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Appeal No. 532 of 1956, decided on 3rd December 1957.
Recovery of stolen article from a house occupied by several persons‑Not sufficient to prove that any one of such persons guilty under S., 412.
Mere proof of the recovery of an article from a house in; the possession of several persons, not being members of a Hindu joint family, would not by itself be sufficient to establish th4t any of the persons so jointly occupying that house are guilty under section 412 of the Pakistan Penal Code.
Where the stolen articles were recovered from an open trunk inside the room of a house occupied by several persons not being members of a Hindu joint family and the prosecution led no evidence to show to whom that particular trunk belonged.
that in the circumstances, it had not been established that the appellant was in possession of the trunk from which the incriminating articles had been recovered therefore he was not guilty under section 412 Pakistan Penal Code.
Queen‑Empress v. Sangam Lal I L R 15 All. 129 ; Karam Singh v. Emperor 116 I C 718 : A I R 1929 Lah. 87 ; Dwarika Lohar and others v. Emperor A I R 1941 Pat. 225 and Subhan and others v. Rex A I R 1950 All. 180 ref.
Abdul Hakim for Appellant.
Abdul Hye Chowdhury for the State,
The sole appellant before us was tried by the learned Additional Sessions Judge, Faridpur, with the aid of four assessors on a charge under section 412 ,of the Pakistan Penal Code. All the assessors unanimously found him guilty of the said charge and the learned Additional Sessions Judge accepting their opinion convicted him and sentenced him to suffer rigorous imprisonment for four years.
2. This appeal is directed against the aforesaid conviction and sentence.
3. The case of the prosecution was that on the 19th of Magh 1361 B. S., corresponding to some time in the last week of January 1955, there was a dacoity in the but of one Nepal Chandra Mukherji, a neighbour of the complainant Abani alias Kalachand Chatterji. In this dacoity certain articles such as a brass gamla, cup, ramdao, etc., said to have been deposited in the said but of Nepal Chandra Mukherji by the complainant Abani were looted by dacoits who entered into the said but of Nepal by cutting a sindh on the eastern side of the southern verandah thereof. In one of these articles, namely, the brass gamla the name "Abani" was inscribed and on the ramdao the letters "BCK", which were said to be the initials of Abani's father, were engraved. Abani, who was P. W. 4 in this case, lodged in the information about the dacoity and in the first information report he specifically mentioned about the inscrip tions on these two articles as special remarks of identification. In the course of the investigation of that dacoity; on the ' 7th of Falgun 1361 B. S., corresponding to the 19th of February 1955, the west‑bhiti but in the homestead in which the appellant resided was searched and amongst the articles recovered from the said west‑bhiti but were a ramdao bearing the aforesaid inscrip tion "BCK" and a brass gamla with the word "Abani" engraved upon it. These articles were identified by Abani as his and there after the appellant was put upon his trial under the said section 412 of the Pakistan Penal Code.
4. At the trial, it appears the defence taken on behalf of the appellant was that he was not guilty and had been falsely implicated in this case and that the articles were not, in fact, recovered from his house but were recovered from a jungle nearby.
5 The prosecution examined some eleven witnesses to establish its case, of whom P. W. 2 was Nepal Chandra Mukherji in whose, house the dacoity is said to have been committed and P. W. 5 was his daughter, Mira Mukherji. P. W. 4 was Abani alias Kalachand Chatterji who had deposited some of the looted articles in the house of Nepal about a year ago; P. W. 7, P. W. 8 and P. W, 11 were witnesses to the search of the west‑bhiti but in question and the recovery of the articles. P. W. 3 was the Assistant Sub‑Inspector of Police who actually conducted the said search and he stated that he recovered the articles including the brass gamla and the ramdao with the inscrip tions thereon from the west‑bhiti but of the appellant on search.
He found two huts in the homestead and at a time when .he was searching the house of another suspect Kalachand Fakir, he saw the people in the bari of the accused running about and that at the time he actually arrived at the house to make the seizure and the search he found nobody present there. It was suggested to him that he did not recover these articles from the but in question but that he recovered them from the jungle. He denied this suggestion. P. Ws. 6, 9 and 10 are also police- officers who had something or other to do with the investigation of the dacoity in question. But their evidence is not very material for our present purposes.
6. Out of the search witnesses, P. W. 7 admitted in his cross‑examination that he did not know who lived in which but of the said bari in which there were actually four huts and that although he was a witness to the seizure and the search list, he found the articles on the courtyard in front .of the west‑bhiti but and he put his signature on a blank sheet of paper. P. W. 8, another search witness, stated that the articles were recovered from the west‑bhiti but of the appellant but in cross- examination he admitted that he pointed out the west‑bhiti but in which both the appellant and a younger brother of his, aged about 20 years, lived. He could not, however, name the younger brother. P. W. 11 also in his examination‑in‑chief admitted that the appellant and his younger brother, whose name he supplied as Abul Hashem, both lived in the said west‑bhiti but which was searched and from which the articles were seized. In his cross‑examination, however, he added that Elahi Fakir, a nephew of the appellant, also lived in the same but with the appellant, that the articles were found in a trunk in that huband that the trunk was found open. It was also elicited from him that there was some trouble between his father and the father of the appellant over a certain hut. P. W. 2 Nepal Chandra Mukherji, the person in whose house the dacoity was committed, was also present when the house of the appellant was searched and the articles were recovered; but he frankly admitted that he did not know the inmates of the bari in which there were, according to him, three huts, one on the north, another on the west and a third on the south. On this evidence, there can be no doubt that at least the brass gamla and the ramdao were articles which had been looted in the course of the dacoity in the house of P. W. 2 Nepal and that these articles were, in fact, found in a west‑bhiti but in the homestead in which the appellant lived, admittedly, with his brother and nephew and that they were found a little more than a fortnight after the said dacoity.
7. The learned Advocate, appearing on behalf of the appellant, however, although not conceding that these facts had been sufficiently established beyond reasonable doubt or even that the dacoity or the finding of the articles had been established accepts, for the purposes of his argument, the said findings of fact and argues that even upon these findings, the offence had not been brought home to the appellant. His contention is that since all that the prosecution had succeeded in proving was that the but in question was occupied but failed to establish the appellant's exclusive possession of the but and until such exclusive possession can be established, it cannot be said that the articles were recovered from the possession of the appellant, and further that unless they are so recovered from his exclusive possession, the inference that he dishonestly received or retained the said articles cannot be drawn. It is pointed out to us that the appellant is a Muslim. So, no question of his being a member of a joint Hindu family could arise and, therefore, there could be no possibility of even contending, as might have been done in the case of a Karta of Hindu joint family, that any articles found in the house were, at any rate, constructively also in the possession of the Karta of the joint family. Apart from that, the prosecution has not, according to the learned Advocate appearing for the appellant, produced an iota of evidence to show that the appellant was even in the position of the senior -most member of the family residing in that homestead or in the position of a managing member of that household. In the absence of such evidence, there was no possibility whatsoever of saying that the appellant was in the exclusive possession of the said hut. He further urges that the learned Additional Sessions Judge has erred grievously in law in taking the view that when an incriminating article is found in a house to which several persons have access, the natural presumption is that the house master is in possession and control of that article and this view was wrongly applied the decisions referred to by him.
8. The first case relied upon by the learned Additional Sessions Judge is the case of Queen Empress v. Sangam Lal (I L R 15All.129). In this case it was very clearly held by Knox and Flair, JJ., that where proceedings for unlawful possession of arms were taken under the Arms Act against a member of a joint Hindu family, who is not the head of such joint family, for the finding of the arms in a common room of the joint family, it is incumbent upon the prosecution to give good evidence that such arms were in the exclusive possession and control of that particular member of the joint family who is sought to be charged with their possession. In the absence, therefore, of any evidence to show that the appellant was the master of the house, the learned Judge was clearly wrong in thinking that this case laid down any wide principle that any member of the joint family may be held liable in similar circumstances if the stolen properties are found in the house occupied by him as a member of such family or in common with others.
9. The second case relied upon by the learned Additional Sessions Judge is the case of Karam Singh v. Emperor (116 1 C 718 : A I R 1929 Lah, 87). That also was a case under the Arms Act and the weapon was found in the house which was admittedly occupied by three persons, namely, the accused, his father and his wife who were members of a joint Hindu family. The father was an old man aged about 80 years. It was suggested that because of his age the father could not possibly have been in possession of the weapon. Bhide, J., however, did not accept this contention and held that, in the absence of further evidence on the point, the guilt had not been brought home to the accused in that case, particularly, as there might be a presumption that in a Hindu joint family house any article found therein would be in the possession of the head‑of the family. As we have already indicated, the present was not in a case of a Hindu joint family and, therefore, that case had also no application to the facts of this case.
10. The learned Advocate for the appellant has relied on two other decisions in the cases of Dwarika Lohar and others v. Emperor (1) and Subhan and others v. Rex (A I R 1941 Pat. 225): In that Patna case, Varma and Shearer, JJ., held that in a case where a dacoity is committed by a son, the mere fact that one of the articles taken in the dacoity is found in the house which is jointly occupied by that son and his father is no ground for convicting the father under section 412 of the Penal Code and that the presumption in such a case is that the article remained in the possession of; the son. This case is, however, distinguishable because there it was established that the son had committed the dacoity and, therefore, the presumption was that he also retained the article which was looted in the course of the dacoity.
11. The Allahabad case was a case where the appellant was a Muslim and there Chandiramani, J., held that where stolen articles are recovered from a house in which the accused and his brothers lived jointly, it is impossible to hold that the articles were in the exclusive possession of the accused and so, even if the property had been proved to be the proceeds of the dacoity, it was not possible to convict the accused under section 412,of the Penal Code. In our view also, the mere proof of the recovery of an article from a house in the possession of several persons, not being members of a Hindu joint family, would not by itself be sufficient to establish that any of the persons so jointly occupying that house are guilty under section 412 of the Pakistan Penal Code. In the present case furthermore, we may mention that according to P. W. 11 the' articles were in fact recovered from an open trunk inside that room and the prosecu tion led no evidence whatsoever to show to whom that particular trunk belonged. In the circumstances, it cannot be said that it had been established that the appellant was in any way in possession of the trunk from which the incriminating articles had been recovered. We are of opinion, therefore, that ‑the learned Additional Sessions Judge was clearly wrong in taking the view that in the present case there could be any room upon the facts proved for drawing any presumption of possession. Even upon the principle enunciated by the learned Additional Sessions Judge himself, it was clear that it was necessary for the presumption to attach that the person must be the master of the house. But there is, in the present, case, as we have already mentioned, not a shred of evidence to show that the appellant was in any way the master of the house.
12. The learned Advocate appearing for the State tried to show us that because one of the witnesses had said that the younger brother of the appellant was unmarried, therefore, there was a suggestion to the effect that the appellant was the elder of the two brothers and, as such, the master of the house. There can be no such presumption. We might point out that one of the prosecution witnesses also stated that a nephew of the appellant too lived in the same hut; but nobody gave the age of the nephew. It may well be that the nephew was older than either of the brothers and, therefore, it does not necessarily follow that because the appellant was the elder of the two brothers he was also the master of the house. If we are to convict persons on such presumptions not supported by any evidence whatsoever, we would be committing a travesty of justice.
13. The learned Advocate appearing for the appellant also argued that in the present case the prosecution had also failed to prove that the articles were dishonestly retained or received by the appellant,. and endeavoured to show us that in such circum stances the presumption under illustration (a) of section 114 of the Evidence Act could, at best, only be that he was in posses sion of stolen articles and the conviction could only be under section 411. He sought to contend that to convict of the more serious offence of being in possession of property taken in a dacoity, there must also be some further evidence, circumstantial or oral, to show that he knew or had reason to believe that a dacoity had been committed and the property had been taken in it. With regard to this contention, we might state that if it had been established in the present case that the articles recovered were in the exclusive possession of the appellant we would have had no difficulty whatsoever in drawing the inference that he also knew or had reason to believe that the articles had been taken in a dacoity having regard to the fact that, in the present case, the articles contained special identification marks and were not such articles of small size as would be taken by a common thief.
14. However, we do not wish to say anything further on this question as, in our opinion, the appeal must succeed on his first point. We hold, therefore, that on the facts proved by the prosecution in this case, it has not been established beyond reasonable doubt that the articles recovered were recovered from the exclusive possession of the appellant and, . therefore, we give him the benefit of doubt.
15. This appeal is accordingly allowed and the conviction and sentence of the appellant are set aside and he is acquitted of the charge under section 412 of the Pakistan Penal Code. We direct that he be set at liberty forthwith, if not required in any other connection.
I agree.
Z. A. S.
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