iminal Appeal No 49 of 1969
Appeal by special leave from the judgment and order dated December 2 1968 of the Allahabad High Court in Criminal Appeal No 1277 of 1968
R L Kohli for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by Sikri J
The only question which arises in this appeal by special leave is whether the appellant Sheo Nath should be convicted under section 396 IPC or section 411 IPC or section 412 IPC The facts as found by the High Court are these
A dacoity was committed at the shop of Ram Murat in Dhaneja village by 15 to 20 persons on August 19 1966 at about 1130 pm
One dacoit Ram Shankar was armed with a gun while others carried 797 spears Gandasas and lathis
During the course of the dacoity Ram Murat was injured
One Pancham who lived in a house not far from Ram Murat s shop and two others came running on heating the noise
Pancham was shot down with the gun by dacoit Ram Shankar
The dacoits then escaped with clothes ornaments cash etc looted from Ram Murat s shop
After the dacoits left Ram Murat dictated a report about the occurrence in which lie named Ram Shankar Singh Jaintri Prasad Singh Nanhe Singh and Sulai accused as having been among the culprits and this report was sent to the Jalalpur police station five miles away where it was received and recorded at 6 am next morning
On August 22 1966 ie three days after the dacoity the house of Sheo Nath appellant was searched and three lengths of cloth were recovered which were subsequently identified by Ram Murat and a tailor named Bismillah as having been stolen from Ram Murat s shop in the dacoity
The High Court agreeing with the learned Sessions Judge relied on the evidence of three eye witnesses regarding the manner in which the occurrence took place and regarding the participation of the four named accused persons
Sheo Nath had not been named by the eye witnesses or in the dying declaration of Panchain and no witness claimed to have identified him taking part in the dacoity
But relying on the discovery of three lengths of cloth and their identification the High Court convicted Sheo Nath under section 396 IPC The High Court observed  From the material on record we are fully con vinced that the Exhs 2 and 3 were stolen from the shop of Ram Murat in the course of the dacoity committed in the night between 19 to 20 August 1966 and since they were recovered from the possession of Sheonath appellant only 2 or 3 days later it is legitimate to infer that he was one of the dacoits vide illustration a to section 114 of the Evidence Act
Sheo Nath therefore has been rightly convicted under section 396 IPC The learned counsel for the appellant contends that in the circumstances of the case the High Court should not have convicted the appellant under section 396 IPC but only under section 411 IPC Section 114 of the Evidence Act and illustration a read as follows   114
The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business in their relation to facts of the particular case
illustrations
798 The Court may presume a that a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession This Section was considered by this Court in Sanwal Khan vs State of Rajasthan1
This Court after considering some High Court cases observed  In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance
Where however the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer
Suspicion cannot take the place of proof
 In Wasim Khan vs State of Uttar Pradesh2 this Court held that  recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder On the facts of that case this Court held that the appellant was rightly convicted of the offence of murder and robbery
But apart from the possession of stolen property there were other circumstances indicating that the appellant was guilty of murder and robbery
The circumstances were that the appel lant in that case had travelled with the deceased on his bullock cart alone and the deceased never reached his home and was found murdered
The appellant was found in possession of the goods of the deceased three days after and the appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart
In the present case three presumptions are possible from the recovery of the stolen goods from the appellant three days after the occurrence of the dacoity 1 that the appellant took part in the dacoity 2 that he received stolen goods knowing that the goods were stolen in the commission of a dacoity and 3 that the appellant received these goods knowing them to have been stolen
1 AIR 1956 SC 54
21956 SCR 191
799 The choice to be made however must depend on the facts proved in this case
It is quite clear that all the property which was stolen by the dacoits was not recovered from the appellant
We may repeat that clothes ornaments cash etc were stolen
The only articles that were found with the appellant were a length of muslin Exh 2 and a length of charkhana doriya Exh 3
The appellant is stated to be a cloth merchant and he may well have acquired these goods as a receiver
It has not been shown that in the village in which the appellant lived it was known that a dacoity had taken place and goods had been stolen in the dacoity
On the facts of this case it seems to us that the only legitimate presumption to be drawn is that the appellant knew that the goods were stolen but he did not know that they were stolen in a dacoity
The appellant therefore can only be convicted under section 411 IPC
In this connection we may refer to a decision of the Rajas than High Court in Bhurgiri vs The State1 Wanchoo CJ and Dave J
Wanchoo CJ after holding that the recovery of ornaments from Bhurgiri had been established observed  The next question is whether on this evidence Bhurgiri can be convicted for dacoity
The recovery took place five days after the dacoity
It is not impossible that during that period the property might have passed from the dacoits to a receiver
Under these circumstances we are of opinion that it would not be safe to convict Bhurgiri of dacoity on the evidence of this recovery alone
It would be more proper to convict him as a guilty receiver
Then the question arises whether he should be convicted under section 411 or 412 IPC So far as section 411 is concerned he is clearly guilty under that section
The presumption under section 114 applies and we can safely presume that he is a guilty receiver of stolen property particularly when we find that the property was kept in the Bara and not at his own house
He must have had reason to believe that it was stolen when he received the property and that is why he left it in the Bara
But we feel that it would not be proper to convict him under section 412 because that section requires that the receiver should know or have reason 1 ILR 1954 Rai
476 482 83 800 to believe that the property had been transferred by the commission of dacoity
The prosecution in our opinion has to show something more than the mere possession of stolen goods for a conviction under section 412
If the prosecution is only able to show mere possession the proper section to use is 411
 In the result the appeal is allowed and the appellant convicted under s411IPC instead of section 396 IPCand sentenced to undergo rigorous imprisonment for three years
RKPS Appeal allowed


Summary:
The house of the appellant a cloth merchant was searched and three lengths of cloth were recovered which were subsequently identified as having been stolen from a shop in a dacoity in which clothes ornaments cash etc
were stolen
The appellant was not named by the eye witnesses or in the dying declaration as having taken part in the dacoity
Relying on the discovery of the cloth and their identification the High Court convicted him under section 396 Penal Code
The Court observed that it was legitimate to infer that he was one of the dacoits in view of illustration a to Section 114 of the Evidence Act
In the appeal to this Court it was contended that the High Court should have convicted the appellant only under section 411 Penal Code
Allowing the appeal HELD  On the facts the only legitimate presumption to be drawn is that the appellant knew that the goods were stolen but he did not know that they were stolen in a dacoity
All the property which was stolen by the dacoits was not recovered from the appellant
The appellant a cloth merchant may well have acquired these goods as a receiver
It has not been shown that in the village in which the appellant lived it was known that a dacoity had taken place and goods had been stolen in the dacoity
799 B C Wasim Khan vs State of Uttar Pradesh 1956 SCR 191 distinguished Sanwal Khan vs State of Rajasthan AIR 1956 SC 54 referred to