“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1960_ OF 2012
(Arising out of SLP (Criminal) No. 6174 of 2012)
Pramod Bhanudas Soundankar …. Appellant
Versus
State of Maharashtra …. Respondent
O R D E R
1. Leave granted.
2. Six persons wearing black clothes, entered the house of Rameshchandra
Sawarmal Bagdiaya, situated at Akola Road, Hingoli, on the night
intervening 17th and 18th July,.2009, at about 1 am, after breaking open
the main gate. At the time of the break in, Rameshchandra Sawarmal
Bagdiaya and his wife Kirandevi were at the residence. Having threatened
Rameshchandra Sawarmal Bagdiaya and his wife, the assailants demanded keys
to an “almirah” (storage cabinet) in the premises. Rameshchandra Sawarmal
Bagdiaya informed them, that the keys were in the drawer of a table in
their room. Having recovered the keys from the drawer, the intruders
opened the “almirah”. From the “almirah”, they took away gold and silver
ornaments besides cash. In addition, they took three gold finger-rings and
a gold chain from the person of Rameshchandra Sawarmal Bagdiaya, and a gold
“mangalsutra” (wedding chain) and gold bangles from the person of
Kirandevi.
3. From the statement made by Rameshchandra Sawarmal Bagdiaya, it came
out, that the assailants collectively took away three gold finger-rings,
one “mangalsutra”, one gold locket, two gold bangles, two ear-tops, one
gold bar weighing three tolas (30 grams), one ladies finger-ring, two
“patlyas” (thick bangles), a number of silver chips weighing 1 kilogram
each, 150 silver coins and Rs.1,93,000/- cash.
4. In the process of solving the crime, Vishwanath Gavali was the first
to be arrested by the investigating officer. Vishwanath Gavali, disclosed
the names of some others, involved in the incident. Thereafter, in
November, 2009, three accused Hanuman Kale, Ganesh Kale and Kathalu alias
Sigret were arrested. In January of the following year, Khetrya was also
apprehended. On information furnished by him, Roshan alias Dhonya and
Kiran, were arrested in February, 2010. These arrests led to the
disclosure of the identity of the owner of the car used in the crime.
Thereupon Shaikh Javed, the car owner was arrested. Shivaji Kale was the
last to be arrested from amongst the intruders.
5. Even though Shivaji Kale (accused no. 8) had disclosed the name of
Sanjay alias Kaliya as one of their associates in the crime, he could not
be arrested, as he was absconding. He was, however, arrested after the
submission of the chargesheet, whereupon a supplementary chargesheet was
filed implicating Sanjay alias Kaliya.
6. The aforesaid ten accused were allegedly responsible for the dacoity.
One of them, Shivaji Kale (accused no. 8) disclosed, during the course of
investigation, that he had stolen four silver chips (weighing 1 kilogram
each) from the residence of Rameshchandra Sawarmal Bagdiaya, and had sold
the same to Pramod Bhanudas Soundankar, a jeweller. The four silver chips
stolen by the accused Shivaji Kale were recovered from the shop of Pramod
Bhanudas Soundankar-appellant. Pramod Bhanudas Soundankar-appellant was
proceeded against (as accused no. 11) for dishonestly having received
stolen property (under Sections 411 and 412 of the Indian Penal Code, 1860
(hereinafter referred to as “the IPC”), knowing (or having reason to
believe) that it was stolen..
7. The instant appeal has been filed by the aforesaid Pramod Bhanudas
Soundankar-appellant. During the course of hearing, the solitary
contention advanced at the hands of the learned counsel for the appellant
was, that the Trial Court, as also the High Court, had seriously erred in
holding the appellant Pramod Bhanudas Soundankar guilty, under Section 412
IPC. It was the contention of the learned counsel for the appellant, that
the evidence produced by the prosecution during the trial of the case,
could at best, result in the conviction of the appellant under Section 411
IPC. In the aforesaid view of the matter, the sole question which arises
for our consideration, in the present appeal is confined to the issue,
whether the Courts below were justified in holding the appellant Pramod
Bhanudas Soundankar guilty of having committed the offence punishable under
Section 412 IPC and not Section 411 thereof.
8. The Trial Court, while dealing with the case of the appellant Pramod
Bhanudas Soundankar, recorded the following observations:-
“92. So far as evidence against accused no. 11 Pramod Soundankar is
concerned, it is not the case of the prosecution that he was
involved in the dacoity. However, muddemal articles are seized
as per the memorandum statement of accused no. 8 Shivaji Kale
from the shop of accused no. 11. On reaching to shop, he has
handed over those articles to the police. Accordingly,
Panchnama is made. There is nothing brought on record in the
evidence of PW-20 P.I. Rauf, an Investigating Officer that he is
having any interest as against this accused to falsely involved
him in this crime. Therefore, merely because the panch witness
on memorandum and seizure panchnamas are not supporting, the
evidence of PW 20 P.I. Rauf, I.O. On memorandum and seizure
panchanama and PW-4 Rameshchandra Bagdiaya, complainant as to
identity of the muddemal property I hold that the evidence
brought on record is sufficient to hold that the property, which
is seized from accused no. 11 Pramod Bhanudas Soundankar, is the
property transferred from dacoity and involvement of accused no.
8 Shivaji Kale in the offence of dacoity and the nature of
property itself is such that the favour silver chips having
weight of 1 kg each from which it can be inferred that this
accused having knowledge about the same has purchased it and
retained it. Therefore, he is also liable for punishment under
Sections 412 and 411 of the Indian Penal Code.”
9. During the course of the appellate proceedings before the High Court,
the evidence with reference to the appellant Pramod Bhanudas Soundankar was
discussed as under:-
“29. As regards the accused no. 11, it is to be noted that he is
jeweller by occupation. Accused no. 8 Shivaji Kale was arrested
on 2.2.2010 from Wapi, Gujarat. According to the prosecution,
the said accused made a statement that he has sold four silver
chips to the present appellant/accused. Those silver chips,
according to the PW-20 P.I. Shaikh Abdul Rauf, were recovered
from the present appellant. Panch witness to the memorandum of
statement as well as the recovery panchnama, namely, PW-2
Nagorao and PW-3 Gajanan, both of them have turned hostile,
though employees of the complainant.
30. The learned Sessions Judge has believed the straightforward
testimony of the Investigating Officer i.e. Police Inspector,
who has given the chronological account of the events.
31. It was alternatively submitted on behalf of the accused, that
even if it is held that the present accused have received the
property from accused no. 8 Shivaji, yet it cannot be said that
he has knowledge that the property was a stolen property. It
may, however, be noted that this appellant-accused is the
jeweler by occupation and he has received four silver chips from
an ordinary person. In the circumstances, this very fact shows
that the present appellant had knowledge that the property must
not have been a normal property. In the circumstances, the
finding of the learned Sessions Judge in this regard also cannot
be faulted with.”
10. It was the vehement contention of the learned counsel for the
appellant, that accused nos. 1 to 10 were all agricultural labourers.
Keeping that in mind, when four silver chips were presented for sale by
Shivaji Kale to the appellant Pramod Bhanudas Soundankar, it was inevitable
for him to appreciate, that the said silver chips weighing 1 kilogram each
could only have been stolen property. Such quantity of silver produced by
an agricultural labour for sale was per se sufficient reason to believe,
that the same did not belong to the presenter. This by itself according to
the learned counsel for the appellant though sufficient for the offence
under Section 411, is not enough for establishing guilt under Section 412
IPC. It was submitted that from the evidence produced by the prosecution,
it was not possible to infer, that Pramod Bhanudas Soundarkar (the
appellant herein), had known that Shivaji Kala had acquired the silver
chips from a dacoity, or that he had knowledge that Shivaji Kale belonged
to a gang of dacoits. In the absence of such proof, it was submitted, that
the offence under Section 412 IPC could not be deemed to have been made
out..
11. In order to appreciate the submission advanced at the hands of the
learned counsel for the appellant, it is necessary to extract hereunder,
Sections 411 and 412 IPC. The aforesaid provisions are accordingly set out
below:-
“411. Dishonestly receiving stolen property –
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.
412. Dishonestly receiving property stolen in the commission of a
dacoity -
Whoever dishonestly receives or retains any stolen property, the
possession whereof he knows or has reason to believe to have
been transferred by the commission of dacoity, or dishonestly
receives from a person, whom he knows or has reason to believe
to belong or to have belonged to a gang of dacoits, property
which he knows or has reason to believe to have been stolen,
shall be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine.
12. Having given our thoughtful consideration to the facts and
circumstances in the present case, we are of the view, that the fundamental
ingredient, that the appellant had received the goods knowing (or having
reason to believe) them to be stolen, stood fully established. We say so
because, it is not a matter of dispute that Shivaji Kale (accused no. 8)
was an agricultural labourer. For an agricultural labourer, to present
four silver chips, weighing 1 kilogram each, at the shop of a jeweller,
would clearly result in a grave suspicion that the same did not belong to
him. For a labourer, it would be unthinkable to own 4 kilograms of silver.
In the background of the aforesaid factual position, that when the
appellant, a jeweller, received 4 kilograms of silver from an agricultural
labourer, it was obvious to him (the appellant), that the same did not
belong to Shivaji Kale (accused no.8). We are satisfied, that the appellant
had sufficient cause to entertain a reasonable belief, that the same was
stolen property. There can therefore be no doubt, that the Trial Court, as
also the High Court, were fully justified in holding that the appellant
Pramod Bhanudas Soundankar had purchased four silver chips produced by
Shivaji Kale (accused no. 8) believing, that the same were stolen articles.
Having so concluded, it is clear, that the most fundamental and
foundational ingredient of Sections 411 and 412 IPC stood established
against the appellant.
13. According to the learned counsel for the appellant, for the
satisfaction of the ingredients expressed in Section 412 IPC, the accused
could be held to be guilty only, if it could be further established, that
the stolen property received by the appellant, was known to him, as having
been procured through, the commission of a dacoity. According to learned
counsel, consideration at the hands of the Trial Court, as also, the High
Court, with reference to the appellant herein (which have been extracted in
paragraphs 7 and 8, respectively) does not establish, the aforesaid
ingredient of Section 412 IPC. As such it was submitted, that the
prosecution had remained unsuccessful in establishing all the ingredients
of the crime under Section 412 IPC.
14. The ingredient of Section 412 IPC, referred to in the foregoing
paragraph, has an alternative. Even if the alternative can be established,
the accused would be guilty of having committed the crime expressed in
Section 412 IPC. It is apparent from a plain reading of Section 412 IPC,
that a person receiving stolen goods, would be guilty of the offence under
Section 412 IPC, if it can further be shown, that the recipient of the
goods knew (or had reason to believe), that the person offering the goods,
belonged to a gang of dacoits. It was the vehement contention of the
learned counsel for the appellant, that the instant involvement of the
appellant Pramod Bhanudas Soundankar is his first involvement in such a
case, inasmuch as, he has never faced a criminal trial earlier, and has
never been convicted for any criminal involvement prior to his instant
conviction. According to learned counsel, the prosecution having not
shown his previous relationship with any of the other 10 accused, prior to
the incident under reference, there was no question of any presumption,
that the appellant herein had known (or had reason to believe), that the
offerer of the silver chips belonged to a gang of dacoits.
15. Having perused the conclusions drawn by the Trial Court as also the
High Court with reference to the appellant Pramod Bhanudas Soundankar, it
is not possible for us to conclude, that either of the Courts below had
recorded any finding in respect of the other essential ingredients of the
offence under Section 412 IPC. The evidence produced by the prosecution,
that the appellant Pramod Bhanudas Soundankar had known (or had reason to
believe), that four silver chips (weighing 1 kiolgram each) was stolen
property, would be sufficient only to establish his guilt under Section 411
IPC. A perusal of the impugned judgments, does not reveal a finding
recorded by either the Trial Court or the High Court, that the appellant
was aware, that the silver chips presented to him by Shivaji Kale (accused
n o.8) were procured by the commission of a dacoity. Even the alternative
conclusion, namely, that the appellant knew (or had reason to believe) that
Shivaji Kale (accused no.8) belonged to a gang of dacoits, was not recorded
by the courts below. Even during the course of hearing before us, learned
counsel for the State of Maharashtra, could not draw our attention to any
evidence on the basis whereof, either of the aforesaid alternative
ingredients of Section 412 IPC could be demonstrated. It is therefore
clear, that the guilt of the appellant under Section 412 IPC cannot be
stated to have been substantiated in the facts and circumstances of the
present case.
16. For the reasons recorded hereinabove, we are satisfied, that the
Trial Court, as also the High Court, were not justified in convicting the
appellant under Section 412 IPC. We therefore, set aside the conviction of
the appellant under Section 412 IPC.
17. The sentence imposed on the appellant herein, was based on the fact
that he had been found guilty of offence under Section 412 IPC. Our
determination, however exculpates the appellant from having committed the
offence under Section 412 IPC. We, however, maintain the conviction of the
appellant, under Section 411 IPC. The sentence of imprisonment,
contemplated for the offence under Section 411 IPC, can extend upto three
years. In the facts and circumstances of the case, we are satisfied that
the ends of justice would be met, if the sentence of punishment inflicted
on the appellant is reduced to one year rigorous imprisonment and fine of
Rs.1000/-. In case of default, in payment of fine he shall suffer simple
imprisonment for one month. Ordered accordingly.
Partly allowed, as above.
……………………………….J.
(B.S. CHAUHAN)
……………………………….J.
(JAGDISH SINGH KHEHAR)
New Delhi;
November 30, 2012
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