Chandra Reddy, J.
1. Twenty two persons were tried by the Sessions Judge of Visakhapatnum for the offence of dacoity. Of them, accused 1 and 3 to 5, 7 to 13, 15 and 16 were convicted and the rest were acquitted. All the appellants except A-9 were convicted under Section 395 read with Section 398, I. P. C. Accused S and O were awarded seven years rigorous imprisonment each and the rest four years rigorous imprisonment each. Accused 1, 3, 4, 5, 7, 15 and 16 have preferred C. A. 81/1055 while accused 8 to 13 have preferred the other appeal. There was a dacoity in the house of a rich Vysya family known as the Pasumarthi family consisting of three brothers on the night of 2-11-1934 in the village of Medicherla in the course of which some promissory notes, lease-deeds, jewels and cash were stolen.
This family is said to have grown rich at the expense of the village community. They were usurious money-lenders who indulged in black-marketing and rack-renting & other shady transaction & thus accumulated wealth. So, they were hated by the villagers of Medicharla and Vellanki a neighbouring village. Many of them were either the debtors or the lessees of this family. Accused 1, 3, 4, 5, 17, 19 and 22 had borrowed various sums of money from P. Ws. 3 to 5 at exhorbitant rates of interest while accused 3 and 5 were their lessees.
Accused 1 to 5, 7, 14 to 22 belong to Medicherla, A-l being the President of the Panchayat of that village, and A-7 the President of the Co-operative Society a man of influence and status. Accused 6, and 9 to 13 were residents of Vellanki village, A-6 being the Village Munsif and accused 9 to 13 being Harijans, two or three miles away from Medicherla. Accused 8 is of Ediga Community and resides at Kristarayadupeta another neighbouring village. The main object of the dacoily was said to be to get at the promissory notes and lease-deeds, while theft of jewels and cash was only secondary : The people of Medicherla in league with the Village Munsif of Vellanki induced the Harijans of Vollanki, accused 9 to 13, and accused 8 of Kristarayadupeta to commit the dacoity.
2. The prosecution case as unfolded in the evidence of P. W. 1 is as follows:
3. P. W. 1 a shepherd by caste of Krishtarayadupeta and A-8 of the same village, were friends. They were in the habit of going to Anandapuram for coffee almost every day. A week prior to the occurrence when they were having coffee at Anandapuram, accused 1, 7 and 17 came there, A-l asked P. W. 1. whether there was any Etha in his village, P. W. 1 told him that his companion A-8 was of that community. P. W. 1 and A-3 were then taken to a secluded spot in a garden and there A-l told him that Sowcar Appalanarasayya's house should be burbled and papers stolen and if they did it he would give them Rs. 100/- and that they should bring men for that purpose on the following Tuesday.
Accused 8 wanted some advance for liquor and other incidental expenses. So, A-1 gave him 11s. 9/- and instructed A-8 to come with his men by bedtime cm the appointed day to a Kallam near Medicherla where he and his men would be waiting. P. Ws. 1 and 8 went to Vellanki to contact professional thieves. They met A-9 and told him of A-1's offer. Accused 9 readily agreed to get the necessary men and do the job. Thereupon A-9 was given Rs, 9/- and was asked to bring arrack along with his men and meet P. W. 1 and A-8 on Tuesday night in a garden between the two villages. On the night of the 2nd of November 1954, P. W. 1 and A-8 went to the appointed place and found A-9 to A-1S waiting for them as arranged.
There, they all drank liquor and about mid-night proceeded to Medicherla and at the Kallam met 20 or 30 persons including A-l, A-7 and A-17. They all left for the village and there A-1 told accused 8 and 9 that they should enter the upstairs portion of the house of the family with the help of a ladder which A-1's men brought. Some of the men who came with A-l got up the ladder and went into the house. They were followed by accused 8 to 13. P. W. 1 did not, however, go with the other robbers but was keeping company with accused 1 and 7 seated some 20 yards away from the house. The robbers came down after sometime carrying a bag containing small coins and a bundle of papers and also a trunk. A-8 was disappointed at the worthlessness of the booty and said that the President had deceived them. Then A-1 told them that they should go to the thatched house wherein the iron-safe of P. Ws. 3 to 5 was kept and which was at a distance of 1.10 yards and break it open.
Then A-8 and his group and some of A-1's men went to that house end after a while cries of alarm were heard. P. W. 1 did not join even in this exploit but stood some distance away with A-l etc. Shortly thereafter, the miscreants came out and proceeded to the Kallam, There, A-1 examined the; booty and took away the papers. When P. W. 1 asked A-9 for wages, the latter took out a rupee coin, from M. O. 3 the Mara Chembu and gave it to P. W. 1. The bag of change was given to A-1's men while the bundle containing some articles was handed over to A-8, Then they all dispersed and went to their respective villages, Thus P. W. 1 implicates accused J, 7 to 13 and 17. But in the Sessions Court, ho identified A-5 also as the person who brought a bundle of papers from upstairs and handed over to A-l.
4. As to what transpired inside the house, there is the evidence of P. Ws. 3 to 8 the members of the Vysya family. P. W. 3 was sleeping in the upstair alone. In the middle of the night, he was awakened by the sound of foot-steps to find about ten persons coming towards him. Two battery lights were focussed on him. He was frightened, out of his wits and started crying 'ammo'. A man whom he then thought was A-6 sat on his chest and wanted to know where the gold, money and promissory notes were kept. Another sat on his legs while a third put out the light & it became dark. The man sitting on the chest revealed his identity as Ballanki Naidu and showed a knife and threatened to kill him if he did not say where the gold, papers, etc., were.
Then, P. W. 4 cried out ''O Pydi Naidul why do you want to kill me Take away whatever you want'. Then the man blind-folded him and turned his face down, and sat on his back. Then the robbers removed five rings, a wrist watch and a gold wrist-let from him. When asked for keys, P. W. 8 handed over the keys of the almyrah. Then they tied his legs with a bed-sheet and left the room. The miscreants went down, opened the almyrahs and took away some records and valuables, P. W. 3 freed himself alter some lime, went to P. W. 1 his neighbour, woke him and told him of the burglary and slept there till morning. The robbers went to the thatched house where P. Ws. 5 and one of the brothers, P. W. 6 their mother, P. W. 7 wife of P. W. 5 and P. W. S wife of P. W. 3 were beaten by the culprits. The wooden boxes there, were broken open and contents received (removed?). But they failed in their attempts to force open the iron-safe.
5. In the meanwhile, P. W. 4 the eldest of the brothers sleeping in another house was roused by P. W. 6 and told that thieves entered the house, lie came out and saw one man patrolling in the street with a knife in his hand, identified A-6, threatening people to attack if they should go near him. So P. W. 4 entered into another house. Alter a while, P. W. 4 gathered some men and came to the place. Before day-break he gave a complaint, Ex. P-19, to the village Munsif of Medicherla, P. W. 6. It was stated therein inter alia that A-6 armed with a knife was patrolling in front of his house and pelting stones threatening to kill any one that should approach while the house was being burgled. No other names were mentioned.
The village Munsif prepared reports on the basis of the complaint and despatched them immediately to the Police and the Magistrate. On receipt of this, P. W. 21 the Sub-Inspector of Police at Kodur proceeded to the village and arrived there at 8-30 A.M. and started investigation and examined P. Ws. 3 to 8 and others. He went to the Vellanki at 2-30 P.M. within the jurisdiction of Vellampudi station and met the Sub-Inspector of that place and exchanged intelligence, but he did not arrest A-6 or search his house. At 7 P.M. the Inspector of Police, P. W. 22 came to the village and took over the investigation. He also did not lake any action against A-6, Searches were conducted in the house of several of the accused and recoveries were made on the 4th and 5th. It was only on the 10th that A-6 was arrested under the instructions of the concerned Deputy Superintendent of Police,
6. The prosecution examined a number of witnesses, hut the direct evidence : is mainly that of P. Ws. 1 and 2. P, W. 2's evidence was rejected by the Sessions Judge as worthless and it is therefore unnecessary to refer to it. None of the victims could recognise any of the robbers. P. W, 4 no doubt identified A-0 in the Sesions Court as the person who was patrolling in front of the house with a sword in his hand and threatening to kill people that, should go near the house at the time of the offence was being committed. But he is contradicted by Ex. P-19 wherein this part is attributed to the village Munsif A-6. Nor had he mentioned the name of this accused to the police as the one who was holding the sword and standing in front of the house terrorising people there.
7. P.W. 1 the approver implicates in the crime, accused 1, 7 and 8 to 13(of the convicted persons). According to him accused 8 to 13 took an active part in the dacoity, at the instance of accused 1 and 7. Is this evidence sufficient to substantiate the the charge against these accused? It is no doubt true that it is not illegal to convict a person on the testimony of an accomplice but in practice Courts insist on some corroboration. This rule of practice has become crystallised into a rule of law. The principles, governing the evidence of an approver were stated clearly by Lord Reading Chief Justice in R v. Baskerville 1916-2 KB 658(A) in the following terms:
There is no doubt that the uncorroborated evidence of an accomplice is admissible law : See Hex v. Atwood 1788-1 Leach 404(B). But it has long been a rule of practice at common, law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, &, in the discretion of the Judge to advise; them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence; Reg v. Stubbs (1855) Dears 555(C) In re Meunier (1894) 2 QB 415(D) .
Thus rule of practice has become virtually equivalent to a rule of law, & since the Court of Criminal Appeal Act came into operation this Court has held that, in the absence of such a warning by the Judge, the conviction must be quashed; Rex v. Tale 1908 2 KB 680(K). If after the proper caution by the Judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated.
9. In Rameshwar Kalyan Singh v. State of Rajasthan : 1952CriLJ547 Vivian Bose J., who delivered the opinion of the Supreme Court quoted with approval the above passage and held that the law in this regard is the same in India also. The same view was expressed by the Judicial Committee of the Privy Council in Bhuboni Sahu v. The King 1949-2 Mad LJ 194 : AIR 1949 PC 257(G). Thus though, it is not illegal to base a conviction of a person on the evidence of an accomplice as a rule of caution and produce which has become equivalent to a rule of law, Courts require some corroboration of this evidence and it is unsafe to act on the uncorroborated testimony of an accomplice. But, the corroboration need not be by way of direct evidence and it can be in the shape of circumstances. So, even circumstantial evidence also can serve that purpose.
10. I will now turn to see whether there is enough corroboration of the evidence of P. W. 1 as against persons who were implicated by him.
11.-13. (His Lordship took up the case of A-l first and considered the evidence of witnesses against him and held it as worthless and then proceeded:
14. The learned Sessions Judge had also relied on what he regarded as motive and conduct to find this accused guilty. It is stated that this accused was indebted to P, Ws. 3 to 5 and that served as a motive for him to have the dacoity committed. Here, it should be noted that the promissory note executed by him was not missing. That apart, the fact of indebtedness could not fulfil the purpose of corroboration. The other circumstance called in aid by the Sessions Judge, namely, that the accused an influential person in the village did not visit the scene of offence in the course of the night, is even of a weaker type. It should be remembered that this accused was living at a distance more than our furlong from the house of the victims and it was explained by him that he was unaware of the incident till the next morning, Even otherwise, no inference of guilt could be drawn from such a circumstance. The assumptions made by the learned Judge in this regard are unwarranted. It cannot be said that there is any corroboration of the evidence of the approver to warrant a conviction. Further I feel that his evidence as against A-l reads rather artificial. A-1 is therefore acquitted.
15. Accused 7 is another accused implicated by P. W. 1.
16. The only circumstances that is relied on by the Sessions Judge as corroboration of the evidence of the approver is his conduct in not coming to the rescue of P. Ws. 3 to 5 that night, though a neighbour. I have already said that such conduct of the accused could in no sense be regarded us corroboration of the evidence of the approver. The statement that, without his knowledge and active co-oporation, this dastardly attack on his immediate neighbour could never have been possible is without any basis. This accused was not even indebted to that family. There is no material in the case which is sufficient to lend any support to the testimony of the approver. It follows no case has been made out against him. He is therefore acquitted.
17. I will now deal with the other appellants in C. A. No. 91 of 1955. None of them is mentioned by the approver. The main thing against A-3 is the recovery of some copper coins from his house. The search is spoken to by P. Ws. 22, 15 and 16, the search list being Ex. P-37. While not denying the search and the recovery of copper coins, A-3 explained that the females in his house preserved the coins for paying wages and for charitable purposes. The learned Sessions Judge rejected the explanation of the accused for the reason that he was not a rich man and convicted this accused. It is now well settled that if the explanation offered by an accused person is plausible, although a Court or a jury may not be convinced of its truth, the prisoner is entitled to an acquittal. The prosecution must show the explanation to be false. The law on the subject is laid clown in R v. Sehama 1914-31 TLR 88(H).
If the jury thought that the explanation which has been given might reasonably be true, although they were not convinced that it was true, the prisoner was entitled to be acquitted, because the Crown would have failed to discharge the onus imposed upon it by the law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner. In such case, the burden of the proof never changed. It always rested upon the prosecution.''
The same principle is enunciated in Rex v. Grinberg 1917-33 TLR 428(I). To the same effect is the judgment of Bajpai J. in Hori Lal v. Emperor AIR 1933 All 893(J) as also Butnath Mondal v. Emperor AIR 1931 Cal 617(K). Justice Somasundaram of Madras High Court has followed these rulings in Gangaraju v. State : AIR1950Mad778 . The explanation given by the accused appears to be plausible and is not shown to be false. Therefore, the recovery of the coins could not lead to the inference that he was associated with the crime in any way. Further in this case, the connection between the articles said to have been stolen and those recovered from the house of A-3 has not been established. In the absence of such connection, no presumption could be drawn under Section 114(a) of the Evidence Act either that, a person is the thief or receiver of stolen articles. Neither his indebtedness to that family nor his failure to go to their house alter the incident would in any way implicate him in the offence. In these circumstances, the charge against him was not substantiated and he has to be acquitted.
18. The case of A-1G stands on the same footing as A-3. The only thing that is alleged against him is that some copper coins were recovered from an earthern pot containing Ragi. The case of this accused was that these coins were kept by his mother in that place. The learned Judge was not prepared to accept this explanation for the same reason as in the ease of A-3. As his explanation appears to be plausible and is not established to be untrue, the principle of 1914-31 TLR 88(H) governs it. So, this accused also is entitled to an acquittal.
It is also curious that the learned Judge having held in the case of some of the accused that the recovery of the coins like those could not lead to the inference that the person from whose house they were seized was either the thief or receiver of stolen property, he should not have applied the same test to these two accused also. I am unable to discover any distinction between their case and the case of these two accused.
19. The case of A-4 and A-15 rests on the seizure of some article from their houses. This is spoken to by P. W. 22 and P. Ws. 15 and 16. As this fact is not disputed before me, it is not necessary to state the evidence relating thereto. There is no other evidence to connect these accused with the crime that was committed on the night in question. So, to find this accused guilty, the presumption under Section 114 of the Evidence Act has to be invoked. Section 114(a) of the Evidence Act says that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to he stolen unless he can account for his possession.
It is clear from this that it is open to a Court to presume that a person in possession of stolen goods is either the thief or receiver of stolen property, having regard to the surrounding circumstances. According to the prosecution the people behind the crime did not want to employ persons known to the members of the Vysya family and so were at great pains to engage the services of persons not known to them. It may therefore be safely taken that either of the two persons would not have participated in the dacoity and it is likely that they might have received them from dacoits. So, they must be found guilty of having received stolen property. As this property was obtained in the course of dacoity, the case of these two accused falls within the ambit of Section 412, I. P. C. Their conviction is accordingly altered into one under Section 412, I. P. C. and they are awarded two years rigorous imprisonment.
20. Accused 5 is said to have thrown the articles recovered under Ex. P-28 into a well. This discovery was made as a result of the information given by him. There is no dispute about the facts; but, what is argued is that his case comes within the operation of Section 414, I, P. C. as the part that played by him consisted in his disposing of the stolen property. He is not shown to have received any of the articles. It was alleged against him that, as requested by some other culprit, he threw the bundle into the well. Therefore the offence committed by him is only one under Section 414, I. P. C., which is punishable with an imprisonment extending to three years. His sentence is reduced to eighteen months rigorous imprisonment. It may be mentioned here that the learned Public Prosecutor did not make any attempt, and rightly, in my opinion, to support the judgment of the lower Court as against any of these appellants.
21. 1 will now take up the case of accused 8 to 13. According to P. W. 1, all these accused were participants in dacoity and that accused 8 and 9 took a prominent part. As his evidence is not sufficient by itself for the foregoing reasons, I must see if he is corroborated in material particulars, (His Lordship considered the evidence against accused 8 and proceeded : ) In my opinion, he was rightly convicted by the Sessions Judge. I do not also think his sentence can be said to be excessive.
22. (His Lordship considered the case of accused 9 and proceeded : ) In my opinion, it has been proved, beyond reasonable doubt, that this accused took part in the dacoity that night, but there is no legal evidence on which his conviction under Section 395 read with Section 398, I. P. C., could be based. No doubt, if the evidence of P. W. 4 is believed, he could be said to be guilty of that offence. But, I have already pointed out that the earliest person who is mentioned as having been patrolling in the house of P. W. 4 was accused 6 and not accused 9. Hence it is not safe to act on the present version of this witness that it was this accused that was armed with a sword and standing in front of P. W. 4. His conviction is therefore altered into one under Section 305, I. P. C. and his sentence reduced to rigorous imprisonment for five years,
23. The case of accused 10 and 11, more or less, stands on the same footing. (His Lordship considered the evidence and proceeded : ) My conclusion, therefore, is that the lower Court was right in convicting these accused under Section 395, I. P. G. in view of the observation of the learned Sessions Judge that these two accused were under the influence of accused 9 and were misguided persons, I think the ends of justice will ho met by reducing the sentence to three years rigorous imprisonment.
24. But the evidence against accused 12 and 13 is not so satisfactory as with regard to the accused mentioned above. (His Lordship dealt with the case of accused 12 and proceeded : ) It follows that the testimony of P, W. J stands uncorroborated. This accused is therefore given the benefit of doubt and acquitted.
25. Coming to accused 13, while P. Ws. 19, 20 and 22 stated that P, W. 19 and some others chased this accused while he was running away and apprehended and produced before the Inspector of Police P. W. 22, the latter deposing that he had not seen either the chase or the apprehension or the recovery of a gold wristlet from him, the mediator's report Ex. P-44 recites that it was the Circle Inspector that chased A-13 while running and caught him and brought him before some mediators, and on searching his person, those two jewels were found. Having regard to this contradiction which should be regarded as a vital one, it should be said that there is not enough corroboration to the evidence of P. W. 1 and the accused should be given the benefit of doubt. He is also aquitted. In other respect the appeal is dismissed.