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State of Maharashtra Vs. Najibullah Shaikh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 212 of 1980
Judge
Reported in1984(1)BomCR154; (1984)86BOMLR156
ActsEvidence Act, 1872 - Sections 114
AppellantState of Maharashtra
RespondentNajibullah Shaikh and anr.
Appellant AdvocateManju Rao, P.P.
Respondent AdvocateKaiser Shroff, Adv.
DispositionAppeal dismissed
Excerpt:
.....sections 114 ill. (a), 3 -- accused found in taxi whether can be said to be in possession of taxi -- accused not giving explanation in which circumstances they happened to be seated in taxi -- prosecution not establishing anything against accused -- explanation from accused whether necessary.;clause (a) to section 114 of the evidence act contemplates the presumption that the person in possession of stolen goods may be presumed to be either the thief or a recipient of the stolen property knowing the same to be stolen. but the basic foundation for such a presumption is that such person must be in possession of the property in question. when the only evidence adduced by the prosecution is that at the time when the accused were arrested they were seated in the taxi and since to be..........a taxi was stolen during the day time. at night time the taxi was located by the police. at that time accused no. 1 was sitting behind the wheel and accused nos. 2 and 3, present respondents nos. 1 and 2, and one more person were sitting in the taxi. all of them were arrested and charge-sheeted for committing theft of the taxi. all the three accused have been convicted by the trial magistrate. no appeal was filed by accused no. 1 but accused nos. 2 and 3 filed an appeal, which appeal was allowed by the learned addl. sessions judge. the present appeal against acquittal is filed by the state against the said order. 2. only two points were urged by mrs. rao, the learned public prosecutor in support of the appeal. her first contention was that under section 114(a) of the evidence act there.....
Judgment:

Sharad Manohar, J.

1. A taxi was stolen during the day time. At night time the taxi was located by the Police. At that time accused No. 1 was sitting behind the wheel and accused Nos. 2 and 3, present respondents Nos. 1 and 2, and one more person were sitting in the taxi. All of them were arrested and charge-sheeted for committing theft of the taxi. All the three accused have been convicted by the trial Magistrate. No appeal was filed by accused No. 1 but accused Nos. 2 and 3 filed an appeal, which appeal was allowed by the learned Addl. Sessions Judge. The present appeal against acquittal is filed by the State against the said order.

2. Only two points were urged by Mrs. Rao, the learned Public Prosecutor in support of the appeal. Her first contention was that under section 114(a) of the Evidence Act there was a presumption that accused Nos. 2 and 3 were as much in possession of the taxi as accused No. 1. Her second contention was that the explanation given by the two accused namely that in fact they were not present in the taxi is found to be false and hence, they must be held to be guilty of the offence of theft.

To my mind, both the contentions are worth being rejected outright.

3. The provisions of section 114 cannot be invoked at all. Clause (a) of section 114 contemplates the presumption that the person in possession of stolen goods may be presumed to be either the thief or a recipient of the stolen property knowing the same to be stolen. But the basic foundation for such a presumption is that such person must be in possession of the property in question. In the instant case, the only evidence adduced by the prosecution is that at the time when the accused were arrested they were in the taxi. I am prepared to assume that they were in the taxi. But it does not mean that they were in possession of the taxi. Accused No. 1 who was behind the wheel and who is alleged to have driven the taxi from the place where it was seized to the Police Station may be said to be in possession of the taxi. If any such inference was to be raised, one may as well hold that the thousands of commuters in a train are in possession of the train! To my mind, such an argument needs just to be made to be rejected. If the accused were not in possession of the taxi, the question of there being any presumption against them of theft does not arise at all.

4. The second point raised by Mrs. Rao must also be rejected. It is true that the accused have not come forth with any proper explanation about the circumstances in which they happened to be seated in the taxi. It does appear that they totally denied their presence in the taxi at the relevant time. But it is well-known that the accused tend to deny their very presence at the place of offence in order to avoid all the further complications. Moreover, it is the well settled law, about which I do not propose even to cite authorities, that no explanation is required to be given by the accused if the prosecution itself has not established anything against them. In the instant case all that the prosecution has established is that the accused were present in the taxi after it was stolen. But to be present in the taxi is not to be in possession of the taxi and to be present in this taxi does not mean that the occupier of the taxi is aware of the fact that the taxi is a stolen property. If this much position is accepted, it can hardly be contended that the accused were confronted with any circumstance which called for any explanation on their behalf.

I also agree with the submission made by Mrs. Kaiser Shroff, the learned Advocate appointed to appear on behalf of the respondents. She pointed that in the instant case the prosecution has not at all established that there was any kind of relationship amongst the three accused, accused Nos. 1, 2, and 3. No conspiracy as such has been either alleged or established. No part as such played by the accused in the commission of the offence is established. Mrs. Kaiser Shroff was right in relying upon the judgment of the Supreme Court in Sarwan Singh and others v. State of Punjab, : 1976CriLJ1757 where it was held that where practically no overt act was attributed to accused and no relationship with the co-accused was established, the order of acquittal passed by the lower Court had to be upheld.

I am of the opinion that the reasoning of the learned Addl. Sessions Judge is, by and large, quite correct. The learned Judge has observed that even assuming that the present two accused were in possession of the taxi, still no offence can be brought home against them. I am, however, of the view that having regard to the facts established by the prosecution, no inference can ever be drawn that the present two respondents were even in possession of the taxi at the relevant time.

This being the position , the ultimate conclusion arrived at by the learned Addl. Sessions Judge must be upheld.

5. The appeal is, therefore, dismissed. The bail bond stands cancelled.


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