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
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.
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
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.
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
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
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.
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
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.2538 of 2011
DATE: 02.08.2024
Krs
