# Ram Nias v. State

- **Citation:** (2026) 3 ILRA 224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-28
- **Case number:** Criminal Appeal No. 2941 of 1988
- **Bench:** Tarun Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nias-v-state-39024
- **Pages:** 7

## Text

224 INDIAN LAW REPORTS ALLAHABAD SERIES
all the evidence he must hear the arguments but reserve the judgment in that case. The same
learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each
of the cases, he can rely only on the evidence recorded in that particular case. The evidence
recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is
argued in the cross case. Each case must be decided on the basis of the evidence which has been
placed on record in that particular case without being influenced in any manner by the evidence or
arguments urged in the cross case. But both the judgments must be pronounced by the same
learned Judge one after the other."

39. In the case of Jitendra Kumar Mishra alias Jittu Vs. State of Madhya Pradesh Hon'ble
the Supreme Court held that an appellate court should be slow in interfering with conviction
recorded by courts below but where evidence on record indicates that prosecution has failed to
prove guilt of accused beyond reasonable doubt and that a plausible view, different from one
expressed by trial court, can be taken. The appellate could should not shy away in giving benefit of
doubt to the accused.

40. Therefore, the appellant is held not guilty for offence of hurt or grievous hurt to a public
servant to deter him from discharging his duty or any other offence and liable to be acquitted, as the
trial court has incorrectly appreciated evidence. Thus, the judgment of conviction and sentence
dated 23.10.1986 in Sessions Trial No.142 of 1984 (State Vs. Rajendra Kumar), arose out of Case
Crime No.371 of 1981, for offences under Sections 332, 333 IPC, Police Station Roorkee, District
Saharanpur, is set aside.

41. The appeal is allowed. The accused-appellant Rajendra Kumar s/o Raj Kishore, resident of
Madanpuri Colony, Chilkana Road, Police Station Mandi, District Saharanpur, is acquitted of
offence under Sections 332, 333 IPC. Appellant is on bail. His bail bonds is discharged.

42. Record be remitted back forthwith alongwith the copy of judgment.
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(2026) 3 ILRA 224
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD-28.03.2026

BEFORE

THE HON'BLE TARUN SAXENA, J.

Criminal Appeal No. 2941 of 1988

Ram Nias ...Appellant
Versus
State ...Respondent

Issue for consideration
Matter pertains to presumption u/s 114 of Indian Evidence Act.

Headnotes
3 All. Ram Nias Vs. State
225
Indian Penal Code, 1860-Section 411- Indian Evidence Act, 1872-sec 114-Section 411 -two facts to
be established by direct evidence-(i) that the theft was committed and certain article was stolen-(ii) that the
stolen article was recovered from the possession of the accused-it will be open to the Court to presume under
illustration (a) to Section 114 of the Indian Evidence Act, 1872 -that the accused is either the thief or a
receiver of stolen property-said presumption is a discretionary one- prosecution miserably fails to prove these
three ingredients beyond reasonable doubt. Appeal allowed. (E-9)

Case Law Cited
1. Trimbak Vs. The State of Madhya Pradesh; AIR 1954 SC 393
2. Rajjaua Vs. The State; AIR 1959 All 718

List of Acts
1. Indian Penal Code, 1860
2. Indian Evidence Act, 1872

List of Keywords
Stolen property; recovery of the stolen property; possession of the accused; thief; presumption.

Appearances of parties
Counsel for Appellant(s) : Pankaj Kumar Sharma, Ram Nias Counsel for Respondent(s) : A.G.A.

(Delivered by Hon'ble Tarun Saxena, J.)

1. Heard learned counsel for the appellant, learned AGA for the State and perused the record.

2. This criminal appeal has been preferred by the accused-appellant against the judgment and
order dated 21.12.1988 passed by the Special Judge, Dacoity Affected Area (DAA)/ 4th Additional
Sessions Judge, Eta in Special Session Trial No. 567 of 1984, whereby the trial court convicted the
appellant under Section 411 I.P.C. and sentenced him to undergo rigorous imprisonment of two
years.

3. In brief, the prosecution story before the trial court was that accused appellant Ram Niwas
along with three other persons on 02.03.1984 at some time after 4:00 P.M., in the local territory of
village Yaqootganj within the limits of Police Station Sahawar, District Etah committed robbery
and looted a tractor 'Escort' along with a trolley from the possession of Natthu son of Ram Chandra,
who is the complainant of the case. That tractor was in joint ownership of one Mahendra Pal Singh
and Prem Singh who were the residents of town and Police Station Bilsi, District Badaun. Later on
30.03.1984 in the local territory of village Nagla Ulfat, within the circle of Police Station Soron,
one of the accused namely, Natthu Ram was found in possession of a wheel of a tractor, knowingly
or having reason to believe that the aforesaid property was stolen property, and on 04.06.1984, at
about 3:30 P.M., in the jungle of Buri Ganga, near the Nala, within the limits of village Tali, Police
Station Soron, a tractor and a trolley were also recovered from the possession of the accused
persons. An F.I.R. has been registered on 02.03.1984 at about 8:45 P.M. at the police station
Sahawar, by the complainant Natthu alleging therein that he was the driver of Mahendra Pal and
Prem Singh and he used to drive the tractor. On 02.03.1984, one unknown person took the tractor
on rent for the purpose of transportation of the potatoes from Mahendra Pal Singh and Prem Singh.
Thereafter, three persons also sat with those unknown persons in village Nagariya on the pretext
that they were labourers. When they all reached near village Yaqootganj, on the road, the aforesaid
226 INDIAN LAW REPORTS ALLAHABAD SERIES
persons put down the complainant in the hillocks of sand by tying his hands and foot and went
away taking the said tractor.

4. The investigation of this case was entrusted to S.I. Sri Lal Singh, Police Station Sahawar.
He reached the place of occurrence and recorded the statements of witnesses. During investigation,
the stolen tractor was recovered on 30.03.1984 from the jungle within the limits of Nagla Ulfat,
Police Station Soron, and a recovery memo was prepared in this regard. A wheel of the said tractor
was recovered from the house of Natthu Ram and its recovery memo was also prepared during the
investigation. On 04.06.1984, accused Ram Niwas, who is the appellant in this case was arrested by
the police of Police Station Sahawar in another Crime No. 112 of 1984, under Section 25 of Arms
Act and he confessed about the robbery of the said tractor and assured that he could get the trolley
of the tractor recovered. The said trolley was recovered on 04.06.1984 at about 3:50 P.M. on
pointing out of Ram Niwas near the Nala of Buri Ganga in the local limits of village Bali and a
recovery memo was prepared by the Investigating Officer. The Investigating Officer also inspected
the place of the recovery of the stolen tractor and prepared its site plan.

5. The charges under Sections 392 and 411 I.P.C. were framed against the accused appellant
after submission of the charge-sheet. Accused denied all the charges and claimed to be tried. In his
statement recorded under Section 313 Cr.P.C., the accused person stated that he was falsely
implicated in this case due to enmity and village party bandi.

6. Learned trial court after examining the entire evidence on record recorded the conviction of
accused Ram Niwas under Section 411 I.P.C. while acquitted him of the charge under Section 392
I.P.C.

7. Submission of learned counsel for the appellant is that the trial court failed to appreciate the
evidence in correct perspective and also failed to appreciate the fact that there were several lacuna
found in the prosecution story especially the fact that stolen property i.e. trolley was never
identified by the real owner of the stolen property. It is also submitted that the sole evidence against
the accused-appellant is that of recovery on the pointing out of the appellant by the police
authorities and since the said looted property was recovered from an open place which was not in
the exclusive possession of the accused. It cannot be said that accused appellant was in possession
of the stolen property at that particular time when the recovery was made.

8. Per contra, learned AGA for the State submits that the trial court correctly appreciated the
prosecution evidence available on record and correctly presumed that at the time of recovery of the
stolen property the accused-appellant was in possession of the stolen property.

9. This Court looked into the entire evidence available on record. P.W.-1 Natthu stated in his
testimony that he was the driver of the tractor belonging to three persons Mahendra Singh, Ram
Prakash and Jai Singh, who were joint owners of the said tractor. On the fateful day, he was sent by
the owner of the tractor to transport the potatoes with an unknown man. When they reached
Yaqootganj, four unknown men came on the spot and took away the tractor at about 7:30 P.M. He
lodged the F.I.R. in the concerned police station regarding the incident. P.W.-2 Shivraj Singh stated
in his testimony that he saw Nathu alongwith four other men on the tractor, when he reached near
3 All. Ram Nias Vs. State
227
the tractor, all the accused went away from the spot. The tractor was seen in the field of one
Mathura Prasad. The police recovered a wheel of the said tractor from the house of the Nathu in his
person. P.W.-3 Bhagwan has stated in his testimony that on the relevant day at about 9:00 P.M. in
the night, he was present in the field of Ompal. There was a tractor carrying four persons, he could
not identify who were the persons. P.W.-4 Mahendra Singh stated in his testimony that police
recovered the trolley in his present on the relevant day on pointing out of accused Ram Nias near
Buri Ganga. He made his signature on the recovery memo. In his cross-examination, this witness
admitted that he could not remember the colour of the said trolley.

10. The owner of the said stolen property, namely, Ram Prakash was examined as P.W.-5
during trial, who stated in his testimony that he was the owner of the said tractor and trolley. The
said tractor and trolley were once stolen, later on the Police recovered the said property from the
accused person and this property was returned to him on furnishing sureties to produce it before the
trial court. He admitted in his cross-examination, during trial that since the said tractor and trolley
were in very poor condition, he could not bring them before the court during trial. He also admitted
that the said recovered stolen property was never identified by him during investigation. C.W.-1,
Lal Singh, the Investigating Officer of the Case, in his testimony stated that he recovered the trolley
during investigation on 04.06.1984 on the pointing out of the accused Ram Niwas. In his testimony
he admitted that the said trolley was recovered from an open field.

11. On perusal of the evidence available on record, it is evident that the trial court recorded the
conviction of the accused-appellant on the basis of recovery of the stolen property on the pointing
out of the accused in presence of P.W.-4 during the course of the investigation.

12. In the leading case of Trimbak Vs. The State of Madhya Pradesh; AIR 1954 SC 39
Hon'ble Apex Court held that in order to bring hold the guilt of a person under Section 411 I.P.C. it
is necessary to prove the following ingredients:-

(i) that the stolen property was in the possession of the accused,

(ii) that some person other than the accused had possession of the property before the accused
got possession of it, and

(iii) that the accused had knowledge that the property was stolen property.

13. This Court in the leading case of Rajjaua Vs. The State; AIR 1959 All 718 while
explaining the ingredient no.(ii) of the aforesaid mentioned ingredients held that in the case of
Trimbak (Supra) while pointing out the second ingredient of Section 411 I.P.C. Hon'ble Apex
Court was only reiterating the well recognised distinction between a receiver of the stolen property
and the thief himself. When the thief removes the stolen property from the possession of its owner
and takes it into his own possession, he not only commits theft but is also in possession of stolen
property knowing it to be stolen. He cannot, however, be convicted of both the offences. If he is the
'thief' he possesses the stolen property in his capacity as a thief, and not as a receiver. It has,
therefore, been held the same person cannot be convicted of theft as well as of receiving stolen
property knowing it to be stolen. In Trimbak (Supra) case it was held that since none of the
228 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid three essential ingredients of the offences had been proved as the field from where the
stolen property was recovered, was an open one and accessible to all and sundry, it was found to be
difficult to hold positively that the accused was in possession of the stolen property. Hon'ble Apex
Court observed that on the evidence available on record, it cannot be held that the accused Trimbak
was the thief and as there was no evidence that the stolen property was in possession of the
someone else before the appellant got it, he cannot be held guilty of receiving the stolen property
punishable under Section 411 I.P.C.

14. In the case of Rajjaua (Supra) this Court held that in every case under Section 411 I.P.C.
two facts have to be established by direct evidence, which reads as below:-

(i) that the theft was committed and certain article was stolen;

(ii) that the stolen article was recovered from the possession of the accused;

These facts cannot be presumed if these two facts are established and the recovery from the
possession of the accused is a recent one, it will be open to the Court to presume under illustration
(a) to Section 114 of the Indian Evidence Act, 1872 that the accused is either the thief or a receiver
of stolen property. The said presumption is, however, a discretionary one and may not be available
at all in certain cases, where in the circumstances of the case the recovery cannot be held to have
been made soon after the theft.

15. In light of these two important pronouncements one by Hon'ble Apex Court in the case of
Trimbak (Supra) and another by this Court in the case of Rajjaua (Supra), this Court has to
examine whether in the present case the necessary ingredients of Section 411 I.P.C. as enunciated
by the Hon'ble Court have been proved by the prosecution through the evidence available on
record.

16. For the factum of alleged recovery of stolen property on the pointing out of the accusedappellant during the course of the investigation two prosecution witnesses have been examined i.e.
Mahendra Singh (P.W.-4) and S.I. Sri Lal Singh (C.W.-1), the Investigating Officer who conducted
the investigation of the case.

17. From the perusal of the statement of P.W.-4 Mahendra Singh, it is evident that the stolen
property was recovered from an open place/ field near the river Buri Ganga. It is worth to mention
that P.W.-4 in his cross-examination could not even tell the colour of the said stolen property i.e.
trolley. He has stated that the place of recovery belongs to villagers of Tali Village and native
people gathered there at the time of recovery. While Sri Lal Singh (C.W.-1) in his statement
categorically stated that the said recovery of the stolen property (trolley) on the pointing out of the
accused-appellant was made on 04.06.1984 while the theft of the said stolen property is said to
have been committed on 02.03.1984. This witness also stated that the recovery memo was prepared
during the said recovery which is exhibited as Exh. Ka-3 and a copy of the said recovery memo
was given to the accused-appellant Ram Niwas. Now in light of the statements deposed by these
two witnesses, it is to be examined whether the prosecution has been able to prove the fact that the
stolen property at the relevant point in time was in possession of the accused-appellant.
3 All. Ram Nias Vs. State
229

18. From perusal of the recovery memo as well as the statements of P.W.-4 and C.W.-1 it is
evident that the said recovery was made from an open place/ field accessible to all and sundry.
Thus it is very difficult to hold positively that the accused-appellant was in possession of the stolen
property at the time of recovery as held in the case of Trimbak (Supra) by Hon'ble Apex Court.
Again it is evident that a copy of the recovery memo was provided to accused-appellant at the time
of preparation of the said recovery memo (Exh. Ka-3), however, in the recovery memo (Exh. Ka-3)
there was no sign of the accused-appellant nor any thumb impression of the accused-appellant was
found. The only independent witness of the said recovery i.e. P.W.-4 was examined during the trial,
who was not a native person of that particular place or village from where the said recovery was
made. A native villager of the place of the recovery was also made a witness by the prosecution i.e.
Raghunath but he was not examined in support of the prosecution case. P.W.-4 Mahendra Singh
could not tell the essential descriptions and other whereabouts of the stolen property i.e. tractor
trolley, so the recovery of stolen property on the pointing out of the accused-appellant itself seems
to be highly doubtful and this Court is of the considered opinion that from the evidence on record,
it has not been proved beyond reasonable doubt that at the relevant point in time of recovery the
stolen property was in actual possession of the accused Ram Niwas. It is worth to mention that the
true owner of the said property namely, Ram Prakash has been examined as P.W.-5 and from the
testimony of this witness it is evident that the said recovered stolen property was never produced
before the trial court nor it was identified by the true owner of the said property during the course
of investigation or during trial.

19. Now in light of the aforementioned leading cases it has to be examined whether the
recovery made on the pointing out of the accused-appellant was a recent one so that the benefit of
presumption under illustration (a) to Section 114 of the Indian Evidence Act, 1872 can be drawn in
favour of the prosecution.

20. Section 114 of the Indian Evidence Act, 1872 provides that 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. The Court may presume:-

(a) that a man who is in the 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;

21. Now coming to the present case, the said occurrence of theft is said to be on 02.03.1984
while the recovery of stolen property on the pointing out of the accused-appellant was made on
04.06.1984 during investigation after more than three months from the date of incident and in any
case it cannot be said to be a recent recovery. The onus to prove all the three ingredients as
enunciated in the case of Trimbak (Supra) by Hon'ble Apex Court rests upon prosecution to
prevent them by direct evidence. This Court is of the considered opinion that from the evidence on
record the prosecution miserably fails to prove these three ingredients beyond reasonable doubt.

22. Thus, for the reasons given above, this appeal deserves to be allowed. The appeal is hereby
allowed. The judgment and order dated 21.12.1988 passed by Special Judge, Dacoity Affected
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Area (DAA)/ 4th Additional Sessions Judge, Eta in Special Session Trial No. 567 of 1984 is hereby
set aside and accused-appellant Ram Niwas is hereby acquitted of the charge of Section 411 I.P.C.

23. The appellant is on bail. His bail bonds and sureties are hereby discharged.

24. Let this judgment and order be communicated to the learned trial court concerned for
taking necessary actions.

25. Let the original records be sent back to the learned trial court concerned.
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(2026) 3 ILRA 230
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2026

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE MRS. SWARUPAMA CHATURVEDI, J.

Special Appeal No. 209 of 2026 and other connected cases

Veeresh Chandra Mishra & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Issue(s) for consideration
 Whether an Officiating Principal of an intermediate college was entitled to payment of salary commensurate
to that of Principal?

Headnotes
A. Service Law - U.P. Intermediate Education Act 1921: Section 16G; Chapter 1 of the Regulation
framed under the Act, 1921 - The submission that the provisions of Intermediate Education Act,
1921 and the precedential law (governing the appointment of ad-hoc principals at such
institutions) has lost force, is too sweeping to merit acceptance.

Overriding effect of the Commission Act - U/s 30, the Commission Act has been given overriding effect
over the provision of the Intermediate Education Act, 1921, w.r.t. selection of teachers and instructors, which
obviously include Principal (under section 2(n) of the said Act). (Para 37)

A.(a) The words 'regarding the selection of teachers' appearing in section 30 of the Commission
Act are being read by the Court restrictively- to only imply and refer to regular selections of such
teachers. To that extent, the provisions of the Commission Act would override the provisions of the
Intermediate Act. Consequently, to that extent, any person authorised to function as an Officiating
Principal, may never claim after right to continue on such substantive post, after the
appointment of a regular principal. That provision may only provide for the interregnum- arising out of
exigency and not volition of the Committee of Management of such institution. Therefore, that arrangement
made may remain protected from the harsh consequences of section 30 of the Commission Act.
For the above reason, section 31(3) of that Act may also not affect the rights claimed by the
original petitioners/appellants. (Para 41)