1. The State has come here in appeal as well as in revision from an order to acquittal passed by the Judicial Magistrate, First Class, (Fourth Court), Nagpur, against two accused-respondents under Sections 457 and 380 of the Indian Penal Code, The revision application is with a prayer that the sentences inflicted by the learned Magistrate for the offence under Section 414, Indian Penal Code against accused No. 1 and under Section 411, Indian Penal Code on accused No. 2 should be enhanced. They were sentenced to simple imprisonment till the rising of the Court.
2. Both the accused were charged with an allegation that they had committed house-breaking by night between April 28, 1967 and April 29, 1967 by entering into a house where some articles of Shardabai were kept. It is alleged that they had committed theft of her articles there. Shardabai's husband who was working in the Mental Hospital at Nagpur had died and, therefore, she had to vacate her husband's premises. She had, therefore, gone out to stay but had kept her articles including her suit-case consisting of clothes and golden ornaments in the house of a friend by name Chhaglani, who was an employee working in the Mental Hospital and was staying in the quarters provided for the employees of the Mental Hospital. On April 28, 1967 Chhaglani had gone out of Nagpur to Bombay having locked his house when he had requested his neighbour Mr. Gadgil and some others who were staying nearby to look after his house. Mr. Gadgil and some others found on April 29, 1967 the back door of Chhaglani's house open. They suspected theft. They found that a theft had been committed in the house. The police were immediately informed about this. The police reached the spot and found that the back door of the house of Mr. Chhaglani was broken open and theft committed in the house.
3. An investigation therefore was started. The suit-case as well as some clothes were discovered in consequence of the information given by accused No. 2. The suit-case was discovered in the house of accused No. 2 on May 6, 1967 and the clothes were discovered in a drain behind the house of accused No. 2 on May 7, 1967. The suit-case and the clothes were identified by Shardabai to be of her husband. In consequence of the information given by accused No. 1 a golden chain and a ring and Mangalsutra were also recovered from one goldsmith by name Nathu Mahadeo on April 80, 1967. In consequence of accused No, 1's information, a gold Doric and two gold beads were also recovered from one John with whom these ornaments were pledged by accused No. 1 on or about May 8, 1967.
4. After the necessary investigation, a charge-sheet was sent against both the accused. Both the accused have blamed John for having committed the offence. Accused No. 1 has stated that he had a quarrel with John on account of some hen and according to him John had committed this theft. Accused No. 2 also has stated that he had a quarrel with John and that John had committed the theft and not he.
5. The learned Magistrate after hearing the case has come to the conclusion that the articles which were recovered were established by the prosecution to be stolen articles belonging to witness Shardabai. According to him, the accused had given absolutely no explanation whatsoever regarding their possession of those stolen articles. He has observed that because the property was not traced immediately after the theft with the accused, therefore, he drew a presumption that accused No, 1 Baba had committed an offence punishable under Section 414, Indian Penal Code and accused no. 2 William had committed an offence punishable under Section 411, Indian Penal Code, He took into consideration the youth of both these accused and also the jail custody before the judgment. He, therefore, sentenced each of the accused to simple imprisonment till the rising of the Court. This order of conviction as well as sentence therefore is challenged here by the State.
6. The prosecution have established the factum of theft by reliable evidence. Witnesses Chhaglani, Dinkar Gadgil and P.S.I. Supekar have established this fact. Witness Chhaglani has stated that after Shardabai's husband Dr. Ramteke died, Shardabai had kept her big box in his house and he kept that box in his bed-room. She had also kept some smaller boxes in the big trunk. He had to leave Nagpur on April 28, 1907 and therefore he closed all the doors and windows of his house and locked them. When he went out of Nagpur, the articles of Shardabai were intact in his bed-room. When he received communication about the house-breaking, he returned back. Witness Dinkar Gadgil deposes that he lives near the quarter of Mr. Chhaglani and he was looking after the quarter of Mr. Chhaglani when he went out of Nagpur. He was taking rounds of his house and he found his house as well as its doors and windows intact and closed till April 28, 1967. On the morning of the next day, the sweeper informed that Mr. Chhaglani's house was broken. He therefore collected other neighbours there and went to the house of Mr. Chhaglani. He found the hook of the door which was locked broken. The door was open. When he entered the house, he found the lock of the inner door also removed. He found a trunk in the room open. The latches of the other trunks were also broken. Some papers were lying here and there. He had therefore reported this incident to the police. His report is at exh. 13. In addition to this evidence, we have also the evidence of P.S.I. Supekar who had arranged to record the panchanama of the scene of offence. It is at exh. 28. All this evidence therefore clearly established that an offence of theft was committed at the house of Chhaglani and the suit-case and other articles of Shardabai were stolen from his house.
7. The articles that were recovered during the course of investigation were also established to be stolen property. Shardabai after giving out her story of keeping the suit-case and other boxes in the house of Chhaglani, identified her golden chain which is article A, and ring which is article B, which had fitted on her finger. She also identified the pair of Dorlas and the pair of golden beads which are articles G and C-2. She was using all these articles herself. The beads are articles D-1 and D-2. She also had identified the pants articles E & F belonging to her husband. The suit-case article G was identified by her. Her husband's name was written on it below the handle but it was scored out. Her identification goes absolutely unchallenged because she was not cross-examined at all. Therefore, she has identified all this property which was produced in Court. In addition to this evidence, we have also the evidence of witness Ramkrishna who held the identification parade of the articles. His evidence also is unchallenged. On May 9, 1967 he held the identification parade of all the articles that were recovered during the course of investigation. These articles were identified by witness Shardabai on that day when those articles were mixed with similar other articles. That memo is at exh. 11,
8. The two panch-witnesses Maroti Humane and Maroti Khandare however do not support the prosecution. Maroti Humane was examined for the purpose of showing that the suit-case was discovered in the house of accused No. 2 in consequence of his information and Maroti Khandare was examined for the purpose of showing that the clothes belonging to Dr. Ramteke were found in consequence of the information of accused No. 2 in a drain behind the house of accused No. 2. Maroti Humane however admits during the course of his cross-examination by the Police Prosecutor that the suit-case was found in the house of accused No. 2 during the search of his house. There was also rubbed out semi scored out name 'Ramteke' on the suit case. Both these witnesses admit having signed on the memorandum relating to the information given by accused No. 2, Maroti Humane says that he can read and write. Maroti Khandare does not give any answer as to why he had signed the memorandum as well as the seizure memo of the two pants which were found in the drain behind the house of accused No 2.
9. But we have the evidence of P.S.I. Patil who establishes the memorandum of the statement of accused No, 2 William which is at exh. 6. According to him after giving the information this accused took them to his house behind the Medical College and produced the suit-case. This suit-case was identified by Shardabai to be her own. The seizure memo is at exh. 7. The name on the suit-case was scored out. He also proves the information of this accused regarding the clothes which he had kept in a drain. That memorandum is at exh. 19. The seizure memo is also at exh. 20. These two pants were identified by Shardabai as those of her husband. Therefore, although the two panch witnesses Maroti Humane and Maroli Khandare did not help the prosecution, Maroti Humane admits the recovery of the suit-case in the house of accused No. 2. There is no reason why
10. I should not rely on the evidence of P.S.I. Patil when he says that the two stolen pants were recovered in a drain in consequence of the information given by accused No, 2. I am, therefore, inclined to rely on his evidence. The prosecution therefore, can safely be said to have established that accused No. 2 was found in possession of this stolen suit-case on May 6, 1967 and also the two stolen pants on May 7, 1967.
11. So far as accused No. 1 is concerned, we have then the evidence of John and also of Nathu Mahadeo a goldsmith. John deposes that accused No. 1 Baba had gone to him because he had known him for two years. He had brought 2 golden Dorlas and 2 golden beads and was telling him that he was in need of money and wanted therefore to pledge those articles with him for a sum of Rs. 15. He promised to return that sum after a couple of days. Therefore, he kept those articles and took away from him a sum of Rs. 15. He then says that ten days later, the police had come along with the accused to his house, but he was not in his house but had gone to Bhandara. After his return, he produced those golden ornaments in the Sadar Police Station on May 18, 1967. Nathu's evidence is corroborated in material particulars by the evidence of Bhaurao. The evidence of John has also gone unchallenged. The two Dorlas and two beads were identified by Shardabai as her own. She had been using these ornaments herself. The other witness Nathu also implicates this accused No, 1 and says that the accused had come with his son-in-law Bhaurao and was telling him that he was in need of a sum of Rs. 250 for the marriage of his sister. He wanted to pledge those ornaments for this sum. He, therefore, advanced a sum of Rs. 230 to accused No. 1 after keeping these ornaments with him. One week later the P. S. I .Patil had come to his shop with that accused and, therefore, he had to produce these articles. His evidence is absolutely unchallenged. Therefore, the evidence of John and Nathu clearly showed that accused No. 1 was in possession of a golden chain and a ring belonging to Shardabai on April 30, 1967 and also two Dorlas and 2 beads on or about May 8, 1967.
12. The offence is committed in the night between April 28 and 29, 1967. Accused No. 1 was in possession of the stolen chain and ring on April 30, 1967. He was also in possession of the stolen Dorlas and beads on or about May 8, 1967. Accused No, 2 was found in possession of the suit-case on May 6, 1967. He was also in possession of the pants belonging to Dr. Ramteke the husband of Shardabai on May 7, 1967. In my view, therefore, the possession of not only accused No. 1 but also of accused No. 2 is in very close proximity to the time when the offence was committed. A point, therefore, naturally arises now to see whether under Section 114 of the Indian Evidence Act, we have to presume that each of these two accused is a thief of we have to presume that he is a person who was in possession of stolen articles. Accused No. 1 was found in possession of the stolen chain and ring only on the day next to the day of offence. There can therefore be no doubt that he must be the person who had committed the theft. He was also found in possession of the stolen beads and stolen Dorlas on or about May 8, 1967. Considering the nature of the articles which are the subject-matter of theft, even this date, in my view, would be a good ground to hold him responsible for the theft. Accused No. 2 was also found in possession of the stolen suit-case on May 6, 1967. He was also in possession of the stolen clothes on May 7, 1967, In my view this date also is so proximate to the date of offence that he could easily be presumed to be a thief.
13. A point now arises whether the two accused should be held to be guilty for the offence punishable under Section 457 as well as Section 380, Indian Penal Code or they should only be held responsible for an offence of theft. It is the contention of the learned advocates for the accused that under Section 114 of the Indian Evidence Act we could only hold each of the accused either as a thief or as a person in possession of the stolen property. According to them, the presumption cannot apply also to other offences such as Section 457, Indian Penal Code. It, is however, difficult for me to accept this contention.
14. In Wasim Khan v. State of U.P.  A.I.R. S.C. 400 the Supreme Court were considering during the course of their judgment a question whether the evidence before them in the case established that the appellant murdered and robbed Ramdulari in view of the recent possession of property of the deceased. The evidence before them had established that the dead body of Ramdulari was found on July 8 and some of his goods which had disappeared were found in the possession of the appellant on July 6, Of course, their Lordships were considering a case of murder and not either a case of robbery or a case of lurking house-trespass. In para 7 of the judgment the Supreme Court has observed as follows :.Before we deal with that evidence, it is necessary to consider how tar recent possession of property of a deceased, in circumstances clearly indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had connection with the theft.
In the case of 'The Emperor v. Sheikh Neamatulla' (1918) 17 C.W.N. 1077, at p. 1080, Sir Lawrence Jenkins had the occasion to examine this question. After referring to a. 114, Evidence Act, he quoted the following passage from Wills on Circumstantial Evidence :.the possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder ; which special application of it has often been emphatically recognized.In the case of-'Queen-Empress v. Sami' (1800) I.L.R. 13 Mad. 420, at p. 432, the learned Judges of the High Court observed:.Under these circumstances, and in the absence of any explanation, the presumption arises that any one who took part in the robbery also took part in the murder. In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery...In the case of-'Emperor v. Chintamoni Shahu  A.I.R. Cal. 879 the opinion was expressed that.the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with theft; this particular fact of presumption forms also a material element of evidence in the case of murder.A similar view seems to have been taken in the case of-'In re Venkataswami' A.I.R.  Mad. 809 as well as in the case of-'Ramprashad Makundram v. The Crown'  A.I.R. Nag. 277.
15. Therefore, it is clear from the above cited decisions by the Supreme Court and also the view of the Supreme Court that the presumption would not only apply to offences like theft but also to offences like larceny, murder and any other more aggravated crime which has been connected with theft. In Tulsiram v. State : AIR1954SC1 the Supreme Court observed that the presumption permitted to be drawn under Section 114, Illustration (a), Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased were found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. It appears to me, therefore, that the presumption under Section 114, Illustration (a), of the Evidence Act would not only apply to an offence of theft but also to other offences like murder, robbery, larceny, connected with theft. The learned advocate for the accused had invited my attention to the observations of Mr. Justice Dua in Hazara Singh v. State  A.I.R. Punjab 286 which show that there could not be any presumption of lurking house-trespass in the case of a person found with stolen articles immediately after the theft knowing them to be stolen. But that view appears to be mistaken in view of the opinion of the Supreme Court cited by me above.
16. Therefore, in our case, there is evidence to show that the theft was committed in the house of Chhaglani where articles of Shardabai were kept in the night between April 28, 1967 and April 29, 1967. The prosecution have also established that there was a house-breaking by night and the thieves entered into the house of Chhaglani in the night between April 28, 1967 and April 29, 1967 for the purpose of committing theft. Theft actually was committed. It cannot be said in the circumstances of our case that somebody had committed house-breaking by night by entering the house of Chhaglani and went away and somebody else committed theft of the property which was lying there in the broken house of Chhaglani. The circumstances of our case show that the person who committed the house-breaking by night by entering the house of Chhaglani had committed theft. We have found that both the accused were found in possession of the stolen property belonging to Shardabai almost immediately after this offence. It would, therefore, be quite legitimate to conclude that both the accused have committed not only the offence punishable under Section 457, Indian Penal Code but also the offence punishable under Section 380, Indian Penal Code. In this view of the matter, therefore, it would be difficult for me to agree with the finding of the trial Court,
17. It does appear to me that the sentence inflicted by the trial Court is very light. Both the accused, however, are very young persons. Even taking into consideration their youth, I will have to sentence each of the accused-respondents at least to a sentence of two years under Section 457, Indian Penal Code and one year under Section 380 Indian Penal Code,
18. I, therefore, allow the appeal, set aside the order of acquittal of the accused-respondents under Sections 457 and 380, Indian Penal Code and convict each of them under Section 457, Indian Penal Code and sentence each of them to suffer rigorous imprisonment for two years and I also convict each of the accused-respondents for an offence punishable under Section 380, Indian Penal Code and sentence each of them to suffer rigorous imprisonment for one year. Both the substantive sentences shall run concurrently. I set aside the order of conviction of the accused-applicant under Sections 411 and 414, Indian Penal Code and the sentences thereunder imposed by the trial Court. The revision application, therefore, has become infructuous.