Divatia, J.:— (After stating the facts of the case, his Lordship proceeded:) All the convicted accused have appealed to this Court, and the question is whether the accused who have confessed are guilty because of their confessions and production of property and the remaining accused guilty on the ground that they produced stolen property after having known or reason to believe that it was taken in dacoity. I will first deal with the confessions of accused 1, 3 and 7, because the prosecution relies on those confessions not only as against the confessing accused but also against the other accused who have been mentioned in them. As regards the confession of accused 1, it was made on 14th February before the Magistrate at Navalgund. On the 13th, the Sub-Inspector took this accused as well as accused 3 to Navalgund and the confessions were made on the next day. It is stated by accused 1 in his confession that he along with several other accused went to Hiremannur for the purpose of committing dacoity and some of the accused were armed with weapons. He himself did not go into the village but asked some of the other accused to go and he and one Rayappa remained in a field outside the village. It is stated further that some of the accused went to the village and after midnight they returned to the field after committing the dacoity. Thereafter they all went to a field near Datnal about half an hour before day-break and divided the booty which consisted of several gold and silver ornaments as well as cloth. Then the accused further stated that he took the property which fell to his share and concealed it below a Yekki tree in his field. On the next day the Police Sub-Inspector came and the accused was beaten and was forced to make a statement and thereupon he made a statement. The accused finally stated that he took the police to the place where he had hidden the property, pointed it out and handed it over to the Sub-Inspector.
2. It is urged by Mr. Jahagirdar on behalf of the defence that this confession is neither true nor voluntary and should also be rejected on other grounds. The main grounds on which it is challenged are, firstly, that the Magistrate did not give the accused sufficient time for reflection, that the accused was beaten and made to confess, that at the time when the confession was made the Magistrate did not examine the accused's body, and that the Sub-Inspector of Police was present at the time when the confession was taken. It is further urged that the confession was not taken down by the Magistrate in his own handwriting, nor did he make a memorandum as required by Section 364 of the Cr PC, and it is finally urged that instead of one certificate the Magistrate appended two certificates below the confession. Now, as regards the first ground, although it is true that the confession was made on the next day after the accused was handed over to the Magisterial custody, there is nothing whatever to show that period was not sufficient for reflection. There is no statutory period of time to which an accused is entitled for making a confession after he is sent to the Magisterial custody. All that is required is that he must have sufficient time for reflection, and the mere fact that the confession was made one day after the accused was handed over to the Magisterial custody would not by itself show that he had no sufficient time. I do not think, therefore, that the confession is bad on that ground. As regards the second ground that the accused was beaten and made to confess, he has not stated in the confession that it was taken by the police by beating him. If he had said that, the confession would not have been taken down at all. What is stated is that he was beaten at the time when the police took him for production of the property on the 12th. The confession, however, was made on the 14th. There is nothing to show that the alleged beating for taking his statement which even is not proved on the evidence, was given for the purpose of extorting his confession. That ground also must be rejected. Then it, is urged that the learned Magistrate recording the confession did not examine the accused's body as admitted by the Magistrate himself. It is true that the Magistrate says that he did not examine the body. But he further says that the accused did not complain to him that he was beaten at all. If the accused had so complained, it was certainly the duty of the Magistrate to examine his body, but, in the absence of such complaint, I do not think that the mere fact that the Magistrate did not examine his body may be regarded as an invalidating circumstance for the confession. It is then urged that the accused was brought by the Sub-Inspector before the Magistrate and that the confession was taken in his presence. On this point the learned Magistrate, who has been examined in this case, stated in his examination-in-chief that the Sub-Inspector had brought the accused for his confession, but he also said that he was directed to leave the place before recording it. In his cross-examination he says that the Sub-Inspector brought this accused as well as accused 3 to him on the 14th for their confessions but that he cannot say who brought them. He says that as soon as the accused were brought before him on the 13th, he questioned them whether they had been ill-treated by the police, and he noted on the yadi that there was no complaint against the police. The Sub-Inspector says in his deposition that before accused 1 and 3 were brought to the Magistrate for their confessions on the 14th, he had gone to the Magistrate to take accused 2 and 3 in his custody on remand, and while he was there, accused 1 and 3 were brought before the Magistrate for recording their confessions, and the Magistrate directed him to go away. On this evidence it cannot be said, in my opinion, that the Sub-Inspector was present in the room when the confession of accused 1 was taken by the Magistrate. It is no doubt proved that the Sub-Inspector was in the Magistrate's Court on the 14th because he wanted to take a remand order for accused 2 and 3. But the learned Magistrate himself says that he asked the Sub-Inspector to leave the place before the confession was recorded, and, I do not see any reason to disbelieve him, and the Sub-Inspector also says that the Magistrate asked him to go away. Then as to the contention that the confession was not taken by the Magistrate in his own handwriting and had not made any memorandum thereof, the learned Magistrate admits that he did not make any memorandum of the confession in English, but that the confession was recorded in the vernacular in his presence and he has appended this certificate at the end of the confession. No doubt under S. 164 read with S. 364 the Magistrate has to make a memorandum in his own handwriting, but that defect, as we have recently held is cured by the provisions of sub-s. (1) of S. 533 when the Magistrate is examined in the case. As the Magistrate has been examined and has given a satisfactory explanation of the same, I do not think the omission to make the memorandum in the Magistrate's own handwriting makes the confession inadmissible in evidence. Lastly, the contention that there were two certificates at the end of the confession instead of one has no force in it. Really speaking, a note has been added to the certificate which is attached to the confession, and the note simply states what the Magistrate did after the accused was produced before him. That note is not a part of the certificate. There is, therefore, no substance in that contention. In our opinion, the confession of accused 1 must be regarded as true as well as voluntary and it is undoubtedly evidence against him. The confession of accused 3 is also challenged on the same grounds, and for the same reasons which I have given above, his confession must also-be regarded as true and voluntary. As regards the confession of accused 7, he made it in the afternoon of the 14th before the Magistrate at Ron, and the inherent evidence of that confession shows that it must be true as well as voluntary. This accused says that he and accused 1 did not take part in the commission of the dacoity itself, that they were watching the clothes of the other accused, and they were sitting outside the house. Then he says that the other accused came to the field after committing the dacoity. The property was divided among the dacoits and he got for his share five tolas of gold and some clothes. There is nothing to show whatever that the accused made his confession at the instigation of the police, and we, therefore, regard it as true as well as voluntary.
3. I will now come to the evidence relating to production of stolen property by all the appellants. As against the non-confessing appellants, the only evidence is the production of property and, in the case of some of them, the three confessions in which they are said to have taken part in the dacoity. The latter evidence cannot be regarded as substantive evidence against them. At the most it may be taken into consideration, if there is other independent and reliable evidence to connect them with the crime. In all cases, the stolen properties produced by the accused have been identified by the complainant and members of his family. The main question, therefore, is whether each appellant was in possession of stolen property, and if so, what presumption can be drawn against each from the fact of such possession under illust. (a) to Section 114 of the Evidence Act. That illustration describes a person in possession of stolen goods soon after the theft as a thief or a receiver of stolen property unless he accounts for his possession. The illustration is not exhaustive but only indicative of the general principle embodied in the section that in making presumptions the Court should have regard to the common course of natural events and human conduct in their application to the facts of a particular case. However, the illustration has become the basis of a large number of decisions which are not altogether uniform in their application of the presumption underlying it. It is, therefore, necessary to consider when and in what manner the presumption would arise.
4. The condition precedent for the application of the illustration is that the accused must be in possession of stolen goods. Where they are on the person of the accused, as is the case with accused 11, or in the houses or fields exclusively occupied by them, as is the case with several accused in the present case, there can be no doubt that they must be deemed to be in their possession. But in quite a number of cases — and some of the, accused before us come under that class — stolen property is produced without making any incriminating statement from a place which is not exclusively occupied by them or which is of the ownership of another person. In such cases a good deal depends upon whether the production was accompanied by information given by the accused in custody as would be admissible in evidence under Section 27 of the Evidence Act. Under that section so much of the information as relates distinctly to any fact thereby discovered and disposed to in Court would be admissible. Such information can be relied upon by the prosecution as incriminating evidence against the accused along with the production or discovery of stolen property. But the production of property by itself would not necessarily prove his possession. It would at the most show that he had knowledge where the property was kept or concealed. Thus, where it is proved that the accused made a statement to the effect that “I have concealed the property at a particular place and I will produce it,” and if it is discovered in consequence of that statement, it would be evidence of his possession, even though the stolen articles are kept or concealed in another man's property, because unless he had possession he would not have kept them at that place. Where, however, the accused, without stating that he had concealed stolen property, merely produces it from a place to which other people could have access, it would not be sufficient to establish his possession even though the property may be concealed, because it is consistent with any other person having done so and the accused might have merely knowledge of it. The leading case on this point is the Full Bench decision in 14 Bom. 2601 where the accused after stating that he had buried the property in the fields presumably belonging to other persons took the police to the spot and disinterred an earthen pot in which it was kept: the statement was held admissible under Section 27 of the Evidence Act, in spite of the fact that the incriminating statement amounting to a confession was made before the police. The statement being evidence amounted to a proof of possession of the stolen articles by the accused.
5. Mr. Jahagirdar has, however, relied upon two recent decisions of our High Court in support of his argument that in no case can the production of articles from jointly occupied or a stranger's property be sufficient to ascribe them to the accused's possession. The decision in 32 Bom. L.R 5742 on which he relies, lays down that the mere fact that an accused person points out the place in which the stolen property is concealed in another man's field does not give rise to any presumption under Section 114 of the Evidence Act. In that case several accused had given the same information which led to the discovery of the articles and it was held that in such a case it cannot be said that the fact was discovered within the meaning of Section 27 of the Evidence Act, from the information given by all of them. Some of the accused had led the police to the place where they said they had secreted the stolen articles, but it was held on the evidence that it was not clear whose statement led to the discovery of the property. It was further held that it was not even possible to say that the statement which actually led to the discovery of property was an incriminating statement at all. This decision, therefore, stands on its own facts. On the other hand, its implication is that if one accused had made an incriminating statement in consequence of which alone a stolen article had been discovered, it would have been enough to show his possession under S. 114. The decision in 17 ALL. 5763 which was followed in 32 Bom. L.R 574 also laid down the same principle. There the accused had merely pointed out a place in the field of another man in which some of the stolen articles were found and there was no other evidence against him. It was held that was not enough to base his conviction, and that there must be some evidence to suggest that the accused had himself concealed the article in the place where it was found. The other decision, 40 Bom. L.R 9274, which was relied upon, followed 32 Bom. L.R 574, on somewhat similar facts. The only evidence against the accused there was that after another person had pointed out where the stolen property was concealed, he himself pointed out the same place which was a threshing floor to which the whole village had access. It was held that all that the accused's action proved was that he knew where the stolen property was concealed. In both these decisions there was no incriminating statement made by the accused in consequence of which the articles were found.
6. The learned Government Pleader relies on a recent unreported decision of our Court in Cri. Appeal No. 291 of 1943,5 where a distinction was made between mere pointing out of property and its production from a concealed place in another man's field. It was held that in the latter case even though the place, in which the property was found buried, did not belong to the accused, the very fact that he knew that the property was buried there would justify the presumption that he was in possession of it since he would be able to exercise control over it and remove it any time he liked. In that case there was no incriminating statement made by the accused before the police, and still it was held that the production of property by him from a concealed place in another man's field amounted not merely to his knowledge but also his possession. If the decision is limited to the particular facts of the case, it may be correct, but if the observations are meant to be of general application, I think they go too far. In absence of any incriminating statement made by the accused leading to the discovery of property, its production alone from another man's property would not be sufficient to establish the accused's possession. It may at the most show his knowledge that the property was concealed there. In my view, mere knowledge that stolen property is lying hidden somewhere is not an incriminating circumstance for the offence of theft or receiving stolen property, and such knowledge cannot by itself raise a presumption of possession. It is the prosecution that has to establish accused's possession apart from his knowledge, and it is only when his possession is proved that the accused has to account for it in order to escape from the presumption under Illust. (a) to S. 114. I do not agree with the view taken by the Nagpur High Court in I.L.R (1936) Nag. 786 that the accused's knowledge of the concealment of articles raises a reasonable inference that he put them there himself. That view was based on the conduct of the accused in pointing out the articles as admissible in evidence under Section 8 of the Evidence Act. But our High Court has held in the Full Bench decision in 14 Bom. 260 that even a statement of the accused while pointing out buried property that he had concealed the property, though admissible under S. 27 is not admissible under S. 8. Moreover even though conduct is relevant, such conduct unaccompanied by any incriminating statement proves merely knowledge but not possession. I am in agreement with the view taken by the Madras High Court in A.I.R 1936 Mad. 4267 that where there is no statement made by the accused leading to the discovery of stolen articles, their mere discovery, even though it raises a grave suspicion against the accused, will not be sufficient to support conviction. The recent decision of the Allahabad High Court in I.L.R (1937) ALL. 7108 also supports the view which I have taken. There the accused, while in police custody, made a statement that he had himself buried a gun at a certain place. The gun being subsequently found at that place, the statement was held as admissible in evidence, and that statement along with the production of the gun from the concealed place was regarded as sufficient to establish the accused's possession and control over it.
7. The same general principle would apply though with less force where the stolen articles are merely pointed out and produced by the accused from a place of which he had only joint possession. It must, however, be noted that dependents of a person living with him cannot be said to be in joint possession of the house for this purpose as they are in occupation under him and not independently of him. In cases of joint occupation it is sometimes difficult to decide whether the person in such occupation of the place producing the property should be regarded as being in its possession. Generally speaking, in all cases of joint possession of a place from where the property is produced, the possession of the articles must be clearly traced to the accused as held in 6 Bom. 7319.
8. The next point is what is the offence committed by a person merely found in possession of property which is recently stolen in a dacoity. The illustration to S. 114 applies to stolen property which may include under S. 410, Penal Code any property which is the subject-matter of theft, extortion, robbery (including dacoity), criminal misappropriation or breach of trust. The presumption would, therefore, be that a person in recent possession of articles seized in a dacoity is either a dacoit or receiver of stolen properly. It is important to note that this presumption is not of one definite offence but of an alternative offence, because possession of stolen property by itself is not sufficient to prove participation in the offence of theft. It can only go to corroborate other independent evidence of theft. If there is no such evidence, the conviction may be of the alternative offence and the punishment only for the lower offence of possession under S. 72, Penal Code. The question that arises then is whether in such a case the lower offence should be regarded as possession of stolen property under S. 411 or possession of property seized in a dacoity under S. 412, Penal Code. Mr. Jahagirdar referred us to various decisions on this point and he contended that in all cases where there was no evidence against the accused of his participation in dacoity, and the prosecution case depended entirely on his production of property, the accused can be convicted of the offence of receiving stolen property under S. 411 only and not of the offence under S. 412, although as a matter of fact the property might have been seized in the dacoity. He relied mainly on the decisions in 6 Bom. 731, Rat. Un. Cr. C. 756,10 32 Bom. L.R 574 and 62 Cal. 95611. On the other hand, the learned Government Pleader relied upon the unreported decision of our Court in Cri. App. No. 291 of 1943, referred to above in which, relying upon a decision of the Calcutta High Court in 22 Cr. L.J 6012 and distinguishing the decisions in 40 Bom. L.R 927, 32 Bom. L.R 574 and 6 Bom. 731, it was held that the presumption was that the accused was either a dacoit (S. 395) or a receiver of property knowing it to be taken in dacoity (S. 412). He also placed reliance on the decision in 9 Pat. 60613, in which the same view is taken.
9. It is difficult to lay down a general proposition which would cover every case of such possession. There may be cases on the one hand in which property seized in a dacoity, may be passed on to the possession of a person after a few days against whom there is no other evidence. He may not be able to account for his possession and he may be fixed with the knowledge that the property was acquired by committing an offence, but it does not necessarily follow that he got it with the knowledge that it was taken in a dacoity. As there is no evidence of he himself being a dacoit, the property might have been given to him by a dacoit who may have told him that it was simply acquired by theft. The presumption, therefore, would be of the lower offence under S. 411 and not the higher offence under S. 412. On the other hand, there may be cases, though rare, where a person taking part in a dacoity runs away with the property and his face might not have been seen by any person, but still it might be traced to his possession at a time and place which are very proximate to the time and place of the dacoity. In such cases it may be open to the Court to presume, even in absence of any evidence of identification, that the accused must either be a dacoit or receiver of property knowing it to be taken in dacoity. Each case would thus depend on its own facts. In 6 Bom. 731 it was observed that the fact of stolen property being found concealed in a man's house would be sufficient to raise a presumption that he knew the property to be stolen property, but it would not be sufficient to show that it had been acquired by dacoity. The actual decision, however, was that the accused were entitled to acquittal because they were not in exclusive possession of the property produced by them. That decision, therefore, cannot be regarded as an authority for the proposition that in all cases of possession of property stolen in a dacoity the only presumption is of the offence under S. 411 and not of the offence under S. 412. In 32 Bom. L.R 574 it was held that the mere fact that an accused person pointed out the place in which the stolen property was concealed did not give rise to any presumption under S. 114 or justify his conviction of the offence of receiving stolen property, still less of the offence of theft or dacoity. In that case the stolen property was found near a prickly pear hedge and it could not be seen from outside; the accused pointed out the place as the one where they had secreted it. The question before the Court was whether any presumption could be drawn against the accused because of the statement made by the accused before the police, and it was held that it would depend upon the particular statement made. In the case of one of the accused it was held on the facts I have stated above that he was guilty of the offence in the alternative under Ss. 395 and 411. It is true that the case was one of dacoity and this particular accused was held guilty of the alternative offence under S. 411 and not S. 412. But the decision was not based on any general principle that in all cases where the conviction depended merely upon the production of property stolen in a dacoity, the alternative conviction can be based only under S. 411 and not under S. 412. On the facts of that case the conviction under S. 411 was regarded as justified because there was no reason to believe that the accused knew that the property was taken in a dacoity. That case also, therefore, cannot be regarded as laying down any general principle. One other case of our High Court, Rat. Un. Or C. 756, was also relied upon. In that case reliance was placed on the observations made in 6 Bom. 731 and it was held that while there were circumstances in the case which would show that the appellants knew that the property was stolen property, there was none to show that they knew its possession had been transferred by dacoity. That decision, therefore, turned also on the facts of that case and not on any general principle.
10. The only other case which is relied upon on behalf of the defence is 62 Cal. 956. That was no doubt a case of dacoity, but the real point of decision was whether a presumption under S. 114, illust. (a), was to be made or not. It was held that the provisions of S. 114, illust. (a), did not entitle the Court to presume knowledge of dacoity which was required for a conviction under S. 412, but only to presume that a man in possession of stolen goods soon after the theft, was either the thief or had received the goods knowing them to be stolen. There is no discussion as to the relative scope of S. 411 and S. 412, Penal Code. All that is stated is that the stolen property was not found with the accused until six weeks after the dacoity; and apart from the discarded confessions, there was no evidence that they knew that it was stolen in the dacoity which was the factor necessary to bring the offence under S. 412, Penal Code. I cannot read that decision as laying down a general principle governing every case of possession of property taken in a dacoity. These are all the cases brought to our notice by Mr. Jahagirdar for his argument that the conviction can only be made under S. 411. On the other hand, in the recent unreported decision in Cri. App. No. 291 of 1943, it was held on the facts of that case that the Court was entitled to draw the inference that the accused were either the persons who had committed dacoity or had received the property knowing it to be the proceeds of a dacoity. In that case the property was found buried underground. Although the field did not belong to the accused, the fact that the accused knew that the property was buried there was held to be sufficient to justify the presumption that he was in possession of it, because if it had been buried by somebody else who had committed the offence or who had obtained it with the knowledge that it was stolen property, it was most unlikely that the accused, who pointed out the place, would be aware of its being buried there. Reliance was placed upon an earlier decision of the Calcutta High Court in 22 Cr. L.J 60, in which the accused were convicted under S. 412 on the ground that the accused knew or must have known that the property had been transferred by the commission of an atrocious crime, and the High Court upheld the conviction under S. 412 but reduced the sentence to one of five years' rigorous imprisonment on the ground that the presumption under S. 114 alone would not justify in fixing the accused with more than knowledge that the goods had been obtained by dacoity. In my opinion, the decision in cri. App. No. 291 of 1943, as I have observed above, goes too far if it means to lay down a general principle governing all cases.
11. There is only one reported decision on which reliance is placed on behalf of the prosecution and that is in 9 Pat. 606. In that case it was held that where a person charged with dacoity is shown to have been in possession of part of the stolen property soon after the dacoity, it may be presumed that he was one of the dacoits or that he received the property knowing it to have been stolen at the dacoity. Those observations were made on the basis that illust. (a) to S. 114 applied not merely to cases of theft but to all aggravated offences of which the offence of theft forms a part, and that therefore in all cases where the offence of dacoity is committed, there may be a presumption that the possession was with the knowledge that the property was stolen in the commission of that crime. The observations which I have made with regard to the decision in Cri. App. No. 291 of 1943 apply as well to this decision. No general principle can be laid down that if the offence was dacoity, the receiver of the property taken in dacoity must always be guilty under S. 412, Penal Code. For these reasons I am unable to hold, as the learned Judge below has done, that in a case of dacoity the presumption would always be that the receiver of property taken in dacoity is guilty under S. 412. In most cases of mere possession of such property, the presumption would be of the lower offence under S. 411. [The judgment next dealt with the case of each of the accused on its merits.]
12. Lokur, J.:— I agree. I would like to add a few words as I was a party to the decision in Cri. App. No. 291 of 1943, which is relied upon by the Government Pleader as justifying a presumption that the appellants are guilty either under S. 395 or under S. 412, Penal Code, and which is attacked by Mr. Jahagirdar for the appellants as inconsistent with some of the previous rulings of this Court. In that case one of the accused persons had produced property which had been stolen in a dacoity committed three days previously. The property had been buried underground in a field which did not belong to nor was in possession of that accused. Two questions were raised, viz., whether such production of the stolen property amounted to possession attracting the presumption mentioned in illust. (a) to Section 114 of the Evidence Act, and whether the presumption would only be that the accused was guilty under S. 395 or S. 411, Penal Code, or that he was guilty under S. 395 or S. 412, Penal Code. It was held there that he was guilty under S. 395 or S. 412, Penal Code. N.J Wadia J. made it clear in his judgment that under the circumstances of that particular case such a presumption was warranted and he distinguished on facts seemingly contrary views expressed in certain earlier decisions. The whole discussion turns round illust. (a) to Section 114 of the Evidence Act, which says:
“The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
13. This illustration is only an example of the application of the principle laid down in the section itself which provides:
“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
14. As many as nine illustrations are appended to this section, indicating when and what presumption may or may not be made. Although, as pointed out by Lord Shaw in 43 I.A 25614 illustrations to a section, unlike the marginal notes, are to be considered as a part of the section itself, and are to be accepted as being both relevant and Valuable for the construction of the section, they merely exemplify the application of the rule contained in the section and do not control the plain meaning of the section itself. They are not to be regarded as exhaustive, but are only intended as a guide to the working and application of the section to which they are appended. It would be wrong on principle to hold that illust. (a) to Section 114 of the Evidence Act, in any way fetters the discretion given to the Court to presume the existence of any fact which it thinks likely to have happened having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. It would not, therefore, be right to lay down any hard and fast rules as to when and what presumption may be raised, as it always depends on the particular circumstances of each case.
15. Looked at from this point of view, illust. (a) to Section 114 of the Evidence Act, is intended to meet one specific set of facts, — simple theft-and possession of stolen goods soon after the theft,—and it indicates what presumption may legitimately be drawn from these two facts under S. 114. If the principle of this illustration is to be extended to cases of the possession of other kinds of stolen property, the presumption will have to be adapted to the particular circumstances. According to S. 410, Penal Code, property in respect of which criminal breach of trust has been committed is also designated as stolen property. A presumption in the alternative as in illust. (a) to Section 114 of the Evidence Act, would not be appropriate in the case of one who is found in possession of such stolen property soon after the criminal breach of trust is committed. But in a particular case he may be presumed to have dishonestly received the stolen property knowing or having reason to believe that it was stolen property, that is to say, it was property in respect of which criminal breach of trust had been committed. Similarly, if property stolen in a dacoity is found in the possession of the accused soon after the dacoity, then the presumption will be that he must be either a dacoit (not a mere thief) or a receiver of stolen property, because if he had himself stolen the property, he must have taken part in the dacoity and would, therefore, be guilty in the alternative under S. 895 and not merely under S. 379, Penal Code. The question whether he would in the alternative be guilty under S. 411 or under S. 412, Penal Code, depends on the circumstances from which his knowledge of the dacoity may be presumed. If a dacoity had recently taken place in the locality of his residence, it may reasonably be presumed that he was aware of the dacoity, and if he had come in possession of the stolen property soon after the dacoity, he may be presumed to have known or to have had reason to believe that it had been stolen in a dacoity and not merely that it was the subject of an ordinary theft. Mr. Jahagirdar, however, contends that possession of property stolen in a recent dacoity may raise a presumption that the person in possession, if he cannot account for it, knew or had reason to believe the property to be stolen property but not that he knew or had reason to believe that it had been stolen in a dacoity. In support of this contention he relies upon the rulings in 6 Bom. 731, Rat. Un Cr. C. 756 and 62 Cal. 956. of these the first case has been distinguished by N.J Wadia J. in Cr. App. No. 291 of 1943. The decision in Rat. Un. Cr. C. 756 merely follows 6 Bom. 731 and does not contain any discussion. In 62 Cal. 956 Jack, J. gave the following reason for the view taken (p. 965):
“The stolen property was not found with the accused until his weeks after the dacoity, and apart from the discarded confessions there is no evidence that they knew it was stolen in the dacoity, a factor which was necessary to bring the offence under S. 412, Penal Code.”
16. The long interval that had elapsed between the dacoity and the finding of the property with the accused was taken into consideration in not raising the presumption that he had knowledge of the dacoity. On the other hand such knowledge was presumed in 22 Cr. L.J 60 and 9 Pat. 606. These divergent cases afford instances of the judicial exercise of the discretion given to Courts by Section 114 of the Evidence Act, to raise an appropriate presumption having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
17. Similar reasoning would apply to the nature of the possession of the stolen property from which the presumption contemplated by illust. (a) to Section 114 of the Evidence Act, can be raised. That possession may be actual or constructive as where the accused has kept it under his control by concealing it in another's house or burying it underground in another's field. Such was the case of possession in the case of Cri. App. No. 291 of 1943 which was regarded as sufficient to attract the presumption. In 6 Bom. 731, 32 Bom. L.R 574 and 40 Bom. L.R 927 mere pointing out of stolerl property from another's field was held not sufficient and N.J Wadia J. distinguished them in Cri. App. No. 291 of 1943 where the accused had produced stolen property by digging it out in another's field but was unable to give any explanation as to how he had come to know about it. Stolen property, though not pointed out or produced by the accused, may be found on a search in a house or land occupied by the accused either exclusively or jointly with another, or he may produce it from such house or land or he may point it out in another's land or house where it could be easily seen or discovered by anyone or where it was hidden underground, or he may make some incriminating statement at the time of such production or pointing out. In each of these cases, a presumption of guilt may or may not be drawn according to the circumstances of that case. As observed in 15 Cr. L.J 41015 the principle laid down by S. 114 is one of very wide application, which covers not merely the particular instances given in the illustrations to the section, but all sorts of analogous cases in which the actual facts are distinguishable from the facts presumed by any one of the illustrations, but are equally amenable to the general principle enunciated by the section itself.
18. Applying these principles to the case against each of the appellant, I agree with the conclusions just stated by my learned brother in his judgment and I do not wish to repeat the reasons for those conclusions. I, therefore, concur in the order proposed by him.
19. Per Curiam.— The conviction of all the appellants under S. 457, Penal Code and the sentence passed on them under that section are set aside. Accused 3, 4, 8, 16 and 17 are found not guilty of any offence. Their conviction and the sentence passed on them are set aside and they are acquitted and discharged.
20. The conviction of accused 1 and 7 under S. 395 or S. 412 in the alternative and the sentence passed on them are confirmed. The conviction of accused 5, 9, 10, 11, 12, 14, 15, 22, 23, 24 and 25 is altered to one under s. 395 or 411 and the sentence of rigorous imprisonment for five years passed on them is reduced to rigorous imprisonment for three years. The order regarding the disposal of property is confirmed except that the amount of Rs. 84 attached from accused 17 should be returned to him and not to the complainant. The rule issued in the application for enhancement of sentence is discharged.
21. Order accordingly.