Mohammad Ali Jamadar and Another vs The State

Renupada Mukherjee, J.—This Rule is directed against an order passed by the learned Sessions Judge of Howrah. maintaining in appeal the conviction of the petitioners u/s 411, I.P.C. and the sentence of 3 months R.I. passed upon them by a Magistrate, 1st class, of Uluberia. The prosecution case before the trying Magistrate was that after the midnight of the 4th Sravan, 1361 B. S. (corresponding to 21st July, 1954) there was a theft in the house of one Anwar Ali (P. W. 1 in the trial Court). The properties stolen consisted of a wrist-watch and a pocket watch belonging to Anwar Ali and also some articles of clothing belonging to his brother-in-law (P. W. 10) Nurul Hossain. A first information report was duly lodged in the Police Station at 7 a. m. on the morning following. Nothing came out during the next two days but suspicion of the complainant began to fall upon the present petitioners as a result whereof the petitioners were called one after another in the house of one Babulal Sardar, P. W. 3. There the two petitioners confessed their guilt one after another upon some inducement being held out to them that they would not be proceeded with and they took Babulal and some of the villagers to a bush on the roadside and brought out a Kantha (Ex. 4) containing the two stolen watches and also a Pontla (bag) containing some clothes. The two watches were identified as belonging to complainant Anwar Ali and the clothes as belonging to his brother-in-law Nurul Hossain. After the articles had thus been discovered on the showing of the petitioners, a police party led by Inspector Indu Ranjan Baidya (P. W. 2) arrived at the parlour of Babulal Sardar in the course of their night patrol. Then the two accused persons and the recovered properties were handed over to the Police. A charge-sheet was submitted against the petitioners in due course and they were tried and convicted by a Magistrate, 1st class, Uluberia, in the manner already stated. An appeal having been preferred before the Sessions Judge of Howrah, the appeal was dismissed. The accused persons have come up in revision to this Court.

Mr. Mukherjee appearing on behalf of the accused petitioners contended in the first place that the conviction of the petitioners is mainly based upon the so-called confession and that this confession should-not have been admitted in evidence inasmuch as it was procured by inducement by a person in authority. This contention on behalf of the petitioners also appears to have been put forth in the lower appellate court but the contention was negatived on the ground that section 24 of the Indian Evidence Act does not make the confession inadmissible. Mr. Mukherjee submitted before us that the so-called confession was made in the presence of several persons among whom Babulal Sardar was one. It was urged on behalf of the petitioners that according to his own admission this Babulal was a leader of the village and so he was a ''person in authority'' within the meaning of section 24 of the Evidence Act. Of course there is evidence to show that some inducement was held out to the petitioners that they would not be proceeded with in a court of law if they made the confession, otherwise the confession would never have been made at all. The question therefore is whether Babulal who styled himself as a leader of the village can be regarded as a person in authority. In my opinion there is absolutely no ground for holding that Babulal who is a self-constituted leader of the village can be regarded as a person in authority in view of the evidence which is on the record. It may be that he was simply one of the prominent residents of the village but in order that a person may be regarded as a person in authority within the meaning of section 24 of the Evidence Act, he must have some authority or power to interfere in the matter which concerns the accused. In the present case there is absolutely no material on the record to show that Babulal had any power to interfere with or to exercise any control over the charge which was later on brought against the accused. That being the case, the confession made before Babulal and some of his covillagers cannot be regarded as inadmissible. It was properly admitted in evidence by the trying Magistrate and in our opinion the courts below were justified in acting upon this confession of the petitioners.

The second point urged by Mr. Mukherjee on behalf of the accused petitioners was that the evidence adduced in the case does not warrant a finding that the petitioners had any guilty knowledge that the properties were stolen properties. It may be stated in this connection that both the courts have held that the two watches in question and also the articles of clothing which were recovered from a bush on the showing of the petitioners, were stolen articles. The petitioners themselves confessed that the properties had been stolen by them and had been secreted in a bush. It was the petitioners who took the villagers to the bush and brought out the properties. That being the case, there cannot be any manner of doubt that the petitioners had knowledge that the properties were stolen properties. In fact they had admitted that they themselves were the thieves but as there was no other direct evidence on the point of theft, excepting the extra judicial confession of the petitioners, the trying Magistrate thought it fit to convict the petitioners under sec. 411, I.P.C., in stead of u/s 379, I. PC. In our judgment the conviction u/s 411, I.P.C., cannot be reasonably challenged on the ground that the petitioners had not the requisite guilty knowledge.

The third contention urged on behalf of the petitioners was that the properties were not recovered from their possession and so their conviction is bad in law. It may be that the properties were not recovered from the house of the petitioners but the evidence satisfactorily shows that the stolen articles were secreted in a bush and they were brought out by the petitioners themselves. In the eye of law the properties were in the possession of the petitioners because they themselves had concealed the stolen properties in a bush. The conviction of the petitioners cannot therefore be said to be in any way improper on the ground that the properties were recovered from a bush.

The last contention urged on behalf of the petitioners by Mr. Mukherjee was that the charge is vitally defective inasmuch as it has been stated therein that the articles of clothing contained In the Pontla belonged to the complainant and not to his brother-in-law Nurul Hossain. It seems that the charge was somewhat inaccurately drawn up by the learned Magistrate, so far as the ownership of the articles of clothes was concerned, but then Nurul Hossain was residing at this time at the house of Anwar Ali from where the articles of clothing were stolen. In addition to this, the charge against the accused relates not only to the articles of clothing but also to two watches which belong to the complainant and the ownership of which was established beyond any reasonable doubt. Although, therefore, there was the above slight inaccuracy in the charge, we do not think that the accused petitioners have in any way been prejudiced by reason of that inaccuracy. Nor do we think that the inaccuracy has resulted in a failure of justice.

All the contentions urged on behalf of the petitioners having failed, this Rule is discharged. The petitioners must surrender to their bail and serve out the sentence.

Mitter, J.

I agree.