ABDUR RAHIM Vs. EMPEROR

JUDGEMENT

(1.) THE applicant Abdur Rahim was with one Hurmatbi challaned by the police under Section 380 of the I. P.C. for theft of the complainant's articles, namely certain ornaments worn on her person by Mt. Hurmatbi. The trying Magistrate convicted him under Section 379 and sentenced him to three months rigorous imprisonment. He therefore went up in appeal to the District Magistrate, Nimar, against the conviction and sentence. The District Magistrate was of opinion that there was no evidence on record of the accused Abdur Rahim having committed the theft himself. He expressed the view that it was more probable that the earring was worn on her person by Mt. Hurmatbi and that she gave it to him, and that she was guilty of theft when she ran away with the belongings of her husband including the earring. In this view of the case he thought that the proper section under which the accused could be convicted was Section 411, I. P.C. instead of Section 379, and thinking he could, under Section 237 of the Criminal P.C., alter the conviction from Section 379 to Section 411 of the I. P.C. maintained the sentence and dismissed the appeal.

(2.) IT is against this decision of the District Magistrate that the present application for revision is made. It is argued before me that what Mt. Hurmatbi, the wife of the complainant, had worn on her person was not stolen property in her hands, and if the applicant received it he did not thereby become a receiver of the stolen property, and further that in order to sustain the conviction under Section 411 it was necessary to the Court to come to a finding that he had knowledge or belief that it was stolen property; in other words, it has to be found that the receiver received the identical property with the knowledge or belief that it was stolen. It is pointed out that the complainant himself admitted in his deposition that the ornaments were given by him to Hurmatbi at the nika and that the applicant had therefore no reason to believe that Hurmatbi was possessing the ornaments as property stolen from her husband's possession, but on the contrary he had reason to believe that she was the prima facie owner of the ornaments admittedly gifted to her at the nika. The knowledge or belief which is required to be established in order to bring the case under Section 411, I. P.C. implies the existence and the presence of facts or circumstances from which the accused was either made aware or ought to have been made aware of the nature of the property. It may be sufficient to show that the circumstances were such as to make him believe that the property was stolen. The word "knowledge" means "a mental cognition" and not necessarily "visual perception." It implies a notice to the receiver of such facts as could not but have led him to believe that the property was stolen and could not but have been dishonestly obtained.

(3.) UNDER these circumstances the conviction and sentence passed against the applicant cannot be upheld in the absence of a clear finding that the ornaments worn and possessed by Mt. Hurmatbi were stolen property and that the accused knew or had reason to believe that they were stolen property. I therefore, set aside the conviction and sentence and remand the case with directions to frame a proper charge and to re-try the applicant in a Court of competent jurisdiction to which the District Magistrate may think fit to send him for trial, The accused who was on bail in this Court shall continue on bail. He is ordered to present himself before the District Magistrate on 26-8-26 in order that he may direct him to the proper Magistrate to have his re-trial.