Om Prakash, J.C.
1. This revision-petition is directed against an order of the learned Sessions Judge, Mandi, dismissing the appeal of the petitioner, against his conviction and sentence, under Section 411, I. P. C.
2. The prosecution case, against the petitioner, was as follows :--
A temple of Dev Tungasi (hereinafter referred to as the temple) is situated in village Niari, Police Station Gohar, Tehsil Chachiot, District Mandi. The temple was broken into on the might of the 23rd September, 1961 and from the Rath of the Dev, six gold plated mohars, two gold plated galpatas, one gold plated dodi, and one sankh were stolen. The theft was detected by Durga Singh PW. 7, on the 24th September. He informed Thakur Dass PW. 1, the pujari of the Dev. Thakur Dass lodged the report Ex. PA about the theft, with Head Constable Chandermani, PW. 20, who was on patrol, in the ilaqa. The police suspected that the theft had beem committed by the petitionar. A search was made for him, but he was not traceable. When all efforts failed to trace the petitioner, he was proclaimed an absconder.
3. On 17-9-62, nearly a year after the theft, in the temple, the petitioner had come to the house of Sant Ram in village Khani Phati, District Kulu. As the petitioner was a proclaimed offender, Sant Ram called Lambardar Loharu Ram PW. 13, Chaukidars Moti Ram PW. 11 and Bhagat Ram P. W. 12, Sarpanch Gokal Chand P. W. 14 and Surat Ram, PW. 10, for apprehending him. The petitioner was apprehended by these people. On the search of his person, five pieces of gold, Ex. P-10/1 to P-10/5, weighing 98 grams and other articles, were recovered. The petitioner was brought to the police station Banjar and handed over, along with the articles, recovered, from him, to S. H. 0. Sewa Singh PW. 15. Ulti-mately, the petitioner and the articles recovered, were brought to the police station Gohar, Tefcsil Chachiot.
4. While in police custody, the petitioner had made the disclosure statement Ex. PW. 16/A. The statement was to the effect that the petitioner had concealed copper linings of mohars and galpatas and a sankh in Batahi forest and would discover them. In consequence of that statement, the petitioner had led the police party to the. Batahi forest and had dug out, from under a tree, copper linings of galpatas Ex. P-14, and Ex. P-15 and copper linings of mohras Ex. P-16 to Ex. P-19, and the sankh Ex. P-13. From a nearby place, the petitioner had; also dug out copper linings of mohra Ex. P-1 to Ex. P-12. The copper linings Ex. P-14 to Ex. P-19 wera identified by Thakur Dass PW. 1 and Lal Singh PW. 5, as of the galpatas and of mohras of Dev Tungasi. The sankh Ex. P-13 was also identified of that Dev. The police had collected evidence that the petitioner had been seen near the temple on the day of the theft.
5. As a result of investigation, the petitioner was challaned and charge-sheeted under Sections 457, 380 and 414 I. P. C.
6. The petitioner denied that he had committed theft in the temple. He further, denied that he had made the disclosure statement Ex. PW-16/A or had madediscovery of the copper linings and the sankh. He admitted that he had come to the house of Sant Ram on 17-9-52 and that the gold pieces, Ex. P-10/1 to Ex. P. 10/5, were recovered from him. His plea was that the gold pieces belonged to him, and he had purchased them from certain persons. The petitioner did not produce any evidence in support of his plea.
7. The findings of the learned Magistrate, who had tried the petitioner, were that it had not been proved that it was the petitioner who had committed theft in the temple; that the petitioner had made the disclosure statement Ex. PW. 16/A and had in pursuance of that statement, discovered the copper linings Ex. P-14 to Ex. P-19, and the sankh, Ex. P-13; that Ex. P-14 to Ex. P.19 were copper linings of galpatas and mohras which had been stolen from the temple, and that the sankh Ex. P-13, had also been stolen from the temple; and that the five pieces of gold, Ex. P-10/1 to Ex. P-10/5, recovered from the petitioner, did not belong to him, but were of the gold, which had been extracted by the petitioner, from the mohras and galpatas, stolen from the temple. As a result of his findings, the learned Magistrate acquitted the petitioner of the offences, with which he had been charged, but convicted him under Section 411 I. P. C. and sentenced him to undergo rigorous imprisonment for two years.
8. An appeal by the petitioner, against his conviction and sentence, to the learned Sessions Judge, Mandi, failed. Hence, this revision-petition.
9. The question which required determination, in this revision-petition, is whether, the petitioner had retained stolen property, knowing that it was stolen property. The evidence of Lal Singh P. W. 5, who was performing puja in the temple, on the relevant date, in the absence of Thakur Dass P. W. 1, who had gone to his doghra, Durga Singh P. W. 7, Himat P. W. 4 and Dharam Singh P. W. 3, goes to establish that theft was committed in the temple on the night of the 23rd September, 1961, and six plated mohras, two gold plated galpatas, one gold plated dodi and a sankh were stolen. The petitioner was apprehended at the house of Sant Ram and handed over to the police. While in police custody, the petitioner had, according to Budhe Ram P.W.16 and Brikam P. W.17, made the disclosure statement Ex. P. W. 16/A.
The petitioner denied that he had made the statement Ex. P. W. 16/A. But there does not appear to be any valid reason why the evidence of Budhe Ram and Brikam, who are independent witnesses be disbelieved. In consequence of his statement, the petitioner had discovered copper linings Ex. P. 14 to Ex. P. 19 and the sankh Ex. P. 13. The statement Ex. PW 16/A made, by the petitioner, was to the effect that he had stolen six gold plated mohras and two gold plated galpatas and a sankh, from the temple and that, after extracting gold from the mohras and galpatas, had buried their copper linings and the sankh under a tree in Batahi forest.
The words, in the statement, that the petitioner had stolen the gold plated mohras, galpatas and sankh from the temple are not admissible in evidence, under Section 27, Evidence Act, as they do not relate to the discovery of any article, but the words, that the petitioner had extracted gold from the mohras and galpatas and had hidden the copper linings and the sankh under a tree in the forest, are admissible in evidence under that section, as they distinctly relate to the discoveryof the articles and the knowledge of the petitiones of the place where the articles had been hidden.
It is settled law that 'facts discovered', within Section 27, Evidence Act, embraces the place from which the object is produced and the knowledge of the accused as to this and that the information relating to this fact is relevant; vide Pulukuri Kottaya v. Emperor, AIR 1947 PC 67. Such information is admissible as a whole irrespective of the fact that a part of it is of a confessional nature, vide K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788. In this authority, the statement of an accused, in police custody, that he would show the place where he had hidden the ornaments was held to be admissible under Section 27, Evidence Act.
10. So, in the instant case, the statement of the petitioner, that he had extracted gold from the mohras and galpatas and had hidden their copper linings and the sankh, under the tree, was relevant and admissible. In consequence of that statement, the petitioner had discovered copper linings Ex. P. 14 to Ex. P. 19 and the sankh Ex. P 13, by digging them out from under a tree. Thakur Dass PW 1, and Lal Singh PW 5 deposed that the sankh Ex. P. 13 belonged to the temple and that the copper linings Ex. P. 14 to Ex. P. 19 were of the galpatas and mohras of Dev Tungasi which had been stolen on the night of the 23rd September. Thakur Dass and Lal Singh used to perform puja in the temple and were well-acquainted with the articles, of Dev Tungasi. They were competent to identify the articles of the temple. It stood proved that the articles Ex. P. 13 to Ex. P. 19 were stolen property. As the, stolen articles were discovered at the instance of the petitioner, the possession of the articles is to be attributed to him. It is true that the articles were discovered from a forest, an open place, accesible to all and sundry, but, in face of the admission of the petitioner, in Ex. P.W. 16/A, that he had hidden the articles at the place from which they were discovered, it cannot be suggested for a moment, that somebody else might have placed the articles at that place and the petitioner had somehow acquired knowledge of the articles. The admission, made in Ex. PW 16/A, completely negatives any such suggestion. It may be stated that the copper linings Ex. P 1 to Ex. P 12, have not been shown to be connected with the present case.
11. Five pieces of gold Ex. P. 10/1 to Ex. P. 10/5, weighing 98 grams, were recovered from the petitioner. The petitioner admitted this fact. His plea was that the gold pieces belonged to him and had been purchased from certain persons whose names he gave. The petitioner did not produce any of those persons, or any other evidence, in support of his plea, that he had purchased the gold pieces. He did not explain why he was carrying the gold pieces with him. Ordinarily, people do not keep gold pieces on their person. The plea of the petitioner that the five pieces of gold belonged to him does not appear to have the slightest truth in it The pieces of gold Ex. P. 10/1 to Ex. P. 10/5 had copper traces in them'. It would not be unreasonable to assume that the gold pieces were of the gold which had been extracted by the petitioner from gold plated mohras and galpatas and the traces of copper in the gold pieces were of the copper linings.
12. The evidence of Thakur Dass PW 1, and Lal Singh P. W. 5, the statement Ex. P W 16/A, made, by the petitioner to the police, the discovery of the articles Ex. P. 13 to Ex. P. 19n consequence of that statement and the recovery of five pieces of gold Ex. P. 10/1 to Ex. P. 10/5, from the possession of the petitioner, conclusively established that the petitioner was found in possession of stolen property. The petitioner did not furnish any acceptable explanation for his possession of the stolen property. The failure of the petitioner to account for his possession gave rise to a presumption against him that he was retaining the articles, knowing them to be stolen, vide section 114, illustration (a), Evidence Act. This presumption, against the petitioner, was strengthened by the facts, that he had absconded after the theft, as is clear from the evidence of constable Thakur Singh, PW 9, and had hidden the copper linings of galpatas and mohras, after extracting gold, and the sankh in a forest. The intention of the petitioner in retaining stolen property was nothing but dishonest.
13. The only conclusion from the above discussion is that the petitioner was dishonestly retaining stolen property, knowing that it was stolen property. His conviction and sentence do notcall for any interference.