The central legal point established in the judgment is the requirement to prove the accused's knowledge or strong belief of knowing the articles to have been stolen in the offence of dishonestly receiving stolen property under Section 411 IPC.

JUDGMENT

Sanjay Vashisth, J. - Present appeal has been filed by appellant- Sanjeev Kumar, against the judgment of conviction and order of sentence dated 07.12.2004 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhari, in session case No. 93 of 2002 arising from FIR No. 167 dated 06.04.2002, under Sections 395/397 IPC, registered at Police Station City Yamuna Nagar.

2. However, in the proceedings of the said FIR, five accused i.e. Sanjeev, Mausam, Sudesh, Manoj and Harish were tried, but vide judgment of conviction and order of sentence dated 07.12.2004, only appellant-Sanjeev was convicted for the offence punishable under Section 411IPC and resultantly was sentenced for a period of 01 year as rigorous imprisonment alongwith fine of Rs. 500/- and in default of payment of fine, to further undergo R. I. for 03 months.

3. Appellant was found in possession of partial looted amount of Rs. 13,000/- alongwith photographs and one bag belonged to the complainant. Initially, FIR (ExPj/2) was registered on 05.04.2002 under Section 379 IPC on the version given by the complainant- Joginder Singh. Subsequently, on 15.04.2002, by recording the supplementary statement of complainant Joginder Singh, offence was upgraded to the incident of dacoity and thus, Sections 395/397 IPC were added during investigation with an allegations of using of country made pistol by the accused and of snatching the amount of Rs. 37,000/-.

4. In order to prove its case, prosecution examined 13 witnesses, and thereafter, closed the evidence on the statement of learned public prosecutor.

5. Findings, recorded by the trial Court in paragraph No. 11 is that undoubtedly, in F.I.R., there were no allegations that any of the accused was armed with weapon or used such weapon while committing the offence of theft.

Relevant paragraph No. 11 says as under:

'11. I have considered the rival contention of the parties and I agree with the defence counsel that the only witness of the occurrence namely Joginder Singh PW11 has not been able to identify either of the accused present in the court. As far as offence under section 395IPC is concerned, there are no allegations that either of them has used any weapon or threat while committing the offence of theft. Thus, apart from the fact that no offence U/s 395/397 IPC is made out, it is also not proved beyond doubt that either of the accused were the member of that gang which committed the theft. The point for determination, as such is decided against the prosecution. "

6. PW-2-Manoj Kumar has stated about the factum of recovery of Rs. 13,000/- from the appellant- Sanjeev, Rs. 10,000/- from accused Mausam, Rs. 5000/- from Manoj and Rs. 1000/- from Suresh. Version of said recoveries has been supported in the statement of SI Amar Nath (PW 12) and PW 8-Kishan Singh also.

7. Findings given by learned trial Court in paragraphs No. 14, 15, 16 and 17 are reproduced here-in below:

'14. After considering the rival contentions of the parties, I find that, as far as, identification of the accused by the police party is concerned, the same could not be shattered. I also agree that weighment slips would not ordinarily be kept by the thief and they would only keep the cash with them. However, simply because the complainant has for-got to tell that there were photographs, also cannot be said that there is any improvement in this behalf The amount of Rs. 13,000/- having been recovered from the possession of accused Sanjeev Kumar alias Kalu alongwith bag and one photo. Thus, as far as recovery of Rs.13,000/-from accused Sanjiv Kumar alias Kalu is concerned, it has been proved beyond doubt. However, the recovery of amount from the remaining accused persons does not stand identified and the story of the prosecution that weighing slips were also with it, is not believable.

15. In nut shell, thus, I find that the prosecution has been able to prove that the accused Sanjeev Kumar was found in possession of stolen articles. However, with regard to remainin