1. In this case the accused have been convicted of house-breaking and theft, offences under Sections 457 and 380, I.P.C. There is no direct evidence that any of them were seen at the place of house-breaking and the conviction rests on the subsequent recovery of certain of the stolen articles. The learned Sessions Judge says in his charge to the jury there Is hardly little or no evidence on record that these accused were arrested with these articles in their possession.
2. So the evidence against them is that of third persons to whom they handed over the property. One of these is P.W. 6 to whom 6 brass vessels, M.O.S. 2 to 7 and a silk saree, M.O. 10 were sold. As regards this witness the learned Judge instructed the jury as follows:
What P.W. 6, Abdul Rahim Sahib, says is that accused 1, 2 and 4 who are all brothers brought to him these brass vessels and one silk saree, M.O.S. 2 to 7 and 10, and wanted him to give them Rs. 2. As he had no money then he gave them six annas. You have seen this witness in the box. These three accused were living in his land. He knew them very well. He was compelled to say that these brass articles could not have been owned by these accused. He was also forced to answer that the silk saree M.O. 10, is one which the womenfolk of accused 1, 2 and 4 could not have owned. This may show that he might have known at the time when he received these articles that they were stolen. Bat he is not at present in the dock. If it is an offence it is for the authorities to proceed against him. What you are now concerned with is whether his testimony is true or not. That these articles were recovered from his possession is proved by P.W. 5 as well as by the village Munsif of Desur. A mahazar too was prepared at the time which has been filed as Ex. C. Desur is not far away from the place of occurrence, Salai Arugavur; it is only three miles from it. So then it comes to this : that if you believe the testimony of P.W. 6, it follows that very soon after the theft most of the articles that had been stolen were sold or pledged with him by accused 1, 2 and 4.
3. Curgenven, J., admitted this appeal with the note that the Sessions Judge omitted to point out the need for caution in accepting the evidence of a receiver of stolen property as that of an accomplice. Mr. Bewes, for the Crown, raised the point whether a person who receives stolen property knowing it to be stolen is an accomplice. Woodroffe in his Evidence Act says the term 'accomplices' may include all 'participes crimines' and there is a note below that in English Law it includes both principals of the first and second degree and accessories before and after the fact. But that in India it was held that an accessory after the fact (under the law prior to the Penal Code) stood on a very different footing from an accomplice. Mayne says (p. 756, 2nd Edn):
Abettors of crime are accomplices and must be looked at as such if they are produced as witnesses against the principal offenders.
4. Section 107, I.P.C., says:
A person abets the doing of anything, who first instigates any person to do that thing; or secondly engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission the doing of that thing.
5. It appears to me that a person who knowingly aids in the disposal of stolen property falls under the third definition and is an accomplice, and that whatever may have been the case in India before the Penal Code, he is an accomplice under that Code. If so, the Judge was, I think, bound to tell the jury this that P.W. 6 being, on the evidence, a receiver of property which he must have known to be stolen was a tainted witness whose evidence must be received with great caution. I therefore hold that there has been a failure to direct the jury on a material point and that the accused have been thereby' prejudiced. On looking through the records I found another matter, which, in my opinion, also vitiates the charge and which I pointed out to Mr. Bewes.' As stated above there was no direct, Evidence that the accused; committed the house-breaking and theft. Yet the charge against them was framed solely under Sections 457 and 380. I.P.C. with no alternative charge under Section 411, I.P.C. In his charge to the jury the learned Judge did not mention Section 411, I.P.C., nor inform the jury that it was open to them either to find on the facts that the accused committed the house-breaking and theft or that they were guilty under Section 411, I.P.C. or tell them that they might convict them in the alternative. He left them no choice between a conviction under Sections 457 and 380, I.P.C., and an acquittal. The offence under Section 411 being punishable with a lesser sentence than offences under the two former sections this was an omission which prejudiced the accused. For both these reasons the conviction and sentence must be set aside and a re-trial ordered. The case will be transferred to the Sessions Judge, Chittoor, for disposal according to law. The convictions and sentences passed on accused 2 and 4 who have not appealed and whose cases are indistinguishable are also set aside under Sections 423(d) and 439(i) Criminal P.C., for the reasons given in the judgment above and their re-trial is-ordered.