J.M. Sheth, J.
1. This is an appeal, filed by the appellant from Jail, against the order of conviction and sentence, passed against him in criminal Case No. 988 of 1966, by the learned Chief City Magistrate, Ahmedabad, Shri P.M. Mehta, The appellant is convicted of an offence, punishable under Section 379 of the Indian Penal Code and is sentenced to suffer three months' rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine, to undergo one month's further rigorous imprisonment.
2. The prosecution story is briefly stated as under:--
There is a firm, named Everest Chemical Industries, situated at Maninagar, Rambaug, manufacturing medicines. On 21st October, 1966, at about 11.00 a.m. four boxes of medicines were sent through Chhanaji Nathaji, an employee of the said firm. Three boxes were to be sent to Surat and one was to be sent to Botad. One which was to be sent to Botad was to be sent through Bharat Transport Co., situated near Sarangpur Gate, at Ahmedabad. The three boxes which were to be sent to Surat were to be sent to Ambika Medical Stores at Surat and the necessary slips for the same were attached to the boxes. The said firm was a partnership firm and one of the partners was the complainant, Ratilal Amthalal. The aforesaid four boxes were carried by Chhanaji in a hand-cart to Sarangpur Gate. He parked his cart outside Bharat Transport Co. hear Sarangpur Gate. One box of medicines, which was to be sent to Botad was carried by him to Bharat Transport Co., leaving the three other boxes in the said handcart, unattended to. On his return after delivering one box to Bharat Transport Co., he found his cart as well as the three boxes of medicines, left in that cart, missing. He searched for the same, but it was in vain. He, therefore, reported about the incident to his master, Ratilal, who in his turn, filed a complaint at Kalupur Police Station. One of the three boxes contained 50 bottles of Syrup Vasaka, valued at about Rs. 175/-. The second one contained 44 bottles of Cough-ex, valued at about Rs. 198/- and the third contained 36 bottles of Isewhite Syrup, valued at about Rs. 153/-. On 22nd of the same month, i.e., on the next day, one police constable, Dattu of D. C. B. got information that the present appellant and the other two named, Fata Bhikha and Dharma Shiva have committed a theft of these three boxes and they have hidden them somewhere near Dudheshwar. Dattu conveyed that information to the Head-Constable Sukhaji, and Sukhaji incidentally caught hold of the present appellant and on being questioned, he showed his willingness to point out the muddamal. The information was given in the presence of panehas. It was noted down in the initial panchnama. The police and the panehas went to the place near a Chawl of Galaji near Dudheshwar at the instance of the appellant, and in a cow-dung hill, these bottles and parts of the boxes were found hidden and they were brought out by the accused-appellant in the presence of panehas. They were in a gunnybag in the said cow-dung hill. Panchnama Ex. 7 was drawn up. The appellant was arrested. After necessary investigation, charge sheet was sent against him.
3. The learned Magistrate, relying upon the evidence of pointing out the muddamal stolen bottles by the accused, which were found hidden in a cow-dung hill at Dudheshwar, near Galaji Chawl on a day next to the day of the offence, found that this appellant must be a thief. On the basis of it, he convicted the appellant of the offence in question. The appellant's version was that he had not committed any offence. He had not led any defence evidence.
4. The learned Advocate, Shri M.F. Thakar, appearing on behalf of the appellant, contended that the evidence led by the prosecution was not sufficient to hold the appellant guilty of the offence in question. The fact that the theft in question had taken place and the fact that the muddamal bottles found, formed a part of the stolen property, are not challenged by him. There is overwhelming evidence, led by the prosecution to prove those facts. That evidence is reliable evidence and it deserves credence. It is proved beyond reasonable doubt that the theft of three boxes, containing bottles of medicines had taken place, as deposed to, by the complainant Ratilal. It is also proved beyond reasonable doubt that a part of that stolen property was found from a cow-dung hill, situated near Galaji Chawl. It was in open piece of land. Those bottles were found in a gunny bag, and also the remnants of boxes in which these bottles were kept at the time they were taken by Chhanaji in a cart, were also found from that cow-dung hill. The stolen property has been identified by the complainant. His evidence on that point is not challenged. It is thus proved beyond reasonable doubt that the stolen property was found on the next day after the commission of the offence from the aforesaid cow dung hill. It is further proved from the evidence of the police head-constable, Sukhaji, Ex. 8 and panch witness, Babulal, Ex. 6, that the appellant had given information to the police head-constable, Sukhaji in the presence of the panehas that he wouldshow the goods and he took the police and panchas at this cow-dung hill, situated near Galaji Chawl near Dudheshwar. It also appears from the evidence of this panch witness Babubhai that it was appellant who took out these bottles etc. from that cow dung hill. It is true that this had been done on the very next day after the commission of the offence in question. It is only on this evidence that the appellant has been convicted of the offence in question.
4A. It is significant to note that no statement is made by the appellant that he was the author of concealment. It is not stated by the police head-constable, Sukhaji or the panch witness Babubhai or the police constable Dattu that the appellant gave the information that he had hidden these articles which formed a part of the stolen property at the place pointed out by him and wherefrom he produced these Articles.
5. The interesting question that arises for determination in this appeal is whether from this evidence only, it can be said that this appellant was in conscious possession of the stolen Articles and if so, the presumption can be raised against him in view of the illustration (a), given in Section 114 of the Indian Evidence Act, that he was a thief. It could without any hesitation, in my opinion, be said that the conviction of the appellant is based on circumstantial evidence. There is no direct evidence to prove the guilt of the appellant. It is a well-settled position of law that conviction can be based on circumstantial evidence, only if that evidence is incompatible with the innocence of the accused. In my opinion, it could also be said that this evidence is the evidence of the conduct of the appellant which may be admissible evidence under Section 8 of the Indian Evidence Act. It could be said that this evidence was admissible under Section 27 of the Indian Evidence Act.
6. The learned Assistant Government Pleader, Shri G.T. Nanavati, appearing on behalf of the respondent-State, seriously contended that this was not a mere case of producing stolen articles. It was not a mere case of pointing out the place where the stolen articles were found. It was a case wherein certain information was given and on the basis of that information, discovery was made and that discovery was coupled with a circumstance of production of concealed articles by this very appellant who had given that information. He, therefore, contended that in such a case, where the articles were concealed in a cow dung hill, which cannot be easily seen by other persons, it should be presumed that this appellant was in exclusive possession of it. It was on the basis of his exclusive knowledge. Once it is found that he was in conscious possession of those articles, presumption can arise in under Section 114 of the Evidence Act in view of the illustration (a), given in that section, that he was a thief, the reason was that his possession of stolen articles was very recent. I have not got the slightest hesitation in accepting his argument that if the appellant is found in possession of the stolen property, his possession being very recent, the provisions of Section 114 of the Evidence Act, can be pressed into service. That section runs as under:
'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 the facts of the particular case.'
The illustration (a) given in that Section states that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It is, therefore, evident that if the appellant is found in possession of this stolen property soon after the commission of the theft, the Court can presume that he is a thief. For attracting the provisions of this section, it must be first proved satisfactorily that the appellant was found in possession of stolen goods after the theft. It is also true that what is to be proved is the possession of the stolen articles and not the possession of the place wherefrom these stolen articles were found. The argument of the learned Asstt. Government Pleader, Mr. Nanavati, that the fact that this cow dung hill was situated in a place which was not in possession of the appellant, has not got a very material bearing on the question of possession of articles by the appellant, is no doubt well founded. Even if the place, wherefrom such articles are found, is accessible to others and is not in exclusive possession of the appellant, the appellant may, in given circumstances, be in exclusive possession of those articles. It could also be said that if the appellant had given an information that he had hidden these articles and as a result of the information given by him, these articles were discovered therefrom, he Could have been said to be in possession of those articles and the presumption contemplated under Section 114 of the Indian Evidence Act, could have been raised. If in that case, the appellant was not in a position to account for his possession, it could have been presumed that he was a thief or a receiver of stolen property. The argument canvassed before me by the learned Assistant Government Pleader was that in view of the fact that the appellant gave this information, namely; of showing the goods, as deposed to, by the panch witnesses and he took the panchas and the police to this cow-dung hill and there he himself produced these concealed articles, which were admittedly the stolen articles, a presumption could arise in view of the provisions of Section 114 of the Indian Evidence Act that the appellant was in conscious possession of these articles and as his possession was recent and he had not accounted for his possession, he can be presumed to be a thief. In short, his argument was that this was not a mere case where the appellant had the knowledge of the place where the stolen articles were kept. It was something more than that and hence, he can be said to be in conscious possession of these articles. It could be in the circumstances of the case said that this fact was within the exclusive knowledge of the appellant and unless he explains as to how he came to know about this place of concealment, it should be presumed that he must be a thief. In my opinion, these arguments are not well founded arguments. I must frankly state that his arguments do get support to a certain extent from the decisions relied upon by him, which I will presently refer to. Before I advert to those authorities, I would first refer to Section 8 of the Indian Evidence Act, which is material for our purposes. It reads as under:-
'Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact ......... The conduct of any party or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto .....
Explanation 1. -- The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act
Explanation. 2. -- When the conduct of any person is relevant any statement made to him or in his presence and hearing, which affects such conduct, is relevant.'
This section lays down that the evidence of the conduct in the circumstances referred to therein, is relevant, and that being so, such evidence will be admissible evidence. 7. In a case in re Kirukku Mayandi AIR 1958 Mad 384, Ramaswami J. (as he then was) has made the following observations, on which the learned Assistant Government Pleader, Shri Nanavati has laid stress:
'In cases of pointing out, especially of stolen properties, the real question is not so much whether the accused was in physical possession of the properties hidden somewhere or buried in some field as whether he was the person that so hid the properties, for a person who buries treasure in a spot unknown to others is really in possession of it and it does not matter whether it is in a field not in his occupation or in his own house.'
I am in respectful agreement with these observations made. It is further observed therein as under:--
'A person is said to be in possession of a thing when the facts of a case are such as to create a reasonable expectation that he will not be interfered with the use of it. Thus, a person who hides a thing is in possession of it because he gains thereby a reasonable guarantee of the use of it. Then if the accused does not satisfactorily account for its possession, mere denial of theft or possession is not explanation and the presumption under Section 114, Evidence Act, can be drawn against him.'
I am also in respectful agreement with these observations made. Thereafter, the following observations are made:
'The question whether the person who has pointed out has not himself hidden it is purely a question of fact. If the Court comes to the conclusion on the facts that the accused has hidden the property in question, one important step in resorting to the aid of illustration (a) to Section 114 of the Act is satisfied, viz., possession.'
I am also in respectful agreement with these observations made. It is further observed that :
'It is not the law that the accused must positively prove his explanation. It is enough if his explanation is found to be reasonably true. No weight will be attached to the explanation however, if it is unreasonable or manifestly inadequate or improbable on the face of it.'
In the body of the judgment at page 386, in paras 12 to 14, certain observations have been made, on which reliance is placed by the learned Assistant Government Pleader, in support of his arguments. They can be referred to, with advantage at this stage:--
'In cases of pointing out especially of stolen properties, the real question is not so much whether the accused was in physical possession of the properties hidden somewhere or buried in some fieldas whether he was the person that so hid the properties, for a person who buries treasure in a spot unknown to others is really in possession of it and it does not matter whether it is in a field not in his occupation or in his own house. The person who hides a thing has possession of it for he has both the Aninaus and the Corpus.
Possession is acquired whenever the two elements of corpus and animus come into co-existence. Salmond defines the possession of a material object as the continuing exercises of a claim to the exclusive use of it. A person is therefore said to be in possession of a thing when the facts of a case are such as to create a reasonable expectation that he will not be interfered with the use of it. Thus, a person who hides a thing is in possession of it because he gains thereby a reasonable guarantee of the use of it. Then if the accused does not satisfactorily account for its possession, mere denial is not explanation ......
The clinching question, therefore, as mentioned by Mr. Y.S. Rao in his valuable monograph -- Circumstantial and Presumptive Evidence -- Page 119 & foll., in cases of mere pointing out is, whether the person who has pointed out has not himself hidden it and this is purely a question of fact. If the Court comes to the conclusion on the facts that the accused has hidden the property in question, one important step in resorting to the aid of illustration (a) to Section 114 of the Act is satisfied, viz., possession. The line of inquiry as to whether the accused person who pointed out the thing was the person who had hidden it is very clear.
The difficulty with regard to the place where the property is found, being a public place or a place not in the control of the accused .... .is got over if the property is found to be so carefully and cautiously hidden away from human gaze that a member of the public could not possibly know of its presence there and it therefore leads to the inference that the person who knows its whereabouts is the person who secreted it there.'
These observations indicate that on account of certain circumstances found, it can be undoubtedly said that the person who knew the whereabouts, must be the person who secreted it there. In short, the circumstances must be such as to point to one conclusion that he must be the person who had hidden those Articles at the place and that question is a question of fact.
It has been further observed therein as under:--
'It is upto the investigating officers to question the accused as to the details of the exact location of the secreted article and to lead evidence as to the secrecy of the place, the correspondence between the details given out by the accused and the actual finding of the article, and the case with which the accused got straight to the point at which the article was concealed, in order to show that the accused must have dealt with the object to justify the knowledge displayed. The detailed knowledge of the location of the secreted object will serve to displace other hypothesis that may be possible though not probable.
The hypothesis that some one told the accused of the place of secretion is displaced by the very knowledge displayed, for it is unnatural that such details of secretion would be conveyed to another out of mere idle curiosity. Finally this hypothesis is totally vacated 'if the accused does not reveal the name of the person who has imparted to him this precious information, for it is impossible to believe that the accused is prepared to lose his life or liberty for the sake of his friendly obligation to keep the secret, nor is it reasonable to expect any sense of moral obligation in one who has not moved the authorities in the matter till he was himself suspected and questioned'.'
With great respect to the learned Judge, I beg to defer from these latter observations made by him, which are underlined by me (here kept in single inverted commas), in my opinion, there is no obligation for an accused to reveal the name of the person who has imparted to him this precious information and in case he does not choose to reveal that information, and keeps mum, any inference can be drawn against him in a trial for a criminal offence. It will be against the fundamental principles of criminal jurisprudence. If the circumstances are such that from those circumstances, one could come to only one conclusion that he was the author of concealment, no doubt, on such circumstantial evidence, it could be reasonably said that he was found in possession of these articles. The reason being that the circumstances were such from which it could be said necessarily that he must have hidden those articles.
It has been further observed therein as under:--
'The only other hypothesis is that he managed to see the actual unknown criminal hiding the thing. The very knowledge exhibited by the accused is again an infirmity of this hypothesis, for criminals do not secret things unless they make sure that they are not being observed. If the possibility is still to be considered that the real criminal hid the object without knowing that another man was watching him, the very detailed knowledge of the actual place of secretion displayed by the accused person is again an infirmity of this hypothesis, unless it is to be believed that the accused examined the place and the thing hidden after the criminal left the place.
If so, the pertinent question would be why the accused did not bring the matter to the notice of the authorities like an honest man, and if it is a valuable property and he is not honest why he did not appropriate it himself immediately and forestall the real criminal but was waiting till he was himself suspected and questioned. The irresistible conclusion can only be either that the accused was the real offender or at least an accessory after the fact. Not having revealed the principal offender if he was 'an accessory after the fact, he must be the principal offender himself, at least one of the principals'.
With great respect to the learned Judge, I am of opinion that the reasoning made in the observations underlined by me (here in inverted commas) does not appear to be very sound. No such duty is imposed upon the accused to reveal the principal offender. If he was an accessory after the fact and he does not reveal the principal offender, it cannot be necessarily said that he must be a principal offender himself or at least one of the principals. In my opinion, certain observations have been made in that decision which are very general. It may be correct to say that the circumstances proved in that case may be sufficient to come to a conclusion that a person charged with an offence of theft, must be an author of concealment. In that case, there were other circumstances to justify the conclusion. In this para 14 of the judgment, at page 387 the following pertinent remarks have been made, which can be referred to, with advantage at this stage:
'A further circumstance that fortifies this line of inquiry is the multiple discovery. If the accused points out not one incriminating object but a number of them and in different places and under different conditions, the suggestion that the accused might have managed to follow the criminal unnoticed at every stage and obtained a detailed knowledge of every article secreted is, to say the least, fantastic. Above all, it is difficult to understand how the accused was able to know what object would be found in any particular spot and how the object was connected with the crime with reference to which he was able to offer to point out when questioned by the police officer. It is, therefore, not correct to brush aside every case of mere pointing out as a case of mere innocuous knowledge.'
It will be significant to note that in that case, several Jewellery articles were stolen. They were found from different persons at different places and the placeswere pointed out by the accused. He had also pointed out the place -- the exact spot where the ornaments were buried and the articles were dug out form beneath the ground. In view of those circumstances, it was found that he was in possession of those articles and that possession was recent and he did not account for possession. He was therefore convicted of the offence in question.
8. In the same Volume, there is another decision, given by Ramaswami J. : AIR1958Mad451 . It has been observed as under:--
'It is quite true that exclusive possession cannot be brought home to an accused if properties are discovered in open places equally accessible to members of the public as a result of the information given by him. But at the same tune, if the property is found to be so hidden away that no ordinary member of that public could know of its existence there, the fact that it is on that particular person's information and pointing out unaccompanied by any explanation of innocent knowledge, the incriminating article was discovered and recovered would lead to the presumption that he is the person who had secreted it there. It unmistakably shows that the accused was proceeding to the felony.'
The facts in that case were as under:--
'The particular discovery made was as a consequence of the information given by the accused and his pointing out the spot wherein he had buried M. O. 1 with fermented wash.'
That would probably suggest that he had given an information that he would point out the spot wherein he had buried M. O. 1 with fermented wash.
It is further observed therein as under:--
'But for this accused pointing out the spot the Sub-Inspector would never have been able to effect the recovery of M. O. 1. In fact the accused had all the wide open space of the village to secrete the pot with the fermented wash apart from the other imaginable places where such secretion could be made, The Sub-Inspector might even spend weeks without being able to spot out this secret hiding place. In Ramakrishna Mithanlal Sharma v. State of Bombay : 1955CriLJ196 , it was held that where evidence was given by a police officer that in consequence of a certain statement made by the accused and at the instance of the accused a tin box was dug out of a mud house and the nature of the statement made or information given by the accused was not sought to be proved (as here). Section 27 of the Evidence Act was not attracted and prima facie there was nothing to prevent the evidence being admitted against the accused concerned.It is quite true that exclusive possession cannot be brought home to an accused if properties are discovered in open places equally accessible to members of the public as a result of the information given by him ......... if the property is found to be so hidden away that no ordinary member of the public could know of its existence there, the fact that it is on that particular person's information and pointing out unaccompanied by any explanation of innocent knowledge the incriminating Article was discovered and recovered would lead to the presumption that he is the person who had secreted it there.
It unmistakably shows that the accused was proceeding to the felony; Sher Mohd. v. Emperor, AIR 1945 Lah 27 at p. 32, Mt. Jamunia Partap v. Emperor, AIR 1936 Nag 200 = 37 Cri LJ 1047; pointing out is evidence of conduct under Section 8, Indian Evidence Act, where an accused gives information leading to discovery, and the exact spot where the ornaments were buried is shown and the articles dug out by him from beneath, the question is not so much whether the accused was in physical possession of the ornaments buried in the field, though as a matter of fact a person who buries treasure in a spot unknown to others is really in possession of it, whether it is in a field accessible to every one or in his own house.
The important point is that the circumstances and conduct of the accused point clearly to his knowledge of the exact spot where the ornaments were and in the absence of any explanation the reasonable inference is that he put them there himself. Such conduct taken in conjunction with other evidence is enough to warrant a presumption of complicity in the offence.'
If we now bear in mind all these observations made by Ramaswami J. it appears that the ratio was that if circumstances and conduct of the accused, pointing clearly to his knowledge of the exact spot where the ornaments were and in the absence of any explanation the reasonable inference would be that he put them there himself and if there is such conduct, and if it is taken in conjunction with other evidence, it would be enough to warrant a presumption of his complicity in the offence. If there was only such conduct evidence, in my opinion, no such presumption of the appellant's complicity in the crime could be raised. Such a piece of circumstantial evidence can be explained on any rational hypothesis. Let us take an illustration for explaining the same. A friend or a relation of the accused has committed a theft and that relation or a friend conceals those articles in a place, like a place in the present case, to the knowledge of the accused. The accused can, therefore, in the aforesaid circumstances, point out the exact spot if he has minutely observed it and can take out the articles therefrom. Could it, therefore, on such pointing out a place and producing the articles therefrom, be said that the appellant must be a thief. Could it be said that he must be an author of concealment Such conduct, therefore, can be explained on this reasonable hypothesis. As one has to base conviction on circumstantial evidence, the circumstantial evidence must be incompatible with the innocence of the accused and should point to only one conclusion, namely, about the guilt of the accused. That being not the position in the instant case, in my opinion, the appellant cannot be convicted of the offence in question on this piece of evidence only.
9. The learned Assistant Government Pleader, Shri Nanavati also invited my attention to a case of Motilal v. State : AIR1959Pat54 . The relevant observations made in paras 21 and 23 of the judgment at page 60 are as under :--
'Now the question arises whether the utensils taken out from the Sota by Moti Lal could be held to be in possession of Moti Lal from the simple fact of his going alone to the Sota and taking out the utensils from the place of concealment in the Sota. In my opinion, it is right to hold that Moti Lal was found in possession of the stolen utensils. The Sota was a public place no doubt not in the exclusive possession of Moti Lal. But here we are not concerned with the possession of the Sota; we are here concerned with possession of utensils.
The utensils were kept in a hidden place and, according to the evidence of P. W. 5 as quoted above, by me, other persons who were asked to take out the utensils from the Sota failed, it was Moti Lal who went and brought the utensils out. It was, therefore, within his exclusive knowledge as to where the utensils were kept concealed in the Sota. From this fact of knowledge, an inference can be drawn under Section 114 of the Evidence Act, in absence of any other thing on the record to show as to how Moti Lal had knowledge of these things, that he had knowledge because he kept them there and, therefore, he had control ever those articles and had the conscious possession of them. I may quote a sentence from Halsbury's Laws of England, 3rd Edition, Vol. 10, at page 811, where while considering the possession of stolen properties it has been said:
'It is unnecessary to prove a manual possession of the goods by the prisoner; it is sufficient that they were under his conscious control, or, that he is in joint possession with the thiefAs soon as it is held that the utensils were in possession of the petitioner, Illustration (a) of Section 114 of Evidence Act is attracted, and the stolen articles being found in possession of the petitioner soon after the theft it must be presumed in the circumstances of this case that Moti Lal received the goods knowing them to be stolen because he did not account for his possession. A controversy has arisen in some of the cases and the point was argued by Mr. Nageshwar Prasad also before us as to whether mere knowledge of the fact as to where the stolen goods were kept can necessarily lead to the inference that they were in possession of the person having that knowledge.
On this question, in my opinion, every case will depend upon its own facts. There may be cases where a court may not be justified in presuming possession of the person who had mere knowledge of the articles placed but there may be cases where the articles are concealed in a place about which the particular person bad the knowledge and it may be assumed in such cases that the articles were in his possession. I may in this connection refer to the case of Chavadappa Pujari v. Emperor AIR 1945 Bom 292. In this case a reference is made to an unreported Bench decision of the Bombay High Court in Rama Balappa v. Emperor, Criminal Appeal No. 291 of 1943, D/- 11-11-1943 (Bom), where it was held that, though the place in which the property was found buried did not belong to the accused, the very fact that he knew that the property was buried there would justify the presumption that he was in possession of it since he would be able to exercise control over it and remove it any time he liked.
Divatia J., distinguished this unreported decision and took a different view on the facts and be the circumstances of the AIR 1945 Bom case. But Lokur J. who was a party to the unreported Bombay case and was also a party to the AIR 1945 Bom case stuck to his view. I would, with respect, follow the decision of the earlier unreported case. I may in this connection also refer to reported case of the Madras High Court by Rama-swami J. sitting singly, reported in In re Murugan : AIR1958Mad451 .'
10. I now propose to refer to a case Emperor v. Shivputraya Baslingaya, 32 Bom LR 574 - (AIR 1930 Bom 244). A Division Bench of the Bombay High Court has made the following instructive observations therein:
'The mere fact that an accused person points out the place in which the stolen property is concealed does not give rise to any presumption under Section 114 of the Indian Evidence Act, or justify his conviction of the offence of receivingstolen property, still less of the offence of theft or dacoity.'
The learned Assistant Government Pleader tried to distinguish that case on the ground that it was a case of mere pointing out a place where the stolen articles were, and there was no evidence that the person charged with the offence, himself produced those concealed articles therefrom.
At pages 577 and 578 (of Bom LR) --(at p. 246 of AIR), the following observations have been made:--
'The evidence with regard to the production of the stolen articles by accused Nos. 1, 3 and 4 does not show that the articles were produced from their possession. All that it amounts to is that those accused along with accused No. 2 pointed out places where the stolen articles were concealed. The only value that could be attached to the discovery of these articles would depend upon any relevant statements the accused may have made which led to the discovery. It is not shown from the evidence what statement each of the accused made which led to the discovery of the articles. Under these circumstances we cannot say that the jury was wrong in not attaching importance to the discovery of the articles made in consequence of the accused Nos. 1 to 4 having pointed out the places where the articles lay hidden. Where the articles are not shown to have been in the possession of the accused, no presumption would arise that they had come by it by means of an offence.'
In the judgment of Broomfield J., at page 580 (of Bom LR) = (at p. 248 of AIR), similar observations have been made. At page 581 of Bom LR = (at p. 248 of AIR, the following observations have been made.
'Exhibit 21, the Police Patil, says that the Sub-Inspector came and questioned the accused. They gave some information and offered to point out the place where the property had been hidden. The Sub-Inspector Exhibit 25, says similarly: 'Accused Nos. 1 to 4 came. I questioned them. They gave me information and offered to point out the places where the stolen property had been concealed.' He then goes on to say that each accused independently pointed out the same place. The panch witness Gangappa Exhibit 15 says: 'The first four accused led us to the places where they said they had secreted the ornaments. They took us to a place near the Paul's tank. There was nearby a prickly pear hedge. They could not be seen from outside. All the accused pointed out the same place as the one where they had secreted the stolen, jewellery.'
It thus appears that in that case also, there was not merely pointing out a place wherefrom concealed stolen articles were found. There also, the offenders hadtaken the police and the panchas to that place which was a prickly pear hedge and therefrom, produced the stolen articles. It was held by a Division Bench of the Bombay High Court that the evidence was not sufficient to hold the offenders guilty of the offence in question.
11. In a case of AIR 1945 Bom 292, Divatia J., who was one of the members of a Division Bench, at pp. 296, 297 and 298, dealt with this topic. It has been observed as under:--
'As against the non-confessing appellants, the only evidence is the production of property and, in the case of some of them, the three confessions in which they are said to have taken part in the dacoity. The latter evidence cannot be regarded as substantive evidence against them. At the most it may be taken into consideration, if there is other independent and reliable evidence to connect them with the crime. In all cases, the stolen properties produced by the accused have been identified by the complainant and members of his family. The main question, therefore, is whether each appellant was in possession of stolen property, and if so, what presumption can be drawn against each from the fact of such possession under illustration (a) to Section 114, Evidence Act. That illustration describes a person in possession of stolen goods soon after the theft as a thief or a receiver of stolen property unless he accounts for his possession. The illustration is not exhaustive but only indicative of the general principle embodied in the section that in making presumptions the court should have regard to the common course of natural events and human conduct in their application to the facts of a particular case. However, the illustration has become the basis of a large number of decisions which are not altogether uniform in their application of the presumption underlying it. It is, therefore, necessary to consider when and in what manner the presumption would arise.
The condition precedent for the application of the illustration is that the accused must be in possession of stolen goods. Where they are on the person of the accused, as in the case with accused 11, or in the houses or fields exclusively occupied by them, as is the case with several accused in the present case, there can be no doubt that they must be deemed to be in their possession. But in quite a number of cases--and some of the accused before us come under that class--stolen property is produced without making any incriminating statement from a place which is not exclusively occupied by them or which is of the ownership of another person. In such cases a good deal depends upon whether the productionwas accompanied by information given by the accused in custody as would be admissible in evidence under Section 27, Evidence Act. Under that section so much of the information as relates distinctly to any fact thereby discovered and deposed to in Court would be admissible. Such information can be relied upon by the prosecution as incriminating evidence against the accused along with the production or discovery of stolen property. But the production of property by itself would not necessarily prove his possession. It would at the most show that he had knowledge where the property was kept or concealed. Thus, where it is proved that the accused made a statement to the effect that 'I have concealed the property at a particular place and I will produce it', and if it is discovered in consequence of that statement, it would be evidence of his possession, even though the stolen articles are kept or concealed in another man's property, because unless he had possession he would not have kept them in that place. Where, however, the accused, without stating that he had concealed stolen property, merely produces it from a place to which other people could have access, it would not be sufficient to establish his possession even though the property may be concealed because it is consistent with any other person having done so and the accused might have merely knowledge of it. The leading case on this point is the Full Bench decision in (1890) ILR 14 Bom 260, Queen-Empress v. Rana where the accused after stating that he had buried the property in the fields presumably belonging to other persons took the police to the spot and disinterred an earthern pot in which it was kept: the statement was held admissible under Section 27, Evidence Act, in spite of the fact that the incriminating statement amounting to a confession was made before the police. The statement being evidence amounted to a proof of possession of the stolen articles by the accused. ....'
12. The learned Government Pleader in that Bombay decision had also relied upon an unreported decision of the Bombay High Court in Criminal Appeal No. 291 of 1943, D/- 11-11-1943 (Bom) to which a reference has been made by Ramaswami J., in the decision referred to, by me earlier. After making a reference to that decision, the relevant observations made are as under:--
'In that decision, the distinction was made between mere pointing out of property and its production from a concealed place in another man's field. It was held that in the latter case even though the place, in which the property was found buried, did not belong to the accused, the very fact that he knew thatthe property was buried there would justify the presumption that he was in possession of it since he would be able to exercise control over it and remove it any time he liked. In that case there was no incriminating statement made by the accused before the police, and still it was held that the production of property by him from a concealed place in another man's field amounted not merely to his knowledge but also his possession. If the decision is limited to the, particular facts of the case, it may be correct, but if the observations are meant to be of general application, I think they go too far. In absence of any incriminating statement made by the accused leading to the discovery of property, its production alone from another man's property would not be sufficient to establish the accused's possession. It may at the most show his knowledge that the property was concealed there. In my view, mere knowledge that stolen property is lying hidden somewhere is not an incriminating circumstance for the offence of theft or receiving stolen property, and such knowledge cannot by itself raise a presumption of possession. It is the prosecution that has to establish accused's possession apart from his knowledge, and it is only when his possession is proved that the accused has to account for it in order to escape from the presumption under illustration (a) to Section 114. I do not agree with the view taken by the Nagpur High Court in ILR (1936) Nag 78 = (AIR 1936 Nag 200) that the accused's knowledge of the concealment of articles raises a reasonable inference that he put them there himself. That view was based on the conduct of the accused in pointing out the articles as admissible in evidence under Section 8, Evidence Act But our High Court has held in the Full Bench decision in (1890) ILR 14 Bom 260 (FB) that even a statement of the accused while pointing out buried property that he had concealed the property, though admissible under Section 27 is not admissible under Section 8. Moreover, even though conduct is relevant, such conduct unaccompanied by any incriminating statement proves merely knowledge but not possession.'
These observations made by Divatia J., in my opinion, correctly lay down the position of law. I am in respectful agreement with it
13. The question of raising a presumption under Section 114, illustration (a), arises for consideration only after it is proved that the accused was in possession of stolen articles, after the commission of theft. Till his possession is not proved, no question of raising this presumption will arise for consideration. If the accused merely points out a placewhere the articles are hidden and produces those articles therefrom, there are several possibilities; one possibility is that he had that knowledge of the exact spot where the articles were hidden, as he himself was an author of concealment. The second possibility is that he may have gathered that information from a person who was the author of concealment. Another possibility that can be envisaged is that he may have actually seen a person concealing those articles. As stated by me earlier, his seeing a thief concealing those articles may not be objected to, by that thief, as a thief might happen to be his friend or relation. In view of this matter, it cannot be necessarily deduced from these circumstances only that he must necessarily be a thief. His knowledge without he being a thief, from other sources referred to above, cannot be necessarily ruled out. In my opinion, therefore, from these circumstances of pointing out the place and producing the stolen articles from the place where the articles were hidden, it cannot be necessarily deduced that he, must be a thief. It cannot be necessarily deduced that he must be an author of concealment. Other possibilities, referred to, by me earlier, cannot be necessarily ruled out. In my opinion, therefore, the observations made by the Patna High Court and the Madras High Court in the decisions referred to above, if they are taken to be laying down a proposition that this should be a necessary deduction without there being any other evidence, they would be too general observations in my opinion as has been observed by Divatia J. in his judgment at page 287, referred to by me in the earlier part of the judgment.
14. The learned Assistant Government Pleader, Shri Nanavati urged that Lokur J. who was a party to the judgment of a Division Bench, has taken a different view. The relevant observations made in the judgment of Lokur J. at page 301. (AIR 1945 Bom) are as under:--
'Similar reasoning would apply to the nature of the possession of the stolen property from which the presumption contemplated by illustration (a) to Section 114, Evidence Act, can be raised. That possession may be actual or constructive as where the accused has kept it under his control by concealing it in another's house or burying it underground in another's field. Such was the case of possession in the case of Cri. App. No, 291 of 1943, D/- 11-11-1943 (Bom) which was regarded as sufficient to attract the presumption. In (1890) ILR 6 Bom 731 = 32 Bom LR 574 = (AIR 1930 Bom 244) and 40 Bom LR 927 = (AIR 1938 Bom 463) mere pointing out of stolen property from another's field was held not sufficient and N. J. Wadia J, distinguished them inCri App. No. 291 of 1943, D/- 11-11-1943 (Bom) where the accused had produced stolen property by digging it out in another's field but was unable to give any explanation as to how he had come to know about it. Stolen property, though not pointed out or produced by the accused, may be found on a search in a house or land occupied by the accused either exclusively or jointly with another, or he may produce it from such house or land or he may point it out in another's land or house where it could be easily seen or discovered by anyone or where it was hidden underground, or he may make some incriminating statement at the time of such production or pointing out. In each of these cases, a presumption of guilt may or may not be drawn according to the circumstances of that case. As observed in 15 Cr. LJ 410 = (AIR 1914 Oudh 176) the principle laid down by Section 114 is one of very wide application, which covers not merely the particular instances given in the illustrations to the Section, but all sorts of analogous cases in which the actual facts are distinguishable from the facts presumed by any one of the Illustrations, but are equally amenable to the general principle enunciated by the Section itself.
Applying these principles to the case against each of the appellant, I agree with the conclusions just stated by my learned brother in his judgment and I do not wish to repeat the reasons for those conclusions. I, therefore, concur in the order proposed by him.'
A careful consideration of these observations made by Lokur J. also indicates that he was also not of opinion that presumption of guilt could be necessarily deduced in a case like the present case. Taking into consideration the view of the Bombay High Court, in the decision referred to above, which I am bound to follow and with which I am also in respectful agreement. I am of opinion that the arguments advanced by the learned Assistant Government Pleader, Shri Nanavati, cannot be accepted. It cannot be said that an abstract proposition of law, enunciated by him, is justified from the view expressed by the Bombay High Court in the aforesaid decision. As stated earlier, no doubt certain observations made in the two aforesaid decisions of the Madras High Court and in the decision of Patna High Court, do lend support to his arguments. But as stated by me earlier, in absence of any other evidence, on mere pointing of a place where the articles were concealed, and on account of the production of those articles therefrom, it cannot be necessarily deduced that that person must be either a thief or a receiver of stolen property. If it had been pointed out very soon after the commission of the theft, it is a circumstance, which will raise a very strong suspicion against the man. But a strong suspicion cannot take a place of proof in the absence of any other evidence and in the absence of any incriminating statement made, at the time of giving information, as for example; that he was the author of concealment, this circumstance, found against that person, can be explained on any other rational hypothesis. The position would, therefore, be that the circumstantial evidence led, was not such as to be incompatible with the innocence of the accused. That person, therefore, cannot be presumed to be a thief or a receiver of stolen property. Bearing these principles in mind, if we now take into consideration the facts proved in this case, it is evident that evidence is not sufficient to hold the present appellant guilty of the offence in question. The possession of the stolen articles by the appellant is not satisfactorily established. He did not make any incriminating statement at the time, he gave information. He merely showed his willingness to show the goods. He took the police and panchas at a heap of cow-dung and dust and therefrom produced a gunny-bag containing the stolen muddemal bottles of medicines and remnants of boxes. As revealed from the panchnama, proved by the panch witness, this cow-dung hill is used by Rabaris for storing cow dung and dust. That place is accessible to anybody. It is also not a case where something was hidden under the ground so that one could even say reasonably that the appellant had the exclusive knowledge. I am, therefore, of opinion that the prosecution has not satisfactorily established the guilt of the accused-appellant The order of conviction and sentence, passed against the appellant therefore, cannot be sustained.
The appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. Fine, if recovered from him, is ordered to be refunded to him. He is ordered to be set at liberty forthwith.