STATE OF MAHARASHTRA Vs. NAJIBULLAH SHAIKH

JUDGEMENT

(1.) A taxi was stolen during the day time. At night time the taxi was located by the Police. At that time accused No. 1 was sitting behind the wheel and accused Nos. 2 and 3, present respondents Nos. 1 and 2, and one more person were sitting in the taxi. All of them were arrested and charge-sheeted for committing theft of the taxi. All the three accused have been convicted by the trial Magistrate. No appeal was filed by accused No. 1 but accused Nos. 2 and 3 filed an appeal, which appeal was allowed by the learned Addl. Sessions Judge. The present appeal against acquittal is filed by the State against the said order.

(2.) Only two points were urged by Mrs. Rao, the learned Public Prosecutor in support of the appeal. Her first contention was that under section 114(a) of the Evidence Act there was a presumption that accused Nos. 2 and 3 were as much in possession of the taxi as accused No. 1. Her second contention was that the explanation given by the two accused namely that in fact they were not present in the taxi is found to be false and hence, they must be held to be guilty of the offence of theft. To my mind, both the contentions are worth being rejected outright.

(3.) The provisions of section 114 cannot be invoked at all. Clause (a) of section 114 contemplates the presumption that the person in possession of stolen goods may be presumed to be either the thief or a recipient of the stolen property knowing the same to be stolen. But the basic foundation for such a presumption is that such person must be in possession of the property in question. In the instant case, the only evidence adduced by the prosecution is that at the time when the accused were arrested they were in the taxi. I am prepared to assume that they were in the taxi. But it does not mean that they were in possession of the taxi. Accused No. 1 who was behind the wheel and who is alleged to have driven the taxi from the place where it was seized to the Police Station may be said to be in possession of the taxi. If any such inference was to be raised, one may as well hold that the thousands of commuters in a train are in possession of the train! To my mind, such an argument needs just to be made to be rejected. If the accused were not in possession of the taxi, the question of there being any presumption against them of theft does not arise at all.