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PETITIONER: AJENDRA NATH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 23/04/1963

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1964 AIR  170            1964 SCR  (3) 289

ACT: Criminal  Trial-Property recovered not proved to  be  stolen property-Acquittal  by Sessions Judge-State  appeal  against few-Allowed  against the appellant-Finding on  the  question reversed-High Court, if could record its own findings-Assis- tance  in  concealment of  stolen  property-Scope  of-Indian Penal Code (Act 45 of 1860), ss. 120-B, 379, 414.

HEADNOTE: Five   bales,   containing  woollen  shawls   and   mufflers dispatched from Kanpur by the British India Corporation Ltd. and  another bale despatched from Haimanpur to Kanpur,  were loaded in wagon at Itarsi railway station.  The lock of  the wagon  was found broken open and on checking at  nagpur  the aforesaid  bales  were found missing.   On  search,  certain articles including some torn labels were recovered from  the house  of one Gopinath.  The same day the appellant and  few other  persons  were  found  by  the  Police,coming  out  of Gopinath’s  house  whose front door was locked.   They  were taken  to  the  Police Station and at the  instance  of  the appellant the police recovered woollen shawls, mufflers, bed sheets and certain house breaking implements from  different places  of  that house.  After  investigation,  six  persons including  the  appellant  were  put  on  trial  before  the Magistrate for several charges under ss. 120-B, 379 and  414 of  the Indian Penal Code and except one Birendra Nath,  all were  convicted.  On appeal, all the convicted persons  were acquitted  by  the  Additional Sessions  Judge,  on  further appeal  by the State, against the acquittal of Gopinath  and the  appellant,  the  High Court  allowed  the  appeal  only against  the appellant with respect to the offence under  s. 414  of the Indian Penal Code.  On appeal by special  leave, this Court held : Held that the mere fact that the other accused persons  were acquitted on the ground that the property recovered was  not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against 290 whom  there is better evidence.  The State  could  challenge the  correctness of the findings of the Additional  Sessions Judge about the property being stolen property and the  High

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Court could record its own findings on that question. Held  further, that it is not necessary for a person  to  be convicted under s. 414 Indian Penal Code that another person must be traced out and convicted of an offence of committing theft.   The  prosecution has simply to establish  that  the property recovered is stolen property and that the appellant provided help in its concealment and disposal.  The  circum- stances  of  the recovery in the present  case  sufficiently prove that the appellant had assisted in the concealment  of the stolen property and had thus committed the offence under s.  414  Indian Penal Code.  The appeal therefore,  must  be dismissed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 226  of 1960. Appeal  by special leave from the judgment and  order  dated July  28, 1960 of the Madhya Pradesh High Court in  Criminal Appeal No. 385 of 1959. A.   R. Choubay and Naunit Lal, for the appellant. I. N. Shroff, for the respondent. 1963.  April 23.  The judgment of the Court was delivered by RAGHUBAR DAYAL J.-This appeal, by special leave, is directed against  the  order  of the High  Court  of  Madhya  Pradesh reversing,  on  State appeal, the order  of  the  Additional Sessions  judge, Hoshangabad, acquiring the  appellant,  and convicting him of an offence under s. 414 I. P.C. Five   bales,   containing  woollen  shawls   and   mufflers despatched  from  Kanpur by the  British  India  Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another  bale despatched from  291 Haimanpur to Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa No. C.R. 325.  The lock of  the wagon wag found broken open at Pandhurna Railway Station  at about 1.00 a.m. on September 20, 1957. on checking at Nagpur the  aforesaid bales were found missing.  One of  the  bales despatched from Kanpur was found lying the next morning near the  railway  line between railway  stations  Jaulkheda  and Multai. On  September  23,  1957, the house of  one  Gopi  Nath,  at Multai,  was searched and certain articles,  including  some torn labels were recovered from that house. The same day, the police found the appellant and a few other persons come out of Gopi Nath’s house at Betul, whose  front door was locked.  Subsequently, these persons were taken  to the  police  station, where the appellant made  a  statement showing readiness to point out the stolen property.  At  his instance, the police recovered from different places of that house,  woollen  shawls, mufflers,  bed-sheets  and  certain house-breaking  implements.  These recoveries were  made  on September 23 and 24. As a result of investigation, six persons were put on  trial in  the  Magistrate’s Court.  Ajendra Nath,  appellant,  was charged  under ss. 120-B, 379 and 414, I.P.C. Babu  Ram  was charged under ss. 120-B and 379 I.P.C. Ram Prasad and Gyarsi were  charged  under  s.  120-B read  with  s.  879  I.P.C., Gopinath  under  s.  120-B  read  with  s.  414  I.P.C.  and Birendranath  under  s. 414 I.P.C.  The  learned  Magistrate acquitted  Birendra Nath and convicted the other accused  of the  offence under s. 120-B read with s. 379 I.P.C.,  except in  the case of Gopinath, who was convicted of  the  offence under s. 120-B read with s. 414 I.P.C. Ajendra Nath was also

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convicted of the offence tinder s. 414 I.P.C. 292 On   appeal,   the  learned   Additional   Sessions   judge, Hoshangabad, acquitted all these convicted persons.  He held that  the  property recovered was not proved  to  be  stolen property  and  that the alleged conspiracy was  not  proved. The State filed an appeal against the acquittal of  Gopinath and  Ajendra  Nath.   The High Court  dismissed  the  appeal against Gopinath and the appeal against Ajendra Nath for the offence  of  conspiracy.   It  however  allowed  the  appeal against  Ajendra Nath with respect to the offence  under  s. 414  I.P.C.  It is against this order that this  appeal  has been filed by Ajendra Nath, appellant. Ajendra  Nath did not question the recovery of  the  various articles  from Gopi Nath’s house at Betul at  his  instance. He did not claim the property to be his own, but stated that it  was  not stolen property.  The main contention  for  the appellant  in  this  Court has  been  that  these  recovered article;  were  not  proved to  be  stolen  property.   Tile articles  consisted of those said to have been sent  by  the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur,  and  bed-sheets  sent  by  the  firm  of   V.S.N.C. Narsingha  Chettiar, which carries on business of  wholesale Hand Loom Cloth at Karur. The invoices relating to the four bales sent by’ the  Kanpur Woollen  Mills give the details of the shawls  and  mufflers the  bales  contained.  A very large quantity of  these  has been  recovered.  Out of 95 shawls and 63 mufflers, as  many as   80  shawls  and,  43  mufflers  had   been   recovered. Similarly,  out  of 10 pairs of bed-sheets stolen,  8  pairs have  been recovered.  The absence of any  adequate  explan- ation for the presence of such a large quantity of  articles similar  to  those  proved to have been  despatched  by  the Kanpur  Woollen Mills or by the Karur company, the  recovery of these articles within  293 a  few  days of the theft, the presence of  silk  and  paper labels  of  Kanpur Woollen Mills on most of the  shawls  and mufflers recovered and of certain manuscript writings on the labels  of the bed sheets by P.W. 24 Krishnamurthi,  brother of P.W. 16, Venkat Raman, who does the Karur business,  have been  taken into consideration by the High Court for  coming to the finding that the property recovered was proved to  be stolen  property.  These circumstances cannot be said to  be such which would not justify the finding arrived at. The main contention for the appellant however is that it has not been definitely established from the evidence of Kunzru, P.   W.  10,  that  the  shawls,  mufflers  recovered   were manufactured by the Kanpur Woollen Mills and were despatched in  the  bales  which were  subsequently  stolen.   Kunzru’s evidence does fall short of establishing that the shawls and mufflers  recovered were manufactured by the Kanpur  Woollen Mills.   He  has  not identified the  recovered  shawls  and mufflers as those manufactured by these mills.  In fact,  he was  not even shown all the shawls and  mufflers  recovered. He  was  shown by the Police Inspector,  Government  Railway Police, two lois (two shawls) and two mufflers.  He got them examined  by  the textile expert and, on the report  of  the expert,  gave  the  certificate that  they  appeared  to  be manufactured  by the Woollen Mills of Kanpur.   That  expert has  not  been  examined in  Court  and  therefore  Kunzru’s statement  alone  fails to establish that these  shawls  and mufflers  were manufactured by these mills.  However, it  is not open to doubt that they were manufactured by these mills when  most of them had sewn silk labels of these  mills  and

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quite a good number of them had even paper labels indicating that  they were manufactured by these mills.  There,  is  no reason  to suppose and in fact no such suggestion  has  been made  that  these labels had been put on these  articles  by some one for the purpose of 294 deception.   We  therefore consider that  the  finding  that these  shawls  and mufflers were the manufacture  of  Kanpur Woollen Mills is correct. It  was  also contended for the appellant that  it  was  not proved  that  these shawls and mufflers were  in  the  bales which  were despatched by the Kanpur Woollen Mills and  that the gate passes and the invoices produced by Kunzru were not proved  as  persons who wrote them had  not  been  examined. Kunzru produced the originals of these documents.  He is the salesman of the Kanpur Woollen Mills.  His cross-examination in no way indicates that his statement about the genuineness of  the  invoices and gate passes was questioned  in  cross- examination.  There is nothing to suppose that the  invoices and  gate  passes  produced  in  Court  did  not   correctly represent  the  articles placed inside particular  bales  to which specific numbers were given and that those bales  were despatched  from  the  Mills in  accordance  with  the  gate passes.   In this connection reference was made to the  fact that five of the shawls recovered were of violet colour  and no  shawl  of  such a colour was mentioned  in  any  of  the invoices.  There can be a possibility of a misdescription in the  invoices,  There  can be a possibility  of  the  violet shawls  being  the property stolen in some  other  incident. The fact remains that even the violet shawls are not claimed by  the  appellant as his own.  So, we do not  consider  any force in this contention for considering the finding of  the High  Court  defective about the property  recovered  to  be stolen property. With respect to the identity of the bed-sheets, there is the evidence  of P.Ws. 16 and 24.  P.W. 16 deposed that  he  had supplied  10 pairs of bed-sheets to a certain  customer  who disowned  the bale.  Thereupon he asked the Station  Master, Ahimanpur to return the parcel to Karur.  He recognized the various sheets to be of his firm which they had  295 despatched  to  Ahimanpur.  He further deposed  that  before despatching  the goods they paste the firm labels  on  them. He  stated that his younger brother Krishna Murti had  noted size-number   and   pattern  over  these   sheets   in   his handwriting,  as  he  happened to be at  home  on  vacation. Krishna  Murti,  P.W.24, admits that certain labels  on  the bed-sheets  were  in his hand-writing, that  he  wrote  them under  instructions  of  his brother and  that  he  had  not written  sirnilar  numbers  on  any  other  bed-sheets.   He however  stated  subsequently  that  he  did  such  type  of markings casually, on occasions, and that the  Sub-Inspector had  also got him write the size, pattern etc.,  on  certain other blank labels of the shop as well. The learned Additional Sessions judge did not rely on  these statements  and  felt that the Investigating  Officer  might have  got  those  markings on the labels  of  the  recovered articles  during the investigation.  The High Court  thought that there was no reason for doubting the correctness of the statements  of these witnesses and for suspecting  that  the writings   on   the   labels  were   obtained   during   the investigation.   No  question was put to P.W. 24  about  the police  making  him  write on the labels  on  the  recovered articles.   In fact, according to the witness,  labels  with his  writings were shown to him for purposes of  recognition

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and he recognized those writings to be his.  The police took his writings on blank labels for purposes of comparison.  We therefore see no good reason for considering the finding  of the  High Court with respect to the bed-sheets recovered  to be stolen property to be wrong. It was also contended that it was not open to the High Court to  record  a  finding about the recovered  property  to  be stolen property when the Government had not appealed against the other co-accused who were acquitted on the basis of  the finding  that  the property recovered was not proved  to  be stolen 296 property.  We do not see any force in this contention.   The mere  fact  that  the  learned  Additional  Sessions   judge acquitted the other accused on the ground that the  property recovered  was  not  proved to be stolen  property  did  not preclude  the State from appealing against the acquittal  of the  appellant  against whom there is  better  evidence  for establishing  that  he  was  in  possession  of  the  stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the  learned  Additional Sessions judge about  the  property being stolen property and, consequently, the High Court  can record its own finding on that question. Lastly,  it was also urged that even if the identity of  the articles recovered with the articles stolen be  established, no  offence  under  s.414 I.P.C. is  made  out  against  the appellant as the other accused have been acquitted and it is not  known whom the appellant is supposed to have helped  in concealing the stolen property.  Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows  or has  reason  to believe to be stolen property.   It  is  not necessary  for a person to be convicted under  s.414  I.P.C. that  another person must be traced out and convicted of  an offence of committing theft.  The prosecution has simply  to establish that the property recovered is stolen property and that  the  appellant provided help in  its  concealment  and disposal.   The circumstances of the  recovery  sufficiently make  out  that the property was deliberately  divided  into different packets and was separately kept.  May be that  the property failing to the share of a particular thief was kept separately.  It was recovered from several different  places in  the same house.  These places included an iron safe  and an underground cellar.  The evening before, several persons, including the appellant, were found to be coming out of  the back door of the house which had its front door  297 locked.   The  appellant also knew the  whereabouts  of  the property  inside the house of his maternal grandfather.   He attempted to sell a few mufflers a day before the recoveries were  made.  He was seen arriving at the house,  during  the night, in a car with some persons and then removing property which  looked  like bales from the car to  the  house.   All these circumanstances go to support the finding that he  had assisted  in the concealment of the stolen property and  had thus committed the offence under s,414 I.P.C. We  therefore see no force in this appeal and,  accordingly, dismiss it.                     Appeal dismissed.