MAVUTHALAYAN Vs. EMPEROR

JUDGEMENT

(1.) In this case the accused have been convicted of house-breaking and theft, offences under Secs.457 and 380, I.P.C. There is no direct evidence that any of them were seen at the place of house-breaking and the conviction rests on the subsequent recovery of certain of the stolen articles. The learned Sessions Judge says in his charge to the jury there Is hardly little or no evidence on record that these accused were arrested with these articles in their possession.

(2.) So the evidence against them is that of third persons to whom they handed over the property. One of these is P.W. 6 to whom 6 brass vessels, M.O.S. 2 to 7 and a silk saree, M.O. 10 were sold. As regards this witness the learned Judge instructed the jury as follows: What P.W. 6, Abdul Rahim Sahib, says is that accused 1, 2 and 4 who are all brothers brought to him these brass vessels and one silk saree, M.O.S. 2 to 7 and 10, and wanted him to give them Rs. 2. As he had no money then he gave them six annas. You have seen this witness in the box. These three accused were living in his land. He knew them very well. He was compelled to say that these brass articles could not have been owned by these accused. He was also forced to answer that the silk saree M.O. 10, is one which the womenfolk of accused 1, 2 and 4 could not have owned. This may show that he might have known at the time when he received these articles that they were stolen. Bat he is not at present in the dock. If it is an offence it is for the authorities to proceed against him. What you are now concerned with is whether his testimony is true or not. That these articles were recovered from his possession is proved by P.W. 5 as well as by the village Munsif of Desur. A mahazar too was prepared at the time which has been filed as Ex. C. Desur is not far away from the place of occurrence, Salai Arugavur; it is only three miles from it. So then it comes to this : that if you believe the testimony of P.W. 6, it follows that very soon after the theft most of the articles that had been stolen were sold or pledged with him by accused 1, 2 and 4.

(3.) Curgenven, J., admitted this appeal with the note that the Sessions Judge omitted to point out the need for caution in accepting the evidence of a receiver of stolen property as that of an accomplice. Mr. Bewes, for the Crown, raised the point whether a person who receives stolen property knowing it to be stolen is an accomplice. Woodroffe in his Evidence Act says the term "accomplices" may include all "participes crimines" and there is a note below that in English Law it includes both principals of the first and second degree and accessories before and after the fact. But that in India it was held that an accessory after the fact (under the law prior to the Indian Penal Code) stood on a very different footing from an accomplice. Mayne says (p. 756, 2nd Edn): Abettors of crime are accomplices and must be looked at as such if they are produced as witnesses against the principal offenders.