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Criminal Appeal No. J.257 of 1961, decided on18thDecember 1961.

, S. 27‑Covers only "part" of statement leading to discovery.

, S. 411‑Discovery of stolen property at pointing out of accused "from a thick bush at call's distance from his house"‑Accused not explaining how he came by his knowledge of place of recovery‑Property presumed to be in "possession" of accused.

Sher Muhammad v. Emperor A I R 1945 Lah. 27 rel.

Das Ram Gehlaram v. Emperor A I R 1941 Lah. 471 and Emperor v. Buta Singh A I R 1917 Lah. 48 ref.

A. G. Akhund for Appellant.

Shamsuddin for A. A.‑G., for Respondent.

Date of hearing: 11th December 1961.

The appellant Jiando son of Yaqub has been convicted by the Additional Sessions Judge, Tharparkar, of an offence under section 411, P. P. C., and sentenced to 2 years' rigorous imprisonment.

2. Between the night of the 1st and 2nd September 1960 a theft took place in the house of the complainant Khan Muhammad in which certain clothes and his licenced gun with the leather belt of cartridges were stolen. The theft was discovered in the morning and two broken trunks containing the clothes were found in a field nearby. Nobody saw the thief. The report was made of this theft at the Shahdadpur Police Station at 10 a.m. on 2‑9‑60. For more than two months no clue of this theft was found by the police who had in fact written it off as an undetected crime. However, on 10‑11‑60 A. S. I. Abdul Ghafoor got information through a sepoy that the appellant was concerned in this theft. The police tried to apprehend the appellant but he was not found until 21‑12‑60 when the A. S. I. learnt that he was at the Shahdadpur bus stand. The A. S. I. reached there with police force and arrested the appellant. The appellant after having been arrested offered to produce the stolen gun and the belt of cartridges and stated that he had concealed them by the side of Jam Minor. He then led the police and the mashirs to the jungle where they all went in a tonga and there he pointed out a thick Jar bush near the Jam Minor and from the bush he produced a gunny bag which was concealed therein. This gunny bag contained the stolen gun, broken into three parts, and the leather belt of cartridges. This was seized in the presence of mashir and a mashirnama was prepared which is Exh. 10. The gun and the belt were shown to Khan Muhammad who identified them to be his and the number of the gun also tallied with the licence. The accused was sent up to the committal Court where after the necessary inquiry, the accused was committed to the Court of Session. The only evidence against the accused was of the discovery by him of the stolen gun and the belt from the bush where it was concealed. Reliance was also placed by the learned Additional Sessions Judge on the statement of the accused which was to the effect that he had concealed the gun and the belt in a Jar bush near Jaip Minor. The discovery of the stolen articles by the accused was proved by the evidence of the A. S. I. Abdul Ghafoor and the mashir Muhammad Rahim.

3. The accused denied to have produced the gun and the belt and in the committal Court he stated that the witnesses had been set up against him at the instance of one Noroo Sepoy of Shahdadpur police station who ‑was his enemy. In the Sessions Court he stated that the allegation of the discovery by him of the gun and the belt was false ; that these bad been foisted upon him on account of enmity and that be was not arrested at the bus stand but he had gone to the Court of the Resident Magistrate, Tando Adam, from where he was taken by the police and that he was implicated at the instance of one Allan who had murdered his sister and in the case arising of that incident he (accused Jiando) was a witness and Allan bad warned him not to give evidence against him.

4. Mr. Akhund, the learned Advocate of the appellant, has advanced a two‑fold argument before me. Firstly, that the story of the discovery of the gun and the belt at the pointation of the appellant is not true, and secondly that even if it was assumed to be so, no conviction under section 411 can be justified, because it had not been established that the appellant was in exclusive possession of the stolen articles. He did not contest the fact of the theft having taken place or that the gun and the belt had been stolen, or that they belonged to Khan Muhammad. These facts were even otherwise established by incontestable evidence.

5. The arrest of the appellant at‑the Shahdadpur bus stand and his having taken the A. S. I. and the mashir to the place from where the gun was discovered by him rests upon the evidence of the A. S. I. Abdul Ghafoor and the mashir Muhammad Rahim. The only criticism against Muhammad Rahim was that he bad acted as a police mashir in one or two cases before, which had been investigated by A. S. I. Abdul Ghafoor. I have carefully read the evidence of this witness and I have noticed that it is straight‑forward and the wealth of details that has been given by him in cross‑examination establishes that he had accompanied the A. S. I. and the accused to the place from where the accused discovered the stolen gun and the belt. When cross‑examined about the place where the articles had been concealed he has given a full description of it. He has also given a full description of the surroundings of the house of the accused which was at a distance of one call from the bush where the gun and the belt were concealed and which was also searched. This witness had not known the accused from before and no enmity of any kind is suggested against him by the accused. The evidence of A. S. I. Abdul Ghafoor has also remained unshaken.

6. Mr. Akhund next pointed out that the accused was arrested at about 2‑15 p.m. and the discovery of the stolen articles was made at about 3‑20 p.m. the same day, and even though the party went in a tonga there was not, according to him, enough time during which the accused could have been persuaded to make the discovery and then cover the journey of 6 miles. No doubt the time was short, but it is not known that people with a guilty mind sometimes quickly confess in the hope of being leniently treated. But the important fact is that the gun and the belt had undoubtedly been stolen from the house of Khan Muhammad and the gun and the belt seized by A. S. I. Ghafoor are the same, and if these had been seized from the possession of some body else I do not see why that person would be spared and the present appellant would be involved, particularly as he was living at a distance of about 6 miles from Shahdadpur. The accused was not bound to give an explanation as to why he was being falsely implicated in this case but he has given an explanation and that has rightly been found by the Sessions Judge to be devoid of any substance. He gave two different versions before the committal and the Sessions Courts, and beyond his statement there was nothing to show that either of these two statements had any basis. Even otherwise, the explanation was clumsy and without any plausibility. His statement that he was not arrested at the bus stand but he was taken from the Court of the Resident Magistrate, Tando Adam, is obviously untrue because the copies of the judgment in the two cases in which the accused was involved in the Court of the R. M. Tando Adam, showed that they had been disposed of in September 1960 long before the accused was arrested.

7. Mr. Akhund then urged that the police were after this accused and they had previously implicated him in two cases of theft of firearms, in both of which he was acquitted. Copies of both the judgments have been produced in this case. The first thing to be noticed is that both these cases related to the S. H. Tando Adam, with which A. S. I. Abdul Ghafoor had nothing to do. Both these cases related to incident of January 196') and were tried by Resident Magistrate, Tando Adam. In the first case, the accused was acquitted on the ground that though the gun had been discovered from his house where it had been buried, the house was not in his exclusive possession. In the second case the learned Magistrate had found discrepancy in the prosecution evidence with regard to the fact whether the rifle bad been dugout by the accused from under the kirir tree or by his brother. It must, therefore, be noticed that the discovery of the gun itself was not doubted but the accused got the benefit of doubt because the Magistrate found that it had not been established that the weapons were found in a place which was in exclusive possession of the accused. I have, therefore, no reason to hold that the police were hounding out this appellant and were determined to foist a crime upon him. I have already observed that the present case relates to a different police station.

8. I now come to the second contention of Mr. Akhund which is of a legal nature. But before I do that, I shall deal with another point, and this relates to the statement made by the accused to the police officer to the effect that he had concealed the stolen gun in a bush near Jam Minor. The learned Additional Sessions Judge has relied upon this statement and has treated this as admissible under section 27, Evidence Act. On this point I do not agree with him. Section 27 only covers so much of the it statement in consequence of which a discovery is made. In the present case, if the accused had done nothing more than made this statement it is plain to me that no discovery could have been made. Therefore, it was not the statement which led to the discovery but the fact that the accused took the police party to the spot and took out the stolen property which was concealed in a bush 6 miles away from Shahdadpur from where the party had started.

9. I will now consider the question whether upon this discovery conviction under section 411 can be based. The argument of Mr. Akhund was that the production of the gun and the belt from the bush by the accused would only prove that he had knowledge of the fact that these articles were concealed in that place and would not give rise to a presumption under section 114 of the Evidence Act that he was either the thief or receiver of the stolen property. Reliance was placed on a judg ment of the Lahore High Court reported in Emperor v. Buta Singh (A I R 1917 Lah. 48). This is what their Lordships had observed:

"The mere knowledge of the place of concealment does not necessarily lead to the conclusion that Buta Singh actually received the articles or participated in the act of concealment. The conviction in a criminal case must rest upon direct or circumstantial evidence, and it is evident that conjecture cannot take‑the place of proof."

It must be noted that in this case the prosecution case was that Buta Singh's own son Banta Singh had participated in the dacoity and had thereafter absconded. Some of the stolen articles were discovered from a pond at the pointing out of the father Buta Singh. Their Lordships in this connection observed as follows;

"It must be remembered that Buta Singh's own son was one of the dacoits, and it is possible that before absconding he informed his father of the place where he himself had concealed the stolen property."

The observations of their Lordships must, therefore, be read with reference to the particular facts of that case. But if that observation is to be read as a general proposition that the discovery by an accused person of a stolen property from a hidden place can in no circumstances give rise to a presumption that he was the thief or receiver of the stolen property then with great respect I find myself unable to agree with it.

10. The above observations were quoted in a later case reported in Das Ram Gehla Ram v. Emperor (A I R 1941 Lah. 471). But there also the facts were entirely different. There, out of the two witnesses who had deposed to the fact of recovery, one had said that the accused had dug up the earth and took out the pistol from there while the other stated that it was a sweeper who removed the earth and dug a hole where‑from the pistol was recovered. In a later case reported in Sher Muhammad v. Emperor (A I R 1945 Lah. 27), Munir, J. as he then was, gave a very lucid exposition of the subject under consideration. After considering the various hypotheses that may be possible in a case where the accused person has led the police to a place In the jungle and pointed out a spot where the stolen property or other incriminating article is dug out by the accused himself or someone at his instance, his Lordship went on to observe as follows:

"Where, therefore, the accused person gives no explanation of how he came to know of the place where the incriminating article was buried, I do not see any danger in the Court acting on the hypothesis that the accused person himself must have put the property there, if the Court arrives at this result after considering all the surrounding circumstances and the degree of probability of the other possible hypothesis."

With regard to the decision of the case reported in A I R 1917 Lah. 48 noted above his Lordship observed that the rule was therein stated "too broadly and is a definite hinderance in the way of those who in the administration of criminal justice seek guidance from circumstantial evidence."

11. With the conclusion reached by Munir, J. I am, if I may say so, in respectful agreement. It makes little difference whether the stolen property is discovered from the house or shop of the accused person or has been discovered at his pointing out from a jungle or a bush or a pond or similar other place which is not in his domain. In the latter cases if it is established that the property was so secreted that nobody else could have normally had access to it or would have known of it and if in these circumstances the accused takes the police party and produces the article from the place where it is securely hidden then if no explanation is forthcoming either in the statement of the accused or from other circumstances of the case then, in my opinion, the conclusion must follow that the accused was in possession of that article giving rise to the presumption under section 114 of the Evidence Act if other conditions are fulfilled. In the present case, the stolen gun and the belt were securely hidden in a thick bush at a call's distance from the house of the accused and he took the police party to that place and produced the articles from the place where they were so concealed. He merely denied the discovery and gave no explanation. There are no circumstances to show that these may have been hidden by a friend or relation of the accused and he may have come by this knowledge without himself having concealed them. In the circumstances of the case it may safely be held that the gun and the belt were recovered from the possession of the appellant.

12. The gun was admittedly a stolen article and it needs a licence to keep it. The fact, therefore, that it was discovered after 4 months of the theft is of not much consequence. The keeping of a stolen gun irresistably leads to an inference of dishonest retention. I am, therefore, satisfied that the appellant has been rightly convicted of an offence under section 411, P. P. C. I, therefore, dismiss the appeal.

S. B./A. H.

Appeal dismissed.

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