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PETITIONER: KARNAL SINGH UTTAM SINGH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT19/11/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GOSWAMI, P.K.

CITATION:  1976 AIR 1097            1976 SCR  (3) 747  1976 SCC  (1) 882

ACT:      Indian Evidence Act Section 114-Presumption from recent possession of stolen property - Nature of.      Criminal  Procedure   Code,   1898   section   342-When explanation given  by the  accused under  s.  342  is  quite reasonable and  credible and  supported by other evidence in defence, Conviction  and sentence under s. 411 of the lndian Penal Code is not sustainable.

HEADNOTE:      On 4-3-1968,  the date  of the  accident. Karnal Singh, the accused  was driving  the truck  No. MRS 7372. purchased out of  the loan  advanced by the ex-serviceman Co-operative Society to  one Sutar  who entrusted  the vehicle to Balwant Singh, the  brother of  the appellant, a co-accused, under a contract for  hire against  a monthly  payment of  Rs. 2000- 2200, after  incurring all  expenses  over  the  truck.  The payment was  regular up  to December, 1967, and, thereafter, Balwant Singh  avoided Sutar. Though Balwant Singh met Sutar on 9-3 1968 and 12-3-1968 ie. after the date of accident and promised to meet him later, The actually absconded resulting in the lodging of a First Information Report by Sutar on 20- 4-1968 at  12.30 p.m.  against Balwant Singh Uttam Singh for taking appropriate action under s. 408, I.P.C.      Since Balwant  Singh was absconding and the vehicle was found  in   the  possession  of  Karnal  Singh,  the  police apprehended him  and filed  the charge sheet. The Presidency Magistrate,  6th   Court,  Mazagaon,   Bombay,  charged  the appellant under  s. 408 read with s. 114 of the Indian Penal Code, but,  actually convicted  him and sentenced him to six months R.I.  and a  fine of  Rs. 500/-  under s.  411 Indian Penal Code  without appreciating  the effect  of either  the value  of  Exhibit  Dl  dated  12-3-1968  written  by  Sutar indicating that  he was  agreeable to pay the total costs of the repair of the damaged vehicle, with the admission of its execution by  Sutar  in  cross-examination  and  failure  to explain these  or of the explanation given by the accused in his 342  statement to  how he  came into  possession of  the lorry for repairing it.      The  High  Court  mainfained  the  conviction  and  the sentence. Allowing the appeal by special leave, the Court, F ^

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    HELD. (1)  the presumption  from recent  possession  of stolen property is an optional Prescription of fact under s. 114 of  the Indian  Evidence Act. It is open to the Court to convict the  appellant by  using the  presumption  when  the circumstances indicate  that no  other reasonable hypothesis except the  guilty knowledge of the appellant is open to the prosecution. [751-D]      (2) In  the instant  case, there  was no mention of the appellant’s name  in the F.I.R. there was no change under  s 411, I.P.C.  against him  and he was not asked to explain it possession of  the truck,  but still  he did explain it. The appellant’s answer  to the  omnibus question  under s.  342, Criminal Procedure Code, without giving him an intimation of the offence  of which  he was likely to be convicted, on the face  of   it,  was   quite  reasonable  and  credible.  The prosecution had  been unable  to repel  the effect  of  this fairly acceptable  explanation. The  explanation  which  the appellant had  given was good enough to raise serious doubts about the  susceptibility of  a charge  under s. 411, Indian Penal Code.  The principle  of benefit of doubt on questions of fact  applies whether  the verdict  is of  a Jury  or the finding is  to be given by a Judge or a Magistrate.[751,AB.E H]      Otto George  Gfeller v. The king, AIR 1943 PC 211 @ 214 JUDGMENT: 748

&      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  N4. 133 of 1971.      Appeal by  special leave  from the  judgment and  order dated the  15-2-1971 of  the Borrrbay High Court in Criminal Appeal No. 1354 (lf 1 969.      S. K. Gambhir and 5. M. Sikka for the appellant.      M. C. Bhandare and M. N. Shroff for Respondent.      The Judgment of the Court was delivered by      BEG, J.  The appellant  before us  by special leave was charged as follows by the Presidency Magistrate of Bombay:           "I.B.  P.  Saptarshi,  Presidency  Magistrate  6th      Court,      Mazaagaon, Bombay, do hereby charge you:      Karnal Singh S/o Uttam Singh as follows:           "That you  on or  about the  20th day of February,      1968 at  Bombay along  with one Balwant Singh s/o Uttam      Singh who  has absconded,  at 171,  Kazi Sayyed Street,      being entrusted  with certain  property to  wit M/Lorry      No. 7372  valued  at  Rs.  52,000/-  belonging  to  the      complainant Shankar  Dhondiba Sutar as driver committed      criminal  breach  of  trust  in  respect  of  the  said      property  and  aided  and  abetted  to  the  absconding      accused in  commission of  the said offence and thereby      committed an offence punishable under Sec. 408 r.w. 114      of the Indian Penal Code and within my cognizance.           And I hereby direct that you be tried by me on the      said charge".      The prosecution  evidence in  the case was: one Shankar Dhondiba Sutar  a  member  of  the  Ex-Servicemen  Transport Cooperative Society  Ltd., Bombay,  had purchased  the Truck No. MRS  7372 after  taking a  loan of Rs. 50,000/- from the Society out  of which  he had  paid up  Rs. 43,000/-. He had entrusted Balwant  Singh Uttam  Singh, the  brother  of  the appellant, with  the truck.  He had  a contract with Balwant Singh Uttam Singh under which he used to get a net income of

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Rs. 2000/-  to Rs.  2200/- p.m. from Balwantsingh Uttamsingh who was  running the  truck and  seemed to  be incurring all necessary expenses  of it.  This amount  was paid  regularly upto December,  1967. Thereafter,  Balwantsingh  Uttamsingh, the driver,  avoided meeting  the purchaser of the truck and was said  to be  absconding. On 4-3-1968, the truck met with an accident and Balwantsingh Uttamsingh is said to have sent information of  it to S. D. Sutar. On 9-3-1968, according to Sutar, Balwantsingh  him self  went to  Sutar. And, when the owner asked him to take him to the truck, it is alleged that he did not comply with this request. 749 As Shankar  Dhondiba Sutar  had not paid up the whole amount due for  the truck  which he  had borrowed from the Society, the owner  of the truck, as entered in the Insurance papers, was the Society itself. S. D. Sutar stated that he found the truck at  Thana Katha  where he  also  found  the  appellant before us, Karnalsingh Uttamsingh, who had been, apparently, driving the  truck. The  First Information Report was lodged on 20-4-1968  at 12.30  p.m. by  S. D.  Sutar. It is against Balwantsingh Uttamsingh and makes no allegations against the present appellant. It is said that Balwant Singh Uttarnsingh had met  S. D. Sutar again on 12-3-1968 and told him that he would turn  up again.  Vazir Singh  Gaya Singh,  PW  2,  the Secretary of  the Bombay Ex-Servicemen Transport Co. deposed that S. D. Sutar was a shareholder in the Company and proved the terms of his contract with Balwantsingh. He also made no complaint whatsoever against the present appellant. All that he said  was that the truck was seen near Kashali Bridge and the present  accused was  its driver.  Sub Inspector  Ramesh Damodar, PW 3, stated that, on 13-5-1968, Vazir Singh, PW 2, and a  police constable brought the truck to Pydhonie Police Station  and  that  it  was  being  driven  by  the  present appellant at that time. This is all the evidence against the appellant.      The only  question that  the appellant was asked by the learned Magistrate under Section 342 Criminal Procedure Code and the appellant’s reply are:           "Q. What  do you wish to say with reference to the      evidence given and recorded against you?           A. I  do not know whether M/Lorry No. MRS 7372 was      handed  over   to  the   complainant  on  sale-purchase      agreement and that the complainant had paid Rs. 43,000/      towards the instalment. I do not know whether the price      was fixed  at Rs. 50,000/-. Balwant Singh is my brother      but I do not know if the complainant had given lorry in      his possession  in his  capacity as  a driver. I do not      know whether  Balwant Singh  left  with M/Lorry in Dec.      1967. I  do not  know anything  about Balwant Singh not      meeting the  complainant thereafter.  Mangal Singh told      me that  this lorry had met with an accident and that I      should invest  the amount  over repair,  and after  the      amount is  recovered from  the plying of the lorry, the      lorry would  be returned  to him. It is true that Vazir      Singh and one P.C. had told me to take the lorry at the      Pydhonie Police  Stn. I  was the  driver  on  the  said      vehicle at that time. I do not know where is my brother      at present.  He meets me at times. I have not spoken to      him about the case. I want to lead defence witness".      He led  some evidence in defence. Mangaldas Purshottam, D.W. 1, stated that,one Kartar Singh the driver of the truck had sent  him a  Trunk Call  from Jalan  that the  truck  in question had  met with  an accident  on 4-3-1968 and that he gave this  message to  S. D.  Sutar.  As  the  accident  was serious and the damage was considerable

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750 S. D.  Sutar was  unable to  meet with the money required to repair it. According to Vazir Singh, PW 2, the claim against Insurance Co. was of Rs.,11000/-. According to Mangaldas, DW 1, the  complainant had  agreed that  the  appellant  should repair the  truck and  deduct its expenses out of the income he could  make from  plying the  truck on  hire.  He  proved Exhibit 1 dated 12-3-1968 containing a writing, signed by S. D. Sutar. It has been translated as follows:                                                   "Ext.’1’                                             Dated 12-3-1968. National India Roadways,           "I, shankar  Dhondiba give  you in  writing  today      that my  Lorry No.  MRS-7372  which  had  met  with  an      accident, I  am bound to pay total costs whatever comes      to of its reparation".                                                   Sd./-                                     Shankar Dhondiba Sutar".      This was  put to  S. D.  Sutar in cross-examination. He admitted  his  signature  under  the  writing  and  gave  no explanation about it. It is significant that it was executed on the very day on which, according to an admission of S. D. Sutar, Balwant  Singh also  saw S.  D.  Sutar.  Perhaps  the defence has  also yet  come out with the whole truth. It is, however, quite  inconceivable that  S.  D.  Sutar  would  be completely unconcerned as to what had happen to the truck if he had  not entrusted it to somebody other than Balwantsingh Uttamsingh for  repairs to it. The matter seems to have been report ed  to the police only as a result of some quarrel or differences between  parties. Moreover,  nobody would repair the truck  without being  paid for it. The explanation given by the  appellant was,  on the  face of it, quite reasonable and credible.  It was  not  merely  supported  by  Mangaldas Purshottarn, D.W.l,  whose cross-examination  did not elicit anything  to   show  that   he  was   unreliable  but  also, indirectly, by  Ashok Jugannath,  DW2, the Superintendent of the  Commonwealth   Insurance  Co.  ‘who  proved  the  bills supplied to  the  Company  on  the  strength  of  which  the Insurance Co. had paid Rs. 6078.35.      It was,  therefore, clear  that somebody  had  got  the truck repaired  and realised  the amounts  to  be  paid  for repairs from  the Insurance  Company. The beneficiary of the contract of insurance was the Bombay Ex-Servicemen Transport Co. of  which S.  D. Sutar  was a  member.  Apparently,  the amount had  been realised  by somebody  on  behalf  of  this Company. The bills could have been given by the  appellant. In the absence of any proof as to who else could have or  had repaired the truck the version of the appellant could not be said to be quite unbelievable. 751      A remarkable  part of  the  case  is  that  the  Trying Magistrate had  A convicted  the appellant under Section 411 Indian Penal  Code and  sentenced him to six months rigorous imprisonment and to pay a fine of Rs., 500/- when he was not even  charged   with  this  offence.,  The  High  Court  had maintained this conviction and the sentence and had not even mentioned the  defects in  the trial.  There was  neither  a charge under  Section 411 I.P.C. nor was the appellant asked to explain  his Possession  of the  truck  although  he  did account for  it. The  appellant’s explanation appeared quite plausible. It  may have  been difficult  to  hold  that  the appellant could  not have been prejudiced by the omission to frame a  charge or  by the  manner in  which he  was put one omnibus question  under Section  342 Criminal Procedure Code without giving  him an intimation of the offence of which he

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was likely  to be  convicted, if  these questions  had  been seriously raised.  However, as these questions do not appear to have  been argued  in the  High Court  and were‘not  even raised in  the grounds  of appeal in this Court, we will not consider them further. We think that this appeal is bound to succeed on  the view  of the  facts we have taken above. The presumption from  recent possession of stolen property is an optional  presumption  of  fact  under  Section  114  Indian Evidence Act.  It  is  open  to  the  Court  to  convict  an appellant by  using the  presumption where the circumstances indicate that  no other  reasonable  hypothesis  except  the guilty  knowledge   of  the   appellant  is   open  to   the prosecution. In  the case before us, the appellant had given a fairly  acceptable explanations.  The prosecution had been unable to repel the effect of it. The owner of the truck, S. D. Sutar,  had made  admissions  which  indicated  that  the prosecution case  of an  unlawful possession  on the part of the appellant  was not  likely. It  is more  likely that the appellant had been entrusted with the truck in order that he might repair  it and  realise the costs. However, we express no opinion  on this  aspect of the matter as the sentence of such a  contract may  involve a civil liability. All we need say is  that the  explanation which  the appellant had given was  good   enough  to   raise  serious   doubts  about  the sustainability of  a charge  under Section  411 Indian Penal Code on  the strength  of what  was laid down in Otto George Gfeller v.  The King(1),  the appellant  was entitled  to an acquittal. It was held there (at p. 215):            "The  appellant did  not have  to prove his story      but if  his story broke down the jury might convict. In      other words,  the jury might think that the explanation      given was  one which  could  not  reasonably  be  true,      attributing  a   reticence  or   an  incuriosity  or  a      guilelessness to  the appellant  beyond  anything  that      could fairly be supposed". In that case, the question had to go before the Jury and the charge was  found to  be defective. The principle of benefit of doubt,  on questions of fact, applies whether the verdict is of  a Jury  or the finding is to be given by a Judge or a Magistrate.  The  principle  laid  down  in  Gfeller’s  case (supra) (at p. 214) was: 752           ".. that  upon the  prosecution establishing  that      the accused were in possession of goods recently stolen      they may  in the  absence of  any  explanation  by  the      accused of  the way  in which the goods came into their      possession which  might reasonably  be true  find  them      guilty, but that if an explanation were given which the      jury think  right reasonably  be  true,  and  which  is      consistent  with   innocence  although  they  were  not      convinced of  its truth  the prisoners were entitled to      be acquitted  inasmuch as  the prosecution  would  have      failed to discharge the duty cast upon it of satisfying      the jury  beyond reasonable  doubt of the guilt. Of the      accused"      Consequently, we  allow this  appeal and  set aside the conviction and sentence of the appellant. His bail bonds are discharged. S.R.                                         Appeal allowed. 753