Saturday, 21 August 2021

Whether the court can convict an accused for an offence of being a habitual offender based on his confession even if he is not convicted twice for a crime U/S 411 of IPC?

  I do not agree with the submission made by the learned counsel

for the appellant that despite the confession of appellant, learned trial court should have asked for two judgments in which appellant would have been convicted under Section 411 I.P.C. because confession made by the accused, shall be taken as a whole. It cannot be in parts because it was made regarding same occurrence and he made confession with his own freewill and in his statement under Section 313 Cr.P.C., in question no.6 it was specifically put before the appellant as to whether he habitually used to deal in stolen goods. Appellant did not deny this question and in question no. 11, he also said that trial was held against him on account of commission of offences by him. It is important to mention that offences committed by the appellant which he confessed include offence under Section 413 I.P.C. also. {Para 18}

19. After confession made by the appellant, no other evidence was required to convict him. The confession regarding other offences under Sections 177, 171, 419, 417 and 411 I.P.C. is not challenged by appellant. Hence, when conviction is made as a whole regarding any occurrence or set of occurrences, it shall be taken as a whole. It cannot be fragmented into pieces and accused cannot at later stage claim that confessional statement made by him, should be considered regarding some of the offences only.

20. P.W.-2, Abhay Pandey, Head Constable was produced by the

prosecution before the learned trial court as arresting witness, who

said in his statement that on 12.03.2016 he along with other members

of police party of P.S. G.R.P. Gorakhpur was present at platform

no.2A. At the time of checking, accused-appellant was arrested by the police along with other co-accused persons and two stolen mobile  phones, one stolen motorcycle were recovered from his possession apart from Alprazolam powder. It was also stated by this witness that at the time of arrest, appellant was having a fake identity card of U.P. Police and was wearing fake uniform of U.P. Police. Above statement  was made by P.W.-2 in his examination-in-chief and it is very pertinent to note that P.W.-2 was not cross-examined by the accusedappellant, rather he made the confession of his guilt under Section 313 Cr.P.C. Hence, in my opinion, confessional statement of accusedappellant cannot be treated as partial and applicable to some of the offences only.

21. In view of the above, I am unable to agree with the argument of learned counsel for the appellant that for convicting the accused under Section 413 I.P.C. it is mandatory particularly after confession, that accused should have already been convicted under Section 411 I.P.C. twice or more than twice because accused appellant has himself made confession before the learned trial court that he was habitual in dealing with the stolen properties. It is not the case of the appellant nor he argued that accused did not make confession with freewill.

ALLAHABAD HIGH COURT


Case :- CRIMINAL APPEAL No. - 1534 of 2020

Vinod Mali   Vs  State of U.P.

Coram: Hon'ble Ajai Tyagi,J.

Delivered on :- 19.08.2021

1. Heard learned counsel for the appellant and learned A.G.A. for

the respondent.

2. This criminal appeal has been preferred by the appellant-Vinod

Mali, who was convicted and sentenced in S.T. No.503 of 2019 (State

Vs. Vinod Mali), arising out of Case Crime No.137 of 2016,

registered under Sections 177, 171, 419, 417, 411 and 413 I.P.C. at

Police Station G.R.P., District Gorakhpur, in which the accusedappellant

was convicted for six months under Section 177 I.P.C., for

three months under Section 171 I.P.C., for two years under Section

419 I.P.C., for one year under Section 417 I.P.C., for two years under

Section 411 I.P.C. and for six years under Section 413 I.P.C.

alongwith fine in all above offences and imprisonment for default of

fine.

3. The relevant facts of the case are that on 12.03.2016 police

party of Police Station G.R.P., District Gorakhpur was checking at the

railway station and platform, when they were present at platform

no.2, the informer informed the police party that some persons were

standing near the gate no.1; they were suspected and were talking

about theft and robbery. Police party went to that place and found that

two persons were sitting on different motorcycles and others were

standing there; one person was sitting on motorcycle no. U.P. 53 AS

7764 in police uniform; when he was inquired he told his name as

Vinod Mali S/o Late Phooldev Mali, R/o Loharpurwa, P.S.

Kaimpiarganj, permanent resident of village Pandit Purwa, P.S.

Dohari Ghat, District Mau and he told that he was a constable and

posted in Kotwali Maharajganj. He was asked to produce identity

card, which was produced by him; prima facie identity card was

looking suspicious, hence, accused Vinod Mali was asked to tell the

name of S.P., Maharajganj but he could not tell name of S.P.,

Maharajganj and after that he was asked to tell the name of Inspector

Kotwali, Maharajganj but he also could not tell the name of Inspector,

Kotwali Maharajganj; when he was strictly inquired, he told that he

was not a constable but rather he has running a gang of which he was

a leader and other persons are his gang members. They used to make

theft or robbery of passengers travelling in train and by that, they earn

the bread and butter of their family. Vinod Mali also told the police

that if some member of his gang is caught by the people, he helps

them in the name of being in the police department. All the persons

standing there, were arrested by the police and they confessed that

they were having Alprazolam powder, stolen motorcycles and stolen

mobile phones etc.

4. From the possession of accused-appellant 120 grams of

Alprazolam powder, two stolen mobile phones, one stolen motorcycle

were recovered and a fake identity card of U.P. Police was also

recovered at the time of arrest. The police uniform of appellant-Vinod

Mali was also found fake.

5. Alongwith appellant-accused, other co-accused persons

Santosh, Chauhan, Nand Lal @ Nandu Chauhan, Ram Darash Nishad

and Ram Kishore @ Raj Kishore were also arrested and from their

possession also Alprazolam powder, stolen mobile phones, stolen

tablets and stolen motorcycle were recovered. As per the recovery

memo, all the above persons were booked under Section 8/21/22 of

Narcotic Drugs and Psychotropic Substance Act, 1985 and also under

Sections 411, 413, 414, 417, 419 and 171 I.P.C. All the recovered

articles were sealed on the spot and sample seal was prepared.


Recovery memo was also prepared on the spot and the cases were

registered against above accused persons.

6. The learned trial court has commenced the trial of above

accused persons after framing different charges against them and after

examination of P.W.-1 and P.W.-2, the case file of appellant-Vinod

Mali was separated from other co-accused persons.

7. The learned trial court framed charges under Sections 177, 171,

419, 417, 411 and 413 I.P.C. against the accused-appellant and he was

convicted for all the above offences. Aggrieved by the impugned

judgment and order of learned trial court, the appellant preferred this

appeal.

8. Learned counsel for the accused-appellant said that as per the

prosecution case, 120 grams of Alprazolam powder was said to be

recovered from the possession of the applicant for which separate

case under relevant Sections of N.D.P.S. Act was registered and in

this present case, two stolen mobile phones and one stolen motorcycle

were said to be recovered from the possession of accused-appellant.

Apart from that it is said that he was having fake identity card of U.P.

Police and wearing fake uniform of U.P. Police; posing himself as

police constable and on making inquiry by the police of G.R.P.,

Gorakhpur, he falsely told them that he was a police constable and

posted in Kotwali, District Maharajganj.

9. Learned counsel for the appellant submitted that P.W.-1,

constable Ram Pravesh Bharti and P.W.-2 Head Constable Abhay

Pandey were examined before the learned trial court and at that time

accused-appellant moved a confession application before the learned

trial court and his file was separated. In his statement under Section

313 Cr.P.C. accused-appellant confessed his guilt and on the basis of

that confession, learned trial court held him guilty for all the charges

framed against him and convicted.

10. Learned counsel for the appellant also submitted that apart

from the conviction of offences under Sections 177, 171, 419, 417

and 411 I.P.C., the accused-appellant was also convicted and

sentenced under Section 413 I.P.C. It is next submitted that he had

nothing to say regarding the conviction and sentence of all the other

offences except offence under Section 413 I.P.C. because Section 413I.P.C. relates to the habitual offender.

11. Learned counsel for the appellant argued that in its impugned

judgment, learned trial court has given finding regarding the appellant

being habitual offender only in one line by saying that accused was

habitual offender used to deal in stolen property while for being

habitual, the accused should have been convicted twice or more than

twice under Section 411 I.P.C. No person can become habitual by a

single act. Learned counsel for the appellant in this regard relied upon

the case law of Delhi High Court Ajay Sethi Vs. State 2017 (4) JCC

2495 by saying that in this case Delhi High Court has held that for

being habitual, the accused should have been convicted twice or more

than twice under Section 411 I.P.C. Learned counsel also submitted

that in above said judgment, Delhi High Court has followed the case

of Banne Singh @ Pahalwan Vs. State of Rajasthan, 2014 SCC

Online Raj 169. In this case Rajasthan High Court has also held that

for being habitual, a person should have been convicted twice or more than twice under Section 411 I.P.C.

12. Learned counsel for the appellant has submitted that if the

appellant had made confession before the learned trial court under

Section 413 I.P.C., even then he could not have been held guilty for

that offence rather at that time learned lower court should have asked

for at least two judgments of conviction of accused-appellant under

Section 411 I.P.C. There is no evidence on record that accused was

ever convicted for the offence under Sections 411 I.P.C.

13. Per contra, learned A.G.A. has submitted that accused himself

made confession of his offences with freewill before learned trial

court and there is nothing under Section 413 I.P.C. that accused

should have been convicted more than once for offence under Section

411 I.P.C. There is no such requirement in the Section 413 I.P.C.

Learned counsel for the appellant made rival submission in this regard

that judicial interpretation of Section 413 I.P.C. is there through the

judgment of Ajay Sethi Vs. State (Supra).

14. I have perused the judgment of Ajay Sethi Vs. State (Supra),

which was referred by learned counsel for the appellant. In this case,

it is held by Delhi High Court as under:-

“49. Something more is required to establish that the offender is

in the habit of dealing with or receiving stolen property. Since

the offence under Section 413 I.P.C. is inter-related with and is

an aggravated form of Section 411 I.P.C., the State would have

to prove and establish that the offender was convicted

repeatedly, twice or more than twice, for offence under Section

411 I.P.C. so as to establish beyond a reasonable doubt that he

is in the habit of dealing with or receiving stolen property.

Therefore, the conviction under Section 413 I.P.C. is based on

repeated convictions for offence under Section 411 I.P.C. Due to

previous conviction, a punishment of different kind is prescribed

in Section 413 I.P.C. which the accused is required to undergo.

50. Hence, while prosecuting a person for offence under Section

413 I.P.C., the prosecution has to prove the following factors:

firstly, the property in question has been stolen from a place.

Thus, the prosecution must bring the property within the ambit

of Section 410 I.P.C. within the definition of stolen property.

Secondly, the offender has been dealing with or receiving stolen

property. Thirdly, the offender knew or had a reason to believe

the property to be stolen. Fourthly, he has been repeatedly

convicted, i.e. twice or more than twice, of offence under

Section 411 I.P.C. It is only after the prosecution establishes

these factors that the court would be legally justified in

concluding that the offender is habitually dealing with or

receiving stolen property and in imposing the punishment as

prescribed by Section 413 I.P.C.”

15. These are the above observations made by the Rajasthan High

Court, which were followed by Delhi High Court in above said

judgment but the facts of above cases decided by Delhi High Court

and Rajasthan High Court do not apply to this case because in the

cases of Delhi High Court and Rajasthan High Court, several

FIRs/Charge Sheets were pending against the concerned accused

persons and Delhi and Rajasthan High Court held that concerned

accused has not been yet convicted under Section 411 I.P.C. In the

concerned case of Banne Singh @ Pahalwan Vs. State of Rajasthan

High Court (Supra), Rajasthan High Court said that appellant was

involved in six different FIRs “undoubtedly so far the appellant has

been convicted only by the learned trial court at Jaipur. He continues

to face trials and other FIRs mentioned above, hence prior to his

conviction by the learned Judge, the appellant was never convicted

for offence under Section 411 I.P.C.” In the case before Delhi High

Court in Ajai Sethi Vs. State (Supra), there were also several FIRs

pending against the accused-appellant and Delhi High Court held that

in order to convict a person under Section 413 I.P.C., the most

important ingredient is that a person must be a habitual offender or

receiver of stolen goods. He must be a person who is in the habit of

receiving stolen properties and this Section cannot be applied in case

of a single offence. The element of repetition is mandatory. Merely on the basis of pendency of FIRs or a person facing trial, a conviction under Section 413 I.P.C. would be unjustifiable in absence of accused previous conviction(s).

16. In this present case, facts are entirely different from the facts

which were before the Delhi High Court and Rajasthan High Court

because in this case appellant-accused was held guilty and sentenced

by the trial court on the basis of his confessional statement made

before the learned trial court. Although, the learned counsel for the

appellant has argued that learned trial court could not hold him guilty

on the basis of confession of appellant. Perusal of record shows that

accused-appellant was arrested on 12.03.2016 along with other

accused persons at railway station Gorakhpur and during trial,

prosecution examined two witnesses as P.W.-1 and P.W.-2.

17. P.W.-1 is formal witness. Accused did not make any crossexamination of P.W.-2 and confessed his guilt in his statement under Section 313 Cr.P.C.

18. I do not agree with the submission made by the learned counsel

for the appellant that despite the confession of appellant, learned trial

court should have asked for two judgments in which appellant would

have been convicted under Section 411 I.P.C. because confession

made by the accused, shall be taken as a whole. It cannot be in parts

because it was made regarding same occurrence and he made

confession with his own freewill and in his statement under Section

313 Cr.P.C., in question no.6 it was specifically put before the

appellant as to whether he habitually used to deal in stolen goods.

Appellant did not deny this question and in question no. 11, he also

said that trial was held against him on account of commission of

offences by him. It is important to mention that offences committed

by the appellant which he confessed include offence under Section

413 I.P.C. also.

19. After confession made by the appellant, no other evidence was

required to convict him. The confession regarding other offences

under Sections 177, 171, 419, 417 and 411 I.P.C. is not challenged by

appellant. Hence, when conviction is made as a whole regarding any

occurrence or set of occurrences, it shall be taken as a whole. It

cannot be fragmented into pieces and accused cannot at later stage

claim that confessional statement made by him, should be considered

regarding some of the offences only.

20. P.W.-2, Abhay Pandey, Head Constable was produced by the

prosecution before the learned trial court as arresting witness, who

said in his statement that on 12.03.2016 he along with other members

of police party of P.S. G.R.P. Gorakhpur was present at platform

no.2A. At the time of checking, accused-appellant was arrested by the

police along with other co-accused persons and two stolen mobile

phones, one stolen motorcycle were recovered from his possession

apart from Alprazolam powder. It was also stated by this witness that at the time of arrest, appellant was having a fake identity card of U.P. Police and was wearing fake uniform of U.P. Police. Above statement  was made by P.W.-2 in his examination-in-chief and it is very pertinent to note that P.W.-2 was not cross-examined by the accusedappellant, rather he made the confession of his guilt under Section 313 Cr.P.C. Hence, in my opinion, confessional statement of accusedappellant cannot be treated as partial and applicable to some of the offences only.

21. In view of the above, I am unable to agree with the argument of

learned counsel for the appellant that for convicting the accused under Section 413 I.P.C. it is mandatory particularly after confession, that accused should have already been convicted under Section 411 I.P.C. twice or more than twice because accused appellant has himself made confession before the learned trial court that he was habitual in dealing with the stolen properties. It is not the case of the appellant nor he argued that accused did not make confession with freewill.

22. No other argument raised by the appellant.

23. I find no merit in this appeal and the same is liable to be

dismissed.

24. The appeal is accordingly, dismissed.

(Ajai Tyagi, J.)

Order Date :-19.8.2021


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