In re Dhyani Gope and Others

Agarwala, J.—The four appellants were tried with one Santokhi Gope, who has been acquitted, and sentenced to rigorous imprisonment for seven years each on conviction for an offence u/s 412, Penal Code.

The facts are that on the night between 27th and 28th March 1944, a dacoity took place at the house of Rajeshwar Prasad Singh (P.W. 1) at village Mankahi. A first information relating to this occurrence was laid at the police station the following morning by Lal Bahadur, a cousin of Rajeshwar. The informant mentioned in his information a number of articles which had been stolen, and stated that a more detailed list would be furnished later. On 30th a supplementary list was presented to the investigating officer. In consequence of statements made to him by one Rami Gope of Chitti, who has since died, the investigating officer made a number of searches. Prom the house of appellant Dhyani on 6th April he recovered, amongst other things, a gold nathia, 3 gold kanausis, a shawl, a striped coat, a bell-metal tumbler and a check-gamchha. The first informant''s list included this shawl, a striped coat and a bell-metal tumbler, while the supplementary list mentioned a gold nathia, three gold kanausis, four bell-metal thalis and three check gamchhas. At the test-identification parade Rameshwar Prasad Singh and his cousin Lal Bahadur identified all these articles as belonging to them, except that the coat was identified only by Rameshwar. At the trial, both these witnesses identified all these articles. Lal Bahadur''s explanation of his not identifying the coat at the test identification is that it was not shown to him on that occasion. In his written statement the appellant Dhyani Gope alleges that the coat belonged to his father-in-law, Nakchhedi, who was staying with him at the time that the search was made, and that the gold ornaments belonged to his sister. The other articles, he claims belonged to himself. Apart from his own statement, there is no evidence that the ownership of these various articles is as alleged in the written-statement; while, on the other hand, the evidence of the two prosecution witnesses, already referred to, negatives this claim.

With regard to the gold ornaments, it was contended by learned Counsel for the appellant Dhyani Gope, that it is unlikely that these articles would have been omitted from the first information report if they had, in fact, been stolen, as they were more valuable than many things that were mentioned in that report. It is notorious, however, that in the confusion and panic resulting from a dacoity, the inmates of the house are usually in such a state of confusion that they do not realize the extent of their loss until they have had a chance to calm down and consider the matter properly and to make a regular search among their possessions. The omission of these articles in the first information report, therefore, does not, in my opinion, suggest any doubt of the veracity of the evidence, more particularly as they were mentioned in the supplementary list which was handed to the investigating officer before any of the articles had been recovered at the searches. For Dhyani''s claim that the coat belonged to his uncle, there is no evidence at all that Nakchhedi at any time laid claim to it, although he was present at the time of its recovery from the house of Dhyani. With regard to this coat, it was elicited) from one of the search-witnesses that Nakehhedi said something to the investigating officer at the time this coat was recovered, but in the absence of evidence that he then made any claim to the coat, it is not possible to hold that the coat was the subject-matter of what was said to the investigating officer. With regard to the shawl, as one of the prosecution witnesses admitted that Nakchhedi used to wear a shawl like the one-recovered from Dhyani''s house, it is the foundation of an argument that the shawl belonged to Nakchhedi. Again, there is no evidence that Nakchhedi has ever claimed this shawl as his and, therefore, there is no reason to disbelieve the evidence of P. Ws. 1 and 2 that they, in fact, belonged to them. In the first information report, among the things stolen, there was mention of ft bell metal tumbler. In the search list prepared by the investigating officer at the time of search at Dyani''s house, a tumbler was recovered, which in the search-list was described as of german silver. At the trial, the complainant described the tumbler that was stolen as one of german silver, but he was shown the article which was recovered and stated that that was the one which he had lost. This tumbler is, undoubtedly, a bell-metal tumbler, such as is described in the first information report. The description of it by the Sub-Inspector in the search list and by Rameshwar in his evidence as being a tumbles of german-silver, is merely a misdescription.

From the house of Kishundeyal Gope the Sub-Inspector recovered a pair of child''s rubber-shoes, one of which had been repaired with whit thread, two check-gamchhas and a bell metal thali. As I have already stated, four thalis were mentioned in the first information report itself, and the loss of three gamchhas and a pair of rubber-shoes, the left one of which had been repaired, were mentioned in the supplementary list. All these articles have been identified by P.Ws. 1 and 2 both at the test identification, and at the trial as belonging to them. In his written statement, Kishundeyal claims that all these articles belonged to himself and that he had repaired the rubber-shoe. It would be a strange coincidence if a small pair of rubber-shoes were found both in the house of the complainant and in the house of Kishundeyal in a village two miles apart, both of them with the left shoe repaired with white thread. There was no evidence other than Kishundeyal''s own statement that these articles belonged to him, and, therefore there is no reason to doubt the sworn testimony of the two prosecution witnesses who have identified them as belonging to the complainant.

From the house of Jagat Gope, there was recovered a bell-metal thali, and a similar thali from the house of Munar Gope. From the latter''s house was also recovered a gold bulaki. The last mentioned article was mentioned specifically in the supplementary list, and the thali, of course, was mentioned in the first information report. They have been identified by P. Ws. 1 and 2 as belonging to the complainant. Munar Gope admitted that the things recovered from his house did not belong to him and he does not lay any claim to them, but he suggested that somebody had planted them in his house. There is, however, no evidence from which that can be inferred. Rameshwar Prasad Singh (P.W. 7) has stated that in consequence of information given to him by his nephews, P. Ws. 8 and 9, that they had seen Rami Gope concealing a bundle in the house of Munar Gope, he went to the latter''s house and concealed himself at a place from where ho witnessed the arrival of a bullock-cart with Rami and Jagat Gope. From Munar''s house they took a bundle which they concealed under sheaves of straw on a bullockcart and took it away. The only criticism of this witness''s evidence is that he did not tell the investigating officer that he concealed himself anywhere, or that he witnessed the arrival of the bullock-cart from his place of concealment. That criticism, however, does not, in my opinion, justify the rejection of his evidence. He is supported by his nephews who have been examined and who stated that they, in fact, told him the story he mentions, that they had seen Rami Gope''s arrival at Munar''s house with a bundle which he concealed in Munar''s house.

The facts established by the evidence are that the articles in question belonged to the complainant, that they were stolen on the night between 27th and 28th March in course of a dacoity, and that on 6th April they were recovered from the houses of the various appellants. It has been argued that in view of the fact that Dhyani has given an explanation with regard to the finding of some of these things in his house, the Court should not have drawn the inference that he knew or had reason to know that these articles had been stolen. Reference was made to the class of cases in which it has been held that the presumption u/s 114, Evidence Act is not available to the prosecution when the accused has given an explanation of his possession of stolen property which is not unreasonable, even though he is unable to establish the truth of the explanation by legal evidence. The cases in this respect have, in my opinion, been misunderstood. The presumption permitted by Section 114 does not arise until the prosecution has established three facts: namely, the ownership of the articles in question, the theft of them, and their recent possession by the i accused. It is not a reasonable explanation on the part of the accused to deny the existence of these facts. The explanation which renders the presumption unavailable to the prosecution is an explanation of how articles belonging to the complainant are found in the possession of the, accused shortly after they had been stolen from the possession of the complainant. It is only when the explanation offered by the accused is with regard to that possession, that the presumption does not arise.

An illustration of this is to be found in Meghu Chamar and Another Vs. Emperor, which was decided by the late Chief Justice with Manohar Lall J. The facts were that the accused was found in possession of a locked box containing articles which had recently been the subject-matter of a theft. The explanation of the accused was that he had received the box in good faith from the other accused who had asked him to keep it temporarily with him. There was no evidence that this accused knew that theft had been committed or as to what was in the box. It was held that, in the circumstances, the onus of proving that the accused knew that the articles were stolen property was on the prosecution and had not shifted to the accused, it being pointed out that the onus never shifts to the accused in a prosecution. The decision referred to by counsel for the appellant, Meghu Chamar and Another Vs. Emperor, was a case in which the verdict of the jury was set aside because the Judge had omitted to direct them that when the accused has offered a reasonable explanation of his possession of property belonging to the complainant, there is no presumption that he knew it to be stolen property.

It was next contended that even though the presumption u/s 114 be available to the prosecution, in the circumstances of this case the only inference that should be drawn is that the appellant knew that the articles in question were stolen and not that they had been stolen at a dacoity. The essence of the presumption, in my view, is that when the essential facts relating to the ownership, theft and possession of the articles have been established, the Court may infer that the accused knew how they have been removed from the possession of the owner. Illustration (a) to Section 114, of course, only mentions a case of ordinary theft; but it is well-established that its principle applies not only to cases of ordinary theft, but to cognate offences such as dacoity and robbery. The position, therefore, in my opinion, is that when the necessary facts have been established from which the ''presumption may be drawn, the presumption that should be drawn is that the accused knew of the manner in which the articles in question had been taken away from the possession of the owner, that is to say, in a case of ordinary theft that they had been stolen, and in a case of dacoity that they had been stolen in the course of a dacoity.

In my opinion, therefore, the learned Judge in the Court below rightly convicted the appellants u/s 412; and the sentence of seven years for that offence is not too severe in view of the prevalence of dacoity in this province, and the assistance which receivers of property stolen at dacoities afford to people who take part in this type of crime. The appeals are dismissed.

Bennett, J.

I agree.