Karnal Singh Uttam Singh Vs. State of
Maharashtra [1975] INSC 282 (19 November 1975)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
GOSWAMI, P.K.
CITATION: 1976 AIR 1097 1976 SCR (3) 747 1976
SCC (1) 882
ACT:
Indian Evidence Act Section 114-Presumption
from recent possession of stolen property - Nature of.
Criminal Procedure Code, 1898 section
342-When explanation given by the accused under s. 342 is quite reasonable and
credible and supported by other evidence in defence, Conviction and sentence
under s. 411 of the lndian Penal Code is not sustainable.
HEADNOTE:
On 4-3-1968, the date of the accident. Karnal
Singh, the accused was driving the truck No. MRS 7372. purchased out of the
loan advanced by the ex-serviceman Co-operative Society to one Sutar who entrusted
the vehicle to Balwant Singh, the brother of the appellant, a co-accused, under
a contract for hire against a monthly payment of Rs. 2000- 2200, after
incurring all expenses over the truck. The payment was regular up to December,
1967, and, thereafter, Balwant Singh avoided Sutar. Though Balwant Singh met
Sutar on 9-3 1968 and 12-3-1968 ie. after the date of accident and promised to
meet him later, The actually absconded resulting in the lodging of a First
Information Report by Sutar on 20- 4-1968 at 12.30 p.m. against Balwant Singh
Uttam Singh for taking appropriate action under s. 408, I.P.C.
Since Balwant Singh was absconding and the
vehicle was found in the possession of Karnal Singh, the police apprehended him
and filed the charge sheet. The Presidency Magistrate, 6th Court, Mazagaon,
Bombay, charged the appellant under s. 408 read with s. 114 of the Indian Penal
Code, but, actually convicted him and sentenced him to six months R.I. and a
fine of Rs. 500/- under s. 411 Indian Penal Code without appreciating the
effect of either the value of Exhibit Dl dated 12-3-1968 written by Sutar
indicating that he was agreeable to pay the total costs of the repair of the
damaged vehicle, with the admission of its execution by Sutar in
cross-examination and failure to explain these or of the explanation given by
the accused in his 342 statement to how he came into possession of the lorry
for repairing it.
The High Court mainfained the conviction and
the sentence. Allowing the appeal by special leave, the Court, F ^
HELD. (1) the presumption from recent
possession of stolen property is an optional Prescription of fact under s.
114 of the Indian Evidence Act. It is open to
the Court to convict the appellant by using the presumption when the
circumstances indicate that no other reasonable hypothesis except the guilty
knowledge of the appellant is open to the prosecution. [751-D] (2) In the
instant case, there was no mention of the appellant's name in the F.I.R. there
was no change under s 411, I.P.C. against him and he was not asked to explain
it possession of the truck, but still he did explain it. The appellant's answer
to the omnibus question under s. 342, Criminal Procedure Code, without giving
him an intimation of the offence of which he was likely to be convicted, on the
face of it, was quite reasonable and credible. The prosecution had been unable
to repel the effect of this fairly acceptable explanation. The explanation
which the appellant had given was good enough to raise serious doubts about the
susceptibility of a charge under s. 411, Indian Penal Code. The principle of
benefit of doubt on questions of fact applies whether the verdict is of a Jury
or the finding is to be given by a Judge or a Magistrate.[751,AB.E H] Otto
George Gfeller v. The king, AIR 1943 PC 211 @ 214
748 & CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal N4.
133 of 1971.
Appeal by special leave from the judgment and
order dated the 15-2-1971 of the Borrrbay High Court in Criminal Appeal No.
1354 (lf 1 969.
S. K. Gambhir and 5. M. Sikka for the
appellant.
M. C. Bhandare and M. N. Shroff for
Respondent.
The Judgment of the Court was delivered by
BEG, J. The appellant before us by special leave was charged as follows by the
Presidency Magistrate of Bombay:
"I.B. P. Saptarshi, Presidency
Magistrate 6th Court, Mazaagaon, Bombay, do hereby charge you:
Karnal Singh S/o Uttam Singh as follows:
"That you on or about the 20th day of
February, 1968 at Bombay along with one Balwant Singh s/o Uttam Singh who has
absconded, at 171, Kazi Sayyed Street, being entrusted with certain property to
wit M/Lorry No. 7372 valued at Rs. 52,000/- belonging to the complainant
Shankar Dhondiba Sutar as driver committed criminal breach of trust in respect
of the said property and aided and abetted to the absconding accused in
commission of the said offence and thereby committed an offence punishable
under Sec. 408 r.w. 114 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by me
on the said charge".
The prosecution evidence in the case was: one
Shankar Dhondiba Sutar a member of the Ex-Servicemen Transport Cooperative
Society Ltd., Bombay, had purchased the Truck No. MRS 7372 after taking a loan
of Rs. 50,000/- from the Society out of which he had paid up Rs. 43,000/-. He
had entrusted Balwant Singh Uttam Singh, the brother of the appellant, with the
truck. He had a contract with Balwant Singh Uttam Singh under which he used to
get a net income of Rs. 2000/- to Rs. 2200/- p.m. from Balwantsingh Uttamsingh
who was running the truck and seemed to be incurring all necessary expenses of
it. This amount was paid regularly upto December, 1967. Thereafter,
Balwantsingh Uttamsingh, the driver, avoided meeting the purchaser of the truck
and was said to be absconding. On 4-3-1968, the truck met with an accident and
Balwantsingh Uttamsingh is said to have sent information of it to S. D. Sutar.
On 9-3-1968, according to Sutar, Balwantsingh himself went to Sutar. And, when
the owner asked him to take him to the truck, it is alleged that he did not
comply with this request.
749 As Shankar Dhondiba Sutar had not paid up
the whole amount due for the truck which he had borrowed from the Society, the
owner of the truck, as entered in the Insurance papers, was the Society itself.
S. D. Sutar stated that he found the truck at Thana Katha where he also found
the appellant before us, Karnalsingh Uttamsingh, who had been, apparently,
driving the truck. The First Information Report was lodged on 20-4-1968 at
12.30 p.m. by S. D. Sutar. It is against Balwantsingh Uttamsingh and makes no
allegations against the present appellant. It is said that Balwant Singh
Uttarnsingh had met S. D. Sutar again on 12-3-1968 and told him that he would
turn up again. Vazir Singh Gaya Singh, PW 2, the Secretary of the Bombay
Ex-Servicemen Transport Co. deposed that S. D. Sutar was a shareholder in the
Company and proved the terms of his contract with Balwantsingh. He also made no
complaint whatsoever against the present appellant. All that he said was that
the truck was seen near Kashali Bridge and the present accused was its driver.
Sub Inspector Ramesh Damodar, PW 3, stated that, on 13-5-1968, Vazir Singh, PW
2, and a police constable brought the truck to Pydhonie Police Station and that
it was being driven by the present appellant at that time. This is all the
evidence against the appellant.
The only question that the appellant was
asked by the learned Magistrate under Section 342 Criminal Procedure Code and
the appellant's reply are:
"Q. What do you wish to say with reference
to the evidence given and recorded against you? A. I do not know whether
M/Lorry No. MRS 7372 was handed over to the complainant on sale-purchase
agreement and that the complainant had paid Rs. 43,000/ towards the instalment.
I do not know whether the price was fixed at Rs. 50,000/-. Balwant Singh is my
brother but I do not know if the complainant had given lorry in his possession
in his capacity as a driver. I do not know whether Balwant Singh left with
M/Lorry in Dec. 1967. I do not know anything about Balwant Singh not meeting
the complainant thereafter. Mangal Singh told me that this lorry had met with
an accident and that I should invest the amount over repair, and after the
amount is recovered from the plying of the lorry, the lorry would be returned
to him. It is true that Vazir Singh and one P.C. had told me to take the lorry
at the Pydhonie Police Stn. I was the driver on the said vehicle at that time.
I do not know where is my brother at present. He meets me at times. I have not
spoken to him about the case. I want to lead defence witness".
He led some evidence in defence. Mangaldas
Purshottam, D.W. 1, stated that,one Kartar Singh the driver of the truck had
sent him a Trunk Call from Jalan that the truck in question had met with an
accident on 4-3-1968 and that he gave this message to S. D. Sutar. As the
accident was serious and the damage was considerable 750 S. D. Sutar was unable
to meet with the money required to repair it. According to Vazir Singh, PW 2,
the claim against Insurance Co. was of Rs.,11000/-. According to Mangaldas, DW
1, the complainant had agreed that the appellant should repair the truck and
deduct its expenses out of the income he could make from plying the truck on
hire. He proved Exhibit 1 dated 12-3-1968 containing a writing, signed by S. D.
Sutar. It has been translated as follows:
"Ext.'1' Dated 12-3-1968.
National India Roadways, "I, shankar
Dhondiba give you in writing today that my Lorry No. MRS-7372 which had met
with an accident, I am bound to pay total costs whatever comes to of its
reparation".
Sd./- Shankar Dhondiba Sutar".
This was put to S. D. Sutar in
cross-examination. He admitted his signature under the writing and gave no
explanation about it. It is significant that it was executed on the very day on
which, according to an admission of S. D. Sutar, Balwant Singh also saw S. D.
Sutar. Perhaps the defence has also yet come out with the whole truth. It is,
however, quite inconceivable that S. D. Sutar would be completely unconcerned
as to what had happen to the truck if he had not entrusted it to somebody other
than Balwantsingh Uttamsingh for repairs to it. The matter seems to have been
report ed to the police only as a result of some quarrel or differences between
parties. Moreover, nobody would repair the truck without being paid for it. The
explanation given by the appellant was, on the face of it, quite reasonable and
credible. It was not merely supported by Mangaldas Purshottarn, D.W.l, whose
cross-examination did not elicit anything to show that he was unreliable but
also, indirectly, by Ashok Jugannath, DW2, the Superintendent of the
Commonwealth Insurance Co. `who proved the bills supplied to the Company on the
strength of which the Insurance Co. had paid Rs. 6078.35.
It was, therefore, clear that somebody had
got the truck repaired and realised the amounts to be paid for repairs from the
Insurance Company. The beneficiary of the contract of insurance was the Bombay
Ex-Servicemen Transport Co. of which S. D. Sutar was a member. Apparently, the
amount had been realised by somebody on behalf of this Company. The bills could
have been given by the appellant. In the absence of any proof as to who else
could have or had repaired the truck the version of the appellant could not be
said to be quite unbelievable.
751 A remarkable part of the case is that the
Trying Magistrate had A convicted the appellant under Section 411 Indian Penal
Code and sentenced him to six months rigorous imprisonment and to pay a fine of
Rs., 500/- when he was not even charged with this offence., The High Court had
maintained this conviction and the sentence and had not even mentioned the
defects in the trial. There was neither a charge under Section 411 I.P.C. nor
was the appellant asked to explain his Possession of the truck although he did
account for it. The appellant's explanation appeared quite plausible. It may
have been difficult to hold that the appellant could not have been prejudiced
by the omission to frame a charge or by the manner in which he was put one
omnibus question under Section 342 Criminal Procedure Code without giving him
an intimation of the offence of which he was likely to be convicted, if these
questions had been seriously raised. However, as these questions do not appear
to have been argued in the High Court and were`not even raised in the grounds
of appeal in this Court, we will not consider them further. We think that this
appeal is bound to succeed on the view of the facts we have taken above. The
presumption from recent possession of stolen property is an optional
presumption of fact under Section 114 Indian Evidence Act. It is open to the
Court to convict an appellant by using the presumption where the circumstances
indicate that no other reasonable hypothesis except the guilty knowledge of the
appellant is open to the prosecution. In the case before us, the appellant had
given a fairly acceptable explanations. The prosecution had been unable to
repel the effect of it. The owner of the truck, S. D. Sutar, had made
admissions which indicated that the prosecution case of an unlawful possession
on the part of the appellant was not likely. It is more likely that the
appellant had been entrusted with the truck in order that he might repair it
and realise the costs. However, we express no opinion on this aspect of the
matter as the sentence of such a contract may involve a civil liability. All we
need say is that the explanation which the appellant had given was good enough
to raise serious doubts about the sustainability of a charge under Section 411
Indian Penal Code on the strength of what was laid down in Otto George Gfeller
v. The King(1), the appellant was entitled to an acquittal. It was held there
(at p. 215):
"The appellant did not have to prove his
story but if his story broke down the jury might convict. In other words, the
jury might think that the explanation given was one which could not reasonably
be true, attributing a reticence or an incuriosity or a guilelessness to the
appellant beyond anything that could fairly be supposed".
In that case, the question had to go before
the Jury and the charge was found to be defective. The principle of benefit of
doubt, on questions of fact, applies whether the verdict is of a Jury or the
finding is to be given by a Judge or a Magistrate. The principle laid down in
Gfeller's case (supra) (at p. 214) was:
752 ".. that upon the prosecution
establishing that the accused were in possession of goods recently stolen they
may in the absence of any explanation by the accused of the way in which the
goods came into their possession which might reasonably be true find them
guilty, but that if an explanation were given which the jury think right
reasonably be true, and which is consistent with innocence although they were
not convinced of its truth the prisoners were entitled to be acquitted inasmuch
as the prosecution would have failed to discharge the duty cast upon it of
satisfying the jury beyond reasonable doubt of the guilt. Of the accused"
Consequently, we allow this appeal and set aside the conviction and sentence of
the appellant. His bail bonds are discharged.
S.R. Appeal allowed.
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