1. This is a criminal appeal by Yamin and Barkat from an order convicting them under Section 395 of the Indian Penal Code and sentencing them to 5 years' rigorous imprisonment each.
2. There can be no doubt that on the 24th of August 1923 a very serious and deplorable communal riot took place at Saharanpur. It is neither necessary to go into the history of that riot nor to give any details of it. The present appellants were charged with having been concerned in the looting of the shop of the complainant Rupchand. Rupchand's statement is that at about 3 or 4 o'clock on that afternoon he was at his shop when a great gathering of Muhammadans took place in the bazar. They were taking out their akharas. He says that he saw a crowed of 50 or 60 Muhammadans coming from the Halwai's quarter crying ' Kafiron ko mar lo' When he saw them he naturally got frightened, locked his shop and went straight away to his home which is at some distance from the shop. He did not actually see his shop being broken into or looted. He remained at his house for 2 or 21/2 hours and then, when he heard that things had settled down, he went to his shop and discovered that it had been broken into and looted. There is absolutely no reason to doubt the evidence of Rupchand and I accept it in its entirety. It may, therefore, be taken for granted that Rupchand saw a large crowed of 50 or 60 Muhammadans shouting that non-Muhammadans should be beaten, and that it was on account of the fear to his person and property that he locked his shop and went away from it. If it were established that it was this crowd of 50 or 60 Muhammadans or any members of this gang who looted his shop I would have no hesitation in holding that the offence committed was one of robbery and not merely a theft in a dwelling house. In order that the offence of robbery be committed it is not necessary that fear should be caused to the owner of the house after the robbers have entered the house. If the robbers scared away the owner on account of the fear caused in his mind before they had been able to make an entry in his house the offence of robbery would be quite complete. On the other hand if Rupchand had been scared away by this crowed of 50 or 60 men but the gang which actually robbed his house was not this gang but was some other band then I would be compelled to hold that it was simply a case of theft in a dwelling house and not robbery. If the band which actually robbed the house was not the band which had caused fear in Rupchand's mind the act of this second band would hot amount to an offence of robbery but would merely amount to a theft in a dwelling house, because neither the theft was committed in the presence of Rupchand nor was any fear caused in his mind by the gang which looted the shop.
3. The only other evidence regarding the looting of Rupchand's shop is the statement of the prosecution witness Banu Mal. This witness owns a shop opposite that of Rupchand. His statement is that he was. sitting at his shop that afternoon and kept the door of his shop partly open in order to see what was happening outside and yet to be ready to close his shop in case he feared that the crowd were going to attack it. He says that he saw some 10 or 15 Muhammadans removing the shutters of Rupchand's shop and entering it and looting it. He was, however, unable to identify the men who actually looted the shop. It is unfortunate that Banu Mal was not asked the exact time when this looting took place. It is, therefore, not possible to say definitely that the 10 or 15 Muhammadans whom Banu Mal mentioned were out of the crowd of 50 or 60 men who were seen by Rup Chand. Nor is it possible to say that the looting took place within a few minutes of the departure of Rupchand. As there was a general commotion in the town of Saharanpur it is not impossible that there were several bands of rioters marching down the streets at various times and at different places. The evidence of Rup Chand and Banu Mal leaves a gap and it is impossible to say that the 10 or 15 men who were seen by Banu Mal looting the complainant's shop were men of the group of 50 or 60 men who had frightened Rupchand away. In the absence of any such- evidence I am compelled to say that it cannot be held that the 10 or 15 men who looted Rup Chand's shop had caused any fear in the mind of Rupchand of any hurt or-wrongful restraint to his person. The looting committed by the band of 10 or 15 men cannot amount to the offence of robbery as defined in Section 390, Indain Penal Code, but would be an offence of theft in a building used for the custody of property as mentioned in Section 380, Indian penal Code. The shop of Rupchand was looted some time between 3 p. m. and 5 p. m. The exact time cannot now be stated. The accused persons were arrested in the street between 4-40 p. m. and 4 -45 p. m. The accused Yamin was found in possession of several articles, namely, a dhoti, a sangi and three pieces of chintz. These were new pieces of cloth and they have been identified by the complainant as part of the property looted from his shop. I have no doubt in my mind whatsoever that these articles belonged to the complainant and were part of the stolen property. These were capable of being identified and they were unsewn pieces of cloth which would not ordinarily be worn. The accused Yamin was carrying them under his arm. In the Court of Session Yamin had denied having been found in possession of these articles, but I am satisfied that he was found in possession of these articles at the time of arrest.
4. The other accused Barkat was found to wear a chintz turban on his head. The accused before the Magistrate claimed this turban as his own property. The turban, however, bore the label of the shop of Ratnam and Co., glued to the stuff and the chintz was quite unwashed and was fully recognised by the complainant as belonging to him. I am satisfied that it was a part of the stolen property and was found on the person of the accused Barkat at the time of his arrest.
5. It is, however, to be noted that no one was able to identify either Yamin or Barkat as being among those men who entered the shop of Rupchand and looted it. The conviction of Yamin and Barkat rests on the evidence of their being found in possession of the stolen articles very soon after the offence. When the stolen property is found in the possession of a person soon after the theft the Court is, under Section 114 of the Indian Evidence Act, entitled to pre-gume that either that person is himself the thief or he has received the goods knowing them to be stolen, unless he can account for his possession. In the present case both the accused have entirely failed to adequately account for their possession of these articles. It was, therefore, open to the Court to draw the presumption either that they themselves had stolen these articles from the shop of Rupchand or that they had received these articles knowing them to be stolen. The learned Judge has held that the presumption is that, these accused persons were themselves the principal offenders. He has given reasons for drawing that presumption. On the other hand it has been brought to my notice that in another case arising out of a similar looting which took place on the same day at the same town, viz., Saharanpur, a Division Bench of this Court in the case of Bashir accused (Criminal Appeal No. 1109 of 1923, decided on the 15th of February 1924) held him guilty under Section 411, Indian Penal Code because he was found in possession of certain articles which had been stolen from the house of the complainant in that case. From the mere fact that the articles were discovered in his possession soon after the theft the learned Judges did not draw the presumption that Bashir was the thief himself. As there is always a possibility that the accused got these articles, which they must have known were stolen, from some other persons or might have picked them up when dropped by the real thieves, I think that it would be safe to follow the precedent referred to by me. I would, therefore, draw only the presumption that the accused persons having been found in possession of the stolen goods soon after the theft had received the goods knowing them to be stolen, as they were not able to account for their possession.
6. I have already found that on the statement of the complainant Rupchand and that of the only other prosecution, Witness Banu Mal it is impossible to hold that a robbery had been committed. It follows, therefore-, that the accused persons must be convicted under Section 411, Indian Penal Code, for having received properties which they knew had been stolen and which, in fact, had been stolen in the course of a theft in-side a shop.
7. Under the circumstances of this case, however, I must impose the maximum sentence of imprisonment permissible under Section 411, Indian Penal Code. I accordingly set aside the conviction and sentence of both the appellants under Section 395, Indian Penal Code, and instead convict both the appellants under Section 411, Indian Penal Code and sentence them each to rigorous imprisonment for a term of three years. With this modification the appeal is dismissed.