State of Madhya Pradesh vs Prabhat Choudhary

G.S. Solanki, J.—Since respondent no.4 Damrulal, S/o Sukhnandan has been died during the pendency of this petition, thus the petition against respondent no.4 Damrulal stands abated.

Heard.

This is the petition u/s 378 (III) of Cr.P.C for grant of leave to appeal. Respondents were tried for the offence punishable u/s 411 of IPC before the JMFC, Bijawar in criminal case no. 736/89 (State Vs. Vijay and others) wherein they have been convicted u/s 411 of IPC and sentenced to RI for 2 years and fine of Rs. 1000/- each in default to suffer further RI for three months. Being aggrieved thereby, respondents filed criminal appeal no. 109/2006 before the Sixth Additional Sessions Judge, (Fast Track Court) Chhatarpur wherein judgment and order passed by JMFC, Bijawar has been set aside and respondents have been acquitted to the aforesaid charge.

Fact, in short, giving rise to this petition are that a report has been lodged on 8/09/1988 by Ayodhya Prasad Bajpai, caretaker of Palace of Maharani Mohini Kumari to the effect that in the night of 7/09/88 theft has been committed in the palace. On the basis of aforesaid FIR, investigation was carried out and 19 accused persons were arrested. Further on their instance, number of property has been seized from the accused persons. Specifically on the basis of memorandum statement of Kallu @ Gopal 700 gms of melted silver said to have been seized from the possession on respondent no. 4 Damrulal (since deceased) and 7 kg 875 gms of melted silver said to have been seized from the possession of Chakorilal Soni. During the search of house of respondent no.1 Prabhat Choudhary two ladies and one gents watches have been found and further a TV set and old clothes etc. also seized from the shop of Prabhat Choudhary. One melted golden and one melted silver silli, two cameras, one telescope have been seized from the possession of respondent no.2 Gulsher. After investigation, respondents alongwith other coaccused persons have been prosecuted before the JMFC, Bijawar who acquitted them from the offence u/s 380 of IPC however, respondents have been convicted for the offence u/s 411 of IPC. On appeal they have been acquitted by Sixth Additional Sessions Judge (Fast Track Court) Chhatarpur. Hence, this petition.

Learned counsel appearing on behalf of applicant/State submits that first Appellate Court committed illegality in appreciating the evidence on record therefore, prays for grant of leave to appeal.

Learned counsel appearing on behalf of respondents submit that none of the accused has been convicted u/s 380 of IPC, in these circumstances, it was not proved that alleged property was stolen property. It is further submitted that mere possession of any property would not amount to fact that same has been retained after having reason to believe the same to be stolen property. Under such circumstances, Appellate Court has rightly come to the conclusion that trial Court has committed illegality in recording the conviction against respondents u/s 411 of IPC therefore, pray for dismissal of the petition.

I have perused the impugned judgment of Appellate Court alongwith the judgment passed by JMFC, Bijawar. It is true that JMFC has acquitted all accused persons alongwith the respondents from the offence u/s 380 of IPC but he convicted the respondents u/s 411 of IPC on the assumption that respondents were found in possession of stolen property and they failed to give any explanation in regard to aforesaid stolen property.

When I go through the section 411 of IPC, I found that there was primary burden on prosecution to first prove that respondents had dishonestly received or retained any stolen property thereafter, prosecution has to prove that aforesaid property was knowingly or having reason to believe the same to be stolen property but in this case, first ingredient of section 411 of IPC in regard to fact that respondents dishonestly received or retained the stolen property has not been proved because trial Court itself was of the view that prosecution failed to prove the offence u/s 380 of IPC, therefore, it cannot be said that property found in possession of respondents was stolen property. As far as ingredient of having reason to believe that property was to be stolen property is concerned, nothing is on record to show that respondents had purchased the aforesaid property in lesser price than their market rates. As far as some property has been found on the shop of respondent no.1 Prabhat Choudhary is concerned, Investigation Officer himself has admitted that at the time of seizure of property Prabhat Choudhary was not present on the spot. On the basis of aforesaid circumstances, I am of the view that Appellate Court has not committed any illegality in passing the judgment of acquittal in favour of respondents.

Consequently, it is not a case where re-appraisal of evidence on record is necessary, therefore, no case is made out for grant of special leave to appeal.

The petition fails and is hereby dismissed.

Record of the courts below be sent back alongwith copy of this order.

Certified copy as per rules.