N.K. Sen, J.
1. Six persons were convicted by Shri R.K. Chakravartti Thakur, Magistrate, First Class, Diamond Harbour, some of them on charges under Section 379 of the Indian Penal Code and some under Section 411 of the Indian Penal Code. Their conviction was also upheld on appeal by Shrl A.K. Sengupta, Additional Sessions Judge, 24-Parganag.
2. The prosecution case out of which the trial arose was that on the 27th September, 1954 Ralendra Nath Haldar was entrusted with Rs. 4,807/- by his master Narayan Chandra Baidya for purchase of paddy in Sundarban area. On the following day i.e. on the 28th of September, 1954 Rajendra started in a boat of Bhabasindhu Majhi. At Sundarban no paddy could be purchased as the price was very high then. Rajendra was, therefore, coming back with the boatman Bhabasindhu Majhi and on the way halted at Kakdwip. There Rajendra and Bhabasindhu took a bus for Diamond Harbour but got down at Ratneswarpur as it was then 9 p.m. Rajendra had Rs. 4,7457- in a cloth bag tied round his waist. At Ratneswarpur both of them took tea in a tea shop and it was here that they met Satchidananda Jyotish and Satish. These persons requested Rajendra and Bhabasindhu to go to their house for the night. This request was not acceded to. Thereafter Rajendra and Bhabasindhu started for Bahadurpur, the village of Rajendra, which was not very far off. On the way, however, they changed their mind, came under a palm tree where they along with Satchidananda, Satish and Jyotish began to drink wine, in which Girish, the brother of Rajendra and another person Santosh Purkait also joined. After drinking for a while, Rajendra, Bhabasindhu and Girish started for Bahadurpur. On the way Jyotish suddenly beat Bhabasindhu with a lathi and Bhabasindhu being thus hit, ran away. Rajendra and Girish, however, fell down on the ground due to their being intoxicated at the time. Thereupon, Satchidananda, Satish and Jyotish pressed Rajendra on the ground, assaulted him and took away his bag containing Rs. 4,745/-. This money consisted of 3 hundred ten-rupee notes, 17 hundred-rupee notes, 8 five-rupee notes and five one rupee notes. Girish raised a hue and cry which attracted Sudhanya, the captain of the village party, Durga Charan and other people of the village. Bhabasindhu, however, in the meantime, returned with the men of the village to whom Rajendra narrated the incident. On the following morning Rajendra with Sudhanya and one Sarat Halder went to the house of Satish and Jyotish and demanded the money they had taken away but they did not pay any heed to this demand. A few days afterwards, Sudhanya found Ramananda, the petitioner No. 4 in this case going towards the tea shop of Jyotish when Sudhanya confronted him and asked him for the money. Ramananda, however, did not give him any answer but subsequently showed him Rs. 120/- which he had on his waist and told him that his mother had given him this money. Upon this, Sudhanya took Ramananda to the latter's house where Natubala Dassi, the mother of Ramananda, produced Rs. 120/- from under the bed. Petitioner Bhagabati Dassi, also produced Rs. 120/- from her person, petitioner Ramananda Halder. further, produced from a small box a sum of Rs. 90/- and Rs. 120/- from the arkat or the house. One Jiten Halder also surrendered Rs. 20/- having been received by him from Natubala. The police was informed and when they came to the village, Satish and at the instance of Satish one Santosh Halder produced Rs. 660/-from the thatch of the cow-shed of Satish. The straw of the thatch of the hut was searched and a bundle containing Rs. 600/- was also received. Thus the total sum of Rs. 1,910/- was recovered.
3. The prosecution case was that this forms part of the money stolen from Rajendra. Satchidananda, Satish and Jyotish were each convicted under Section 379 of the Indian Penal Code. Their application in Revision to this Court was however dismissed.
4. Ramananda, Bhagabati and Nutubala were each convicted under Section 411 of the Indian Penal Code and Ramananda was sentenced to rigorous imprisonment for one year while Bhagabati and Natubala were each ordered to be detained till the rising of the Court. The present Rule is confined to the conviction of Ramananda, Bhagabati and Natubala Dassi.
5. The defence was that the money recovered represents the sale proceeds of certain lands of Bhagabati's husband.
6. Mr. S.S. Mukherjee appearing in support of the Rule has very strongly urged that on the evidence it was not proved that the money was obtained by theft and as such a conviction on a charge under Section 411 of the Indian Penal Code cannot be maintained. Mr. Mukherjee has also taken us through the evidence of Rajendra and argued that upon his (Rajendra's) evidence, no offence of theft was proved to have been committed by Satchidananda, Satish and Jyotish.
7. It is now impossible, as Mr. Mukherjee himself has admitted, to challenge the order of conviction under Section 379 of the Indian Penal Code passed on Satchidananda and two others whose application for revision has been rejected by this Court. We must now proceed upon the footing that these three persons had committed the offence with which they were charged, we can only now proceed to examine the question whether the money found on the persons of or produced by the present petitioners was a part of the money that was stolen from Rajendra Nath Halder in the manner alleged by the prosecution. Once it is found that it was so the next question would be if the petitioners had received or retained the same knowing it to be stolen property. Ramananda is the brother of Satchidananda and Nutubala is the mother of Ramananda and Bhagabati is the sister of Satchidananda. The defence suggestion that the money found or produced by the petitioners represented the sale proceeds of certain lands belonging to Bhagabati's husband was not accepted by the Courts below. The Courts below held that it was not proved nor was there sufficient evidence in support of the fact as to how and to whom the land was sold or what the exact price of the land was. The Courts below from the fact that the money was kept under the bed and in the Arkat and also on the persons of some of the petitioners found it impossible to conclude that the money was obtained in a bona fide manner. Indeed the circumstances in which the money was either produced or recovered leave a very strong suspicion in the mind of the Court that the same was not obtained in a bona fide manner but it must not be forgotten that the villagers do sometimes keep their money hidden in ways which appear very strange to sophisticated people. It must be observed that the entire money recovered consisted of G. C. notes of small denominations. There were no Identifying marks on any of them. In this view, therefore, unless there is cogent proof forthcoming to show that the money recovered form part of the money that was stolen, a Court would not be justified in convicting the accused persons, however, strong the suspicion against them may be.
8. We have been referred to the examination of the three petitioners under Section 342 of the Code of Criminal Procedure. The learned Magistrate put only one Question to the petitioners which runs as follows :
'Q. You have heard the examination and the cross-examination of the witnesses and the other evidences adduced by them. Have you got anything to say?
Ans. I am innocent.'
9. In order to convict a person under Section 411 of the Indian Penal Code it is first necessary to prove that the property found in their possession was stolen property and next that the persons concerned knew or had reasons to believe that the same was stolen property. Under illustration (a) of Section 114 of the Indian Evidence Act, before a presumption could be drawn against the accused persons he has to be asked to account for his possession. The answer may be furnished by the accused on his own accord and if he does not do so the trying Magistrate has to ask under the provisions of Section 342 of the Code to explain the circumstances appearing in evidence against him. In a case where the court is to convict a person for his failure to offer an explanation for the possession of the goods, it is incumbent upon the Court to ask the accused for an explanation and only when the accused fails to offer a reasonable explanation the Court is permitted to draw any presumption. In the present case it appears that the learned Magistrate never asked the petitioners to offer any explanation as to their possession. It is all the more necessary in the present case to do so in view of the fact that the circumstances in which the money was produced gave rise to some suspicion in the mind of the Court which suspicion could have been cleared only if the Court had examined accused persons properly under Section 342 of the Code of Criminal Procedure, in the present case no such opportunity was given to the petitioners.
10. In view of the facts and circumstances narrated above, we find it unsafe to maintain the conviction of the petitioners under Section 411 of the Indian Penal Code which we set aside.
11. It appears that the learned Magistrate passed an order declaring the entire money recovered amounting to Rs. 1,910/- to be returned to Rajendra Nath Halder. Since we are setting aside the conviction of the petitioners under Section 411 of the Indian Penal Code the amount recovered from the persons of the petitioners which amounts to Rs. 450/- (Four hundred and fifty) should be returned to respective persons from whom it was recovered.
12. The petitioner Ramananda Haldar who is in jail must be released forthwith.
13. The Rule is accordingly made absolute.
U.C. Law, J.
14. I agree.