Sitaram Sao and Others vs Emperor

Fazl Ali, J.—This is an application on behalf of four persons who have been convicted u/s 424, I.P.C., two of them being sentenced to pay a fine of Rs. 30 and the other two to pay a fine of Rs. 40. The charge against them is that on 17th and 18th June 1932 they removed certain door frames, electric fittings, stone pavement etc., from houses the holding numbers of which are 92 and 94 and which are situated in mahalla Bakerganj, and in doing so they acted dishonestly and fraudulently. It appears that in execution of a money decree obtained by one Gajadhar Prasad Bhagat against a firm known as Kanhaya Lal Gobardhan Das an eight annas share in these two house was sold and purchased by Narain Sao. Narain Sao however made an application to the execution Court to set aside the sale, one of his grounds being that the judgment-debtor firm had no saleable interest in the property. It was during the pendency of this proceeding that the present occurrence is said to have taken place.

It may also be mentioned in this connexion that some time before the alleged removal of the articles in question a Sub-Inspector of Police had been to these houses to execute a distress warrant in order to realize a fine which had been imposed upon a brother of the first two petitioners in a criminal case. Petitioners 1 and 2 claim to be owners of a two-third share in the houses and they were not impleaded by name in the decree, in execution of which the house was purchased by Narain Sao. It is admitted that Petitioners 1 and 2 are sons of Kanhaya Lal, but the question whether the houses were the properties of the firm has not been gone into by any of the Courts below.

The only question to be determined now is whether on the facts proved in the case it can be safely inferred that the accused, when they removed the alleged articles, did so with intent to defraud the auction purchaser, Narain Sao. I assume that the articles which are said to have been removed were actually removed because that is the concurrent finding of both the Courts. The strongest argument which is in favour of the prosecution is that the first two petitioners are according to their own case entitled only to 2/3rds share in the houses and therefore ordinarily they would not be justified in removing articles which appertained to the whole house.

At the same time when the Court is asked to convict an accused person for acting with dishonest intention on circumstantial evidence alone, the evidence before the Court should be absolutely conclusive. In this case the principal accused are youths of only 16 and 18 respectively and it is contended on their behalf that they must have removed the articles in a state of nervousness, because only a short time before the occurrence some of the door leaves had been removed by the Sub-Inspector in consequence of the conduct of one of the brothers of the petitioners.

As to whether the accused had any intention to defraud Narain Sao, it is pointed out that the facts that Narain Sao himself had asserted that the judgment-debtor had no saleable interest in the house in question, and was anxious to back out of the sale, were sufficient to negative the suggestion made by the prosecution. In my opinion, in the particular circumstances of the case, it cannot be said with certainty that the accused acted dishonestly and fraudulently and therefore they must be given the benefit of the doubt and should be acquitted. I would therefore allow this application and set aside the conviction and sentence of the accused persons and direct that the fines, if paid, should be refunded.