Full Judgment Text
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PETITIONER:
AYODHYA SINGH
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT16/08/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
SHELAT, J.M.
DUA, I.D.
CITATION:
1972 AIR 2501 1973 SCR (1) 880
1972 SCC (3) 885
ACT:
I.P.C.-S. 457 and 280 read with S. 75.-Appellant found
inpossession of stolen goods within 17 days of the theft-
Appellant if guilty-S. 114 of the Evidence Act-Its scope.
HEADNOTE:
The appellant and another were convicted u/s 457 and 380
read with s. 75 I.P.C. by Add., Munisiff Magistrate. The
prosecution case was that on 9th February 1964, certain gold
and silver ornaments,were stolen from a jewelles house in
Jaipur City. The accused Hira Singh was arrested after some
time. The finger prints left by the culpritallied with the
specimen finger impressions of Hira Singh accused. Further
in pursuance of disclosure statement made by Hira Singh
accused, certain amount of money was recovered from the wife
of the Hira Singh’s brother. A number of stolen articles
and an instrument of house-breaking were also found. On
interrogation of Hira Singh accused, police raided the house
of the appellant and recovered from the place 18 stolen
articles on February 21, 1964. The appellant was arrested 4
days later and ’from his personal search, 26 items of stolen
property were recovered. In pursuance of information sup-
plied by the appellant, the police recovered a number of
stolen gold articles buried in a graveyard. The trial court
accepted the prosecution case and convicted and sentenced
the accused persons. Appeals and revision petitions filed
by the accused were dismissed. On appeal to this Court,
appellant’s counsel raised inter alia, the following
objections:-(1) the propriety of the identification of the
recovered articles was assailed; (2) the ’judgments of the
trial court and the Additional Sessions Judge were not very
satisfactory (3) that there has been a misjoinder of charges
(4) the conviction of the appellant should have been under
s. 411 I.P.C, and not under sections 457 and 380 I.P.C.
Dismissing the appeals,
HELD : (1) The recovered articles were mixed with other
similar articles and all necessary precautions were taken by
the Magistrate The article were correctly identified by the
complainant and his father. Nothing cogent has been shown
as to why the statement of the Magistrate in this respect be
not accepted.
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(2) Although the High Court observed that the judgments of
the trial Court, the Additional Sessions Judge were not
satisfactory, but this circumstance is not very material
because the High Court considered the evidence in details
and came to the conclusion that the case against the accused
had been proved. Therefore, it cannot be said that the
accused persons had been prejudiced in any way.
(3) So far as the question of misjoinder of charges is
concerned, the submission is without any force, because the
circumstances of the case show that the accused jointly
committed the offences with which they were charged and that
those offences were committed in the course of the same
transaction. The two accused could consequently be charged
and tried together Such a course is permitted by s. 239 of
the Code of Criminal Procedure.
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(4) The house-breaking and theft took place on the night
between February 8 and February 9, 1964. The various stolen
articles were recovered from the appellant’$ house on
February 21,, 1963 an there, after from his person on
February 25, 1964. The appellant was in police custody
after February 25 1964 and more stolen articles were
recovered on March 3, 1964 from the graveyard in pursuance
of his disclosure statement. The articles which were
recovered on March 3, 1964 can therefore, be held to be in
possession of the appellant on February 25, 1964. It would
thus follow that within 17 days of the theft, the appellant
was found in possession of the stolen articles. According
to the illustration (a) of s. 114 of the Indian Evidence
Act, a man who is in possession of the 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. In the present case, the appellant has not
been able to account for his possession of the stolen
articles. The explanation furnished by him is not all
worthy of credence. The courts below were right in
convicting the accused. The fact that the appellant was
found soon after the theft in possession of a very large
number of stolen articles as well as the other
circumstances, show that the appellant was himself the thief
and not the receiver of stolen goods. [885A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Cr. A. No. 212 of 1968.
Appeals by special leave from the judgment and order dated
January 19, 1968 of the Rajasthan High Court in Crl.
Revision No. 383 of 1967.
S. P. Singh and Shiv Pujan Singh for the appellant.
Debabroto Mookerjee, P. C. Kapur and K. B. Mehta for the
respondent.
The Judgment of the Court was delivered by
Khanna, J. Ayodhya Singh appellant and Hira Singh were
convicted by Additional Munsiff Magistrate Jaipur for
offences under section 457 and 380 read with section 75
Indian Penal Code. Ayodhya Singh was sentenced to undergo
rigorous imprisonment for a period of two years and to pay a
fine of rupees two thousand for the offence under section
457 read with section 75 Indian Penal Code. In default of
payment of fine, Ayodhya Singh was sentenced to undergo
rigorous imprisonment for a further period of six months.
Similar sentence was awarded to Ayodhya Singh for the
offence under section 380 read with section 75 Indian Penal
Code. The two sentences were ordered to run consecutively.
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Hira Singh was sentenced to undergo rigorous imprisonment
for a period of two years and to pay a fine of rupees one
thousand, or in default, to undergo rigorous imprisonment
for a further period of six months for the offence under
section 457 read with section 75 Indian Penal Code. Similar
sentence was awarded to Hira Singh for the offence under
section 380 read with section 75 Indian Penal Code. The two
sentences of Hira Singh were also ordered to run
consecutively. Appeals filed by Ayodhya Singh and Hira
Singh were dismissed by Additional Sessions Judge Jaipur.
Revision petitions filed by Ayodhya Singh and
7--L173Sup.C.I./73
882
Hira Singh in Rajasthan High Court met with no better fate.
Ayodhya Singh thereafter filed this appeal by special leave
through jail.
The prosecution case is that Kistoor Chand (PW 73) deals in
gold and silver. He was running a shop in Johri bazar
Jaipur, but sometime before the occurrence he had to vacate
the shop and remove the gold and silver ornaments worth over
a lakh of rupees to his house situated in Manni Ramji-ka-
Rasta in Jaipur City. The house has four storeyes and the
ornaments were put in a room on the third storey of the
house. Cash amount was also kept by Kistoor Chand in that
room. When Kistoor Chand got up on the morning of February
9, 1964 he found that the big window of the room in which
ornaments had been kept was lying open. On opening the room
it was found that the boxes containing ornaments were lying
empty. A number of articles were seen scattered in the
room. Report about the occurrence was lodged at police
station Manak Chowk Jaipur City by Mahindra Kumar (PW 74),
son of Kistoor Chand at 7-30 a.m. on February 9, 1964. A
case was then registered by the police under sections 457
and 380 Indian Penal Code.
Sub Inspector Basarat Vallabh went soon after the
registration of the case to Kistoor Chand’s house and found
that culprits had effected their entry into the room by
breaking open the window. The Sub Inspector saw a number of
articles scattered in the room. The containers for keeping
gold and silver ornaments were lying empty. A police
photographer was sent for. The photographer developed the
finger prints left by the culprits on a silver plate lying
in an almirah of the room. The photographs of the finger
impressions were compared with the specimen finger
impressions of Hira Singh accused and it was found that they
tallied with each other.
Hira Singh accused was arrested on February 21, 1964. In
pursuance of disclosure statement of Hira Singh Rs. 1,790
were recovered from Saraswati Bai, wife of the brother of
Hira Singh. A box was also recovered in pursuance of the
disclosure statement of Hira Singh and a number of stolen
articles were found in that box. Hira Singh also got
recovered an instrument of house breaking. As a result of
the interrogation of Hira Singh, the police raided the house
of Ayodhya Singh appellant at Jairi on February 21, 1964 and
recovered from that place 18 stolen articles. Ayodhya Singh
was arrested by the police on February 25, 1964 at Etawah
and from his personal search 26 items of stolen property
were recovered. The recovered property included cash amount
of Rs. 6,485/- including 28 currency notes of the denomi-
nation of Rs. 100/-. In pursuance of information supplied
by
883
Ayodhya Singh, the police recovered on March 3, 1964 a
number of stolen gold articles wrapped in an old baniyan
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which had been buried in a graveyard near milestone No. 5 on
the Agra-Etawah-Kanpur road. Identifications of recovered
ornaments were held by Shri A. C. Bafna Magistrate (PW 72)
on July 17, 1964 and July 20, 1964. The recovered ornaments
were then identified by Kistoor Chand and Mahendra Kumar PWs
as those which belonged to them and which had been stolen.
At the trial the two accused denied the prosecution
allocations against them and stated that they had been
falsely involved in this case. According to them, the
various articles which had been recovered by the police,
belonged to them. Regarding the recovery of some gold bars
from him, the appellant stated that he got the bars prepared
for the purpose of purchasing bonds. The trial court
accepted the prosecution case and convicted and sentenced
the accused as, above. The recovered articles were ordered
to be restored to Mahendra Kumar complainant. Appeals and
revision petitions filed by the accused, as stated earlier,
were dismissed.
We have heard Mr. Singh who has argued the case amicus
curiae on behalf of the appellant and are of the opinion
that there is no merit in the appeal. The fact that some
persons had broken into the house of Kistoor Chand on the
night between February 8 :and February 9, 1964 and had
removed valuable articles consisting of cash, jewellery and
silverware is proved by the testimony of Kistoor Chand and
Mahindra Kumar. The prosecution has also led evidence to
show that a number of stolen articles were recovered in
pursuance of the disclosure statement of Hira Singh accused
after he was, arrested on February 21, 1964. The inter-
rogation of Hira Singh led to the police raid on the house
of Ayodhya Singh appellant wherefrom a number of stolen
articles were recovered. Ayodhya Singh was arrested on
February 25, 1964 and some of the stolen articles were
recovered from his ’person. Ayodhya Singh thereafter made
disclosure statement ,,which led to the recovery of more
stolen articles from a graveyard ,on March 3, 1964. The
appellate court and the High Court accepted the evidence
adduced by the prosecution in this respect. The version of
the accused that the recovered articles ’belonged to them
was rejected. The courts below in this content relied upon
the identification of the recovered articles by Kistoor
Chand and Mahindra Kumar. Nothing has been brought to our
notice by Mr. Singh as may justify interference with the
appraisement of the evidence’ of the trial magistrate, the
Additional Sessions Judge and the High Court. One
significant circumstance which shows the falsity of the
claim made by the appellant that the recovered articles
belonged to him is the fact that some of those articles were
recovered from a graveyard near milestone No. 5 at Agra-
Etawah Kanpur road. The articles were found to’ have been
buried there
884
and were recovered in pursuance of the disclosure statement
of the appellant. If the aforesaid recovered articles
consisting of gold bars belonged to the appellant, it is
difficult to believe that he would have buried them in a
lonely spot in a graveyard. The fact that, the appellant
buried them in a graveyard shows his anxiety to conceal
those articles so that no one may know that he was in
possession of those articles.
Mr. Singh has assailed the propriety of the identification
of the recovered articles. In this respect we find that the
evidence of Shri A. C. Bafna Magistrate (PW 72) shows that
the recovered articles were mixed with other similar
articles and all necessary precautions were taken. Kistoor
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Chand and Mahindra Kumar correctly identified the recovered
articles. Nothing cogent has been shown to us as to why the
statement of Shri Bafna in this respect be not accepted.
Mr. Singh has referred to the observations of the High Court
that the judgments of the trial magistrate and the
Additional Sessions Judge were not very satisfactory. This
circumstance, in our opinion, is not very material because
the High Court considered the evidence which had been
adduced in the case at some length and came to the
conclusion that the case against the accused had been
proved. In view of the fact that the evidence on record has
been discussed in detail by the High Court, it cannot be
said that the appellant has been prejudiced because of the
fact that the judgments of the trial magistrate and the
appellate court were not as elaborate as they should have
been.
A faint attempt was made by Mr. Singh to show that there had
been misjoinder of charges. This submission is plainly
without any force because the circumstances of the case show
that the accused jointly committed the offences with which
they were charged and that those offences were committed in
the course of the same transaction. The two accused could
consequently be. charged and tried together as such a course
is permitted by section 239 of the Code of Criminal
Procedure.
Lastly, it has been argued that the conviction of the
appellant should have been under section 411 Indian Penal
Code and not under sections 457 and 380 Indian Penal Code.
This contention is equally untenable. The house breaking
and theft in the house of Kistoor Chand took place on the
night between February 8 and February 9, 1964. The various
stolen articles were recovered from the appellant’s house on
February 21, 1964 and thereafter from his person on February
25, 1964. The appellant was in police custody after
February 25, 1964 and more stolen articles were recovered on
March 3, 1964 from the graveyard in pursuance of his
disclosure statement. The articles which were recovered on
March 3, 1964 can consequently be held to be in the
possession of the appellant on February 25, 1694. It would
885
thus follow that within 17 days of the theft the appellant
was found in possession of the stolen articles. According
to illustration (a) of section 114 of the Indian Evidence
Act, 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. It would, in our opinion, depend upon the facts
and circumstances of each case whether the court should draw
the presumption that a person found in possession of stolen
goods soon after the theft and who has not been able to
account for his possession is the thief or whether he is the
receiver of the goods knowing them to be stolen. We may
state at this stage that the appellant has not been able to
account for his possession of the stolen articles and the
explanation furnished by him is not all worthy of credence.
Looking to the facts and circumstances of the case, we are
of the view that the courts below were justified in drawing
the presumption that the appellant was guilty of the offence
under section 457 and 380 Indian Penal Code. The fact that
the _culprits entered the room on the third floor by opening
the window and thereafter broke open a large number of boxes
and almirahs and removed huge quantity of gold and
silverware shows that it was not the work of a single
individual. The fact that the appellant was found soon
after the theft in possession of a very large number of
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stolen articles shows that he was himself the thief and not
the receiver of stolen goods.The present is not a case
wherein one or two or a very few of the stolen articles were
found in the possession of the appellant soon after the
theft. On the contrary, the bulk of stolen articles were
recovered from him. The number and the nature of the stolen
articles recovered from the appellant soon after the theft
coupled with the other circumstances of the case, in our
opinion, warrant the presumption that the appellant himself
committed the theft after entering the room on the third
storey of Kistoor Chand’s house through the window.
In the result, the appeal, fails and is dismissed.
S.C. Appeal
dismissed.
886