- (1.) THIS is a revision by Bala Dangi against his conviction for offences under sec. 454 and 300 of the Indian Penal Code. He was sentenced to rigorous imprisonment for 6 months and 4 months respectively. He was also sentenced to pay a fine of Rs. 50/- on the first charge by the Magistrate, First Class, Pirawa, by judgment dated 5th of May, 1951. His appeal to the Court of Additional Sessions Judge, Jhalawar, was dismissed on 18th June, 1951.
(2.) ON the 10th of January, 1950,the complainant Jagannath and his people were away in their fields. Certain intruders entered into his house and stole a tin box containing some cash and ornaments of the value of over Rs. 600/ -. When Jagannath returned to his house he found that there was a hole in the kacha roof and that his box containing the valuables had been stolen. He reported the matter to Patel Narain who suspected Bala Balai and Bala Balai on being questioned implicated Bala Dangi. but the latter denied his implicitly whereupon a report was made at police station Himmatgarh on 20th January mentioning the details of the articles stolen and the alleged confession of Bala Balai and Bala Dangi before the Patel. The police after investigation challaned Bala Balai and Bala Dangi for offences under sec. 454 and 380 I. P. C. They also challaned Mst. Mehtab, mother of Bala Dangi, for having secreted the stolen property with intention to screen the offender from legal punishment under sec. 201 I. P. C. It has been alleged during the course of the proceedings that the portion of the stolen property was recovered on information supplied by Bala Dangi. The accused denied the charge, but the trial resulted in their conviction. They filed and appeal, whereupon Bala Balai and Mst. Mehtab were acquitted, and the conviction and sentence of Bala Dangi petitioner were maintained. In this revision it is contended by learned counsel for the petitioner that the conviction of the appellant rests solely on the evidence as to recovery of the stolen property, but the recovery was not made either on information supplied by the accused. It was urged that no articles ware recovered from the possession of the accused and the conviction of the appellant is not according to law. The judgment of the learned Additional Sessions Judge dealing with the case of Bala Dangi is as follows: - "now the case of Bala Dangi remains to be considered. There can be no doubt that the stolen articles have been dug out from a field quite adjacent to his well and that the appellant had led the police to a place which he dug out to recover the articles which he had concealed there and that when he did not find the articles there he said that probably his mother had removed the articles from there and that at his instance Mst. Mahtab dug out articles from the field alluded to from where the prosecution says they have been recovered. . . . . . Bala Dangi appellant made statement which fell under sec. 27 Evidence Act and the discovery of which facts ultimately led to the recovery of the stolen property. The appellant dug certain places to find the articles and when he did not find the articles there he asked his mother to discover the articles and they were ultimately so discovered. Under these circumstances it is only fair and reasonable to infer that the appellant had knowledge of the stolen articles having been concealed at a certain place and in the absence of any explanation as to how he acquired that knowledge it is also perfectly valid to infer that he was the person who was responsible for the concealment of the stolen articles and as these articles were discovered from a place which may be within his exclusive knowledge or under his control the possession of stolen property may legitimately be fixed on him. I, therefore, find him guilty and affirm his conviction. " The facts which have been proved in the case are that after his arrest Bala Dangi was questioned and the information which is relied on for his conviction is given in the following words in Ex. P. 4 : - "bala Dangi said that the box which he in company with Bala Balai stole from the complainant's house is lying concealed under his fodder and he will produce it. " The statement of the Investigating Officer, Mohammad Hashim, P. W. 8, is that on statement of Bala Dangi, Ex. P. 4, he took Bala Dangi made a search in the heep of his fodder but did not find the stolen property whereupon Bala Dangi said that perhaps his mother had placed the box somewhere as he had told his mother to place the stolen property (safely ). The witness also recorded this second statement, and it was Ex. P. 5. The witness then came to the house of Bala Dangi and called out Bala's mother Mst. Mehtab. who came and the stolen property was discovered on information supplied by her. Some of the stolen property had been buried underground in the field by Mst. Mehtab, while the box and some other stolen property was given by Mst. Mehtab from the bara. The farad of the recovery was Ex P. 2. The relevant portion of Ex. P. 8 is as follows: - "bala Dangi said that his mother Mst. Mehtab had removed the stolen property from its previous place to her house whereupon she was called and made face to face with Bala Dangi and Mst. Mehtab said that she had recovered the stolen property and had buried it under the steps of her well and had concealed the box in the bara of Bala Balai. " Ex. P. 2, the recovery list, says that certain stolen property was produced by Mst. Mehtab after taking it out from a place near the steps of the well of Bala Dangi and the box was produced by Mst. Mehtab from the bara of Bala Balai. Sec. 27 of the Evidence, under which the statements of Bala Dangi were held admissible, is as follows : - "provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered, may be proved. " The statement admissible should be one which relates distinctly to the facts thereby discovered. In the present case the first statement, Ex P. 4, is not admissible because no discovery was made on that information. The second statement is also not admissible because no fact was discovered thereby. What was said was that he guessed that his mother may have taken the property from the field to her house. It is not mentioned in the statement, Ex. 5, that this was done by Mst. Mehtab on request by the accused, and he was therefore only guessing what might have taken place without his knowledge. This is obvious for the property was not even recovered from the 3house of Bala Dangi but partly from some place in his field and partly from the bara of Bala Balai. The second statement is also, therefore, not admissible as it does not come within the proviso of sec. 27 of the Evidence Act. What happened in this case was that Bala Dangi only made a confession to the police and no fact was discovered in consequence of information supplied by him. There was no continuity in the process of possession of goods by the accused, as Mst. Mehtab acted on her own accord and the discovery of the articles on intimation given by Mehtab may lead to a knowledge on the part of Mst Mehtab as to the whereabouts of the stolen property, but it does not connect Bala Dangi with that discovery. The statement of the Sub-Inspector that Bala Dangi had stated that he had asked his mother to remove the stolen properly, if believed, could have connected the accused with discovery, but this version seems to be an afterthought, as it is not mentioned in Ex. P. 6, which the Sub-Inspector stated had been recorded by him on the spot, when Bala Dangi gave the statement. The possession of the property on the proved facts of this case can only be traced to Mehtab, but she has been acquitted, and the Government has not filed any appeal against her acquittal So far as the petitioner Bala Dangi is concerned, no fact was discovered at his instance, and no part of his statement made to the police is admissible. He cannot be credited with any knowledge as to the whereabouts of the property, and as to its possession, it has only been traced to Mehtab but not to the petitioner. There is no other evidence connecting the accused Bala Dangi with the crime. The revision is, therefore, allowed, the conviction of the petitioner Bala Dangi made by the learned Extra Magistrate, Pirawa, by order dated 5th May, 1951, and the order of the Additional Sessions Judge dated 18. 6. 51 confirming that conviction are set aside, and he is hereby acquitted. He is on bail and need not surrender. .;