Criminal Appeal (SJ) No. 334 of 2007 --------- Against the judgment and order of conviction and sentence dated 2.2.2007 passed by Shri Narsingh Prasad, Additional Sessions Judge, FTC VI, Sitamarhi in S.T. No. 808 of 2005 / 77 of 2006. -------- Khodadin Ansari, son of late Md. Nazir Ansari, resident of village – Pupri, Police station – Pupri, District – Sitamarhi ………….. Appellant Versus The State of Bihar ………….. Respondent ------- For the Appellant : Sarvshri Abbas Haidar & S.K. Jha, Advocates For the State : Shri Ajay Mishra, APP -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------ Dharnidhar Jha, J. The solitary appellant has been convicted by the learned Presiding Officer of Fast Track Court VI, Sitamarhi in Sessions Trial No. 808 of 2005 by judgment dated 2nd February, 2007 for committing offences under sections 413 and 414 IPC. The appellant has been directed to suffer RI for five years as also to pay a fine of rupees two thousand, else to suffer RI for six months under section 413 IPC. He has further been sentenced to undergo RI for two years under section 414 IPC. 2. The informant of the case was the Officer Incharge of Pupri Police station. He stated in his written statement (Ext. 2) that he along with an ASI B.P. Yadav (P.W.7), I.O. of the case, reserved guard Havildar Devendra Sharma, Constable 535 Satendra Kumar, Constable 300 Tahir Hussain, Constable 214 Surendra Prasad Yadav and Constable 272 Hit Narayan Singh started by the police jeep for investigating Pupri P.S. Case no. 156 of 2005 under section 379 IPC and during that course, searched the house of the present appellant, who was named 2 accused in that case. Seeing the police force, the appellant is said to have attempted to run away from there but he was chased by the police and villagers and was arrested. 3. On search of the house of the present appellant in presence of two witnesses, namely, Kale Khan and Md. Basiur Rahman, P.Ws 4 and 5 respectively, six bicycles were recovered as per description given in the written report (Ext. 2). Those cycles were seized and seizure memo (Ext. 1) was prepared. 4. P.W. 8 drew up his self statement and instituted the FIR and handed over the investigation of the case to ASI Basudeo Prasad Yadav (P.W.7), who investigated the case and sent up the appellant for trial. 5. Nine witnesses were examined by the prosecution and three witnesses were produced by the defence. Out of nine prosecution witnesses, P.Ws 4 and 5, as just stated, were witnesses to seizure memo, but they stated that nothing had been seized in their presence nor they had been witnesses to search and seizure of the house of the present appellant and that the seizure memo does not bear the signature of the present appellant as it had not been made over to him. Remaining seven witnesses, who were police witnesses, supported the story. P.W. 7, the I.O. stated that one person had come to the police station to identify one of the bicycles but neither the name of that particular person nor the description of the cycle which was identified by him had been given by P.W. 7. There is absolutely no evidence indicating that they were the subject matters of any theft case especially of Pupri P.S. Case no. 156 of 2005 registered by the police or any other agency competent to do it nor there was any evidence to indicate that any one had come to the police station for claiming those bicycles. 6. The solitary contention was that under the facts of the case and in the light of the evidence, it is not indicated that the cycles were theft properties of any particular case or cases, the charge under sections 413 and 414 IPC could not be sustained. No evidence was on record that any of the bicycles recovered from the house of the appellant was the subject matter of Pupri P.S. Case no. 156 of 2005 3 which the informant claimed being investigated into and which connection the house of the appellant was searched and recovery was made. 7. Section 413 IPC reads 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.” 8. Habitually receiving or dealing stolen property could be established only when the evidence was produced by the prosecution to indicate that the appellant was accused in similar nature of case and that too when he had been found guilty in most of the cases, if not in all the cases, only then it could be said that the appellant was habitual in receiving or dealing in the theft property. Only receiving the property and dealing in it may not constitute an offence under section 413 IPC unless it was established by evidence that the property was the subject matter of theft. The prosecution has to establish that before having received the property or prior to dealing in it, the accused must have the knowledge or reason to believe that the property received by him or that, which could be contemplated to be dealt in by him, was stolen property. Stolen property could be established only when the evidence is sufficiently given to indicate that those were subject matters of theft with sufficient evidence produced in that behalf and most of all, if there was a case, the reference and necessary documents must also be produced to establish that particular ingredient. The properties being stolen may have also to be produced if it is shown that it had been stolen away and it has been held to be stolen property by any other competent authority. On perusal of the evidence which has been produced in the court below, what appears is that there is no evidence that the appellant was a habitual retainer or dealer of the stolen property. Further, there was no evidence that the appellant had the knowledge or reason to believe about any or all the six bicycles being property which could have been transferred to him or 4 obtained by him as a stolen property. Knowledge is something which a person could have out of his own personal perception about the state of a particular thing, but when it comes to reasons existing to believe a particular thing, then one has to look to materials which could probabilize the existence of a particular fact or state of facts or, likewise, a thing or a state of thing. I have already referred to the evidence which has been adduced by the prosecution in the present case and on such reference to the evidence, I find that there is absolutely nothing to establish the ingredients necessary to constitute the offence punishable under section 413 IPC. 9. So far as offence under section 414 IPC is concerned, that section reads as under: “414. Assisting in concealment of stolen property.--- Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 10. As may appear from the above definition, the act of assisting in concealing or disposing of or making away with property has, firstly, to be voluntary and then with knowledge or under reasons to believe that the property was a stolen property. The word „voluntarily‟ has been defined by section 39 IPC. A consideration of that particular definition may indicate that the act of concealing a property which is known to be stolen property must be with an intent and purpose of concealing. However, that intent must be blended with the knowledge that the property was stolen. Besides the knowledge which could be derived from the word „voluntarily‟, the section further reads that while voluntarily assisting in concealing or disposing or making away any property, the offender must have the knowledge that it was stolen property or must have reason to believe that it was a stolen property. The first requirement of constituting the offence under section 414 IPC is that the offender must know or has reasonable ground to believe that the property was stolen, then he should take steps so as to exhibiting his acts as voluntary acts 5 on concealment or disposal or making away of the property, which has been known to him as stolen property. 11. What appears from the evidence is that only one person is said to have come to P.W. 7 to identify one bicycle out of six. That evidence, I have already noted, is too cryptic to be clear to even brand that particular cycle a stolen property, least to talk of the other five bicycles. Thus, the most important ingredient which was the initial one of having the knowledge or reasons to believe the property to be stolen appears not existing. There is absolutely no evidence to show that the appellant was in process of voluntarily disposing of the property or was attempting to make it away to any other person or place so as to make it unavailable for investigation. If this could be the state of evidence, then the conviction of the appellant under sections 413 and 414 IPC could not have been recorded by the learned trial judge. 12. In the light of the discussion which I have just made on the corresponding provision in light of evidence available on record, what I conclude is that the appeal is meritorious and that has to be allowed on account of the fact that the learned trial judge was not appreciating the evidence in the manner, it was desired to be appreciated in the light of the ingredients which were required to constitute the two offences and that is the reason that the trial judge was falling in grave error in appreciating the law and facts both. 13. In the result, the appeal is allowed. The appellant is acquitted and the judgment and order of conviction and sentence passed upon the appellant is set aside. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 26th September, 2011, AFR/Anil/