SHAIK SERVER Vs. STATE

JUDGEMENT

(1.) The petitioner has been convicted by the Stationary Sub Magistrate, Gooty of an offence punishable under Section 411 I.P.C. and sentenced to undergo rigorous imprisonment for three months. The conviction and sentence were confirmed by the District Magistrate, Gooty, on appeal and therefore the petitioner has come up in revision. The facts of the case are briefly these: On 19-12-1954, P. W. 2 a Watch and Ward sepoy working at Guntakal Railway Station, found that the seal of a goodf railway wagon had been tampered with and reported the fact to the Assistant Station Master. On 21-12-1954, P. W. 3, the Chief Parcel Clerk checked the contents of the wagon and discovered that 3 out of the 66 parcels in the wagon were missing. Thereupon P. W. 7 the Railway Police Sub Inspector, took up investigation and on 11-1-1955 searched the house of the petitioner who is a sundry shop keeper at Guntakal, in the presence of mediators, one of whom was P. W. 5. He seized two gunny bags which were found in the petitioner's house. One of these gunny bags contained 4 pieces of cotswool cloth M.Os. 1 to 4, and the other gunny bag contained six pieces of bed-ticking cloth M. O. 5 series. At the trial, M. O. 5 series were proved to be six of the nine pieces of bed- ticking cloth belonging to Messrs. Davidass & Co., of Bangalore, which had been despatched to their customer at Ranipet in a goods wagon from Bangalore on 16-12-1954. The petitioner admitted that P. W. 7 recovered two gunny bags from his house, but alleged that he did not know what they contained. His story was that three days prior to the search by P. W. 7, two persons named Basigadu and Buddodu had come to his shop with the gunny bags and asked him to give change for a ten rupee note. He replied that he had no change, whereupon they borrowed Rs. 2/-from him and went away leaving the gunny bags and saying that they would come back. Three days later, Basigadu re-appeared with P. W. 7 and asked for the packages and the petitioner handed them over. In support of his story, the petitioner examined D. W. 1, a lorry owner residing at Guntakal. D. W. 1 substantially corroborated the petitioner's version as to the circumstances in which the gunny bags were left with the petitioner. The learned Sub Magistrate disbelieved D. W. 1 mainly because of certain minor discrepancies between his version and that of the petitioner. He further observed that even if D. W. 1's evidence is true, it was not possible to believe that the two strangers would have pledged M. Os. 1 to 5 series, with the petitioner for a paltry sum of Rs. 2/-. He came to the conclusion that the petitioner must have received if not purchased the two gunny bundles, knowing that they were stolen. He applied the presumption under Sec. 114 (a) of the Evidence Act and convicted the petitioner under Sec. 411 I. P. G. On appeal, the learned District Magistrate agreed with the reasoning and the conclusions of the Sub Magistrate,

(2.) The main contention of the learned Counsel for the petitioner is that he did not know nor have reason to believe that the goods were stolen and that both the magistrates have overlooked the fundamental principle that the onus of proving all the ingredients of the offence charged, never shifts from the prosecution, even in cases in which a presumption under Sec. 114 (a) of the Evidence Act can be invoked. In my opinion, this contention is well-founded. The presumption under Sec. 114 (a) is one of fact and not of law. It is a permissive inference which a Court may logically draw from the facts proved, including the nature of the goods, having - regard to the common course of natural events and human conduct in their relation to the particular Facts. it is not a presumption of law in which case, the Court would be required to reach that conclusion in the absence of evidence to the contrary. No doubt when a person denies altogether his possession of stolen goods, not in. common circulation, which possession the Court finds to be proved, it is normally easier to draw an adverse inference as to the person's guilty knowledge But when he accounts for his possession of the stolen goods, the question which arises for consideration is whether his explanation is inherently or palpably false or such as to cast a reasonable doubt as to his guiltGangaraju v. State; Bharadwaj Singh v. State and State v. Magha. Thus when the charge is under Section 411 I.P.C. and the accused denies knowledge of the fact that the goods in his possession were stolen the question is whether a prudent man ought, under the circumstances of the particular case to act on the supposition that the accused had that knowledge. la the present case, the gist of the petitioner's defence is that he was not aware of the contents of the two gunny bags which were left with him by Basigadu and Buddodu. The mediator, P. W. 5, himself admitted in his further cross-examination :

(3.) This supports the petitioner's story that one of the persons who left the gunny bags with him came back with P. W. 7, the Sub-Inspector, and claimed the articles. The two gunny bags by themselves, irrespective of what was contained in them, would appear to have been worth something like a rupee. The petitioner would have been justified in trusting the persons who brought them for a hand-loan of Rs. 2 -especially as he was unable to change their ten rupee note. There is absolutely nothing to show that he accepted the contents of the gunny bags as a pledge for the loan or that he purchased them.