MEGHU CHAMAR Vs. EMPEROR

JUDGEMENT

(1.) THE two appellants have been convicted under Section 412, Indian Penal Code, of dishonestly retaining possession of property stolen in a dacoity with knowledge that possession of it had been so transferred. THE dacoity was committed in village Sadhua on the evening of 30 May 1940 and on 4 June 1940 two saris were recovered on search from the possession of the two accused. One of them Ex. 3 was found on the person of the daughter of Meghu appellant in village Tintanga five miles from Sadhua where the dacoity was committed. THE other sari was found with clothes in an earthen pot at the house of the appellant Bangali in village Kaluaoha four miles from Sadhua. THE appellants were sent up for trial along with other persons who were charged under Section 395 with whose case we are not concerned. Evidence of identification of the two saries was given in the one case by Tulsi Bhagat P.W. 13 only and in the other case by Manobar Bhagat P.W. 17 only. THE learned Judge pointed out to the jury the absence of distinguishing marks of identification and on a reading of the charge the impression is created that he expected the jury to acquit. He had also told the jury on two places in his charge that "mere possession of property taken away by dacoits at the time of commission of dacoity will not be sufficient to bring home the charge under Section 412, Indian Penal Code. It must be proved that the accused had knowledge or had reason to believe that the possession of the property was transferred by the commission of dacoity." This is a correct statement of the law so far as it goes; but the learned Judge did not point out to the jury the absence of evidence from which they might be asked to infer dishonest possession, nor did he explain to them that the presumption under Section 114, Evidence Act, Illus. (a) only arises when an accused person is in possession of stolen goods soon after the theft and is unable to account for his possession. In the present instance each of the appellants had given an account of his possession of the property. Meghu had said that he had bought the siri in Suthia-bazar. THEre was no evidence that he had not done so. Bangali had said that he had received the sari at the wedding of his daughter from one Banni. This case is somewhat similar to Rajendra Nath v. Emperor A.I.R. 1937 Pat. 191 where it was said that when an accused has given a satisfactory account for his possession the question of the application of Section 114, Evidence Act, no longer arises and then it is necessary to show by evidence direct or circumstantial that there was some collusion between thief and the receiver or that the receiver had real reason to believe that the property which he had purchased was stolen. In the present case the presumption under Section 114, Evidence Act, is not applicable. Apart from this presumption there was no Evidence of guilty knowledge on the part of the appellants or of any connection between them and the alleged dacoits. I am of opinion that the charge was defective and this has led to a failure of justice and therefore the conviction ought to be set aside and the appellants acquitted. Manohar Lall, J. I agree.