Criminal Appeal No. 161 of 2000

19th July, 2012

Petitioner Counsel: Mr. V.I. THOLE
Respondent Counsel: Mr. D.V. TELE

JUDGMENT

JUDGMENT :- The appeal is filed against the judgment and order of Sessions Case No. 2/1993 which was pending in the Court of Additional Sessions Judge, Aurangabad. Both the appellants are convicted for offences punishable under sections 411 and 412 of the Indian Penal Code. Both the sides are heard.

2. In short, the facts leading to the institution of the appeal, can be stated as follows :-

The incident of dacoity took place in the farm house of one Ganga Teli and the farm house is situated in village Dhamori. The incident took place on night between 2.11.1991 and 3.11.1991. Shobhabai was sleeping in this house along with her daughter and mother, at the relevant time. Assault was made by the dacoits on all the members of family and the dacoits took away the ornaments from the persons of lady members. The crime at C.R. No. 100/1991 came to be registered in respect of this incident for offences under sections 395 and 457 of I.P.C. in Sillegaon Police Station.

3. P.S.I. Gaikwad made initial investigation in this case. During investigation of C.R. No. 180/1991 which was registered at Vaijapur Police Station for offence under section 397 of I.P.C., stolen property from the present case was recovered. Statements were given by two persons like Jaisingh Kale and Pratap Bhosle, the two accused from the case registered for offence of dacoity and on the basis of those statements, stolen property was recovered from the houses of the present applicants. On 5.12.1991 Shobhabai identified the property which was stolen from her house and then P.S.I. Gaikwad gave report against the present appellants Ashok and Bhausaheb. As offence punishable under section 412 of I.P.C. is triable by Sessions Court, the case was committed to the Court of Sessions.

4. In Trial Court, the State has relied on the evidence of panch witness to prove that the property produced in the Court was recovered from the houses of these two accused. The State relied on the evidence of Shobhabai, who has deposed that the property was stolen from her house. The accused admitted the recovery of all the articles from their respective houses. To prove the defence that the property belongs to them, the defence examined two goldsmiths. In view of the defence taken by the two accused, there is no need to discuss the evidence with regard to the discovery of the stolen property on the basis of statement given by alleged dacoits under section 27 of the Evidence Act.

5. Shobhabai (PW 6) has given evidence that the property like two Mangalsutra of gold, Jodve (rings of toe) of silver, gold beads and silver chain were stolen from her house. She has deposed that after few days of incident of dacoity, police had shown the ornaments to her and she identified the ornaments shown to her. She has specifically identified ornaments like two Mani Mangalsutra (article No. 1), gold beads (article No. 2), silver Jodve (article No. 3) and silver chain (article No. 4). She has deposed that all these articles were owned by her and they were stolen from her house on that night.

6. In the cross examination, Shobhabai has given admission that force was used by thieves on the toe and Jodve were removed. Jodve (article No. 3) in the Court is not in broken condition and so much was argued for defence in the Trial Court and also in this Court due to this discrepancy.

7. Tulshiram (PW 3) has given evidence that on 5.12.1991 Shobhabai identified ornaments in police station in his presence and the panchanama at Exh. 49 was prepared accordingly. The defence taken by the accused shows that accused Bhausaheb has admitted that the property like Mangalsutra, six beads and pair of Jodve were recovered from his house. Accused Ashok has admitted that a small silver chain was recovered from his house. There is also evidence of Kadu Ghule (PW 2) to show that aforesaid articles were recovered from the houses of these two accused persons. Thus, there is evidence of Shobhabai that the ornaments belong to her, they were stolen from her house on that night and she had identified the articles when police had shown the articles after the recovery. She identified the articles in the Court also.

8. On the other hand, two witnesses of defence viz. Ganesh (DW 1) and Arun (DW 2) have given evidence to prove the receipts given by their shop. The receipts are at Exhs. 49 and 54. They have tried to show that some gold and silver articles were sold from their shops to accused, however, they have admitted in their cross examination that there is no marking of their shops on those articles and so they cannot say definitely that the said Mangalsutra (article No. 1), gold beads (article No. 2) were sold by them to accused. Both of them have only tried to say that there is possibility that gold beads (article No. 2) were sold by their shop. Thus, an attempt is made by two goldsmiths to show that the gold beads recovered were sold from their shop, when they could have been sold only by one shop, if they were certain about the identity. Arun (DW 2) has no personal knowledge as his brother was taking care of the shop at the relevant time. No serial number is appearing on Exhs. 49 and 54 and duplicate receipt books were also not brought to the Court in support of these documents. The accused did not claim those articles immediately after their seizure and they took this defence only during the trial to create some probability in their favour. The Trial Court has disbelieved these two witnesses. In view of the aforesaid circumstances, the said finding of the Trial Court cannot be interfered in the appeal.

9. The evidence about the identity of articles is relevant under section 9 of the Evidence Act. Indian lady generally does not make mistake in identifying her ornaments. She has the tendency to note the description of the ornament when the ornament belongs to her and it is in her use. She can identify her ornament from may similar ornaments. In this case, the ornaments have specific names and they were identified by this lady in the police station, when they were recovered. The ornaments came to be recovered within one month from the incident of dacoity. There is discrepancy in respect of description of Jodve as the admission has created probability that one Jodva was broken during dacoity. Due to such admission, the evidence of Shobhabai cannot be discarded. Her evidence was recorded after nine years of the incident. The Trial Court has believed this lady and this Court does not find any reason to interfere in the said finding of the Trial Court.

10. For the accused, it was submitted that the case filed for dacoity was not decided and so the Trial Court ought not to have decided the case filed against the receiver of the stolen property. This Court finds no force in this submission. The offences under sections 411 and 412 of I.P.C. are independent offences and they can be tried separately without reference to the case filed for offence punishable under section 395 of I.P.C. The wordings of two sections show that the prosecution is required to prove that the stolen property, as defined under section 410 of I.P.C., was stolen from somebody. It is not necessary for State to prove that the theft, robbery or dacoity was committed by any particular accused. It can be said that the prosecution was not conducted competently as the relevant record like copy of F.I.R., copy of charge sheet, etc. of the dacoity case was not produced. The accused cannot take benefit of these circumstances in the present case as they have come with specific defence that the property recovered from them belongs to them.

11. In view of section 114, illustration (a) of the Evidence Act, it was necessary for accused to give explanation, as the stolen property is recovered from their houses. Though the aforesaid attempt was made by them, they could not create reasonable probability that ornaments belonged to them. Further, there is one more circumstance like two scales which are generally used for weighing ornaments, were recovered from the houses of accused. This Court holds that the prosecution has proved that the property stolen from the house of Shobhabai, came to be recovered from the houses of appellants.

12. The question arises as to what offence is committed by the accused. If section 411 and 412 of I.P.C. are compared, it can be said that for proving of the offence punishable under section 412 of I.P.C., following points need to be proved. The points mentioned in the bracket need to be proved for the offence punishable under section 411 of I.P.C.

(i) that, the property in question is stolen property;

(ii) that, its possession was transferred by commission of dacoity (by theft, extortion or robbery for offence under section 411 of I.P.C.);

(iii) that, the accused received or retained such stolen property;

(iv) that, he did so dishonestly; and

(v) that, he then knew (a) that, the property he received had been transferred by commission of dacoity; or (b) that, the transferor was dacoit or belongs to a gang of dacoits and he knew or had reason to believe that the property he received was stolen property (for offence under section 411, accused knew or had reason to believe that it was stolen property).

13. The provisions of section 411 and 412 of I.P.C. show that two offences are of the same kind, but the offence punishable under section 411 is a lessor offence of the offence punishable under section 412 of I.P.C. As in both cases, stolen property is involved, for proving both the offences, there is presumption available under section 114 - Illustration (a) of the Evidence Act, which is as under :-

"The Court may presume--(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"

14. The aforesaid three provisions show that the possession of a stolen property itself is not sufficient for proving the theft or dacoity but the possession can corroborate other evidence of theft or dacoity. If there is no such other evidence, in view of section 72 of I.P.C., conviction is possible for alternate offence mentioned in illustration (a) of section 114 of Evidence Act and it can be presumed that the person, who was found in possession was receiver of stolen property. In that case, he can either punished under section 411 or 412 of I.P.C. Section 72 of I.P.C. reads as under:-

"72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which.--In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all."

15. When the Court comes to conclusion that the accused is receiver of the stolen property or when there are allegations against the accused that he was receiver of the stolen property and the allegations may constitute the offence punishable under section 411 or 412 of I.P.C., the Court must start with presumption that the accused has committed lesser offence, one punishable under section 411 of I.P.C. in view of section 72 of I.P.C. So, only when there is evidence, circumstantial or oral, to show that accused knew or had reason to believe that a dacoity had been committed and property he was receiving was from that dacoity or that he was receiving the property from the person, who belong to a gang of dacoits and the property was stolen, the accused can be convicted for offence punishable under section 412 of I.P.C. It is already observed that the prosecution was not conducted properly and the relevant record of the offence of dacoity was not proved and the some copies of documents which were produced were not duly proved. Further, no substantive evidence was brought on the record to show that 5 or more than 5 persons were involved in the incident when the property was stolen from the house of Shobhabai. So this Court holds that the accused persons can be convicted for offence punishable under section 411 of I.P.C. and not for the offence punishable under section 412 of I.P.C. The Trial Court has convicted both the accused for offences for both the offences. The appellants were behind bars for more than 7 days. No criminal antecedents were brought on record against the accused, though the evidence shows that scales were recovered from the possession of the accused. This Court is deciding the appeal in the year 2012 when the case came to be filed against the accused in the year 1993. In view of these circumstances and the provision of section 411 of I.P.C., this Court holds that sentencing the appellants to imprisonment for the period undergone would be just and proper. Hence, the following order.

ORDER

(i) The appeal is partly allowed and the judgment and order of the Trial Court is modified.

(ii) Both the accused/appellants stand convicted and sentenced for offence punishable under section 411 of I.P.C. and they are sentenced to suffer imprisonment for period undergone.

(iii) The other part of the order made by the Trial Court is confirmed.

Appeal partly allowed.