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Rajasthan High Court
Wanchoo C.J. & Dave, J.
The State - Appellant
Versus
Indraj - Respondents
S.B. Criminal Appeal No.102 of 1953
Decided On : September 12, 1955
Whenever an accused person gets things recovered from an open filed, there are three possibilities always present, viz. (1) that the accused might himself have buried the things in the filed, (2) that the might have seen some other person doing so, or (3) that he might have been told by some person who had seen somebody burying the articles. It is only when the court can draw the first of these conclusion in a particular case that the court can say that the accused was in possession of the articles found buried in an open piece of land. In other words, the mere recovery of the articles at the instance of an accused person, and the absence of any explanation by him as to how he came to know that the articles were there, is not sufficient for the court to come to the conclusion that the articles must have been placed in that place by the accused and that he could not have acquired information about the presence of the articles at that place in some other manner. (Para 6)
But where the accused has given an explanation as to how he came to know that those things would be found in a particular place and the explanation is that he himself is responsible for burying them there under such and such circumstances; in such a case the court has to judge the explanation along with the other evidence of the case and decide whether the explanation can be accepted. By giving such an explanation, the accused immediately negatives the other two possibilities, namely, that he had seen somebody else burying the things or that he had been told by someone else that a third person had buried those things in that particular place. In such a case, only one explanation remains, namely, that the accused is responsible for burying the things at that particular place and was thus, in possession and the court has taken to look to the explanation and the rest of the evidence to decide whether in the circumstances, the accused can be convicted of theft or receiving stolen property. (Para 6)
2. The prosecution case was briefly this. Shivkaran and his family lived in Nangal Bari. He and members of his family had gone out to their fields on the morning of 29th of September,1952 and had shut up the house When they returned in the evening they found that the door of the house was open and that the lock of an almirah inside the house had been broken. The almirah contained Rs. 350/- in currency notes and a tin-box containing gold and silver ornaments. The money as well as the box of ornaments was found missing. It was also stated in the first report that the house of the accused Indraj was next door and that the accused knew that the money add ornaments were in that almirah. Suspicion was expressed against Indraj on the other ground that he was a gambler It was also explained that there was delay in the report as they were trying all along to find out about the theft
3. The report of the incident was made in the Thana on the 3rd of October, 1952. The police arrived on the scene on the 4th of October and it is said that a list of stolen property was prepared on that day. The list is Ex. P. 5. This .list was prepared, as there was not a complete list of the stolen property in the first report where only a few ornaments were mentioned and it was stated that the details would be given by Shivkaran and his wife. The case for the prosecution further is that on the 6th of October 1952, the accused told the police that the stolen property would be found buried at a certain place. Thereafter the accused took the police to the Bara of one Shivram and the property was recovered from that Bara. It is not in dispute that the Bara is practically an open place accessible to all and sundry. The accused was prosecuted under secs. 454 and 380 of the Indian Penal Code by the police after this recovery. The Magistrate framed a charge under sec. 454 of the Indian Penal Code but came to the conclusion that the offence had not been proved as the prosecution had failed to prove that the articles belonged to Shivkaran and his daughter.
4. It may be mentioned that a large number of ornaments along with some cash was recovered from the Bara of Shivram in a tin-box. This tin-box is said to be the same which was taken away from the house of Shivkaran. The accused gave a story of his own about this recovery. That story was that the ornaments recovered as well as the money found in the box belonged to the accused. The Police had started beating up the accused and consequently, the accused put the ornaments and Rs. 236/-in the tin-box and brought them from his house and gave them to one Maidhan. He told Maidhan to hand over these things to the police and save his life, as otherwise the police would not rest content till he was killed Maidhan took the ornaments and the money along with the box to the Police. The Police, however, refused to accept the box containing these things in that manner and suggested that the box should be buried somewhere in a heap of rubbish and the accused should take it out from that rubbish and give it put to the Police. Consequently, Maidhan buried this box containing ornaments and money in the rubbish heap and told the accused where he had buried it and asked him to take it out and hand it over to the police. So the accused took the Sub-Inspector to that rubbish heap and in the presence of witnesses took out the box from the rubbish heap and handed it over to the sub-inspector. The Sub-Inspector then opened the box and prepared a list of things found in it.
5. The accused had also made a confession Ex. P. 7. He, however, retracted it in the Magistrates court and said that he had made it because of the fear of the police. We need not, however, refer to this confession in detail because the Magistrate, who took down this confession, did not give the certificate un
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