Case: Sanwat Khan &amp; Another Vs. State of Rajasthan

be stolen property, but it was inconclusive on the question of their having committed the murders. In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is an ex-convict, deposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder as well.6. The learned counsel for the State in support of the view taken by the High Court placed reliance on a decision of the Madras High Court in - Queen-Empress v. Sami, 13 Mad 426 (A). The head-note of the report says that"Recent and unexplained possession of stolen property which would be presumptive evidence against the prisoners on the charge or robbery would similarly be evidence against them on the charge of murder."This head note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, 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.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. in - Bhikha Gober v Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of that offence. Our attention was drawn to a number of decisions which have been summed up in a Bench decision of the Allahabad High Court in State v. Shankar Prasad AIR 1952 All 776 (C), in some of which a presumption was drawn of guilt from the circumstance of possession of stolen articles soon after a murder. We have examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.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.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is andeposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder ashead note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, 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.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. inBhikha Gober v Emperor, AIR 1943 Bom 458   (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of thathave examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.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.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated.