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2026 DAILYLAW 4608 (ALL)

Ram Nias v. State

2026-03-28

Tarun Saxena

body2026
JUDGMENT : TARUN SAXENA, J. 1. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 2. This criminal appeal has been preferred by the accused-appellant against the judgment and order dated 21.12.1988 passed by the Special Judge, Dacoity Affected Area (DAA)/ 4th Additional Sessions Judge, Eta in Special Session Trial No. 567 of 1984, whereby the trial court convicted the appellant under Section 411 I.P.C. and sentenced him to undergo rigorous imprisonment of two years. 3. In brief, the prosecution story before the trial court was that accused appellant Ram Niwas along with three other persons on 02.03.1984 at some time after 4:00 P.M., in the local territory of village Yaqootganj within the limits of Police Station Sahawar, District Etah committed robbery and looted a tractor 'Escort' along with a trolley from the possession of Natthu son of Ram Chandra, who is the complainant of the case. That tractor was in joint ownership of one Mahendra Pal Singh and Prem Singh who were the residents of town and Police Station Bilsi, District Badaun. Later on 30.03.1984 in the local territory of village Nagla Ulfat, within the circle of Police Station Soron, one of the accused namely, Natthu Ram was found in possession of a wheel of a tractor, knowingly or having reason to believe that the aforesaid property was stolen property, and on 04.06.1984, at about 3:30 P.M., in the jungle of Buri Ganga, near the Nala, within the limits of village Tali, Police Station Soron, a tractor and a trolley were also recovered from the possession of the accused persons. An F.I.R. has been registered on 02.03.1984 at about 8:45 P.M. at the police station Sahawar, by the complainant Natthu alleging therein that he was the driver of Mahendra Pal and Prem Singh and he used to drive the tractor. On 02.03.1984, one unknown person took the tractor on rent for the purpose of transportation of the potatoes from Mahendra Pal Singh and Prem Singh. Thereafter, three persons also sat with those unknown persons in village Nagariya on the pretext that they were labourers. When they all reached near village Yaqootganj, on the road, the aforesaid persons put down the complainant in the hillocks of sand by tying his hands and foot and went away taking the said tractor. 4. Thereafter, three persons also sat with those unknown persons in village Nagariya on the pretext that they were labourers. When they all reached near village Yaqootganj, on the road, the aforesaid persons put down the complainant in the hillocks of sand by tying his hands and foot and went away taking the said tractor. 4. The investigation of this case was entrusted to S.I. Sri Lal Singh, Police Station Sahawar. He reached the place of occurrence and recorded the statements of witnesses. During investigation, the stolen tractor was recovered on 30.03.1984 from the jungle within the limits of Nagla Ulfat, Police Station Soron, and a recovery memo was prepared in this regard. A wheel of the said tractor was recovered from the house of Natthu Ram and its recovery memo was also prepared during the investigation. On 04.06.1984, accused Ram Niwas, who is the appellant in this case was arrested by the police of Police Station Sahawar in another Crime No. 112 of 1984, under Section 25 of Arms Act and he confessed about the robbery of the said tractor and assured that he could get the trolley of the tractor recovered. The said trolley was recovered on 04.06.1984 at about 3:50 P.M. on pointing out of Ram Niwas near the Nala of Buri Ganga in the local limits of village Bali and a recovery memo was prepared by the Investigating Officer. The Investigating Officer also inspected the place of the recovery of the stolen tractor and prepared its site plan. 5. The charges under Sections 392 and 411 I.P.C. were framed against the accused appellant after submission of the charge-sheet. Accused denied all the charges and claimed to be tried. In his statement recorded under Section 313 Cr.P.C., the accused person stated that he was falsely implicated in this case due to enmity and village party bandi. 6. Learned trial court after examining the entire evidence on record recorded the conviction of accused Ram Niwas under Section 411 I.P.C. while acquitted him of the charge under Section 392 I.P.C. 7. Submission of learned counsel for the appellant is that the trial court failed to appreciate the evidence in correct perspective and also failed to appreciate the fact that there were several lacuna found in the prosecution story especially the fact that stolen property i.e. trolley was never identified by the real owner of the stolen property. Submission of learned counsel for the appellant is that the trial court failed to appreciate the evidence in correct perspective and also failed to appreciate the fact that there were several lacuna found in the prosecution story especially the fact that stolen property i.e. trolley was never identified by the real owner of the stolen property. It is also submitted that the sole evidence against the accused-appellant is that of recovery on the pointing out of the appellant by the police authorities and since the said looted property was recovered from an open place which was not in the exclusive possession of the accused. It cannot be said that accused appellant was in possession of the stolen property at that particular time when the recovery was made. 8. Per contra, learned AGA for the State submits that the trial court correctly appreciated the prosecution evidence available on record and correctly presumed that at the time of recovery of the stolen property the accused-appellant was in possession of the stolen property. 9. This Court looked into the entire evidence available on record. P.W.-1 Natthu stated in his testimony that he was the driver of the tractor belonging to three persons Mahendra Singh, Ram Prakash and Jai Singh, who were joint owners of the said tractor. On the fateful day, he was sent by the owner of the tractor to transport the potatoes with an unknown man. When they reached Yaqootganj, four unknown men came on the spot and took away the tractor at about 7:30 P.M. He lodged the F.I.R. in the concerned police station regarding the incident. P.W.-2 Shivraj Singh stated in his testimony that he saw Nathu alongwith four other men on the tractor, when he reached near the tractor, all the accused went away from the spot. The tractor was seen in the field of one Mathura Prasad. The police recovered a wheel of the said tractor from the house of the Nathu in his person. P.W.-3 Bhagwan has stated in his testimony that on the relevant day at about 9:00 P.M. in the night, he was present in the field of Ompal. There was a tractor carrying four persons, he could not identify who were the persons. P.W.-4 Mahendra Singh stated in his testimony that police recovered the trolley in his present on the relevant day on pointing out of accused Ram Nias near Buri Ganga. There was a tractor carrying four persons, he could not identify who were the persons. P.W.-4 Mahendra Singh stated in his testimony that police recovered the trolley in his present on the relevant day on pointing out of accused Ram Nias near Buri Ganga. He made his signature on the recovery memo. In his cross-examination, this witness admitted that he could not remember the colour of the said trolley. 10. The owner of the said stolen property, namely, Ram Prakash was examined as P.W.-5 during trial, who stated in his testimony that he was the owner of the said tractor and trolley. The said tractor and trolley were once stolen, later on the Police recovered the said property from the accused person and this property was returned to him on furnishing sureties to produce it before the trial court. He admitted in his cross- examination, during trial that since the said tractor and trolley were in very poor condition, he could not bring them before the court during trial. He also admitted that the said recovered stolen property was never identified by him during investigation. C.W.-1, Lal Singh, the Investigating Officer of the Case, in his testimony stated that he recovered the trolley during investigation on 04.06.1984 on the pointing out of the accused Ram Niwas. In his testimony he admitted that the said trolley was recovered from an open field. 11. On perusal of the evidence available on record, it is evident that the trial court recorded the conviction of the accused-appellant on the basis of recovery of the stolen property on the pointing out of the accused in presence of P.W.-4 during the course of the investigation. 12. In the leading case of Trimbak Vs. The State of Madhya Pradesh ; AIR 1954 SC 39 Hon'ble Apex Court held that in order to bring hold the guilt of a person under Section 411 I.P.C. it is necessary to prove the following ingredients:- (i) that the stolen property was in the possession of the accused, (ii) that some person other than the accused had possession of the property before the accused got possession of it, and (iii) that the accused had knowledge that the property was stolen property. 13. This Court in the leading case of Rajjaua Vs. 13. This Court in the leading case of Rajjaua Vs. The State ; AIR 1959 All 718 while explaining the ingredient no.(ii) of the aforesaid mentioned ingredients held that in the case of Trimbak (Supra) while pointing out the second ingredient of Section 411 I.P.C. Hon'ble Apex Court was only reiterating the well recognised distinction between a receiver of the stolen property and the thief himself. When the thief removes the stolen property from the possession of its owner and takes it into his own possession, he not only commits theft but is also in possession of stolen property knowing it to be stolen. He cannot, however, be convicted of both the offences. If he is the 'thief' he possesses the stolen property in his capacity as a thief, and not as a receiver. It has, therefore, been held the same person cannot be convicted of theft as well as of receiving stolen property knowing it to be stolen. In Trimbak (Supra) case it was held that since none of the aforesaid three essential ingredients of the offences had been proved as the field from where the stolen property was recovered, was an open one and accessible to all and sundry, it was found to be difficult to hold positively that the accused was in possession of the stolen property. Hon'ble Apex Court observed that on the evidence available on record, it cannot be held that the accused Trimbak was the thief and as there was no evidence that the stolen property was in possession of the someone else before the appellant got it, he cannot be held guilty of receiving the stolen property punishable under Section 411 I.P.C. 14. In the case of Rajjaua (Supra) this Court held that in every case under Section 411 I.P.C. two facts have to be established by direct evidence, which reads as below:- (i) that the theft was committed and certain article was stolen; (ii) that the stolen article was recovered from the possession of the accused; These facts cannot be presumed if these two facts are established and the recovery from the possession of the accused is a recent one, it will be open to the Court to presume under illustration (a) to Section 114 of the Indian Evidence Act, 1872 that the accused is either the thief or a receiver of stolen property. The said presumption is, however, a discretionary one and may not be available at all in certain cases, where in the circumstances of the case the recovery cannot be held to have been made soon after the theft. 15. In light of these two important pronouncements one by Hon'ble Apex Court in the case of Trimbak (Supra) and another by this Court in the case of Rajjaua (Supra), this Court has to examine whether in the present case the necessary ingredients of Section 411 I.P.C. as enunciated by the Hon'ble Court have been proved by the prosecution through the evidence available on record. 16. For the factum of alleged recovery of stolen property on the pointing out of the accused-appellant during the course of the investigation two prosecution witnesses have been examined i.e. Mahendra Singh (P.W.-4) and S.I. Sri Lal Singh (C.W.-1), the Investigating Officer who conducted the investigation of the case. 17. From the perusal of the statement of P.W.-4 Mahendra Singh, it is evident that the stolen property was recovered from an open place/ field near the river Buri Ganga. It is worth to mention that P.W.-4 in his cross- examination could not even tell the colour of the said stolen property i.e. trolley. He has stated that the place of recovery belongs to villagers of Tali Village and native people gathered there at the time of recovery. While Sri Lal Singh (C.W.-1) in his statement categorically stated that the said recovery of the stolen property (trolley) on the pointing out of the accused-appellant was made on 04.06.1984 while the theft of the said stolen property is said to have been committed on 02.03.1984. This witness also stated that the recovery memo was prepared during the said recovery which is exhibited as Exh. Ka-3 and a copy of the said recovery memo was given to the accused-appellant Ram Niwas. Now in light of the statements deposed by these two witnesses, it is to be examined whether the prosecution has been able to prove the fact that the stolen property at the relevant point in time was in possession of the accused-appellant. 18. From perusal of the recovery memo as well as the statements of P.W.- 4 and C.W.-1 it is evident that the said recovery was made from an open place/ field accessible to all and sundry. 18. From perusal of the recovery memo as well as the statements of P.W.- 4 and C.W.-1 it is evident that the said recovery was made from an open place/ field accessible to all and sundry. Thus it is very difficult to hold positively that the accused-appellant was in possession of the stolen property at the time of recovery as held in the case of Trimbak (Supra) by Hon'ble Apex Court. Again it is evident that a copy of the recovery memo was provided to accused-appellant at the time of preparation of the said recovery memo (Exh. Ka-3), however, in the recovery memo (Exh. Ka-3) there was no sign of the accused-appellant nor any thumb impression of the accused-appellant was found. The only independent witness of the said recovery i.e. P.W.-4 was examined during the trial, who was not a native person of that particular place or village from where the said recovery was made. A native villager of the place of the recovery was also made a witness by the prosecution i.e. Raghunath but he was not examined in support of the prosecution case. P.W.-4 Mahendra Singh could not tell the essential descriptions and other whereabouts of the stolen property i.e. tractor trolley, so the recovery of stolen property on the pointing out of the accused-appellant itself seems to be highly doubtful and this Court is of the considered opinion that from the evidence on record, it has not been proved beyond reasonable doubt that at the relevant point in time of recovery the stolen property was in actual possession of the accused Ram Niwas. It is worth to mention that the true owner of the said property namely, Ram Prakash has been examined as P.W.-5 and from the testimony of this witness it is evident that the said recovered stolen property was never produced before the trial court nor it was identified by the true owner of the said property during the course of investigation or during trial. 19. Now in light of the aforementioned leading cases it has to be examined whether the recovery made on the pointing out of the accused- appellant was a recent one so that the benefit of presumption under illustration (a) to Section 114 of the Indian Evidence Act, 1872 can be drawn in favour of the prosecution. 20. 19. Now in light of the aforementioned leading cases it has to be examined whether the recovery made on the pointing out of the accused- appellant was a recent one so that the benefit of presumption under illustration (a) to Section 114 of the Indian Evidence Act, 1872 can be drawn in favour of the prosecution. 20. Section 114 of the Indian Evidence Act, 1872 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume:- (a) that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; 21. Now coming to the present case, the said occurrence of theft is said to be on 02.03.1984 while the recovery of stolen property on the pointing out of the accused-appellant was made on 04.06.1984 during investigation after more than three months from the date of incident and in any case it cannot be said to be a recent recovery. The onus to prove all the three ingredients as enunciated in the case of Trimbak (Supra) by Hon’ble Apex Court rests upon prosecution to prevent them by direct evidence. This Court is of the considered opinion that from the evidence on record the prosecution miserably fails to prove these three ingredients beyond reasonable doubt. 22. Thus, for the reasons given above, this appeal deserves to be allowed. The appeal is hereby allowed. The judgment and order dated 21.12.1988 passed by Special Judge, Dacoity Affected Area (DAA)/ 4th Additional Sessions Judge, Eta in Special Session Trial No. 567 of 1984 is hereby set aside and accused-appellant Ram Niwas is hereby acquitted of the charge of Section 411 I.P.C. 23. The appellant is on bail. His bail bonds and sureties are hereby discharged. 24. Let this judgment and order be communicated to the learned trial court concerned for taking necessary actions. 25. Let the original records be sent back to the learned trial court concerned.