1. These are two appeals by seven accused who were convicted under either Section 395, Penal Code or Section 412 of that Code and sentenced to six years' rigorous imprisonment each. The appellants Moktarali, Jogesh Chandra Chakladar and Momtazuddi Sikdar are represented before us, the remaining four presented their appeal from jail. We will deal with the cases of each of the appellants seriatim.
2. Jogesh Chandra Chakladar: The evidence against this accused was that he was identified by a certain lady of some eighty years of age as one of the dacoits and that a certain pitcher identified as being a part of the property stolen at the time of the dacoity was found in his possession. His explanation as regards the pitcher was that it was the property of his wife's step-brother Kali Prasanna Das. He was charged under Section 395, Penal Code. The learned Sessions Judge obviously himself did not accept the evidence of identification given by the old lady and advised the jury accordingly. He then dealt with the question of the possession of the pitcher and told the jury that if they were not satisfied with the evidence of identification but were satisfied with the proof of the identity of the pitcher they might convict the accused under Section 412, Penal Code, although he had not in fact been charged under that section. This direction is challenged on the strength of the decision in Istahar Khondkar v. Emperor ('35) 62 Cal. 956. We note first that in fact what was done in that case was to alter the finding of conviction from one under Section 412 to one under Section 411, Penal Code. Second that the decision seems to be based on a view that
though an accused may be charged in the alternative under Section 236, judgment under Section 237 cannot be passed in the alternative, that is to say, the accused cannot be convicted of two or more offences in the alternative.
Furthermore, in support of the reasoning therein the case in Begu v. Emperor , a decision of the Judicial Committee is questioned. In bur opinion there is no difficulty in, this matter as regards the question of conviction in the alternative. Such a conviction is provided for in Section 367, Criminal P.C. and in Section 72, Penal Code where provision is made for punishment in such a case at the scale given by the lowest punishment provided for the various offences. We think that in view of the provisions of Section 236, Criminal P.C., if the view was taken that there might be doubt as to whether the evidence of actual identification at the time of the dacoity would be accepted, there could have been a charge framed against the appellant Jogesh both under Section 395, and also one under Section 412, and also there might have been a charge in the alternative under Section 395 or Section 412.
3. Section 236, Criminal P.C., permits such, framing of charges in cases where 'it is doubtful which of several offences the facts which can be proved will constitute.' A fact is proved when the Court after considering the matters before it either believes it to exist or considers its existence so probable that a prudent man ought in the circumstances of a particular case to act upon the supposition that it exists. At the time when the charges are made it cannot be known what view the Court will take of the evidence. In certain cases it may be doubtful as to what view will be taken by the Court of the evidence although it may be considered that a view will be taken which will amount to a view that some offence has been proved. Separate charges may be framed to meet all the various contingencies so envisaged. In other cases it may be doubtful, even if all the facts sought to be proved are in fact proved, whether they can fix the accused down to one specific offence (say under Section 395) rather than another (or under Section 412); for such cases a charge in the alternative may be framed. Section 286 provides both for the case where separate charges are required to meet contingencies as to what may eventually be taken as proved by the Court as also where a charge in the alternative is needed.
4. Similarly under Section 237, Criminal P.C., even if charges have not been framed to meet all the contingencies the conviction may be held on any charge that might have been framed under Section 236 of that Code. Here, in this case, doubt arises first from the question whether the evidence of identification at the actual time of the dacoity will be accepted and secondly, whether the evidence of possession of the stolen article will be taken as establishing in the circumstances proof of participation in the dacoity, or proof of non-participation in the dacoity but of dishonestly receiving the property stolen at the time of the dacoity or as establishing a position where no definite view is taken as to either of the two latter, in other words, a position calling for a conviction in the alternative either of the offence of dacoity or of dishonestly receiving the property stolen at the time of the dacoity. We have mentioned that provision is made in Section 367(3), Criminal P.C., for judgment to be passed in the alternative in cases of doubt. In Istahar Khondkar v. Emperor ('35) 62 Cal. 956 a quotation is made in the judgment from a report in Meher Sheik v. Emperor : AIR1931Cal414 in which there is in turn a reference to Section 367, Criminal P.C. Lort-Williams J., in referring to this notes that this must be a misprint for Section 237. With the greatest respect it appears clear that there was no misprint, and that the reference is to the very provision in the Code of Criminal Procedure, namely Section 367, which provides for, and in appropriate cases of doubt distinctly requires, judgment to be passed in the alternative.
5. It is next urged that the learned Sessions Judge has wrongly directed the jury with regard to Section 114, Evidence Act, and for this reliance is placed on the case above cited as well as on the case in Daud Shaikh v. Emperor ('35) 40 C.W.N. 159. In our opinion, the learned Sessions Judge has dealt with the matter clearly and logically. Here the accused's 'explanation' is not an explanation at all under Section 114, Illust. (a), Evidence (Act: it is not an explanation of possession of stolen property. He alleges that the so-called stolen property is not in fact stolen property but is the property of his relation. The first issue before the jury, therefore as was clearly pointed out by the learned Sessions Judge, was whether in fact they held it proved that the pitcher in question was the property of the complainant or not. If they decided that it was not the complainant's property or that there was such doubt in the matter that they could not act on the assumption that it was, they were to acquit the accused. If they found that it was properly identified, then as the learned Judge rightly pointed out, the accused offered no explanation of his possession of it, and they were entitled therefore to apply the presumption under Section 114, Evidence Act. We are further unable to agree with the view that in such a case the only direction that can be given is that there is a presumption that the accused is either a thief or received or retained the goods knowing or having reason to believe them to be stolen, namely the direction for a conviction if at all under Section 411. Section 114, Evidence Act, is general in its terms. Illustration (a) is only an illustration, and the fact that the section does not provide an illustration with reference to a dacoity does not mean that there is no such presumption. The Judge was perfectly entitled to tell the jury that they might presume either that the accused was one of the dacoits or that he had dishonestly received or retained the pitcher knowing or having reason to believe that the possession had been transferred by dacoity or that he had dishonestly received or retained it knowing or having reason to believe that it was stolen property. In the present case the latter choice, it is true, was not offered to the jury for their consideration and to that extent we consider that the charge is defective.
6. In dealing with the question of identity of the pitcher the learned Sessions Judge has dealt with the matter fully and fairly putting all the points, pro and con, before the jury, pointing out as he was entitled to that the accused called no evidence to support his story that the pitcher belonged to Kali Prasanna Das. We think that no criticism can be offered on this portion of the charge. The identity being settled his other directions were perfectly correct in pointing out that there was no explanation of the possession of the pitcher, found by them to be the property of the complainant. In this view of the matter, we think that it would be proper to alter the conviction of Jogesh Chandra Chakladar to one under Section 411, Penal Code, as we consider that in his case had the correct direction been given it is possible that the jury might have delivered the verdict under that section. (Their Lordships then considered the case of each of the remaining appellants and disposed of the appeals.)