Laiban Naik and Another vs State of Orissa

L. Rath, J.—The Petitioners while being acquitted under Sections 395/398/412, I.P.C. have been convicted for having committed the offence u/s 411, I.P.C. and sentenced to undergo R. I. for two years each and such conviction and sentence having been confirmed in appeal, are in revision before this Court.

According to the charge, the Petitioners were involved in a dacoity committed in the house of p.w. 1 at about 9 p. m. on 20-3-1982 to which eye-witnesses were P.Ws. I, 12 and 13. After trial, the learned Magistrate came to the conclusion that the articles in question were stolen due to dacoity by some unknown culprits and that those were recovered from the houses of the Petitioners but though these two facts were not sufficient to show that either of the Petitioners had reason to believe that the articles were transferred to them by commission of dacoity he convicted them applying the decision in State Vs. Pareswar Ghasi, , u/s 411. I.P.C. .

To bring home a conviction u/s 411. I.P.C. the ingredients necessary to be .established as enunciated in Trimbak Vs. The State of Madhya Pradesh, are:

(i) that the stolen property was in possession of the accused;

(ii) that some person other than the accused had possession of the property before the accused got possession of it;and (iii) that the accused had knowledge that the property was stolen property.

It is thus essential not only to show that the properties were stolen and somebody else had possession of it prior to its discovery from the possession of the accused but that the accused had also knowledge or reason to believe that the property was stolen. A reference to the judgments of both the Courts below does not show any discussion on the question as to whether the Petitioners \\lad any knowledge or had reason to believe the properties to be stolen and the learned Additional Standing Counsel appearing for the State also concedes that there is no evidence to establish such a finding. .

Even though the requirements of Section 411, I.P.C. are not thus satisfied yet it is urged by the learned Additional Standing Counsel that since the properties were admitted to be the stolen properties and had been recovered from the houses of the respective Petitioners, a presumption u/s 114 (a) of the Evidence Act was available to be drawn and that it was necessary for the Petitioners to have established the contrary that they had not received the properties knowing them to be stolen. Even though the occurrence was on 20-3-1982, yet the recoveries were made on 9-4-1982 i.e. after about a period of 20 days. It is his contention that the possession of the properties must be held to be recent and in support of his submission places reliance on'' Baliram Tikaram Marathe and Ors. v. Emperors and Amar Singh S/o Thakar Singh and Ors. v. The Crown AIR 1945 Nag. 1. The submission is not acceptable since such a presumption has not been drawn by the learned Magistrate or even by the appellate Court and even though it cannot be a general rule that the presumption available to be drawn cannot be drawn at the revisional stage yet I do not consider this to be one where such presumption is available to be drawn in view of the fact that absolutely no discussion has been made by either of the Courts below regarding the facts necessary .to give rise to such a presumption. . That apart, the two decisions relied upon by the learned Additional Standing Counsel are also of little help to the State. The principle applied in those cases was that where the articles stolen are such which are not likely to change hands often, possession found after one month or more can be said to be recent. But so far as the stolen articles in the present case are concerned, they being only silver and gold ring, leather money purse and gold mina etc., the same character cannot be applied to them. These articles are easily capable of being changed hand to hand and hence it would in effect result in miscarriage of justice if presumption is reached u/s 114 (a) of the Evidence Act in respect of such articles after a lapse of 20 days. The decision in State v. Pareswar Ghasi (supra) relied on is also not to the point. Merely because in that case the conviction was made u/s 411. I.P.C. the charge u/s 412 having failed there cannot be any conviction u/s 411 in the present case ipso facto. There is no universal rule that wherever a charge u/s 412 fails, conviction u/s 411 must be held to be maintainable. The Jaw is too well settled as, discussed in Trimbak v. The State of Madhya Pradesh (supra) as also in Mohanlal v. State, of Maharashtra, that until the prosecution proves the property recovered from the accused as stolen and believed by him to be stolen, the ingredients of Section 411, I.P.C. cannot be said to have been proved. In that view of the matter, the conviction and the sentence passed against the Petitioners are not sustainable.

In the result, the revision is allowed and the conviction and the sentences passed against the Petitioners u/s 411, I.P.C. are set aside: