1. There can be no doubt that a burglary took place in the house of one Hafiz Mushtaq Husain in the town of Moradabad on the night between both and 11th August 1943 and that a considerable amount of cloth was stolen. A report was made at the police station the next morning, and there is no reason for doubting the evidence that this offence was committed. It appears that the police obtained information about the crime sometime on 11th August and that the Sub-Inspector, a head constable and some search witnesses and others entered the house of one Kalian. The police found there the five appellants and three other men, including Kalian who ran away and escaped as soon as they saw the police. Round about the place where these people were sitting was scattered the cloth which had been stolen the night before. The appellants were found guilty of an offence of house breaking by night. Three of them who were previous convicts were sentenced to rigorous imprisonment for a period of five years and the other two to rigorous imprisonment for a period of three years. In the ordinary course this appeal would have been heard by a Single Judge, but one of our learn, ed brothers considered that it should be placed before a Bench because the inference of the appellants' guilt was drawn merely from the fact that they had been seen the next day with the stolen property scattered about. He was under the impression that some question of law might be involved. After examining the matter, we think that the only question is one of fact. Under the provisions of Section 114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. We think that it would be a reasonable inference that people had committed theft or burglary if they were seen the next day with the stolen property in circumstances which suggested that they were dividing up the booty. Such an inference would not be an inference of law; it would be a pure inference of fact based upon the common course of events and human conduct. It would, of course, be open to any people who were at the place to explain that they were there for some innocent purpose, but in the absence of any such explanation, it seems to us that any reasonable man would assume that they had taken part in the offence. In the case before us none of the appellants who were arrested in Kalian's house has attempted to explain that he was there for any innocent purpose. They all maintain that they were not arrested in that house. In these circumstances, we have no doubt, if their presence is established, that they must be guilty. We may point out that the illustrations appended to Section 114, Evidence Act, are not intended to lay down rules of law which are exhaustive of the presumptions that may be made under the provisions of the section itself or that they are intended to apply without exception. They are merely examples of circumstances in which certain presumptions may be made and other presumptions of a similar kind in similar circumstances may be made under the provisions of the section itself. We may note that every one of the illustrations is followed by an exception. Even the illustration which lays down that an accomplice is unworthy of credit unless he is corroborated in material particulars is subject to the exception which is mentioned. We are therefore to decide only the question of fact and if we are satisfied that the circumstances warrant an inference that the appellants are guilty, we must find them guilty and dismiss the appeal. In our judgment, the only question is whether they were in fact arrested inside the house because if they were so arrested they were undoubtedly guilty in the absence of any reasonable explanation of their presence in the house with the stolen property.
2. The only appellant who is represented before us is Chidda alias Gama. The other four have appealed from jail. They offered no reasonable explanation why the Sub-Inspector should attempt to implicate them or the witnesses should give false evidence that they were arrested in the house. We see no reason to doubt the evidence produced by the prosecution and hold that they were present and must have been guilty of the offence of house breaking by night. On behalf of Chidda it is argued that he has produced evidence that he was arrested not in Kalian's house but at a factory where he worked and that the reason for the fabrication of this false case against him is that he had had an altercation with the head-constable two or three days before because the head-constable's buffalo had injured his child. He has produced some evidence to prove that this incident occurred. We do not think it is necessary to examine this evidence in any detail. Even if it is true that there was some altercation that seems an insufficient reason for the fabrication of a completely false case which connected the appellant with a crime with which there was no reason to suppose that he had any concern whatsoever. Even if the head-constable had wished to implicate the appellant, we find it impossible to believe that he would have induced the Sub-Inspector on the spur of the moment to draw up records and invent evidence that the appellant had been arrested in Kalian's house when he was not arrested till later at another place. The story is not in the least plausible and is supported only by one witness Haji Mohammad Yusuf, besides the statement of the appellant himself, that is, by the man who is alleged to have employed the appellant at his factory. The learned Judge has pointed out that this witness attempted to support his evidence by producing documents which were completely unreliable. We have no doubt that this appellant also was arrested in Kalian's house and that he must have taken part in this burglary at the house of Mushtaq Husain. Learned Counsel has urged that the sentence is unduly severe. We consider that house breaking by night is a very serious offence and this particular offence was aggravated by the fact that a large number of persons took part in it. It further appears that property to the value of Rs. 900 was stolen from Mushtaq Husain's house. In these circumstances we feel that we have no justification in interfering with the sentences passed by the learned Judge of the Court below and we consequently dismiss the appeal. The appellant Chidda will surrender to his bail and serve out his sentence.