Bishan Prasad v. The State Of Bihar Opposite Party.

1. This rule has been issued on the application of one Bishun Prasad, who was convicted under S. 411 of the Penal Code, and sentenced to suffer rigorous imprisonment for six months. He was also convicted under S. 414 of the Penal Code, and sentenced to undergo rigorous imprisonment for six months. The sentences were ordered to run concurrently. His appeal has been dismissed by the Assistant Sessions Judge of Barh.

2. The facts that have been found by the Courts below are that on the 22nd February, 1964, at about 9 a.m, a constable named Sarjug Singh, who was posted at Hathidah outpost, lodged a first information report to the effect that on that date earlier at 5-80 a.m, he had received information from a man of village Maranchi that two Railway Protection Force Rakshaks were found selling sugar after having removed the same from the railway wagon standing on the railway line in front of the village. During the course of the investigation of the case, the Investigating Officer had learnt that two railway wagons had been tampered with and few bags of sugar were missing from one of them, which had to pass earlier on the railway line through the place of occurrence, which appeared to be at Jhajha.

3. The Courts below have accepted the prosecution evidence to the effect that six bags of sugar had been pilfered from one of the wagons in front of the said village Miranchi between the 21st and the 22nd February, 1964, at the time when this petitioner along with another Rakshik named Lakhan Paswan was present. This Lakhan Pagwan was also convicted, but as stated earlier, the petition is only by Bishun Prarad.

4. The defence was that this petitioner and the other offender travelled by the up train which was a Fast Passenger having left Rampur—Dumra Station at about 8.25 a.m, and had arrived at Mokameh Junction at 8.58 a.m, on the date in question. Their further defence was that they had been falsely implicated on account of enmity. It was said that on the 31st January, 1934, constable Sarjug Singh (informant of this case) was carrying some packets of contraband Ganja which he tried to pass, but was detected by one Rikehak, and the matter was also reported to superior officer. For this reason, the informant was on inimical terms with all the Rakshaks of the Railway Protection Force and had there, by falsely implicated the two accused persons. The defence has not been accepted by the Courts below.

5. Appearing for the petitioner, Mr. Nageshwar Prasad has firstly urged that there is no evidence that the sugar said to have been sold by the petitioner was stolen property. His further contention is that there is also no evidence that this petitioner had retained such property, or was knowingly sailing it. In other words, it is urged that the prosecution has not proved by satisfactory evidence his knowledge so as to establish necessary ingredients for the offence either under S. 411 of the Penal Code, or under S. 414 of the Penal Code. There can be no doubt that the law is that when some property is proved to be stolen and the person who is found to be in possession cannot account for its possession, specially when he is found in possession of it soon after the theft of the property, it is only reasonable to conclude that not only he was in possession of the property knowing the same to be stolen, but that his possession of it was dishonest. A mere perusal of the judgments of the Courts below indicates that there has been no real discussion of the evidence on the question whether the sugar being said by this petitioner and the other accused person was stolen property. The learned Magistrate has no doubt set out as to who were the witnesses on this point and the appellate court as also followed the same reasoning as was adopted by the learned Magistrate, but neither of them have discussed their evidence with any clarity.

6. Learned Counsel, therefore, took me through the evidence of the prosecution witnesses, specially that of P.W 7, a Railway Clerk of Jhajha Railway Station, and P.W 4, a Railway Protection Force Constable posted at Kiul on the 22nd February 1964, to show that there was absolutely no evidence that the sugar which was being sold on the day in question was stolen property. The finding arrived at by the appellate Court, which is contained in paragraph 12 of its judgment is that P.W 7, a Railway Clerk of Jhajha Railway Station, had proved that he chesked the railway wagon and had found six bags of sugar short at Jhajha on the 24th February 1964. It further found that the evidence of P.W 7 was supported by the evidence of P.W 4, a constable posted at Kiul on the 22nd February 1964, and where he found the said wagon tampered. The appellate Court, therefore, took the view that the statements of the said two witnesses went to show that six bags of sugar were pilfered from the said wagon in front of the said village Miranchi between the 21st and 22nd February 1964, when the two accused persons were on duty at Rampur Railway Station. The contention of learned Counsel for the petitioner that this evidence is not sufficient to establish or to prove unmistakably that what was found short at Jhajha on the 24th February 1964 was out of the same wagon which could be said to have been pilfered between the night of the 21st and the 22nd February 1964, for which these two accused stood their trial. In my judgment this contention must be accepted as correct, because the Courts below appear to have acted merely on assumption and not on any legal evidence. It is unfortunate that this Court in revision had to look for itself into the evidence in order to find out whether the findings arrived at by the Courts below were supported by the evidence on the record.

7. Learned Counsel has then contended that the prosecution has not examined a single witness to prove that any one had purchased sugar from this petitioner or the other accused person, who are said to have sold the sugar jointly. The evidence of the informant (P.W 8), or that of P.W 1, who has corroborated the statements of P.W 8; that he had found sugar being sold by the two Railway Protection Force Rakshaks on the railway line in front of village Miranchi will, in my opinion, not be sufficient to establish what was required for the prosecution to prove in this case.

8. It has been contended on behalf of the State by Mr. Jamuar that the accused person should have given some explanation as to how he came in possession of the sugar which was being sold on that day. This contention is without merit, because it is not for the accused to prove how he came to possess the sugar which is said to be the stolen property. It was for the prosecution to prove that the petitioner who is said to have been selling sugar, had definite knowledge that such property was stolen property. In the present case it has not been shown that the sugar which was being cold was stolen property. All that has been shown is that two bags of sugar had been pilfered from a railway wagon which had been found two days later, i.e, on the 24th February 1964, at Jhajha Railway Station. But the occurrence was of the 22nd February 1964, and there is no evidence to connect between what had happened by the sale of sugar by the petitioner, and the finding of the pilfered was on later on, i.e, the 24th February 1964. It is, therefore, quite clear that the prosecution has not proved by satisfactory evidence that the sugar sold was stolen property. In my opinion, the other question whether the accused knowingly sold it would not therefore, arise. Even if it arose, then there is no evidence to show that the petitioner had any knowledge of such theft.

9. It was also urged on behalf of the State that it was a serious matter in which two Rakshaks had been involved in such a serious crime. It is true that the petitioner is accused of a serious offence, and there is also suspicion that he might have been guilty for the offences for which he was tried, but the accused is entitled to say that there is paucity of the evidence, and no amount of suspicion can take the place of proof, which is lacking in this case. In the circumstances, there does not appear that the convictions of this petitioner under either of the two Sections 411 and 414 of the Indian Penal Code, can be sustained. I would, therefore, make the rule absolute, set aside the convictions and sentences passed upon the petitioner, and acquit him.

TC/DVC

10. Revision allowed.