NARENDRA KUMAR Vs. STATE

JUDGEMENT

(1.) AFTER stating the facts as above, his Lordship discussed the evidence on record and came to the conclusion that as the offences were not satisfactorily proved against the accused they were entitled to acquittal.) Before parting with this case I would like to point out that the conviction of Ram Prasad and Ram Autar under both the Ss. 395 and 412, I.P.C. was not proper. If they had taken part, in the dacoity then it would be natural that some of the looted property would be found in their possession. In my opinion where a person is not guilty under S. 393, I.P.C. for committing a dacoity but where the looted property is found in his possession, and he has knowledge that it is looted property he can be held guilty under S. 412, I.P.C. but where he is convicted under S. 395, I.P.C. for committing a dacoity and it was in the course of that dacoity that the property which was found in his possession came to him, he cannot be held guilty both under Ss. 395 and 412, I.P.C. In this connection reference may be made to 1950 AC 32 (A). It was held in this case that considering the language of S. 411, I.P.C. it was clear that dishonest retention was contra distinguishable with dishonest reception. In the former offence dishonesty supervened after the act of possession, while in the latter dishonesty is contemporaneous with the act of acquisition. The act of dishonest removal within the meaning of S. 379 of the Code constitutes dishonest reception under S. 411 and that being so the thief does not commit the offence of retaining stolen property merely by continuing to be in possession of the property which was stolen by him. Where a thief has already been convicted and sentenced under S. 392, I.P.C. he could not be given a separate punishment under S. 411, I.P.C.

(2.) THE result is that these appeals are allowed and the conviction and sentence of the appellants are set aside. The appellants are in jail. They shall be set at liberty forthwith unless required in connection with any other matter. Accused acquitted.