How to ascertain that a person was dealing with stolen property?

 To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the Accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. 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.

{Para 15}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1503 of 2022 

Shiv Kumar   Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

K.M. Joseph and Hrishikesh Roy, JJ.

Author: Hrishikesh Roy, J.

Decided On: 07.09.2022

Citation: MANU/SC/1114/2022

Print Page

Whether Court can convict accused charged under S 302 of IPC for an offence of dishonestly receiving stolen property?

The learned Public Prosecutor relying on sections 221 and 222 of the Code of Criminal Procedure, 1973 pressed for a conviction of the appellant for an offence punishable under section 411 of the Indian Penal Code on the ground that there is acceptable evidence that M.O. 1 and M.O. 7 series were recovered from a place pointed out by the appellant. We may say at once that neither section 221 nor section 222 applies to the facts of the case.

14. The prosecution has no case at the commencement of the trial that the appellant had committed robbery or theft or any other cognate offence. The charge against the appellant is specific and categoric and he has been charged only for an offence punishable under section 302 I.P.C. There are no facts or particulars alleged in the charge showing or indicating that the appellant had committed any offence other than murder. Sub-section (2) of section 221 is controlled by sub-section (1) as is clear from the opening words' "If in such a case" in sub-section (2). While sub-section (1) of section 221 corresponds with section 236; sub-section (2) corresponds with section 237 of the Code of Criminal Procedure, 1898. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect; but sections 221 and 222 of the Code are the two exceptions to the said rule. The omission to frame a separate and specific charge in cases not covered by the above sections will be an incurable irregularity. The framing of a charge is a vital and important part of the trial. The omission to frame a charge is a serious defect which should be vigilantly guarded against, as in some cases it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. It is clear from section 221 that the said section applies only to a case where a single act or series of acts alleged against an accused is of such a nature that it is doubtful which of the several offences, the facts which can be proved will constitute. This doubt or uncertainty, no doubt, arises at the commencement of the trial when the charge has been framed against the appellant. And this doubt can be resolved at the end of the trial. The learned State Prosecutor relied on sub-section (2) of section 222 of the New Code. That also, according to us, has no application to the present case. This section corresponds to section 238 of the Old Code. Relying on sub-section, it is argued that the facts proved in the case constitute a minor offence. The minor offence contemplated under sub-section (2) of this section must be a cognate offence in relation to the main offence. In a case where the minor offence disclosed in the evidence is one, the ingredients of which are entirely different from the main offence with which the accused was charged, he cannot be convicted in the absence of a specific charge for the minor offence proved by invoking the aid of sub-section (2) of section 222 of the Code. The major and minor offences must have the main ingredients in common. An accused charged with one offence which is entirely of a different type from the offence which is proved to have been committed cannot in the absence of a proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. It is with reference to the main major offence referred to in section 222 of the New Code that an offence has to be treated as minor within the meaning of sub-section (2) of that section. We are fortified in our views in this regard by decisions of various High Courts. See Raghunath Singh v. State (1), Kanhaiya Lal v. Feliram (2) Makkhan v. Emperor (3) and Bheemappa v. State of Mysore (4). This apart, the recovery of M.O. 1 and M.O. 7 series has been treated and used by the prosecution only as a piece of evidence in support of the murder charge. In the absence of the charge for robbery or theft, the appellant cannot be convicted under section 411 I.P.C. and in the circumstances of the case, it cannot be said that he has not been prejudiced. The necessary ingredients of the said offence also have not been proved beyond reasonable doubt.

IN THE HIGH COURT OF KERALA

Decided On: 15.06.1977

Vazhambalakkal Thomachan  Vs.   State of Kerala

Hon'ble Judges/Coram:
P. Janaki Amma and S.K. Kader, JJ.

Citation : 1978 CriLJ 498, MANU/KE/0130/1977

Print Page