HARBIR SINGH v. STATE OF DELHI — 1991 DIGILAW 97 (DEL)

S. C. Jain ( 1 ) FACTS giving rise to this revision petition are that Shri Harbir Singh and Baldev Singh (hereinafter referred to as petitioners) along with others were the employees of Messrs Prem Electrical Industries situated at 8370 Arya Nagar, Paharganj, New Delhi, a partnership concern dealing in the manufacture of electrical goods. Shri Krishan Lal (complainant) and Shri Inder Raj (Public Witness 5) are its partners. On 29th October, 1973, Shri Gurcharan Lal (PW2) who is the son of Shri Krishan Lal, went to the factory premises at 8 45 am. , and saw Sukhdev Singh and Shri Baldev Singh who were working in the factory coming out of the factory with one Thela each in their hands. He asked them to stop but they succeeded in running away and he informed to his father Shri Krishan Lal. The stock in the factory was checked and on prima facia checking, it was found that about 20 kg of brass material manufactured by the firm for Sando Electrical Company bearing the seal of APSEB was missing The petitioners and other accused persons attending the factory thereafter and that aroused the suspicion of the complainant against them that they were committing theft of the goods of the factory and on the basis of that suspicion FIR was lodged on 19. 1 1. 1973 (Ex. PW4/a ). On the basis of this report the Police investigated the case conducted search of house No. l8/108, East Moti Bagh, Sarai Rohilla, New Delhi, allegedly occupied by the accused persons on 1/2/1974 and some of the articles like screw machines, electrical goods, dies hammers, files, blades, screw driver, iron driller were allegedly recovered as mentioned in the search memo (Ex. PW3/a ). This search was allegedly made in the presence of Shri Inder Raj, partner of the complainant firm, Shri Ram Roop Public Witness. 6 and one Shri Gurnam Singh, PW3. The petitioners along with other three accused persons were challaned under Section 381/34 Indian Penal Code on the allegation that on or before 29/10/1973, they while in the employment of Prem Electrical Industries, 8370, Arya Nagar, Pahar Ganj, New Delhi, committed theft of electrical goods of different kinds weighing 570 Kgs. 50 dies, two screw making machines and other tools in furtherance of their common intention They pleaded not guilty to the said charge and claimed trial. 50 dies, two screw making machines and other tools in furtherance of their common intention They pleaded not guilty to the said charge and claimed trial. ( 2 ) THERE was no direct evidence of theft but on the basis of alleged recovery of some of the articles which were having no specific mark of identification, Courts below convicted the petitioners along with two other accused persons, namely, Darshan Singh and Sukhdev Singh under Section 381/34 IPC Darshan Singh and Sukhdev Singh were released on probation on executing bond in the sum of Rs. 3. 000. 00 with one surety in the like amount under Section 4 of the Probation of Offenders Act, whereas the petitioners were sentenced to undergo six months R. I. and a fine of Rs. 300. 00 each and in default to further undergo two months R. I. ( 3 ) AGGRIEVED by the impugned judgment of the Addl. Session Judge dated 15/10/1979, these two petitioners have filed this revision petition. Though the revision petition is pending since 1979 and the case has been on the board none appeared either for the petitioner or for the State. Therefore, I proceed to decide this matter on the basis of the record available. ( 4 ) THE entire case of the prosecution rests upon the presumption that the petitioners who were employees of the complainant firm were found in possession of stolen property belonging to the complainant firm for which the could not give any satisfactory explanation. There is no witness who had seen the accused persons making theft of these articles from the factory of the complainant. ( 5 ) SECTION 114 (a) of the Indian Evidence Act, 1872, provides that possession of stolen property recently after the commission of a theft raises prima facia presumption that the possessor was either the thief or the receiver of the stolen property knowing it to be stolen, according to the other circumstances of the case. The presumption of possessor of stolen property being either th thief or receiver of stolen property arises when the accused is proved to be possession of the property and the property is proved to be stolen property There is no presumption as to the fact of possession and the presumption of guilt arises only when possession is proved and it is shown that the property is stolen property. The prosecution must establish the ownership of the articles their theft and their recent possession by the accused. Inference under Section 114, illustration (a), should never be reached unless from the circumstances of a given case the necessary inference is that of guilt of the accused. In order to raise a presumption that the possessor of stolen property is the thief or the receiver, the possession must be shown to be exclusive as well as recent. The prosecution must establish not only that the property was recovered from the house or other place in the occupation of the accused but also that he was fully aware of its presence there. When a stolen property is recovered from the accused, it is for the prosecution to prove that it was in exclusive and conscious possession of the accused. ( 6 ) THE case of the prosecution suffers from several defects The seizure memo (Ex. PW3/a) shows the recovery of the alleged stolen goods from house No. 18/108 East Moti Bagh, Sarai Rohialla, residential house of Darshan Singh and Sukhdev Singh. At that time the prosecution was not aware of the fact that this house was also occupied by the petitioners Harbir Singh and Baldev Singh. Presence of Harbir Singh and Baldev Singh, petitioners, has also not been shown at the time of search of the house. The stolen goods alleged to have been recovered were not recovered from the house of these petitioners nor in their presence. When this house was not occupied by these two petitioners and the recovery was not made from their possession, how could a presumption be drawn against them, that they were either the thief or receiver of stolen property. ( 7 ) BESIDES this, alleged recovery witnesses namely Inder Raj, PW5, partner of the complainant firm Ram Roop. PW6, has also not connected these petitioners with the offence. Inder Raj, PW5, stated that he went along with police to the house of Darshan Singh at Moti Bagh, Sarai Rohilla where Sukhdev Singh, Darshan Singh were present and recovery of the stolen goods was made, whereas Ram Roop stated that the police took search of the house of Darshan Singh and seized the stolen goods. Inder Raj, PW5, stated that he went along with police to the house of Darshan Singh at Moti Bagh, Sarai Rohilla where Sukhdev Singh, Darshan Singh were present and recovery of the stolen goods was made, whereas Ram Roop stated that the police took search of the house of Darshan Singh and seized the stolen goods. Ram Roop, PW6, has not identified the goods recovered in his presence and he started that the goods lying in the Court are of similar type which were seized by the police vide memo Public Witness 3/a. This is not proper identification of the goods. Those goods were not sealed in his presence. The prosecution had failed to establish that the goods which are alleged to be stolen property were recovered from the possession of the petitioners and even if it is presumed that they were recovered from the search of house No. 18/108 East Moti Bagh, Sarai Rohilla, there is no evidence on record to show that the pstitioners were in conscious possession of the said goods and they knew that those goods ware the stolen property. It is settled law that mere proof that incriminating articles were found in the premises occupied by a number of persons does not initself establish prima facia the guilt of any one of them or all of them jointly. Both the Courts below have failed to appreciate that the prosecution has not been able to establish that both these petitioners are the possessor of the stolen property and that the possession-is exclusive as well as recent. The prosecution has also failed to establish not only that the property was recovered from the house or other place in the occupation of the petitioners but also that they were fully aware of its presence there. Both the Courts below have lost sight of this most important principle of law while holding the petitioners guilty for an offence under Section 381/34 Indian Penal Code and convicting them for the said offence. Besides this, there is inordinate delay in lodging the FIR in this case. The occurrence allegedly took place on 29-10-1973 whereas the FIR was lodged on 19-11-1973. This delay has neither been satisfactorily explained in the FIR nor in the statement made before the Court. The complainant Krishan Lal admitted in his cross-examination that addresses of all the workers were recorded in their record. The occurrence allegedly took place on 29-10-1973 whereas the FIR was lodged on 19-11-1973. This delay has neither been satisfactorily explained in the FIR nor in the statement made before the Court. The complainant Krishan Lal admitted in his cross-examination that addresses of all the workers were recorded in their record. He did not goto the house of the accused persons. He did not know the name of the person who was sent to the house of the accused person. Even Inder Raj the other partner, in his crossexamination admitted that addresses of the workers including those of the accused were with them but he did not mention it to the police for making search of the accused persons. From the statements of both these partners of the complainant firm it is apparent that no search of the accused was made before lodging FIR with the police. The delay in lodging FIR remains unexplained audit is fatal to the prosecution case. ( 8 ) ANOTHER fact which the Courts below have totally ignored is that the goods alleged to have been seized from the house of the accused are of common pattern easily available in the market and they bear no specific mark of identification. The prosecution has failed to prove that the articles seized from the house of the accused were the same which were stolen from the factory of the complainant, Krishan Lal PW1 and Inder Raj PW5, partners of the complainant, had admitted that the stolen articles are easily available in the market and there is no specific mark of identification on them. Ram Roop, PW6, has also stated that the goods are of common pattern bearing no specific mark of identification and are easily available in the market. The goods allegedly recovered from the house of the accused persons do not find mention in the FIR. The FIR was lodged after 22 days of the occurrence. The complainant had ample time to check his goods and make a list of the stolen property. The complainant having failed to mention in the FIR the detail of the stolen property seized in this case coupled with the fact that the seized goods do not bear any mark of identification further belies the prosecution case that the goods seized belong to the complainant and are the stolen property. The complainant having failed to mention in the FIR the detail of the stolen property seized in this case coupled with the fact that the seized goods do not bear any mark of identification further belies the prosecution case that the goods seized belong to the complainant and are the stolen property. ( 9 ) BOTH the Courts below have ignored the fundamental principle of criminal jurisprudence that a person is presumed to be innocent unless contrary is proved and the burden lies on the prosecution to prove its case beyond reasonable doubt. Suspicion howsoever strong cannot take the place of proof. Benefit of doubt must go to the accused and not to the prosecution. ( 10 ) UNDER these circumstances, I accept this revision petition and set aside the judgment of the Court below against Harbir Singh and Baldev Singh petitioners. They are on bail, their bonds shall stand discharged.