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2023 (8) TMI 1715
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....ence of rigorous imprisonment of three years with a fine of Rs. 5,000.00 and a default sentence of three months, Kallu assailed his conviction for the offence punishable under Section 120-B, IPC and sentence of rigorous imprisonment of ten years with a fine of Rs. 5,000.00 and a default sentence of three months. 2. In all, five accused persons were convicted and sentenced for different offences punishable under the IPC vide the common judgment of the Additional Sessions Judge ("Trial Court", hereafter) dated 28th November, 2019. The aforesaid judgment having been confirmed by the High Court, all the accused persons preferred Special Leave Petitions ("SLPs", hereafter) before this Court challenging the common judgment dated 12th October, 2022. The SLPs of the three accused, namely, Suleman, Arif and Jaihind, were dismissed and the judgment and order of the High Court affirming their conviction and sentence left undisturbed. However, notice was issued on the SLPs preferred by the remaining two accused, Manoj and Kallu, on 06th April, 2023 and 11th April, 2023, respectively. 3. These two appeals were heard on different dates. However, a common judgment being under assail, this C....
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....wn as under: Jaihind Sections 450, 394, 397, IPC and Section 25(1-B), Arms Act, 1959 ("Arms Act", hereafter) Arif Sections 450, 394, 397, IPC and Section 25(1-B), Arms Act Suleman Sections 450, 394, 397, IPC Kallu Section 120-B, IPC Manoj Section 411, IPC Upon committal, charges were framed and the accused including Manoj and Kallu pleaded not guilty and claimed to be tried. 7. Based on the complainant's testimony, it is established that among the four accused present at the scene during the incident, Suleman, Arif, and Jaihind were duly identified by the complainant, but the fourth accused remained unidentified. During the investigation, it was revealed that the fourth accused was a minor and the case was subsequently referred to the juvenile court for further proceedings. Insofar as Kallu and Manoj are concerned, they were not present at the complainant's house during the incident and were apprehended at a later stage of the investigation when it was discovered that Manoj had purchased the stolen articles, and Kallu was involved in hatching the conspiracy. 8. After appreciating the oral and documentary evidence on record, the Trial C....
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....minal conspiracy punishable under Section 120-B, IPC. 11. The aforesaid judgment having been challenged by Manoj and Kallu, a learned Single Judge of the High Court was of the view that the findings of the Trial Court did not warrant any interference and that the appeals were devoid of any merit; hence, the same were dismissed. In confirming Manoj's conviction and sentence, the High Court relied on the finding that most of the stolen articles were recovered from his possession and some of them were melted by him. Considering that the articles were duly identified by the complainant, the High Court was of the view that Manoj, knowing that the articles were stolen property, dishonestly retained them. While affirming the conviction and sentence of Kallu, the learned Judge referred to the fact that the complainant was known to Kallu and he was working as her driver and that Rs.3,000.00 was recovered from his house based on the disclosure statement. SUBMISSIONS OF THE PARTIES 12. Learned counsel appearing on behalf of Manoj submitted that the courts below erred in recording the conviction under Section 411, IPC. The main submissions advanced by him to have the conviction revers....
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....did not find any material contradiction in the testimonies of the prosecution witnesses. The procedural flaws pointed out by his adversary did not result in any failure of justice and, therefore, there is no reason to interfere with the judgment and order passed by the Trial Court, which has since been affirmed by the High Court. Supporting the conviction and sentence of Manoj, the learned counsel urged this Court to dismiss the appeal. 15. Learned counsel appearing on behalf of Kallu challenged the correctness of the impugned judgment and advanced the following submissions: a) No evidence was presented to substantiate the alleged conspiracy on the part of Kallu to commit any crime as alleged by the complainant. In other words, the necessary elements of the offence under Section 120- A, IPC, punishable under Section 120-B, IPC were not established. b) The Trial Court convicted the other accused persons primarily relying on the statements and information provided by the complainant. However, the complainant did not make any statement or allegation against Kallu. His conviction was based solely on two factual aspects: first, that Rs.3,000.00 was recovered from hi....
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....d Kallu was wholly untrustworthy for convicting them and the Trial Court as well as the High Court erred in not acquitting them. Disclosure Statements 20. The facts of the case reveal that all the accused persons made disclosure statements to the I.O. whereupon recovery of money, jewellery, etc. was effected. Although it is quite unusual that all five accused, after being arrested, would lead the I.O. to the places for effecting recovery of the stolen articles, we do not propose to disbelieve the prosecution plea only on this score. Manoj's involvement was primarily based on the disclosure statements made by co-accused Suleman and Jaihind where they admitted to selling the stolen articles to him and a similar statement made by Manoj himself which led to recovery under Section 27, Evidence Act. Similarly, both the courts below, in convicting Kallu, largely relied upon the disclosure statement made by Kallu himself as well as co-accused Jaihind, who confessed to giving Rs.3,000.00 to Kallu from the stolen money and storing a country-made pistol along with three cartridges at his house/tapra. 21. A doubt looms: can disclosure statements per se, unaccompanied by any supporting....
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....y and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. 24. In yet another case of discrediting a flawed conviction under Section 411, IPC, this Court, in Shiv Kumar vs. State of Madhya Pradesh [(2022) 9 SCC 676] overturned the conviction under Section 411, declined to place undue reliance solely on the disclosure statements of the co-accused, and held: 24...., the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 IPC. The prosecution's evidence on this aspect, as they would speak of the character....
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....a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 28. The testimony of the seizure witnesses, we are inclined to the view, is the only thread in the present case that could tie together the loose garland, and without it, the very seizure of stolen property stands falsified. We cannot overlook the significance of the circumstance that all four independent seizure witnesses (PWs 5, 6, 11, and 16), who were allegedly present during the seizure/recovery of the stolen articles from Manoj's house, having turned hostile and not support the prosecution case, the standalone evidence of the I.O. on seizure cannot be deemed either conclusive or convincing; the recoveries made by him under Section 27, Evidence Act must, therefore, be rejected. 29. The material inconsistency in Kallu's case is the contradiction in the depositions of the I.O. and the complainant. The I.O. deposed that he, upon the disclosure by co-accuse....
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....garding the stolen articles was posed to him. Instead, irrelevant and abstract questions about the main incident of robbery that took place on 14th April, 2010 were asked, even though his alleged involvement occurred much later when the robbed items were allegedly sold to him by the co- accused. The prosecution's entire case is premised on the disclosure statements made by the co-accused, but Manoj was never given the opportunity to explain the circumstances. Conviction of Manoj under Section 411, IPC 33. Manoj has been convicted under Section 411, IPC which is reproduced below: 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. 34. The Trial Court convicted Manoj based on a presumption under Section 114(a), Evidence Act, asserting that his possession of stolen articles shortly after the theft, with knowledge of its stolen nature, was adequate enough to hold him guilty under Section 411, IPC. As a result, he was held....
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....items sold to Manoj were indeed stolen articles, it would not be sufficient to attract Section 411, IPC; what was further necessary to be proved is continued retention of such articles with a dishonest intent and knowledge or belief that the items were stolen. No evidence worthy of consideration was adduced by the prosecution to prove that Manoj had retained the articles either with dishonest intent and with knowledge or belief of the same being stolen property. Conviction of Kallu under Section 120-B, IPC 38. It is intriguing that among all five accused persons, only Kallu has been convicted for criminal conspiracy under Section 120-B, IPC. At this stage, we cannot help but wonder: can a single individual conspire with oneself? We cannot but disagree. It logically follows that one person alone can never be held guilty of criminal conspiracy because one cannot conspire with oneself. As per Black's Law Dictionary (8th Edn), 'conspiracy' is an "agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and action or conduct that furthers the agreement". The wordings of Section 120-A, IPC make it abundantly clear-....