Ram Labhaya, J.
1. This order shall dispose of Criminal Revision No. 100 of 1955 and Criminal Reference No. 19 of 1955, They both arise from the same proceeding.
2. Sahadat Ali, petitioner, was tried with two co-accused namely Goka Sheikh and Hussain. The petitioner was found guilty under Section 411, Indian Penal Code. He was sentenced to pay a fine of Rs. 300/- only. He was acquitted of the charge under Section 414, Penal Code, Goka and Hussain were found not guilty under Sections 411 and 414. They were-acquitted.
3. Sahadat Ali's appeal was dismissed by the second Additional Sessions Judge. He has referred the case to this Court for enhancement of sentence. The petitioner has assailed the validity of his conviction by a revision petition.
4. On 16-10-1950, Thotoram Rava found that a pair of buffaloes belonging to him was missing. He searched but could not find any trace of them. He informed the police on 22-10-1950 that his buffaloes were missing. The search for them however continued. In this search he was assisted by his co-villagers particularly Naliram, Gaonia Rava and Bhoboram Rava. After some time In the course of search they traced the buffaloes to the house of the petitioner.
They found them tied to pegs in his compound. Thotoram claimed them as his and demanded that they be delivered to him. The petitioner is said to have asserted that he had purchased the buffaloes from two persons whose names he did not disclose, but stated that he would make enquiries from his vendors about their title to the buffaloes and then return them to Thotoram if they were found to belong to him. On 27-11-1950 Thotoram went to Goalpara Police Station and lodged an ejahar. The case was registered and a slip addressed to the officer-in-charge, Lakhlpur Police Station requesting seizure of the buffaloes was handed over to Thotoram.
It was brought over to the officer-in-charge, Lakhipur Police Station who failed to seize the buffaloes on the ground that he was busy otherwise. He directed Thotoram and his companions to go to petitioner's house again to find out if the buffaloes were still there. They went to his house and the buffaloes were shown to them in a hat. Even then the petitioner declined to part with them saying that he had not been able to trace his vendors. He again assured them that he would return the buffaloes if he after necessary inquiries felt satisfied that they belonged to Thotoram.
Thotoram again went to the police station and this time he was given another slip marked urgent, requesting the O/C, Lakhipur Police Station to seize the animals in question from the petitioner. The officer-in-charge, Lakhipur on receiving the slip detained Thotoram and his companions for a night. Next morning he told them to go to the petitioner's house on foot promising to follow later on a cycle. They proceeded according to his directions. On arrival they found the petitioner absent from his house. They then went to Balarbhita hat. There they found both the officer-in-charge, Lakhipur Police Station and the petitioner.
The petitioner then disclosed to the complainant that the buffaloes were missing from his house since last night. Both he and the Daroga asked the complainant and his party to search for them again. Thotoram came back to Goalpara police station and reported what had happened. He was again asked to continue his search. Feeling frustrated he returned home. But after a week or BO Bhoboram who had been accompanying the complainant on his search was informed by the officer-in-charge, Goalnara Police Station that the animals had been traced and that he should go to the petitioner's house and try to procure them.
Information was conveyed to Thotoram and he along with Bhoboram and others went to the house of the petitioner. There the petitioner produced a pair of buffaloes different from the one belonging to the complainant. This Thotoram refused to accept. He again went to the Goalpara Police Station with his companions and reported that the petitioner had offered buffaloes which did not belong to him. He was again advised to continue his search. Bhoboram alone went in search and at Bilasipara he learnt from one Nafazuddin (prosecution witness) that a few days before that date a pair of buffaloes was sold at Bilasipara hat by one Alimuddin and another servant of the petitioner.
Both Bhoboram and Nefazuddin began to search for the purchaser. They could find the animals with one Samser Ali. On inquiry he produced a receipt showing that he had purchased the animals at Bilasipara hat from one Mahammed Ali. The police was informed about this discovery and the officer-in-charge, Sapatgram seized the Buffaloes (Exs. I and II).
5. During the course of the investigation the second pair of buffaloes (Exs. III and IV) which was offered to the complainant, was also recovered from the possession of the petitioner. Goka Sheikh and Hussain Ali were alleged to have sold that pair of buffaloes to the petitioner, they were also prosecuted.
6. All the three accused pleaded not guilty, Their defence was that they had no concern with the buffaloes belonging to the complainant. They denied possession or dealing with them. The petitioner stated that he purchased buffaloes (Exs. III and IV) from the two other accused and they admitted having sold them to the complainant. All completely disowned buffaloes (Exs. I and II) to which the complainant laid claim.
7. It has been found by the Courts below that the buffaloes (Exs. I and II) were seen in the house of the petitioner on two occasions by the complainant and his party. They were shown to have belonged to the complainant. The petitioner kept them dishonestly knowing that they did not belong to him. On these facts they found him guilty under Section 411, Penal Code. Evidence on the second head of the charge (under Section 414) was not found sufficient for a finding of guilty.
The petitioner has challenged the propriety of his conviction. He has also the right to show that the conviction is not justified in answer to a notice calling upon him why sentence be not enhanced.
8. The learned Counsel for the petitioner has urged that the petitioner never had buffaloes (Exs. I and II) claimed by the complainant in his possession, nor was he responsible for their disappearance or disposal and in any case there could be no conviction under Section 411 as the prosecution had failed hopelessly to establish how and when the petitioner got hold of the buffaloes in question and whether at that time the buffaloes constituted stolen property. He further urged that his intention or knowledge at the time also is a matter on which there is absolutely no evidence.
9. It cannot be seriously disputed at this stage that buffaloes (Exs. I and II) belong to the complainant. The complainant and his companions could trace them to the house of the petitioner. Ram Chandra Rava (P. W. 9) deposed that he sold these buffaloes to Thotoram. This testimony stands unrebutted. Naliram (P. W. 2), Gauni (P. W. 3) and Bhoboram (P. W. 8) have all deposed that these buffaloes belonged to the complainant. The two Courts below have concurrently relied on this evidence.
10. The prosecution version that the two buffaloes were seen on two occasions in the possession of the petitioner receives ample support from the direct testimony of prosecution witnesses 2 3 and 8 (named above). But the evidence on this point is not merely direct or oral. There is a wealth of circumstancial evidence to support it. The conduct of the complainant and his witnesses as also of the accused supplies evidence which is circumstantial in character and this lends enormous support to the prosecution version as a whole.
It invests it with a ring of truth. The version is natural so that it carries conviction easily. It is so difficult to resist. The buffaloes were found missing on 16-10-1950. The report that they were found in the house of the petitioner was made at the Goalpara Police Station on 27-11-1950 after this discovery. It was a report made not on information received or on any kind of suspicion. Search had continued upto that time. No charge of theft or of any other offence had been preferred till that date against any one.
At this stage a formal report was made. The complainant was sent to the Lakhipur Police Station twice with slips for the seizure of the animals. They were in possession of the complainant even when the second slip was issued directing the Lakhipur Police to seize the buffaloes. The O. C. Lakhipur police Station failed signally in his duty. He excused himself from complying with the requisition on the alleged ground that he was busy. The statement appears to be somewhat fantastic and the least that may be said is that it is very unusual.
The strange conduct of the officer-in-charge strikes the eye. When the complainant went to Lakhipur Police Station with the second slip and thereafter to the petitioner, he was told that the buffaloes had disappeared during the previous night. He was told to search for them again. They were discovered in possession of Samser, a prosecution witness. The discovery of buffaloes in the house of the petitioner, the report of the theft, visits to Lakhipur Police Station and the house of the petitioner are all events which have been influenced by the discovery of the lost animals and support the prosecution version as a whole.
11. The house of the complainant is at a distance of about forty miles from the house of the petitioner. His search was laborious and persistent and also without any assistance, from the police. He claimed the buffaloes which he found in the house of Sahadat Ali. He had no previous connection with Sahadat Ali, no dealings of any kind whatsoever; and therefore no motive for false charge. There was no hostility or ill will of any kind between them, Sahadat Ali is a member of! the Legislative Assembly of the State and would be an important man in the locality.
It is extremely unlikely that the complainant would prefer a false charge against him of all persons, or would venture to claim ownership of buffaloes in his possession if he could not establish his own claim. There is no reason again why his witnesses should support him if the claim was not well founded.
12. The complainant evidently had no difficulty in identifying his buffaloes. He traced his own pair first to the house of the petitioner and then to the house of Samser. His claim to the buffaloes in question has been put beyond dispute. The accused at the trial disowned these buffaloes. The defence of the petitioner also was that he had nothing to do with these buffaloes and they were never in his possession. Complainant thus is admittedly the owner of these buffaloes (Exs. I and II). It is due to his own initiative that he could trace them. It is after they were traced second time in the hands of Samsar on information supplied by Nefazuddin that the case appears to have been taken up by the police seriously,
13. The defence set up by the petitioner was that he purchased buffaloes (Exs. III and IV) from his co-accused and these alone were in his possession. This version does not take into account the prosecution case that after staying for a night at Lakhimpur Police Station the complainant was told that the buffaloes in petitioner's possession were missing or had disappeared. It was after this that buffaloes (Exs. III and IV) were put forward as the ones which had been seen in the house of the petitioner. The petitioner did not formally report to the police that any buffaloes had disappeared from his possession. He later on produced two buffaloes and this seems to have been done under the compulsion of circumstances.
It was not possible for him to say that the complainant had not been to his house Or had not seen any buffaloes there. Denial of the visits of the complainant and his claim to the buffaloes would have been futile. There apparently was no innocent explanation for possession of complainant's buffaloes by the petitioner. The only course left to him was to deny possession of complainant's buffaloes and to produce two other buffaloes with a view to showing that the complainant was putting forward a false claim.
But this attempt fails as the complainant once more succeeded in tracing his own buffaloes after the petitioner could get rid of them. He knows his own buffaloes. They have been produced in Court. Before they reached Samser they were Been in possession of the petitioner.
14. Samser from whose house the buffaloes were ultimately recovered has been examined as a prosecution witness. He purchased them on a hat day from one Mahammed Ali. Nefazuddin deposed at the trial that the buffaloes were sold by one Alimuddin and another servant of the petitioner. Samser deposed to having purchased them from Mahammed All. There was conflict in the prosecution camp on this point. The statement of Nefazuddin would appear more probable. Mohammed Ali from whom buffaloes are said to have been purchased appears to be a fictitious person. He has not been traced and could not be examined. The circumstances suggest the possibility of a fictitious name having been used.
But by reason of the two different versions from the prosecution side, in regard to the disposal the petitioner was given the benefit of doubt in regard to the charge under Section 414, He has been acquitted of it. It would therefore be both safe and expedient to exclude direct evidence bearing on the sale or disposal of the buffaloes in the hat to Samser from consideration. What then remains with the prosecution is that the buffaloes in question (Exs. I and II) belonging to the complainant remained In the house of the petitioner for some time. They were used by him and then they disappeared and were substituted by two others in order to show that complainant's buffaloes were never with the accused. The question In these circumstances is what if any, offence has been committed.
15. The petitioner was convicted under Section 411. A conviction under that section is possible only if he received stolen property with the requisite intention. He could receive stolen property if there was someone other than him to offer it. The property should be stolen before he received it. He also should have received it knowing or having reason to believe that it was stolen property. These are necessary ingredients of the offence. As held in Trimball v. State of Madhya Pradesh : AIR1954SC39 ,
it is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I. P. C. to prove (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, and (3) that the accused had knowledge that the property was stolen property.
The prosecution have not been able to adduce any evidence bearing on any of these necessary ingredients of the offence. It is not known how, when and where the petitioner came by these buffaloes. It has not even been alleged that the buffaloes were in the possession of any other person before he got them in his custody.
There is no suggestion that there was someone else in the picture and that he had either stolen the property or had misappropriated it and that it had become 'stolen property in his possession. There is really no evidence on the basis of which it could be said that the buffaloes had become stolen property in the hands of some one else and that the petitioner received them when they constituted stolen property; nor can it be said in these circumstances that he received them knowing or having reason to believe that they were or could be regarded as stolen property.
16. It has been argued that the complainant lives at a distance of some forty miles from the house of the accused (petitioner). The buffaloes may possibly have strayed from where they normally used to be. But it is improbable or at least unlikely that they walked all that distance and came so near the village of the accused that he could receive them or take them into his custody innocently and without the intervention of any other agency.
The argument is that it is probable that someone else had these buffaloes before petitioner got them and if he does not disclose the circumstances under which he received them it may be presumed that the buffaloes had become stolen property before he got them and that he had the requisite guilty knowledge. I do not think all this can be presumed. It is virtually presuming the existence of all the ingredients of the offences without any one from the prosecution side taking any responsibility for alleging their existence
This course also would be against the decision of their Lordships of the Supreme Court and it will conflict with the recognized principle of criminal jurisprudence that the burden is on the prosecution to prove the guilt of the accused by establishing the necessary ingredients of the offence. I am also not persuaded to say that the presumptions which we have been asked to make necessarily flow from or are justified on facts which have been proved. I would however assume for purposes of argument that the buffaloes did not reach the village of the petitioner themselves, though this would not be impossible. They may have fallen into the hands of some one else and may have been guided or taken to the house of the petitioner.
But did they become stolen property in the hands of that person whose existence I am presuming for purposes of argument? They would be stolen property in his hands if he either committed theft himself or misappropriated them. In the absence of any evidence on the point all 'this cannot be presumed. Nor would it be possible to presume any guilty intention at the time the petitioner received the buffaloes. In these circumstances conviction under Section 411, Penal Code, is obviously not possible and it cannot be sustained.
17. The next question is whether proved facts disclose any offence. The buffaloes in question (Exs. 1 and 2) have been found to the property of the complainant. They certainly strayed. They were found in the possession of the petitioner. He kept them for some weeks. When the owner appeared on the scene twice, he did not deliver the buffaloes to him, but put him oft on the pretext that he would make inquiries from the vendor from whom he purchased them. He has made no attempt to prove that he received these buffaloes from any ' one else. He merely disowned them. He was thus keeping these buffaloes knowing that they did not belong to him. He did not try to find out the real owner and declined to give the buffaloes to him when he appeared on the scene.
He was using them for the period that he kept them. They were seen yoked in a cart on one occasion. He did not report the alleged disappearance of the buffaloes seen in his house. He never go them back. They were recovered from the possession of Samser. There was no connexion between the disappearance of buffaloes (Exs, I and II) and his subsequent possession and production of buffaloes (Exs. III and IV). He was evidently utilising buffaloes of the complainant for his own purpose whilst they were in his custody. The buffaloes thus were misappropriated. The misappropriation was dishonest. It caused wrongful loss to the owner and wrongful gain to the petitioner.
Dishonest misappropriation is punishable under Section 403, Indian Penal Code. Proved facts there-lore disclose an offence of criminal misappropriation and the petitioner has incurred liability for punishment for this offence. It is not disputed that the conviction can be legally altered to one under Section 403, for, on the facts of the case it was open to the trial Magistrate to frame a charge under Section 403. The case would be covered by the provisions contained in Section 236, Criminal Procedure Code.
18. In Phul Chand Dube v. Emperor AIR 1929 All 917 (B) it was held following 11 IC 623 that
Where a person retains in his custody animals which have strayed away from grazing ground and there is no evidence to show that it is stolen, he is guilty of an offence under Section 403 and not under Section 411, I. P. C.
In this case a bullock was missing. It was found in the possession of the accused. He had tried to sell it. He was held guilty under Section 403. His conviction under Section 411 was quashed. This decision supports the view we take of the matter.
19. The petitioner was sentenced to pay a fine of Rs. 300/- only on his conviction under Section 411. The Offence found to have been committed is one of dishonest misappropriation. The conviction has therefore to be altered to one under Section 403 and it is ordered accordingly. The sentence awarded erred grievously on the side of leniency. It was just nominal, not substantial.
The fact that the petitioner is a member of the Legislative Assembly would not justify any such flagrant discrimination in his favour, A sentence proportionate to the gravity of the offence must be awarded keeping fully in view the circumstances under which the offence has been committed. The punishment under Section 403 can be imprisonment for a term which may extend to two years or fine or both.
The petitioner had opportunities of washing off his guilt. He persisted in his claim to the animals in question. His attitude after the report to the police is an aggravating circumstance. He is sentenced to rigorous imprisonment for six months only; fine if paid by him shall be refunded as conviction under Section 411, I. P. C. has been quashed.
20. The conduct of the officer-in-charge of Lakhipur Police Station to whom requisitions were addressed for the seizure of the buffaloes from the custody of the accused calls for particular notice. He did not comply with the requisition in the first instance on the ground that he was busy otherwise. It does not appear what came in his way in the matter of the compliance with the requisition. Some delay might have occurred in the seizure but absolute inability is difficult to conceive.
Why compliance was not possible at ail if not immediately, or how everyone else in the police station was prevented from attempting a seizure, are matters requiring explanation. On the second occasion, he is alleged to have detained the complainant and his party for one night. They were told to go to Sahadat Ali's house next morning which they did. The Sub-Inspector according to the prosecution version had arrived before them. They met him at the hat. It is at that stage that they were told that the buffaloes had disappeared during the previous night.
The coincidence is remarkable. The disappearance does not appear to have been formally reported to the police. The conduct of the O. C. Lakhipur has resulted in complications and has caused avoidable suffering to the complainant. If there is no reasonable explanation forthcoming for it, there would be a case of a very grave and serious dereliction of duty on the part of the officer-in-charge of Lakhipur Police Station, calling for disciplinary action. Failure of duty like this tends to bring the administration of police into disrepute. A copy of this judgment shall be sent to the Inspector-General of Police for necessary action,
21. The petition of revision and the reference are disposed of as indicated above.
Sarjoo Prosad, C.J.
22. I agree.