Andhra Pradesh High Court - Amravati
Vinjamuri Satish, Kajuluru Village, ... vs The State Of A.P., Rep. By Pp., High ... on 2 August, 2024
APHC010266722011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
FRIDAY ,THE SECOND DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 2538/2011
Between:
Vinjamuri Satish, Kajuluru Village, W.g.district ...PETITIONER
AND
The State Of A P Rep By Pp High Court ...RESPONDENT
Hyderabad
Counsel for the Petitioner:
1. T N M RANGA RAO
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
Assailing the judgment dated 20.12.2011 in Crl.A.No.203 of 2010 on the file of the Court of learned III Additional Sessions Judge at Kakinada, confirming the conviction and sentence imposed by the judgment dated 18.06.2010 in C.C.No.322 of 2007 on the file of the Court of learned III Additional Judicial Magistrate of First Class at Kakinada, for the offence under 2 section 411 of Indian Penal Code (hereinafter referred to as "IPC"), the petitioner/accused No.1 filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973.
2. The revision case was admitted on 23.12.2011 and the sentence of imprisonment imposed against the petitioner was suspended vide order in Crl.R.C.M.P.No.3848 of 2011.
3. The shorn of prosecution case is that:
i). On 27.07.2007 at about 05.30 a.m., the accused No.1 was found in possession of M.O.1 Bajaj Pulsar Motorcycle bearing Registration No.AP 37 AF 1326, which was subject matter of theft in Cr.No.71 of 2007 of Pedapudi Police Station.
4. After completion of investigation, police laid a charge sheet against the accused No.1 and 2 and the same was taken on file and numbered as C.C.No.322 of 2007 on the file of the Court of learned III Additional Judicial Magistrate of First Class at Kakinada. After full-fledged trial, Trial Court found the accused Nos.1 and 2 guilty of the offence under Section 411 of IPC and sentenced them to undergo simple imprisonment for a period of six (6) months. However, found them not guilty of the offence under Section 379 of IPC.
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5. Aggrieved by the same, the petitioner/accused No.1 preferred an appeal, vide Crl.A.No.203 of 2010, before the Court of learned III Additional Sessions Judge at Kakinada and the same was dismissed, vide judgment dated 20.12.2011, by confirming the judgment of the Trial Court.
6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused No.1.
7. Heard Sri T.N.M.Ranga Rao, learned counsel for the petitioner/accused No.1 and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent.
8. Now the point that arises for determination in this revision is "whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?"
9. Sri T.N.M.Ranga Rao, learned counsel for the petitioner submits that the petitioner is innocent and he did not commit any offence, particularly the offence alleged under Section 411 of IPC; that the Trial Court as well first Appellate Court erred in appreciating the evidence in proper perspective; that there is no material on record to say that the accused had knowledge about the stolen property; that there are material discrepancies in the 4 testimonies of P.Ws.3 and 4, which is fatal to the prosecution case and prays to consider the present revision.
10. Per contra, Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent, submits that the evidence of P.W.1 is corroborating with the contents of Ex.P.1 report; that the accused is the receiver of the stolen property and the presumption under Section 114(a) of Indian Evidence Act shall be drawn against him; that there are concurrent findings of fact by the Trial Court as well Sessions Court and thereby, the present revision has no legs to stand.
11. In view of the above contentions, this Court perused the material available on record. As per the prosecution version, after registering the F.I.R., P.W.4, while conducting vehicle checking at Salapaka Center of Kajuluri Mandal, found the petitioner with stolen property of Bajaj Pulsar motorcycle and they seized the same under the cover of Ex.P.3 mediators report in the presence of P.W.3.
12. It is the contention of the learned counsel for the petitioner that P.W.3 is a stock mediator and the police did not secure any independent mediator present at the locality. Thereby the testimony of P.Ws.3 and 4 cannot be believed. 5
13. From the above testimony, it should be seen whether the prosecution proved that the accused received stolen property covered under M.O.1. It is settled law and mandatory for the prosecution to establish the essential ingredient of knowledge of the accused that the goods are stolen property. To bring home the guilt under Section 411 of IPC, the following four segments has to be proven by the prosecution namely (i). dishonestly; (ii). receives or retains any stolen property; (iii). knowing; or (iv). having reason to believe the same to be stolen property. These four aspects shall be established by the prosecution against the accused for the said offence.
14. 'Dishonestly' is defined under Section 23 I.P.C. 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 categorically explained by Hon'ble Supreme Court in Vimla v. Delhi Administration1.
15. In this connection, it is appropriate to mention a reference in the judgment of the Hon'ble Supreme Court, to decide the matter in issue, in Shiv Kumar v. State of Madhya Pradesh2, wherein it was held that "for successful prosecution under 11905 SCC Online Mad 87 2(2022) 9 SCC 676 6 Section 411, it is not enough to prove that the accused was either negligent or that he had a cause to think that property was stolen, or that he failed to make enough inquiries to comprehend nature of goods procured by him and further initial possession of goods in question may not be illegal but retaining those with knowledge that it was stolen property, makes it culpable."
16. So, the APEX Court clinchingly held that to prove the offence under Section 411 of IPC, it is mandatory for the prosecution to establish that retaining of goods with the knowledge that it is a stolen property.
17. In the present case on hand also M.O.1 is a Bajaj Pulsar Motorcycle said to have seized from the possession of petitioner/accused on the confession made by him.
18. The evidence of prosecution witnesses does not inspire confidence in the mind of this Court that the petitioner has knowledge that M.O.1 is a stolen property. Simply because, P.W.4 stated that the property said to be recovered from the possession of petitioner/accused, it does not mean to say that the possession of M.O.1 was with the knowledge that it is a stolen property and no material on record to say that accused is in possession of M.O.1 is a Bajaj Pulsar Motorcycle, which is of 7 theft property and no material on record to say accused using the theft property, and in view of the observations made by the Hon'ble Supreme Court in Shiv KumarCase (referred to supra), it is clear in all facts, prosecution failed to prove that the petitioner dishonestly received the stolen property with the knowledge and belief that the goods found in his possession were stolen.
19. Having regard to the above, this Court is of the considered opinion that the conviction and sentence passed against the petitioner by the trial Court, which was confirmed by the first Appellate Court, under Section 411 of IPC are liable to be set aside.
20. In the result, the Criminal Revision Case is allowed and the conviction and sentence imposed against the petitioner/accused No.1 vide judgment dated 18.06.2010 in C.C.No.322 of 2007 on the file of the Court of learned III Additional Judicial Magistrate of First Class at Kakinada, which was confirmed by the judgment dated 20.12.2011 in Crl.A.No.203 of 2010 on the file of the Court of learned III Additional Sessions Judge at Kakinada, are hereby set aside. The revision petitioner/accused No.1 is acquitted of the offence under Section 411 of IPC.
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Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ JUSTICE V.SRINIVAS Date: 02.08.2024 Krs 9 229 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.2538 of 2011 DATE: 02.08.2024 Krs