Narayan Sao vs State Of Jharkhand

Heard Mr. Rajesh Kumar, learned counsel appearing on behalf of the petitioner.

Heard Mr. Ashok Kumar, learned A.P.P. appearing on behalf of the opposite party- State of Jharkhand.

The instant criminal revision is directed against the judgment of the learned appellate court dated 30.07.2008 passed by the learned Sessions Judge,

Lohardaga in Criminal Appeal No. 20 of 2007 dismissing the criminal appeal and upholding the judgment of conviction and the order of sentence dated

24.09.2007 passed by the learned A.C.J.M., Lohardaga in G.R. Case No. 220 of 2005 / T.R. Case No. 278 of 2007 whereby the petitioner was

convicted under Section 414/34 of IPC and was sentenced to undergo rigorous imprisonment for two years and six months under Section 414/34 of

Indian Penal Code.

The learned counsel for the petitioner has placed the judgment passed by the learned trial court as well as the learned appellate court. The learned

counsel submits that the petitioner has been convicted under Section 414 read with Section 34 of Indian Penal Code, but there is no material on record

to show that there was any theft report in connection with the motorcycle involved in this case, which has been alleged to have recovered from the

house of the petitioner. He further submits that it has been brought on record that one Kamdara P.S. Case No. 36 of 2004 dated 30.09.2004 was

registered under Section 392 of Indian Penal Code, but neither any document in connection with such case number has been exhibited, nor there is any

evidence on record before the learned court below to show that Kamdara P.S. Case No. 36 of 2004 dated 30.09.2004 was in connection with the

same motorcycle which is involved and recovered in the present case. Accordingly, he submits that in absence of any theft report in connection with

the article i.e. motorcycle, no case in connection with its recovery, by stating it to be a stolen property, can be made out under Section 414 of Indian

Penal Code.

The learned counsel for the petitioner has referred to Section 410 as well as Section 414 of Indian Penal Code and further submitted that Section 26

of Indian Penal Code defines the term “reason to believeâ€. Learned counsel referred to a judgment passed by Hon’ble Patna High Court in

Criminal Miscellaneous No. 608 of 2012 (Naveen Yadav â€"Vs- The State of Bihar) and submitted that in the said case, the ingredients of Section

414 of Indian Penal Code have been considered. He submits that it has been held by Hon’ble Patna High Court that the ingredients to establish an

offence under Section 414 of Indian Penal Code are:

(i) Voluntarily assists in concealing or disposing of or making away property,

(ii) Knowledge or reason to believe that property is stolen property.

The word “voluntarily assists†is impregnant with the meaning that there is more than one person as a person to assist and there must be a

person to be assisted. There may be a person who commits theft and there may be a person who receives the stolen property, but there may be a

person who assists in disposal of the property. A person who has committed theft may be charged under Section 379 of Indian Penal Code and a

person who receives property found in possession of property may be charged under Section 411 of Indian Penal Code, but a person who assists for

disposing of the stolen property is liable for the charge under Section 414 of Indian Penal Code. He submits that in this background, it has been held

that, if a person found to be a person against whom there is material to suggest that he was engaged in assisting the disposal of theft property, then he

may be liable as per first requirement.

The learned counsel for the petitioner further submitted that the second requirement as stated above under Section 414 of IPC is “knowledgeâ€

or “reason to believe†that the property involved is stolen property. Knowledge means mental cognition and it emphasizes that the person dealing

with the property recognizes that it is a theft property and word “reason to believe†means there is existence and presence of circumstance from

which it can be inferred that the accused has knowledge of the fact. The word “reason to believe†indicates that the surrounding circumstances

and the circumstances of recovery of property are such that a reasonable man must have felt convinced in his mind in all probabilities that the property

with which he was dealing with must be a stolen property. If it is sufficient to show that the circumstance was, as such, to make him believe that the

property is a stolen property, it is not necessary for a person to be convicted under Section 414 of Indian Penal Code that another person must be

traced out and convicted for an offence of committing theft.

The learned counsel for the petitioner submitted that considering the ratio of the aforesaid judgment passed by the Hon’ble Patna High Court

which has elaborately dealt with the ingredients of the offence under Section 414 of Indian Penal Code, the impugned judgment of conviction as well

as the judgment of the appellate court is fit to be set-aside, as the same has resulted in miscarriage of justice, so far as the present petitioner is

concerned.

The learned counsel also referred to a judgment passed by the Hon’ble Supreme Court reported in (2004) 7 SCC 665 (Ram Briksh Singh and

Others â€"Vs- Ambika Yadav and Another) and submitted that if the courts have overlooked material evidence which has resulted in manifest

illegality and gross miscarriage of justice, then interference under the revisional jurisdiction by the High Court is called for. He submitted that it has

been held by the Hon’ble Supreme Court in Para-4 of the said judgment that it is a duty of the court to correct manifest illegality resulting in gross

miscarriage of justice.

The learned counsel for the petitioner further referred to the evidences of P.W.-2 and P.W.-3 who are said to be seizure list witnesses. He

submitted that they have not fully supported the prosecution case, rather they have proved their signatures and they have said that they had signed on

the seizure list under the threat of police. The learned counsel for the petitioner submitted that in such circumstances, the alleged seizure from the

house of the petitioner has not been proved and accordingly, the place of occurrence in connection with the alleged stolen property i.e. the motorcycle

has also not been proved. The learned counsel submitted that this aspect of the matter also has not been properly considered by the learned trial court

as well as the learned appellate court, which calls for interference by this Court.

The learned counsel has further submitted that in defence, the petitioner had stated that the co-accused Deoraj Singh had pledged the motorcycle

in favour of his wife and to that extent, the petitioner has exhibited Exhibit-A before the learned trial court and the co-accused Deoraj Singh has been

declared as absconder. He submitted that receipt of the motorcycle is properly documented by virtue of Exhibit-A and accordingly, it cannot be said

that the appellant had any knowledge or had any reason to believe that the property was a stolen property. Learned counsel submitted that these

aspects of the matter have not been properly considered by the learned courts below.

Learned A.P.P. appearing on behalf of the State, on the other hand, submitted that there is no requirement under law that in order to establish a

case under Section 414 of Indian Penal Code, there has to be a theft report in connection with the stolen property. He further submitted that there is

no such condition prescribed under Section 414 of Indian Penal Code, in as much as, what is sufficient is that the person who is found with the stolen

property should have the reason to believe or has the knowledge that the property is a stolen property. The learned A.P.P. also submitted that the

term “reason to believe†has been defined under Section 26 of Indian Penal Code which means a person is said to have reason to believe a thing

if he has sufficient cause to believe that thing, but not otherwise.

The learned A.P.P. appearing for the State further submitted that the evidence has come before the learned trial court that proper investigation

was made in connection with the Chassis Number and Engine Number of the motorcycle from the concerned District authority and it was found that

the motorcycle is standing in the name of a third person. He further submitted that it has also come in evidence that the defence had adduced two

witnesses. D.W.-1 is Bimal Sah who has deposed that on 11.11.2004, he had seen the co-accused Deoraj Singh and Arun Singh in the shop of the

petitioner. He has deposed that Rs. 10,000/- was given to Deoraj Singh for treatment of his wife for which, motorcycle was pledged and agreement

paper has also been produced, which has been marked as Exhibit-A regarding pledging of motorcycle for Rs. 10,000/-. In Para-13, the said witness

has stated that when he had come with the motorcycle on 11.11.2004, it had no registration number. The learned A.P.P. submitted that on the basis of

this, it has been recorded by the learned appellate court that this goes to show that false registration number was put by the petitioner and he had

reason to believe that the motorcycle-in-question was a stolen property. He submitted that D.W.-2 namely, Nawal Kishore Sinha has also repeated

the defence version of payment of Rs. 10,000/- to Deoraj Singh, for which the motorcycle was pledged.

The learned A.P.P. further submitted that under Section 114(e) of the Indian Evidence Act, court may presume that judicial and official acts have

been regularly performed and accordingly, no adverse inference against the prosecution case can be drawn only for the reason that the seizure list

witnesses have not supported the prosecution case. He further submitted that it is not in dispute that the seizure list witnesses have supported the

prosecution case to the extent that they had put their signatures on the seizure list.

The learned counsel for the State also submitted that the High Court has limited jurisdiction so far as this criminal revision is concerned and there

is no scope for re-appreciation of the evidences on record and coming to a different finding. He submitted that the learned counsel for the petitioner

has not been able to show any perversity in the matter of appreciation of evidence by the learned courts below. He further submitted that there is no

explanation on the part of the petitioner regarding recovery of the stolen motorcycle from his house and Deoraj Singh, who is said to have handed over

the motorcycle to the petitioner, is himself a co-accused in the present case by virtue of Section 34 of Indian Penal Code and admittedly, he is

absconding.

Learned A.P.P. appearing for the State thereafter submitted that the very fact that, at the stage of handing the motorcycle over to the present

petitioner, the same did not have the registration number mentioned thereon and ultimately, the motorcycle was found with another registration

number. This itself indicates that the petitioner had reason to believe that the motorcycle is a stolen one. He accordingly submits that no interference is

called for under the facts and circumstances of this case.

After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute

that on 12.05.2005 at 19.30 hours, a raid was conducted in the house of the petitioner in connection with Kamdara P.S. Case No. 36 of 2004

registered under Section 392 of Indian Penal Code in presence of witnesses. From inside the room of the house, one red colour Kawasaki Boxer

motorcycle bearing registration No. JH 08A 3575 Engine No. DMNBKH 70605 was recovered and seized by the raiding party led by the Sub-

Inspector of police of Lohardaga Police Station. The petitioner failed to produce documents regarding the seized motorcycle and said that the

motorcycle has been pledged by one Deoraj Singh for Rs. 10,000/- six months back. Police thereafter conducted raid in the house of Deoraj Singh and

he was asked to produce documents relating to the seized motorcycle, which he failed to produce and he, in turn, informed that one Bipin Singh had

come in the month of July, 2004 for selling this motorcycle and entered into an oral agreement for sale for Rs. 20,000/- to him. At that time, Rs.

12,000/- was given by him and the balance Rs. 8,000/- was to be paid after delivery of the relevant documents. Said Bipin Singh was said to be anti-

social element and was in custody in Gumla jail.

In the present case, all the three persons namely, Narayan Sao (the petitioner), Deoraj Singh and Bipin Singh are accused and the case was

registered against all three of them. After investigation, the charge â€"sheet was submitted against all three accused persons and after cognizance,

charge was framed under Section 414/34 of Indian Penal Code.

It further appears that on behalf of the prosecution, altogether 10 witnesses were examined by the prosecution, out of which P.W.-2 and P.W.-3

were the seizure list witnesses. P.W.-2 is one Sanjay Sahu who has admitted his signature on the seizure list vide Exhibit-2, though during cross-

examination, he said that he did not know the nature of the said document and neither any article was seized in his presence, nor the police had read

over and explained its contents to him. He submitted that he had put his signature on the threat of the police and he was not permitted to read it.

So far as P.W.-3, Jiwan Kumar Sahu is concerned, he is another seizure list witness. He, in his oral evidence, admitted his signature on the seizure

list vide Exhibit-2/1 and in his cross-examination, he stated that he does not know on which paper he had signed, but he signed it on the threat of the

police and the contents of said document was not explained to him by the police.

P.W.-4, Masum Haidar Khan, is A.S.I of Lohardaga Police Station and I.O. (Investigating Officer) of the case who has fully supported the

prosecution case. According to his statement, he had verified the seized motorcycle from the District Transport Authority, Lohardaga and the report is

also available on record.

P.W.-5 is Mumtaj Ahmad, Deputy Collector Nazarat, Lohardaga who has stated in his evidence that on 27.05.2005, he was In-charge of District

Transport Office, Lohardaga and he had given a detailed report in respect of the registration of Vehicle No. JH 08A 3575 to the Assistant Sub-

Inspector of Police (P.W. 4 â€" Investigating Officer) and the same was marked as Exhibit-3.

Thus, this Court finds that there is no dispute that P.W.-2 and P.W.-3 were independent witnesses and they had admitted their signatures on the

seizure list. P.W.-4 as well as P.W.-5 had also fully supported the prosecution case and it is further not in dispute that the seized vehicle did not belong

to any of the accused persons. The records of this case also indicate that the co-accused namely, Deoraj Singh was ultimately declared absconder and

his case was separated. In the present proceedings before the learned trial court, only Bipin Singh and Narayan Sao were the persons who were put

on trial.

This Court finds that the learned trial court, after considering all the evidences on record, found the present petitioner as well as the co-accused

Bipin Singh guilty of assisting in the concealment of stolen property and held that the prosecution has succeeded to bring home the charge against the

accused persons under Section 414 read with Section 34 of Indian Penal Code and accordingly, they were convicted. Said Bipin Singh was already in

custody and so far as the present petitioner is concerned, his bail bond was cancelled and he was taken into custody. Ultimately, the learned trial court

convicted the petitioner as well as Bipin Singh for Rigorous Imprisonment of two years and six months under Section 414/34 of Indian Penal Code.

The learned appellate court also considered the evidences on record and found that seized motorcycle was using false registration number, which

did not correspond to the engine number and chassis number after the motorcycle was seized and it is not in dispute that motorcycle bearing No. JH

08A 3575 which was the number mentioned on the seized vehicle, stood registered in the name of another person namely, Neeraj Kumar Pathak. The

learned appellate court duly considered the fact that although the seizure list witnesses had identified their signature, but regarding factum of seizure,

they have not supported the prosecution version, but held that this does not cast any serious doubt on the prosecution case as it has been fully

supported by the members of police raiding party who conducted the raid and seized the vehicle from the house of the petitioner. The learned

appellate court also relied upon a judgment passed by this Court reported in (2002) 3 JLJR 175 (Radha Kant Jha Vs. State of Jharkhand) and

observed that where I.O. becomes a direct witness on the point of recovery and if any witness does not support this fact, then unless there is a motive

on the part of the I.O. to create a false evidence, the direct evidence of the I.O. cannot be disbelieved as only because the witnesses who signed the

document have become hostile and there is no law that the evidence of the I.O. should be looked with suspicion.

The learned appellate court further relied upon Section 114 of the Evidence Act (illustration ‘e’) and was of the view that the court may

presume that the official acts have been regularly performed and accordingly, the learned appellate court, by a well-reasoned judgment, considered the

plea of the petitioner regarding the evidence of seizure list witnesses and held that merely because the seizure list witnesses have not supported the

prosecution case, cannot be a reason for doubting the deposition of the other witnesses. The fact remains that the seizure list witnesses have not

denied their signatures on the seizure list and ultimately, held in Para-17 of the appellate court judgment that as far as the seizure of the motorcycle is

concerned, the prosecution has proved its case beyond all reasonable doubts that it was seized from the house of the appellant - Narayan Sao (the

present petitioner).

The learned appellate court also considered the point as to whether the prosecution has been able to bring home the charge under Section 414 of

Indian Penal Code and considered that the only point which required determination is whether the vehicle-in-question was stolen property. The learned

appellate court, while appreciating the evidences, found that from the deposition of P.W.-4 and Exhibit-3, the vehicle was using false registration

number and the appellant (the petitioner herein) had failed to produce valid documents with regard to seized vehicle. The learned appellate court also

considered the statements of the petitioner recorded under Section 313 of Cr.P.C. in which to a specific question, he answered that he was not aware

that the motorcycle was stolen property and to another question, he answered that he had produced the documents to the police with regard to the

motorcycle.

The learned appellate court had also considered that the defence had adduced two witnesses. D.W.-1 had deposed that on 11.11.2004, he had

seen Deoraj Singh and Arun Singh in the shop of Narayan Sao (the petitioner). It has also been recorded by the learned appellate court that the said

witness had also deposed that Rs. 10,000/- was given to Deoraj Singh for treatment of his wife for which the motorcycle was pledged and agreement

paper was also produced which was marked as Exhibit-A regarding pledging the motorcycle for Rs. 10,000/-However, in Para-13, D.W.-1 deposed

that when he came with the motorcycle on 11.11.2004, it had no registration number. Considering this aspect of the matter, the learned appellate court

was of the view that this goes to show that false registration number was put by Narayan Sao (the petitioner). Accordingly, the learned appellate court

came to a conclusion that the present petitioner had reason to believe that the motorcycle-in-question was a stolen property. The learned appellate

court has also considered the evidence of D.W.-2, who had also repeated the defence version regarding payment of Rs. 10,000/- to Deoraj Singh, for

which the motorcycle was pledged.

This Court finds that the learned appellate court, by a well-reasoned order after considering the evidences on record, came to a conclusion that the

present petitioner had reason to believe that the motorcycle-in-question was a stolen property. The learned counsel for the present petitioner, while

assailing the impugned judgments, has specifically argued that the findings recorded by the learned appellate court were not enough to convict the

petitioner under Section 414 of Indian Penal Code mainly for two reasons; firstly, there was no corresponding theft report in connection with the

motorcycle involved in the case and secondly, he has referred to Section 26 of Indian Penal Code to submit that the materials on record were not

sufficient to come to a conclusion that there was reason to believe for the petitioner that the motorcycle was a stolen property. The learned counsel

for the petitioner has also argued that the seizure list witnesses have not fully supported the prosecution case and accordingly, neither the seizure, nor

the place of seizure has been proved by the prosecution. The learned counsel has relied upon the judgment passed by the Hon’ble Patna High

Court which was passed in Criminal Miscellaneous Case No. 608 of 2012 in support of his aforesaid argument. The learned counsel has also relied

upon the judgment reported in (2004) 7 SCC 665 in support of the scope of the revisional jurisdiction of the High Court and he has submitted that these

aspects of the matter as well as the evidences can be re-appreciated even in revisional jurisdiction, when it is found that there is manifest illegality and

gross miscarriage of justice.

This Court is of the considered view that on the basis of the evidences available on record including the seizure list witnesses and other witnesses

in support of the seizure and also the other materials available on record, the learned court below has recorded a finding of fact in connection with the

seizure of the motorcycle from the possession of the petitioner. The learned court below has also held, by citing cogent reasons, that the petitioner had

reason to believe that the motorcycle-in-question was a stolen property.

This Court finds that no material has been pointed out by the learned counsel for the petitioner to demonstrate that any material evidence has been

left out for consideration by the learned courts below. His entire argument is upon improper appreciation of evidence by the learned courts below. This

Court is of the considered view that both the courts, have appreciated the entire materials on record and have come to a definite finding and there is

no scope in the revisional jurisdiction to re-appreciate those evidences and come to any contrary finding.

So far as the judgment which has been relied upon by the petitioner which is reported in (2004) 7 SCC 665 (Ram Briksh Singh and Others Vs.

Ambika Yadav and Another), the said case arose out of Section 401(3) of the Criminal Procedure Code which deals with the revisional powers of the

High Court and provides that nothing in this Section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

The Hon’ble Supreme Court in para 3 and 4 of the aforesaid judgment has held as follows:

“3. The principles on which a revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well

settled by a catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a

statutory prohibition contained in sub-section (3) of Section 401 of the Criminal Procedure Code on converting a finding of acquittal into

one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is, has the High Court indirectly done

what is prohibited.

Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These

powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong

appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to

correct manifest illegality resulting in gross miscarriage of justice.â€​

The Hon’ble Supreme Court has clearly held that though the jurisdiction under Section 401 cannot be invoked only to correct wrong appreciation

of evidence and the High Court is not required to act as a court of appeal, but at the same time, it is duty of the court to correct manifest illegality

resulting in gross miscarriage of justice.

This Court is of the view that the learned counsel for the petitioner has not pointed out any such material to come to a conclusion by this Court

that there has been any manifest illegality resulting in gross miscarriage of justice. Rather this Court finds that the judgments passed by the learned

courts below are well reasoned judgments, so far as the finding regarding the seizure of stolen property from the possession of the petitioner and his

belief that the same was stolen property, are concerned.

So far as the argument of the petitioner that in absence of a theft report, no prosecution under Section 414 of Indian Penal Code could have been

made, the same is also fit to be rejected. Section 414 and 26 of Indian Penal Code read as under:

“26. “Reason to believeâ€​- A person is said to have “reason to believe†a thing, if he has sufficient cause to believe that thing but

not otherwise.

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.â€​

The basic ingredients of Section 414 of IPC are as follows:

(i) That the property in question is a stolen property,

(ii) The accused assisted in concealing or disposing of or making away with such property,

(iii) He did the act under (ii) voluntarily, and

(iv) He knew or had reason to believe that the property was stolen property.

This Court is of the considered view that in order to establish an offence under Section 414, it is not necessary to establish the person from whom

theft is committed, when it was committed, how it was committed and who committed it. It has been held by the Hon’ble Supreme Court in the

judgment reported in AIR 1964 SC 170 that Section 414 of Indian Penal Code makes it an offence for a person to assist voluntarily in stealing or

disposing of or making away with property, which he knows or has reason to believe to be a stolen property. It is not necessary for a person to be

convicted under Section 414 of Indian Penal Code that another person must be traced out and convicted for an offence of committing theft. The

prosecution has simply to establish that the property recovered is a stolen property and the accused provided help in its concealment and disposal.

In the judgment which has been relied upon by the petitioner passed in Miscellaneous Case No. 608 of 2012 by the Hon’ble Patna High Court,

the scope of Section 413 as well as Section 414 of I.P.C. has been dealt with and the Hon’ble Patna High Court, while considering the

requirements of Section 414 I.P.C., has also held that there is requirement under the said Section that there is knowledge or reason to believe that the

property is stolen which is subject matter of offence under Section 414 of Indian Penal Code. The knowledge means the cognition and it emphasizes

that the person dealing with the property recognizes that it is a theft property and the word “reason to believe†means there is existence and

presence of circumstances from which it can be inferred that the accused had knowledge of the fact. The word “reason to believe†indicates that

the surrounding circumstances and the circumstances of recovery of property, are such that a reasonable man must have felt convinced in his mind in

all probabilities that the property with which he was dealing must be a stolen property. The Hon’ble Patna High Court has also followed the

judgment passed by the Hon’ble Supreme Court reported in AIR 1964 SC 170 to hold that it is not necessary for a person to be convicted under

Section 414 of Indian Penal Code that another person must be traced out and convicted for an offence of committing theft. The Hon’ble Patna

High Court has ultimately held, by also considering the judgment passed by the Hon’ble Calcutta High Court reported in AIR 1928 Calcutta 264

that if there is sufficient cause to believe on the basis of surrounding circumstance, it can well be inferred that thing exists and hence, from the

surrounding circumstances, it can be inferred that there is reason to believe that the property is theft and that is sufficient for compliance under

Section 414 of I.P.C. and it is not necessary to convict a person for theft under Section 379 of I.P.C. for conviction under Section 414 I.P.C.

However, in the said judgment, the Hon’ble Patna High Court after considering the facts and circumstances of the case at hand, was of the view

that no case was made out under Sections 414, 413 and 120B of Indian Penal Code against the petitioner of the said case. However, so far as the

principle of law is concerned, the Hon’ble Patna High Court has also held that for a person to be convicted under Section 414 of Indian Penal

Code, it is not necessary that the another person must be traced out and convicted for an offence of committing theft.

This Court is of the considered view that the judgment which has been relied upon by the petitioner is rather against the petitioner and in the facts

and circumstances of this case, there are sufficient circumstances available to have a reason to believe, so far as the present petitioner is concerned,

that the motorcycle was a stolen property and that was sufficient to convict the petitioner under Section 414 of Indian Penal Code, even if no theft

report in connection with the motorcycle was ever exhibited before the learned courts below.

In view of the aforesaid findings and the facts and circumstances of this case, this Court does not find any reason to interfere with the impugned

judgments passed by the learned courts below.

Accordingly, the present criminal revision application preferred by the petitioner is hereby dismissed.

The bail bonds furnished by the petitioner are hereby cancelled.

Pending interlocutory applications, if any, are dismissed as not pressed.

Let the Lower Court’s Records be sent back to the learned court below.

Let a copy of this order be communicated to the learned court below through ‘FAX’.