In Re: Dakshinamoorthy

K.N. Mudaliyar, J.—This is an appeal by the Appellant Dakshinamoorthy (A-l) against his conviction for an offence u/s 392, I.P.C. and the

sentence of five years rigorous imprisonment. Mariappan, P. W. 1, is the complainant. He is an employee under Muthiah Konar, P. W. 2 on a

monthly wage of Rs. 60. P. W. 2 the employer of P. W. 1, is engaged in the milk trade. P. W. 1, has got the duty of supplying the milk to the

customers at Virudhunagar. He used to take the milk from the village of Vellakulam to Virudhunagar every morning and evening in milk cans on a

cycle. Such supply of milk was to one Anjaneyar Hotel owned by P. W. 4. The two hoteliers, P. Ws. 4 and 5 speak to such regular supply by P.

W. 1. The cycle belongs to P. W. 2. On 6th January, 1971, when P. W. 1 was returning on the cycle owned by his employer, P. W. 2, with the

milk cans, he received Rs. 6 from P. W. 4 being the arrears due to the supply of milk. After attending the first show cinema, he was returning at

about 11 p.m. to his village after leaving Virudhunagar. As he was proceeding on the main trunk road, two persons came from the western side

and blocked the cycle. The time was 11.30 p.m . The place of occurrence was near the car track leading to one Nallamanickenpatti. The accused

directed P. W. 1 to get down from the cycle and threatened him to take the money he had with him. The first accused had an aruval, M. Order 2.

He beat P. W. 1 with the portion of the aruval, on the left shoulder and asked P. W. 1 to take the money. The first accused relieved P. W. 1 of the

cash of Rs. 6 he had in his side pocket: The second accused had a small stick. There was a dynamo light, M. Order 1 in the cycle. The second

accused pulled and removed it. Thereupon P. W. 1 was directed to proceed by walk with the cycle. The accused turned back. P. W. 1 walked on

for some distance and then reached the village. After informing his employer P. W. 2, he gave a complaint Ex. P-1 at about 7 a.m. on 7th January,

1971 to the Sub-Inspector of Police, P. W. 9. In substance, the plea of the accused is one of denial. The learned trial Judge held that P. W. 1 was

the victim of highway robbery, that he had been relieved of the sum of Rs. 6 and the dynamo light M. Order 1, at that time and that one of the two

culprits had also used an aruval in the course of the occurrence. But, the learned Judge also held that these accused have not been properly

identified by P. W. 1 at the identification parade. But, he acted on the testimony of P. Ws. 6 and 7 and the recovery of M. Order 1 and found the

first accused-Appellant guilty u/s 392, I. P. C, after acquitting him u/s 392 read with S. 397, I. P. C. He also acquitted the second accused.

Mr. Kumar Rajaratnam (amicus curiae) argued that inasmuch as the trial Judge has disbelieved the testimony P. W. 1 in respect of the identity of

the Appellant at the identification parade, the conviction u/s 392, I. P. C. cannot be sustained. I have no doubt that when once the learned Judge

chose to disbelieve the evidence of P. W. 1 in regard to identification of the Appellant there is no other material for him to convict the Appellant of

the offence u/s 392, I.P.C.

The only remaining evidence on which the trial Judge has acted is that of P. Ws. 6 and 7. The Appellant was arrested on 13th January 1971 by

P.W. 10. The first accused gave a voluntary confession, the admissible portion of which is marked as marked as Ex. P-5. P.W. 6 attested the

confessional statement of the first accused-Appellant, Ex. P-5. The relevant portion of Ex. P-5 is that they sold the dynamo light snatched from the

cyclist for Rs. 13/- in Villur to one Samaya Thevar( P. W 7) who had a grocery shop in that village. The Appellant has stated that he would

produce the dynamo light M. Order 1 and show the shop man. P. Ws. 6 and 10 speak to the fact of the first accused-Appellant taking them to

Villur village. P. W. 7 Samaya Thevar was pointed out. He produced M. Order 1 and that was seized under attakshi, Ex. P-3 attested by P. W. 6

and two others. The dynamo light M. Order 1 has an identification mark, viz., the letters"" inscribed in it. P. Ws. 1 and 2 identify M. O.1 as the

dynamo light lost from the cycle. The two Tamil letters represent the first letter in the name of P. W 2 and his father P. W. 7 stated that the two

accused demanded Rs. 20/, but ultimately P.W. 7 paid Rs. 13/- to the first accused. P.W. 7 also corroborates P.W. 6 and P.W. 10 about the fact

of the first accused bringing the police officer to the shop and the recovery of M. Order 1. Mr. Kumar Rajarathnam argued that P. W. 7 is an

accomplice and that the fact that A-1 sold M. Order 1 dynamo light needs coorroboration from an independent source. 1 am unable to accept the

proposition that P. W. 7 is an accomplice at all. In the complaint Ex. P-1 even P. W. 1 stated that the dynamo light was worth Rs. 15/- only and

P. W. 7 purchased it for Rs 13/-. The difference between its real value and the price paid for it by the buyer P. W. 7 is not so glaring that an

inference can be legitimately drawn that the dynamo light M. O. lis a stolen article when P. W. 7 purchased M.0.1. I find that to the knowledge of

P. W. 7 there is not sufficient evidence to prove that M. Order 1 is a stolen article, and therefore in my view P. W. 7 cannot be treated as an

accomplice. He could not have reasonably believed that M. O 1 is a stolen property. Even assuming the testimony of P. W. 7 is that of an

accomplice, I do not think that there must be an independent corroboration for the transaction, viz., that A-1 sold the dynamo light M. Order 1 to

P. W. 7 for Rs. 13. In my view, the recovery of the dynamo light itself from the possession of P. W. 7 does constitute corroboration of the

testimony of P. W. 7 that A-1 sold the dynamo light to him for Rs. 13. The learned Counsel chose to rely on the reasoning found in Vellingiri v.

The King 1950 M.W.N. Cr.Rajagopalan, J. rejected the argument in the reported case that the statement of the accused that he sold the dynamo

to the proprietor of a Soda factory (P. W. 4) is inadmissible. Undoubtedly, the reasoning in Vellingiri v. The King 1950 M.W.N. 77 is helpful to

the prosecution in the sense that it was the statement of the accused that led to the discovery of the sale by the first accused-Appellant to P. W. 7.

Mr. Kumar Rajarathnam was unable to cite any authority in support of his contention noticed above already.

I hold that the offence under S, 392, I.P.C. is not proved on the basis of the proved facts against the Appellant (A-1).

P. W. 2 identified M. Order 1 as his own and he speaks to the initials found on M. Order 1. That the dynamo light, M. Order 1 contained

initials of P. W. 2 is averred in Ex. P-1 itself .In view of the undoubted ownership of M.O.1 by P. W. 2 the legal presumption that arises u/s 114 of

the Indian Evidence Act is that the seller, viz., the first accused-Appellant herein is either a thief or a receiver of stolen property. I find the

Appellant guilty u/s 411 , I.P.C. He is acquitted of the offence u/s 392, I. P. C. I alter his conviction to one u/s 411, I. P. C. and sentence him to

undergo rigorous imprisonment for the period already undergone by him. With this alteration, the Criminal Appeal is dismissed. I am thankful to

Mr. Kumar Rajarathnam for his assistance to the Court as Amicus Curiae.