Full Judgment Text
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PETITIONER:
KARNAL SINGH UTTAM SINGH
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT19/11/1975
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
GOSWAMI, P.K.
CITATION:
1976 AIR 1097 1976 SCR (3) 747
1976 SCC (1) 882
ACT:
Indian Evidence Act Section 114-Presumption from recent
possession of stolen property - Nature of.
Criminal Procedure Code, 1898 section 342-When
explanation given by the accused under s. 342 is quite
reasonable and credible and supported by other evidence in
defence, Conviction and sentence under s. 411 of the lndian
Penal Code is not sustainable.
HEADNOTE:
On 4-3-1968, the date of the accident. Karnal Singh,
the accused was driving the truck No. MRS 7372. purchased
out of the loan advanced by the ex-serviceman Co-operative
Society to one Sutar who entrusted the vehicle to Balwant
Singh, the brother of the appellant, a co-accused, under a
contract for hire against a monthly payment of Rs. 2000-
2200, after incurring all expenses over the truck. The
payment was regular up to December, 1967, and, thereafter,
Balwant Singh avoided Sutar. Though Balwant Singh met Sutar
on 9-3 1968 and 12-3-1968 ie. after the date of accident and
promised to meet him later, The actually absconded resulting
in the lodging of a First Information Report by Sutar on 20-
4-1968 at 12.30 p.m. against Balwant Singh Uttam Singh for
taking appropriate action under s. 408, I.P.C.
Since Balwant Singh was absconding and the vehicle was
found in the possession of Karnal Singh, the police
apprehended him and filed the charge sheet. The Presidency
Magistrate, 6th Court, Mazagaon, Bombay, charged the
appellant under s. 408 read with s. 114 of the Indian Penal
Code, but, actually convicted him and sentenced him to six
months R.I. and a fine of Rs. 500/- under s. 411 Indian
Penal Code without appreciating the effect of either the
value of Exhibit Dl dated 12-3-1968 written by Sutar
indicating that he was agreeable to pay the total costs of
the repair of the damaged vehicle, with the admission of its
execution by Sutar in cross-examination and failure to
explain these or of the explanation given by the accused in
his 342 statement to how he came into possession of the
lorry for repairing it.
The High Court mainfained the conviction and the
sentence. Allowing the appeal by special leave, the Court, F
^
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HELD. (1) the presumption from recent possession of
stolen property is an optional Prescription of fact under s.
114 of the Indian Evidence Act. It is open to the Court to
convict the appellant by using the presumption when the
circumstances indicate that no other reasonable hypothesis
except the guilty knowledge of the appellant is open to the
prosecution. [751-D]
(2) In the instant case, there was no mention of the
appellant’s name in the F.I.R. there was no change under s
411, I.P.C. against him and he was not asked to explain it
possession of the truck, but still he did explain it. The
appellant’s answer to the omnibus question under s. 342,
Criminal Procedure Code, without giving him an intimation of
the offence of which he was likely to be convicted, on the
face of it, was quite reasonable and credible. The
prosecution had been unable to repel the effect of this
fairly acceptable explanation. The explanation which the
appellant had given was good enough to raise serious doubts
about the susceptibility of a charge under s. 411, Indian
Penal Code. The principle of benefit of doubt on questions
of fact applies whether the verdict is of a Jury or the
finding is to be given by a Judge or a Magistrate.[751,AB.E
H]
Otto George Gfeller v. The king, AIR 1943 PC 211 @ 214
JUDGMENT:
748
&
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal N4.
133 of 1971.
Appeal by special leave from the judgment and order
dated the 15-2-1971 of the Borrrbay High Court in Criminal
Appeal No. 1354 (lf 1 969.
S. K. Gambhir and 5. M. Sikka for the appellant.
M. C. Bhandare and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by
BEG, J. The appellant before us by special leave was
charged as follows by the Presidency Magistrate of Bombay:
"I.B. P. Saptarshi, Presidency Magistrate 6th
Court,
Mazaagaon, Bombay, do hereby charge you:
Karnal Singh S/o Uttam Singh as follows:
"That you on or about the 20th day of February,
1968 at Bombay along with one Balwant Singh s/o Uttam
Singh who has absconded, at 171, Kazi Sayyed Street,
being entrusted with certain property to wit M/Lorry
No. 7372 valued at Rs. 52,000/- belonging to the
complainant Shankar Dhondiba Sutar as driver committed
criminal breach of trust in respect of the said
property and aided and abetted to the absconding
accused in commission of the said offence and thereby
committed an offence punishable under Sec. 408 r.w. 114
of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by me on the
said charge".
The prosecution evidence in the case was: one Shankar
Dhondiba Sutar a member of the Ex-Servicemen Transport
Cooperative Society Ltd., Bombay, had purchased the Truck
No. MRS 7372 after taking a loan of Rs. 50,000/- from the
Society out of which he had paid up Rs. 43,000/-. He had
entrusted Balwant Singh Uttam Singh, the brother of the
appellant, with the truck. He had a contract with Balwant
Singh Uttam Singh under which he used to get a net income of
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Rs. 2000/- to Rs. 2200/- p.m. from Balwantsingh Uttamsingh
who was running the truck and seemed to be incurring all
necessary expenses of it. This amount was paid regularly
upto December, 1967. Thereafter, Balwantsingh Uttamsingh,
the driver, avoided meeting the purchaser of the truck and
was said to be absconding. On 4-3-1968, the truck met with
an accident and Balwantsingh Uttamsingh is said to have sent
information of it to S. D. Sutar. On 9-3-1968, according to
Sutar, Balwantsingh him self went to Sutar. And, when the
owner asked him to take him to the truck, it is alleged that
he did not comply with this request.
749
As Shankar Dhondiba Sutar had not paid up the whole amount
due for the truck which he had borrowed from the Society,
the owner of the truck, as entered in the Insurance papers,
was the Society itself. S. D. Sutar stated that he found the
truck at Thana Katha where he also found the appellant
before us, Karnalsingh Uttamsingh, who had been, apparently,
driving the truck. The First Information Report was lodged
on 20-4-1968 at 12.30 p.m. by S. D. Sutar. It is against
Balwantsingh Uttamsingh and makes no allegations against the
present appellant. It is said that Balwant Singh Uttarnsingh
had met S. D. Sutar again on 12-3-1968 and told him that he
would turn up again. Vazir Singh Gaya Singh, PW 2, the
Secretary of the Bombay Ex-Servicemen Transport Co. deposed
that S. D. Sutar was a shareholder in the Company and proved
the terms of his contract with Balwantsingh. He also made no
complaint whatsoever against the present appellant. All that
he said was that the truck was seen near Kashali Bridge and
the present accused was its driver. Sub Inspector Ramesh
Damodar, PW 3, stated that, on 13-5-1968, Vazir Singh, PW 2,
and a police constable brought the truck to Pydhonie Police
Station and that it was being driven by the present
appellant at that time. This is all the evidence against the
appellant.
The only question that the appellant was asked by the
learned Magistrate under Section 342 Criminal Procedure Code
and the appellant’s reply are:
"Q. What do you wish to say with reference to the
evidence given and recorded against you?
A. I do not know whether M/Lorry No. MRS 7372 was
handed over to the complainant on sale-purchase
agreement and that the complainant had paid Rs. 43,000/
towards the instalment. I do not know whether the price
was fixed at Rs. 50,000/-. Balwant Singh is my brother
but I do not know if the complainant had given lorry in
his possession in his capacity as a driver. I do not
know whether Balwant Singh left with M/Lorry in Dec.
1967. I do not know anything about Balwant Singh not
meeting the complainant thereafter. Mangal Singh told
me that this lorry had met with an accident and that I
should invest the amount over repair, and after the
amount is recovered from the plying of the lorry, the
lorry would be returned to him. It is true that Vazir
Singh and one P.C. had told me to take the lorry at the
Pydhonie Police Stn. I was the driver on the said
vehicle at that time. I do not know where is my brother
at present. He meets me at times. I have not spoken to
him about the case. I want to lead defence witness".
He led some evidence in defence. Mangaldas Purshottam,
D.W. 1, stated that,one Kartar Singh the driver of the truck
had sent him a Trunk Call from Jalan that the truck in
question had met with an accident on 4-3-1968 and that he
gave this message to S. D. Sutar. As the accident was
serious and the damage was considerable
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750
S. D. Sutar was unable to meet with the money required to
repair it. According to Vazir Singh, PW 2, the claim against
Insurance Co. was of Rs.,11000/-. According to Mangaldas, DW
1, the complainant had agreed that the appellant should
repair the truck and deduct its expenses out of the income
he could make from plying the truck on hire. He proved
Exhibit 1 dated 12-3-1968 containing a writing, signed by S.
D. Sutar. It has been translated as follows:
"Ext.’1’
Dated 12-3-1968.
National India Roadways,
"I, shankar Dhondiba give you in writing today
that my Lorry No. MRS-7372 which had met with an
accident, I am bound to pay total costs whatever comes
to of its reparation".
Sd./-
Shankar Dhondiba Sutar".
This was put to S. D. Sutar in cross-examination. He
admitted his signature under the writing and gave no
explanation about it. It is significant that it was executed
on the very day on which, according to an admission of S. D.
Sutar, Balwant Singh also saw S. D. Sutar. Perhaps the
defence has also yet come out with the whole truth. It is,
however, quite inconceivable that S. D. Sutar would be
completely unconcerned as to what had happen to the truck if
he had not entrusted it to somebody other than Balwantsingh
Uttamsingh for repairs to it. The matter seems to have been
report ed to the police only as a result of some quarrel or
differences between parties. Moreover, nobody would repair
the truck without being paid for it. The explanation given
by the appellant was, on the face of it, quite reasonable
and credible. It was not merely supported by Mangaldas
Purshottarn, D.W.l, whose cross-examination did not elicit
anything to show that he was unreliable but also,
indirectly, by Ashok Jugannath, DW2, the Superintendent of
the Commonwealth Insurance Co. ‘who proved the bills
supplied to the Company on the strength of which the
Insurance Co. had paid Rs. 6078.35.
It was, therefore, clear that somebody had got the
truck repaired and realised the amounts to be paid for
repairs from the Insurance Company. The beneficiary of the
contract of insurance was the Bombay Ex-Servicemen Transport
Co. of which S. D. Sutar was a member. Apparently, the
amount had been realised by somebody on behalf of this
Company. The bills could have been given by the
appellant. In the absence of any proof as to who else could
have or had repaired the truck the version of the appellant
could not be said to be quite unbelievable.
751
A remarkable part of the case is that the Trying
Magistrate had A convicted the appellant under Section 411
Indian Penal Code and sentenced him to six months rigorous
imprisonment and to pay a fine of Rs., 500/- when he was not
even charged with this offence., The High Court had
maintained this conviction and the sentence and had not even
mentioned the defects in the trial. There was neither a
charge under Section 411 I.P.C. nor was the appellant asked
to explain his Possession of the truck although he did
account for it. The appellant’s explanation appeared quite
plausible. It may have been difficult to hold that the
appellant could not have been prejudiced by the omission to
frame a charge or by the manner in which he was put one
omnibus question under Section 342 Criminal Procedure Code
without giving him an intimation of the offence of which he
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was likely to be convicted, if these questions had been
seriously raised. However, as these questions do not appear
to have been argued in the High Court and were‘not even
raised in the grounds of appeal in this Court, we will not
consider them further. We think that this appeal is bound to
succeed on the view of the facts we have taken above. The
presumption from recent possession of stolen property is an
optional presumption of fact under Section 114 Indian
Evidence Act. It is open to the Court to convict an
appellant by using the presumption where the circumstances
indicate that no other reasonable hypothesis except the
guilty knowledge of the appellant is open to the
prosecution. In the case before us, the appellant had given
a fairly acceptable explanations. The prosecution had been
unable to repel the effect of it. The owner of the truck, S.
D. Sutar, had made admissions which indicated that the
prosecution case of an unlawful possession on the part of
the appellant was not likely. It is more likely that the
appellant had been entrusted with the truck in order that he
might repair it and realise the costs. However, we express
no opinion on this aspect of the matter as the sentence of
such a contract may involve a civil liability. All we need
say is that the explanation which the appellant had given
was good enough to raise serious doubts about the
sustainability of a charge under Section 411 Indian Penal
Code on the strength of what was laid down in Otto George
Gfeller v. The King(1), the appellant was entitled to an
acquittal. It was held there (at p. 215):
"The appellant did not have to prove his story
but if his story broke down the jury might convict. In
other words, the jury might think that the explanation
given was one which could not reasonably be true,
attributing a reticence or an incuriosity or a
guilelessness to the appellant beyond anything that
could fairly be supposed".
In that case, the question had to go before the Jury and the
charge was found to be defective. The principle of benefit
of doubt, on questions of fact, applies whether the verdict
is of a Jury or the finding is to be given by a Judge or a
Magistrate. The principle laid down in Gfeller’s case
(supra) (at p. 214) was:
752
".. that 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 right reasonably be true, and which is
consistent with innocence although they were not
convinced of its truth the 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"
Consequently, we allow this appeal and set aside the
conviction and sentence of the appellant. His bail bonds are
discharged.
S.R. Appeal allowed.
753