Rameshwari Pasi vs Emperor

Varma, J.—This is an appeal on behalf of one Rameshwar Pasi who has been convicted u/s 412, Penal Code, and sentenced to five years'' rigorous imprisonment. There was also a charge u/s 397 against the appellant but the jury re-turned a verdict of not guilty under that section and a verdict of guilty u/s 412.

The prosecution ease is that there was a dacoity in the house of one Puna Sao of village Pirautha on the midnight of 1st November 1940. The dacoits were variously armed with deadly weapons and in the course of the dacoity they assaulted the inmates of the house and carried away property worth Rs. 7000. For this the appellant Rameshwar Pasi as well as one Jageshar Singh were charged u/s 397. Jageshar Singh appealed but his appeal has been dismissed by this Court. The case for the prosecution further is that on 7th November 1940, Ganauri Pasi and Rameshwar Pasi approached Sarju Sao at Madardih and offered two pairs of gold Kanausis (earrings) for sale. The chaukidar of Madardih, happened to reach there. He is P.W. 4, Hamid Khan. Suspecting them as being persons concerned in the dacoity at Pirautha he seized the Kanausis and took the two persons to the Wazirganj police station.

The defence of the accused was that they were falsely implicated on account of enmity. In his charge to the jury the learned Judge has explained the law and then he has dealt with the case of the individual accused. As the appellant has been acquitted u/s 397, it is not necessary for me to refer to that part of the charge. But while dealing with Section 412 the learned Judge says:

The evidence consists of the testimonies of Hamid Khan chaukidar (P.W. 4), Sarju Sao (P.W. 6) and that of the Sub-Inspector of Wazirganj (P.W. 3). Hamid Khan stated that while he was passing by the lane he found Ganauri Pasi offering four gold Kanausis (Ex. 12) to Sarju Sao for sale and Rameshwar Pasi was also with him... He seized the Kanausis and took them both to the thana Sarju Sao has supported the statement of the chaukidar. Sarju Sao said that Eameshwar spoke nothing but was with Ganauri. The Sub-Inspector has deposed to the effect that he recorded the saneha (Ex. 3) and forwarded them to the Sub-Divisional Magistrate at Gaya. No Police investigation took place in connexion with this matter.

If I may say so, this is a correct summary of the evidence produced on behalf of the prosecution; but while explaining the ingredients of the offence u/s 412, the learned Judge, after explaining that it must first of all be proved that the Kanausis were properties taken during the course of the dacoity at Puna Sao''s house, addressed the jury thus: "then you have to consider whether Ganuari Pasi received or retained those articles dishonestly knowing them to be stolen property."

He pointed out quite rightly that there was no evidence to show how far Madardih was from Pirautha, and then he said what is pointed out to us on behalf of the appellant by Mr. Yasin Yunus:

There is no evidence nor any circumstance to suggest an inference that Ganauri Pasi knew that the Kanausis were stolen properties taken away at the dacoity in the house of Puna Sao. But Rameshwar Pasi who was with him may reasonably be taken to be aware of the dacoity in the house of Puna Sao. In ease you find that the Kanausis belonged to Puna Sao then the presumption would be that Ganauri Pasi is either the thief or had received the goods knowing them to be stolen unless he can account for his possession. (Illustration (a) of Section 114, Evidence Act, read and explained.) Rameshwar Pasi has not given an explanation as to how he should have been with Ganauri Pasi while he was offering the Kanausis for sale to Sarju Sao. It is therefore, for you to consider whether the inference reasonably follows that Rameshwar Pasi was an accomplice of Ganauri Pasi in the matter of disposal of two pairs of gold Kanausis. If he was then he is equally liable for the offence.

I must say that when the learned Judge told the jury that Rameshwar Pasi may reasonably be taken to be aware of the dacoity in the house of Puna Sao, he was inviting them to presume what the prosecution had to prove. Although his direction with regard to the presumption against Ganauri Pasi may be justifiable in view of the illus. (a) to Section 114, Evidence Act, yet when he said that Eameshwar Pasi had not given any explanation as to how he should have been with Ganauri Pasi while he was offering the Kanausis for sale to Sarju Sao, he implied that Rameshwar Pasi was liable to be presumed guilty of some offence unless he came forward with an explanation. Unless the prosecution prove circumstances in which by statute a person may be presumed guilty under a particular section of the Penal Code the question of presumption of guilt does not arise. In the illustration itself, it is to be presumed 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. Therefore, before any explanation could be expected from Rameshwar Pasi it was the duty of the prosecution to establish that he was in possession of some stolen property. On the facts stated it appears that it was Ganauri Pasi who was in possession of the Kanausis.

I have, therefore, no doubt in my mind that the result of the case has been affected by the misdirection to the jury. I would, therefore, allow the appeal of Rameshwar Pasi, set aside his conviction and sentence and direct that he be acquitted and set at liberty.

Rowland, J.

I agree.