Judgment:
A. Pasayat, J.
1. Petitioner assails his conviction under Section 411 of the Indian Penal Code, 1860 (in short the MPC) and sentence of three years' rigorous imprisonment awarded by learned Subordinate Judge-cum-J.M.F.C., Jeypore, and affirmed in appeal by learned Addl. Sessions Judge, Jeypore.
2. The accusations which form the basis of trial, are that certain records of judicial proceedings were found missing from the Court of J.M.F.C. Umarkote, Koraput on 9-11-1982, by Typist-cum-Clerk in charge of general files (PW 1). On 20-11-1982, the Nazir (PW 2) on getting information that the records might be in the attache of petitioner, proceeded to his own house where petitioner was temporarily staying, found attache was partially locked and on opening the unlocked side, found certain wearing apparels and case records. This inspection was done in the presence of some Advocates of Umarkote Bar. The attache was taken to the police station, and handed over to the in-charge ASI of police (PW 5). Since there was no case pending, station diary entry was made, seizure list was prepared and the attache was handed back to PW 2. The Magistrate who was on leave on 20-11-1582 joined on 27-11-82 and on 2-12-1932 attache was produced before him, lock was broken in his presence and 12 case records, some wearing apparels and a relieve order dated 16-8-1982 were found inside the attache. A case under Section 411, IPC was instituted, after investigation charge-sheet was submitted and petitioner faced trial. On evaluation of evidence on record, petitioner was convicted and sentenced as aforesaid. In appeal, they were affirmed.
3. Main plank of petitioner's argument, is that the ownership of attache was not established, and evidence is discrepant about the manner of finding out attache and the background for alleged search. It was pointed out that PWs. 1 and 2 were originally responsible for custody of documents and files, and wanted to shift responsibility which otherwise would have been fixed on them; they have with mala fide intention roped in the petitioner so that they will get scot free. Learned counsel for State however, submits that even though attache was not seized from petitioner personally, materials on record show that he was the owner thereof and this fact is sufficiently reflected by the fact that petitioner's relieve order was found in the attache in question.
4. Stolen property is defined under Section 410, IPC. The onus lies on the prosecution to bring home guilt of a person under Section 411, IPC and in order to secure conviction, it has to be proved that (i) property in question was stolen property within the meaning of Section 410, IPC; (ii) the same was in possession of accused; and (iii) some other person other than accused had possession of property before accused got possession of the same, and accused had knowledge or reason to believe that property was stolen property and with such knowledge or belief, dishonestly received it or dishonestly retained it. (See Trimbak v. The State of Madhya Pradesh : AIR 1954 SC 39). Offences for receiving and retaining stolen property are contextually different. Use of alternative expression 'dishonestly receives or retains' in one and the same section, requires prosecutor to prove that accused either received or retained property, of course dishonestly. The prosecutor need not prove that it was dishonestly received as distinct from dishonestly retained, or dishonestly retained as distinct from dishonestly received. It is enough to prove the facts to justify inference that accused either dishonestly received or retained the property. Prosecution has to establish that property in question was stolen property and there was either dishonest receipt or dishonest retention. For sustaining a conviction, it must be shown that accused was in possession of property. Possession need not be immediate physical possession, but may be constructive possession. It is not necessary that accused should have had manual possession of the goods. It is sufficient if there was potential possession within his power and unrestricted control. Therefore, prosecution is obliged to bring on record material to show that accused was in possession of property in question.
5. Here, evidence does not clearly establish that the attache belonged to accused petitioner. The only fact from which inference was drawn by Courts below to come to a conclusion about the ownership of attache in the presence of a relieve order relating to the petitioner. It is not in dispute that attache could be opened from one side, through which case files and clothings could be put in. It was not difficult for somebody to put the relieve order there. From the fact that it was not locked on one side and possibility of records being inserted could not be completely ruled out it is not possible to conclude that attache belonged to petitioner, and he had put the records there. There was no material to show that petitioner had at any point of time in custody of records and/or that he had put the records inside the attache. The evidence of PW 2 rather creates an impression of unconcealed anxiety to put blame on the petitioner. According to him, inspection of attache was necessary on account of what was told to him by Advocate Umesh Ch. Patnaik (PW 12). It was specific evidence of PW 2 that on hearing from Shri Patnaik that attache may be containing missing case records, he had proceeded to check up. This is at variance with evidence of Sri Patnaik, who stated that he heard talk between PW 2 and PW 1 to the effect that former PW suspected missing records to be in the attache of accused-petitioner. PW 2 had candidly admitted that he had earlier seen the attache and that it was under a cot. Petitioner was not the owner of the house, and on the contrary, it is accepted that PW 2 was the owner of the house and had key to the room where attache was allegedly found. In the absence of any specific material about ownership and/or possession of the attache and in view of the fact that all and sundry had unrestrained access to the room, and/or attache, it would be unsafe to convict the petitioner.
6. Another interesting feature deserves to be highlighted. As observed by the Supreme Court in Trimbak's case (supra), in order to secure conviction, the prosecution must prove, amongst other requirements, that before accused received the stolen property; it was in possession of somebody else. The use of the expression 'dishonestly receives or retains' a stolen property makes it clear, that possession has passed on from some other person to the accused. In the term 'retention,' dishonestly supervenes after the act of possession while in the case of 'retention' dishonestly is contemporaneous with the act of acquisition. In the instant case, there is no material to show any change of possession. It is also not possible to accept the submission of the learned counsel for the State that the petitioner has committed theft of the records and may be accordingly convicted. There was no such accusation, and there is no evidence to back up such plea. The conviction is set aside, and so also consequentially the sentence.
Criminal revision is allowed.