1. These are two appeals by seven accused who were convicted under either sec. 395 of the Indian Penal Code or sec. 412 of that Code and sentenced to six year's rigorous imprisonment each. The Appellants Moktarali, Jogesh Chandra Chakladar and Momtazuddi Sikdar are represented before us, the remaining four presented their appeal from jail. We will deal with the cases of each of the Appellants seriatim.
Jogesh Chandra Chakladar:
2. The evidence against this accused was that he was identified by a certain lady of some 80 years of age as one of the dacoits and that a certain pitcher identified as being a part of the property stolen at the time of the dacoity was found in his possession. His explanation as regards the pitcher was that it was the property of his wife's step-brother Kali Prasanna Das. He was charged under sec. 395 of the Indian Penal Code.
3. The learned Sessions Judge obviously himself did not accept the evidence of identification given by the old lady and advised the jury accordingly. He then dealt with the question of the possession of the pitcher and told the jury that if they were not satisfied with the evidence of identification but were satisfied with the proof of the identity of the pitcher, they might convict t??? accused under sec. 412 of the Indian Penal Code although he had not in fact been charged under that section.
4. This direction is challenged on the strength of the decision in the case of Istahar Khondkar v. Emperor . 39 C.W.N 620 1935.. We note first that in fact what was done in that case was to alter the finding of conviction from one under sec. 412 to one under sec. 411 of the Indian Penal Code. Second, that the decision seems to be based on a view that “though an accused may be charged in the alternative under sec. 236, judgment under sec. 237 cannot be passed in the alternative, that is to say, the accused cannot be convicted of two or more offences in the alternative.” Furthermore, in support of the reasoning therein the case of Begu v. King-Emperor . L.R 52 I.A 191, a decision of the Judicial Committee, is questioned. In our opinion, there is no difficulty in this matter as regards the question of conviction in the alternative. Such a conviction is provided for in sec. 367 of the Code of Criminal Procedure and in sec. 72 of the Indian Penal Code where provision is made for punishment in such a case at the scale given by the lowest punishment provided for the various offences. We think that in view of the provisions of sec. 236 of the Code of Criminal Procedure, if the view was taken that there might be doubt as to whether the evidence of actual identification at the time of the dacoity would be accepted, there could have been a charge framed against the Appellant Jogesh both under sec. 395 and also one under sec. 412 and also there might have been a charge in the alternative under sec. 395 or 412.
5. Sec. 236 of the Criminal Procedure Code permits such framing of charges in cases where “it is doubtful which of several offences the facts which can be proved will constitute.” A fact is proved when the Court after considering the matters before it either believes it to exist or considers its existence so probable that a prudent man ought in the circumstances of a particular case to act upon the supposition that it exists. At the time when the charges are made it cannot be known what view the Court will take of the evidence. In certain cases it may be doubtful as to what view will be taken by the Court of the evidence although it may be considered that a view will be taken which will amount to a view that some offence has been proved. Separate charges may be framed to meet all the various contingencies so envisaged. In other cases it may be doubtful, even if all the facts sought to be proved are in fact proved, whether they can fix the accused down to one specific offence (say, under sec. 395) rather than another (or under sec. 412). For such cases a charge in the alternative may be framed. Sec. 236 provides both for the case where separate charges are required to meet contingencies as to what may eventually be taken as proved by the Court as also where a charge in the alternative is needed.
6. Similarly, under sec. 237 of the Code of Criminal Procedure, even if charges have not been framed to meet all the contingencies the conviction may be held on any charge that might have been framed under sec. 236 of that Code.
7. Here in this case doubt arises first from the question whether the evidence of identification at the actual time of the dacoity will be accepted and secondly, whether the evidence of possession of the stolen article will be taken as establishing in the circumstances proof of participation in the dacoity, or proof of non-participation in the dacoity but of dishonestly receiving the property stolen at the time of the dacoity or as establishing a position where no definite view is taken as to either of the two latter, in other words, a position calling for a conviction in the alternative either of the offence of dacoity or of dishonestly receiving the property stolen at the time of the dacoity.
8. We have mentioned that provision is made in sec. 367(3) of the Code of Criminal Procedure for judgment to be passed in the alternative in cases of doubt. In Istahar Khondkar v. Emperor, a quotation is made in the judgment from a report in the case of Meher Sheik v. Emperor . 35 C.W.N 945 1931. in which there is in turn a reference to sec. 367 of the Code of Criminal Procedure. Lort-Williams, J., in referring to these, notes that this must be a mis-print for sec. 237. With the greatest respect it appears clear that there was no mis—print and that the reference is to the very provision in the Code of Criminal Procedure, namely, sec. 367, which provides for, and in appropriate cases of doubt distinctly requires, judgment to be passed in the alternative.
9. It is next urged that the learned Sessions Judge has wrongly directed the jury with regard to sec. 114 of the Indian Evidence Act and for this reliance is placed on the case above cited as well as on the case of Daud Shaikh v. King-Emperor . 40 C.W.N 159 1935.. In our opinion, the learned Sessions Judge has dealt with the matter clearly and logically. Here, the accused's “explanation” is not an explanation at all under sec. 114, Illustration (c) of the Indian Evidence Act, it is not an explanation of possession of stolen property. He alleges that the so-called stolen property is not in fact stolen property but is the property of his relation. The first issue before the jury therefore, as was clearly pointed out by the learned Sessions Judge, was whether in fact they held it proved that the pitcher in question was the property of the complainant or not. If they decided that it was not the complainant's property or that there was such doubt in the matter that they could not act on the assumption that it was, they were to acquit the accused. If they found that it was properly identified, then as the learned Judge rightly pointed out, the accused offered no explanation of his possession of it, and they were entitled therefore to apply the presumption under sec. 114 of the Indian Evidence Act.
10. We are further unable to agree with the view that in such a case the only direction that can be given is that there is a presumption that the accused is either a thief or received or retained the goods knowing or having reason to believe them to be stolen, namely the direction for a conviction, if at all, under sec. 411. sec. 114 of the Indian Evidence Act is general in its terms. Illustration (a) is only an illustration, and the fact that the section does not provide an illustration with reference to a dacoity does not mean that there is no such presumption. The Judge was perfectly entitled to tell the jury that they might presume either that the accused was one of the daceits or that he had dishonestly received or retained the pitcher, knowing or having reason to believe that the possession had been transferred by dacoity or that he had dishonestly received or retained it knowing or having reason to believe that it was stolen property. In the present case the latter choice, it is true, was not offered to the jury for their consideration and to that extent we consider that the charge is defective.
11. In dealing with the question of the identity of the pitcher, the learned Sessions Judge has dealt with the matter fully and fairly putting all the points, pros and cons, before the jury pointing out, as he was entitled to, that the accused called no evidence to support his story that the pitcher belonged to Kali Prasanna Das. We think that no criticism can be offered on this portion of the charge. The identity being settled his other directions were perfectly correct in pointing out that there was no explanation of the possession of the pitcher, found by them to be the property of the complainant.
12. In this view of the matter we think that it would be proper to alter the conviction of Jogesh Chandra Chakladar to one under sec. 411 of the Indian Penal Code as we consider that in his case had the correct direction been given it is possible that the jury might have delivered the verdict under that section.
Moktarali:
13. There is evidence that this accused was recognised by one of the inmates of the house and there is also evidence that he was seen by two witnesses, Jitendra and Surendra, P. Ws. 18 and 26, as they were coming to the house of the complainant Gurucharan at the time of the dacoity. There is good reason to regard the evidence of these witnesses with caution, but all that matter was fully placed before the jury by the learned Sessions Judge who finally said “So you can accept the defence case as set out on behalf of Moktarali that he is now in possession of some land in barga which might have been taken possession of by Janaki Das's heirs from the hands of Pitambar's sons,” {i.e, witnesses Jitendra and Surendra). The whole charge in respect of this accused is undoubtedly framed in our opinion in his favour and every thing that could be done for him in the face of the evidence was done by the learned Judge but the jury have accepted the evidence and convicted him and there is nothing we can do by way of interference.
Momtazuddi Sikdar:
14. Against him there is evidence that he was seen by two witnesses Arshed Ali Khan and Hashem Ali Khan, P. Ws. 16 and 17, in company of men in a boat coming from the place of the dacoity just immediately following the raid. There is also evidence of the recovery of a woollen cap on a search at his house which is identified to be a part of the stolen property. There is mention of a cap as being stolen in the first information. The accused claimed the cap as his own and the learned Sessions Judge has dealt with his case in the same manner as that of Moktarali discussed above, and for the same reason we find there is no error in the directions given. In his case the charge was under sec. 395 and the verdict is under sec. 395 of the Indian Penal Code and the considerations of any failure to mention sec. 411 of the Indian Penal Code which arose in the case of Moktarali do not arise in his case, The result is that there is no reason for interference in the case of this Appellant.
Sabedali:
15. He has been identified by six witnesses as taking part in the dacoity and there is also evidence as regards the recovery of some of the stolen articles from his house. We can see no defects in the charge as regards this accused.
Sahedali:
16. He was recognised by four witnesses who also identified him in a test identification parade. Certain properties also were recovered from his house only six days after the dacoity. There is no reason for interference in respect of this accused.
Lehajuddin:
17. This accused was charged under sec. 412 of the Indian Penal Code. Four articles which had been stolen at the dacoity were found in his house. There is satisfactory evidence of identification, but the charge with respect to the presumption under sec. 114 of the Indian Evidence Act suffers from the defect already pointed out in the case of accused Moktarali. There was no suggestion to the jury that they might also find the evidence sufficient only to establish a charge under sec. 411 of the Indian Penal Code. There was no error in placing it that they might presume that the facts establish the offence under sec. 412 of the Indian Penal Code but we think the other option ought to have been given to the jury and for similar reasons already given we therefore think it safer to alter the conviction in the case of this accused to one under sec. 411 of the Indian Penal Code.
Jennat Ali:
18. In his case also several articles identified to have been part of the stolen property were recovered from his house shortly after the dacoity and similar directions as regards sec. 114 of the Indian Evidence Act were given by the learned Sessions Judge as in the cases of the other accused referred to above. For similar reasons we think that in his case also the conviction should be altered to one under sec. 411 of the Indian Penal Code.
19. The result is that the appeals of Jogesh Chandra Chakladar, Lehajuddin and Jennat Ali are allowed to the extent that their convictions arc altered from sec. 412 to sec. 411 of the Indian Penal Code and the sentences are reduced to three year's rigorous imprisonment in each case. The appeals of the other four Appellants are dismissed.
P.C