Criminal Revision No.2007 of 2004 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.2007 of 2004 Date of Decision:-15.2.2010 Paramjit Singh son of Bholla Singh, caste Surehra, resident of village Budhi Pind, Police Station Tanda, District Hoshiarpur. ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Atul Lakhanpal, Senior Advocate with Mr.Vikrant Pamboo, Advocate for the petitioner. Mr.Ajaib Singh, Addl. Advocate General, Punjab. Mehinder Singh Sullar, J. Having lost the legal battle, the petitioner-convict Paramjit Singh (hereinafter to be referred as “the petitioner”) has directed the present revision petition against the impugned judgment of conviction and order of sentence dated 24.4.2001, whereby the trial Magistrate has convicted and sentenced him to undergo rigorous imprisonment for a period of two years, to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month, for the commission of offence punishable under section 411 IPC. The petitioner has also challenged the impugned judgment dated 24.9.2004, vide which, the appellate Court has also dismissed his appeal. 2. The brief facts, barely needed, relevant for disposal of present revision petition, unfolded during the trial and emanating from the record, are that on 1.8.1995 at about 5.30 P.M., a police party headed by PW Nirmal Singh Inspector/SHO and consisted of PW2 SI Jagtar Singh alongwith other police officials was going from Tanda to Bus stand, Saran, in connection with patrol duty. The police party reached Jajja Chowk, where PW Prem Kumar met it. It was claimed that as soon as the police party reached at GT Road, Hoshiarpur and little short of link road of village Randian (place of occurrence), in the meantime, the petitioner, having a brief case in his hand, came there from the Criminal Revision No.2007 of 2004 2 side of village Randian. On seeing the police party, he tried to turn back. On the basis of suspicion, the petitioner was apprehended, who disclosed his name as Paramjit Singh alias Pamma, caste Surehra, resident of village Budhi Pind, District Hoshiarpur. Inspector/SHO Nirmal Singh conducted the search of his brief case in the presence of other police officials and Prem Kumar. In the wake of search, 16 bundles of currency notes of denomination of Rs.100/- each plus Rs.8000/-, one identity card of Surinder Kumar, Secretary, Punjab Pradesh Youth Congress (I) alongwith his photograph and some clothes were recovered. All these articles and currency notes were taken into possession vide recovery memo Ex.PB. 3. The case of the prosecution further proceeds that the petitioner was arrested and during interrogation, he disclosed that on 26.6.1995, he alongwith Bhajan Singh alias Bhajji and Surinder Singh, residents of Budhi Pind, had stolen the brief case containing Rs.2 lacs alongwith other articles, out of which, Rs.10,000/- were given to Bhajan Singh, while the petitioner kept Rs.1,90,000/- and other articles. The petitioner was stated to have given Rs.22,000/- to his mother Swaran Kaur. The remaining amount of Rs.1,68,000/- and other articles were recovered by the police. According to the prosecution, accused Bhajan Singh and Surinder Singh were also arrested on 4.8.1995 and during the course of interrogation, Bhajan Singh also disclosed that on 26.6.1995, the petitioner took him and Surinder Singh to Jalandhar on the pretext of watching a movie and from Bus stand of Jalandhar, he snatched a brief case. Inspector/SHO Nirmal Singh prepared a rough site plan of the place of occurrence and also conducted the personal search of the petitioner. 4. Levelling a variety of allegations, in all, according to the prosecution that on 1.8.1995, the stolen amount of Rs.1,68,000/-, identity card and clothes of Surinder Kumar were recovered from the possession of the petitioner, vide recovery memo Ex.PB. On the strength of aforesaid allegations and in the wake of ruqqa sent by Inspector/SHO Nirmal Singh, the present case was registered against the petitioner, vide formal FIR No.112 dated 1.8.1995 (Ex.PJ) by MHC Iqbal Singh of Police Station Criminal Revision No.2007 of 2004 3 Tanda under section 411 IPC, in the manner indicated here-in-above. 5. After completion of the investigation, the final report/challan was submitted against the petitioner and his co-accused under section 173 Cr.PC to face their trial for the aforesaid offence. 6. Having completed all the codal formalities, the trial Magistrate framed the charge against the accused for the commission of offence punishable under section 411 IPC. Bhajan Singh co-accused of the petitioner confessed his guilt and he was accordingly convicted and sentenced, vide judgment dated 29.8.2000. As the petitioner did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 7. The prosecution, in order to substantiate the charge framed against the petitioner, only examined PW1 Surinder Kumar son of Ram Parkash, PW2 SI Jagtar Singh and PW3 ASI Jatinder Singh, in oral evidence. The prosecution has also tendered recovery memos (Ex.PA to Ex.PG), site plan (Ex.PH) and FIR (Ex.PJ) in documentary evidence. 8. The trial Magistrate, after taking into consideration the evidence on record, convicted and sentenced the petitioner, in the manner depicted here-in- above. 9. Aggrieved by the impugned judgment of conviction and order of sentence, the petitioner preferred the appeal, which was also dismissed by the lower appellate Court, vide impugned judgment dated 24.9.2004. 10. The petitioner still did not feel satisfied with the impugned judgments of conviction and order of sentence and filed the present revision petition, invoking the provisions of section 401 Cr.PC. That is how, I am seized of the matter. 11. Assailing the impugned judgments of conviction, at the very out set, the learned counsel for the petitioner has vehemently argued that no offence under section 411 IPC is made out against the petitioner, as the prosecution has badly failed to prove that the articles recovered from his possession were stolen Criminal Revision No.2007 of 2004 4 articles. The argument is that even the prosecution did not examine the main Investigating Officer-Inspector/SHO Nirmal Singh and the other evidence produced by it is discrepant and untrustworthy. Raising a variety of arguments, in all, according to the learned counsel that the petitioner deserves to be acquitted. 12. Hailing the impugned judgments of conviction, on the other hand, the learned State counsel has urged that the prosecution has proved the guilt of the petitioner by producing the cogent evidence and no interference is called for, in this relevant connection. 13. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to me, the courts below have gravely erred in convicting and sentencing the petitioner without any legal evidence. Therefore, the present revision petition deserves to be accepted, for the reasons mentioned here-in-below. 14. As is evident from record that the petitioner was charge sheeted for commission of offence punishable under section 411 IPC, which postulates that “whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same 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.” Likewise, stolen property has been defined under section 410 IPC to mean the 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 subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.” 15. The co-joint reading of these provisions would reveal that in order to attract the penal provision of section 411 IPC, it was incumbent upon the prosecution to prove by cogent and trustworthy evidence that the articles Criminal Revision No.2007 of 2004 5 recovered from the possession of the petitioner was a stolen property and he knew or had reason to believe the same to be the stolen property. 16. Above being the legal position and evidence on record, now the core question, that arises for determination in this case, is whether the prosecution has proved all the essential ingredients of section 411 IPC or not? 17. Having regard to the rival contentions of the learned counsel for the parties, to my mind, the prosecution has miserably failed to prove that the articles recovered from the possession of the petitioner was a stolen property and he knew or had reasons to believe the same to be the stolen property. 18. It is not a matter of dispute that the prosecution has only produced PW1 Surinder Kumar in this respect, who has stated that on 26.6.1995, his brief case containing Rs.2 lacs, clothes and identity card was stolen. He did not lodge the report to the police on the same day, but he reported the matter to the police only on 30.7.1995. On 5.8.1995, after receiving the information that the police of Police Station Tanda has recovered a huge amount of money, he went there, where MHC Iqbal Singh produced before him the above said items alongwith the currency notes recovered from the petitioner. He identified the same in Police Station Tanda, vide recovery memo Ex.PA. But no implicit reliance can be placed on the statement of PW1, because it is highly improbable to believe that the brief case of PW1 was stolen on 26.6.1995 and he would not promptly report the matter to the police in this regard. In cross-examination, the explanation put forth that he did not lodge the FIR as he was searching the brief case at his own level with the help of his relatives, is meaning less. Again, it is difficult to believe that the brief case of PW1 was stolen at main bus stand of Jalandhar and he would continue searching the same without reporting the matter to the police. Moreover, neither he (PW1) has no where stated nor there is an iota of relevant evidence even to suggest remotely that the petitioner had stolen his brief case on 26.6.1995. 19. Moreover, the main Investigating Officer, who was stated to have interrogated the petitioner and he had recorded his disclosure statement, did not step into the witness box to testify his interrogation and recording of disclosure Criminal Revision No.2007 of 2004 6 statement of the petitioner. It means, this subsequent part of the prosecution story remained un-substantiated in this context. 20. The matter did not rest there. PW2 has categorically admitted in his cross-examination that neither PW1 ever met him nor it was in his knowledge that PW1 has lodged any report with regard to theft of his brief case. Not only that, the prosecution did not prove the FIR dated 30.7.1995 lodged by PW1 with regard to theft of his brief case, which was very much essential, even the source of amount in question to PW1 is not forth coming on record. In other words, the prosecution did not produce any cogent evidence to prove that either the brief case and articles recovered from the possession of the petitioner were stolen and he knew or had reasons to believe that the same, were the stolen property, which is sine qua non for charge under section 411 IPC. 21. An identical question arose for determination before the Hon'ble Apex Court in case Chandmal and another v. State of Rajasthan AIR 1976 Surpeme Court 917. Having interpreted the provisions of sections 410 and 411 IPC, it was ruled as under:- “It is elementary 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 Sec.410, Penal Code. Only such property, possession whereof has been transferred by theft, or extortion or criminal misappropriation or other offences allied to them as mentioned in Section 410, falls within the definition of “stolen property”. 22. The aforesaid observations of the Hon'ble Supreme Court “mutatus-mutandi” are applicable to the facts of this case. Therefore, it is held that the prosecution has utterly failed to prove by cogent evidence that either the brief case and articles recovered from the possession of the petitioner were stolen or he knew or had reasons to believe that the same were the stolen property. 23. This is not the end of the matter. The prosecution also failed to connect the property recovered from the possession of the petitioner. PW2 has Criminal Revision No.2007 of 2004 7 categorically admitted that he has not seen the amount of Rs.1,68,000/- (case property) in the court at the relevant time when his statement was recorded. PW2 has also admitted that numbers of currency notes were not mentioned in the recovery memo (Ex.PB). According to PW1, MHC Iqbal Singh had shown the currency notes to him in Police Station Tanda and identification memo (Ex.PA) was prepared. Again, the numbers of such currency notes were not depicted in memo (Ex.PA). The case of the prosecution further proceeds that in the wake of disclosure statement (Ex.PD), the currency notes of Rs.10000/- were recovered from the possession of Bhajan Singh, vide recovery memo (Ex.PE). No description or numbers of currency notes are mentioned in it (Ex.PE). In the absence of the same, it is impossible to identify the currency notes in the normal course of events. Thus, it would be seen that the prosecution did not connect the currency notes, allegedly stolen from the brief case of PW1 on 26.6.1995 and identified by him on 5.8.1995, vide recovery memo (Ex.PA), with the currency notes recovered from the possession of the petitioner on 1.8.1995, vide recovery memo (Ex.PB) or the currency notes of Rs.10,000/- recovered from the possession of Bhajan Singh co-accused, vide recovery memo (Ex.PE). In addition to it, it is highly improbable to believe that the petitioner would retain the same currency notes, clothes and incriminating articles in the same position and same manner, till it was recovered from his possession on 1.8.1995, which was stated to have been stolen on 26.6.1995. In this manner, the prosecution failed to connect the case property, which casts a shadow of significant doubt on its version. In that eventuality, petitioner deserves to be acquitted in view of the observations of Hon'ble Apex Court in case Manik Devrao Shindi and others v. State of Maharashtra 1994 Supreme Court Cases (Cri.) 1761. 24. There is another aspect of the matter, which can be viewed from a different angle. Even the prosecution has miserably failed to prove the recovery of the brief case from the petitioner. The prosecution claimed that the brief case was recovered by the main Investigating Officer Inspector/SHO Nirmal Singh and independent witness Prem Kumar, but they were not examined to prove the factum of recovery in question. No doubt, the prosecution has only examined Criminal Revision No.2007 of 2004 8 PW2 SI Jagtar Singh, but no implicit reliance can be placed on his solitary statement in this connection. As mentioned above, he conceded in his cross- examination that neither PW1 ever met him nor it was in his (PW2) knowledge that PW1 has lodged any report with regard to the theft of his brief case. It was the case of the prosecution that the petitioner suddenly appeared at the place of occurrence and Inspector/SHO Nirmal Singh recovered the brief case in the presence of independent witness Prem Kumar. According to the prosecution, Inspector/SHO Nirmal Singh interrogated the petitioner, who suffered a disclosure statement, with regard to the stolen articles of PW1. As per further prosecution story, MHC Iqbal Singh recorded the FIR in the present case and produced the currency notes before PW1 on 5.8.1995 and identification memo (Ex.PA) was prepared. The prosecution did not examine material witnesses Inspector/SHO Nirmal Singh, independent witness Prem Kumar and MHC Iqbal Singh in the Court. It means, the prosecution has withheld the best possible evidence, which could prove the recovery of the brief case from the possession of the petitioner, for the reasons best known to it. In that eventuality, an adverse inference against the prosecution is inevitable in this regard. 25. Not only that, the prosecution did not examine the material witnesses, but the basic document ruqqa prepared by Inspector/SHO Nirmal Singh, the main Investigating Officer, which formed the basis of FIR (Ex.PJ) and the site plan of the place of recovery remained un-exhibited/unproved, which suggests that the link evidence is missing in this respect. In the absence of the same, it would not be safe to base the conviction of the petitioner only on the solitary statement of PW2, as regards the recovery of the bag from his possession is concerned, particularly, when, as mentioned above, the subsequent part of the prosecution story remained un-substantiated. 26. Again, it is not a matter of dispute that the petitioner cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. It is the evidence, on the basis of which, the decision of a criminal court is based and is the Criminal Revision No.2007 of 2004 9 requirement of criminal justice. Otherwise, in the absence of the same, the courts have no option but to record an order of acquittal howsoever painful the same may be. 27. Thus, it would be seen that, if the facts of non-compliance of essential ingredients of section 411 IPC, non-examination of material witnesses, non-connection of case property, missing of link evidence, recovery from the petitioner doubtful and totality of the facts and circumstances, emanating from the record, as discussed here-in-above, are put together, then the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short, as is required to prove a criminal charge against the petitioner under section 411 IPC. 28. Therefore, it is held that the prosecution has miserably failed to bring home guilt to the petitioner. The Courts below thus appear to have committed a grave illegality and material irregularity in convicting the petitioner without any legal evidence. Thus, the petitioner deserves the concession of benefit of reasonable doubt, in the obtaining circumstances of the case. 29. No other point, worth consideration, has been urged or pressed by the learned counsel for the parties. 30. In the light of the aforesaid reasons, the present revision petition is accepted and the impugned judgments of conviction and order of sentence are hereby set aside. Having extended the benefit of doubt, the petitioner is acquitted of the charge framed against him. Needless to say, the consequences will follow accordingly. (Mehinder Singh Sullar) February 15,2010 Judge AS Whether to be referred to reporter?Yes/No