Mohammad Iqbal vs State Of Chhattisgarh
2022 Latest Caselaw 7220 Chatt

                                                                            Cr.A.No.858/2013

                                          Page 1 of 11

                                                                                              AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.858 of 2013

      {Arising out of judgment dated 14-8-2013 in Sessions Trial
   No.498/2011 of the Additional Sessions Judge (Fast Track Court),
                             Ambikapur}

Mohammad Iqbal, S/o Mohammad Islam, aged about 28 years, R/o
Village Jamtara, PS Domchanj, District Kodarma (Jharkhand), Revenue
District & Civil District Kodarma (Jharkhand).
                                                       ---- Appellant

                                             Versus

State of Chhattisgarh, Through the Station House Officer, Police Station
Batouli, District Sarguja (C.G.)
                                                        ---- Respondent

----------------------------------------------------------------------------------------------------
For Appellant:                  Mrs. Fouzia Mirza, Senior Advocate with
                                Mr. Jitendra Shrivastava, Advocate.
For Respondent/State: Mr. Avinash Singh, Panel Lawyer.
----------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                       Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (02/12/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC filed by the

appellant herein is directed against the impugned judgment of

conviction and order of sentence dated 14-8-2013 passed by the

Additional Sessions Judge (Fast Track Court), Ambikapur, in

Sessions Trial No.498/2011, by which the appellant has been

convicted and sentenced as under: -

Cr.A.No.858/2013

Conviction Sentence Sec. 420 of the IPC Rigorous imprisonment for five years and fine of ₹ 500/-, in default, additional rigorous imprisonment for 15 days.

Sec. 413 of the IPC Imprisonment for life and fine of ₹ 500/-, in default, additional rigorous imprisonment for 15 days.

Sec. 467 of the IPC Imprisonment for life and fine of ₹ 500/-, in default, additional rigorous imprisonment for 15 days.

Sec. 468 of the IPC Rigorous imprisonment for five years and fine of ₹ 500/-, in default, additional rigorous imprisonment for 15 days.

Sec. 471 of the IPC Rigorous imprisonment for two years and fine of ₹ 500/-, in default, additional rigorous imprisonment for 15 days.

2. Case of the prosecution, in brief, is that on 18-3-2011 at 5.00

p.m. at Village Jarhadih, Police Station Batouli, the appellant herein

had transferred one stolen tractor bearing registration No.JH-08/C-

1265 to Chanchal Tirkey (PW-3) for a cash consideration of ₹

2,50,000/- and also transferred to him the forged registration

book of the tractor, insurance form & tax receipt and thereby

committed the aforesaid offences pursuant to which Chanchal

Tirkey (PW-3) on 11-8-2011 at 7.00 p.m. reported the matter to

the police that the appellant has sold stolen tractor to him on 18-3-

2011 pursuant to which sale deed (panchnama) has been executed

vide Ex.P-2 and the appellant obtained ₹ 50,000/- on 18-3-

2011, ₹ 1,00,000/- on 25-4-2011, ₹ 80,000/- on 16-5-2011 Cr.A.No.858/2013

and ₹ 20,000/- on 12-6-2011 and thereafter, RC book,

insurance form and tax receipt were handed-over to him and

thereafter, he came to know that the tractor sold to him was the

stolen property and thereby the appellant has defrauded him

pursuant to which first information report (FIR) was registered vide

Ex.P-6 for the offences punishable under Sections 420, 467, 468

& 413 of the IPC against the appellant. Memorandum statement

of the appellant was recorded vide Ex.P-3C and tractor was seized

vide Ex.P-1. Tax receipt was marked as Article A-1, Certificate of

Registration was marked as Article A-2 and insurance certificate

was marked as Article A-3. The appellant was arrested vide Ex.P-7

and report / memo of the District Transport Officer, Lohardaga

(Jharkhand) is Ex.P-9. Information sent to the Judicial Magistrate

First Class, Sitapur, Distt. Sarguja is Ex.P-10.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC.. After completion of investigation, charge-sheet was

filed against the appellant before the jurisdictional criminal court

which was committed to the Court of Sessions from where the

learned Additional Sessions Judge (FTC), Ambikapur, received the

case on transfer for trial and for hearing and disposal in accordance

with law.

4. The trial Court has framed charges against the appellant for

offences under Sections 420, 413, 467, 468 & 471 of the IPC Cr.A.No.858/2013

and proceeded on trial. The appellant abjured guilt and entered

into defence stating that he has not committed the offence and he

has been falsely implicated.

5. The prosecution in order to bring home the offence examined as

many as 5 witnesses and exhibited 10 documents Exhibits P-1 to P-

10 and also Articles A1, A2 & A-3. One document Exhibit D-1

- statement of Chanchal Tirkey recorded under Section 161 of the

CrPC, has been exhibited on behalf of the defence, but no witness

has been examined. Statement of the appellant was recorded

under Section 313 of the CrPC in which he abjured guilt and

pleaded innocence.

6. The trial Court after completion of trial and after appreciating oral

and documentary evidence available on record, convicted and

sentenced the appellant in the manner mentioned in the opening

paragraph of this judgment against which this appeal under Section

374(2) of the CrPC has been preferred by him calling in question

the impugned judgment.

7. Mrs. Fouzia Mirza, learned Senior Counsel appearing for the

appellant, would submit that the tractor in question has not been

proved to be the stolen property and it has not been proved that

the appellant was habitually dealing in stolen property, therefore,

offence under Section 413 of the IPC would not be made out and

secondly, three Articles A1 to A3 which were found to be forged Cr.A.No.858/2013

and handed-over by the appellant to Chanchal Tirkey (PW-3) have

not been proved to be forged beyond reasonable doubt and

therefore conviction of the appellant for the aforesaid offences

cannot be sustained. As such, the impugned judgment deserves to

be set aside and the appeal deserves to be allowed by acquitting the

appellant of the charges levelled against him.

8. Mr. Avinash Singh, learned State counsel, would support the

impugned judgment and submit that the prosecution has been able

to prove the aforesaid offences against the appellant beyond

reasonable doubt and therefore the appellant has rightly been

convicted, as such, the appeal deserves to be dismissed.

9. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

10. Punishment of imprisonment for life has been awarded to the

appellant for the offence under Section 413 of the IPC which deals

with habitually dealing in stolen property. Stolen property has

been defined in Section 410 of the IPC which states as under: -

"410. Stolen property.--Property, the possession whereof 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 designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property Cr.A.No.858/2013

subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."

11. The expression "stolen property" stands defined in Section 410 of

the IPC. The property which, under the law can be designated as

stolen property, has been exhaustively catalogued in Section 410

of the IPC. Section 410 of the IPC explains what comes under the

words "stolen property". Property, the possession whereof 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 designated

as "stolen property".

12. Section 411 of the IPC defines dishonestly receiving stolen

property. The essence of the offence of receiving stolen property

under Section 411 of the IPC, consists, in the receipt or retention,

with full knowledge at the time of receipt or retention that the

property was obtained in one of the ways specified in Section 410

of the IPC. To meet the ingredients of Section 411 of the IPC, the

prosecution has to prove that, the person who received the stolen

property, has received the same dishonestly, knowingly or having

reasons to believe the same to be stolen property and only then,

the said person shall be punished with imprisonment of either

description for a term which may extend to three years, or with a

fine, or with both.

Cr.A.No.858/2013

13. In the matter of Chandmal and another v. State of Rajasthan1, it

has been held by the Supreme Court that there can be no offence

of dishonestly receiving stolen property unless the property which is

alleged to be the subject of such receiving, answers the description

of "stolen property" given in Section 410 of the IPC.

14. The Supreme Court in the matter of Trimbak v. The State of

Madhya Pradesh2 held that it is the duty of the prosecution in

order to bring home the guilt of a person under Section 411 of the

IPC 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.

15. Section 413 of the IPC defines habitually dealing in stolen property

and it states as under: -

"413. Habitually dealing in stolen property.--Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

16. An offence under Section 413 of the IPC has two essential

ingredients, firstly, that the accused habitually received or dealt in

property and secondly, that he did so knowing or having reasons to

1 AIR 1976 SC 917 2 AIR 1954 SC 39 Cr.A.No.858/2013

believe that such property was stolen. The legislature inserted

Section 413 in the Indian Penal Code where under it is provided

that if a person is habitually dealing in stolen property, he will be

charged for offence under Section 413 of the IPC. The terms of

the provision (Section 413 of the IPC) make it clear that

"habitually dealing" means there is evidence on record that there

are other instances other than the present instance of the accused

found to be indulging in the act and he is facing a trial, then, it can

be said that Section 413 of the IPC is attracted. This Section

punishes severely, the common receiver or professional dealer in

stolen property. (See Mir Nagvi Askari v. Central Bureau of

Investigation3.)

17. The words "habitually dealing" used in Section 413 of the IPC

means there is evidence on record that there are other instances

other than the present instance of the accused found to be

indulging in the act and he is facing a trial, it is not necessary that

there must be conviction or finding against the accused for the

purpose of framing charge under Section 413 of the IPC.

18. Therefore, to prosecute a person, the prosecution has to prove

firstly, that the property in question has been 'stolen' from a place

and thus, the prosecution must bring the property within the ambit

of Section 410 of the IPC--within the definition of 'stolen

property'. Secondly, the offender has been dealing with or 3 (2009) 15 SCC 643 Cr.A.No.858/2013

receiving stolen property. Thirdly, the offender knew or had a

reason to believe the property to be stolen. Fourthly, he has been

repeatedly convicted, i.e. twice or more than twice, of offence

under Section 411 of the IPC. It is only after the prosecution

establishes these factors that the court would be legally justified in

concluding that the offender is 'habitually dealing with or receiving

stolen property' and in imposing the punishment as prescribed by

Section 413 of the IPC. {See Banne Singh @ Pahalwan v. State of

Rajasthan4 (paragraph 50).}

19. Reverting to the facts of the present case in light of the aforesaid

principles of law for convicting the accused persons under Section

413 of the IPC, it is quite vivid that in the instant case, the

prosecution has even not been able to prove that the property was

stolen or possession of the tractor in question has been transferred

to Chanchal Tirkey (PW-3) after committing theft, whereas the

prosecution was obliged to bring home the offence clearly

establishing beyond reasonable doubt that the tractor in question

was 'stolen property' in terms of Section 410 of the IPC. Even the

charges which have been framed by the trial Court on 30-3-2012

would show that the trial Court has assumed that the tractor

bearing registration No.JH-08/C-1265 was stolen tractor without

there being any material on record. No evidence has been brought

on record to demonstrate that the alleged tractor sold to Chanchal

4 2014 SCC OnLine Raj 169 Cr.A.No.858/2013

Tirkey (PW-3) falls within the definition of 'stolen property' within

the meaning of Section 410 of the IPC. Apart from that, nothing

has been brought on record to hold that the appellant has been

habitually dealing with the stolen property and as far as other

ingredients of the offence are concerned, no evidence has been

brought on record that he has been subjected to trial for offence

under Section 411 of the IPC for receiving stolen property. In

that view of the matter, the trial Court is absolutely unjustified in

convicting the appellant under Section 413 of the IPC.

Accordingly, conviction & sentences imposed upon the appellant

under Section 413 of the IPC cannot be sustained.

20. The appellant has also been convicted for offences under Sections

420, 467, 468 & 471 of the IPC on the ground that he has

delivered forged documents Articles A1 to A3 i.e. RC book

insurance certificate and tax receipt, which have been seized from

Chanchal Tirkey (PW-3) who has only stated in his statement

before the Court that the appellant has handed-over the documents

Articles A1 to A3 to him, but there is no evidence on record

except the self-serving statement of Chanchal Tirkey (PW-3) that

the appellant had actually handed-over those documents to

Chanchal Tirkey (PW-3). Furthermore, though the said articles

have been held to be forged by the trial Court, but no legal

evidence has been brought on record to hold that the documents Cr.A.No.858/2013

are forged documents except the statement of Om Prakash Sah

(PW-5) - District Transport Officer, Lohardaga, Jharkhand, who

has only stated that the RC book has not been issued from his

jurisdiction and the tractor in question has not been registered in

his jurisdiction. Thus, it has not been proved that the said

documents are forged documents and they have been forged by

the appellant as they have not been recovered from the appellant

and seized from Chanchal Tirkey (PW-3), who has allegedly

purchased the tractor from the appellant. In that view of the

matter, we are unable to sustain conviction and sentences imposed

upon the appellant under Sections 420, 467, 468 & 471 of the

IPC.

21. Concludingly, we set aside the conviction so recorded and the

sentences so awarded by the trial Court to the appellant vide the

impugned judgment dated 14-8-2013. The appellant is acquitted

of the charges under Sections 420, 413, 467, 468 & 471 of the

IPC. He is on bail. He need not surrender. However, his bail

bonds shall remain in force for a period of six months in view of

the provision contained in Section 437A of the CrPC. The appeal

is allowed.

                 Sd/-                                        Sd/-
          (Sanjay K. Agrawal)                     (Rakesh Mohan Pandey)
                Judge                                       Judge
Soma