Joginder Nath vs State

The accused, petitioner was convicted by the trial court under Section 454 read with Sec. 380 R.P.C. and sentenced to rigorous imprisonment of

two years for both the offences separately but, the sentences were directed to run concurrently. In appeal, the sentence was reduced from two

years to one year's RI on each court under the aforesaid two sections of the penal code by the learned Sessions Judge, Jammu, vide his order

impugned in this revision, petition.

The facts of the case are that a FIR was lodged by one Tara Mani in Police Station, Saddar, Jammu on 9. 7. 1977 alleging that in his absence a

theft had taken place in his house and all the house hold goods such as sewing machines, automatic press, transistor pressure cooker, stove,

utensils, wrist watches (ladies and gents), clothings besides, were stolen. It was disclosed by the informant in his statement that the petitioner was

living as a tenant in the same house in the month of June, 1977, who was stated to have committed the offence. On 19. 6. 1977 certain goods

which had been stolen were recovered at the instance of the accused which were identified by the complainant to be belonging to him The

prosecution examined Lok Nath, wahab Din, Beli Ram, Tara Mani, Ramesh Chander s/o Durga Dass and Ramesh Chander Head Constable and

Pritam Singh. S.H.O, in support of their case. The accused denied the charges and cleaned the recovered property as belonging to him. The order

impugLed is alleged to be contrary to law and against the weight of the evidence.

I have heard learned counsel for the parties and perused the record.

Mr. Asghar, learned counsel appearing for the petitioner has submitted that mere recovery of the stolen property could not have been made a basis

for convicting and sentencing the accused under Section 457 and 380 R. P. C. He has also submitted that the Courts below have not properly

appreciated the evidence Jed in the case and thus have arrived at a wrong conclusion of facts and law.

In order to attract the provisions of Sec. 457 R. P. C. it has to be shown that the lurking house tresspass or house breaking was committed by

night in order to commit an offence punishable with imprisonment. The circumstances may justify to draw an inference that the accused from whom

stolen property was recovered had committed the offence of lurking house tresspass or house breaking by night. In the instant case, however,

there is no evidence to show that the accused had committed such offence by night inasmuch as the complainant had stated that the offence was

committed in his absence, when he had gone to Akhnoor for a period of about two weeks. It is probable that such an offence might have been

committed by the accusedpetitioner during the day. Both the Courts below have completely ignored the fact and have wrongly convicted and

sentenced the accused under Sec. 457 R. P. C.

It has also been contended teat the prosecution has failed to prove the ingredients of Sec, 380 R. P. C. warranting the petitioner's conviction and

sentence for theft in a dwelling house. The argument is without any force in as much as there is abundant evidence on record to show that the

property was stolen from the building of the complainant which was subsequently recovered at the instance of the petitioner herein. It was held in

Shivappa v. State of Mysore AIR 1971 SC 196 that if there is other evidence to connect the accused with the crime of dacoity itself, however

small, the finding of the stolen property with him is a piece of evidence which connects him, further with the crime. Such a presumption can be

drawn if the accused cannot be connected with the crime except by reason of possession of the fruits of crime The drawing of the presumption

depends upon the circumstances under which the recovery of fruits of crime are made with a particular accused. Such a presumption would be

equally applicable in a case of theft under Section 379/380 R.P.C. Orissa High Court in Panna Lal Shah v. State of Orissa 1984 ( II) Crimes 142,

held that a person who is in possession of stolen goods, soon after the theft is either the thief or has recovered goods knowing them to be stolen

unless he can account for his possession. The presumption from recent possession of the stolen property is an optional presumption of fact. The

Court has the power to convict an accused person by drawing the presumption where the circumstances indicate that no other reasonable

hypothesis except the guilty knowledge of the accused is open to the prosecution. In order to attract the applicability of presumption under Sec.

114 Illustration (a) of Evidence Act, the prosecution has to prove that the articles found in possession of the accused had been stolen and once it is

found that such property was stolen, the burden lies upon the accused to account for his possession. Such a presumption may be drawn in a case

of dacoity, theft, burglary etc. In the instant case the factum that theft was committed in the house of Tara Mani and the goods stolen were

recovered at the instance of the petitioner from his possession has conclusively been proved. The accused in, his statement recorded under Sec.

342 Cr.P.C. claimed to be the owner of the property but failed to discharge the onus to prove that the recovered property belonged to him. The

petitioner took contradictory pleas by claiming to be the owner of the stolen property and also denying its recovery at his instance. The Courts

below were, therefore, justified in drawing a presumption against the petitioner to hold that he had committed theft in the dwelling house of the

complainant and had stolen the properties recovered at his instance. The petitioner was,' therefore, lightly convict and sentenced under Sec. 380

RPC,

This revision petition is disposed of by acquitting and setting aside the conviction and sentence under Sec. 457 R. P. C., but upholding his

conviction and sentence recorded under Sec. 380 R. P. C. The petitioner shall, therefore, undergo Rigorous imprisonment for one year for

commission of offence under Sec. 380 R. P. C. as held by both suffering the sentence, if he has not already undergone.