Judgment

HIDAYATULLAH, C.J.I. : - 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. 10000/- passed on them. Originally 20 persons were tried and convicted for the same offence and received a life 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 Linsugur 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 S. 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 the Indian Penal Code or at the most under S. 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 when there is some other evidence to show the complicity of the person 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 of her evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits off 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.