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PETITIONER: SHIVAPPA & ORS.

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT: 19/02/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAY, A.N. DUA, I.D.

CITATION:  1971 AIR  196            1970 SCR  (3) 720  1970 SCC  (1) 487

ACT:      Indian Evidence Act, 1872, s. 114--Recovery of property from  possession  of  accused soon  after  commission  of  a dacoity--Presumption  to be drawn--Whether a presumption  of participation in dacoity or of lesser offence.

HEADNOTE:      Two carts loaded with cloth returning alongwith  others from  a  weekly  village market were looted by  20  or  more persons.   The  houses  of  20  persons  including  the   14 appellants were searched and the looted cloth was  recovered from  their  Possession.  They were tried  and  held  guilty Linder  s.  395 of the Indian Penal Code.   The  High  Court dismissed their appeals.  In appeal by special leave to this Court their only contention was that in the absence of other evidence  connecting them with the dacoity, the  presumption to  be drawn from the possession of stolen clothes ought  to have been one under s. 411 of he Indian Penal Code or at the most  under  s.  412 of the Indian Penal  Code  and  not  of complicity in the crime of dacoity.  It was urged that since s.  114 of the Evidence Act did not lay down definitely  the presumption  to be drawn in a given set of circumstances  it was  necessary always to start with the  lesser  presumption and  draw  the higher presumption only when there  was  some other evidence to. show the complicity of the persons in the crime itself.      HELD : If there is other evidence to connect an accused with  the  crime itself, however small, the finding  of  the stolen  property  with  him is a  piece  of  evidence  which connects  him  further  with the crime.  There  is  then  no question of presumption.  The evidence strengthens the other evidence  already against him.  It is only when the  accused cannot  be  conis stronger than if there is a large  gap  of time.  Disposal of the fruits of crime that the  presumption may be drawn.  In what circumstances the one presumption  or the other may be drawn will differ from case to case [722 D]      When  the  discovery  of the fruits of  crime  is  made immediately   after   the  commission  of  the   crime   the presumption of complicity in the crime nected with the crime except  by  reason  of possession of  the  fruits  of  crime

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requires  the finding of a person ready to receive them  and the ’shortness of time, the nature of the property which  is disposed  of,  that  is to say, its  quality  and  character determine  whether  the  person who had  the  goods  in  his possession  received  them from another or was  himself  the thief or dacoit, [722 F]      In the present case the offence was committed at  night by  as  many  as ’IO persons or  more.   Shortly  after  the offence  the  houses of 20 persons were searched  and  large quantities  of the stolen goods were found in their  houses. It  was  impossible  that  these  20  persons  were   merely ’receivers of stolen property from some other 20 persons who were the decoits.  It was legitimate therefore to raise  the presumption  in  this case that the persons  with  whom  the goods were found were the dacoits themselves. [723 A-B]

JUDGMENT:       CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No. 87 of 1967. 721     Appeal  by  special leave from the  judgment  and  order dated  January   24,  1967 of the High Court  of  Mysore  in Criminal Appeal .No. 29 of 1965.     A. S. R. Chari and R. V. Pillai, for the appellants.     Shyamala Pappu and S. P. Nayar, for the respondent.     The Judgment of the Court was delivered by     Hidayatullah, C.J. , These are 14 appellants who  appeal against  their conviction under s. 395 of the  Indian  Penal Code  and  sentences of 5 years’ rigorous  imprisonment  and fine  of Rs. 1,000/- passed on them.  Originally 20  persons were tried and convicted for the same offence and received a like  sentence. 14 alone have appealed to this  Court.   The incident  which  took place on July 28, 1962  was  theft  by dacoity  of certain cotton pieces from two carts within  the limits of Lingsugar Police Station at about 11-30 p.m.     The facts are that two traders in cloth sent their wares in carts for sale.  The cartmen halted after the market  was over  on  the way for food.  Thereafter six carts  left  for Mudgal at about 10 p.m. When the carts reached a Nala called Heri  Halla about three miles from Lingsugur at about  11-30 p.m.,  20 persons are said to have approached the carts  and pelted stones.  It was a dark night and the assailants  were not  identified.  It appears that four out of the six  carts escaped, but two carts were looted.  The police investigated the case and arrested the 20 persons who were accused in the case as being the culprits involved in this incident.     It  is not necessary to go into rest of the case or  the evidence  on  which  the case of  dacoity  was  established, because  dacoity as such is not challenged before  us.   The accused  were  convicted on the sole evidence of  having  in their possession pieces of cloth which were later identified to belong to the -traders.  Searches took place between July 30, 1962 and August 17, 1962.  In these searches cloth which was undoubtedly stolen at the time of the dacoity was  found in  their houses.  The High Court, and the Court below  drew from this the conclusion that the appellants were themselves the dacoits, and convicted them accordingly under s. 395  of the  Indian  Penal  Code and sentenced  them  to’  5  years’ rigorous imprisonment and fine of Rs. 100/-.      In this appeal, the only contention raised by Mr. A. S. R.  Chari  is that the presumption that  they  were  dacoits ought not to have been drawn since the circumstances do  not admit  the  drawing  of  such a  presumption  in  the  case,

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According to Mr. Chari, the presumption to be drawn ought to have been one under S. 41 1 722 of  Indian  Penal Code or at the most tinder s. 412  of  the Indian  Penal  Code but not of complicity in  the  crime  of dacoity.  He contends that the circumstances under which the one  presumption or the other may be drawn under s.  114  of the  Indian  Evidence Act have not been stated  by  law  and therefore  it is necessary always to start with  the  lesser presumption and draw the higher presumption only when  there is some other evidence to show the complicity of the persons in  the  crime itself.  According to him there is  no  other evidence in the case which points, to the complicity of  the 14 appellants in the crime of dacoity and therefore as  they cannot  be  suspected  to be dacoits  themselves,  the  only presumption  to  be  drawn is one  of  receivers  of  stolen property  or as receivers of property which was stolen in  a dacoity.     In  our opinion, the law advocated by Mr. Chari  is  not correct.  If there is other evidence, to connect an  accused with  the  crime itself, however small, the finding  of  the stolen  property  with  him is a  piece  of  evidence  which connects  him  further  with the crime.  There  is  then  no question of presumption.  The evidence strengthens the other evidence  already against him.  It is only when the  accused cannot  be  connected  with the crime except  by  reason  of possession  of the fruits of crime that the presumption  may be drawn.  In what circumstances the one presumption or  the other   may  be  drawn,  it  is  not  necessary   to   state categorically  in  this  case.   It  all  depends  upon  the circumstances  under  which the discovery of the  fruits  of crime  are  made  with a particular accused.   It  has  been stated on more than one occasion that if the gap of time is, too  large, the presumption that the accused  was  concerned with  the  crime itself gets weakened.  The  presumption  is stronger  when the discovery of the fruits of crime is  made immediately  after the crime is. committed.  The  reason  is obvious.   Disposal  of  the fruits of  crime  requires  the finding of a person ready to receive them and the  shortness of  time, the nature of the property which is  disposed  of, that  is  to say, its quantity and its  character  determine whether  the  person  who had the goods  in  his  possession received  them from another or was himself the thief or  the dacoit.  In some cases there may be other elements which may point  to  the way as to how the presumption may  be  drawn. They  need not be stated here for they differ from  case  to case.(In  the  present case, the goods stolen were  a  large quantity  of  cloth  taken for sale to  the  market.   These goods were not sold and were being taken back to the dealers by the cartmen.) A large number of persons said to be 20  in number  pelted  stones  at  the  cartmen  and  looted   the, property.  Immediately afterwards a number of searches  were made and the goods were found with various persons who  were prosecuted  as offenders and they have been presumed  to  be involved in the dacoity itself.  It may be 723 noticed that from each person a large number of goods of the same  type  such as 20 choli pieces or ten pieces  of  cloth were  found.  (It is, impossible to think  that  within  the short  time  available, these goods could have  been  easily disposed  of  to receivers of stolen property  or  could  be placed  in  the  custody of friends till such  time  as  the original  offenders could take them away.) The time  gap  in some cases is as short as two days and in some others it  is not more than five days.  In two cases only the time gap  is

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about 19 days.  Even then we think that the time gap is  too short  for  original  offenders  to  have  disposed  of  the property  to these appellants Or to have left the  goods  in their custody till such time as the original offenders could have taken them away.      We are, therefore, satisfied that the proper  inference was  drawn in this case.  It must not be forgotton that  the offence  was committed at night by as many as 20 persons  or more.   The  houses of 20 persons were  searched  and  large quantities  of the stolen goods were found in their  houses. It is impossible to think that these 20 persons were  merely receivers of stolen property from some other 20 persons  who were  the dacoits.  It is legitimate therefore to raise  the presumption  in  this case that the persons  with  whom  the goods   were  found  were  the  dacoits  themselves.    This presumption  has  been drawn and in our opinion  rightly  in this  case The conviction was therefore correct in ’all  the circumstances of the case.       As  regards  the sentence, the offence  no  doubt  was serious.   But  no injury beyond one appears  to  have  been caused.  Therefore we think that a sentence of three  years’ rigorous imprisonment will meet the ends of justice in  this case.   The  sentence is reduced to  three  years’  rigorous imprisonment.  The sentence of fine will stand.  The  appeal is allowed to this extent. G.C.                   Appeal partly allowed. 724