Himachal Pradesh High Court
State Of Himachal Pradesh vs Vijay Kumar And Ors. on 2 September, 2006
Equivalent citations: 2006(3)SHIMLC196
JUDGMENT K.C. Sood, J.
1. This appeal under Section 378 of the Code of Criminal Procedure is directed against the judgment of acquittal recorded by learned Additional Chief Judicial Magistrate (I) Dehra, District Kangra vide his judgment dated March 26, 2001.
2. The respondents Vijay Kumar, Vivek Soni and Vipin Kumar, hereinafter referred to as the "accused", were tried by the learned trial Magistrate for offences punishable under Sections 380,411 read with Section 34 of the Indian Penal Code.
The prosecution case:
3. Des Raj, complainant, is resident of village Gathuther in the District of Kangra. He lives with his mother and three small children, his wife having expired in May, 1999. On November 24, 1999, the accused Vijay Kumar, who belongs to the village of the in-laws of the complainant, came to the house of the complainant along with accused Vipin in the morning hours and informed the complainant that everything was well in the house of his in-laws. They were to catch train for Amritsar at 11.00 a.m, in the morning. The complainant insisted that the accused should not leave without taking meals and asked his mother to serve them the meals. Complainant left for village Sakri where he was working as Masson. When the complainant returned back to his house in the evening, he found that his trunk was broken and ornaments box was missing from the brief case kept in the trunk. The ornaments box contained rupees 7,000/- in cash, one nose ring two rings, one nose pin, two ear rings made of gold, one silver set and silver anklet. The total value of the ornaments was estimated to be rupees 6,000/-. Complainant suspected that accused Vijay and his companion might have stolen the ornaments and the cash. He visited village Hatwas to which village Vijay Kumar belonged but he was not found. The matter was reported to the Police Station, Haripur on November 27, 1999. A First Information Report was accordingly registered.
4. Accused Vijay Kumar was arrested on January 4, 2000. The other accused Vipin was already in custody in another case On January 6, 2000, disclosure statement was made by Vijay Kumar. Based on the disclosure statement, ornaments along with ornaments box were recovered from the shop of Vivek Soni, a goldsmith and has a shop at Kangra. The currency notes, however, could not be recovered. The custody of Vipin Kumar was transferred from other case to the present case on January 10, 2000. The Investigating Officer, for the reasons other than legal, also recorded a disclosure statement under Section 27 of the Indian Evidence Act of Vipin Kumar on January 12, 2000. Based on the disclosure statement of Vipin Kumar, the Police once again went to the shop of Vivek Soni from where the same ornaments and jewellery box were recovered.
5. Vivek Soni told the Police that the ornaments were pledged with him by the accused Vijay Kumar for rupees 2,800/-. He also produced a receipt and a copy of the transaction to the Police. The police, however, roped Vivek Soni under Section 411 of the Indian Penal Code.
6. Learned trial Magistrate found it a case to be of no evidence and accordingly acquitted the accused.
7. The entire case of the prosecution rests on circumstantial evidence. The circumstances appearing against accused Vijay Kumar and Vipin Kumar are that they visited the house of the complainant in the morning hours. They stayed there and took their meals and left the house about 7.45 p.m. in the evening. When the complainant returned back, he found the ornaments missing along with cash.
8. It is the evidence of the complainant that on inquiry, he was informed by his mother that after his departure, none except the accused were in the house and no body else came to the house even during the course of the day. The prosecution, for the reasons unfathomable, neither cited the mother of the complainant as witness nor produced her to show that on the date of the occurrence, none except the accused person had access to the house of the complainant and stolen the ornaments. Thus, the prosecution did not rule out the possibility of any other person having come to the house of the complainant. This circumstance indeed does not link the accused with the theft of the ornaments.
9. The other circumstance is the recovery of the ornaments on the disclosure statement made by the accused Vijay Kumar and Vipin Kumar. It is the case of the prosecution that both of them led the Police party to the shop of Vivek Soni. Now Vijay Kumar made the disclosure statement on January 6, 2000 which is Exhibit PW1/C on the record. According to the disclosure statement, Vijay Kumar stated that he and Vipin have sold the stolen ornaments for rupees 2,800/- to a goldsmith who has a shop at Dunga Bazar, Kangra. So far the first part of the disclosure statement inculpating the accused, is concerned, it is not admissible in evidence. Now this statement led to the recovery of the stolen ornaments. However, so far the statement of Vipin Kumar which once again led to the discovery of the same ornaments is concerned, it is meaningless as the Investigating Officer had already recovered those ornaments on January 6, 2000. In any event, what the statement of Vijay Kumar and Vipin would show is that either they stole and sold the ornaments in question of they had the knowledge as to where the stolen property was lying but such a knowledge in itself would not be adequate to convict the accused for theft. In the circumstances, both Vijay and Vipin Kumar are entitled to benefit of doubt.
10. The Apex Court in Mohmed Inayatullah v. State of Maharashtra 1976 SCC (Cri.) 199, in a case where the appellant was convicted for robbing three drums of chemicals and the conviction was based on the statement under Section 27 of the Evidence Act which showed that the accused know where the drums, subject-matter of theft were lying, hold that conviction cannot be based on such evidence. From the statement what could be inferred is that the accused had put the drums at the place of discovery or that he only knew where the drums were lying. Therefore, he was entitled to benefit of doubt.
11. There is no other circumstance appearing against the accused to link the accused with the commission of theft.
12. The prosecution has not led any other evidence which may even remotely suggest that the stolen articles were sold by the accused Vijay Kumar and Vipin Kumar to Vivek Soni. Vivek Soni would have been the best person to state that these ornaments were sold to him by the accused but he had also been made accused under Section 411 of the Indian Penal Code even though he produced the receipt and the copy showing the transaction signed by the accused. Such receipt and the copy though taken into possession was not produced in evidence.
13. It is now well settled that where the evidence of theft is not direct but circumstantial, then such evidence must exclude the possibility of the guilt of any other person or must point conclusively to the complicity of the accused.
14. So far accused Vivek Soni is concerned, it is the case of the prosecution that accused Vivek Soni had purchased the slolen ornaments from Vijay and Vipin Kumar for rupees 2,800/. Learned trial Magistrate noticed that no evidence was led by the prosecution to show even by implication that the ornaments in question were sold to Vivek Soni by the accused.
15. It may be noticed that Section 411 provides for the penalty for dishonest receipt of retention of stolen property knowing or having reason to believe the same to be stolen property. This provision is directed against the class of the persons who trade in stolen articles and are receivers of stolen property. The two ingredients are necessary to bring home the offence under Section 411 of the Indian Penal Code:
(a) dishonest receipt or retention of stolen property;
(b) knowledge or reason to believe at the time of such receipt that the property was stolen property.
16. The prosecution is duty bound to prove that the accused had knowledge that the property was stolen property. The gravemen of the offence, it may be seen, is not receiving the stolen property by a particular individual but receiving such property knowing it to be stolen or believing it to be stolen property. Therefore, the prosecution must prove the circumstance to show that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. It is well settled that an accused must be held to have "reasons to believe" the property to be stolen within the meaning of Section 411 when the circumstances are such that a reasonable man would be led by chain of probable reasoning to the conclusion of inference that the property he was asked to deal with was the stolen property (See : Nagappa Dondiba Kalal v. State of Karnataka 1981 Supreme Court Cases (Cri. 278)).
17. In the present case, there is nothing on the record to suggest even by inference that Vivek Soni had any reason to believe that the ornaments in question were sold. In fact, he admittedly produced a receipt of pledge as well as the copy of the transaction which was never produced in evidence.
18. This apart, the learned Magistrate noticed that the complainant admitted in his deposition that ornaments allegedly recovered from the shop of Vivek Soni appears to be brand new and recently manufactured. He at the same time admitted that the stolen ornaments were purchased by him from accused Vivek Soni at the time of his marriage about six years back. His explanation that these ornaments were got polished from the goldsmith about six months back was not found satisfactory. Learned trial Magistrate noticed that of the own version of the complainant, his wife had used the ornaments only on five or six occasions and therefore, there was no occasion for his wife to get his ornaments cleaned and polished and the possibility of the ornaments recovered may not be subject of theft cannot be entirely ruled out.
19. The stolen ornaments were recovered after more than one and half years of the theft and therefore, presumption under illustration (a) to Section 114 is not available to the prosecution as to raise presumption under illustration (a) to Section 114 it must be proved that the accused person has been found in possession of stolen goods soon after the theft.
20. To conclude, the acquittal recorded by the learned trial Magistrate cannot be said to be visited by any illegality or dehors the evidence on record.
21. In result, the appeal fails and is dismissed.
22. Accused Vijay Kumar who is presently in custody shall be released forthwith. Necessary directions for the release of accused Vijay Kumar shall be issued by the Registry immediately. The bail bonds furnished by the other accused shall stand discharged.