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Joyenullah Bepari (Mandal) and Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.158
AppellantJoyenullah Bepari (Mandal) and ;moniruddIn Sheikh
RespondentEmperor
Excerpt:
penal code (act xiv of 1860), section 411 - stolen property found after considerable time--presumption as to guilty knowledge--evidence act (i of 1872), section 114--presumption--criminal procedure code (act 7 of 1898), section 35--concurrent sentences, power of court to pass, in separate trials. - .....there. it appears also that the accused is a man of substance and would hardly de a receiver of stolen property of insignificant value. the keys are said to be valued at rs. 2-8 annas; and they would hardly be worth as much as that except in connection with the safe the lock of which they fitted.2. in the other case against this accused, he is said to be in possession of some cloths stolen from the shop of one prail chand on 29th july. in this case the identification of the cloths seems to be weak and it is to be noted that the complaint of the theft was not made until after the property was said to have been found, in the house of the accused, that is to say, on 4th august. these cloths were said to have been found hidden under a heap of paddy, the accused being a dealer in jute and.....
Judgment:

1. These are two Rules granted to Joyenullah Bepari who was convicted in two trials under Section 411, Indian Penal Code, and sentenced in each case to two months' rigorous imprisonment. The Magistrate directed that the sentence in the second case was to run concurrently with the sentence in the first. We may mention that the Magistrate had no power to make any such order, the trials being separate trials for two distinct offences. The evidence, however, against the accused in both cases seems to be so unsatisfactory that it is impossible to uphold the conviction and sentences. In the first case the petitioner is charged with being in possession of certain keys knowing them to be stolen. It may be that the keys were stolen on 28th April as stated. It may be also that these keys were found in the house of this accused on the 4th August following. That, however, would not be sufficient to prove a dishonest intention on the part of the accused. There is no ground for presumption under Section 114 of the Evidence Act as the property was discovered so long after the theft and the keys were very ordinary keys, which might happen to be of the same pattern, or might have been brought to the accused's house quite innocently. The accused disclaimed all knowledge of these keys and there does not appear to be any thing in the evidence to fix him with the knowledge of the keys or how they came there. It appears also that the accused is a man of substance and would hardly de a receiver of stolen property of insignificant value. The keys are said to be valued at Rs. 2-8 annas; and they would hardly be worth as much as that except in connection with the safe the lock of which they fitted.

2. In the other case against this accused, he is said to be in possession of some cloths stolen from the shop of one Prail Chand on 29th July. In this case the identification of the cloths seems to be weak and it is to be noted that the complaint of the theft was not made until after the property was said to have been found, in the house of the accused, that is to say, on 4th August. These cloths were said to have been found hidden under a heap of paddy, the accused being a dealer in jute and paddy. It is stated in the petition of the accused but we do not find it in the evidence that the house consists of a number of rooms occupied by a number of people--some 40 or 50. There is nothing on the record to show precisely in which apartment the stolen property was found or whether that would necessarily connect the stolen property with the accused. It may have been in a part of the house occupied by somebody else. We think that it would not be safe to maintain the conviction and the sentences. The Rule is made absolute, the conviction and sentences passed on the petitioner, are set aside and his bail-bond will be discharged.

In No. 1338 OF 1917.

3. This Rule is connected with Rules Nos. 1337 and 1339, the petitioner in this case Moniruddin Sheikh having been convicted under Section 411, Indian Penal Code, for being in possession of a biridani worth Re. 1-8 annas knowing or having reason to believe that it was stolen. This biridani is said to have been stolen on the same day as the keys said to be found in the possession of Joyenulla Bepari, that is to say on 28th April. The biridani was found on 4th August. Having regard to the length of time, there is no presumption that Maniruddin knew or had reason to believe this biridani to be stolen. He said that the biridani found with him had belonged to his deceased wife and had been in his possession for a long time. The evidence as to the identity of this biridani appears to be unsatisfactory and we do not think that this accused ought to have been convicted under Section 411, Indian Penal Code, for having the biridani found in his possession. The conviction and sentence passed on this accused are also set aside and his bail, bond will be discharged.


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