- (1.) THIS is a revisions by the accused Doongia against the appellate order of the Sessions Judge Pali, by which he upheld the conviction of the petitioner under sec. 215 of the Penal Code. The accused has been sentenced to six months' rigorous imprisonment.
(2.) THE case for the prosecution may shortly be stated as follows. One Roopa Meena of Baghawas found on the night between the 19th and 20th September, 1952, that a part of his bullocks had disappeared from the well Mithania within the limits of Moja Baghawas where he was doing his cultivation. It is alleged that next morning Roopa went to the accused Doongia and asked the latter to help him to find out the missing pair of bullocks. Doongia demanded some remuneration for the purpose and Roopa agreed to give him a sum of Rs. 80/- and one maund of wheat in case the bullocks were restored to him. Fortunately, is so happened that Doongia found both the thief who had stolen the bullocks and his name was Poonma, and also the pair of bullocks. When the pair of bullocks was returned to Roopa, the latter paid Doongia the promised sum of Rs. 80/- and one maund of wheat. It is also in evidence that Doongia had disclosed the same of Poonma to Roopa. All this happened on the next day, that is, 20th September, 1952. Later on 9th of November, 1952 Poonma is alleged to have conveyed information of the theft of Roopa's bullocks to the Sub-Inspector of Police, Guda, whereupon a case was registered against the accused and Poonma himself on 13th December, 1952. Poonma was convicted of an offence under sec. 379 I. P. C. and sentenced to two years' rigorous imprisonment and the present petitioner was convicted of an offence under sec. 215 I. P. C. and sentenced to six months' rigorous imprisonment. We are concerned with the case of Doongia only in the revision. I may state at the very out-set that I am not prepared to interfere in this revision with the concurrent findings of fact arrived at by both courts below. These findings may be briefly summarized as follows. Firstly there is no doubt whatever that Roopa's bullocks were stolen; secondly, there is also no doubt that Doongia petitioner demanded some gratification for his labour in order to find out the missing pair of bullocks, and obtained a sum of Rs. 80/-and one maund of wheat from the complainant Roopa; thirdly, it is also plain and admits of no doubt or dispute that Doongia knew who the thief was but he did not report the matter to the police and did nothing to cause the offender to be apprehended or convicted of the offence which Poonma had committed. The question to decide in these circumstances is whether the act of the accused Doongia fell within the mischief of sec. 215 of the Indian Penal Code. It was strenuously urged by learned counsel for the petitioner that in order that an offence under the said section is established, the prosecution must prove that the accused had the intention to screen the offender from/justice as a condition precedent to conviction under that section. Learned counsel relied on Ram Naresh Vs. Emperor (1) (A. I. R. 1931 All. , 710.) and Haji jan Mahomed Vs. Emperor (2) (A. I. R. 1935 Sind, 105.) in support of this plea. I have carefully examined the facts of these cases and have arrived at the conclusion that they are clearly distinguishable from the case before me. In Hajijan Mahomed Vs. Emperor (2), it was held that the accused did not know who the offender was, or, at any rate, that there was genuine doubt abut his knowledge in that respect, and on that finding the learned Judges came to the conclusion that benefit of doubt must be given to the accused. In Ram Naresh Vs. Emperor (1) (A. I. R. 1931 All. , 710.), Bajpai J. held that there was no evidence that the bullocks were stolen, nor was there any evidence of the fact that the accused knew the offender, and it was, therefore, obvious that it could not be said that the accused had failed in his effort to cause the offender to be apprehended and convicted of the offence which he might have committed. The learned Judge further proceeded to say as follows : - "where the accused merely undertakes to endeavour to trace out and restore the lost property on payment of some remuneration then upon this circumstance alone the accused cannot be said to be guilty of an offence under sec. 215, unless over and above that the prosecution proves that the property has been lost by the commission of an offence and that the accused is endeavouring to screen the offender from justice and is not using all means in the power to cause the offender to be apprehended and convicted of the offence which he has committed. " Learned counsel has laid great stress on the expression "that the accused is endeavouring to screen the offender from justice. " and has argued that until that particular requirement was established by the prosecution in this case, the conviction of the accused cannot be sustained. This argument, in my opinion, is without any substance. A case can be taken to be an authority with reference to its own facts and upon which it is based. As I have already pointed out above, there was a two-fold defect in the Allahabad case. First, that there was no evidence that the missing property was stolen; and secondly there was no evidence that the accused knew who the criminal was. In such state of circumstances, it is obvious that no conviction under sec. 215 I. P. C. could be sustained, and the learned Judge was perfectly correct in the actual decision at which he arrived, if I may respectfully say so. But, again with great respect, the learned Judge went too far when he laid down that it was for the prosecution to prove that the accused was endeavouring to screen the offender from justice. It is necessary to point out that the language of sec. 215 I. P. C. is quite plain and does not contain any such requirement as contended for by learned counsel, and it is not open to this Court to introduce words in the section, which do not exist there. All that is necessary to bring an offence home under sec. 215 I. P. C. is, first, that the missing property must have been stolen, and secondly that the accused must have consented to take gratification under pretence or on account of helping the recovery of the stolen property. When these ingredients are fulfilled in a case, the offence is complete. An exception is, however, provided in the subsequent part of the section which says that an act of the description set out above will not amount to an offence if the accused has used all means in his power to cause the offender to be apprehended and convicted of the offence. But it is for the accused to plead the exception and no such exception was pleaded in the present case. The view taken by me above is supported by the case reported as Arman Ullah vs. Jainulla (1) (34 Cr. Law Journal. 1016. ). In that case it was held that "the screening or attempting to screen the offender is not necessary ingredient u/s. 215 IPC. " It was further held that the proviso to sec. 215 is only an exception to the liability under the section and once the elements of an offence under sec. 215 have been established by evidence, the onus of proving that the person charged is entitled to the benefit of the exception, is on the defence. " For these reasons, I have no hesitation in coming to the conclusion that the accused was rightly convicted of an offence under sec. 215 IPC. The next question to which may attention has been invited is that of the sentence. It has been urged that the accused had no desire to screen the offender that he had disclosed his name to the complainant Roopa and his companions at the earliest possible opportunity. It also appears that the accused is an old man aged sixty years, and has served a sentence of two months already. It is further urged that as the complainant had said that he would report the matter to the police himself, the accused did not think it was necessary for him to report the matter to the police as he was an ignorant villager and did not realize the consequences of his own omission to comply with the duty which sec. 214 casts upon him and person in the like position. Taking all these facts and circumstances into consideration, I have reached the conclusion that the sentence awarded to the accused be reduced to that he has already undergone. With this slight variation, this revision application is hereby dismissed. The bail bond of the accused shall be discharged. .;