BABU RAM Vs. EMPEROR

JUDGEMENT

(1.) The learned Additional Sessions Judge of Aligarh at Etah has made a re- commendation that a sentence of Bs. 20 fine passed on Babu Earn for committing an offence under Section 411 or Section 403, I.P.C., should be set aside. The learned Magistrate who tried the case found that a buffalo had strayed from the house of its owner as alleged by him and that it was found several months afterwards in the house of Babu Ram. Suspicion was directed towards Babu Ram's brother who lives with him, but the brother maintained that Babu Ram had brought the buffalo to the house and that fact has now been accepted and is not denied by Babu Ram himself. Babu Ram's explanation was that he had bought the buffalo in good faith from a man called Jagannath. In support of this allegation he produced what purported to be a receipt or acknowledgment of the fact executed by Jagannath. This receipt was written by Wazir Khan, a Municipal clerk and upon it there was a thumb impression which was alleged to be that of the vendor.

(2.) The learned Magistrate for several reasons came to the conclusion that this receipt was quite valueless as a piece of evidence. It was undated. It was not produced until 20 days after the buffalo was recovered from Babu Ram's house. It was denied by Jagannath and neither Babu Ram nor Wazir Khan could identify Jagannath when he was paraded before them in, jail with a number of other people. The learned Magistrate came to the conclusion that Babu Ram's explanation of the fact that he was in possession of the buffalo was unsatisfactory and from this he inferred that Babu Ram's possession was dishonest. There was a further fact that Babu Ram had absconded after his brother had been acquitted.

(3.) The learned Judge has suggested several reasons why the conviction should not stand. The first of these is that the learned Magistrate has not definitely decided whether the accused was guilty of an offence of receiving stolen property under Section 411, I.P.C., or an offence of criminal misappropriation punishable under Section 403, I.P.C. The learned Judge says that there may bean alternative charge but there cannot bean alternative conviction. I do not think, that the learned Judge is right in this statement. If the Magistrate is not able to, find for certain that facts exist which justify conviction, he should of course acquit, the accused, but where the Magistrate has found that facts do exist which establish that the accused person must have committed some offence, although it is doubtful exactly what that offence was, a conviction for the least serious offence is in my opinion perfectly good. The most that can I be said is that there cannot be an alternative conviction or for that matter an alternative charge where the facts are doubtful but only where the deductions from the facts are doubtful. The facts in; this case are that the buffalo disappeared from the possession of its owner, that it was found in the possession of the accused and that the accused was unable to explain satisfactorily how it came honestly into his possession. From these facts, the deduction may be either that the accused misappropriated the animal himself or that he received it dishonestly from some other person who had misappropriated it. The accused was certainly not entitled to escape punishment merely because nobody could prove whether he misappropriated the animal himself or got it from somebody else who had misappropriated it in the first instance.