SHIVAPPA & ORS.

STATE OF MYSORE February 19, 1970

[M. HmAYATULLAH, C.J., A. N. RAY AND I. D. DuA, JJ.] B

~1rdian Evidence Act, 1872, s. 1 l4-Reco1ery of properly front posle.HlOn of accused soon after con11nission of a dacoits-fresumption to be

dr~11·11-Whether (.' preJu1nption of participation in dacoity or of lesser

v.(tence •

. T\VO carts loaded ith cloth returning alongwith others from a weekly village market \\'ere looted by 20 or more pei'sons.

The houses of 20 persons including the 14 _appellants wer:e searched and the looted cloth

\\"<\S "recovered from their possession.

They_ were tried and held guilty under s. 395 of the Indian Penal Code. The High Court dismissed their appeals. In appeal by special leave to this Court their only contention was that in the absence of other evidence conncctini? them. \\Tith the dacoity. the presumption to be dra\vn frony the possessio~ of stolen clothes ought to have been one under s. 411 of he Indian Penal Code or at the most under s. 412 of the Indian Penal Code and not of complicity' in the crime oi Jacoity. It "as urged that since s. 114 of the Evidence Act did not

lay down definitely the presumption to he dra\l; n in a given set of circumsrances it was neccssarr ahvays to start \\1th the lesser presumption and dra\\· the higher presumption only \Vhen there y; as some other evidence to shO\\' the complicity of the persons in the crime itself.

HELD : Jf there is other evidence to connect an accused with the crin1c itself. hO\\'cvcr small. the finding of the stolen property \\'ith him is

-.~ piece of evidence \\'hich connects him further \vith the crime. There is then no question of presumption.

The evidence strengthens tfie other evidence alread~ against him. It is only when the accused cannot be con

i" stronger than' if there is a large gap of time.

Disposal of the fruits of crin1e that the presun1ption may he dra\\'n. fn \vhat circumstances the one presumption or the other may he dra\\'O \\'ill differ from case to case

[722DJ \Vhen the discoverv of the fruits of crin1e is made in1mediately after 1hc commission of thC crin1e the presun1ption of compJicity in the ci"ime

ncctcd . with the c'rime except by reason of possession of the fruits of crime tequires the fiqding of a person ready to receive them an4 the short

ncss of time. the nalure of the propefty \1lhich is disposed of, that is to saY. its quality and character deteirn1in.e \vhcrher the person \vho had the gOods in his Possession received then1 fron1 another or v.'as himself lh.: thief or dacoit. [722 FJ

In the present case the offence \Yas con1n1itted at night by as many as ~O persons or more. Shortly after the offence the houses of 20 person..; "ere searched and large quan.tities of the stolen goods \Vere found in their houo;; es.

It was impossible that these :!O pcn; ons \\ere n1e.rely receivers ... 1f

tolen property fron1 some other :!O persons \\"ho v.ere the Uecoits. It \\"as

lcgirimate therefore to raise the presumption in this case that the persons ,, ith horn the goods v.ere found \Vere the dacoits themselves. [723 A-Bl CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 87 of 1967.

SHIVAPPA v. MYSORE (Hidayatul/ah, C.J.) 721

Appeal by special leave from the judgment and order dated January 24, 1967 of the High Court of Mysore in Criminal Appeal No. 29 of 19.65.

A. S. R. Chari and R. V. Pillai, for the appellants.

Shyamala Pappu and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Hidayatullah, C.J. These are 14 appellants who appeal against their conviction under s. 395 of the Indian Penal Code and sentences of 5 years' rigorous imprisonment and fine of

Rs. 1,000/- passed on them. Originally 20 persons were tried and convicted for the same offence and received a like sentence. 14 alone have appealed to this Court.

The incident which took place on July 28, 1962 . was theft by dacoity of certain cotton pieces from two carts within the limits of Lingsugar Police Station a! about 11-30 p.m.

The facts are that two traders in cloth sent their wares in carts for sale. The cartmen halted after the market was over on

the way for food.

Thereafter six carts left for Mudgal at about 10 p.m. When the carts reached a Na/a called Heri Halla about three miles from Lingsugur at about 11-30 p.m., 20 persons are said to have approached the carts and pelted stones. It was a d; irk night and the assailants were not identified. It appears that four out of the six carts escaped, but two carts were looted. The police investigated the case and arrested the 20 persons who were accused in the case as being the culprits involved in this incident.

It is not necessary to go into rest of the case or the evidence on which the case of dacoity was established, because dacoity as such is not challenged before us.

The accused were convicted on the sole evidence of having in their possession pieces of cloth which were later identified to belong to the traders. Searches took place between July 30, 1962 and August 17, 1962. In these searches clot]] which was undoubtedly stolen at the time of the dacoity was found in their houses.

The High Court and the Court below drew from this the conclusion that the appellants - were themselves the dacoits, and convicted them accordingly under s. 395 of the Indian Penal Code and sentenced them to 5 years' rigorous imprisonment and fine of Rs. 100/-.

In this appeal, the only contention raised by Mr. A. S. R.

Chari is that the presumption that they wre dacoits ought not to have been drawn since the circumstances do not adri1it the drawing of such a presumption in the case. According to Mr. Chari. the presumption to be drawn ought to have been one under s. 411

SUPREME COURT REPORTS

(1970] 3 S.C.R.

of Indian Penal Code or at the most under ~· 412. of th~ Indian

Penal Code but not of complicity in the: cnme of dac01ty. .He contends that the circumstances under which the one presumption or the other may be drawn under s. 114 of the Indian Evidence Act have not been stated by law and therefore it is necesary always to start with the leser presumption and draw the higher presumption only whm thre is so11;1e ot.her evidence t? show t.he complicity of the persons 1~ the cnme 1tslf. A.ccordmg to bun there is no other evidence m the case which pomts to the complicity of the 14 appellants in the crime of dacoity and therefore as they cannot be suspected to be dacoits themselves, the only presumption to be drawn is one of receivers of stolen property or as receivers of property which was stolen in a dacoity.

In our opinion, the law advocated by Mr. Chari is not corrct.

If there is other evidence to connect an accused with the cnme itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime.

There is then no question of presumption. The evidence strengthens the other evidence already against him.

It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn.

In what circumstances the one presumption or the other may be drawn, it is not necessary to state categorically in this case. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumotion is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious.

Disposal of the fruits of crime requires the finding of a person ready, to receive them and the shortness of time, the nature of the property which is disposed of, that is to say, its quantity and its character determine whether the person who had the goods in his possession received them from another or was himself the thief or the dacoit.

In some cases there may be other elements which may point to the way as to how the presumption may be drawn.

They need not be stated here for they differ from case to case. (In the present case, the goods stolen were a large quantity of cloth taken for sale to the market. These goods were . not sold and were being taken back to the dealers by the cartmen.) A large number of persons said to be 20 in number pelted stones at the cartmen and looted the property.

Immediately afterwards a n?mber of searches were made and the )!OOds were found with vanous persons who were prosecuted as offenders and they have been presumed to be involved in the dacoity itself. It may be

SHIVAPPA V. MYSORE (Hidayatul/oh, C.J.) 723

noticed that from each person a large number of goods of the same type such as 20 choli ieces or ten pieces of cloth were found. (It is impossible to think that within the short time available, these goods could have been easily disposed of to receivers of stolen property or could be placed in the custody of friends till such time as the original offenders could take them away.) The time gap in some cases is as short as two days and in some others it is not more than five days. In two cases only the time gap is about 19 days. Even then we think that the time gap is too short for original off!lnders to have disposed of the property to these appellants or to have left the goods in their custody ll such time as the original offenders could have taken them away.

We are; therefore, satisfied that the proper inference was drawn in this case. It must not be forgotten that the offence was committed at night by as many as 20 persons or more.

The houses of 20 persons were searched and large quantities of the stolen goods were found in their houses. It is impossible to think that these 20 persons were merely receivers of stolen property from some other 20 persons who were the dacoits. It is legitimate therefore to raise the presumption in this case that the persons with whoin the goods were fod were the dacoits themselves.

This presumption has been drawn and in our opinion . rightly in this case.

The conviction was therefore correct in all the circumstances of the case.

As regards the sentence, the offence no doubt was serious.

But no injury beyond one appears to have been caused. Therefore we think that a sentence of three years' rigorous imprisonment will meet the ends of justice in this case.

The sentence is reduced to three y_ears' rigorous imprisonment.

The sentence of fine will starid: The appeal is allowed to this extent'.

G.C.

Appeal partly allowed.