LAIBAN NAIK AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioners while being acquitted under Sections 395/398/412 IPC have been convicted for having committed the offence under Section 411 IPC and sentenced to undergo R.I. for two years each and such conviction and sentence having been confirmed in appeal, are in revision before this Court.

(2.) ACCORDING to the charge, the Petitioners were involved in a dacoity committed in the house of P.W. 1 at about 9 p.m. on 20.3, to which eye -witnesses were P.Ws. 1, 12 and 13. After trial the learned Magistrate came to the conclusion that the articles in question were stolen due to dacoity by some unknown culprits and that those were recovered from the houses of the Petitioners, but though these two facts were not sufficient to show that either of the Petitioners had reason to believe that the articles were transferred to them by commission of dacoity, he convicted them applying the decision in : AIR 1968 Ori 20 (State v. Pareswar Ghasi) under Section 411 IPC.

(3.) EVEN though the requirements of Section 411 IPC are not thus satisfied, yet it is urged by the learned Additional Standing Counsel that since the properties were admitted to the stolen properties and had been recovered from the houses of the respective Petitioners, a presumption under Section 114(a) of the Evidence Act was available to be drawn and that it was necessary for the Petitioners to have established the contrary that they had not received properties knowing them to be stolen. Even though the occurrence on 20.3.82, yet the recoveries were made on 9.4.82 i.e. after to period of 20 days. It is his contention that the possession of the properties must he held to be recent and in support of his submission places reliance on, AIR 1946 Nag (Baliram Tikaran Maratha and Ors. v. Emperor) and, AIR 1949 P&H 115 (Amar Singh S/o Thakar Singh and Ors. v. The Crown). The submission is not acceptable since such a presumption has not been drawn by the learned Magistrate or even by the appellate Court and even though it cannot be a general rule that the presumption available to be drawn, cannot be drawn at the revisional stage, yet I do not consider this to be one where such presumption is available to be drawn in view of the fact that absolutely no discussion has been made by either of the Courts below regarding the facts necessary to give rise to such a presumption. That apart, the two decisions relied upon by the learned Additional Standing Counsel are also of little help to the State. The principle applied in those cases was that where the articles stolen are such which are not likely to change hands often, possession found after one month or more can be said to be recent. But so far as the stolen articles in the present case are concerned, they being only silver and gold rings, leather money purse and gold mine etc. the same character cannot be applied to them. These articles are easily capable of being changed hand to hand and hence it would in effect result in miscarriage of justice if presumption is reached under Section 114(a) of the Evidence Act in respect of such articles after a lapse of 20 days. The decision in : AIR 1968 Ori 20 (supra) relied on is also not to the point Merely because in that case the conviction was made under Section 411 IPC the charge under Section 412 having failed, there cannot be any conviction under Section 411 in the present case ipso facto. There is no universal rule that wherever a charge under Section 412 fails, conviction under Section 411 must be held to be maintainable. The law is too well settled as discussed in : AIR 1954 S.C. 39 (supra) as also in : AIR 1979 S.C. 1718 : 1980 SCC (Criminal) 173 Mohanlal v. State of Maharastra that until the prosecution proves the property recovered from the accused as stolen and be leaved by him to be stolen, the ingredients of Section 411 IPC cannot be said to have been proved. In that view of the matter, the conviction and the sentence passed against the Petitioners are not sustainable.