Gauhati High Court
Crl.Rev.P./556/2012 on 24 March, 2025
GAHC010220132012
2025:GAU-AS:3197
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.REV.P. NO.556/2012
Sri Probin Gondhia.
S/ o- Late Sali Gondhia,
R/ o- Village Bongal gaon,
under Dergaon Police Station,
District- Golagahat, Assam.
.......Petitioner
-Versus-
The State of Assam
.......Respondent.
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. N. Ahmed, Advocate.
For the Respondent(s) : Mr. P. Borthakur, learned
Additional Public Prosecutor,
Assam
Date of Hearing : 24.03.2025.
Date of Judgment : 24.03.2025 .
Page 1 of 11
JUDGMENT & ORDER (ORAL)
Heard Mr. N. Ahmed, learned Counsel for the
petitioner. Also heard Mr. P. Borthakur, learned Additional
Public Prosecutor for the State respondent, Assam.
2] By way of this revision petition under Section
397 read with 401 of the Criminal Procedure Code, 1973
hereinafter referred to as "Cr.P.C") the petitioner is
assailing the judgment & order dated 18.04.2012 passed
in criminal appeal No. 46/ 2006 arising out of G.R. Case
No. 2/ 2006 by the learned Sessions Judge, Golaghat,
Assam upholding the conviction and sentence under
Section 457/ 380 of the I ndian Penal Code (hereinafter
referred to as "I PC") with modification of the sentence
passed under Section 380 I PC to the extent of two years
instead of 3 years with fine of Rs. 300/ - only and in
default of payment of fine as imposed under Section
457/ 380 of I PC, the petitioner/ accused shall undergo
another Simple I mprisonment for 10 days.
3] The brief of the case is that an F.I .R. was
lodged on 02.01.2006 alleging inter alia that the
petitioner/ accused entered into the house of the
informant by breaking open the wall of the house and
stole valuable articles therefrom. Accordingly, an F.I .R.
was registered as Dergaon P.S. Case No. 01/ 2006 under
Section 457/ 380 of I PC and arising out of the said P.S.
Case, a G.R. Case being No. 2/ 2006 was registered and
investigation was carried out. Upon completion of
investigation, Charge-sheet was filed against the
petitioner and thereafter, the Court of Judicial Magistrate,
1st Class, Golaghat (hereinafter referred to as the "trial
Court") framed charges against the petitioner/ accused
and conducted the trial. After conclusion of the trial and
hearing, the trial Court by judgment & order dated
9.10.2006 was pleased to hold the petitioner/ accused
guilty under Section 457/ 380 of I PC and accordingly,
convicted him and sentenced him thereof. Being
aggrieved by the aforesaid judgment & order of the trial
Court, an appeal was preferred before the Court of the
Sessions Judge, Golaghat (hereinafter referred to as
"appellate Court"), wherein the appellate Court by
judgment & order dated 18.04.2012, though uphold the
judgment & conviction of the trial Court, however, as
regards the sentence imposed under Section 380 of I PC,
modified the same to that of 2 years instead of 3 years.
Situated thus, the present revision petition has been filed
against the aforesaid judgment & order of the appellate
Court.
4] Mr. N. Ahmed, learned Counsel for the
petitioner submits that the manner in which the
petitioner/ accused has produced the stolen articles in
question to the I nvestigating Officer is not narrated by
the I nvestigating Officer in his deposition before the trial
Court and hence, the presumption under Section 114 of
the I ndian Evidence Act, 1872 (hereinafter referred to as
the "Evidence Act") ought not have been drawn against
the petitioner for which the appellate Court has
committed gross error.
5] Per contra, Mr. P. Borthakur, learned
Additional Public Prosecutor for the State respondent,
Assam submits that the judgment & order of the
appellate Court being based on appreciation and re-
appreciation of the evidence and on the basis of the
evidence of the prosecution the same suffers from no
legal infirmities whatsoever. He accordingly, submits that
the instant revision petition is liable to be dismissed.
6] I have considered the arguments advanced by
the learned Counsels for contending parties, and also
perused the material available on record.
7] I t appears that the prosecution has adduced
evidence of 6(six) prosecution witnesses including the
I nvestigating Officer as (PW-6), whereas the case of the
petitioner/ accused is of complete denial in his statement
under Section 313 of Cr.P.C and further the
petitioner/ accused did not adduce any defence witnesses.
I t appears from the evidence of the I nvestigating Officer
( PW-6) supported by the two seizure witnesses i.e. PW-
4 and PW-5 that the accused had produced the stolen
articles from his house in the presence of the villagers. I t
further appears that PW-1 and PW-2 , from whose
house the articles in question were alleged to have been
stolen by the petitioner/ accused, have also deposed that
while they returned back to their home, they found that
the listed articles were missing from their house and the
walls of the kitchen, which is made of bamboo was open.
8] It appears that based on the aforesaid
evidences, the trial Court convicted the petitioner/ accused
under Section 457/ 380 of I PC and sentenced him thereof.
Relevant portion of the judgment & order of the trial
Court is reproduced hereunder for ready reference: -
"In my considered view, relative witnesses
cannot be termed as an interested witnesses and
to decline to act upon the testimony of relative
witnesses merely because of absence of any other
witness to corroborate them in court is to defeat the
cause of justice. Moreover, PW3 and PW5 are not
related to the informant and they have also clearly
deposed both in chief as well as in the cross that
the accused himself produced the stolen goods
from his house to the police in presence of the
villagers and the informant identified them.
Now, Illustration (a) to Sec. 114 of the
Evidence Act, 1872 clearly speaks that '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.'
In this case, the learned defence counsel has failed
to rebut the prosecution evidence in his cross
examination in a cogent and convincing manner to
warrant a contrary presumption in favour of the
accused.
That apart, the circumstances which are
evident from the evidence on record raises an
irresistible inference as to the guilt of the accused.
After consideration of the entire evidence on
record, it is clear that prosecution has been
successful in bringing home the accused within the
ambit of Sec. 457/380 I.P.C. to justify a conviction.
I therefore, hold the accused guilty u/s 457/380
I.P.C.
Accused is heard on the point of proposed
sentence. He prayed for mercy of the court and
pleaded to take a lenient view.
Accused committed theft of belongings from
the house of the informant by breaking open the
wall of the kitchen. Such type of offences are
increasing in the society. If undue sympathy is
shown to the accused, then it may erode public
confidence in the criminal justice delivery system
and people will have no faith in law of the land.
Hence, I am not inclined to extent the benefit
of probation to the accused.
In the result, Accused Sri Prabin Gondhia is
convicted u/s 457/380 I.P.C. and sentenced to
undergo rigorous imprisonment for a term of 2
years and a fine of Rs. 300/- for the offence u/s
457 I.P.C. and also to undergo rigorous
imprisonment for a term of three years and to pay
a fine of Rs. 500/- for the offence u/s 380 I.P.C.
and in default of payment of fine, the accused shall
further undergo simple imprisonment for a term of
15 days.
Both the substantive sentences so imposed
shall run concurrently. The period of detention
already undergone by the accused as U.T.P. in jail
custody be set-off from the substantive period of
sentences."
9] I t appears that the appellate Court after
appreciating and analyzing the said evidences was
pleased to dismiss the appeal. Relevant paragraphs of the
judgment & order of the appellate Court are reproduced
hereunder for ready reference: -
"P.W.1 Sri Nikhil Gandhia is the owner of the
stolen articles and the informant of the case.
According to his evidence, his dwelling house was
made of bamboo. During the relevant period, i.e on
1.1.2006, while he was absent from his house, the
occurrence took place. When he returned to the
house, he saw that the lock of the door was intact
and when he along with his wife entered into the
house, they saw that the joining of the wall of the
kitchen was opened and the back door of the
house was found open. Then his wife entered into
her room and found that the golden ornaments,
utensils, cash amount of Rs.2500/- were missing.
P.W.2 Smti. Popy Gandhia supported the
version of her husband P.W.1. Immediately after
the incident, P.W.1 Nikhil Gandhia lodged the
ejahar before the police station describing the
articles that had been missing from his house. The
O/C of Dergaon police station on receiving the
ejahar, swang into investigation and recovered all
the stolen articles from the house of the
accused/appellant Probin Gandhia as shown and
led by him under Ext-2 the seizure list in presence
of witnesses Jiten Gandhia (P.W.3) and Nripen
Gandhia (P.W.4). Further, the Investigating Officer
seized one VIP box along with some clothes from
the sugarcane field under Ext-3 the seizure list as
shown and led by the accused/appellant in
presence of the aforesaid witnesses on 2.1.2006.
P.W.3 Jiten Gandhia, P.W.4 Nripen Gandhia
and P.W.5 Phulen Gandhia have supported the
prosecution case. The evidence of all these
witnesses have not been rebutted during their
cross examination.
P.W.6 Sri Gobin Ch. Das, the Investigating
Officer in this case, on being disclosed and shown
by the accused/appellant, seized the stolen
ornaments, utensils, some clothes including one
VIP box from the house of the accused/appellant
vide Ext-2 and from sugar cane filed under Ext-3
the seizure lists.
9. The learned trial Court observed that the
prosecution witnesses are related witnesses.
The learned trial Court has rightly held that
relative witnesses cannot be termed as
interested witnesses and reliance can be
placed on their testimonies without
corroboration from other witnesses. The
learned trial Court has found that P.W.3 and
P.W.4 are not related to the informant and
that accused/appellant himself produced the
stolen articles from his house to the police in
presence of villagers on identification of the
informant. The learned trial court has rightly
observed the fact which is quoted below :-
'Now, illustration (a) to section 114 of
the Evidence Act, 1872 clearly speaks
that - The Court may presume, that a
man who is in possession of stolen
goods soon after the theft is either the
thief or has recovered the goods
knowing them to be stolen, unless he
can account for his possession'. In this
case, the learned defence counsel has
failed to rebut the prosecution evidence
in his cross examination in a cogent
and convincing manner to warrant a
contrary presumption in favour of the
accused.'
The learned trial court has rightly hold that
the prosecution has been successful in bringing
home the charge u/s 457 and 380 of IPC against
the accused/appellant. I find nothing to interfere
with the findings of the learned trial court. While
sentencing the accused/appellant, the learned trial
Court has heard the accused/appellant on the
point of sentence which he expected to receive. The
learned trial Court has rightly declined to extend
the benefit of the probation to the
accused/appellant. The accused/appellant was
convicted u/s 457 and 380 of IPC. The learned trial
court sentenced the accused/appellant to undergo
rigorous imprisonment of 2 years with fine of
Rs.300/- u/s 457 of IPC, and another 3 years with
fine of Rs.500/- u/s 380 of IPC)
10. According to my considered opinion, the
sentence as imposed to the accused/appellant u/s
380 of IPC is too harsh. Therefore, the sentence as
imposed by the learned trial Court to the accused/
appellant u/s 380 of IPC is modified and
sentenced the accused/appellant Probin Gandhia
to undergo rigorous imprisonment of 2(two) years
with fine of Rs.300/- (Rupees three hundred), and
in default of payment of fine as imposed u/s 457
and 380 of IPC the accused/appellant shall
undergo with another simple imprisonment of 10
days.
11. The appeal is dismissed with aforesaid
modification of sentence."
10] Reading of the aforesaid judgment & order of
the appellate Court, it is apparent that the appellate Court
after considering the evidences on record was pleased to
uphold the judgment & order of the trial Court, wherein
the trial Court has held the petitioner/ accused guilty
under Section 457/ 380 of I PC on the ground that the
petitioner/ accused has not been able to rebut the
presumption under illustration (a) to Section 114 of the
Evidence Act. Apt at this stage to refer to illustration (a)
to Section 114 of the Evidence Act, which is reproduced
hereunder for ready reference: -
"Illustration
The Court may presume -
(a) 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;"
11] Reading of the aforesaid illustration, it is
apparent that a court may legitimately draw a
presumption on the fact that the person, 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. Therefore, if it is proved that a theft was
committed and that soon after it was committed, the
stolen property was recovered from the possession of the
accused, the Court is entitled, as the case may be, to
presume that the accused is either the thief or the
receiver of the property knowing it to be stolen.
Undoubtedly, the said presumption is rebuttable and
would depend on the facts and circumstances of the
case. However, the onus is on the accused to account for
his possession by adducing material and cogent evidence.
12] Reference is made to the decision of Sir
Charles Edward Pollock, Baron of the Exchequer of
the Court of the Exchequer, reported in the case of R.
v. Langmead, (1864) 9 Cox. CC 464, wherein it was
held as hereunder:
"if no other person is involved in the transaction,
and the whole of the case against the prisoner is
that he was found in possession of the stolen
property, the evidence would no doubt point to a
case of stealing rather than a case of receiving; but
in very case, except indeed where the possession
is so recent that it is impossible for any one else to
have committed the theft, it becomes a mere
question for the jury whether the person found in
possession of the stolen property stole it himself or
received it from some one else. If there is no other
evidence, the jury will probably consider, with
reason, that the prisoner stole the property; but if
there is other evidence, which is consistent either
with his having stolen the property, or with his
having received it from some one else, it will be for
the jury to say which appears to them the more
probable solution."
13] I n the instant case, there are no such
circumstances discernible from the evidence on record,
which weakens the presumption which can be drawn
under Section 114 of the Evidence Act, on the account of
the stolen articles in question being recovered from the
house of the petitioner/ accused on being produced by
him. That apart, it appears that the petitioner/ accused
has not explained as regards how the stolen goods were
in his possession in his house in his examination under
Section 313 of Cr.P.C. I n fact, he has generally denied all
the incriminating circumstances by simply saying "I t is not
true". Further, it appears that the petitioner/ accused has
chosen not to adduce any defence witnesses. I n such
circumstances, the presumption under Section 114 of the
Evidence Act cannot be ignored by the trial Court.
14] That being so, this Court finds no legal
infirmities whatsoever, in the judgment & order of the
appellate Court. Accordingly, the revision petition stands
dismissed. No order as to costs.
15] Return the case records.
JUDGE
Comparing Assistant
