Appeal against conviction under Section 411 IPC for possession of a gun allegedly stolen in a 1980 dacoity. The High Court found the seizure doubtful, the identity of the property unproven, and knowledge of theft unsubstantiated, and acquitted the appellant.
Appeal allowed; conviction under Section 411 IPC set aside with acquittal of the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE
Present:
The Hon’ble Justice Ananya Bandyopadhyay
C.R.A. 285 of 1992
Adam Molla
-Vs-
The State of West Bengal
For the Appellant : Mr. Smartajit Sarkar ( Amicus Curiae ) For the State : Ms. Faria Hossain Mr. Saryati Dutta Judgment on : 25.03.2026
Ananya Bandyopadhyay, J.:-
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of the appellant. Tehatta Police Station Case No.22 dated 22.05.1981 under Sections 25/27 of the Arms Act was registered against the appellant. The Investigating Agency submitted charge-sheet being No.142 dated 30.09.84 against the appellant. The prosecution case elicited the actual owner of the alleged gun was PW-5, the elder brother of PW-4, in respect of which PW-5 had valid licence. The alleged gun was recovered from the possession of appellant constituting an offence of dishonestly receiving stolen property.
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offer a full and complete opportunity to the appellant to explain the circumstances appearing against him during the trial.
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iii. PW-4 specifically deposed the miscreants looted articles from her househ on 09.02.1980 and had taken away the licenced gun of her elder brother (PW-5). During the course of investigation, police seized the gun licence of D.B.B.L Gun. The item no.10 in the seizure list was the gun licence in the name of Kamal Prasad Bagchi (PW-5). It further appeared from the seizure list that the number of the licence was 6820 in respect of a D.B.B.L Gun No.13597 manufactured by Indian Ordnance Factory. Such particulars corroborated that PW-5 was the owner of the said gun which was allegedly taken away by the miscreants on 09.02.1980 and the said gun had been allegedly recovered from the possession of the appellant on 22.05.1981. Thus the appellant had committed an offence under Section 411 of the Indian Penal Code which the prosecution had proved beyond reasonable doubt.
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Exbt.-I. On return to the P.S., he initiated a case suo moto case against the appellant which was marked as Exbt.-2. The D.B.B.L. Gun was marked as Mat. Ext.-I as seized by the Nakashipara P.S.
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she took her elder brother, who was assaulted, to the village doctor and rang the police station. Thereafter, the police came to her house at about 11:30 p.m. At her request and instruction, one Ashoke Kumar Maitra, a local boy wrote the complaint in her presence which was marked as Exbt.-4 and her signature was marked as Exbt.-4/1. Police seized the broken lock and other articles and also the gun licence under a seizure list, marked as Exbt.-5 and Exbt.-5/1. The broken articles were subsequently left in her jimma under jimmanama which was marked as Exbt.-6/1.
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informed the Nakashipara P.S. over telephone call and police arrived at his house at about 11:30 p.m. The police seized the gun licence from him and marked as document no.7 for identification. In the year 1981, he received information that his gun was recovered by the Tehatta P.S. When he saw the gun there, it was shortened on both sides. The gun bearing number 13597, was the stolen D.B.B.L. Gun, was marked as Mat. Exbt.-I.
He could not recognize the member of the gang of dacoits either at the time of commission of offence or even in the Test Identification Parade held subsequently.
viii. PW-5 in his cross-examination stated he reported the missing of his licenced gun to D.M. Nadia. He did not hand over any copy of that information to D.M. to the Police Officer at the P.S. The number of the gun was also depicted on the hilt end. He did not receive any written requisition from any Police Officer about recovery of his stolen gun but he could learn that a gun was recovered and he went to Tehatta P.S. He stated to the police that the gun licence was seized from his house subsequently.
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dated 09.02.1980 by drawing up formal F.I.R., which was marked as Exbt.-4/2 and Exbt.-7.
Clerk. He retired from service on 31.12.1991. Licence for one D.B.B.L. Gun bearing no.13597 by Indian Ordinance Factory was issued in the name of Kamal Prosad Bagchi. The original licence was issued from the Nadia Collectorate bearing the seal of the Collectorate and also the signature of the officer concerned. The witness proved document no.7, which was marked as Exbt.-7.
“13. In this case, although recovery of items was made, the prosecution must further establish the essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise be clinching, for the conviction under Section 411IPC.
14. Section 411IPC:
1(2022) 9 SCC 676
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“ 411. Dishonestly receiving stolen property .—Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
The penal section extracted above can be broken down into four segments, namely : Whoever, (i) dishonestly; (ii) receives or retains any stolen property; (iii) knowing; or (iv) having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
15. “Dishonestly” is defined under Section 24IPC as, “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.” The key ingredient for a crime is, of course, mens rea…..
16. 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.
22. In Trimbak v. State of M.P., this Court discussed the essential ingredients for conviction under Section 411IPC. Mehr Chand Mahajan, J., in his erudite opinion rightly observed that in order to bring home the guilt under Section 411IPC, the prosecution must prove : (SCC p. 399, para 5)
“5. … (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it,
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and (3) that the accused had knowledge that the property was stolen property.”
23. When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. This essential element was not established against the appellant to bring home the charge under Section 411IPC against him.
24. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411IPC. The prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, “you speak an infinite deal of nothing.” [ William Shakespeare, Merchant of Venice, Act 1 Scene 1.]
… .
26. In these circumstances where it is not established that the appellant dishonestly received stolen property with the knowledge and belief that the goods found in his possession were stolen, the conviction of the appellant under Section 411IPC, in our view, cannot be sustained. Therefore, applying the test in Trimbak, it must be held that the appellant was erroneously convicted. Therefore, we order the acquittal of the appellant. The appeal stands allowed with this order.”
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OF MADHYA PRADESH2 , has made the following observations: -
“Conviction of Manoj under Section 411IPC
33. Manoj has been convicted under Section 411IPC which is reproduced below:
“ 411. Dishonestly receiving stolen property .—Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
34. The trial court convicted Manoj based on a presumption under Section 114(a) of the Evidence Act, asserting that his possession of stolen articles shortly after the theft, with knowledge of its stolen nature, was adequate enough to hold him guilty under Section 411IPC. As a result, he was held liable for the offence under the said provision. Illustration (a) of Section 114 of the Evidence Act has been noted above but the entire provision reads as follows:
“ 114. Court may presume existence of certain facts .—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.
Illustrations
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.”
36. A presumption of fact under Section 114(a) of the Evidence Act must be drawn considering other evidence on record and without corroboration from other cogent evidence, it must not be drawn in
2(2024) 17 SCC 401
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isolation. The present case serves as a perfect example of why such a presumption should have been avoided by the trial court. Manoj's conviction, solely relying on the disclosure statements made by himself and the other co-accused, does not suffice to warrant a presumption under Section 411IPC. It would not be unreasonable to presume that a goldsmith, who has to deal in ornaments and jewelleries on a day-today basis, would obviously be in possession of a significant quantity of ornaments at his shop. Given the circumstances, such a presumption drawn under Section 114(a) stands vitiated.
37. At this juncture, even if we assume the veracity of the claim that the items sold to Manoj were indeed stolen articles, it would not be sufficient to attract Section 411IPC; what was further necessary to be proved is continued retention of such articles with a dishonest intent and knowledge or belief that the items were stolen. No evidence worthy of consideration was adduced by the prosecution to prove that Manoj had retained the articles either with dishonest intent and with knowledge or belief of the same being stolen property.
…
45. For all the foregoing reasons, Manoj and Kallu are acquitted and set free. Consequently, conviction of Manoj and Kallu as recorded by the trial court and the sentence imposed upon them, since affirmed by the High Court, stand set aside. Manoj and Kallu, reportedly, have been enlarged on bail pending decision on their respective appeals; hence, they shall stand discharged of their bail bonds. ”
“9. Learned counsel for the appellant strenuously urged that the prosecution has failed to prove beyond reasonable doubt that the property held by the appellant is a stolen property, and belonged to the
32025 SCC OnLine SC 1734
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deceased. To bring home the charges under Section 411 IPC, the prosecution must establish that the person receiving or retaining the stolen property must have knowledge or belief that the same is a stolen property. Mere possession of the stolen property is not enough, and it must be proved by the prosecution that there was knowledge about the property being stolen. Hence, the belief or knowledge factor is sine qua non to give a finding of guilt for offence punishable under Section 411 IPC.
….
13.4. In an appeal preferred by accused-Moulana and the present appellant, the High Court confirmed the aforesaid finding of conviction under Section 411 IPC and held that a mere claim by the accused persons that the cash belongs to them is not sufficient to prove that the cash so recovered from them is their personal cash. The High Court noted that accused-Moulana is unable to explain the cash deposited by him in his brother-inlaw's account soon after the murder of the deceased.
14. In our considered opinion, the High Court has grossly erred by placing reverse burden of proof on the accused to account for the cash in their possession. The High Court clearly erred in applying the presumption under Section 114 of the Evidence Act to convict the appellant for the offence punishable under Section 411 IPC. The illustration (a) under the said provision reads as below:—
“114. Court may presume existence of certain facts.
(a) that a man who is in 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.”
The aforesaid illustration would only apply where the prosecution establishes the foundational fact of the theft of goods and the possession thereof by the accused soon after the incident. There is no evidence on record as to the total amount which the deceased was
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carrying with him when the incident took place. In absence of any convincing evidence regarding the amount being carried by the deceased, by the mere fact of recovery of a cash amount of Rs. 25,000/- from the possession of the accused, it cannot be inferred that the said amount was stolen goods. Suffice it to say, that the cash so recovered had no special or distinct identification characteristics and thus, the same could not be linked to amount allegedly stolen from the deceased even if such allegation was proved by tangible evidence.
14.2. In our view, to base a conviction under Section 411 IPC solely on the ground that both the accused were unable to account for being in possession of such huge amount of cash is both incorrect and untenable. Therefore, the approach adopted by the High Court in upholding the order of conviction of Trial Court for inability of the accused to account for the cash so recovered from their possession is alien to the criminal jurisprudence of our legal system.
15.2. This Court in the case of Shiv Kumar v. State of Madhya Pradesh, had the occasion to deal with the ingredients of Section 411 IPC and noted that:—
“14. Section 411 IPC:
“ 411. Dishonestly receiving stolen property .—Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
The penal section extracted above can be broken down into four segments, namely : Whoever, (i) dishonestly; (ii) receives or retains any stolen property; (iii) knowing; or (iv) having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both .”
(emphasis supplied)
…..
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15.3. Thus, to establish culpability under Section 411 IPC, it must be proved that the accused had dishonestly received or retained the stolen property and in doing so, he either had knowledge or reason to believe that the same is a stolen property. The natural corollary being if the courts upon trial reach a conclusion that the property in question is not a stolen property, therefore, the accused cannot be charged for the offence punishable under Section 411 IPC especially when the whole case of the prosecution relates to the events forming part of the same transaction.
…..
15.5 …. In order to uphold conviction under Section 411 IPC, it is sine qua non that the property in the possession of accused is a stolen property. If the property is not a stolen property, the charge under Section 411 IPC cannot be sustained.
15.6. Hence, when both the Courts below reached a conclusion that there is no commission of theft on the part of the accused persons, there arises no question of them committing an offence of dishonestly receiving a stolen property punishable under Section 411 IPC. In our view, the High Court has committed grave error in upholding the order of conviction of the present appellant under Section 411 IPC .”
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shrouded in doubt, the identity of the property is not conclusively proved and the element of knowledge remains wholly unsubstantiated.
(Ananya Bandyopadhyay, J.)
3 issues framed by the court
Whether the recovery of a D.B.B.L. gun from the appellant was credibly established despite absence of independent witnesses at seizure.
Whether the seized gun could be conclusively identified as the gun stolen from PW-5 during the dacoity.
Whether the appellant had knowledge or reason to believe the recovered gun was stolen property so as to sustain conviction under Section 411 IPC.
Colour shows how this judgement treated each authority
Shiv Kumar vs State of Madhya PradeshRelied on¶9
(2022) 9 SCC 676 · Who else cites this
Manoj Kumar Soni vs State of Madhya PradeshRelied on¶10
(2024) 17 SCC 401 · Who else cites this
Sd. Shabuddin vs State of TelanganaRelied on¶11
2025 SCC OnLine SC 1734 · Who else cites this
2 provisions across 2 enactments
Adam Molla
The State of West Bengal
Ananya Bandyopadhyay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
