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PETITIONER: SATNARAIN SAO

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT18/04/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1561            1973 SCR  (1) 207  1972 SCC  (3) 881

ACT: Indian  Penal Code s. 411 and Evidence Act s.  144(a)-Stolen property  found in the possession of accused  shortly  after theft-Accused’s  explanation must be found to be  reasonably true  to  displace  presumption against  him  under  s.  144 Illustration (a) Evidence Act.

HEADNOTE: A Sen-Raleigh cycle which was stolen by one S was  recovered from  the  house of the appellant along with  several  other cycles.   The appellant’s explanation was that some  of  the cycles belonged to members of his family and the others were pledged  with him in the course of his business..  Ext.   DA was  produced by the appellant to show that the  Sen-Raleigh cycle in question had been pledged with him by S. The  Trial Court  did not accept the document as genuine, rejected  his explanation  as  to  how  the  said  cycle  came  into   his possession  and  convicted  him  under  s.  411  I.P.C.  The conviction  was  upheld  by the High  Court  Dismissing  the appeal, this Court, HELD,:    The  appellant  had sought to prove  the  document ext.   DA  to  support  the  transaction  of  pledge.   That document  had  rightly been found not to have  been  proved. Apart  from the Sen-Raleigh cycle several other cycles  were found in the possession of the appellant which he claimed to have  been, pledged with him.  No article of any other  kind was either pointed out or claimed to have been pledged  with the  appellant  or with members of his  family  which  would normally have been done if the version given by him that the business of pawn brokers was being carried on had any  truth in  it.   Pawn-brokers are ordinarily and in  normal  course expected to maintain some books of account or some documents which  contain the particulars of the transactions  relating to  pledge.   There was no indication or suggestion  by  the appellant that he was maintaining any such books of  account or documents. [211F] The  above  circumstances were sufficient to show  that  the court  would  be justified in holding that  the  explanation given  by  the appellant could not reasonably  be  true.   A presumption   therefore  could  immediately  be   drawn   in accordance  with s. 114.  Illustration (a) of  the  Evidence Act.  There was hardly any evidence worth the name by  which

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it  could be said that the presumption had been rebutted  by the appellant. [211H] The appeal must accordingly be dismissed. Atwal  v.  Massay,  [1971] 3 All.   E.R.  881;  Otto  George Gfeller V. The King, [1943] P.C. 211 and Rex v.  Abramoitch, [1914] 84 L.J. (K.B.) 391. referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 67  of 1968. Appeal  by special leave from the judgment ’and order  dated January 18, 1968 of the Patna High Court in Criminal  Appeal No. 407 of 1966. 208 S.   C. Agarwala and V. J. Francis, for the appellant. B.   P. Jha, for the respondent. The Judgment of the Court was delivered by Grover,  J.  This  is  an appeal by  special  leave  from  a judgment of the Patna High Court upholding the conviction of the  appellant  under s. 411 of the Indian  Penal  Code  for which  a sentence of three years’ rigorous imprisonment  was imposed. According to the case of the prosecution a Sen-Raleigh cycle was  stolen  from  the possession of Sheo  Charan  Lal.   He reported  the  matter to the Police on March 25,  1965.   It appears  that  on May 11, 1965 the  Station  House  Officer, Incharge Giridih Police Station A.D.N, Sinha learnt while he was  moving  about in the town on the Moharram  day  that  a thief was running away with a Sycle.  The alleged thief  was apprehended  and the cycle in his possession was taken  into custody.  The name of that person was Mohnd.  Siddique.   He made,  a  statement to the police officer which led  him  to search  the premises of the appellant.  As a result  of  the ’search   seven  cycles  including  the  Sen-Raleigh   cycle belonging  to Sheo Charan Lal which was stolen on March  24, 1965 and three other cycles were recovered from the house of the appellant, Mohd, Siddique and the appellant were  tried, the former under ’s. 379 and the latter under s. 411 of  the Indian Penal Code.  Siddique was convicted and sentenced but he did not file any appeal. It  was  not disputed before the High Court  that  the  Sen- Raleigh. cycle was recovered along with nine other cycles as a  result  of the search of the house of  the  appellant  by A.D.N. Sinha the S.H.O. on May 11, 1965.  It was also proved that  that cycle was stolen.  The explanation given  by  the appellant  was that three out of the 10 cycles  belonged  to the  members  of  his family and the other  seven  had  been pledged  with  him as he carried on the business of  a  pawn broker.  The Sen-Raleigh cycle had been pledged by  Siddique with  him and that is how the said cycle was recovered  from his possession.  P.W. I Jayantilal and P.W. 2 Shyam  Narain, Singh deposed that the appellant as well as his brothers and other members of his family lived in the same house.  It was further  stated by them that the appellant and his  brothers worked as contractors and they also took things on pawn  and advanced money.  According to Shyam Narain Singh he had seen ornaments  and  utensils  being  taken  on  pledge  by   the appellant and members of his family although he had not seen him taking any cycle on pledge.  The appellant also produced a document Exh.DA which was scribed by one Baldev Pandit and had  been attested by some witnesses.  In this  document  it was  stand that Rs. 80 bad been received by Siddique by  way of advance from the appellant and

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                           209 that the cycle in question had been pledged with the latter. Neither  the scribe nor Mahabir Sao or Nanden who  were  the attesting  witnesses  gave evidence.  D.W. I  Ramjit  Sao  a neighbour  deposed that the document Exh.A had been  scribed in his presence and that Rs. 80/- had been paid to Siddique. Siddique  had  pawned the cycle by way of security  for  the advance.  The courts below found that this document had been manufactured  for the purpose. of the case implying  thereby that  it was not genuine.  The appellant does not appear  to have  produced any evidence about the pledging of the  other cycles  which were found in his possession nor did he  point to  any other article apart from the cycles which  had  been pledged  with  him in the course of his business  when  the, search was made of his house by the S.H.O. A.D. N. Sinha. The  High Court, apart from other facts, took the  following matters into consideration while upholding the conviction of the appellant (1) Although two    defence  witnesses had been examined  by the  appellant there was nothing to show that he  had  taken the ordinary precaution of making proper enquiries about the ownership  of  the cycle before advancing any  loan  on  its security. (2)  It was significant that the document Exh.  A was  quite silent  as  to the source from where Siddique had  got  that cycle and’ when he had acquired it. (3)  These facts showed that the transaction could not  have been a bona fide transaction by the person carrying on  bona fide business of advancing loans on pledge. (4)  The Investigating Officer had deposed to the fact  that after the recovery of 10 cycles he made a verification  from the records of the Police station and found that besides the Sen-Raleigh  cycle  cases had been instituted  earlier  with respect to four more cycles out of the recovered cycles. (5)  Even  if  it  be assumed that  this  evidence  was  not admissible according to the charge as framed with regard  to two cycles the same had been recovered from the place of the appellant which had been admitted by Siddique as having been stolen by him. (6)  There  could  be no doubt that at least two of  the  10 cycles  recovered from the possession of the appellant  were stolen properties. (7)  Considering  the above aspect as well as the fact  that the  conduct of the appellant in connection with the  taking possession,  of the cycle in question from Siddique was  not at  all  consistent with the conduct of a  man  of  ordinary prudence  it  was  not possible to  accept  the  appellant’s contention  that  he  had taken  possession,  of  the  cycle without knowledge or belief that it was stolen. 210 Learned  counsel for the appellant has subjected  the  above reasons   given  by  the  High  Court  for  sustaining   the conviction  to  criticism on several grounds.  It  has  been firstly  pointed out that admittedly the trial was  confined to the alleged theft of the SenRaleigh cycle and its  having been  received by the appellant in circumstances which  made him  guilty of an offence under s. 411 ,of the Indian  Penal Code;  the prosecution relating to the other  cycles  should not  have been taken into account.  It has next  been  urged that  the  whole approach with regard to the  appellant  not having made bona fide enquiry from Siddique before accepting the  Sen-Raleigh cycle in pledge was unsustainable  in  law. We  may  in  this connection refer to  a  judgment  of  Lord Widgery C.J. in Atwal v. Massey(1) in which it was laid down that  in  order to establish an offence under s. 22  of  the

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(English) Theft Act 1968 which is similar in terms to s. 411 of the Indian Penal Code, it was not sufficient to show that the  goods  had been received in circumstances  which  would have  put  a reasonable man on enquiry; the question  was  a subjective one; was the appellant aware of the theft or  did he believe the goods to be stolen or did he, suspecting  the goods  to  be  stolen, deliberately shut  his  eyes  to  the circumstances ? The next submission on behalf of the  appel- lant is that the correct ambit and scope of the  presumption which  can  be drawn under s. 114, illustration (a)  of  the Evidence  Act  was not considered by the High Court  or  the courts below. Section  114 provides that the court may presume the  exist- ence  of  any fact which it thinks likely to  have  happened regard  being  had to the common course of  natural  events, human  conduct  and public and private  business,  in  their relation to facts of the particular case.  Illustration  (a) is  as  follows  : that a person ’who is  in  possession  of stolen property soon after the theft is either the thief  or has  received the goods knowing that to be stolen unless  he can  account for his possession.  In Otto George Gfeller  v. The King ( 2 ) the law as enunciated in Rex v. Abramovitch(3 ) was accepted as representing the correct statement on  the subject of the presumption to be drawn in such cases.   That was in the following terms :               "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 might reasonably be true, and which               is  consistent  with innocence  although  they               were not convinced of its truth the (1)  [1971] 3 All.  E.R. 881. (3) [1914] 84 L.J. [K.B.] 391. (2) [1943] P.C. 211. 211               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". It has been urged before us that the appellant had given  an explanation  of  how  he came into possession  of  the  Sen- Raleigh  cycle,  his  explanation being  that  it  had  been pledged  with  him  by Siddique in the  ordinary  course  of business  which he was carrying on and that explanation  had been   sought  to  be  supported  by  evidence.    The   two prosecution  witnesses had testified that the appellant  and other members of his family were carrying on the business of pawn  brokers  apart from other avocations which  they  were following.   It  is emphasised that according to  the  above statement  of law even if the courts were not  convinced  of the  truth of the explanation but if the same could be  held to be reasonably true the prosecution must be considered  to have failed to discharge the duty cast upon it of satisfying the  court  beyond  reasonable doubt of  the  guilt  of  the appellant. The  question that the courts, therefore, had to decide  was whether  the explanation given by the appellant in  view  of the admission that the Sen-Raleigh cycle was stolen property could be held to fall within the above rule, namely, whether it  might reasonably- be true even though the;  courts  were

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not convinced of its truth.  Since the courts below and the, High  Court  have  taken some  irrelevant  and  inadmissible matters  into consideration we have examined with  care  the explanation  given  by  the appellant in the  light  of  the entire  facts and we are unable to come, to  the  conclusion that  the  explanation  could  be  regarded  such  as  might reasonably  be true.  The first and the most important  fact is that the appellant had sought to prove the document  ext. DA to support the transaction of pledge.  That document  bad rightly been found not to have been proved.  Apart from  the Sen-Raleigh  cycle  several other cycles were found  in  the possession  of the appellant which he claimed to  have  been pledged with him.  No articles of any other kind were either pointed  out  or  claimed  to have  been  pledged  with  the appellant or with members of his family which would normally have been done if the version given by him that the business of  pawn brokers was being carried on had any truth  in  it. Pawn-brokers are ordinarily and in normal course expected to maintain  some  books  of account or  some  documents  which contain  the  particulars of the  transactions  relating  to pledge.   There  was  no indication  or  suggestion  by  the appellant that he was maintaining any such books of  account or documents. The above circumstances, in our opinion, were sufficient  to show  that the court would be justified in holding that  the explanation  given by the appellant could not reasonably  be true.  A 212 presumption,  therefore,  could  immediately  be  drawn   in accordance  with  S. 114, Illustration (a) of  the  Evidence Act.  There was hardly any evidence worth the name by  which it  could be said that the presumption had been rebutted  by the appellant. In  the  result  the  conviction and  the  sentence  of  the appellant  are maintained and the appeal is  dismissed.   He was released on bail; he shall surrender to the bailbonds. G.C.                              Appeal dismissed. 213