Brij Narain, J.C.
1. This is an appeal on behalf of the Manipur State under Section 417, Or. P. C., read with Section 20, Manipur State Courts Act, 1947, against the order of acquittal of the respondent passed by the Sessions Judge, Manipur, in criminal appeal No. 20 of 1954 on 31-3-1954. The respondent was originally convicted by the senior Extra Assistant Commissioner in criminal case No. 675 of 1954 on 8-3-1954 under Section 417 and was sentenced to one year's rigorous imprisonment and a fine of Rs. 400/- and in default of payment of fine a further term of 4 months' rigorous imprisonment.
2. The facts of the case as alleged by the prosecution are that Waithou Phumnam Fishery was purchased by the Waithou Phumnam Mapan Fishery Co-operative Society Limited during the year 1953 for Rs. 40.000/- and odd and the Patsal (proceeds money) was to be paid in 3 instalments.
The first two instalments appeared to have been paid earlier and a sum of Rs. 7,500/- was raised in the village for payment of the third Kist (instalment) and the money was taken to the Imphal Treasury for being deposited there during the Rathajatra festival, but as Laisram Kirti Singh, cashier P. W. 2, Maimom Mani Singh, Secretary P. W. 3, Thangjam Jatra Singh, Chairman P. W. 4 and Yumnam Gour Singh P. W. 7 reached the Treasury late the money could not be deposited and as it was a holiday on the next day the amount was converted from G. C. notes of lower denominations to seventy five 100 rupee notes and one of these notes was torn cross-wise in the middle and a piece of white paper was affixed on its back to join the torn parts, vide Ex. P-7 and the statements of Kistur Chand Seraogi P. W. 10 & Wahengbam Bishambhar Singh, Poddar, Imphal Treasury P. W. 11.
As the money could not be deposited in the Treasury it was kept with the cashier Laisram Kirti Singh P. W. 2, vide statement of Mutum Yaima Singh P. W. 9. The present respondent Laisram Bokul Singh and Moirangthem Angou Singh P. W. 8 went to the house of the cashier 4 days before the Punarjatra which took place on 21-7-1953 and the cashier was told that a stranger (Mayang) could double the G. C. notes and so the sum of Rs. 7,500/- relating to the third Kist (instalment) might be doubled and the amount thus obtained be distributed among the cashier, present respondent, the Mayang and others.
At first Laisram Kirti Singh P. W. 2 did not believe the above version, but on the next day Bokul Singh respondent went again to him along with the outsider (Mayang) and one Kumaro Singh and the cashier produced a 10 rupee note and the Mayang attached it to a blank paper of equal size and then it was wrapped with cotton Ex. P-3 and was kept between 2 mirrors Exs. P-1 and P-2 tied with thread Ex. P-4 and after that it was wrapped with a piece of cloth Ex. P-9. The bundle was then kept inside an almirah to be opened on the next day.
On the next day the Mayang, the respondent and others went to the cashier's house at 8 A. M. The almirah was opened and the outsider unwrapped the mirrors when two 10-rupee notes were found. The cashier retained his own note and gave the other to the outsider. The present respondent then asked the cashier P. W. 2 to utilise the opportunity by getting the sum of Rs. 7,500/- doubled. In the afternoon the cashier produced the G. O. notes of Rs. 7,500 and he and the outsider were closeted in a room and the doors and windows of the room were closed while the respondent waited outside in the verandah.
The notes produced by the cashier were kept on a bed and a chair was put near the bed as desired by the outsider who sat on the chair. The cashier produced a plate as desired by the outsider and this plate was placed on the bed. Some liquid was poured on that plate and the outsider then produced a bundle of foolscap papers, cut into pieces as big as 100-rupee note and the outsider then put a paper and applied some liquid from the plate and then put a 100-rupee note on that paper. Similarly all the other 100-rupee notes were put between the 2 blank papers. Then the outsider wrapped all the currency notes in a sheet of white paper and the note Ex. p-7 which was torn crosswise in the middle was also wrapped up along with the others. Cotton Ex. P-3 was put on all sides of the bundle of the currency notes. Thereafter the bundle was again wrapped up in a paper. Then the two mirrors were placed on the opposite side of the bundle and a paper was wrapped again over these mirrors Exs. P-1 and P-2 and a piece of cloth Ex. P-9 was Wrapped around the bundle and then the bundle was tied with thread Ex. P-4. A substance like wax was melted by means of a match fire and was allowed to fall on the G. C. note Ex. P-4a. The stranger then made a sign to the cashier to keep the bundle inside the almirah which the cashier did and he locked the almirah, then the cashier and the outsider came out and the present respondent was found sitting in the verandah.
The respondent and Kumaro Singh promised to return next day and the respondent assured the cashier not to worry. On the next day, however, they did not turn up, and Maimom Mani Singh, Secretary P. W. 3, went to the cashier and asked him to go and pay the Patsal. The cashier narrated the whole story to the Secretary and he opened the almirah and then the bundle was opened and no currency note was found in it and only blank paper Ex. P-5 was found.
The cashier then ran to the Chairman Thangjam Jatra Singh P. W. 4 and one full day was taken in going to Imphal and later on the next day a typed report dated 23-7-1953 was handed over to the Superintendent of Police, Manipur, and on its basis the first information report was prepared by Ch. Mani Singh, O/C Thaubal P. S., P. W. 12. The O/C inspected the locality and he recovered Exs. P-1 to P-5, vide recovery list Ex. P/D. Bokul Singh respondent was then arrested and he pointed out the place from which a Kouta Ex. P-8 was recovered and seventy-one 100-rupee notes and some pieces of papers Ex. P-11 were recovered from that Kouta (tin case), vide recovery list Ex. P/F; vide also the statements of Mutum Mera Singh P. W. 6 and Laisram Ram Singh P. W. 5.
As some of the accused were found absconding proceedings under Sections 87 and 88 Cr. P. C., had to be started, vide proclamation Ex, P/C and the orders of attachment Exs. P/B and P/E and the warrant issued against Kumaro Singh Ex. P/A which has been duly proved by the Head Constable Bacha Singh P. W. 1. The O/C after completing the investigation challaned the present respondent and Lairengbam Kumaro Singh and one unknown person (Gunendra) shown on the right side in the photograph, vide Ex. P-6, under Section 420, I. P. C., on 5-8-1953.
3. The respondent contended that he had enmity with the cashier and his party and he had been implicated in this case on account of enmity. According to the respondent he never mentioned to the cashier that the G. C. notes could be doubled and the money which was recovered from his house really belonged to him and it had been borrowed by him through the deed dated 13-7-1953, vide Ex. D/A, from Oinam Iboton Singh D. W. 2. Regarding the cut note Ex. P-7 the respondent has stated that it was given to him by the cashier on 19th or 20th July 1953, because the cashier had to pay him Rs. 22/- on account of the respondent's feeding a stranger physician at the request of the cashier for a number of days.
According to the respondent this stranger was put UP by the cashier at his house on the ground that the said physician was an untouchable and so the cashier paid Rs. 22/- to the respondent as feeding charges of the physician and the respondent returned Rs, 78/- to the cashier vide the statement of Mutum Jugol Singh D. W. 1. Koijam Madhumongol Singh D. W. 3 is the scribe of the deed Ex, D/A while Laisram Kundale Singh D. W. 4, father of the respondent & Potsangbam Yaima Singh D. W. 5 have been examined to show that the respondent really borrowed Rs, 7,500/- from Oinam Iboton Singh D. W. 2 through Ex. D/A in their presence.
4. It has been contended by the learned Government Advocate that the learned Sessions Judge has not approached this case from a correct standpoint and there was absolutely no ground for disbelieving the evidence of Laisram Kirti Singh, Maimom Mani Singh, Thangjam Jatra Singh and Yumnam Gour Singh in so far as their statements go to establish that a sum of Rs. 7,500/- was raised in the village for payment of the third kist and this money was taken to the Imphal Treasury for being deposited there during the Rathajatra festival. The mere fact that there was a minor discrepancy regarding the exact date on which the money was to be deposited, will not be of any material consequence.
The evidence of Wahengbam Bishambhor Singh, Poddar P. W. 11 goes to support the prosecution case on this point and as this witness is a disinterested witness, I think the prosecution case to the above effect ought to have been believed. It is further clear from the evidence of these witnesses that the money was not deposited in the Treasury on the day on which it was presented as Laisram Kirti Singh and others reached the Treasury late. It is further established from the prosecution evidence that as the Treasury was closed on the next day being a holiday, the cashier was directed to take the sum of Rs. 7,500/- after having changed the G. C. notes of lower denominations into seventy-five 100-rupee notes.
The evidence of the Poddar Wahengbam Bishambhor Singh established that the torn note Ex. P-7 was given by him on the express condition that if it would not be accepted by the Treasury, it would be changed. The evidence of the Poddar finds support from the entry in the diary Ex. P/A and this entry has been duly proved by Thangjam Jatra Singh P. W. 4. Even if no reliance is placed on the entry in the diary Ex. P/A on the ground that this diary was produced in Court at a late stage, I think the evidence of Wahengbam Bishambhor Singh Poddar cannot be easily brushed aside as it finds ample support from the statements of Laisram Kirti Singh, Maimom Mani Singh and other prosecution witnesses, and it goes to establish fully that this torn note Ex, P-7 really formed part of the sum of Rs. 7,500/- which had been kept with the cashier for being deposited in the Treasury towards third instalment later on.
5. Once it is established that this note Ex. P-7 formed part of the money which was to be deposited in the Treasury as the third instalment and it was given to Laisram Kirti Singh P. W. 2 for being kept in his custody to be deposited in the Treasury later on, it was for the respondent to prove that this torn note which was recovered from the outer courtyard from the Kouta Ex. P-8 by the D/C Ch. Mani Singh P. W. 12 in the presence of Mutum Mera Singh and Laisram Ram Singh vide recovery list Ex. P/F, belonged to him and that he retained possession over this note honestly.
The respondent came forward with the theory that an outsider (Mayang) had been brought by Laisram Kirti Singh to him on the allegation that he was a physician but as he was an untouchable, and he could not be made to stay at the house of the cashier, so the respondent agreed to allow the physician to stay at his house, and the cashier paid him Rs. 22/- on this account. According to the respondent the cashier paid him this 100-rupee note and the respondent returned Rs. 78/- to the cashier.
In the first place the respondent contended that he had enmity with the cashier and members of his party were out to falsely implicate him in this case. If there had been any truth in this version, it seems very difficult to believe that the respondent would have agreed to provide accommodation and feed an outsider (Mayang) at the request of Laisram Kirti Singh, cashier. Again if it were a fact that the cashier had given this torn note to the respondent, the latter would not have accepted' it without any condition of its being received back in case it was not encashed elsewhere, but no such promise is said to have been made by the cashier to the respondent.
Lastly the theory of the respondent mentioned above has not been proved by any cogent evidence. The respondent examined Mutum Jugol Singh who is a chance witness and even though this witness has tried to show that Kirti Singh gave the note Ex. P-7 to the respondent and he promised to receive it back, the statement of this witness appears to be highly improbable, as this witness could not possibly be expected to identify the particular note which he could not have seen except for a second or two. This witness has admitted in cross-examination that he did not look at the cut note and so it must be held that the statement of this witness was not properly scrutinised by the learned Sessions Judge.
6. The evidence of the O/C Ch, Mani Singh P. W. 12 proves that a sum of Rs, 7,100/- was recovered from the outer court-yard of the respondent and his statement on this point is duly proved by the statements of the witnesses present at the time of recovery as well as the recovery list Ex. P/F and the respondent also clearly admitted this recovery in his statement before the Court. There is no doubt that any confession made by the respondent before the O/C will not be legally admissible under Section 25, Indian Evidence Act, vide - Zwinglee Ariel v. State of Madhya Pradesh : AIR1954SC15 , the words distinctly relating to facts discovered are clearly admissible under Section 27 of that Act, vide - Public Prosecutor v. India China Lingiah : AIR1954Mad433 , 'where it is laid down that it is permissible to connect the accused and the object with each other through the information but not either of them with the crime.
In the course of such a strict construction of Section 27, of the Evidence Act, by precisely limiting the information admissible to so much of it as distinctly serves to connect the accused with the object alone, it sometimes happens that the admissible portion amounts to a confession, which it does in cases where the gist of the offence is possession or concealment. The law is not that Section 27 prohibits the same.
The prosecution evidence in the present case proves that the note Ex. P-7 along with other G. C. notes of 100-rupees were recovered from the possession of the respondent & the respondent has admitted this fact before the trial Court. I have already pointed out above that it has been proved in this case that the note Ex. P-7 was given by the Poddar P.W. 11 to the cashier and it formed part of Bs. 7,500/- which was to be deposited In the Treasury as third kist and which had been stolen, vide the report dated 23-7-1953.
As the respondent failed to prove that the cashier gave this note to him and as the respondent buried this note along with other G. C. note in his outer court-yard near the plinth of his house, it becomes clear that he never really believed that he was honestly entitled to it. If the respondent had really believed that the note Ex. P-7 belonged to him he would keep it inside his house and not in the outer court-yard which has no boundary walls. The fact that the respondent kept such a big amount in the outer courtyard only goes to strengthen the prosecution case.
As the property (which was of immense value when the status of the respondent is taken into consideration) and the circumstances (this huge sum was kept in the outer court-yard) indicate chat the possession of the respondent was not in the natural course of things, but was Incriminatory, the fact that a false explanation was given by the respondent regarding receipt of Ex. P-7, makes the prosecution case stronger and more acceptable vide Babulal v. State : AIR1950All631 .
7. The respondent tried to show that he borrowed a big sum of Rs. 7,000/- from Oinam Iboton Singh D.W. 2 through the deed Ex. D/A. The respondent no doubt produced the scribe of this deed and he examined his father and one Potsnagbam Yaima Singh to show that the deed Ex. D/A is genuine. It has not been shown that Oinam Iboton Singh had the means to advance such a big sum and then he had no good reason for advancing this sum without taking any security of immoveable property.
The document Ex. D/A appears to be suspicious on the face of it, and I think the learned Magistrate has for good reasons held it to be purposive. If Oinam Iboton Singh had any money dealings on any previous occasion, there could have been good ground for his advancing such a big amount to the respondent on a pro-note, but no previous money dealings have been proved in this case. I am, therefore, of opinion that the case of the respondent on this point also was not at all established.
It, therefore, follows that the recovery of the note Ex. P-7 which is proved to have been kept in the custody of Laisram Kirti Singh P.W. 3 from the possession of the respondent without any proper justification, is incriminatory and the circumstances of this case fully show that the respondent dishonestly retained possession over it. If the respondent honestly believed that he was entitled to keep ,this money he would not have tried to put all sorts of theories in this case to which reference has already been made and which could not be substantiated by him. (After considering some other arguments of the respondent his Lordship continued).
8-10. There is no doubt, on Government appeal under Section 417, Criminal P. C., the well-known principle recognised in the administration of criminal justice that the order of acquittal has strengthened presumption of innocence in favour of the appellant and that he was entitled to the benefit of doubt, must not be lost sight of, vide : AIR1954SC15 ; State of Himachal Pradesh v. Mirza Hossein Beg AIR 1954 Him-P 33 (D); Mohindar Singh v. The State , Trimbak v. State of Madhya Pradesh : AIR1954SC39 . But the order of acquittal can be set aside if the decision of the Sessions Judge is manifestly erroneous as it appears to be in this case, vide Section 423 (1) (a), Criminal P, C.
11. The prosecution attempted to prove that the present respondent actually cheated Kirti Singh P. W. 2 by inducing him to part with Rs. 7,500/- so that the same may be doubled. The F. I. R. lodged in this case shows that the prosecution clearly alleged that the respondent had committed theft and not cheating and then the 2 witnesses of the alleged occurrence, Khomtaa and Kumar, mentioned in the F. I. R. were 'not produced in the Court. In view of this fact I think the learned Sessions Judge was justified in holding that the prosecution had withheld the best evidence and has relied on other witnesses who were not mentioned in the P. I, R. and so the statement of these witnesses could not be deemed sufficient for proving the offence under Section 420, I. P. C.
In - Amir Chand v. Lok Nath AIR 1952 J & K 26 (G) it has been laid down that wilful misrepresentation of a definite fact with intention to defraud would be cheating (vide also Habib Md. v. State of Hyderabad : 1SCR475 ). Along with this, it has to be shown that the misrepresentation made was false to the accused's knowledge at the time when it was made. In the present case it has not been proved by cogent evidence that the present respondent made any such wilful misrepresentation to the cashier and so I think the prosecution, evidence is not sufficient to establish the charge under Section 420, I. P. C., against the respondent.
12. But the evidence of the prosecution witnesses discussed above fully proves that the sum of Rs. 7,500/- was produced before the Imphal Treasury for being deposited there towards the third instalment by the cashier P. W. 2 along with others and this sum was not accepted as the cashier reached the Treasury late and later on G. C. notes of lower denominations were changed to 75 G. C. notes of 100-rupee notes and the cut note Ex. P/7 was one of these notes.
Later on this note was recovered from the outer court-yard of the respondent at the instance of the respondent himself and as the respondent did not give any satisfactory explanation as to how he came into possession of it and as the respondent kept it in a tin case buried in his outer court-yard, it becomes clear that the respondent dishonestly retained possession over it. It is the duty of the prosecution in order to establish the charge under Section 411, I. P. C., to prove (1) that the stolen property was in 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) the accused has knowledge that the property was stolen property.
As soon as the prosecution produced evidence to the effect that the person has been found in possession of the money which has been the subject-matter of theft, the presumption at once arises under Section 114, Evidence Act, that the possessor is either thief or the receiver of stolen property and this presumption when unexplained shall be regarded as conclusive fact vide - Fateh Mohd. v. Emperor AIR 1948 Lah 80 (I).
In the present case I have shown above that the respondent did not give any reasonable explanation as to how he came into possession and why did he keep such huge amount in the outer court-yard and so I think the charge under Section 411, I. P. C., has been established against the respondent in the present case at least with respect to the G. C. Note Ex. P-7 beyond all reasonable doubt and the learned Sessions Judge's order of acquittal passed on the basis of manifestly erroneous appreciation of evidence has not been proper and legal.
13. In view of the provisions under Sections 423 (1) (a) & 237, Criminal P. C., & in view of the rulings reported in Emperor v. Ismail Khadirsab AIR 1928 Bom 130 (J) and Faizullah v. King-Emperor AIR 1925 Sind 105 (K), the appellate Court can certainly convict the accused of another offence or of a minor offence covered by the offence of which he has been acquitted provided no prejudice has been caused to the accused.
14. I, therefore, allow this appeal & set aside the order of acquittal which has been passed by the learned Sessions Judge in this case & I convict the respondent under Section 411, I. P. C., & sentence him to one year's rigorous imprisonment under this section. The respondent should surrender immediately to serve the sentence which has been imposed on him.
15. The note Ex. P-7 will be returned to Laisram Kirti Singh and the remaining G. C. notes will be returned to the person from whom they were taken into custody but this order will be subject to the result of any regular civil suit which might be brought by any of the party regarding declaration of his right to those notes.