P.V.B. Rao, J.
1. The 18 appellants in Criminal Appeal No. 2 of 1956 and the appellant in Criminal Appeal No. 13 of 1956 were convicted by the learned Assistant Sessions Judge, Mayurbhanj after trial of these 19 persons along with 11 others on charges under Sections 395 and 412, I. P. C. and were sentenced to various terms of imprisonment. Appellants Nos. 1 to 7, 9, 10, 12 to 14, 17 and 18 were convicted Hinder Section 395 I. P. C. and were each sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for a further period of 3 months.
Appellants Nos. 8 and 16 were convicted under Section 412 I. P. C. and were each sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 50/- in default to undergo rigorous imprisonment for a further period of one month. Appellants Nos. 11 and 15 were convicted under Section 412 I. P. C. and were each sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for a further period of 3 months. The appellant in Criminal Appeal No. 13 of 1956 was convicted under Section 412 I. P. C. and was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 300/-, in default to undergo rigorous imprisonment for a further period of 3 months.
2. The prosecution case is that there was a dacoity at about 8-30 P. M. on 27-9-54 in the house of one Banshidhar Behera (P. W. 5)in the village Panaspada under the following circumstances. Banshidhar Behera was going to his bed room after his night meals when about 30 persons entered into his house through the western door near his threshing floor and four of them caught hold of him and tied his hands by means of his muffler which was on his head. Some of these 30 persons had lathis, some torch lights and some had swords dazzling in their hands. P. W. 5 raised a cry for help, but he was threatened not to shout and he was assaulted by fist-blows and slaps.
On hearing his cry, his mother Rambha Bewa (P. W. 4) and his sister Mallikamani Dei (P. W. 3) who was in advanced stage of pregnancy ran to him from the kitchen, block and his wife who was with her baby sleeping in a room in the kitchen block concealed herself in that room. The remaining inmate, apart from the two Mulias, was Harihar Behera, the husband of P. W. 3 who, it is stated, was then out of the house having gone to a shop for purchase of Bidis. When P. Ws. 3 and 4 came to P. W. 5 on earing his cry, they were tied by their respective hands by the ends of their Saris and tied to two different posts.
The dacoits then forced open the door of the bed room, entered into it and dragged P, W. 5 therein. They took possession of the Gun (M- O. VII) belonging to P. W. 5, broke open the wooden box (M. O. VI) both of which were in the room, and took the gold Kanthihar of P. W. 4 (the torn pieces are marked M. Os. II to II-5) and some cash from the said box. They also took the five cells torch light (M. O. VIII) and another three cells torch light from the said room. Then it is stated that they demanded P. W. 5 to show the other articles by assaulting him and that at the entreaty of P. W. 4, she was allowed to follow her son with her hands tied.
She, it seems, entreated the dacoits not to assault her son and promised to give away all. Some of the dacoits went to an open room inside the compound surrounded by other blocks, broke open the almirahs and took away the contents including Dhotis, Saris, Tussur Dhotis Katia Chudders and Rs. 2000/- in two rupee notes pinned together in ten bundles which were wrapped in a durry and some durries including M. O. X. from one almirah and cash and some silver ornaments from another almirah. They then forced open the room in which there was an iron-safe and demanded the key of the safe. P. W. 4 asked her son to make over the key.
They opened the safe and took away the cash in five and ten-rupee notes and ornaments. Then they further assaulted P. W. 5 demanding other articles, but P. W. 4 fell at their feet saying that they had none. They took away a gold chain from the neck of P. W. 5, another gold chain (torn pieces are marked M. Os. I and I-I) from the neck of P. W. 3 and one silver chain from the neck of P. W. 4 which was later found from a paddy field. They also took several silver ornaments and other cloths and napkins. They dragged P. W. 5 to the threshing floor, left him there and decamped with the booty.
3. It is stated that after the dacoits left, the villagers including P. W. 2 came to the house of P. W. 5 who was then unable to speak. The villagers examined the rooms, but the inmates who had not then verified the articles Stolen could not give details of those articles. Next morning P. W. 2 Madhab Behera was sent to Basta Police Station to lodge the First Information Report which he got written by Ramanath Sahu (P. W. 34) and produced it before P. W. 47 the then Officer-in-charge of Basta Police Station who treated it as the First Information Report (Ext. 4).
4. It may be noted that the First Information Report does not mention either the names of the accused persons or any particulars regarding them, nor does it give the list of the stolen properties. According to the prosecution case, the offenders were traced in what appears to me to be a very novel way. It appears the villagers of Agatmala were summoned to attend a Panchayat meeting in the evening of the date of occurrence (27-9-54). Finding that 11 persons who were some of the accused in this case were absent from home, P. Ws. 44 and 45, Banamali Dutt and Madhusudan Panda respectively, were sent to ascertain if some persons of Bodhana were absent.
At this village it was ascertained that two persons from Bodhana who are accused in this case and two other accused persons of Baunsabani were found absent from home. It appears P. Ws, 44, 45 & 21 and others intended to approach Krutibas Nanda (P. W. 10), the Sarpanch of Naikudi Gram Sabha, but finding him absent, they approached Krutibas Panigrahi (P. W. 11) a member of the Adalti Punch who advised them to inform the matter at the Police Station taking a report from Chintamani Jena (P. W. 23), the Secretary of the Gram Sabha.
The report (Ex. 32) was taken at about 3 A. M. on 28-9-57 and was made over to Shri Dharanidhar Jena (P. W. 49) the then Officer-in-charge of Singla Police Station. But the station diary entry appears to have been made at that police stat on at 3 P.M. It appears, appellant No. 4 Jhatu Patra, while coming to the village, on being questioned by the villagers made a confession that he had been to the house of a Sundhi of Panaspada to commit dacoity and that he gave also the names of the eleven persons of Agatmala as also the two persons of Baunsabani and his brother Teru Patra as some of the dacoits.
It is stated that he made over a sum of Rs. 20/-in 10 two-rupee notes (M. O. LXXXIX), stating it to have fallen to his share, to Shyamsunder Patra who subsequently made it over to P. W. 49 who seized it. P. W. 49 arrived at the village by about 5 Ghadis in the might. Appellant No. 11 Kartik Bhanj, it appears, produced the portion of the gold Bichhahar (M. O. I) and 2 two-rupee notes (M. O. XXD before P. W, 49 who seized them. At Agatmala, at about ten Ghadis in the night, Dibakar Jena, Hara Dutt, Govind Dutt (appellant No. 5) Ram Chandra Dutt (appellant No. 2), Bhagaban Patra (appellant No. 7), Sadasiv Das (appellant No. 1), Dibakar Das (appellant No. 6), Ram Chandra Das and Ganesh Giri (appellant No. 10) each made a confession before the villagers that they had gone to the house of a Sundhi at Panaspada to commit dacoity.
The confessions were not relied on by the trial Court. By that time the police party appeared when they all fled away. It is stated that Sadasiv Das (appellant No. 1) produced the portion of gold Kanthihar (M. O. II-3) and 5 two-rupee notes (M. O. LV) and his mother produced durry (M. O. X) which P. W. 29 Shri Basant Kumar Nag, Assistant Sub-Inspector of Police seized. Ram Chandra Dutt (appellant No. 2) produced one Adhulimala (M. O. XX) and 15 two-rupee notes (M. O. LIV) before P. W. 49 who seized them.
Ram Chandra Dutt also made over the gold Kanthihar (M. O. II) to Ram Chandra Das who made it over to P. W. 29 who seized it. Durgamani Dei, the wife of Govinda Dutt (appellant No. 5) produced one Adhulimala (M. O. XXI; and 9 two-rupee notes (M. O. LVI) before P. W. 49 who seized them. Radhika Dasi wife of Dibakar Das (appellant No. 6) produced 5 two-rupee notes before the said sub-inspector who seized them. Dibakar Das himself produced the gold Kanthihar (M. O. II-4) which the said Sub-Inspector seized. Bayani Bewa, the mother of Ganesh Giri (appellant No. 10) produced one red flower bordered Sari (M. O. LXX), one two-rupee note and one Adhulimala (M. O. XXV) before the said sub-inspector who seized them.
Lakshmidhar Dutt (appellant No. 9) produced a portion of gold kanthihar (M. O. II-2 ) five-rupee notes before the Sub-Inspector who seized them. During search to the house of Bhagaban Patra (appellant No. 7), two Katia Chudders (M. Os. XXVII-3 and XXVII-4) belonging to P. W. 5 were seized. His joint brother Brundaban Patra (appellant No. 8) produced cut portion of one gold Kanthihar (M. O. II-5I) and 5 two rupees notes belonging to P. W. 5 before P. W. 49 who seized (hem.
When Pravakar Panda (appellant No. 3) was returning home via Bodhana in the morning of 29-9-54, on seeing the villagers approaching him, he threw away something to the paddy field which could not be recovered, and produced 9 two-rupee notes admitting that the said money fell to his share, which were subsequently seized by P. W. 49. P. Ws. 44 and 45 detected Mani Bewa, the mother of Ram Chandra Dutt (appellant No. 2) while she was concealing one Chudder (M. O. XCIII), one white Chudder (M. O. XCVI) and one pillow case (M. O. XI) and produced them before P. W. 29 Baina Mandal (appellant No. 15) while in police custody led P. W. 49 to the house of P. W. 14 Radhika Bewa who having then made over a portion of gold necklace (M. O. II-1) and a silver Chandrahar (M. O. XIV) given to her by Baina Mandal to her son-in-law Sanatan Mandal (appellant No. 16), brother of Baina Mandal, all went to Sanatan who produced the same before the Sub-Inspector of Police who seized them.
During the absence of Kati Das (appellant No. 18), his wife Punti Dei produced many silver ornaments including M. Os. III to V and XV series to XVIII with several other gold ornaments before P. W. 6 Shri Mangobind Mandhata, Sub-Inspector of Police, who seized them. Kati Das while in police custody himself produced the gun (M. O. VII) from inside his tank to P. W. 18 Sk. Bofat, the constable who took the appellant Kati Das and the gun to the police stations, Jatni Dei, wife of Gajendra Mohanty (appellant No. 12) produced one Sari (M. O. LXH) and Tusser Chudder (M. O. XXVII) which were seized by P. W. 49. Gajendra Mohanty himself produced 7 two-rupee notes which were seized by the said Sub-Inspector Srushitidhar Das, brother of Gouri Das (appellant No. 17) produced one Sari, 14 cubits long (M. O. XXVIII), Dhotis (M. O. LXIV) and several other articles before the said Sub-Inspector who seized them.
Bishnu Roul (appellant No. 13) produced a rolled gold necklace (M. O. XXXVII), a piece of Dhoti (M. O. XXVI) and 4 two-rupee notes before the Sub-Inspector who seized them. On house search, Dhoties (M. Os. XXXIII-2 and XXXIII-4) Saris (M. Os. 34 72? 62 and 634), Taitas (M. O. LXIV) and silver rings (M. O. LXXIV) were recovered from the house of Sanatan Mandal (appellant No. 16) which were seized. Thakur Bej (appellant No. 14) produced a portion of gold chain necklace (M. O. I) and 7 two-rupee notes before the said Sub-Inspector who seized them. The torch light (M. O. VIII) was seized from Arjun Samal (the appellant in Criminal Appeal No. 13 of 1956.
5. It can thus be seen that most of these articles are stated to have been recovered from the respective accused persons even before the Officer-in-charge Basta Police station took up the investigation. These were all made ready by the time the Sub-Inspector in charge of Basta Police station came to the villages for investigation.
6. About 50 persons were examined as prosecution witnesses and the learned Assistant Sessions Judge, after a careful consideration of the evidence, came to the conclusion that 11 of the accused persons were not proved to be guilty and so acquitted them.
7. There was an identification parade of the accused persons as also a test identification par de of the articles seized at which some of the articles stolen as also some of the accused were identified by P. Ws. 3, 4 and 5 and others.
8. All the appellants as also the other accused who were acquitted pleaded not guilty. Some stated that they were present in their villages in the night of the occurrence and some explained their absence from their villages. After a discussion of the relevant evidence in the case, the learned Assistant Sessions Judge came to the conclusion that a dacoity was committed in the house of P. W. 5 on the night of 27-9-54. This finding was not challenged by the learned counsel for the appellants. Mr. M.S. Rao.
The learned counsel's main contention was that the identification, of the accused as well as the properties stolen should not be accepted; that the prosecution story appeared as if the accused were implicated on a fantastic theory that all of them produced one or other of the stolen articles before the Officer-in-charge of Singla Police Station, that the learned Assistant Sessions Judge erred in convicting some of the appellants on the mere production of currency notes, which are unidentifiable articles; and that the alleged seizure of certain incriminating articles from the other appellants on production cannot be accepted as an incriminating circumstance on the evidence in the case as they claimed them as their own articles which are available in the market and are of general use.
9. Mr. M.S. Rao, the learned counsel for the appellants laid much stress on the non-mention of any of the articles stolen in the First Information Report (Ext. 4), It is the evidence of P. W. 2 that by that time he went to the house of P. W. 5 and the next morning also when P. W. 5 was in a position to talk about before going to the Police Station. By that time P. W. 2 was also aware of the fact of snatching away of the necklaces from the necks of P. Ws. 3 and 4.
The learned counsel submits, though P. W. 2 was aware of the loss of these articles as also the gun, he did not mention those facts in Ext. 4 as he was asked not to do so by P. W. 5. The First Information Report alleged that some people of Mayurbhanj side were suspected to have taken part in the occurrence. P. Ws. 3 and 5 stated that the accused talked a language used by Mussulmans and were wearing Lungis. P, W. 2 who saw these people for some seconds also could not say to which pant of the country the thieves belonged, but only suspected them to be of Mayurbhanj side.
10. There were test identification parades for the accused as well as the stolen articles. The first test identification parade was held at the instance of P. W. 47 by P. W. 30 on 15-10-54 in respect of the suspects. P. W. 5 identified Bina Mandal (appellant No. 15), Kati Das (appellant No. 18) and two others. P. W. 9 identified two persons, but he did not identify them in Court. The learned Assistant Sessions Judge was of opinion that this identification parade was not properly conducted, as the evidence with regard to the non-suspects mixed up was not believed by him. The second test identification parade of suspects was conducted by P. W. 46 on 30-12-54 inside the premises of Balasore Jail. P. W. 24 identified Kati Das (appellant No. 18) and another P. W. 3 identified two persons, but the learned Assistant Sessions Judge did not take it into consideration as she did not identify any person in both the committing Magistrate's court as well as the Sessions Count. The test identification parade of the articles was held on 23-12-54 at the Singla Hat near Singla police Station. It is unfortunate that this identification parade was held about three months after the occurrence and the learned Assistant Sessions Judge rightly remarked that it was: due to the negligence of the magistracy.
11. The main articles, the identification of which and the recovery of which were the bases of the convictions of the appellant are the pieces of Jhinjiri necklaces (M. Os. I and I-1), the pieces of another necklace (M. O. II series), the gun and the torch light as also M. Os. Ill, IV and V, M. Os. I and I-1 were identified by P. Ws. 3 to 5 as belonging to P. W. 3. The learned Assistant Sessions Judge was of opinion that as this necklace was worn by P. W. 3, she could well identify the same. There is no special mark of identification on any of the articles identified. M. O. II series are little heavier cut portions than M. O. I series. In M. O. II-1, there are two pieces. P. Ws. 3 to 5 identified them as used by P. W. 4. These pieces of M. O. II series appear to me to be highly alloyed with base metal, the percentage of gold being not more than 25. This was the necklace worn by P. W. 4, but it was taken away and kept in a box and was substituted by a silver necklace. P. W. 35 is the goldsmith who prepared a gold Kanthihar for the father of P. W. 5. But his evidence cannot be accepted as he stated that except the seven pieces of necklace there were no gold ornaments in the test identification parade.
There were M. Os. I and M and other gold articles mixed up with them brought by the Sub-Inspector and cult into pieces by the Magistrate. Even with regard to the identification of the necklace which he said he prepared, he was not able to pick up all the seven pieces which according to the prosecution made up that necklace, but Only picked up one piece. He could not even state the time when he identified them in the test identification parade. I am of opinion that the learned Assistant Sessions Judge ought not to have accepted the identification made by P. W. 35 and ought not to have relied upon that as the reasons given by the learned Assistant Sessions Judge are mere surmises.
12. The recovery in two pieces of M. O. I and in seven pieces of M. O. II from several accused appears to me to be very suspicious. The prosecution says that they were made into pieces as the dacoits divided the booty amongst themselves and each was in possession of separate pieces. But there are only nine pieces and the dacoits are thirty if not more.
Further it is the prosecution case that more than Rs. 5000/- in the shape of currency notes formed the subject matter of dacoity. Under these circumstances, it is incredible to accept the theory of division of the necklaces. Under the circumstances in his case two dacoits could have taken the necklaces one each and the others could have easily been given their money value. The suggestion of the learned counsel that this division was had recourse to by the prosecution in order to implicate as many appellants as possible has in my opinion, same force. I cannot also accept the reasoning of the learned Assistant Sessions Judge in holding that P. Ws. 3 and 4 identified the necklaces as women can generally identify their jewels.
Women may identify the necklaces even without marks of identification if they are whole and unbroken, but they can never identify a piece of a necklace of ordinary type if if is made into several pieces each piece about 2 inches in length.
13. P. Ws. 3, 4 and 5 identified M. O. III, a pair of silver Balas as belonging to P. W. 3 who stated that this was used by her. M. O. IV, one silver Chandrahar was recovered along with M. O. III from the house of Kati Das (appellant No. 18). It was identified by P. Ws. 3 and 4 who stated that it belonged to P. W. 3, but P. W. 5 seated that it belonged to P. W. 4. These two articles have a new appearance. M. O. V is one silver S nthi which was also produced by Kati Das. P. Ws. 3 to 5 claimed it to be theirs and stated that it was used by the dancing boys and it belonged to P. W. 5. M. O. VIII is a torch light recovered from the possession of Arjun Samal, appellant in Criminal Appeal No. 13 of 1956, who did not claim it. P. Ws. 3 to 5 stated that it belonged to P. W. 5. Except M. Os. XI, XII and XIV, the other stolen articles, recovered were held not to belong to P. W. 5.
14. On these general aspects of the Prosecution case, the learned counsel for the appellants contended that the recoveries of these articles from the respective appellants cannot be accepted in view of the contentions of the appellants regarding the same and even if the recoveries are held to have been proved as against appellants convicted under Section 412 I. P. C, that is not enough to sustain a conviction.
15. The contention of the learned counsel that even if the recoveries are proved against the appellants convicted under Section 412 I. P. C., the conviction, cannot be sustained, requires a careful consideration in view of the decision relied upon by him in course of his argument. Mr. Rao submits that Section 412 I. P. C. punches only persons who have received or retained any stolen property which is the subject matter of the dacoity with the required knowledge and there can be no receipt or retention unless he gets the property from another.
There is no evidence in the case that the appellants received the properties recovered from them from anybody else and consequently accordingly to the learned counsel the conviction under Section 412 I. P. C. cannot stand. In support of his contention, the learned counsel relied upon a decision of the Supreme Court in the case of Trimbak v. State of Madhya Pradesh AIR 1954 SC 39 (A). In that case it has been held:
'It is the duty of the. prosecution in order to bring home the guilt of a person under Section 411, I. P. C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property'.
The facts of the case before the Supreme Court were that the appellant was charged with dacoity punishable under Section 395, I. P. C. The Magistrate acquitted the appellant and the co-accused on the ground that the recovery of the stolen property from a field which was accessible to all and which did not even belong to the appellant was not sufficient to bring the guilt home to the appellant or to prove that he was in possession of the stolen goods; and that the evidence as regards his participation in the dacoity was disbelieved. On appeal by the State Government, the High Court agreed with the finding of the trial Magistrate that the appellant was not guilty of the offence under Section 395, but however the High Court convicted the appellant under Section 411 I. P. C. for receiving stolen property. It is against this that the appellant went up to the Supreme Court, and in delivering the judgment of the Supreme Court, His Lordship Mahajan J. (as he then was) observed:
'We are satisfied that this was not the correct way of approaching the decision of a case under Section 411 I. P. C. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I. P. C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property''.
It may be noted that in the case before their Lordships the kangi from where the stolen property was recovered was in the open and easily accessible to all and sundry. He next relied upon the decision of a Single Judge of this Court in the case of Bali Nath y. State 22 Cut LT 456 (B). In this case, following the above decision of the Supreme Court, I held that an accused to be liable under Section 411 I.P.C. it must be proved that the accused either dishonestly received the properly or having received if honestly dishonestly retained it; and that in both the cases the accused must receive it from another, I observed:
'A reading of this section indicated that the two words 'receives' or 'retains' must each be read along with the words 'stolen property' knowing or having reason to believe the same to be stolen property ..... But if a person dishonestly removes any movable property from another and that property remains with him, he cannot be said to retain the stolen property knowing or having reason to believe the same to be stolen property as in that case he would clearly be liable for theft and not for retaining the stolen property. Consequently, in order, to bring a person in possession of any movable property within the mischief of Section 411, the prosecution must in the first instance prove that there was some other person who was in possession of that property and from whom the accused received it.'
In this case before me the petitioners were tried for offences punishable under Sections 457, 380 and 392 of the Indian Penal Code, but were acquitted of the said offences and were convicted by the trying Magistrate under Section 411 I. P. C. From the house of the accused some properties were recovered and some properties were recovered from a paddy field. On the strength of these two decisions, Mr. Rao contends that as there is no proof of prior possession of these articles from whom the appellants received the same, the conviction under Section 412 I. P. C. cannot stand. But it should be noted that these two cases did not take into consideration the presumption arising under Section 114 of the Indian Evidence Act. Section 114 of the Evidence Act says:
'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 facts of the particular case.'
and illustration (a) to that section is to the effect that the Count 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 be stolen, unless he can account for his possession. The two decisions relied upon by the learned counsel deal only with the ingredients of the offence under Section 411 or Section 412. A man cannot be said to be a receiver of the stolen property or of having retained the stolen property knowing it to be stolen unless he receives it from, another. But in a case where the prosecution wants the Court to draw the presumption under Section 114 of the Evi. Act and the Court draws that presumption that a person in possession of stolen goods soon after the theft, has received the goods knowing them to be stolen if he cannot account for his possession, then the matter is quite different. The substantive law is contained in Sections 411 and 412, I. P. C. But the presumption under Section 114 of the Evidence Act pertains to the law of procedure and if under that section the Court is authorised to draw such a presumption and actually draws such a presumption, then the ingredients required under Section 411 I.P.C. are deemed to be complied with,
Sections 411 and 412 I.P.C. lay down the conditions required to be proved in order to convict a person as a receiver or retainer of stolen property. These are laid down in the sections and the two decisions relied on by Mr. Rao. But if in the process of proof the Court draws a presumption under Section 114, Evidence Act that a person who is in possession of the stolen goods soon after the theft, has received the goods knowing them to be stolen then the requirements of Sections 411 and 412 I.P.C. are complied with.
Consequently, in my opinion, the two decisions do not in any way affect the presumption to be drawn under Section 114 of the Evidence Act and if in any case the Court conviction accused person tinder Section 411 or 412 on the ground that it draws a presumption that a person in possession of stolen goods soon alter the theft is a receiver of stolen property such a convict on cannot be said to be bad in view of the decision of this Court cited by the learned counsel.
Those decisions apply only to cases where the judgment under appeal or revision does not show that the Court drew that presumption and on the strength of that presumption convicted the accused. Section 114 of the Evidence Act says only that the Court 'may presume'. It is the discretion of the Court to presume under Section 114 or not to do so. If the judgment shows that the conviction is not based upon, any such presumption then the decisions quoted by the learned counsel have application. But when the judgment is clearly to the effect that the Court has drawn such a presumption on account of the possession of the accused of stolen goods soon after the theft, then on the strength of those decisions it cannot be contended that the conviction is bad.
In the present appeal before us it is clear from the judgment that the conviction of the appellants under Section 412 I. P. C. as also under Section 395 I. P. C. was based upon the Court expressly drawing such a presumption under Section 114 of the Evidence Act.
16. It is next to be seen if the articles were recovered from the appellants and if so, whether the explanation given by those appellants is a reasonable explanation by which they accounted for such possession. Seven of the appellants, namely, Appellants No. 3 Pravakar Panda, No. 4 Jhatu Patra, No. 5 Govinda Dutt, No. 10 Ganesh Gir, No. 12 Gajendra Mohanty, No. 13 Bishnu Roul and No. 17 Gouri Das were convicted on the only evidence that they produced some two-rupee currency notes before the Sub Inspector. Currency notes are unidentifiable properties and there is no evidence that they had any mark of identification. We are of opinion that the conviction on the mere production of currency motes cannot be sustained. Their conviction and sentence are therefore to be set aside.
17-27. (His Lordship then considered the case of each accused and concluded as follows:) In the result, after a very careful consideration of the evidence in the case, I am of opinion that the guilt of the appellants is not proved beyond all possibility of reasonable doubt. I give the benefit of doubt to them allow both the appeals, set aside the conviction of appellants Sadasiv Das, Ram Chandra Dutt, Pravakar Panda, Jhatu Patra, Govind Dutt, Divakar Das, Bhagaban Patra, Brundaban Patra, Lakshmidhar Dutt, Ganesh Giri, Kartik Bhanj, Gajendra Mohanty, Bishun Roul, Thakur Bej alias Ram Chandra Patnaik, Baina Mandal, Sanatan Mandal, Gouri Das, Kati Das and Arjun Samal, and they are acquitted of the offences charged against them. The bail bonds of Brundaban Patra and Sanatan Mandal are cancelled. I direct that the other appellants should be set at liberty forthwith. The stolen articles recovered from the appellants and claimed by them shall be returned to them.
28. I agree.
29. There seems to be an erroneous impression in the minds of the subordinate courts that when an accused is charged with an offence under Section 411 I. P. C. the prosecution must invariably establish affirmatively that the stolen property was first in the possess on of some other person and then was transferred to the possession of the accused. The principles laid down in AIR 1954 SC 39 (A) and 22 Cut LT 456 (B) would not support such an impression. In neither of those two cases was the applicability of the presumption under1 Illustration (a) to Section 114 of the Evidence Act considered.
In AIR 1954 SC 39 (A) the necessity for considering that presumption did not arise because on the facts found it could not be held that the stolen property was in the possession of the accused. In 22 Cut LT 456 (B) also this provision of the Evidence Act was not discussed presumably because the lower courts had not drawn any presumption under that provision. These two decisions therefore merely lay down the principle that where illustration (a) to Section 114 of the Evidence Act does not apply or where the Court concerned does not draw any presumption under that section the primary burden on the prosecution to prove all the ingredients of the offence under Section 411 I. P. C. will not be discharged unless it is established that stolen, property passed into the possession of the accused from some other person.
30. But, where, the facts found justify the drawing of the presumption under illustration (a) to Section 114 of the Evidence Act and a Court draws, such a presumption it is obvious that the accused who was found in possession of stolen property soon after theft and who is unable to give a satisfactory explanation for his possession is either a thief or a guilty receiver. It is true that the drawing of such a presumption is discretionary, and a Court may refuse in the special circumstances of a particular case to draw such a presumption.
But once the Court draws such a presumption and holds a person to be a guilty receiver on account of his failure to account satisfactorily for his recent possession of stolen property it is not necessary for the prosecutor to further show that possession, was transferred to him from some other person. It is true that illustration (a) to Section 114 of the evidence Act does not say when the presumption that he is a thief may be drawn and when the presumption that he is a guilty receiver may be drawn. This will depend on the facts and circumstances of each case and no hard and fast rule can be laid down.
By way of illustration I may say that if there is some evidence to show that the accused was found nearabout the place of commission of theft either immediately before or after the commission of the crime and was subsequently found in recent possession of stolen property, for which he was unable to give a satisfactory explanation he may be presumed to be the actual thief. But if the only evidence against him is his recent possession of stolen property for which he was not able to give a satisfactory explanation, the better presumption would be that he is a guilty receiver and not the actual thief.
31. I should further point out that the burden cast on accused by illustration (a) to Section 114 of the Evidence Act to satisfactorily account for his possession of stolen property is not so onerous as the burden of the prosecution to prove all the ingredients of the offence beyond reasonable doubt.
This principle which was laid down in R. v. Sehama, (1914) 84 LJ KB 396 (C) has been followed in innumerable decisions which it is unnecessary to refer to. It is sufficient to say that if the Court thinks that the explanation given by the accused to account for his possession may reasonably be true even though the Court is not convinced that it is true the accused is entitled to an acquittal because the prosecution has failed to discharge the onus of proving the case beyond reasonable doubt. As pointed out in R. v. Aves, (1902) 2 All ER 330 (D).
Where the only evidence against an accused is possession of property recently stolen a Court may infer guilty knowledge (a) if the accused offers no explanation, or (b) if the Court is satisfied that the explanation is untrue; but if the explanation leaves the Court in doubt the accused should be held not guilty.