Delhi District Court
State vs . Mohd Faiyaz on 24 January, 2023
IN THE COURT MS RAJANI RANGA : ACMM-
01(CENTRAL)
TIS HAZARI COURT: DELHI
State Vs. Mohd Faiyaz
eFIR No.: CDPG-00069/2019
U/S : 411 IPC
PS : Paharganj
JUDGMENT
a) Sl. No. of the case : 8055/2019
b) Date of institution of the case : 06.06.2019
c) Date of commission of offence : 06.02.2019
d) Name of the complainant : Sh. Nilesh Dutt
e) Name & address of the :Mohd Faiyaz S/o Mohd
accused Fandar, R/o
Kumhar Toli, Chika Bari,
Kishan Ganj, Bihar.
f) Offence complained off : 411 IPC
g) Plea of the accused : Pleaded not guilty.
h) Final order : Acquittal
i) Date of Judgment : 24/01/2023
BRIEF STATEMENT OF REASONS FOR DECISION
1. The prosecution case, in brief, is that on 06.2.2019, a stolen mobile phone make Samsung Galaxy C-7 Pro belonging to Shri Nilesh, the complainant, which was stolen on 25.1.2019, at 8:15 pm, from HIG flat, Motiya Khan, Paharganj, and the instant e-FIR under Section 411 of The Indian Penal Code, 1860 (in short shall be referred to as IPC) was registered, was e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 1/15 ACMM-01(Central)24.01.2023 recovered from the possession of accused Mohd Faiyaz, which he received or retained dishonestly knowingly and having reason to believe the same to be a stolen property. Investigation was carried out.
2. Upon completion of investigation, charge-sheet was filed for the alleged commission of the offence punishable u/s 411 IPC against the accused. Thereafter, a formal charge U/s 411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. The accused did not dispute the genuineness of the instant FIR, Ex.A1, CAF of SIM no. 8527786875, Ex.A2, CDR of SIM no. 8527786875, Ex.A3(Colly), certificate under section 65-B of The Indian Evidence Act, 1872, Ex.A4, and Tower Location charge, Ex.A5, and his statement was recorded to this effect u/s 294 CrPC.
4. In order to substantiate the allegations, the complainant was examined as PW1, HC Amit (MHCM) as PW2 and the IO/HC Rajveer as PW3 by the prosecution.
5. PE was closed on 27.07.2022. Statement of accused U/s 313 Cr.P.C was recorded wherein he has denied the allegations levelled against him in toto. Accused opted not to examined any witness in his defence.
Final Submission
6. The Ld. APP for State (Substitute) submitted that the prosecution has proved its case against the accused beyond reasonable doubt and pleaded for the conviction of the accused.
e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 2/15 ACMM-01(Central)24.01.2023 Whereas the LAC for the accused submitted that though the subject mobile phone was recovered from the accused person, the accused had purchased the same from someone at a cheap price and that at the time of his purchase or even thereafter till its recovery, he had no knowledge that the said stolen mobile phone was stolen property. The Ld. LAC has submitted that the accused has not received or retained the said mobile phone with dishonest intention or with the knowledge that it was the stolen property. As submitted, the prosecution has also failed to prove one of the essentials to complete the offence of Section 411 IPC i.e. mens rea and as such the accused deserves acquittal. The Ld. LAC has pleaded for the acquittal of the accused.
Prosecution Evidence
7. Let take a brief account of the testimony of the witnesses examined by the prosecution before proceeding further.
8. As testified by the complainant/PW1, on 25.01.2019, at around 8:00 to 8:15 pm, he was walking near his HIG flat and two boys who were coming on a scooty collided with him. Both the boys commented him saying "thik se nahi chal sakte ho kya".One of the said boys picked up a quarrel with him. Thereafter, when he checked the pocket of the pent he was wearing he found his mobile phone missing. He raised suspicion that the said two boys had stolen his mobile phone. He made a online complaint and the instant FIR, Ex.PW1/A, was registered. Site plan Ex PW-1/B was prepared at his instance and his statement, Ex.PW1/C, was also recorded. The e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 3/15 ACMM-01(Central)24.01.2023 said mobile phone was subsequently recovered and was released to him vide, Ex.PW1/D.
9. As testified by PW-2/SI Birender Pal Pandey, on 25.01.2019, a complaint was received from the complainant regarding the theft of a mobile phone make Samsung galaxy C7 pro, blue in colour, and on the basis of that instant FIR was registered. Thereafter, mobile phone number of the complainant was put on tracing and it was revealed that the said mobile phone had been used on different numbers. Accused was called at police station as he was found using the said mobile phone as per CDR. and he produced the said mobile phone which was seized vide Ex.PW2/A. His disclosure statement was recorded and he was served with the notice. The case property was deposited in the malkhana.
10.As deposed by HC Ashok/PW4, on 06.02.2019, accused was called at the PS: Paharganj. In response, accused came and produced the stolen mobile phone which alongwith the SIM was wrapped in the white cloth, sealed with the seal of "BPP"and was seized vide memo, Ex.PW2/A, by the IO. The said seal after use was handed over to him. Disclosure statement of accused, Ex.PW2/B, was also recorded and a notice U/s 41.A Cr.P.C, Ex.PW2/C, was served upon the accused.
11.The PW3/HC Amit produced the register no.19 in the Court wherein entry regarding the deposition of case property i.e. mobile phone in the malkhana has been made at serial no. 2528, Ex.PW3/A. e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 4/15 ACMM-01(Central)24.01.2023
12.I have heard the rival submissions and carefully perused the record.
RELEVANT LAW AND PROVISION TO BE CONSIDERED
13. In the instant case, to bring home the guilt of the accused under Section 411 IPC, the prosecution was required to prove the following:
i)The recovery of the stolen mobile phone from the accused;
ii)The requisite mens rea i.e. that the accused received or retained the said stolen mobile with the knowledge or belief that it was stolen.
14. In case of Mahabir Vs. The State of Bihar AIR 1972 S. C. 642 the Honorable Apex Court observed as under:-
"The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen."
15. What is a stolen property has been defined by Section 410 IPC. In simple words, it states that any property the possession of which has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is a stolen property.
16. It is apt to note the observations made by the Hon'ble Apex Court in a recent judgment passed on 07/09/2022 in a case titled as Shiv Kumar Vs. The state of Madhya Pradesh, which is as below:
"12. In this case, although recovery of items e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 5/15 ACMM-01(Central)24.01.2023 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.
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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 Administration 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 e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 6/15 ACMM-01(Central)24.01.2023 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 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 e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 7/15 ACMM-01(Central)24.01.2023 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 e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 8/15 ACMM-01(Central)24.01.2023 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 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.
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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...."
e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 9/15 ACMM-01(Central)24.01.2023
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.
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."
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 e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 10/15 ACMM-01(Central)24.01.2023 justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. William Shakespeare. Merchant of Venice, Act 1 Scene 1. 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."
EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE
17. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 11/15 ACMM-01(Central)24.01.2023
18. To prove the guilt of the accused, the prosecution was required to prove beyond reasonable doubt that either the accused committed the theft of the case property or received or retained the same knowingly or having had reason to believe that the same was stolen property. Recovered mobile phone proved to be a stolen property
19.In the present case, through the testimony of the complainant examined as PW1 who has proved the instant FIR as Ex. PW1/A, the prosecution has established that the recovered mobile phone was a stolen property as defined in Section 410 IPC and thus, one of the essential element of Section 411 IPC. Recovery of the stolen mobile phone from the possession of the accused
20.Now it is to be examined if the prosecution has also been successful in proving the recovery of the stolen mobile phone from the possession of the accused. Allegedly, the stolen mobile phone was recovered from the possession of the accused and was seized vide memo, Ex.PW2/A is the witness to the recovery. The Ld. LAC has submitted that the recovery was effected from the accused, however, the accused purchased the same from somebody at cheap price. Thus, the prosecution has also proved the recovery of the stolen mobile phone from the possession of the accused person.
Mens Rea
21.Besides above, the prosecution was also required to prove the requisite mens rea to complete the offence punishable under Section 411 IPC i.e. that the accused had received or retained e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 12/15 ACMM-01(Central)24.01.2023 the recovered mobile phone dishonesty knowing or having reason to believe that it was stolen property.
22.As observed in the judgments cited above, for a successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. Further, the factum of selling a property at a lower price cannot, by itself, lead to the conclusion that the accused was aware of the theft of that property.
23.In the instant case, on this point, it is observed that no substantial evidence came on record from the side of the prosecution which could have proved the requisite mens rea on the part of the accused and lead to the conclusion that the accused had knowledge or belief that it was a stolen. This essential element has not been established against the accused to bring home the charge under Section 411 of the IPC against him.
24.Thus, the prosecution has failed to prove the requisite mens rea which is one of the essential ingredients of the offence punishable under Section 411 IPC that the accused had dishonestly received or retained the said mobile phone with the knowledge or belief that it was stolen one. The essential ingredient of mens Rea is clearly not established.
25.In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 13/15 ACMM-01(Central)24.01.2023 accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
26.In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Apex court observed (Para12):
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
CONCLUSION
27.In these circumstances where it is not established that the accused dishonestly received the stolen property with the knowledge and belief that the stolen property found in his possession was stolen, the conviction of the accused under Section 411 IPC, in my view, cannot be sustained.
28.Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to attain the standard of proof beyond reasonable doubt. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Mohd Faiyaz, is given benefit of doubt. Accordingly, accused Mohd Faiyaz is acquitted of the offence punishable under Section 411 IPC of which he faced the trial.
e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 14/15 ACMM-01(Central)24.01.2023
29.The bonds accepted under section 437A Cr.P.C. shall remain in force for a period of six months from today. Announced in the open court on 24.01.2023.
Digitally signed by RAJANI RAJANI RANGA Date: RANGA 2023.01.24 16:30:13 +0530 (Rajani Ranga) ACMM-01/CENTRAL 24.01.2023 e-FIR 00069/2019 State vs. Mohd Faiyaz Page no. 15/15 ACMM-01(Central)24.01.2023