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Criminal Revision No. 1038 of 1961, decided on 16th May 1963.

S. 439‑Concurrent findings of fact of Courts below‑--(Recovery of 33 tolas of stolen gold)‑Upset by High Court, being of view that short sentences (one year) passed by trial Magistrate and (6 months) by Addi tional Sessions Judge in appeal, themselves raised doubt as to the satisfactory nature of evidence about recovery‑Benefit of doubt should lead to acquittal and not conviction of accused though with a short sentence‑(Accused acquitted)‑(Stolen property, however, ordered to be restored to complainant)‑Criminal Procedure Code (V of 1898), S. 517.

A. R. Niazi for Petitioner.

Altaf Sikander for A.‑G. for Respondent.

Date of hearing: 16th May 1963.

The petitioner is alleged to have robbed the complainant of 33 tolas of gold which were tied in a handkerchief by snatching the bundle from the hand of the complainant while the two of them were proceeding together at dusk through a street which is not particularly populated. It is alleged that the stolen property was recovered from the petitioner soon afterwards. The learned Magistrate believing the evidence of recovery recorded a convic tion under section 411, P. P. C. and sentenced the petitioner to rigorous imprisonment for one year. He did not convict the petitioner for robbery not being satisfied with the evidence in support of it.

1. The learned Additional Sessions Judge, in appeal, upheld that conviction but reduced the sentence to six months' rigorous imprisonment without giving any reason for doing so except that he felt like reducing it.

2. The first information report is a narrative of a robbery by a person who was not previously known to the complainant. It was mentioned in it that the victim of the robbery, namely, the complainant, was able to snatch a bag from the hand of the culprit before he ran away. It was further mentioned in it that in the bag that was snatched from the culprit there was a piece of paper on which two names figured‑one being the name of the petitioner and other the name of a person who was interrogated during the investigation as a suspect but later pro duced as a witness. From the first information report, it seems clear that whoever was making it, was genuinely complaining of the loss of property in the recovery of which be was vitally interested, and that it was not intended as an instrument of victimisation, revenge or retaliation against any particular person. From the circumstances mentioned in the report it seems very likely that the petitioner was traced through the clue furnished by the piece of paper in the bag.

3. At the trial, however, the complainant changed his stand. In his examination‑in‑chief which took place before the change, he said that the petitioner was known to him previously, though only slightly. The only question asked in cross‑examination was the contradiction between what had been stated in the first information report regarding the culprit being a stranger, and what he was saying in Court on that point. In his further cross‑examination after the charge, he stated that the petitioner was known to him for ten years and belonged to his profession. By making this statement, the complainant introduced a direct inconsistency between the position taken up by him in the first instance and that taken up by him in Court. According to the first information report, the culprit was a total stranger. If the petitioner were the reverse of a total stranger‑ namely, a previous acquaintance of ten years and a fellow artisan‑the petitioner could not be the culprit. It is this which is responsible for the acquittal of the petitioner under section 392, P. P. C.

4. The version of the recovery, as it‑ now stands, does not fit in with either the original case as it was put in the first information report or with the position taken up in Court. If the culprit was unknown and his identity was being traced through certain clues that were furnished by a piece of paper in the bag it would be unreasonable to assume that the police party, accompanied by the complainant, would, out of many streets and roads of Sheikhupura, select a particular road, go along it and find the petitioner obligingly waiting for them with the stolen property at a certain place as is stated to have been the case. The improbability of this becomes clear when it is borne in mind that the occurrence is said to have taken place at 8 p.m. The time of the making of the report given in the report itself is 9‑15 p.m. In other words, an hour and a half was taken up in going to the police station and making the report. It would be after that, that the search for the accused would begin, and if that search is based not on information as to the movements of the culprit, but as to a name appearing on a piece of paper, that search would consist in the first instance of enquiries made from someone or the other. The piece of paper bore two names. The description given against one of those names is sufficient for identification of the person and of his address. That is the person who has appeared as a witness. As regards the other name‑that of the petitioner‑no description or address is given on that piece of paper. It seems likely that, in the first instance, the person whose name and address figures on the piece of paper would be the one to be questioned and from him the clue as to address of the petitioner would, in all probabi lity, be obtained.

5. If the story be as put in Court‑namely, that the petitioner who was known to the complainant for ten years while accompanying him, suddenly snatched his gold from him and ran away, one would expect the complainant to have told every one in the street at the scene of the occurrence or in the police station, of the name and whereabouts of the culprit and they would go then after the culprit directly.

6. It seems to me that the recovery in this case, in all proba bility, took place at the instance of or on the information furnished by the petitioner after he was traced through the clue in the piece of paper, and that the investigating officers thinking that the manner in which the recovery in fact took place would not be regarded by the Courts as sufficiently establishing the exclu sive possession of the petitioner was substituted that manner by the present allegation. I do not find the evidence relating to this recovery very convincing.

7. This case presents a problem of a difficult nature. I am hearing it as a revision against the order of the Additional Sessions Judge in appeal. The learned Judge says that he is satisfied with the evidence relating to this recovery and endorses the view of that evidence taken by the learned Magistrate. The evidence is there on the record. Nothing has been brought out in cross‑examination against the veracity of the witnesses who deposed to that recovery. There is no doubt, a direct contradiction as to the place where the recovery memorandum was recorded, but whatever be the explanation for that contra diction it does not, by itself, necessarily lead, to the conclusion that the recovery did not take place in the manner alleged. The reason why I am not satisfied with that evidence of recovery arises out of a general consideration of the circumstances of this case. I am finding it difficult to answer the question whether I am entitled to substitute my own view of the evidence for the view of the evidence taken by the learned appellate Court without there being anything against the credit of the witnesses who have been believed by both the Courts below have dealt with the question of sentence in a manner which suggests that they perhaps, themselves were not entirely satisfied with the evidence, and were willing to give the benefit of such doubt as might have arisen in their minds, in the form of a reduction of sentence, inclines me not to attach to their findings the weight would normally do. I would expect a Court of law to pass a substantial sentence in the case of criminal possession of stolen property which was the subject of a robbery a little while earlier. Instead, I find that the learned Magistrate imposed a sentence of rigorous imprisonment of only one year notwith standing the fact that the value of the property would be in the neighbourhood of four thousand rupees. The learned Addi tional Sessions Judge reduced the already inadequate sentence to a period of six months. Did the appellate Court really. consider that imprisonment for six months was commensurate with the gravity of the offence of which he was finding the petitioner guilty I do not think so. It seems far more likely that the learned appellate Court was giving in the form of a reduction of sentence that which can only be given as a benefit of doubt in relation to conviction. It should be clearly borne in mind by all Courts that if there is a reasonable doubt as to the truth of an allegation, the consequence of that doubt must be reflected in the finding not in the sentence. Once a finding is given the sentence must be in accordance with the find ing whatever it is.

8. That being so, I think I should judge the evidence of recovery for myself in this case. In addition to the broad features mentioned above there is the further fact that in the memorandum relating to the recovery of the stolen gold the weights of the pieces of gold are given. The investigating officer claims that he prepared this memorandum at the place where the recovery took place. He was not asked how the weights came to be included in the memorandum, but he did say that he correctly prepared the memorandum. It is in the evidence of another witness that the memorandum was prepared at the police station which is what has been accepted by the Courts below. This circumstance lends support to the possibility that the recovery in fact took place in some other manner and the present evidence that is being put forward is an attempt to present it in a form which, it is expected by the investigating agency, would be more acceptable to the Courts.

9. In this view of the matter, I cannot allow this conviction to stand. I acquit the petitioner.

10. The order of the Courts below relating to the disposal of property shall stand intact.

11. The property in question be restored to the come plainant.

A. H. Petition accepted.

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