PARSHOTTAM MAHADEV PATHARPHOD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a criminal appeal by accused No. 4 against the order of conviction and sentence passed against him under Section 411, I. P. C,

(2.) PROSECUTION , case briefly stated is as follows : One Pokhraj Ghemaji carries on business in fountain pens etc. at Calcutta. His brother Bhavarlal Gheuiaji carries on business in fountain pens etc. in Bombay. On 21 -7 -1961 Pokhraj purchased a half passenger ticket, and against that half passenger ticket booked a parcel containing fountain pens etc. of the value of about Rs. 2900/ - with the Railway, and obtained a luggage receipt from the Railway in respect of that parcel. Pokhraj posted that luggage receipt to his brother Bhavarlal at Bombay. Bhavarlal did not receive that luggage receipt. According to the prosecution, Bhavarlal received a list of the articles sent by his brother Pokhraj by ordinary post in the evening of 23 -7 -1961. Bhavarlal went to the luggage office at V. T. Station on 24 -7 -1961, and there made inquiries about the package sent by Pokhraj from Calcutta. Bhavarlal was then informed that the package had arrived at the luggage office at V. T. Station on the previous day and that package had been duly delivered. Bhavarlal then lodged a complaint with the railway authorities. On the next day, i.e. on 25th July 1961, Bhavarlal lodged his first information report with the V. T. Railway Police. Investigation thereafter followed. A major portion of the goods were taken charge of from accused No. 4, and five gross of refills were taken charge of from one Inayatalli. An identification parade was held on 6th August 1961, find after completing the investigation of this case, the present appellant and three others were charge -sheeted. According to the prosecution, luggage -clerk at V. T. Railway Station, Mr. Prannath Girotra, delivered the package in question to accused Nos. 1 and 2, and one more person who is absconding. Accused No. 2 sold some of the goods contained in that package to accused No. 4, the present appellant; so also accused No. 3 sold some goods from that package to prosecution witness Inayatalli. The present appellant and three others were prosecuted.

(3.) MR . Dalai, who appears for the appellant -accused No. 4, contends that the property in question cannot be said to be stolen property, as defined by Section 410, I. P. C. and hence accused No. 4 cannot be convicted under Section 411, I. P. C. Mr. Dalai contends that the evidence on record indicates that some persons obtained the goods in question by cheating the luggage -clerk, Mr. Frannath Girotra, and once the property was thus obtained by cheating, it cannot be said to be stolen property. In order to establish that the property in question is stolen property, the prosecution has to prove that possession of that property has been transferred either by theft or by extortion or by robbery; prosecution can also establish that the property in question is stolen property, if the prosecution can prove that the property in question has been criminally mis -appropriated or criminal breach of trust has been committed in. respect of that property.