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PETITIONER: SHEO NATH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 15/10/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR  535            1970 SCR  (2) 796  1969 SCC  (3) 116

ACT: Evidence  Act,  (1  of 1872)-Section  114  illustration  (a) Recovery from appellant’s shop of  cloth stolen in  dacoity- Conviction under s. 396 I.P.C. solely based on discovery  of cloth and their identification- Inferences to be drawn under s. 114, Evidence Act.

HEADNOTE: The  house of the appellant, a cloth merchant, was  searched and  three  lengths  of  cloth  were  recovered  which  were subsequently identified as having been stolen from a shop in a  dacoity  in  which clothes,  ornaments,  cash  etc.  were stolen.  The appellant was not named by the eye-witnesses or in  the  dying  declaration  as having  taken  part  in  the dacoity.   Relying on the discovery of the cloth  and  their identification  the  High Court convicted him under  s.  396 Penal  Code.  The Court observed that it was  legitimate  to infer that he was one of the dacoits in view of illustration (a)  to Section 114 of the Evidence Act.  In the  appeal  to this Court it was contended that the High Court should  have convicted  the appellant only under section 411 Penal  Code. Allowing the appeal, HELD  : On the facts the only legitimate presumption  to  be drawn is that the appellant knew that the goods were  stolen but he did not know that they were stolen in a dacoity.  All the  property  which  was  stolen by  the  dacoits  was  not recovered  from  the  appellant.   The  appellant,  a  cloth merchant, may well have acquired these goods as a  receiver. It  has  not  been shown that in the village  in  which  the appellant lived it was known that a dacoity had taken  place and goods had been stolen in the dacoity. [799 B-C] Wasim  Khan  v. State of Uttar Pradesh,  [1956]  S.C.R.  191 distinguished; Sanwal  Khan  v.  State of Rajasthan A.I.R.  1956  S.C.  54, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 49  of 1969.

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Appeal  by special leave from the judgment and  order  dated December  2,  1968 of the Allahabad High Court  in  Criminal Appeal No. 1277 of 1968. R.   L. Kohli, for the appellant. O.   P. Rana, for the respondent. The Judgment of the Court was delivered by Sikri,  J. The only question which arises in this appeal  by special leave is whether the appellant, Sheo Nath, should be convicted  under  s. 396, I.P.C., or s. 411, I.P.C.,  or  S. 412, I.P.C. The facts as found by the High Court are  these. A dacoity was committed at the shop of Ram Murat in  Dhaneja village  by  15 to 20 persons on August 19, 1966,  at  about 11.30  p.m.  One dacoit, Ram Shankar, was armed with  a  gun while others carried 797 spears,  Gandasas  and  lathis.  During the  course  of  the dacoity Ram Murat was injured.  One Pancham, who lived in  a house  not  far from Ram Murat’s shop, and two  others  came running  on heating the noise.  Pancham was shot  down  with the  gun  by dacoit Ram Shankar.  The dacoits  then  escaped with clothes, ornaments, cash, etc., looted from Ram Murat’s shop.   After the dacoits left Ram Murat dictated  a  report about  the occurrence in which lie named Ram Shankar  Singh, Jaintri  Prasad  Singh,  Nanhe Singh and  Sulai  accused  as having  been among the culprits and this report was sent  to the  Jalalpur police station, five miles away, where it  was received-and recorded at 6 a.m. next morning. On August  22, 1966, i.e., three days after the dacoity, the house of  Sheo Nath,  appellant,  was searched and three lengths  of  cloth were  recovered  which were subsequently identified  by  Ram Murat  and  a tailor named Bismillah as having  been  stolen from Ram Murat’s shop in the dacoity. The  High Court, agreeing with the learned  Sessions  Judge, relied on the evidence of three eye-witnesses regarding  the manner in which the occurrence took place and regarding  the participation of the four named accused persons.  Sheo  Nath had  not  been named by the eye-witnesses or  in  the  dying declaration  of  Panchain  and no witness  claimed  to  have identified him taking part in the dacoity.  But, relying  on the   discovery  of  three  lengths  of  cloth   and   their identification, the High Court convicted Sheo Nath under  s. 396, I.P.C. The High Court observed :               "From the material on record we are fully con-               vinced that the Exhs. 2 and 3 were stolen from               the  shop  of Ram Murat in the course  of  the               dacoity  committed in the night between 19  to               20 August 1966, and since they were  recovered               from the possession of Sheonath appellant only               2  or 3 days later, it is legitimate to  infer               that   he   was  one  of  the   dacoits   vide               illustration   (a)  to  section  114  of   the               Evidence Act.  Sheo Nath, therefore, has  been               rightly convicted under section 396, I.P.C."               The learned counsel for the appellant contends               that in the circumstances of the case the High               Court should not have convicted the  appellant               under  s. 396, I.P.C., but only under  s.  411               I.P.C.  Section  114 of the Evidence  Act  and               illustration (a) read as follows :               " 114.  The Court may presume the existence 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.

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             illustrations.               798               The Court may presume-               (a)   that  a  man  who is  in  possession  of               stolen  goods after the theft, is  either  the               thief  or has received the goods knowing  them               to  be stolen, unless he can account  for  his               possession."               This  Section was considered by this Court  in               Sanwal  Khan v. State of  Rajasthan(1).   This               Court,  after  considering  some  High   Court               cases, observed :               "In our judgment no hard and fast rule can  be               laid down as to what inference should be drawn               from a certain circumstance.  Where,  however,               the only evidence against an accused person is               the  recovery of stolen property and  although               the circumstances may indicate that the  theft               and the murder must have been committed at the               same  time,  it  is  not  safe  to  draw   the               inference that the person in possession of the                             stolen  property was the  murderer. Suspicion               cannot take the place of proof." In  Wasim Khan v. State of Uttar Pradesh(2) this Court  held that  "  recent  and unexplained possession  of  the  stolen property  while it would be presumptive evidence  against  a prisoner  on  the  charge  of  robbery  would  similarly  be evidence against him on the charge of murder." On the  facts of that case this Court held that the appellant was  rightly convicted of the offence of murder and robbery.  But,  apart from  the  possession of stolen property, there  were  other circumstances  indicating that the appellant was  guilty  of murder and robbery.  The circumstances were that the  appel- lant  in  that case had travelled with the deceased  on  his bullock  cart alone and the deceased never reached his  home and  was  found  murdered.   The  appellant  was  found   in possession  of the goods ,of the deceased three  days  after and the appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance  from the bullock cart. In the present case three presumptions are possible from the recovery  of the stolen goods from the appellant three  days after the occurrence of the dacoity               (1)   that  the  appellant took  part  in  the               dacoity;               (2)   that  he received stolen  goods  knowing               that  the goods were stolen in the  commission               of a dacoity; and               (3)   that the appellant received these  goods               knowing them to have been stolen.               (1) A.I.R. 1956 S.C. 54.                (2)[1956] S.C.R. 191.  799 The  choice  to be made, however, must depend on  the  facts proved  in  this  case.   It is quite  clear  that  all  the property which was, stolen by the dacoits was not  recovered from the appellant.  We may repeat that clothes,  ornaments, cash,  etc. were stolen.  The only articles that were  found with  the appellant were a length of muslin (Exh. 2)  and  a length  of  charkhana  doriya (Exh. 3).   The  appellant  is stated to be a cloth merchant and he may well have  acquired these  goods as a receiver.  It has not been shown  that  in the village in which the appellant lived it was known that a dacoity  had  taken place and goods had been stolen  in  the

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dacoity. On  the  facts of this case it seems to us  that  the,  only legitimate  presumption  to be drawn is that  the  appellant knew  that the, goods were stolen but he did not  know  that they  were stolen in a dacoity.  The  appellant,  therefore, can only be convicted under s. 411, I.P.C. In this connection we may refer to a decision of the  Rajas- than High Court in Bhurgiri v. The State(1) (Wanchoo,  C.J., and  Dave,  J.).  Wanchoo,  C.J.,  after  holding  that  the recovery  of ornaments from Bhurgiri had  been  established, observed :               "The next question is whether on this evidence               Bhurgiri  can be convicted for dacoity.   The,               recovery  took  place  five  days  after   the               dacoity.   It  is not impossible  that  during               that  period  the property might  have  passed               from  the dacoits to a receiver.  Under  these               circumstances, we are of opinion that it would               not be safe to convict Bhurgiri of dacoity  on               the evidence of this recovery alone.  It would               be  more  proper to convict him  as  a  guilty               receiver.               Then the question arises whether he should  be               convicted under section 411 or 412, I.P.C.  So               far as section 411 is concerned, he is clearly               guilty  under that section.   The  presumption               under  section 114 applies, and we can  safely               presume that he is a guilty receiver of stolen               property  particularly when we find  that  the               property was kept in the Bara, and not at  his               own  house.   He  must  have,  had  reason  to               believe  that it was stolen when  he  received               the  property, and that is why he left  it  in               the  Bara.  But we feel that it would  not  be               proper  to  convict  him  under  section   412               because   that  section  requires   that   the               receiver should know or have reason               (1)   I.L.R. [1954] Rai. 476, 482-83.               800               to   believe  that  the  property   had   been               transferred by the commission of dacoity.  The               prosecution,  in  our  opinion  has  to   show               something  more  than the mere  possession  of               stolen  goods for a conviction  under  section               412.  If the prosecution is only able to  show               mere possession, the proper section to use  is               411." In  the  result  the appeal is  allowed  and  the  appellant convicted under s.411,I.P.C., instead of s. 396,  I.P.C.,and sentenced to undergo rigorous imprisonment for three years. R.K.P.S                      Appeal allowed. 801