1. The three appellants Arshed Molla, Khorshed Molla and Safer Molla with four other accused persons were tried by the Sessions Judge of Bakargunj sitting with two assessors on charges framed under Sections 396, 397 and 460 of the Indian Penal Code. In the result two of the accused were acquitted of all the charges. The remaining five, including the three appellants, were acquitted of the charge under Section 397 but convicted of offences under Sections 396 and 460. Khorshed and Safer were sentenced to transportation for life under Section 395 and Arshed to seven years' rigorous imprisonment under that Section. No separate sentences were passed under Section 460.
2. It should be mentioned that in convicting the appellants, the learned Sessions Judge was in agreement with the opinion expressed by the assessors.
3. The principal witness for the prosecution is Ram Charan Shil, in whose shop a dacoity of an aggravated character was undoubtedly committed in the early morning of the 11th March 1918. Both Ram Charan and his Sarkar Asutosh Sammadar were attacked and severely wounded. The Sarkar died of his injuries six days later
4. For the appellants it is contended that both the Sessions Judge and the assessors having rejected as unreliable the evidence of Ram Charan so far as he purports to have identified his assailants, the remainder of the evidence which is circumstantial is not sufficient to support the conviction.
5. Certain cloths were found in the houses of the appellants, and both the Judge and the assessors after a careful examination of the evidence have come to the conclusion that these cloths were part of the proceeds of the dacoity at Ram Charan's shop.
6. Our attention has been invited to the fact that only one cloth, Exhibit XIV (ii), was found in the house of Safer on the top of a machan. But this cloth is the pair of another cloth, Exhibit XIV (i), which was found in Khorshed's house. The Sessions Judge says that in the case of Exhibit XIV (i), the printed number agrees with the entry in Ram Charan's books. It also appears that Exhibit XIV (i) was found concealed in a basket of paddy husks on the top of a machan.
7. In Arshed's house are said to have been found a white silk coat (Exhibit III), and a Sari. The white silk coat is said to be the property of Ram Charan's brother Ganga Charan and is identified as such by Ganga, by another brother, Rai Charan, and by the tailor who made it. The evidence regarding this coat is of a nature which satisfies us that it was the property of Ganga Charan.
8. Exhibit III found in Arshed's house, Exhibit XIV (i) found in Khorshed's house and Exhibit XIV (ii) found in Safer's house were clearly stolen goods and we see no reason to dissent from the conclusion of the Court below as regards the other cloths found.
9. It is not suggested that Ram Charan's shop was robbed on any other occasion and regard being had to the number of the cloths and the mode in which they were concealed, there is little reason to doubt that they were proceeds of the dacoity which came dishonestly into the possession of the appellants. The learned Sessions Judge adverts in this connection to the fact that cloth is now extremely dear, and observes that it is most unlikely that even substantial cultivators like the three accused would buy more cloths than were absolutely necessary for immediate use.
10. On the other hand, the burden of proof is on the prosecution and the interval between the dacoity and the finding of the stolen goods having been about six weeks and the direct evidence of identification by which it was sought to connect the appellants with the dacoity having failed, there is more force in the contention that the appellants should not have been convicted of dacoity and that the knowledge that the goods were stolen by dacoity 'should not be imputed to them.
11. The appellants are clearly guilty of the offence of dishonestly receiving or retaining stolen property punishable under Section 411 of the Penal Code and it is open to us to convict them of that offence under the provision of Section 237 of the Criminal Procedure Code.
12. In the circumstances we set aside the convictions of the appellants under Sections 396 and 460 of the Penal Code. Instead we convict the appellants under Section 411. The sentences passed on the appellants are reduced in each case to rigorous imprisonment for two years.