Shivappa and ors. Vs. the State of Mysore - Court Judgment

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criminal - dacoity - sections 395, 411 and 412 of indian penal code, 1860 - appellants charged for looting two carts which were carrying wares of two traders - appellants convicted for offence under section 395 and sentenced to five years of rigorous imprisonment - conviction and sentence upheld by high court - hence, present appeal - appellants were convicted on basis of sole evidence of having in their possession pieces of clothes which belonged to traders - appellants contended that presumption that they were dacoits ought not to have been drawn and only presumption that ought to have been one under section 411 or at the most under section 412 but not of complicity in the crime of dacoity - if there is other evidence to connect the accused with crime the finding of stolen property with him was a piece of evidence which connect him further with crime then there was no question of presumption - 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 - if the gap of time is too large the presumption that the accused was concerned with the crime itself gets weakened - the presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed - facts revealed that a large number of goods were found in possession of appellants immediately after commission of offence - time gap between commission of offence and searches conducted too short for original offenders to have disposed of the property to the appellant or to have left the goods in their custody till such time as the original offenders could have taken them away - impossible to conclude that these appellants were merely receivers of stolen property from some other persons who were dacoits - held, presumption had been rightly drawn in the case - conviction of appellants upheld - appeal dismissed. - [j.r. mudholkar,; k. subba rao and; raghubar dayal, jj.] the appellant was the owner of fields bearing survey numbers 231 and 260 in a village in gujarat. respondent no. 1 was the manager of her estate for some time and while occupying that position, he obtained from her a sale deed in respect of those fields. the appellant made an application to the mamlatdar for a declaration that the sale was invalid as it was in contravention of ss. 63 and 64 of the bombay tenancy and agricultural lands act, 1948. certain villagers also made an application the collector under s. 84 for the summary eviction of respondent no. 1 on the ground that the transaction was void as being in violation of provisions of ss. 63 and 64 of the act. the collector passed an order that the sale made by the appellant should be treated as void and the village records be corrected accordingly. the revision was dismissed by the revenue tribunal. a writ petition was filed in the high court which remanded the case to the collector. the collector again declared the sale to be void and his order was confirmed by the revenue tribunal. a writ petition against the order of revenue tribunal was dismissed by the high court. in 1956, the act of 1948 was amended and s. 84-a was added. fresh proceedings were started by respondent no. 1 under s. 84-a and the mamaltdar validated the transfer of land in his favour. however, his orders were set aside by the collector. a writ petition was again filed in the high court and the same was accepted. it was held that the provisions of s. 84-a applied in the present case. the appellant came to this court by special leave. accepting the appeal, held: (per subba rao and mudholkar, jj., raghubar dayal j., dissenting) (i)the provisions of s. 84a are prospective in the sense that they bar the making of any declaration or a finding that a transfer is invalid after its coming into force. it does not affect an adjudication in which the transfer had already been held to be invalid. in the present case, the collector had declared the sale to be invalid and his order had been confirmed by the revenue tribunal. the writ petition against that order was ultimately dismissed. the order of the collector having become final, could not be questioned after the inclusion of s. 84a in 1956. (ii)for invoking the provisions of s. 84, it is not necessary that an application must be made by the landlord alone. any person interested can resort to the remedy provided therein and when that is done, it is the duty of the collector to decide whether the person sought to be evicted is or is not in possession in pursuance of an invalid transfer. per raghubar dayal, j: though the collector has necessarily, in certain proceedings under s. 84 of the act, to record a finding that a certain sale is invalid and consequently the person in possession, on its basis, is in unauthorised possession, he has no power to formally declare the sale deed to be invalid. ordinarily, it is for the civil court to make a formal declaration about the validity of a deed. however, the order of the collector deciding that the sale deed was invalid, had not become final by the time s. 84a was introduced in the act on august 1, 1956 and hence the respondent no. 1 could take advantage of the provisions of s. 84a. he could have his sale deed validated on payment of the requisite penalty under s. 84-a 1. hence the mamaltdar had correctly issued the certificate of validity and the order of the high court setting aside the order of the collector and the revenue tribunal and restoring that of mamaltdar, was according to law. - originally 20 persons were tried and convicted for the same offence and received a like sentence. 6. we are, therefore, satisfied that the proper inference was drawn in this case.hidayatullah, c.j. 1. these are 14 appellants who appeal against their conviction under section 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 at about 11-30 p.m.2. 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 nala 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 dark 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.3. 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 cloth 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 section 395 of the indian penal code and sentenced them to 5 years' rigorous imprisonment and fine of rs. 100/-.4. in this appeal, the only contention raised by mr. a. s. r. chari is that the presumption that they were dacoits ought not to have been drawn since the circumstances do not admit the drawing of such a presumption in the case. according to mr. chari. the presumption to be drawn ought to have been one under section 411 of indian penal code or at the most under section 412 of the indian penal code but not of complicity in the crime of dacoity. he contends that the circumstances under which the one presumption or the other may be drawn under section 114 of the indian evidence act have not been stated by law and therefore it is necessary always to start with the lesser presumption and draw the higher presumption only wheel there is some other evidence to show the complicity of the persons in the crime itself. according to him there is no other evidence in the case which points 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.5. in our opinion, the law advocated by mr. chari is not correct. if there is other evidence to connect an accused with the crime 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 presumption 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 number of searches were made and the goods were found with various persons who were prosecuted as offenders and they have been presumed to be involved in the dacoity itself. it may be noticed that from each person a large number of goods of the same type such as 20 choli pieces 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 offenders to have disposed of the property to these appellants or to have left the goods in their custody till such time as the original offenders could have taken them away.6. 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 whom the goods were found 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.7. 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 years' rigorous imprisonment. the sentence of fine will stand. the appeal is allowed to this extent.