Ajendra Nath v. State of Madhya Pradesh

Raghubar DaJal. J, RAGHUBAR DAYAL J.-This appeal, by special

leave, is directed against the order of the High Court of Madhya Pradesh reversing, on State appeal, the order of the Additional Sessions Judge, Hoshanga-bad, acquiting the appellant, and convicting him of an offence under s. 414 l.P.C.

Five bales, containing woolll'o shawls 2nd mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another bale despatched from Haimanpur to Kanpur were loaded at !tarsi railway 116:1 station on September !8, 1957, in Wagon No. C.R.

¶325The lock of the wagon was found broken open A.j1ndra NaJh v. at Pandhurna Railway Mation at about 1.00 a.m. Stal1of Ma• on September 20, 1957. Un checking at Nagpur Prailth the aforesaid bales were found missing. One of the bales despatched from Kanpur was found lying the next morning near the railway line between railway stations J aulkheda and Multai.

On September 23, 1957, the house of one Gop!

Nath, at Multai, was searched and certain articles, jncluding some torn labels were recovered frolll that house.

The same day, the police found the appellant and a few other persons come out of Gopi Nath's house <'.t. Betul, whose front door was locked.

Subsequently, these persons were taken to the police station, where the appellant made a statement showing readiness to point out the stolen property.

At his instance, the police recovered from different places of that house, woollen shawls, mufflen, bed· sheets and certain house-breaking implements. These recoveries were made on September 23 and 24.

As a remit of investigation, six persons were put on trial in the Magistrate's Court. Ajendra Nath, appellant, was charged under ss. 120·B, 379 and 414, I.P.C. Babu Ram was charged under ss. 120·B and 379 I.P.C. Ram Prasad and Gyani were charged under s. 120-B read withs. 379 I.P.C., Gopinath under s. 120-B read with s. 414 I.P.C., and Birendranath under ~. 414 l.P.C. The learned Magistrate acquitted Birendra Nath and convicted the other accused of the offence under s. 120-B read withs. 379 I.P.C., except in the case of Gopinath, who was convicted of the offence under s. 120-B read with s. 414 I.P.C. Ajendra Nath was alJg convicted of the offence under i. 414 I.P.C.

On appeal, the learned Additional Sessions J.jmdra Nath Judge, Hoshangabad, acquitted all these convicted

v. persons. He held that the property recovered was traiuh not proved to be stolen property and that the Ro.ghu b Dayal J. allegt>d conspiracy was not proved. The State filed

1r an appeal against the acquittal of Gopinath and

Ajendra Nath. The High Court dismissed the appeal against Gopinath and the appeal against Ajendra Nath for the offence of conspiracy. It however allowed the appeal against Ajendra Nath with respect to the offence under s. 414 I.P.C. It is against this order that this appeal has been filed by Ajendra Nath, appellant.

Ajendra Nath did not question the recovery of the. various articles from Gopi Nath's house at Betul at his instance. He did not claim the property to be his own, but stated that it was not stolen pro-perty. The main contention for the appellant in this Court has been that these recovered article~ were not proved to be stolen property. The articles consisted of those said to have been sent by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and bed.sheets sent by the firm of V.S.N.C. N arsingha Chettiar, which carries on business of wholesale Hand Loom Cloth at Karur.

The invoices relating to the four bales sent by the Kanpur Woollen Mills give the details of the shawls and mufflers the bales contained. A very large quantity of these has been recovered. Out of 95 shawls and 63 mufflers, as many as 80 shawls and 43 mufflers had been recovered. Similarly, out of 10 pairs of bed-sheets stolen, 8 pairs have been recovered. The absence of any adequate explai;i· ation for the presence of such a large quantity of articles similar to those proved to h:we l;>een des· patched by the Kanpur Woollen Mills or by the Karur company, the recovery of these articles within a few days of the theft, the presence of silk and paper I96J labels of Kanpur Woollen Mills on most of the .Ajen'r• Narfi shawls and mufflers recovered and of certain manu· •• script writings on the labels of the bed sheets by Stat• of MaJhya Prod1sA P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the Karur business, have been Razhubar D<3al J, taken into consideration by the High Cciurt for coming to the finding that the property recovered was proved to be stolen property. These circums· tances cannot be said to be such which would not justify the finding arrived at.

The main contention for the appellant however is that it has not been definitely established from the evidence of Kunzru, P. W. 10, that the shawls, muf-flers recovered were manufactured by the Kanpur Woollen Mills and were despatched in the bales which were subsequently stolen. Kunzru's evidence docs fall short of establishing that the shawls and mufflers recovered were manufactured by the Kanpur Woollen Mills. He has not identified the recovered shawls aad mufflers as those manufactured by these mills.

In fact, he was not even shown all the shawh and mufflers recovered. · He was shown by the Police Inspector, Government Railway Police,- two lois (two shawls) and two mufflers. He got them exami-ned by the textile expert and, on the report of the expert, gave the certificate that they appeared to be manufactured by the Woollen Mills of Kanpur. That expert has not been examined in Court and therefore Kunzru 's statement alone fails to establish that these shawls and mufflers were manufactured by these mills.

However, it is not open to doubt that they were manufactured by these mills when most of them had sewn silk labels of these mills and quite a good number of them had even paper labels mdicating that they were manufactured by these mills. There, is no reason to suppose and in fact no such sugges.

tion has been made that these labels had been put on these article• by some one for the purpose of

294 SUPREME COURT RE.PORTS [1964] VOL.

J.S63 deception. We therefore consider that the finding that .Ajandra Nath these shawls and muffiers were the manufacture of

v. Kanpur Woollen Mills is correct.

Stoll nj MaJkJa

P1ad1sh It was also contended for the appellant that it Ra:hubar Day1il J. was not proved that these shawls and muffiers were

in the bates which were despatched by the Kanpur · Woollen Mills and that the gate passes and the invoi-

ces produced by Kunzru were not proved as persons. who wrote them had not been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen .Mills. His cross-examination in no way indicates that his statement about the genuineness of the invoices and gate. passes was questioned in cross-examination. There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific num-bers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this connection reference was made to the fact that five of the shaw.ls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices. There can be a possibility of a mis-description in the invoices, There can be a possi-bility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are not claimed by the appellant as his own. So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property.

With respect to the identity of the bed-sheets, there is the evidence of P.Ws. 16 and 24. P.W.16 deposed that he had supplied IO pairs of bed-sheets to a certain customer who disowned the bale. There-upon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had despatched to Ahimanpur. He further deposed that 196J before despatching the goods they paste the firm labels on them. He stated that his younger brother Aj1ndra Nt;l/t. v. Krishna Murti had noted size·number and pattern St.11 oj .lfadlrJ• over these sheets in his hand.writing, as he happened p,atJ1sla to be at home on vacation. Krishna Murti, P.W.24, Razhuhar D'!Jal I. admits that certain labels on the bed-sheets were in his hand· writing, that he wrote them under instruc-tions of his brother and that he had not written simi-lar numbers on any other bed-sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub-Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well.

The learned Additional Sessions Judge did not rely on these statements and felt that the Investiga-ting Officer might have got those markings on the labels of the recovered articles during the investiga-tion. The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses· and for suspecting that the writings on the labels were obtained during the investigation.

No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were qhown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of comparison. We therefore see no good reason for considering the finding of the High Court with respect to the bed-sheets recovered to be stolen property to be wrong.

It was also contended that it was not open to the High Court to record a finding about -the recove-red property to be stolen property when the Govern-ment had not appealed against the other co·accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen 1963 property. We do not see any force in this contention. A,j1odra Nath The mere fact that the learned Additional S".ssions

v, Judge acquitted the other accused on the ground that Sttte Qf Madhya the property recovered was not proved to be stolen

Prod11h

property did not preclude the State from appealing Ra1hrfar Dayal J. against the acquittal of the appellant against whom

there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could chal-lenge the correctness of the findings of the learned Additional Sessions Judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.

Lastly, it was also urged that even if the iden-tity of the articles recovered with the articles stolen be established, no offence under s.414 LP.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appel-lant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen pro-perty. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the pro-perty recovered is stolen property and that the appel-lant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property falling to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, includ-ing the appellant, were found to be coming out of the back door of the house which had its front door locked. The appellant also knew the whereabouts 1963 of the property inside the house of his maternal grandfather. He attempted to sell a few muffiers a J.jm,ra •• Nath day before the recoveries were made. He was seen Stal• •! '-fa1hJ• arriving at the house, during the night, in a car with Prad!1h some persons and then removing property which Raghubar Dayal looked like bales from the car to the house. All these circumst.mces go to support the finding that he had a~sisted in the concealment of the stolen pro-perty and had thus committed the offence under s.414 I.P.C.

We therefore ·see no force in this appeal and, accordingly, dismiss it.

Appeal dismissed.

STATE OF ANDHRA PRADESH

v.

CHEEMALAPATI GANESWARA RAO & ANR.

(K. SuBBA Ri1.o, RAGHUBA.R DAYAL and j. R. MUDHOLKAR jj.) Criminal Trial-'-Joind.er nf charg" and pers<»U-Oon•· pirac71, charge of-If illegal after conspiracy fructifiea-Examination of accmed-Right of accv•ed to examine him.ielf aa witneM-lf duty of Oovrt to inform acc""ed of right-Pardota, legality of-Approver-Refreshing memory by reference to docu-ment•-lf Pormiasible-AamiMibility of evidence-Account Boo"8 -Ab1enee of entrie. •f payment. aUeged -Gode of Criminal ProceJure, 1898 (5 Bf 1~98), 81. 233 to 339,342,337,529,537-Indian Evidence Act. 1872(1of1872), 81.ti,ll,34,lli9,1~~.

A and B were tried together at one trial, A of offences under ss. 120-B, 409,477-A and 471 read with •· 476 Indian Penal Code and B of offences under ss. 120-B,409 read with 109

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 226 of 1960.

Appeal by special leave from the judgment and order dated July 28, 1960 of the Madhya Pra.desh High Court in Criminal Appeal No. 385 of 1959. A. R. Ohoubay and Naunit Lal, for the appe-llant.

I. N. Shroff, for the respondent.

1963. April 23. The Judgment of the Court was delivered by