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Judgment
388 paragraphs · 9,066 wordsJ.M. Sheth, J.—This is an appeal, filed by the appellant from Jail, against the order of conviction and sentence, passed against him in criminal
Case No. 988 of 1966, by the learned Chief City Magistrate, Ahmedabad, Shri P.M. Mehta, The appellant is convicted of an offence, punishable
u/s 379 of the Indian Penal Code and is sentenced to suffer three months'' rigorous imprisonment and to pay a fine of Rs. 100/- and in default of
payment of fine, to undergo one month''s further rigorous imprisonment.
The prosecution story is briefly stated as under:--
There is a firm, named Everest Chemical Industries, situated at Maninagar, Rambaug, manufacturing medicines. On 21st October, 1966, at about
11.00 a.m. four boxes of medicines were sent through Chhanaji Nathaji, an employee of the said firm. Three boxes were to be sent to Surat and
one was to be sent to Botad. One which was to be sent to Botad was to be sent through Bharat Transport Co., situated near Sarangpur Gate, at
Ahmedabad. The three boxes which were to be sent to Surat were to be sent to Ambika Medical Stores at Surat and the necessary slips for the
same were attached to the boxes. The said firm was a partnership firm and one of the partners was the complainant, Ratilal Amthalal. The
aforesaid four boxes were carried by Chhanaji in a hand-cart to Sarangpur Gate. He parked his cart outside Bharat Transport Co. hear Sarangpur
Gate. One box of medicines, which was to be sent to Botad was carried by him to Bharat Transport Co., leaving the three other boxes in the said
handcart, unattended to. On his return after delivering one box to Bharat Transport Co., he found his cart as well as the three boxes of medicines,
left in that cart, missing. He searched for the same, but it was in vain. He, therefore, reported about the incident to his master, Ratilal, who in his
turn, filed a complaint at Kalupur Police Station. One of the three boxes contained 50 bottles of Syrup Vasaka, valued at about Rs. 175/-. The
second one contained 44 bottles of Cough-ex, valued at about Rs. 198/- and the third contained 36 bottles of Isewhite Syrup, valued at about Rs.
153/-. On 22nd of the same month, i.e., on the next day, one police constable, Dattu of D. C. B. got information that the present appellant and the
other two named, Fata Bhikha and Dharma Shiva have committed a theft of these three boxes and they have hidden them somewhere near
Dudheshwar. Dattu conveyed that information to the Head-Constable Sukhaji, and Sukhaji incidentally caught hold of the present appellant and on
being questioned, he showed his willingness to point out the muddamal. The information was given in the presence of panehas. It was noted down
in the initial panchnama. The police and the panehas went to the place near a Chawl of Galaji near Dudheshwar at the instance of the appellant,
and in a cow-dung hill, these bottles and parts of the boxes were found hidden and they were brought out by the accused-appellant in the presence
of panehas. They were in a gunnybag in the said cow-dung hill. Panchnama Ex. 7 was drawn up. The appellant was arrested. After necessary
investigation, charge sheet was sent against him.
The learned Magistrate, relying upon the evidence of pointing out the muddamal stolen bottles by the accused, which were found hidden in a
cow-dung hill at Dudheshwar, near Galaji Chawl on a day next to the day of the offence, found that this appellant must be a thief. On the basis of
it, he convicted the appellant of the offence in question. The appellant''s version was that he had not committed any offence. He had not led any
defence evidence.
The learned Advocate, Shri M.F. Thakar, appearing on behalf of the appellant, contended that the evidence led by the prosecution was not
sufficient to hold the appellant guilty of the offence in question. The fact that the theft in question had taken place and the fact that the muddamal
bottles found, formed a part of the stolen property, are not challenged by him. There is overwhelming evidence, led by the prosecution to prove
those facts. That evidence is reliable evidence and it deserves credence. It is proved beyond reasonable doubt that the theft of three boxes,
containing bottles of medicines had taken place, as deposed to, by the complainant Ratilal. It is also proved beyond reasonable doubt that a part of
that stolen property was found from a cow-dung hill, situated near Galaji Chawl. It was in open piece of land. Those bottles were found in a gunny
bag, and also the remnants of boxes in which these bottles were kept at the time they were taken by Chhanaji in a cart, were also found from that
cow-dung hill. The stolen property has been identified by the complainant. His evidence on that point is not challenged. It is thus proved beyond
reasonable doubt that the stolen property was found on the next day after the commission of the offence from the aforesaid cow dung hill. It is
further proved from the evidence of the police head-constable, Sukhaji, Ex. 8 and panch witness, Babulal, Ex. 6, that the appellant had given
information to the police head-constable, Sukhaji in the presence of the panehas that he would show the goods and he took the police and panchas
at this cow-dung hill, situated near Galaji Chawl near Dudheshwar. It also appears from the evidence of this panch witness Babubhai that it was
appellant who took out these bottles etc. from that cow dung hill. It is true that this had been done on the very next day after the commission of the
offence in question. It is only on this evidence that the appellant has been convicted of the offence in question.
4A. It is significant to note that no statement is made by the appellant that he was the author of concealment. It is not stated by the police head-
constable, Sukhaji or the panch witness Babubhai or the police constable Dattu that the appellant gave the information that he had hidden these
articles which formed a part of the stolen property at the place pointed out by him and wherefrom he produced these Articles.
The interesting question that arises for determination in this appeal is whether from this evidence only, it can be said that this appellant was in
conscious possession of the stolen Articles and if so, the presumption can be raised against him in view of the illustration (a), given in Section 114
of the Indian Evidence Act, that he was a thief. It could without any hesitation, in my opinion, be said that the conviction of the appellant is based
on circumstantial evidence. There is no direct evidence to prove the guilt of the appellant. It is a well-settled position of law that conviction can be
based on circumstantial evidence, only if that evidence is incompatible with the innocence of the accused. In my opinion, it could also be said that
this evidence is the evidence of the conduct of the appellant which may be admissible evidence u/s 8 of the Indian Evidence Act. It could be said
that this evidence was admissible u/s 27 of the Indian Evidence Act.
The learned Assistant Government Pleader, Shri G.T. Nanavati, appearing on behalf of the respondent-State, seriously contended that this was
not a mere case of producing stolen articles. It was not a mere case of pointing out the place where the stolen articles were found. It was a case
wherein certain information was given and on the basis of that information, discovery was made and that discovery was coupled with a
circumstance of production of concealed articles by this very appellant who had given that information. He, therefore, contended that in such a
case, where the articles were concealed in a cow dung hill, which cannot be easily seen by other persons, it should be presumed that this appellant
was in exclusive possession of it. It was on the basis of his exclusive knowledge. Once it is found that he was in conscious possession of those
articles, presumption can arise in u/s 114 of the Evidence Act in view of the illustration (a), given in that section, that he was a thief, the reason was
that his possession of stolen articles was very recent. I have not got the slightest hesitation in accepting his argument that if the appellant is found in
possession of the stolen property, his possession being very recent, the provisions of Section 114 of the Evidence Act, can be pressed into service.
That section runs as under:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the particular case.
The illustration (a) given in that Section states that the Court may presume that a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It is, therefore, evident that if the
appellant is found in possession of this stolen property soon after the commission of the theft, the Court can presume that he is a thief. For
attracting the provisions of this section, it must be first proved satisfactorily that the appellant was found in possession of stolen goods after the
theft. It is also true that what is to be proved is the possession of the stolen articles and not the possession of the place wherefrom these stolen
articles were found. The argument of the learned Asstt. Government Pleader, Mr. Nanavati, that the fact that this cow dung hill was situated in a
place which was not in possession of the appellant, has not got a very material bearing on the question of possession of articles by the appellant, is
no doubt well founded. Even if the place, wherefrom such articles are found, is accessible to others and is not in exclusive possession of the
appellant, the appellant may, in given circumstances, be in exclusive possession of those articles. It could also be said that if the appellant had given
an information that he had hidden these articles and as a result of the information given by him, these articles were discovered therefrom, he Could
have been said to be in possession of those articles and the presumption contemplated u/s 114 of the Indian Evidence Act, could have been raised.
If in that case, the appellant was not in a position to account for his possession, it could have been presumed that he was a thief or a receiver of
stolen property. The argument canvassed before me by the learned Assistant Government Pleader was that in view of the fact that the appellant
gave this information, namely; of showing the goods, as deposed to, by the panch witnesses and he took the panchas and the police to this cow-
dung hill and there he himself produced these concealed articles, which were admittedly the stolen articles, a presumption could arise in view of the
provisions of Section 114 of the Indian Evidence Act that the appellant was in conscious possession of these articles and as his possession was
recent and he had not accounted for his possession, he can be presumed to be a thief. In short, his argument was that this was not a mere case
where the appellant had the knowledge of the place where the stolen articles were kept. It was something more than that and hence, he can be said
to be in conscious possession of these articles. It could be in the circumstances of the case said that this fact was within the exclusive knowledge of
the appellant and unless he explains as to how he came to know about this place of concealment, it should be presumed that he must be a thief. In
my opinion, these arguments are not well founded arguments. I must frankly state that his arguments do get support to a certain extent from the
decisions relied upon by him, which I will presently refer to. Before I advert to those authorities, I would first refer to Section 8 of the Indian
Evidence Act, which is material for our purposes. It reads as under:-
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact ......... The conduct of any party or of
any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto .....
Explanation 1. -- The word ""conduct"" in this section does not include statements, unless those statements accompany and explain acts other than
statements; but this explanation is not to affect the relevancy of statements under any other section of this Act
Explanation. 2. -- When the conduct of any person is relevant any statement made to him or in his presence and hearing, which affects such
conduct, is relevant.
This section lays down that the evidence of the conduct in the circumstances referred to therein, is relevant, and that being so, such evidence will be
admissible evidence. 7. In a case in re Kirukku Mayandi AIR 1958 Mad 384, Ramaswami J. (as he then was) has made the following
observations, on which the learned Assistant Government Pleader, Shri Nanavati has laid stress:
In cases of pointing out, especially of stolen properties, the real question is not so much whether the accused was in physical possession of the
properties hidden somewhere or buried in some field as whether he was the person that so hid the properties, for a person who buries treasure in a
spot unknown to others is really in possession of it and it does not matter whether it is in a field not in his occupation or in his own house.
I am in respectful agreement with these observations made. It is further observed therein as under:--
A person is said to be in possession of a thing when the facts of a case are such as to create a reasonable expectation that he will not be interfered
with the use of it. Thus, a person who hides a thing is in possession of it because he gains thereby a reasonable guarantee of the use of it. Then if
the accused does not satisfactorily account for its possession, mere denial of theft or possession is not explanation and the presumption u/s 114,
Evidence Act, can be drawn against him.
I am also in respectful agreement with these observations made. Thereafter, the following observations are made:
The question whether the person who has pointed out has not himself hidden it is purely a question of fact. If the Court comes to the conclusion on
the facts that the accused has hidden the property in question, one important step in resorting to the aid of illustration (a) to Section 114 of the Act
is satisfied, viz., possession.
I am also in respectful agreement with these observations made. It is further observed that :
It is not the law that the accused must positively prove his explanation. It is enough if his explanation is found to be reasonably true. No weight will
be attached to the explanation however, if it is unreasonable or manifestly inadequate or improbable on the face of it.
In the body of the judgment at page 386, in paras 12 to 14, certain observations have been made, on which reliance is placed by the learned
Assistant Government Pleader, in support of his arguments. They can be referred to, with advantage at this stage:--
In cases of pointing out especially of stolen properties, the real question is not so much whether the accused was in physical possession of the
properties hidden somewhere or buried in some field as whether he was the person that so hid the properties, for a person who buries treasure in a
spot unknown to others is really in possession of it and it does not matter whether it is in a field not in his occupation or in his own house. The
person who hides a thing has possession of it for he has both the Aninaus and the Corpus.
Possession is acquired whenever the two elements of corpus and animus come into co-existence. Salmond defines the possession of a material
object as the continuing exercises of a claim to the exclusive use of it. A person is therefore said to be in possession of a thing when the facts of a
case are such as to create a reasonable expectation that he will not be interfered with the use of it. Thus, a person who hides a thing is in
possession of it because he gains thereby a reasonable guarantee of the use of it. Then if the accused does not satisfactorily account for its
possession, mere denial is not explanation ......
The clinching question, therefore, as mentioned by Mr. Y.S. Rao in his valuable monograph -- Circumstantial and Presumptive Evidence -- Page
119 & foll., in cases of mere pointing out is, whether the person who has pointed out has not himself hidden it and this is purely a question of fact.
If the Court comes to the conclusion on the facts that the accused has hidden the property in question, one important step in resorting to the aid of
illustration (a) to Section 114 of the Act is satisfied, viz., possession. The line of inquiry as to whether the accused person who pointed out the thing
was the person who had hidden it is very clear.
The difficulty with regard to the place where the property is found, being a public place or a place not in the control of the accused .... .is got over
if the property is found to be so carefully and cautiously hidden away from human gaze that a member of the public could not possibly know of its
presence there and it therefore leads to the inference that the person who knows its whereabouts is the person who secreted it there.
These observations indicate that on account of certain circumstances found, it can be undoubtedly said that the person who knew the whereabouts,
must be the person who secreted it there. In short, the circumstances must be such as to point to one conclusion that he must be the person who
had hidden those Articles at the place and that question is a question of fact.
It has been further observed therein as under:--
It is upto the investigating officers to question the accused as to the details of the exact location of the secreted article and to lead evidence as to
the secrecy of the place, the correspondence between the details given out by the accused and the actual finding of the article, and the case with
which the accused got straight to the point at which the article was concealed, in order to show that the accused must have dealt with the object to
justify the knowledge displayed. The detailed knowledge of the location of the secreted object will serve to displace other hypothesis that may be
possible though not probable.
The hypothesis that some one told the accused of the place of secretion is displaced by the very knowledge displayed, for it is unnatural that such
details of secretion would be conveyed to another out of mere idle curiosity. Finally this hypothesis is totally vacated ''if the accused does not
reveal the name of the person who has imparted to him this precious information, for it is impossible to believe that the accused is prepared to lose
his life or liberty for the sake of his friendly obligation to keep the secret, nor is it reasonable to expect any sense of moral obligation in one who
has not moved the authorities in the matter till he was himself suspected and questioned''.
With great respect to the learned Judge, I beg to defer from these latter observations made by him, which are underlined by me (here kept in single
inverted commas), in my opinion, there is no obligation for an accused to reveal the name of the person who has imparted to him this precious
information and in case he does not choose to reveal that information, and keeps mum, any inference can be drawn against him in a trial for a
criminal offence. It will be against the fundamental principles of criminal jurisprudence. If the circumstances are such that from those circumstances,
one could come to only one conclusion that he was the author of concealment, no doubt, on such circumstantial evidence, it could be reasonably
said that he was found in possession of these articles. The reason being that the circumstances were such from which it could be said necessarily
that he must have hidden those articles.
It has been further observed therein as under:--
The only other hypothesis is that he managed to see the actual unknown criminal hiding the thing. The very knowledge exhibited by the accused is
again an infirmity of this hypothesis, for criminals do not secret things unless they make sure that they are not being observed. If the possibility is still
to be considered that the real criminal hid the object without knowing that another man was watching him, the very detailed knowledge of the
actual place of secretion displayed by the accused person is again an infirmity of this hypothesis, unless it is to be believed that the accused
examined the place and the thing hidden after the criminal left the place.
If so, the pertinent question would be why the accused did not bring the matter to the notice of the authorities like an honest man, and if it is a
valuable property and he is not honest why he did not appropriate it himself immediately and forestall the real criminal but was waiting till he was
himself suspected and questioned. The irresistible conclusion can only be either that the accused was the real offender or at least an accessory after
the fact. Not having revealed the principal offender if he was ''an accessory after the fact, he must be the principal offender himself, at least one of
the principals''.
With great respect to the learned Judge, I am of opinion that the reasoning made in the observations underlined by me (here in inverted commas)
does not appear to be very sound. No such duty is imposed upon the accused to reveal the principal offender. If he was an accessory after the fact
and he does not reveal the principal offender, it cannot be necessarily said that he must be a principal offender himself or at least one of the
principals. In my opinion, certain observations have been made in that decision which are very general. It may be correct to say that the
circumstances proved in that case may be sufficient to come to a conclusion that a person charged with an offence of theft, must be an author of
concealment. In that case, there were other circumstances to justify the conclusion. In this para 14 of the judgment, at page 387 the following
pertinent remarks have been made, which can be referred to, with advantage at this stage:
A further circumstance that fortifies this line of inquiry is the multiple discovery. If the accused points out not one incriminating object but a number
of them and in different places and under different conditions, the suggestion that the accused might have managed to follow the criminal unnoticed
at every stage and obtained a detailed knowledge of every article secreted is, to say the least, fantastic. Above all, it is difficult to understand how
the accused was able to know what object would be found in any particular spot and how the object was connected with the crime with reference
to which he was able to offer to point out when questioned by the police officer. It is, therefore, not correct to brush aside every case of mere
pointing out as a case of mere innocuous knowledge.
It will be significant to note that in that case, several Jewellery articles were stolen. They were found from different persons at different places and
the places were pointed out by the accused. He had also pointed out the place -- the exact spot where the ornaments were buried and the articles
were dug out form beneath the ground. In view of those circumstances, it was found that he was in possession of those articles and that possession
was recent and he did not account for possession. He was therefore convicted of the offence in question.
In the same Volume, there is another decision, given by In Re: Murugan alias Thannasi, . It has been observed as under:--
It is quite true that exclusive possession cannot be brought home to an accused if properties are discovered in open places equally accessible to
members of the public as a result of the information given by him. But at the same tune, if the property is found to be so hidden away that no
ordinary member of that public could know of its existence there, the fact that it is on that particular person''s information and pointing out
unaccompanied by any explanation of innocent knowledge, the incriminating article was discovered and recovered would lead to the presumption
that he is the person who had secreted it there. It unmistakably shows that the accused was proceeding to the felony.
The facts in that case were as under:--
The particular discovery made was as a consequence of the information given by the accused and his pointing out the spot wherein he had buried
M. O. 1 with fermented wash.
That would probably suggest that he had given an information that he would point out the spot wherein he had buried M. O. 1 with fermented
wash.
It is further observed therein as under:--
But for this accused pointing out the spot the Sub-Inspector would never have been able to effect the recovery of M. O. 1. In fact the accused
had all the wide open space of the village to secrete the pot with the fermented wash apart from the other imaginable places where such secretion
could be made, The Sub-Inspector might even spend weeks without being able to spot out this secret hiding place. In Ramkishan Mithanlal
Sharma Vs. The State of Bombay, , it was held that where evidence was given by a police officer that in consequence of a certain statement made
by the accused and at the instance of the accused a tin box was dug out of a mud house and the nature of the statement made or information given
by the accused was not sought to be proved (as here). Section 27 of the Evidence Act was not attracted and prima facie there was nothing to
prevent the evidence being admitted against the accused concerned. It is quite true that exclusive possession cannot be brought home to an
accused if properties are discovered in open places equally accessible to members of the public as a result of the information given by him ......... if
the property is found to be so hidden away that no ordinary member of the public could know of its existence there, the fact that it is on that
particular person''s information and pointing out unaccompanied by any explanation of innocent knowledge the incriminating Article was discovered
and recovered would lead to the presumption that he is the person who had secreted it there.
It unmistakably shows that the accused was proceeding to the felony; Sher Mohd. v. Emperor AIR 1945 Lah 27 , Mt. Jamunia Partap v. Emperor
AIR 1936 Nag 200 = 37 Cri LJ 1047; pointing out is evidence of conduct u/s 8, Indian Evidence Act, where an accused gives information leading
to discovery, and the exact spot where the ornaments were buried is shown and the articles dug out by him from beneath, the question is not so
much whether the accused was in physical possession of the ornaments buried in the field, though as a matter of fact a person who buries treasure
in a spot unknown to others is really in possession of it, whether it is in a field accessible to every one or in his own house.
The important point is that the circumstances and conduct of the accused point clearly to his knowledge of the exact spot where the ornaments
were and in the absence of any explanation the reasonable inference is that he put them there himself. Such conduct taken in conjunction with other
evidence is enough to warrant a presumption of complicity in the offence.
If we now bear in mind all these observations made by Ramaswami J. it appears that the ratio was that if circumstances and conduct of the
accused, pointing clearly to his knowledge of the exact spot where the ornaments were and in the absence of any explanation the reasonable
inference would be that he put them there himself and if there is such conduct, and if it is taken in conjunction with other evidence, it would be
enough to warrant a presumption of his complicity in the offence. If there was only such conduct evidence, in my opinion, no such presumption of
the appellant''s complicity in the crime could be raised. Such a piece of circumstantial evidence can be explained on any rational hypothesis. Let us
take an illustration for explaining the same. A friend or a relation of the accused has committed a theft and that relation or a friend conceals those
articles in a place, like a place in the present case, to the knowledge of the accused. The accused can, therefore, in the aforesaid circumstances,
point out the exact spot if he has minutely observed it and can take out the articles therefrom. Could it, therefore, on such pointing out a place and
producing the articles therefrom, be said that the appellant must be a thief. Could it be said that he must be an author of concealment Such
conduct, therefore, can be explained on this reasonable hypothesis. As one has to base conviction on circumstantial evidence, the circumstantial
evidence must be incompatible with the innocence of the accused and should point to only one conclusion, namely, about the guilt of the accused.
That being not the position in the instant case, in my opinion, the appellant cannot be convicted of the offence in question on this piece of evidence
only.
The learned Assistant Government Pleader, Shri Nanavati also invited my attention to a case of Moti Lal Vs. The State, . The relevant
observations made in paras 21 and 23 of the judgment at page 60 are as under :--
Now the question arises whether the utensils taken out from the Sota by Moti Lal could be held to be in possession of Moti Lal from the simple
fact of his going alone to the Sota and taking out the utensils from the place of concealment in the Sota. In my opinion, it is right to hold that Moti
Lal was found in possession of the stolen utensils. The Sota was a public place no doubt not in the exclusive possession of Moti Lal. But here we
are not concerned with the possession of the Sota; we are here concerned with possession of utensils.
The utensils were kept in a hidden place and, according to the evidence of P. W. 5 as quoted above, by me, other persons who were asked to
take out the utensils from the Sota failed, it was Moti Lal who went and brought the utensils out. It was, therefore, within his exclusive knowledge
as to where the utensils were kept concealed in the Sota. From this fact of knowledge, an inference can be drawn u/s 114 of the Evidence Act, in
absence of any other thing on the record to show as to how Moti Lal had knowledge of these things, that he had knowledge because he kept them
there and, therefore, he had control ever those articles and had the conscious possession of them. I may quote a sentence from Halsbury''s Laws
of England, 3rd Edition, Vol. 10, at page 811, where while considering the possession of stolen properties it has been said:
''It is unnecessary to prove a manual possession of the goods by the prisoner; it is sufficient that they were under his conscious control, or, that he
is in joint possession with the thief As soon as it is held that the utensils were in possession of the petitioner, Illustration (a) of Section 114 of
Evidence Act is attracted, and the stolen articles being found in possession of the petitioner soon after the theft it must be presumed in the
circumstances of this case that Moti Lal received the goods knowing them to be stolen because he did not account for his possession. A
controversy has arisen in some of the cases and the point was argued by Mr. Nageshwar Prasad also before us as to whether mere knowledge of
the fact as to where the stolen goods were kept can necessarily lead to the inference that they were in possession of the person having that
knowledge.
On this question, in my opinion, every case will depend upon its own facts. There may be cases where a court may not be justified in presuming
possession of the person who had mere knowledge of the articles placed but there may be cases where the articles are concealed in a place about
which the particular person bad the knowledge and it may be assumed in such cases that the articles were in his possession. I may in this
connection refer to the case of Emperor Vs. Chavadappa Pujari, . In this case a reference is made to an unreported Bench decision of the Bombay
High Court in Rama Balappa v. Emperor, Criminal Appeal No. 291 of 1943, D/- 11-11-1943 (Bom), where it was held that, though the place in
which the property was found buried did not belong to the accused, the very fact that he knew that the property was buried there would justify the
presumption that he was in possession of it since he would be able to exercise control over it and remove it any time he liked.
Divatia J., distinguished this unreported decision and took a different view on the facts and be the circumstances of the AIR 1945 Bom case. But
Lokur J. who was a party to the unreported Bombay case and was also a party to the AIR 1945 Bom case stuck to his view. I would, with
respect, follow the decision of the earlier unreported case. I may in this connection also refer to reported case of the Madras High Court by Rama-
swami J. sitting singly, reported in In Re: Murugan alias Thannasi, .
I now propose to refer to a case Emperor Vs. Shivputraya Baslingaya, . A Division Bench of the Bombay High Court has made the following
instructive observations therein:
The mere fact that an accused person points out the place in which the stolen property is concealed does not give rise to any presumption u/s 114
of the Indian Evidence Act, or justify his conviction of the offence of receiving stolen property, still less of the offence of theft or dacoity.
The learned Assistant Government Pleader tried to distinguish that case on the ground that it was a case of mere pointing out a place where the
stolen articles were, and there was no evidence that the person charged with the offence, himself produced those concealed articles therefrom.
At pages 577 and 578 (of Bom LR) --(at p. 246 of AIR), the following observations have been made:--
The evidence with regard to the production of the stolen articles by accused Nos. 1, 3 and 4 does not show that the articles were produced from
their possession. All that it amounts to is that those accused along with accused No. 2 pointed out places where the stolen articles were concealed.
The only value that could be attached to the discovery of these articles would depend upon any relevant statements the accused may have made
which led to the discovery. It is not shown from the evidence what statement each of the accused made which led to the discovery of the articles.
Under these circumstances we cannot say that the jury was wrong in not attaching importance to the discovery of the articles made in consequence
of the accused Nos. 1 to 4 having pointed out the places where the articles lay hidden. Where the articles are not shown to have been in the
possession of the accused, no presumption would arise that they had come by it by means of an offence.
In the judgment of Broomfield J., at page 580 (of Bom LR) = (at p. 248 of AIR), similar observations have been made. At page 581 of Bom LR
= (at p. 248 of AIR, the following observations have been made.
Exhibit 21, the Police Patil, says that the Sub-Inspector came and questioned the accused. They gave some information and offered to point out
the place where the property had been hidden. The Sub-Inspector Exhibit 25, says similarly: ""Accused Nos. 1 to 4 came. I questioned them. They
gave me information and offered to point out the places where the stolen property had been concealed."" He then goes on to say that each accused
independently pointed out the same place. The panch witness Gangappa Exhibit 15 says: ""The first four accused led us to the places where they
said they had secreted the ornaments. They took us to a place near the Paul''s tank. There was nearby a prickly pear hedge. They could not be
seen from outside. All the accused pointed out the same place as the one where they had secreted the stolen, jewellery.
It thus appears that in that case also, there was not merely pointing out a place wherefrom concealed stolen articles were found. There also, the
offenders had taken the police and the panchas to that place which was a prickly pear hedge and therefrom, produced the stolen articles. It was
held by a Division Bench of the Bombay High Court that the evidence was not sufficient to hold the offenders guilty of the offence in question.
In a case of Emperor Vs. Chavadappa Pujari, , Divatia J., who was one of the members of a Division Bench, at pp. 296, 297 and 298, dealt
with this topic. It has been observed as under:--
As against the non-confessing appellants, the only evidence is the production of property and, in the case of some of them, the three confessions in
which they are said to have taken part in the dacoity. The latter evidence cannot be regarded as substantive evidence against them. At the most it
may be taken into consideration, if there is other independent and reliable evidence to connect them with the crime. In all cases, the stolen
properties produced by the accused have been identified by the complainant and members of his family. The main question, therefore, is whether
each appellant was in possession of stolen property, and if so, what presumption can be drawn against each from the fact of such possession under
illustration (a) to Section 114, Evidence Act. That illustration describes a person in possession of stolen goods soon after the theft as a thief or a
receiver of stolen property unless he accounts for his possession. The illustration is not exhaustive but only indicative of the general principle
embodied in the section that in making presumptions the court should have regard to the common course of natural events and human conduct in
their application to the facts of a particular case. However, the illustration has become the basis of a large number of decisions which are not
altogether uniform in their application of the presumption underlying it. It is, therefore, necessary to consider when and in what manner the
presumption would arise.
The condition precedent for the application of the illustration is that the accused must be in possession of stolen goods. Where they are on the
person of the accused, as in the case with accused 11, or in the houses or fields exclusively occupied by them, as is the case with several accused
in the present case, there can be no doubt that they must be deemed to be in their possession. But in quite a number of cases--and some of the
accused before us come under that class--stolen property is produced without making any incriminating statement from a place which is not
exclusively occupied by them or which is of the ownership of another person. In such cases a good deal depends upon whether the production
was accompanied by information given by the accused in custody as would be admissible in evidence u/s 27, Evidence Act. Under that section so
much of the information as relates distinctly to any fact thereby discovered and deposed to in Court would be admissible. Such information can be
relied upon by the prosecution as incriminating evidence against the accused along with the production or discovery of stolen property. But the
production of property by itself would not necessarily prove his possession. It would at the most show that he had knowledge where the property
was kept or concealed. Thus, where it is proved that the accused made a statement to the effect that ''I have concealed the property at a particular
place and I will produce it'', and if it is discovered in consequence of that statement, it would be evidence of his possession, even though the stolen
articles are kept or concealed in another man''s property, because unless he had possession he would not have kept them in that place. Where,
however, the accused, without stating that he had concealed stolen property, merely produces it from a place to which other people could have
access, it would not be sufficient to establish his possession even though the property may be concealed because it is consistent with any other
person having done so and the accused might have merely knowledge of it. The leading case on this point is the Full Bench decision in ILR (1890)
Bom 260, Queen-Empress v. Rana where the accused after stating that he had buried the property in the fields presumably belonging to other
persons took the police to the spot and disinterred an earthern pot in which it was kept: the statement was held admissible u/s 27, Evidence Act, in
spite of the fact that the incriminating statement amounting to a confession was made before the police. The statement being evidence amounted to
a proof of possession of the stolen articles by the accused. ....
The learned Government Pleader in that Bombay decision had also relied upon an unreported decision of the Bombay High Court in Criminal
Appeal No. 291 of 1943, D/- 11-11-1943 (Bom) to which a reference has been made by Ramaswami J., in the decision referred to, by me
earlier. After making a reference to that decision, the relevant observations made are as under:--
In that decision, the distinction was made between mere pointing out of property and its production from a concealed place in another man''s field.
It was held that in the latter case even though the place, in which the property was found buried, did not belong to the accused, the very fact that
he knew that the property was buried there would justify the presumption that he was in possession of it since he would be able to exercise control
over it and remove it any time he liked. In that case there was no incriminating statement made by the accused before the police, and still it was
held that the production of property by him from a concealed place in another man''s field amounted not merely to his knowledge but also his
possession. If the decision is limited to the, particular facts of the case, it may be correct, but if the observations are meant to be of general
application, I think they go too far. In absence of any incriminating statement made by the accused leading to the discovery of property, its
production alone from another man''s property would not be sufficient to establish the accused''s possession. It may at the most show his
knowledge that the property was concealed there. In my view, mere knowledge that stolen property is lying hidden somewhere is not an
incriminating circumstance for the offence of theft or receiving stolen property, and such knowledge cannot by itself raise a presumption of
possession. It is the prosecution that has to establish accused''s possession apart from his knowledge, and it is only when his possession is proved
that the accused has to account for it in order to escape from the presumption under illustration (a) to Section 114. I do not agree with the view
taken by the Nagpur High Court in ILR (1936) Nag 78 : (AIR 1936 Nag 200) that the accused''s knowledge of the concealment of articles raises
a reasonable inference that he put them there himself. That view was based on the conduct of the accused in pointing out the articles as admissible
in evidence u/s 8, Evidence Act But our High Court has held in the Full Bench decision in ILR (1890) Bom 260 (FB) that even a statement of the
accused while pointing out buried property that he had concealed the property, though admissible u/s 27 is not admissible u/s 8. Moreover, even
though conduct is relevant, such conduct unaccompanied by any incriminating statement proves merely knowledge but not possession.
These observations made by Divatia J., in my opinion, correctly lay down the position of law. I am in respectful agreement with it
The question of raising a presumption u/s 114, illustration (a), arises for consideration only after it is proved that the accused was in possession
of stolen articles, after the commission of theft. Till his possession is not proved, no question of raising this presumption will arise for consideration.
If the accused merely points out a place where the articles are hidden and produces those articles therefrom, there are several possibilities; one
possibility is that he had that knowledge of the exact spot where the articles were hidden, as he himself was an author of concealment. The second
possibility is that he may have gathered that information from a person who was the author of concealment. Another possibility that can be
envisaged is that he may have actually seen a person concealing those articles. As stated by me earlier, his seeing a thief concealing those articles
may not be objected to, by that thief, as a thief might happen to be his friend or relation. In view of this matter, it cannot be necessarily deduced
from these circumstances only that he must necessarily be a thief. His knowledge without he being a thief, from other sources referred to above,
cannot be necessarily ruled out. In my opinion, therefore, from these circumstances of pointing out the place and producing the stolen articles from
the place where the articles were hidden, it cannot be necessarily deduced that he, must be a thief. It cannot be necessarily deduced that he must
be an author of concealment. Other possibilities, referred to, by me earlier, cannot be necessarily ruled out. In my opinion, therefore, the
observations made by the Patna High Court and the Madras High Court in the decisions referred to above, if they are taken to be laying down a
proposition that this should be a necessary deduction without there being any other evidence, they would be too general observations in my opinion
as has been observed by Divatia J. in his judgment at page 287, referred to by me in the earlier part of the judgment.
The learned Assistant Government Pleader, Shri Nanavati urged that Lokur J. who was a party to the judgment of a Division Bench, has taken
a different view. The relevant observations made in the judgment of Lokur J. at page 301. (AIR 1945 Bom) are as under:--
Similar reasoning would apply to the nature of the possession of the stolen property from which the presumption contemplated by illustration (a) to
Section 114, Evidence Act, can be raised. That possession may be actual or constructive as where the accused has kept it under his control by
concealing it in another''s house or burying it underground in another''s field. Such was the case of possession in the case of Cri. App. No, 291 of
1943, D/- 11-11-1943 (Bom) which was regarded as sufficient to attract the presumption. In Emperor Vs. Shivputraya Baslingaya, and Emperor
Vs. Yeshaba Sakhoba Patil, mere pointing out of stolen property from another''s field was held not sufficient and N. J. Wadia J, distinguished them
in Cri App. No. 291 of 1943, D/- 11-11-1943 (Bom) where the accused had produced stolen property by digging it out in another''s field but
was unable to give any explanation as to how he had come to know about it. Stolen property, though not pointed out or produced by the accused,
may be found on a search in a house or land occupied by the accused either exclusively or jointly with another, or he may produce it from such
house or land or he may point it out in another''s land or house where it could be easily seen or discovered by anyone or where it was hidden
underground, or he may make some incriminating statement at the time of such production or pointing out. In each of these cases, a presumption of
guilt may or may not be drawn according to the circumstances of that case. As observed in 15 Cri. LJ 410 : (AIR 1914 Oudh 176) the principle
laid down by Section 114 is one of very wide application, which covers not merely the particular instances given in the illustrations to the Section,
but all sorts of analogous cases in which the actual facts are distinguishable from the facts presumed by any one of the Illustrations, but are equally
amenable to the general principle enunciated by the Section itself.
Applying these principles to the case against each of the appellant, I agree with the conclusions just stated by my learned brother in his judgment
and I do not wish to repeat the reasons for those conclusions. I, therefore, concur in the order proposed by him.
A careful consideration of these observations made by Lokur J. also indicates that he was also not of opinion that presumption of guilt could be
necessarily deduced in a case like the present case. Taking into consideration the view of the Bombay High Court, in the decision referred to
above, which I am bound to follow and with which I am also in respectful agreement. I am of opinion that the arguments advanced by the learned
Assistant Government Pleader, Shri Nanavati, cannot be accepted. It cannot be said that an abstract proposition of law, enunciated by him, is
justified from the view expressed by the Bombay High Court in the aforesaid decision. As stated earlier, no doubt certain observations made in the
two aforesaid decisions of the Madras High Court and in the decision of Patna High Court, do lend support to his arguments. But as stated by me
earlier, in absence of any other evidence, on mere pointing of a place where the articles were concealed, and on account of the production of those
articles therefrom, it cannot be necessarily deduced that that person must be either a thief or a receiver of stolen property. If it had been pointed
out very soon after the commission of the theft, it is a circumstance, which will raise a very strong suspicion against the man. But a strong suspicion
cannot take a place of proof in the absence of any other evidence and in the absence of any incriminating statement made, at the time of giving
information, as for example; that he was the author of concealment, this circumstance, found against that person, can be explained on any other
rational hypothesis. The position would, therefore, be that the circumstantial evidence led, was not such as to be incompatible with the innocence of
the accused. That person, therefore, cannot be presumed to be a thief or a receiver of stolen property. Bearing these principles in mind, if we now
take into consideration the facts proved in this case, it is evident that evidence is not sufficient to hold the present appellant guilty of the offence in
question. The possession of the stolen articles by the appellant is not satisfactorily established. He did not make any incriminating statement at the
time, he gave information. He merely showed his willingness to show the goods. He took the police and panchas at a heap of cow-dung and dust
and therefrom produced a gunny-bag containing the stolen muddemal bottles of medicines and remnants of boxes. As revealed from the
panchnama, proved by the panch witness, this cow-dung hill is used by Rabaris for storing cow dung and dust. That place is accessible to
anybody. It is also not a case where something was hidden under the ground so that one could even say reasonably that the appellant had the
exclusive knowledge. I am, therefore, of opinion that the prosecution has not satisfactorily established the guilt of the accused-appellant The order
of conviction and sentence, passed against the appellant therefore, cannot be sustained.
The appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. Fine, if recovered from him, is ordered to be
refunded to him. He is ordered to be set at liberty forthwith.