Crl. Appeal No. 452-SB of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 452-SB of 2001 Date of decision. 17.12.2010 Mohinder Singh s/o Jaswant Singh s/o Gurbax Singh, r/o ES 201, Mohalla Makhdoompura, Jalandhar. Parminder Singh s/o Satnam Singh s/o Bhagat Singh, r/o Dhingrian, P.S. Adampur, Jalandhar. .......Appellants Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. A.S. Gill, Advocate for the appellants. Mr. Ashwinder Singh, DAG, Punjab, for the respondent-State. **** M. Jeyapaul, J. The accused-appellants, who were convicted under Section 411 of the Indian Penal Code and were sentenced to undergo four months rigorous imprisonment each, have come out with the present appeal in order to just erase the stigma of conviction fastened on them. Crl. Appeal No. 452-SB of 2001 --2-- 2. It is the case of the prosecution that on 06.05.1990 when Pritpal Singh, Inspector, PW-1 alongwith other police officials were in the process of checking the vehicles, a maruti van of green colour came from the opposite direction, driven by the first accused Mohinder Singh and occupied by the second accused Parminder Singh. Having come to know through information that the maruti van was dishonestly taken away by the accused at the point of revolver with a view to commit robbery, a case was booked against the accused. They were arrested and remanded to judicial custody. Investigation was completed and challan was filed against the accused-appellants herein under Section 412 read with Section 34 of the Indian Penal Code 3. To establish the case of the prosecution, PW-1 Pritpal Singh, Inspector, who was the complainant, was examined as PW-1. Kuldip Singh, Head Constable, and Gajjan Singh, DSP were examined as PW-2 and PW-3 to establish the recovery. Mohinder Singh, PW-4 and Manjit Singh, PW-5, the owner and driver of the said maruti van were examined by the prosecution to establish that the said vehicle was dishonestly taken away from their custody. Crl. Appeal No. 452-SB of 2001 --3-- 4. The trial Court having relied upon the evidence of PW1, PW2 and PW-3, returned a verdict of conviction under Section 411 of the Indian Penal Code and not under Section 412 read with Section 34 of the Indian Penal Code. 5. The Court heard the submissions made on either sides. 6. It is found that Mohinder Singh, PW-4, the owner and Manjit Singh, the driver of the maruti van, which was seized by PW-1 from the custody of the accused-appellants have deposed before the Court that it was not the accused-appellants who snatched away the vehicle from the possession of the Driver, Manjit Singh, (PW-5). PW-5 has gone a step further and deposed that the identification marks furnished by him did not tally with the identification of the accused-appellants, who faced the trial before the trial Court. 7. True it is that the prosecution could establish its case by examining PW-1, PW-2 and PW-3 that the said maruti van was recovered from the custody of the accused-appellants. Of course no satisfactory explanation also furnished by the accused-appellants at the time when the vehicle was intercepted. Crl. Appeal No. 452-SB of 2001 --4-- 8. The question that arises for consideration is whether any offence under Section 411 of the Indian Penal Code was made out against the accused-appellants. 9. For establishing the commission of theft under Section 379 of the Indian Penal Code, there shall be dishonest removal of movable property out of the possession of a person without his consent. But to prove the guilt under Section 411 of the Indian Penal Code, the prosecution has to establish that the accused came into possession of the stolen property and he dishonestly retained the same knowingfull well that the property was a stolen one. In other words, a property which was stolen by somebody should have landed in possession of the accused. If the property which was stolen by the accused was found with him, an offence under Section 379 of the Indian Penal Code alone would be made out and not an offence under Section 411 of the Indian Penal code. This Court in Pyare Lal v. The State of Haryana 1982(2) CLR 265 has held that to make out an offence under Section 411 of the Indian Penal Code, the prosecution has to establish that some person other than the accused had possessed of the stolen property before the accused got the same in his possession. The aforesaid ratio applies to the facts and circumstances of this case. Crl. Appeal No. 452-SB of 2001 --5-- 10. The accused appellants were charged under Section 412 read with Section 34 of the Indian Penal Code alleging that they received the maruti van which was the subject matter of dacoity but the appellants have been convicted under Section 411 of the Indian Penal Code as though they came into possession of the same, which was stolen by somebody else. An offence under Section 379 of the Indian Penal Code may be made out as there is a presumption arisen under Section 114 of the Evidence Act for the property stolen was found in possession of the accused-appellants. As there was no charge framed against them for the offence of theft under Section 379 of the Indian Penal Code and the accused-appellant had already undergone the entire sentence, the Court is not inclined to punish them under Section 379 of the Indian Penal Code. It would be unjust to convict the accused under Section 379 of the Indian Penal Code when there was no specific charge framed against them calling upon them to answer the same by way of defence. 11. It is found that the prosecution has failed to establish the charge under Section 411 of the Indian Penal code or under Section 412 read with Section 34 of the Indian Penal Code against the accused-appellants. Therefore, the accused- appellants are entitled to acquittal. The trial Court has not properly adverted to the aforesaid material aspects in this case. Crl. Appeal No. 452-SB of 2001 --6-- 12. Therefore, setting aside the judgment of conviction recorded by the trial Court against the accused-appellants under Section 411 of the Indian Penal Code, the accused-appellants are acquitted of the said offence. The bail bond executed by them shall stand annulled. Consequently the appeal is allowed. 17.12.2010 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/No )