession will not give rise to the inference that the person in possession is the receiver of the stolen property. No inference can also be drawn under Section 114 of the Evidence Act in the absence of proof that the property found in possession of another had earlier been stolen. May be, the petitioner possessed the cow and the heifer innocently. It may also be that Halayudh Nanda, finding himself in a tight corner on some pretext or other, kept the cow and heifer in her custody. May be, she was the innocent purchaser of the cow. These possibilities and probabilities cannot be lost sight of while considering her complicity in a case under Section 411, I.P.C. where the evidence does not reveal fulfillment of the ingredients of the offence. (emphasis supplied) In another judgment titled Jogendra Singh v. State, (Orissa) 1991 Cri.L.J. 2331 before Hon'ble ORISSA HIGH COURT, the facts of the case were that on 2991983, the Hivaldar and Sepoy of Tisco, Joda noticed some people loading iron scrap materials in a truck at Bottom Bin Area; this was brought to the notice of the Assistant Security Officer, who proceeded to the spot, but by that time the truck had already left the place; the security staff kept watch, over the movement of the truck, which was found speedily proceeding towards Notified Area Council, Check Gate, Joda; even though the security staff wanted to stop the vehicle, it did not stop; the Assistant Security Officer and the security staff chased the truck and at last the truck stopped at Ranasala Chat; three persons including the present petitioner were found escaping from the truck; while the petitioner could be caught hold, all others escaped; the petitioner was the driver of the truck; on interrogation, he named two other persons, who had fled away, to be the owners of the truck, the truck was found to have been loaded with scrap materials of Tisco. The court while referring to section 411of IPC observed as under :
6. On consideration of the rival submissions, I find that the only question that FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 11 / 14 falls for determination is whether the petitioner was guilty of dishonest receipt or retention of stolen property and whether he had knowledge or reason to believe at the time of receipt that the property was obtained in one of the ways indicated above. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I.P.C., and to secure conviction to prove that (i) the property in question was 'stolen property' within the meaning of Section 410 of the Code; (ii) the stolen property was in possession of the accused; (iii) some other person, other than the accused had possession of the property before the accused got possession of the same; and (iv) the accused had knowledge or reason to believe that the property was stolen property, and with such knowledge or belief dishonestly received it or dishonestly retained it. (See AIR 1954 SC 39 Trimbak v. State of Madhya Pradesh). The offences for receiving and retaining property was contextually different. The use of alternative expression 'dishonestly receives or retains' in one and the same section requires the prosecutor of proving that the accused either received or retained the property (of course dishonestly), that is to say, that the prosecutor need not prove that it was dishonestly received as distinct from dishonestly retained or dishonestly retained as distinct from dishonestly received. It is enough to prove facts which justify inference that the accused either dishonestly received or retained the property. The prosecution has to establish that the property in question was stolen property and there was either dishonest receipt or dishonest retention. A carrier or transporter, who carries or transports goods cannot generally be ascribed with the knowledge about the source of the property. It would be hazardous to presume that because a property is stolen, the carrier or the transporter had the necessary knowledge that it was stolen property. In an almost identical case where some cable wires belonging to the Trunk Telephone Exchange Office in Hubli were found in the rear portion of a tonga when it was stopped for inspection, it was held that there was no material to ascribe any knowledge to the carrier or the transporter that the property in question was stolen property. Therefore, the presumption as illustrated in illustration (a) to Section 114 of the Evidence Act was held not available to be drawn. The presumption which is provided by the said Illustration can only be raised when a person is in possession of the stolen property after the theft. There is no material produced in this case to indicate what is the time of the alleged theft. The evidence is remiss in that regard. Therefore, the view expressed by the Mysore High Court reported in 1970 Mad LJ (Cri) 59; Krishna Shetaba Hutagi v. State of Mysore, appears to be applicable to the facts of the present case. In the absence of necessary materials and evidence to show that the goods in question were known to be stolen property to the petitioner, the conviction and consequently the sentence cannot be maintained. (emphasis supplied) FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 12 / 14 In judgment titled Rajinder Kumar v. State, (Delhi) 1983(1) R.C.R. (Criminal) 67 Hon'ble DELHI HIGH COURT observed as under : Now I turn to the appeal of Rattan Lal (Crl. appeal No. 284 of 1980). He was charged under Section 411 IPC as receiver of stolen property. All that was found in his possession was a melted gold piece weighing about 1 tola 2 mashes. It has not been proved that this ingot of gold was the product of the stolen articles. Unless it is established by clear and cogent evidence, Rattan Lal cannot be held guilty of receiving stolen property. It is the duty of prosecution in order to bring home the guilt of the person under Section 411 IPC to prove(i) that the stolen property was in the possession of the accused, (ii) that some person other than the accused had possession of the property before the accused got possession of it, and (iii) that the accused had knowledge that property was a stolen property. (Trimback v. State or M.P. AIR 1954 SC 39). None of these elements have been proved. It has not been proved that it was the stolen property which was in the possession of the appellant Rattan Lal. Nor has it been proved that any of the three other accused persons had possession of the property before Rattan Lal got possession of it. I have already held that recovery of stolen property has not been duly proved because there has been no identification parade of stolen ornaments. The learned trial judge has himself excluded the recovery of ornaments. Unless the identity of the stolen articles is established beyond reasonable doubt, it is difficult to sustain the conviction of Rattan Lal as a receiver of stolen property.
10.3 From the above judgments, it is quite clear that the prosecution is not only required to prove the factum of recovery from the accused, rather, the prosecution is also required to prove the requisite mens rea required to make out an offence u/s 411 of IPC. In the present case, the prosecution has failed to prove the recovery of motorcycle from accused, but even if the recovery had been proved as per the story of prosecution, there is no direct or positive evidence to prove that accused Manoj was having the knowledge or reason to believe that the vehicle was stolen property. As far as presumption u/s 411 IPC is concerned, the court may presume that the driver of a stolen vehicle has the knowledge or reason to believe that the vehicle is stolen as he must know as to whose vehicle he is actually driving, but, the court cannot raise the same presumption for the pillion rider /passengers in the vehicle as that would not only cause injustice, rather, it would put people who FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 13 / 14 hire buses or other vehicles for travel to grave danger of being convicted for an offence u/s 411 of IPC, in case such buses or other vehicles were stolen vehicles.
If, such a presumption is drawn and 40 people are found to be present in a stolen bus at the time of its recovery then all of them would be guilty for offence u/s 411 of IPC. Thus, in the present case, the court is not inclined to raise presumption u/s 114 of Indian Evidence Act that as accused Manoj was found to be sitting on the back seat of the stolen motorcycle when it was recovered, he had the knowledge or reason to believe that the same was stolen. In absence of such, presumption the prosecution has failed to prove one of the ingredient of section 411 of IPC with respect to mens rea required for commission of said offence and in absence of such proof, accused Manoj is entitled to acquittal.
11. Thus, in the opinion of the court the prosecution has failed to prove beyond reasonable doubt the actus reus as well as mens rea required to make out an offence u/s 411 of IPC qua accused Manoj.
12. Accordingly, in view of the above discussions accused Manoj is acquitted for the offence u/s 411 IPC.
13. As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of accused Manoj as well as his surety shall remain intact for a period of six months from today.
Incharge record room is directed to revive this file as and when accused Deepak Kumar is apprehended.
File be consigned to record room.
ANNOUNCED ON 25.08.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 25.08.2012 Certified that this judgment contains 14 pages and each page bears my signature.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 25.08.2012 FIR No. 201/00 State Vs. Deepak Kumar etc. Page No. 14 / 14