JUDGMENT

AMIT SHARMA, J.

1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (‗Cr.P.C.‘) challenges the judgment of conviction and order of sentence dated 22.02.2017 and 28.03.2017, respectively passed by the learned Additional Sessions Judge – 03, Patiala House Courts, New Delhi in Sessions Case No. 118/2015 arising out of FIR No. 228/2015 under Sections 395/34/412 of the Indian Penal Code, 1860 (‗IPC‘) registered at PS Inderpuri. The appellant has been convicted for offence under Section 411 of IPC and sentenced to the period already undergone in custody alongwith a fine of Rs.

500/-.

Background

2. Briefly stated, the facts of the present case, as stated in the impugned judgment, are as under:

i. On the intervening night of 19/20.08.2015, at about 11:00 PM, Anand Kumar, i.e., the complainant (PW-2) and his co-worker Rajesh were waiting in their respective Eco Vans to unload a truck at Village Dasghara, near Todapur Red light, Delhi.

ii. At that time, accused persons, including the appellant, came near them from the side and started beating them. In doing so, they snatched at the mobile phone and purse of the complainant Anand Kumar (PW-2) containing his driving license, PAN Card, Aadhar Card and Rs. 2470/- in cash. They also broke the left side mirror of the Eco Van and ran away.

iii. The present FIR was registered at the instance of Anand Kumar (PW-2)

under Sections 395/34 of the IPC.

iv. The accused persons were apprehended. Rs. 2470/- were recovered from the possession of the appellant vide seizure memo Ex. PW-8/I.

The Eco Van was also seized vide seizure memo Ex. PW-2/F.

v. Upon completion of investigation, chargesheet was filed under Section

395 of the IPC.

vi. Vide order dated 04.12.2015, the learned ASJ framed charges qua the appellant for offences under Sections 395/34 and 412 of the IPC.

vii. After examining the evidence led by the accused persons as well as the State and after considering their rival contentions, the learned ASJ passed the impugned judgment whereby the accused persons including the appellant were acquitted of offence under Sections 395/34 and 412 of the IPC whilst the latter, i.e., appellant was convicted for offence under Section 411 of the IPC.

3. While convicting the appellant under Section 411 of IPC, the learned ASJ observed and held as under:

―23. However, as per seizure Memo Ex-PW8/1 i.e. of currency notes, have been shown as recovered from accused Mohit. Accused Mohit has failed to give any satisfactory reply u/s 313 Cr.P.C. with regard to the recovery of the said currency notes from him. Besides, he has also failed to lead any defence evidence in this regard. Therefore, it can easily be inferred that he dishonestly received or retained the stolen property, knowing or having reason to believe the same to be stolen property. Therefore, in light of these facts and circumstances of the case, I am of the view that prosecution has successfully proved its case beyond reasonable doubt for the offence u/s 411 IPC against accused Mohit instead of section 412 IPC precisely for the reasons that 5th accused in this case has not been arrested and essential ingredients for the offence u/s 412 IPC the company of 05 or more persons is necessary. Accordingly accused persons namely 1-Mohit, 2. Ajit, 3. Manish, 4. Prakash are acquitted for the offence u/s 395/ 34 IPC and 412 IPC; and Accused Mohit is convicted for the offence u/s 411 IPC.‖

Submissions on behalf of the Appellant/Mohit

4. Learned counsel appearing on behalf of the appellant submitted that the latter has been convicted for offence under Section 411 of the IPC, i.e., for ‗dishonestly receiving stolen property‘, on the ground that he failed to give any reasonable explanation in relation to the possession of the currency notes recovered from him. It was submitted that the burden was on the prosecution to prove that the alleged looted amount of Rs. 2,470/- was recovered from the appellant. It was submitted that the learned ASJ has not