Khatir Jama Khan and Another vs Emperor

Scroope, J.—These two Rules have been obtained by the petitioner in respect of conviction and sentences in two separate trials passed by the Sub-Divisional Magistrate of Begusarai. These were two burglaries, one on the night of the 13th June in the house of a local zemindar of Begusarai Jagarnath Singh, and the other on the night of the 4th July, 1929, in the shop of one Harbans Lal a jeweller of Begusarai and as a result of a confession made by Suraj Sekhar Singh the properties stolen in both the burglaries were recovered, and the present petitioner with Suarj Sekhar Singh and others with whom we are not concerned was placed on his trial in two separate cases in respect of each burglary. In respect of the former he was convicted under Sections 414, 457 and 380 of the Indian Penal Code by the Sub-Divisional Magistrate of Begusarai and received respectively under each section. (1) three months'' rigorous imprisonment and a fine of Rs. 200, (b) eight months'' rigorous imprisonment and (c) three months'' rigorous imprisonment and a fine of Rs. 200, that is, in all fourteen months'' rigorous imprisonment and a fine of Rs. 400. The conviction and sentence u/s 414 were set aside by the Sessions Judge of Monghyr, but he maintained the conviction and sentence under Sections 457 and 380 of the Indian Penal Code. In respect of the second burglary that of the 4th July the petitioner also received three sentences under Sections 457, 380 and 414 of the Indian Penal Code (a) rigorous imprisonment for a period of eighteen months, (6) rigorous imprisonment for six months and a fine of Rs. 500 and (c) rigorous imprisonment for six months and a fine of Rs. 1,000 totalling in all twenty-four months rigorous imprisonment and a fine of Rs. 1,500. The Sessions Judge of Monghyr set aside the conviction and sentence u/s 414 but maintained the convictions under Sections 457 and 380 as well as the sentence of imprisonment, but he also set aside the order of fine passed u/s 380 of the Indian Penal Code. The conviction in both cases raises the question of the admissibility against the petitioner of the confession made by his co-accused Suraj Sekhar Singh which is in evidence in both the cases, and the learned Sessions Judge very properly took the view that confession implicating a co-accused required corroboration if a co-accused is to be convicted on it, this has been held in a series of decisions and I will only refer to the cases of Emperor v. Lalit Mohan Chukerbutty 10 Ind. Cas. 582 : 38 C. 559 at p. 588 : 15 C.W.N. 593 : 12 Cr.L.J. 286, Queen Empress v. Khandia 15 B. 66 and Gangapa Kardepa v. Emperor 21 Ind. Cas : 38 B. 156 : 15 Bom.L.R. 975 : 14 Cr.L.J. 625. The learned Assistant Government Advocate cites the case of Sheonarain Singh and Another Vs. Emperor, in sup-port of his contention that an accused can be convicted on a confession made by his co-accused. Assuming the correctness of the learned Assistant Government Advocate''s contention I see nothing in the present confession to lift it out of the ordinary ruck of confessions that are covered by the series of cases referred to above. The confessing prisoner has several previous convictions, so, obviously his character is not such as to lend any exceptional value to his confession.

Taking first Reference No. 14 of 1930 there is corroborative evidence as the petitioner was found wearing a chaddar which has been identified as part of the property stolen in the burglary. It is contended that the evidence establishing indentification of the chaddar is inadequate but both Jagarnath Singh and Brahamdeo Singh who were the victims of the burglary identified it as also did their dhobi Jaddu Apparently both Jagarnath Singh and Brahmdeo Singh are men of position and they showed discrimination in their identification as pointed by the learned Sessions Judge. The rebutting evidence as to the identification called by Khatir Jama Khan petitioner has, in my opinion, rightly been disbelieved by both the Courts below, and the fact that a person is found in possession of the stolen property shortly after the theft raises the presumption that he took part in the theft. Apart,, altogether from the confession which is to the effect that the petitioner took part in the burglary the conviction of the petitioner must be held correct on the facts but separate consecutive sentences under Sections 457 and 380 cannot be passed. See Queen v. Sreemunt Adup 2 W.R. Cr. 63, Queen v. Sahrae 8 W.R. Cr. 31, Jogeen v. Nobo 6 W.R. Cr. 48, In Re: Mussahur Daoudh 6 W.R. Cr. 92, Queen v. Chytum Bowra 5 W.R. Cr. 49 and Makhru Dusadh Vs. Emperor, . I accordingly set aside the conviction and sentence u/s 380, the conviction u/s 457 is maintained and the sentence of eight months'' rigorous imprisonment passed thereunder is confirmed.

As regards Reference No. 15 of 1930 the confession has been, in my opinion, adequately corroborated. The petitioner is a resident of Basti District in the United Provinces; he has not satisfactorily explained his presence in Begusarai. Sukhan Dhanuk, a chowkidar (P. W. No. 8), met the petitioner in company with Suraj Sekhar Singh the confessing accused and two others with whom we are not concerned now at Singhouli 3 or 4 miles from Begusarai on the morning after the burglary; they told him that they were Musalmans from Muzaffarpur. On the same morning they were seen drinking at the local toddy shop; they were arrested the morning by the Police and the Sub Inspector (P. W. No. 8) states that all were more or less under the influence of liquor, and later on the same day the stolen property was produced certainly by Suraj if not by Khatir also. The explanation given by Khatir Jama Khan to Police for his presence in Begusarai was that he had come to Singhouli on an invitation given by Suraj Sekhar Singh. At the trial the petitioner denied that he knew Suraj Sekhar at all; in fact he denied that he was with him when he was arrested and said that he had come to Begusarai with another man Rasul to search for a relative who had not been heard of for over a year. In my opinion his association with the prisoner Suraj Sekhar Singh immediately after the theft and his being found drinking with him, the fact that being a man of Basti in the United Provinces ha has not been able to account satisfactorily for his presence at Begusarai, taken along with the confession leave no doubt in my mind that he was rightly convicted. It was contended that the confession must be false as according to the confession petitioner must have arrived at Begusarai at 9 p. m. on the 4th July whereas Harbans Lal the victim of the theft that on preceding evening petitioner had come to his shop and bargained for gold bangle. There may be some confusion here, but the discrepancy is not sufficient to justify rejecting entirely the evidence from the confession seeing that it is corroborated by the discovery of a large quantity of stolen property. In my opinion, therefore, the accused has been rightly convicted for this participating in this burglary but for the reasons given above the conviction u/s 380 must be set aside; the sentence of imprisonment u/s 457 of the Indian Penal Code will stand.

Adami, J.

I agree.