PRAMOD BHANUDAS SOUNDANKARversusSTATE OF MAHARASHTRA

                   [2012] 11 S.C.R. 199


          PRAMOD BHANUDAS SOUNDANKAR                           A
                             v.
               STATE OF MAHARASHTRA
           (Criminal Appeal No. 1960 of 2012)
                  NOVEMBER 30, 2012
                                                               B
      [DR. B.S. CHAUHAN AND JAGDISH SINGH
                   KHEHAR, JJ.]

     Penal Code, 1860 - ss. 411 and 412 - Dacoity by 10
accused - Stolen property (4 kg silver) sold to appellant- C
accused (jeweller) - Conviction of appellant-accused by
courts below u/ss. 411 and 412 - On appeal, plea that
appellant-accused, at the most could be convicted uls. 411
and not 412 as he did not know whether the accused selling
the silver, belonged to a gang of dacoits - Held: The evidence D
that the appellant had known or had reason to believe that the
silver chips were stolen property, would be sufficient only to
establish his guilt u/s. 411 - Courts below have not recorded
a finding that the accused was aware that the silver chips
presented to him were procured by commission of dacoity or E
that he knew or had reason to believe that presenter of the
silver chips belonged to a gang of dacoits - Therefore,
conviction u/s. 412 set aside - Sentence of punishment
reduced to 1 year RI and fine of Rs. 10001-.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal          F
No.1960 of 2012.

    From the Judgment & Order dated 13.6.2012 of the High
Court of Judicature at Bombay bench at Aurangabad in
Criminal Appeal No. 260 of 2011.                               G

    Jayant Bhushan, Shivaji M. Jadhav, Brijkishor Sah, Anish
R. Saha for the Appellant.

                            199                                H
    200      SUPREME COURT REPORTS              (2012] 11 S.C.R.


A         Sanjay Kharde, Asha Gopalan Nair for the Respondent.

          The following Order of the Court was delivered

                              ORDER

B         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,
C 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
D 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
E Rameshchandra Sawarmal Bagdiaya, and a gold
  "mangalsutra" (wedding chain) and gold bangles from the
  person of Kirandevi.

       3. From the statement made by Rameshchandra
F 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
G 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
H accused Hanuman Kale, Ganesh Kale and Kathalu alias Sigret
 PRAMOD BHANUDAS SOUNDANKAR v. STATE OF 201
             MAHARASHTRA
were arrested. In January of the following year, Khetrya was        A
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        B
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       C
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)          D
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 Pra;r.rid Bhanudas Soundankar, a jeweller. The four
si1ver chips stolen by the accused Shivaji Kale were recovered      E
from the shop of Pra!"'lod Bhanudas Soundankar-appellant.
Pramod Bhanudas Soundankar-appellant was proceeded
agains.t (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      F
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 G
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 H
    202      SUPREME COURT REPORTS                [2012] 11 S.C.R.


A 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
B 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:-
c         "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
D              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
E              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, 1.0. On memorandum
F              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
G
               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
H
PRAMOD BHANUDAS SOUNDANKAR v. STATE OF                      203
            MAHARASHTRA ·
           knowledge about the same has purchased it and            A
           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
                                                                    8
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.         C
          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.          D
          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.                                              E

     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.
                                                                    F
     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.       G
           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        H
    204      SUPREME COURT REPORTS                 (2012} 11 S.C.R.


A               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
8
    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
C   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
D   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
E   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
F 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
G               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
H
PRAMOD BHANUDAS SOUNDANKAR v. STATE OF 205
            MAHARASHTRA
            commission of a dacoitv -                               A
            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 8
            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 C
            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 D
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, E
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 F
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 G
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
                                                                     H
established against the appellant.
    206      SUPREME COURT REPORTS                [2012) 11 S.C.R.


A      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
B 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
c it was submitted, that the prosecution had remained
  unsuccessful in establishing all the ingredients of tht:: 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
D 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
E 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
F 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
G 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
H Court as also the High Court with reference to the appellant
PRAMOD BHANUDAS SOUNDANKAR v. STATE OF 207
            MAHARASHTRA
Pramod Bhanudas Soundankar, it is not possible for us to A
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 B
(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 c
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
                                                                 0
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 E
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     F
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 G
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 H
    208       SUPREME COURT REPORTS             [2012) 11 S.C.R.


A extend upto three years. In the facts and circumstan~s 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 defaujt, in payment of fine he shall suffer simple
B imprisonment for one month. Ordered accordingly.

          Partly allowed, as above.

   K.K.t.                                  Appeal partly allowed.