HAROON MOHAMED MEMON Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by the original accused from his conviction under Sections 411 and 414 of the Indian Penal Code by Mr. B.P. Saptarshi, Additional Chief Presidency Magistrate, Bombay, and the sentence of three months' rigorous imprisonment and a fine of Rs. 500 imposed upon the accused by him in respect of the same. The short facts necessary for the purpose of disposing of this appeal are, that the complainant Sunderlal Chotalal carries on business in the name of 'Laxmi Metal Industries,' in Bombay, and does the work of cutting stainless steel sheets into pieces of circular shapes of different sizes, that on August 14, 1972 lie had certain circular sheets of a customer stored in gunny bags in his workshop, that he locked his workshop that evening and opened the same on the morning of August 16, 1972, August 15, 1972 being a public holiday; and that lie thereupon found that a considerable quantity of the circular stainless steel sheets stored in his workshop had disappeared. He made a complaint to the police, and as a result of the investigation that was conducted, the accused came to be arrested on August 21, 1972. The accused then made a statement in the presence of panchas to the effect that he had sold steel articles in the quantity of about 300 kg. and certain other goods to a Marwari in 6th Lane, Kamatipura, and expressed his willingness to take the police to the shop of that Marwari. As a result of that statement, the police party and the panchas recovered five gunny bags containing stolen articles from the shop of a Marwari named Jayantraj Mulchand, to whose shop the accused led them, and the same were identified by Sunderlal Chotalal as the goods which had disappeared from his workshop. On that, the accused in the present case was charged under Section 411 of the Indian Penal Code for having received stolen property, viz. the said stainless steel articles of the value of Rs. 20,000, on or about August 15, 1972, knowing or having reason to believe them to be stolen property. Curiously enough, though the charge was only under Section 411, Indian Penal Code, as aforesaid, the learned Additional Chief Presidency Magistrate convicted the accused both of the offence under Section 411 as well as under Section 414 of the Indian Penal Code, and without indicating in respect of which offence he was passing sentence, he passed one sentence upon the accused, viz. that of three months' rigorous imprisonment and a fine of Rs. 500. In fact he stated clearly at the end of his judgment that he was not passing a separate sentence on each count. This, in my opinion, is again a wholly improper course on the part of the learned Additional Chief Presidency Magistrate. First and foremost, the charge being under Section 411 of the Indian Penal Code, and the offence under Section 414, Indian Penal Code in not being a lesser offence in relation to the offence under Section 411, Indian Penal Code, it was not open to the learned Additional Chief Presidency Magistrate to convict the accused of the offence under Section 414, Indian Penal Code, presumably by invoking the provisions of Section 238(1) of the Code of Criminal Procedure, without there being a separate charge in respect of the same. Secondly, if, rightly or wrongly, he did convict the accused person of both the offences under Section 411 as well as Section 414 of the Indian Penal Code, he was bound to pass a sentence upon him in respect of each of those offences (Jayaram Vithoba v. The State of Bombay : 1956CriLJ318 ), since the provisions of Section 26 of the General Clauses Act, 1897, apply only where an act is an offence under two different enactments, in which case a person cannot be punished twice for the same offence. I must, therefore, set aside the conviction of the accused in the present case under Section 414 of the Indian Penal Code.

(2.) AS far as the conviction of the accused under Section 411 of the Indian Penal Code is concerned, the first proposition of Mr. Omer, who appeared on his behalf, was that the only evidence in the case on which the conviction of the accused under Section 411 of the Indian Penal Code can be founded being evidence in the nature of the statement made by him and the discovery of the goods from the shop of the Marwari, which evidence has been admitted under Section 27 of the Indian Evidence Act, and that evidence being of a subsidiary nature, it was not open to the trial Court to found the conviction on the basis of that subsidiary evidence alone. In support of that proposition, he relied on what 1 sitting in a Division Bench, have myself observed in the case of D. B, Deshmukh v. State : AIR1970Bom438 viz. that discovery evidence, by itself, is subsidiary and cannot sustain a conviction. That statement was apparently made by me on the basis of an earlier judgment of another Division Bench of this Court in the case of A.Y. Madar v. State : AIR1956Bom471 in which it was laid down by Gajendragadkar J., delivering the judgment of the Division Bench, that if the direct evidence given by eye -witnesses does not appear to be wholly satisfactory, subsidiary facts on which the prosecution relies cannot carry the prosecution case any further, and the nature of the subsidiary fact he had in mind was indicated by him viz. the discovery of the bloodstained axe in that case. Whilst I agree with the proposition propounded in the said two cases, and am indeed bound by the same, that proposition, as formulated, postulates that the evidence in question must be in the nature of subsidiary evidence. What is subsidiary evidence, would however depend on the nature of the offence in each case. Discovery evidence under Section 27 of the Indian Evidence Act may be subsidiary evidence in the ease of offences involving murder or violence as in Deshmukh's case or in Madar's case, but, in my opinion, it is quite clear that in the case of an offence of knowingly receiving stolen property under Section 411, Indian Penal Code, the statement made by the accused leading to the discovery of the stolen property can, by no means, be said to be in the nature of subsidiary evidence. In the case of a charge for such an offence, discovery evidence would clearly be the main evidence in the case, or, at any rate, one of the very important pieces of evidence. In the present case, therefore, I hold that the evidence relating to the statement made by the accused in the presence of panchas, which is recorded in the panchanama exh. C and is deposed to by the panch witness Prabhakar Mane, and the discovery of the steel sheets to which it led, is not in the nature of subsidiary evidence, and under the circumstances, it is perfectly proper for the Court to found the conviction on the basis of that evidence alone, if the requirements of Section 411 of the Indian Penal Code are fulfilled. I must, therefore, reject this contention of Mr. Omer.

(3.) I must now turn to the evidence in the present case in the light of this legal position. First and foremost, it may be stated that the statement made by the accused which has been admitted under Section 27 of the Evidence Act does not in terms state that he was at any time in actual or constructive possession of the stolen steel sheets in question. On behalf of the State, it was sought to be contended that since the accused had, in his statement under Section 27 of the Evidence Act, stated that he had sold the said goods to the Marwari from whose shop they were found, and since delivery is implicit in the concept of sale, it must be held that the accused could not have delivered those goods to the Marwari without having had, at some stage, actual or constructive possession thereof. The panch witness Prabhakar Mane has in his evidence deposed that the accused had stated that he had 'given' the three hundred kilograms of circular steel sheets to the Marwari to whom he had 'sold' the same, but I would prefer to take the statement as recorded in the panchanama which Mane has stated to be correct rather than the statement as deposed to by Mane from memory. The question, therefore, is whether possession, actual or constructive, on the part of the accused can be inferred merely from his statement as recorded in the panchanama that it was he who had sold the goods in question to the Marwari. The mere fact of the accused having sold the goods to the Marwari in the present case cannot, in my opinion, be said to prove beyond reasonable doubt that the accused must have received the goods at some point of time before they were handed over to the Marwari. I must give the benefit of that doubt to the accused and hold that the offence under Section 411, Indian Penal Code, has not been brought'home against the accused. The appeal is, therefore, allowed and the conviction as well as the sentence passed upon the accused by the trial Magistrate set aside. Bail bonds cancelled. The fine, if paid, should be refunded to the accused.