NECHA Vs. EMPEROR

JUDGEMENT

(1.) THIS order will dispose of Crimmal Revision No. 4 of 1928 also. The applicants, Necha and Gurdayal and one Fulsing were tried jointly with Hiralal who not only admitted his own guilt but implicated the rest in the commission of an offence under Section 457, I.P.C. All the four accused were convicted and sentenced to rigorous imprisonment. Out of them Hiralal who was a previous convict did not appeal against the conviction and sentence passed against him. So he dropped out at the appellate stage. The rest appealed to the Sessions Judge, who upheld the convictions and sentences and dismissed the appeals. Fulsingh has not cared to come up in revision. The applicants have sent up their petitions for revision through the Superintendent of Jail, Hoshangabad. No one appeared either for the applicants, or for the Crown, although notices were issued; the latter through the District Magistrate was called upon to show cause why the conviction and sentences should not be set aside.

(2.) THE learned Sessions Judge in dismissing the appeals observes that out of 14 prosecution witnesses none is an eyewitness to the house-breaking itself; not even Dallu the owner of the house says anything about it. But the fact is that the house was broken in at night. The said Judge was, however, satisfied that the property recovered from the several accused was the property stolen from the house of Dallu and belonged to him, and that whatever property was seized from the possession of the applicants, Necha and Gurdayal, formed part of such property. Although the theft took place on the night of 7th July 1927, the property was not traced for about 40 days after the occurrence.

(3.) AS to the question whether the presumption which attaches to recent possession has been rightly applied in this case by the Sessions Judge, I may say that the question as to what amounts to recent possession sufficient to justify the presumption, in any particular case, varies according as the stolen article is, or is not, calculated to readily pass from hand to hand. In the following cases the period of 19, 13, 5 and even 3 months was treated by the Courts as too long to raise such a presumption under Section 114, Evidence Act : Naqli v. Emperor A.I.R. 1926 Lah. 528, In re Jaimullabdin [1919] 11 M.L.W. 43, Hari Ram v. Emperor A.I.R. 1921 Lah. 89, and Joeenullah Bepari v. Emperor [1918] 22 C.W.N. 597. This clearly shows that the importance to be attached to possession as giving rise to the presumption of guilt must vary with the circumstances of each individual case. We cannot also forget that there is the normal presumption of innocence in favour of every accused person whose guilt has to be proved beyond the possibility of any doubt. But it seems well established that where in a criminal case there is a conflict between presumption of innocence and any other presumption, the presumption of innocence prevails. The, strength of the presumption varies according to the seriousness of the charge. It has been said that the greater the crime the stronger is the proof required for conviction : Athiraf Ali v. Emperor [1917] 21 C.W.N. 1152.