M.L.Shrima, J. - (1.) A represented appeal No. 8 of 1975 filed by Paras Ram and the other appeal No. 68 of 1976 filed from Jail by accused Roshan arise out of the same incident and common judgment and, as such, both of them are being disposed of by this common judgment.
(2.) Accused Teeka, Mani Ram, Roshan, Kanahi, Ram Singh, Alladin and Bhoora were tried by the learned Addl. Sessions Judge, Dholpur, for committing dacoity in the evening of 27th August, 1974, at 8 p.m., in the way leading from the railway station Narpura-ki-tanki to Purani Chhaoni. Accused appellant Paras Ram was tried along with them under Section 412, IPC for receiving transistor which formed part of dacoity property. All the accused pleaded not guilty and claimed to be tried. The prosecution examined 8 witnesses. The accused denied their complicity in the crime, but did not examine any witness in defence. As the alleged eye-witnesses of the occurrence failed to identify the accused persons in the Court and during the test identification, the learned Additional Sessions Judge, Dholpur, acquitted Teeka, Mani Ram, Alladin, Kanahi, Ram Singh and Bhoora of all the charges framed against them. He, however, placing reliance on the information mentioned in Ex. P./15, dated 6th December, 1974, and the recovery of the transistor in consequence of the information given by the accused, Roshan, convicted him under Section 395, IPC and sentenced him to five years' rigorous imprisonment. The other accused Paras Ram was convicted under Section 411 IPC and sentenced to one and a half years' rigorous imprisonment.
(3.) The controversy in this case has been reduced to a narrow compass as the learned counsel appearing on behalf of the accused-appellants, looking to the conspectus of the evidence on record have frankly admitted that there are no grounds to contest that the transistor was recovered from the possession of the accused, Paras Ram, in consequence of the information given by Roshan accused, which formed part of the dacoity property. I have perused the record, and am satisfied that the prosecution has been able to prove beyond reasonable doubt the recovery of transistor from the possession of accused Paras Ram at the instance and in consequence of the information given by accused Roshan. The learned counsel appearing on behalf of accused Paras Ram has urged that the dacoity took place on 27th August, 1974 and the transistor was recovered from the possession of accused Paras Ram on 31st December, 1974. Thus a period of about four months has elapsed in between the commission of the offence and recovery of the article. He has further alleged that a perusal of Ex. P/8, license of the transistor, shows that the transistor, is of 1969 model, and purchasing such a transistor for a sum of Rs. 100/- cannot be said to be with dishonest motive. Accused Roshan was not a proclaimed offender, and there was nothing unusual in purchasing the transistor from him. The learned counsel for the accused-appellant contended that the nature of defence of an accused can be ascertained not only from the statement recorded under Section 313, Cr.P.C., 1973, but also from the trend of cross-examination of the prosecution witnesses, and can also be ascertained from the arguments of the accused's pleader at the close of the trial. The accused can also place reliance on the evidence produced by the prosecution. The explanation given by the accused is not required to be proved by positive evidence. The question which needs to be considered is, whether the explanation given by the accused is inherently or palpably false, or is such as to cause a reasonable doubt as to the guilt of the accused. It is not the law that if the accused falsely comes in possession of an article, he can be said to have received stolen article and must be convicted even if the other facts do not predicate the guilt of the accused, If the explanation given by the accused can be said to be reasonably true, the accused is entitled to an acquittal. The accused is a Gusai of a Math, and purchasing of 1969 model transistor for a sum of Rs. 1000/- need not impute mens real to him. I find considerable merit in his argument. It cannot be said beyond reasonable doubt that the accused innocently purchased the transistor from accused Roshan. In the proved facts and circumstances of the case, it will not be safe to maintain his conviction under Section 411, IPC. He is acquitted of the charge under Section 411, I.P.C. He is given benefits of doubt and his conviction and sentence awarded by the learned trial court is hereby set aside.;