- (1.) THIS is a revision by the accused Chunia who has been convicted under sec. 411 I. P. C. and sentenced to one year's rigorous imprisonment and a fine of Rs. 700/- by the two courts below. It has been further ordered that a sum of Rs. 500/- out of the fine, if recovered be given to the complainant Arjunsingh.
(2.) THE material facts are these. On the night between the 11th and 12th February, 1954, a theft was committed in the house of the complainant Arjunsingh at Nimbaheda in a room on the first floor. It is said that a relation of Arjun Singh, namely, Nathusingh and another person Babulal were also sleeping in the said room. At about 2-30 a. m. Nathusingh heard some noise and called Arjunsingh. Arjun Singh immediately came and found that the door of the room had been opened and that one of his boxes containing gold and silver ornaments and clothes was missing. He immediately raised an alarm and some sort of a search was made for the thief but without success. Arjunsingh lodged the first report at Thana Nimbaheda at 4 a. m. Naturally the names of the thief's were not mentioned in the report. Arjun Singh said in the first report that ha would soon file a list of the stolen property and this list Ex. P-G was put in apparently on the morning of the 12th February, 1951. It appears that one Narain who was one of the two accused in this case and was eventually acquitted was interrogated by the police some time after the theft in question took place and the prosecution case was that a box containing a good deal of the stolen property belonging to Arjun Singh was recovered at the instance of Narain from a well on the 16th June, 1951. As a result of further investigation on the 19th June, 1951 the present petitioner Chunia produced a pair of silver ornaments called lungars from his own house. It may be mentioned at once that the case of Chunia is that this pair was his own and belonged to his wife. On the 17th June, 1951, certain other articles out of the alleged stolen property of Arjun Singh were recovered from Amritram Jat. This recovery is said to have been made at the instance of the accused Narain. On the 2/th June, 1951, a gold bor was produced by Bherunlal, and Bherunlal's version was that the said bor had been pledged with him by the petitioner Chunia in the preceding winter as a security for a loan which he had earlier advanced to Chunia. It further appears that an identification of the stolen property was held before a Magistrate at which Arjun Singh identified the lungars and the bor and certain other articles to be his. THE police eventually challaned Narain and Chunia and one other person Harji under sec. 457 and 380, I. P. C. in the court of the Sub-Divisional Magistrate, Nimbaheda. THE learned Magistrate discharged Harji and acquitted Narain by giving him the benefit of doubt and convicted the present petitioner Chunia under sec. 411 I. P. C. and sentenced him as already stated above. THEreafter the accus-went in appeal to the learned Sessions Judge, Pratapgarh, who upheld his code viction and sentence. Hence this revision. The petitioner Chunia pleaded not guilty and disclaimed all connection with the crime alleged against him. So far as the pair of lungars produced by him is concerned, his plea was that that belonged to bis wife. Chunia also denied that he had ever sold or pledged any articles to P. W. Bherun-lal or Amritram. The petitioner also produced some evidence to show that the pair of lungars was his own property. The lower appellate court appears to have upheld the conviction of the petitioner on three pieces of recovery. The first is the recovery of the lungars, the second is the recovery of certain silver rings and one silver kataria produced by P. W. Amritram ; his version being that they had been given to him by Chunia and Narain accused. The third piece of evidence is recovery of a gold bor from P. W. Bherunlal. Bherunlal's evidence was that Chunia had pledged it with him as a security for a loan of Rs. 75/-which he had advanced to Chunia sometime ago. According to Bherunlal the pledge of the gold bor had been made with him by Chunia in the winter of 1951. It may also be pointed out here that the trial court also appears to have relied on these recoveries although it has not dealt specifically with the other recoveries than that of the pair of lungars. It has been strenuously contended before me on behalf of the petitioner that the recoveries have not been properly proved and that in any case they do not establish the guilty possession of the petitioner. I have been taken through important portions of the record and have arrived at the following conclusions. So far as the recovery of lungars is concerned, it does appear to me that the approach of the courts below has been not quite correct. The case of the prosecution is that the pair of lungars belonged to Arjun Singh. There was a mention of this ornament in the list furnished by Arjun Singh to the police and according to Arjun Singh he put in this list in the morning of the 12th February, 1951. Arjun Singh also identified this pair of lungars to be his. At the same time he appears to have admitted in the course of his deposition that the pair of lungars was one of common pattern and that there were no distinguishing marks by virtue of which he could definitely distinguish that pair from any other. It is well to remember in this connection that the case of the petitioner is that the lungars belonged to his wife and he has also produced some evidence to that effect. The courts below appear to have been under the impression that as if it was the duty of the accused to have proved to the guilt the ownership of the pair of lungars in question. To my mind, this approach is not quite correct and the accused cannot be expected to undertake any such burden of proof as was placed on him by the courts below. In all the circumstances of the case, it appears to me that the matter is not free from a certain amount of doubt and I am, therefore, not prepared to hold this piece of recovery to have been established according to that degree of proof which is necessary in a criminal prosecution. The second item of recovery upon which the lower appellate court has relied consist of certain silver rings and a kataria which were recovered from Amritram. Amirtram's evidence is that these articles were brought to him by Chunia and Narain and sold to him for Rs. 325/ -. No specific part was assigned to Chunia in this deal. Chunia may have been an innocent or a mere passive companion to Narain. It seems to me that on such evidence it is difficult to attribute the guilt to Chunia alone with any degree of safety. I would, therefore, hold that this evidence is also not sufficient, by itself, to convict Chunia. We are then left with the recovery of the gold bor. This, as already stated, was produced by Bherunlal P. W. and his evidence is that Chunia had pledged it with him as security for a loan of Rs. 75/- which had been advanced by him to Chunia sometime ago. I have been taken through the deposition of Bherunlal and am bound to say that his testimony was not subjected to any serious cross-examination on the part of the accused petitioner. There is nothing to show that Bherunlal had any animus against the petitioner so as to implicate him falsely in a crime of this character. The gold bor has been identified by Arjun Singh to belong to his wife and his testimony clearly is that he had purchased it himself about two years ago. So far as the accused is concerned, he flatly denied to have had anything to do with the bor or to have given it over to Bherunlal. If Bherunlal had not been given the bor by Chunia, the only legitimate inference would be that Bherunlal had made a present of some jewellery of his own to the police. This suggestion has. however, only to be mentioned to be rejected. I, therefore, entirely agree with the court below in its conclusion that the gold bor was part of the stolen property of Arjun Singh and that it was up to the petitioner to have explained how he had happened to come by it and pledge it to Bherunlal, which circumstance he has entirely failed to explain. I have, therefore, no hesitation in holding that the possession of the accused with respect to this bor was criminal within the meaning of Sec. 411 I. P. C. and that he has been rightly convicted under that section. It was strenuously argued by learned counsel for the petitioner that the actual person from whose possession the bor was produced was not the accused but Bherunlal ; and, therefore, the petitioner could not in law be convicted of an offence under Sec. 411 I. P. C. Having given my careful consideration to this ingenious argument, I have come to the conclusion that it is not necessary for conviction under Sec. 411 I. P. C. that the stolen property should have been physically produced from the actual possession of the accused. All that is necessary for the prosecution to show is that the accused person after the property was stolen came into control of the stolen property and that he did so dishonestly or having reason to believe that it was stolen. If the view propounded by learned counsel for the petitioner were to be accepted, then, it would lead to startling results, and all that a guilty receiver of stolen property has to do is to somehow pass on the manual possession of the property to a third party and thereby entirely escape his guilt. I have no doubt that such a result is not contemplated by Sec. 4)1 I. P. C. In support of the view discussed above I may refer to R. vs. Miller (1 ). In that case E. was charged with theft and M. with receiving stolen goods knowing them to have been stolen. The evidence given was that E. came into the shop of M. behind the counter where M. then was, M. called her servant and directed her to go and pawn the goods and to give the proceeds to E. The servant took the goods from E. went and pawned them, and handed the proceeds to E. in her mistress's shop and in the presence of her mistress M. It was held that the evidence was sufficient to sustain the charge against M. and that the receiving of the goods by her servant under the circumstances was equivalent to the actual receipt by herself and that the possession of the goods need not be a manual possession. In another case R. vs. Thomas Smith (2), the prisoner was charged with receiving a watch knowing it to have been stolen. The complainant was relieved of his watch at a public house where the prisoner and one. M. and several other persons were present. A search was made for the watch but it was not found. After a short time the prisoner went to the complainant and told him what he would give to have his watch back. The complainant told him that he would give him a sovereign. The prisoner and certain witnesses then went into a room where it was. There was a table in the room and the watch was not there when they had entered the room ; but after a few minutes the watch was seen there and one of the witnesses said it must have been placed there by H. The prisoner told one of the witnesses to take the watch and get the sovereign. The witness went to the complainant and in a few minutes the prisoner and H. came and H. asked for the reward. It was found that though the watch was in the hand or pocket of H. , it was in the absolute control of the prisoner and that his conviction for receiving stolen property was proper and that manual possession of the property was unnecessary and that all that was necessary to show for a conviction on the charge was that there was control by the receiver over the stolen property. I am in respectful agreement with the view adopted in the above-mentioned cases and hold that where the prosecution has successfully established that the accused came into effective control of the stolen property and knew or had reason to believe that it was stolen it would be sufficient for holding him guilty of the offence of receiving stolen property. I may also add that where the accused pawned the stolen property, as he did in the present case and has been found by the court below, the case stands on even a higher footing and such a case clearly satisfies the condition that the accused had come into possession of or had received the stolen property although at the time it was actually produced, it was produced not from the physical possession of the accused but from that of the pawnee. In this view of the matter, I have no hesitation in repelling the contention raised on behalf of the accused petitioner and hold that Chunia cannot escape responsibility on the plea that at the time the gold bor was produced before the police, it had not been produced from his possession but from that of Bherunlal. I may state once again, that the petitioner's denial that he had ever taken the bor to Bherunlal or had pawned it with him is a clear proof of his guilty knowledge that at the time the petitioner came into possession or control of the bor, he knew that it was stolen property. The result is that the petitioner Chunia has been properly convicted under section 411 I. P. C. and I uphold his conviction. Coming next to the sentence, I am informed that the petitioner has already undergone 8 months' rigorous imprisonment and has also paid the fine of Rs. 700/ -. In all the circumstances of the case, I am disposed to think that the sentence undergone by him is sufficient and that the petitioner who is out on bail need not be sent back to jail. With this slight modification as to the sentence this, revision fails and is hereby dismissed. The petitioner need not surrender to his bail bond. . ;