In a very significant observation with far reaching consequences, the Supreme Court has in an extremely laudable, learned, landmark and latest judgment titled Shiv Kumar vs The State of Madhya Pradesh in Criminal Appeal No. 1503 of 2022 (Arising out of SLP (Crl.) No. 9141 of 2019) in exercise of its criminal appellate jurisdiction has minced just no words to observe that the initial possession of stolen goods may not be illegal but retaining it with the knowledge that it was a stolen property, makes it culpable under Section 411 of Indian Penal Code. The Bench of Justice KM Joseph and Justice Hrishikesh Roy observed specifically that:
The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. It deserves mentioning that the Court held that, In these circumstances where it is not established that the appellant dishonestly received stolen property with the knowledge and belief that the goods found in his possession were stolen, the conviction of the appellant under Section 411 IPC, in our view, cannot be sustained. So the Apex Court very rightly ordered the acquittal of the appellant-accused.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hrishikesh Roy for a Division Bench of the Apex Court comprising of himself and Justice KM Joseph first and foremost puts forth in para 3 that:
The challenge in this appeal is to the judgment dated 12.03.2019 in the Criminal Appeal No. 1261 of 2006 whereunder the appellant’s conviction by the trial Court under Section 411 of the Indian Penal Code, 1860 (for short IPC), was sustained by the High Court. For such conviction, the appellant was sentenced to rigorous imprisonment (for short R.I.) for 2 years and fine of Rs. 1,000 and in default of fine payment, additional R.I. for 3 months was ordered.

Simply put, the Bench then states in para 4 that:
In this appeal, limited notice was initially issued on 4.10.2019 only on the quantum of sentence but on 9.5.2022, after considering the submission of the learned counsel for the appellant, the Court decided to examine the challenge to the conviction itself. Earlier, the appellant was exempted from surrendering by the Court’s order dated 6.9.2019.

Truth be told, the Bench then discloses in para 5 that:
In the common judgment, the High Court had disposed of three appeals including the appeal filed by one Sadhu Singh alias Vijaybhan Singh Patel who was convicted for murder and other offences and was sentenced, inter alia, to imprisonment for life. The appellant and one Shatrughan Prasad were not charged in the murder case, but were charged with the offence of receiving stolen property and were convicted for the offence punishable under Section 411 of the IPC.

To put things in perspective, the Bench then envisages in para 6 that:
The prosecution’s case, as revealed from the impugned judgment, is that on 14.2.2003, complainant Abhay Kumar Jain (PW-26) gave a written report to the Town Inspector, City Kotwali, Satna with the information that a truck loaded with household articles operating under the informant’s Excel Transport Agency had proceeded from Indore for delivering goods at Satna. The truck driven by Gurmel Singh after starting from the transport office at Indore on 8.2.2003 had, however, failed to reach its destination at Satna until 12.2.2003. On 14.2.2003, the informant, on learning that the truck was standing on Galla Mandi, Satna, found that the loaded goods from the truck were missing. Initially, an FIR was registered for offence under Section 406 of the IPC in the Crime No. 183/2003 but during police investigation, it came to light that the truck driver was murdered by Sadhu Singh alias Vijaybhan Singh with co-accused Raju alias Rajendra. The loaded goods in the truck were looted and those stolen articles were dishonestly received by the present appellant Shiv Kumar and co-accused Shatrughan Prasad allegedly knowing the articles to be stolen property. It is the further case of the prosecution that the goods in question were sold at cheaper rate by the two accused who were, accordingly, charged for offences under Section 411 of the IPC.

As it turned out, the Bench then mentions in para 7 that:
The trial Court convicted the co-accused Sadhu Singh for the offence of murder and related charges. It was also held that the prosecution is able to prove that the appellant Shiv Kumar and co-accused Shatrughan Prasad had received the articles looted from the truck knowing fully well that those are stolen property, and thereby, both accused committed the offence punishable under Section 411 of the IPC.

Analysis and Findings
Be it noted, the Bench while citing the relevant case law points out in para 11 that:
The law governing disclosure statement was discussed by this Court in the case of Haricharan Kurmi & Anr. Vs. State of Bihar AIR 1964 SC 1184. It was observed:

12. …….In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory 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....

As we see, the Bench then opines in para 12 that:
In this case, although recovery of items was made, the prosecution must further establish the essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise be clinching, for the conviction under Section 411 of the IPC.

Most notably, the Bench minces no words to point out in para 20 that:
The contradiction in the testimonies of Nitin Jain (PW-5), Sub-Inspector Bharat Singh Thakur (PW-22), and Sub-Inspector G.P. Tiwari (PW-24) are also quite glaring. For instance, the utensils as per PW-5, were seized by Sub-Inspector G.P. Tiwari (PW-24) in the presence of Nitin Jain (PW-5), however, the S.I. G.P. Tiwari (PW-24) in his testimony has denied seizing any property, owing to lacking Jurisdiction, stating seizure must have been done by Police Station, Panagarh and not by the officer from the Police Station Kotwali, Satna. Apart from the above, interestingly, the support for the testimony of SubInspector G.P. Tiwari (PW-24) is provided by SubInspector Bharat Singh Thakur (PW-22) of Police Station, Panagarh to the effect that PW-24 was not present at Shiv Kumar’s house during the seizure process. He has also denied that PW-24 called Nitin Jain (PW-5) to the house of Shiv Kumar to witness the seizure. Moreover, the seizure memo being written by Sub-Inspector G.P. Tiwari (PW-24) is also not supported by PW-24. Noticing all these discrepancies, the seizure evidence is found to be totally unreliable.

While citing yet another relevant case law, the Bench then specifies in para 21 stating that:
In Trimbak vs. State of Madhya Pradesh AIR 1954 SC 39, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove,

5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property....

Quite ostensibly, the Bench then expounds in para 22 stating that:
When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. This essential element was not established against the appellant to bring home the charge under Section 411 of the IPC against him.

Furthermore, the Bench then deems it apposite to note in para 23 stating the following: That apart, 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 of IPC. The Prosecution’s evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, you speak an infinite deal of nothing. (William Shakespeare. Merchant of Venice, Act 1 Scene 1.).

Quite significantly, the Bench then propounds in para 24 holding that:
In a case like this, where the fundamental evidence is not available and the law leans in appellant’s favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.

Finally and far most significantly, the Bench concludes by holding in para 25 that:
In these circumstances where it is not established that the appellant dishonestly received stolen property with the knowledge and belief that the goods found in his possession were stolen, the conviction of the appellant under Section 411 IPC, in our view, cannot be sustained. Therefore, applying the test in Trimbak [supra], it must be held that the appellant was erroneously convicted. Therefore, we order the acquittal of the appellant. The appeal stands allowed with this order.

In essence, it must be said at the cost of repetition that the key point of this extremely commendable judgment is that:
The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. When it is not established that the appellants received the property knowing it to be stolen then the appellants have to be acquitted as we see in this notable case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh