V.R. Kingaonkar, J.@mdashThese three appeals are being disposed of together inasmuch as they arise out of same Judgment rendered by learned Sessions Judge, Parbhani, in Sessions Trial No. 1/2007. By the impugned Judgment, appellants, named above, have been convicted for offence punishable u/s 414 read with 34 of the Indian Penal Code. Each of them is sentenced to suffer rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 5,000/- (Rs. Five thousand), in default, to suffer rigorous imprisonment for three months.
2. Original accused Nos. 1 to 3 have preferred Criminal Appeal No. 497 of 2007, original accused No. 4 has preferred Criminal Appeal No. 484 of 2007 whereas, original accused Nos. 5 and 6 have preferred Criminal Appeal No. 485 of 2007. All of them challenge the impugned Judgment on identical grounds.
3. Background facts of the prosecution case, stated briefly, are as follows:
Consequent upon receipt of secret information, on May 8th, 2006, Police Naik - Rajendra, who was attached to Police Station at Parbhani, visited a stall of cold drinks vending, situated at Sane Chowk (Square). He was accompanied by another Police Constable -Javed (B. No. 181). The Police Naik and Constable found that negotiations about sale of autorickshaw/s were going on between accused No. 4 Munna Khan and accused Nos. 1 and 2, i.e. Sayyed Issaq and Shaikh Jamil. The Police enquiry revealed that two autorickshaws were parked at a place called, "Khandoba Bazar", about which the talks were in progress amongst the said accused persons. So, the Policemen took the said three accused persons to Khandoba Bazar and brought two autorickshaw vehicles bearing Registration Nos. MH-05-2394 and MH-05-S-9636 to Nanal Peth Police Station. The accused Nos. 1 and 2 -Sayyed Issaq and Shaikh Jamil were arrested. Then Police Naik -Rajendra lodged F.I.R. The accused were unable to explain about ownership of the vehicles, therefore, both the autorickshaws were seized.
4. The Police investigation disclosed that a large number of autorickshaws and two motorcycles were sold away at various places by the accused Nos. 1 and 2. As per directions of Inspector Anil Patil, Head Constable - Boke (PW-7) took the accused Nos. 1 and 2 to various places viz., Beed, Paithan, Kaij, Shevgaon, Beedsavangi, Ghari etc. The Police investigation disclosed that several autorickshaws were sold by the accused Nos. 1 to 6 to various persons. The houses of purchasers were pointed out by the accused Nos. 1 and 2 at the places where, they were taken by the Police. The Police seized in all 48 (forty-eight) autorickshaws, two motorcycles and an engine of autorickshaw. The investigation also revealed that there were complaints filed regarding thefts of at least some of the autorickshaws, out of the seized stock of autorickshaws, in Thane district. The investigation revealed that accused No. 3 - Ismail had sold an engine of autorickshaw vehicle, which was recovered from the purchaser. It was found that generally the accused Nos. 1 to 6 (appellants) used to make a false representation that the autorickshaws were purchased by them in bulk in an auction held by the Banks at Mumbai. They used to assure the purchasers to provide transfer certificate and other documents afterwards. On basis of material gathered during investigation, they were charge-sheeted for offences punishable under Sections 379, 413 and 414 read with 34 of the I.P.C.
5. At trial, charge was framed (Exh. No. 47). The appellants/accused pleaded not guilty to the said charge. They denied truth into the accusations. They submitted that they have been framed in the false case. No specific defence was raised by them. They did not explain possession of the autorickshaws and the material gathered during course of the investigation. Nor they did examine any witness in their defence.
6. The prosecution examined in all 74 (seventy-four) witnesses in support of its case. Out of them, most of the witnesses are purchasers of the autorickshaw vehicles from whom the recovery was made during course of the investigation. On appreciation of the evidence, tendered by the prosecution, the learned Sessions Judge came to the conclusion that offence of theft punishable u/s 379 of the Indian Penal Code is not proved against either of the accused. He also came to the conclusion that they are not proved to be habitual receivers of the stolen property. Therefore, they were acquitted of offences punishable u/s 379 and 413 read with 34 of the Indian Penal Code. The learned Sessions Judge, however, came to the conclusion that the ingredients of offence punishable u/s 414 of the Indian Penal Code have been duly proved against all the accused Nos. 1 to 6/appellants. Consequently, they were convicted and sentenced, as stated at the outset.
7. Mr. Bhapkar, Mr. Sayyed and Mr. Shinde, learned Advocates for the appellants would submit that the charge for offence punishable u/s 414 of the I.P.C. is not established against the appellants. They would submit that the recoveries of several autorickshaws were not in pursuance to confessional statements of the appellants and as such, these recoveries cannot be attributed to them. They would submit further that unless there is nexus between the recovered autorickshaws and the incidents of thefts, the conviction of the appellants could not be rendered u/s 414 of the I.P.C. It is argued that seizure of the vehicles at various places was allegedly conducted in presence of same set of witnesses and hence, is doubtful. It is further argued that the purchasers at various places mostly, got deposited the autorickshaw vehicles at the concerned Police Stations and hence, it could not be the seizure at instance of the accused Nos. 1 to 3. They would further submit that all the material gathered against the appellants is not worth the name. They assail findings of the learned Sessions Judge on facts and would submit that the appreciation of evidence, as undertaken by the learned Sessions Judge is erroneous. Hence, they urge to allow the appeals. Per contra, learned A.P.P. Mr. K.J. Ghute Patil supports the impugned Judgment.
8. Before I embark upon scrutiny of prosecution evidence, I may mention here that the appellants are convicted only for offence punishable u/s 414 of the Indian Penal Code. The ingredients of Section 414 require proof of two things:
(i) Voluntarily assisting or disposing of or ma property; in concealing away with
(ii) Knowledge or reason to believe that such property is stolen property.
The Section is intended to penalise the person, who deal with stolen property in such a way that it becomes difficult to identify it or use it as evidence. It is not necessary to establish that the property was the subject matter of any particular theft. It would suffice if the prosecution can establish that the accused had Knowledge or "had reason to believe" that the property is stolen one. It is not necessary to establish, from whom the theft was committed, when it was committed, how it was committed and who committed it. It is further not necessary to establish to whom accused assisted while disposing of the properties. All that the prosecution is required to establish is that the accused rendered help in either concealment or disposal of the property, which he had reason to believe to be stolen property or had knowledge to believe that it was such.
9. Considering the above legal position, it is necessary to examine the prosecution evidence. The recovery of first two autorickshaw vehicles bearing Registration Nos. MH-05-2394 and MH-05-S-9636 parked at Khandoba Bazar is duly established. The version of PW-1 - Rajendra (Police Naik) reveals that he and Constable Javed went to Sane Chowk (Square) in the morning of 8th May 2006 on basis of a secret information. He had received information that two persons from Mumbai were negotiating terms of sale in respect of stolen autorickshaws. He found that the accused Nos. 1 and 2 with accused No. 4 - Munna Khan were negotiating about sale of the autorickshaws. His version shows that accused No. 4 - Munna Khan was known to him being the local autorickshaw driver. He and Constable Javed took them to Khandoba Bazar where, the two autorickshaw vehicles mentioned above, were found parked. They drove the autorickshaws to Nanal Peth Police Station as per instructions of PW-Rajendra. The enquiry with accused No. 1 - Sayyed Issaq and accused No. 2 - Shaikh Jamil revealed that the autorickshaws were stolen from Mumbai and were brought to Parbhani for purpose of sale. They could not produce any document regarding ownership of the autorickshaws. The autorickshaws were, therefore, seized. The version of PW-Rajendra reveals that he gave a report (Exh.60) as regards production of the two autorickshaws. The report reveals that the registration numbers and engine numbers of the autorickshaws were changed.
10. The version of PW-Rajendra reveals that he was not knowing the accused Nos. 1 and 2 (appellant Nos. 1 and 2) prior to the incident. The talks of negotiations were going on by side of a push-cart on which soft drinks were kept for sale. His version reveals that he informed P.I. Anil Patil that the autorickshaws were not standing at Sane Chowk (Square) but were reportedly at Khandoba Bazar. As per further instructions, he went to Khandoba Bazar and brought the autorickshaws to Nanal Peth Police Station. It is pertinent to note that accused No. 4 Munna Khan was not in possession either of the autorickshaw. He was just talking with the other two accused about terms of the sale. There is absolutely nothing on record that accused No. 4 -Munna Khan concluded the negotiations and aided, in fact, the first two accused persons in the disposal of said two autorickshaws. The very fact that engine numbers and registration numbers of the said autorickshaws were tampered with is indicative of reason available to the first two accused to believe that they were the stolen properties. However, there is no iota of evidence to show that accused No. 4 - Munna Khan had verified the fact situation about tampering of the engine numbers and/or registration numbers of the said autorickshaws. There is nothing on record to show that accused No. 4 -Munna Khan agreed to purchase the said autorickshaws without verification of the relevant documents about ownership thereof. Nor there is any evidence to show that in the past, he had assisted the original accused Nos. 1 and 2 in concealment or disposal of stolen autorickshaws or other vehicles.
11. The version of PW-73 P.I. Anil Patil reveals that he received report (Exh.60) on 8.5.2006 from PW-Rajendra (Police Naik). He registered the crime and commenced necessary investigation. He arrested accused No. 1 - Sayyed Issaq and accused No. 2 - Shaikh Jamil and conducted seizure of the two autorickshaws. He corroborates the seizure panchnama (Exh.225). His version indicates that the further recoveries of autorickshaws were made under seizure panchnama (Exh.226). The other recoveries were effected from accused No. 5 - Raj Mohammad on 23.5.2006. It appears that three autorickshaws, which bore registration numbers MH-02-A-1964, MH-03-R-2005 and one bearing Chasis No. 24PERJ77761 came to be recovered vide panchnama (Exh.226). This recovery of three autorickshaws from custody of accused No. 5 -Shaikh Raj Mohammad is duly corroborated by PW-P.I. Anil. It is admitted by PW-P.I. Anil that the autorickshaws were not referred to Regional Transport Officer for the purpose of verification of the registration numbers. Nothing of much importance could be gathered, however, from his cross-examination.
12. This takes me to version of PW-7 Prakash Boke. He was attached to Nanal Peth Police Station as a Head Constable at the relevant time. His version purports to show that on 14.5.2006, PW-P.I. Anil Patil directed him to take the arrested accused Nos. 1 to 3 to districts Jalna, Aurangabad, Ahmednagar and Osmanabad for purpose of recovery of autorickshaws, which were sold away by them and which were believed to be stolen properties. He took them and two panchas with him to Paithan (District Aurangabad) , Shevgaon (District Ahmednagar) Beedsavangi, Ghari and various other places as elaborately stated by him. He recovered a large number of autorickshaws from various purchasers to whom they were sold by the accused Nos. 1 to 3. He states that one of the autorickshaw was seized from accused No. 6 -Abdul Kadar. His version reveals that the accused Nos. 1 and 2 pointed out houses of purchasers to whom the autorickshaws were sold away. They visited the said houses but the purchasers were not found at home. The purchasers produced the seven autorickshaws at Police Station where, they were seized under separate panchnamas (Exh.79 to Exh.85). He then recorded statements of those purchasers. Their statements revealed that they purchased the autorickshaws through accused No. 6 - Abdul Kadar and, therefore, he was arrested. One of the autorickshaw was seized from him under a panchnama (Exh.85). The seizure panchnama (Exh.85) reveals that an autorickshaw having chasis No. 24-FDJF59238 was seized from accused No. 6 - Abdul Kadar.
13. The version of PW-Prakash Boke (Head Constable) further reveals that he recovered eight (8) autorickshaws at Shevgaon (District Ahmednagar) from purchasers, to whom they were sold by accused Nos. 1 to 3. He corroborates the seizure panchnamas (Exh.86 to Exh.93). Similarly, other autorickshaws were recovered from places like Sursa, Gevrai, Beedsavangi, Ghari, Jamkhed etc. A large number of such recoveries at various places were conducted from number of purchasers of the autorickshaws from the accused Nos. 1 to 3.
14. The version of PW-2 Shaikh Mustaq purports to show that he had purchased an autorickshaw bearing No. MH-05-S-5414 prior to one and half year. He named accused Nos. 1 and 2 as his vendors. He states that the purchase transaction was made through agent Salim Khilla. According to him, the price of autorickshaw was settled at Rs. 13,000/-. He paid, however, only Rs. 7,000/- to accused Nos. 1 and 2. It was agreed that remaining amount would be paid after receipt of the relevant documents. His version reveals that accused No. 3 -Ismail executed an agreement of sale (Exh.71) in his favour. The autorickshaw was subsequently seized by the Police under seizure panchnama (Exh.62). It is explicit that the accused Nos. 1 to 3 had sold the said autorickshaw to PW-Shaikh Mustaq for palpably low price. It has come on the record that market price of the autorickshaw was then in the range of Rs. 50,000/-to Rs. 60,000/-. The accused Nos. 1 to 3 used to give bluff that the necessary papers would be provided lateron. They used to tell the purchasers that the autorickshaws were purchased in Bank auction at Mumbai and, therefore, the relevant papers were not immediately available. The gullible purchasers were either satisfied with the representation or that were not much inquisitive for the reasons best known to them.
15. Similarly, PW-3 Bhanudas, PW-5 Vikas, PW- 8 Suryabhan, PW-9 Baban, PW-10 Sayyed Sajid, PW-11 Sayyed Abdul Razzak, PW-12 Shaikh Ismail, PW-14 Sayyed Shakil, and PW-15 Shaikh Habib corroborated the fact that accused Nos. 1 to 3 had sold them the autorickshaw and a splendor motorcycle. These witnesses corroborated the recoveries of the vehicles made by PW-Prakash Boke. According to PW-Bhanudas, the autorickshaw No. MH-04-9069 was seized from him under panchnama (Exh.73). He purchased the autorickshaw for Rs. 10,000/- from one Suryabhan. It is the version of PW-Vikas that the accused Nos. 1 and 2 had sold him one autorickshaw bearing registration No. MH-02-Q-9202 for Rs. 25,000/- but he had paid only Rs. 10,500/-to them. The balance amount was to be paid after receipt of the ownership documents etc. PW-8 Suryabhan is purchaser of autorickshaw bearing No. MH-04-9069. He states that accused Nos. 1 and 3 had sold the autorickshaw to him. The PW-9 Baban is purchaser of autorickshaw bearing No. MH-02-9202, which was seized by the Police under panchnama (Exh.86). PW-10 Sayyed Sajid claims to have purchased autorickshaw bearing registration No. MH-05-6354 from accused Nos. 1 and 2. The agreement of sale was executed by accused No. 1 and produced at Exh.130. The version of PW-Sayyed Sajid corroborated seizure panchnama (Exh.87). So also, PW-11 Sayyed Abdul Razzak purchased autorickshaw bearing No. MH-05-8389 from accused No. 1 Issaq for Rs. 16,000/-and had paid Rs. 10,000/- to him. He categorically states that accused Nos. 1 to 3 had assured him to provide relevant documents for transfer of the autorickshaw in his name at subsequent stage and thereafter he was to pay balance amount of Rs. 6,000/- to them. The autorickshaw was seized from him under seizure panchanama (Exh.91).
The version of PW-12 Shaikh Ismail purports to show that he purchased a Hero Honda (Splendor) motorcycle from the accused Nos. 1 and 3. That was seized by the Police under a seizure panchnama (Exh.92). The PW-13 Santosh claims to have purchased autorickshaw bearing registration No. MH-05-1073 from accused Nos. 1 and 3 for Rs. 18,000/-. He had paid only Rs. 10,000/- to the accused No. 3. That autorickshaw was seized by the Police under panchnama (Exh.90). By an agreement (Exh.135), PW-14 Sayyed Shakil claims to have agreed to purchase the autorickshaw bearing registration No. MH-05-7435 from the accused Nos. 1 and 3. His version purports to show that on 15.5.2006, the said autorickshaw was seized by the Police. The version of PW-15 Shaikh Habib reveals that an autorickshaw bearing registration No. MH-04-9634 was purchased by him from the accused Nos. 1 to 3. That autorickshaw was seized by the Police under a panchanama (Exh.89). All these witnesses are inhabitants of Shevgaon (District Ahmednagar). They were not found to possess any document of ownership with them.
16. The version of PW-4 Shaikh Iqbal purports to show that in the year 2006, he had purchased an autorickshaw bearing registration No. 7494 from accused No. 5 - Raj Mohammad. It was agreed between them that price of the autorickshaw would be Rs. 16,000/-. He paid an amount of Rs. 10,000/- to the accused No. 5 - Raj Mohammad. The remaining amount was to be paid after necessary documents, which the accused No. 5 - Raj Mohammad agreed to provide. The autorickshaw was subsequently seized by the Police under a panchnama (Exh.75). Thus, PW-Shaikh Iqbal supports the case as against accused No. 5 -Raj Mohammad. In this context, PW-26 - Mohammad Akbar also supports the prosecution case against the accused No. 5 - Raj Mohammad. His version purports to show that he had purchased one autorickshaw from accused No. 5 -Raj Mohammad for consideration of Rs. 18,000/-. He had paid Rs. 12,000/- to accused No. -Raj Mohammad. That autorickshaw was seized by the Police under panchnama (Exh.149). There hardly appears any reason for these two witnesses to implicate accused No. 5 - Raj Mohammad as vendor of the autorickshaws purchased by them. Both the witnesses were not given any document of transfer or that or ownership. Needless to say, accused No. 5 Raj Mohammad had reason to believe that the autorickshaws were stolen properties.
17. There are similar versions of PW-16 Siraj, PW-17 Santosh, PW-19 Raju, PW-20 Sadashiv, PW-21 Gautam, PW-22 Fattumal, PW-23 Hasnoddin, PW-24 Shafique, PW-25 Iqbal, PW-28 Babasaheb, PW32 Raghunath, PW-33 Malik, PW-34 Sunil, PW-35 Mustafa, PW-36 Sultan, PW-37 Shaikh Riyaz, PW-39 Mohammad Yusuf, PW-40 Asif, PW-41 Shakil, PW-42 Sunil, PW-46 Bhimrao, PW-47 Deelip, PW-48 Yusuf, PW-49 Altaf, PW-50 Zakir, PW-51 Deelip, PW-52 Rameshwar, PW-53 Shaikh Mansoor, PW-56 Shaikh Aslam, PW-57 Ashok, PW-58 Shaikh Saleem, PW-59 Sugandha, PW-62 Vitthal, PW-63 Altaf and PW-73 Nasir regarding their purchases of autorickshaws, which were seized by Police. All of them corroborate the prosecution case as regards sale of the autorickshaws to them by the accused Nos. 1 to 3. There is ample evidence on record to prove that the accused Nos. 1 to 3 misrepresented that they had purchased the autorickshaws in question in a Bank auction and, therefore, the necessary documents, like R.C. book, road tax receipt etc. would be provided lateron. A part of the agreed price used to be kept unpaid with a view that the gullible purchasers should believe such canard. The versions of PW-7 Azam, PW-29 Shankar, PW-30 Ashok and PW-38 Rafique are of no much avail to either side. They are purchasers of autorickshaws. However, they turned hostile. It is only proved that autorickshaws were purchased from each of them. The version of PW-6 Sanjay (P.C.B. No. 567) shows that one of the autorickshaw was fetched from traffic branch of Nanded. This part of the evidence is also of no much significance and relevance.
18. The versions of PW-44 Vijay, PW-45 Mahesh, PW-54 Shivaji, PW-55 Mirza, PW-60 Pralhad, PW-61 Shivaji, PW-64 Mohammad Iqbal, PW-65 Manohar, PW-66 Sadashiv and PW-67 Riyaz Ahmed, PW-68 Kishor and PW-69 Dattatraya would show that they are the registered owners of the autorickshaws, which were stolen from places like Kalyan, Bhivandi and Thane. They identified the autorickshaws as stolen properties. They were given custody of the autorickshaws claimed by them during the period of investigation or trial. Thus, some of the autorickshaws recovered by the Police, from various purchasers, were in fact, found to be stolen properties.
19. The recovery panchnama (Exh.39) is corroborated by PW-18 Bhanudas. The recovery panchnama (Exh.108) is corroborated by PW-43 Uttam. The details of investigation carried out by PW-Praikash Boke, Head Constable, PW-73 P.I. Anil Patil and PW-74 P.I. Surendra lend assurance to the case of prosecution. A bulky evidence is recorded by the learned Sessions Judge in regard to various recoveries of the autorickshaws.
20. There appears no serious error committed by the learned Sessions Judge while appreciating evidence of the prosecution as regards a large number of sale transactions of autorickshaws by the accused Nos. 1 to 3 as well as the accused Nos. 5 and 6. However, there is hardly any evidence appearing against accused No. 4 - Munna Khan. He was found negotiating terms of the sale with accused Nos. 1 and 2 on 8.5.2006 near a push-cart of soft drinks in Sane Chowk (Square) at Parbhani. That does not mean his complicity in the disposal of stolen properties. For, the terms of so-called sale were yet to be settled. Accused No. 4 - Munna Khan is a rickshaw driver. There is nothing on record to show that he had seen the two autorickshaws parked at Khandoba Bazar prior to alleged talks of negotiations. In other words, there is no iota of evidence to infer that he dishonestly agreed to purchase the autorickshaws though had knowledge that the same were stolen properties. Hence, the learned Sessions Judge committed patent error while convicting the accused No. 4 -Munna Khan for offence punishable u/s 414 of the Indian Penal Code.
21. So far as the other five accused are concerned, there is satisfactory evidence on record to show that they had reason to believe that the autorickshaws in question were stolen properties. They alienated the autorickshaws by making misrepresentation that necessary documents would be made available afterwards because the vehicles were purchased in auction sales held by the Banks. Obviously, the necessary ingredients of Section 414 of the Indian Penal Code are duly established against them. I am in general agreement with the reasoning of the learned Sessions Judge in so far as finding of guilt against the accused Nos. 1 to 3, 5 and 6 is concerned. The appeals preferred by them are without merits.
22. In the result, the Criminal Appeal No. 497 of 2007 and Criminal Appeal No. 485 of 2007 are dismissed. The impugned Judgment of conviction and sentence rendered against the appellants (original accused Nos. 1 to 3, 5 and 6) in Sessions Trial No. 1/2007 for offence punishable u/s 414 of the I.P.C. is maintained. The accused Nos. 5 and 6 shall surrender to undergo the sentence awarded to each of them within 10 (ten) days from the receipt of this order.
23. The Criminal Appeal No. 484 of 2007 filed by appellant -Munna Khan (original accused No. 4) is allowed. The impugned Judgment of conviction and sentence rendered by the learned Sessions Judge in Sessions Trial No. 1/2007 against him is set aside.
The fine amount paid by him, if any, be refunded to him. The bail bonds of appellant -Munna Khan (original accused No. 4) be deemed as cancelled.
