Bharat Chandra Das and Another vs The State

Ram Labhaya, J.—The two petitioners, Bharat Chandra Das and Barada Charan Das are brothers. They were convicted u/s 411, Penal Code, by Mr. B. M. Dam, S. D. O., Silchar, and were sentenced each to 6 months rigorous imprisonment. On appeal their convictions and sentences were maintained. They have petitioned for the revision of the orders of the Courts below.

The petitioners were dealing in watches and fountain pens at Badarpur. The shop house of Bhupendra Nath Sen Gupta (P. W. 1) at Silchar was burgled on the night following 1st June 1948 and five new watches, one clock, three fountain pens and some cash and papers were removed. A report of the burglary was made on 2nd June 1948.

During the course of the investigation two persons viz., Dinesh Chandra Kar and Prabhat Chandra Shome were arrested, Dinesh Chandra Kar, a previous convict, was found guilty under Sections 457/380/75, Penal Code, and was sentenced to rigorous imprisonment for 2 years. Prabhat Chandra Shome was convicted u/s 411, Penal Code, and sentenced to three months rigorous imprisonment. They did not appeal from their convictions. While the investigation was in progress, Dinesh Chandra Kar led the Investigating Officer to the Shop of the petitioners at Badarpur. Three watches and two fountain pens, which were identified by the complainant as his, were recovered from the shop. These were found to be stolen property. The finding that the watches and the pens were part of the stolen property removed from the shop of the complainant on the night following 1st June 1948, is not in question.

The defence put forward by the petitioners was that all the five articles were purchased by them from Dinesh Chandra Kar for Rs. 100 and that they had no knowledge that the articles were stolen. The only basis on which the orders of the Courts below are assailed, therefore, is that it has not been proved that the petitioners knew or had reason to believe that the property which was recovered from their possession was stolen property.

The complainant deposed that the value of the entire property stolen was about Rs. 500. No documentary evidence was produced at the trial in support of this allegation. So far as the articles recovered from the petitioners are concerned, their value was not stated separately at all. The case of the petitioners was that they paid Rs. 100. In this they are supported by D. W. 1 in whose presence the transaction took place. There is nothing on the record to show that the value of these articles was more than Rs. 100 or that they were purchased at a price much lower than their usual market price. There were some other persons present at the time of the transaction besides D. W. 1. The transaction was in no sense secret. If these articles were purchased openly and at a reasonable price the transaction would not justify an inference of guilty knowledge. No attempt has been made from the prosecution side to bring to light any other circumstance which would go to show that at the time of the transaction the accused knew or had reason to believe that the property they were purchasing was stolen property, The learned Additional Sessions Judge has no doubt observed that the price of Rs. 100 said to have been paid by the petitioners was a moderate price and even inadequate but he has not referred to any evidence on which this finding could be based. No one has made any statement as to the approximate value of the articles recovered from the possession of the petitioners. It cannot, therefore, be said that the sum of Rs. 100 paid by them was not adequate consideration for these articles. There is no document evidencing the transaction by which the accused purchased these watches. This may be a suspicious circumstance but by itself it would not be sufficient for attributing guilty knowledge to the petitioners at the time of the transaction, particularly in view of the fact that Dinesh Chandra Kar was offering the articles for sale openly in the presence of several persons.

The conduct of the petitioners at the time of the recovery has really formed the foundation for the finding that the petitioners knew or had reason to believe that the articles purchased by them were stolen. Dinesh Chandra Kar, accused, was taken to Badarpur. There he pointed out the shop of Bharat Chandra Das and Barada Charan Das, petitioners. At that time Barada Charan Das alone was present in the shop. The Investigating Officer asked him if Dinesh Chandra Kar had sold three watches and two fountain pens to him. He was then reading a newspaper. He did not answer the question but very slowly opened the drawer of a table close to him, took out of it a watch, wrapped it in a piece of paper torn from the newspaper he was reading and went out of the shop through the back door. The complainant was standing behind him at the time.

He saw him going with the watch. He brought this fact to the notice of the Investigating officer who followed Barada Charan and caught him with the wrist watch in the courtyard behind. He then asked him to produce the 2 other watches and 2 fountain pens. The stolen watches and a fountain pen were produced from the almirahs where other watches and fountain pens were kept by the accused for their trade. One fountain pen was produced by Bharat from under a bedding. The attempt on the part of Barada Charan Das to take out the watch from the drawer does no doubt indicate that at that moment he either suspected or believed that the articles purchased from Dinesh Chandra Kar must have been the subject matter of some offence. The presence of the police officer with Dinesh and the enquiry about the three watches and the 2 fountain pens would lead him to that conclusion. But the question is not whether at that moment one or both of the petitioners suddenly realised that the property they had purchased was stolen but it is, whether at the time they purchased it they knew or had reason to believe that they were purchasing stolen property. The unsuccessful attempt to conceal a watch can merely show that state of the mind of the petitioners at the time of the recovery. The presence of the police could make them nervous and apprehensive. The conduct at the time of recovery cannot be regarded as any conclusive evidence of the state of the mind of the petitioners at the time when they purchased it. This piece of circumstantial evidence does not exclude the possibility that the purchase was innocent and without any guilty knowledge or belief, The evidence being circumstantial in nature it must be conclusive. It should exclude the possibility of innocence. It should be incompatible with any other hypothesis except that of guilt. We do not think the conduct of one out of the two petitioners leads necessarily to the conclusion that they had guilty knowledge at the time they purchased the articles in question. It cannot therefore be held positively that they received or retained stolen property. The circumstances are no doubt suspicious but suspicion is no substitute for proof. The word "believe" occurring in Section 411, Penal Code, is much-stronger than "suspect." It involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. A person who is purchasing stolen property knowing it to be stolen or having reason to believe that it is stolen, would not purchase it so openly as the petitioners did. There were other persons present. Even they did not suspect that the property was stolen. In a case like this it is not sufficient to show that the accused were careless or had reason to suspect that the property was stolen or that they did not make sufficient enquiry to ascertain whether the property had been honestly acquired. We think the petitioners are entitled to the benefit of doubt.

The petition is allowed. They are acquitted, Their bail bonds shall stand cancelled.

Thadani, C. J.

I agree.