# • KARNAL SINGH UTTAM SINGH v. STATE OF MAHARASHTRA

- **Citation:** [1976] 2 S.C.R. 747
- **Court:** Supreme Court of India
- **Decided:** 1975-11-19
- **Bench:** M. H. °Beg, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karnal-singh-uttam-singh-v-state-of-maharashtra-6878
- **Pages:** 6

## Headnote

747
Indian Evidence Act-Section 114---Presumption from recent possession of
stolen property-Nature of.
Criminal Procedure Code, 1898-Secition 342-When explanatidn g;.ven by the
accused under s. 342 i's quite reasonable and 'dredible and supported by other
evidence in defence, Conviction and sentence under s. 411 of the Indian Penal
Code is not sustainable.
On 4-3-1%8, the date of the accident, Kamal Singh, the accused was driving
the truck No. MRS 73 72. purchased out of the loan advanced by the ex-serviceman Co-operative Society to one Sutar who entrusted the vehicle to Balwant
Singh, the brother of the appellant, a co-accused, under a contract for hirn against
a monthly payment of Rs. 2000-2200, after incurring all expenses over the
truck. The payment was regular up to December, 1967,
and,
thereafter,
Balwant Singh avoided Sutar. Though Balwant Singh met Sutar on 9-3-1968
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and 12-3-1968, i'e. after the date of accident and promised to meet him later,
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he actually absconded resulting in the lodging of a First Information Report by
Sutar on 20-4-1968 at 12.30 p.m. against Balwant Singh Uttam Singh for taking appropriate action under s. 408, I.P.C.
Since· Balwant Singh was absconding and the' vehicle was found in the
possession of Kamal Singh, the police apprehended him and filed the charge
sheet.
The Presidency Magistrate, 6th Court, Mazagaon, Bombay, charged the
appellant under s. ·408 read with s. 114 of the Indian Penal Code, but, actually
convicted him and sentenced him to six m01iths R.I. and a fine of Rs. 500/ -
E
under s. 411 Indian Penal Code without appreciating the effect of either the
value of Exhibit Dl dated 12~3-1908 written by Sutar indicating that he was
agreeable to pay the total costs of the repair of the damaged vehicle, with
the admission of its execution by Siutar in cross-examination and failure
to
explain these or of the explanation given by ·the accused in his 342 statement
as to how he came into possession of the lorry for repairing it.
The High Court maintained the conviction and the sentence.
Allowing the
appeal by special .leave, the Court,
HELD : ( 1) The presumption from recent possession of stolen property
is an optional presnniption of fact under s. 114 of the Indian Evidence Act.
It is open to the Court to convict the appelJant by using the presumption whew
the circumstances indicate that no other reasonable hypothesis except the_ guilty
knowledge of the appellant is open to the prosecution.
[751-D]
(2) In fue instant case, tliere was no mention of the appellant's name in the
F.I.R .. there was no charge under s. 411. I.P.C. against him; and he was not
asked to explain his possession of the truck, but still he did explain it.
The
appellant's answer to the omnibus question under s. 342, Criminal Procedure
Code, without giving him an jntimation of th~ offence of which. he was likely .to
be convicted, on the face of it, was quite reasonable and credible.
The prosecution had been unable to repel the effect of this fairly acceptable explanation.
The exp I anation which the appellant had given was good enough to raise
serious doubts abont the sustainability of a charge under s. 411, Tndian Pena\
Code.
The principle of benefit of doubt on questions of fact applies whether
the verdict is of a Jury or the finding is to be given by a Judge or a Magis•
Irate.
[751, AB, E, HJ
O'tto George Gfielle.r v. The King, AIR 1943 PO 211 @ 214 & 215, applied .
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748
SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
CRIMINAL APPE'LLATE JURISDICTION : Criminal Appeal No. 133
of 1971.
Appeal by special leave from the judgment and order datecl. the
15-2-1971 of the Bombay High Court in Criminal Appeal No. 1354
of 1969.
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S. K. Gambhir and S. M. Sikka for the appellant.
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M. C. Bhandare and M. N. Shroff for Respondent.

## Text

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•
KARNAL SINGH UTTAM SINGH
v.
STATE OF MAHARASHTRA
November 19, 1975
[M. H. °BEG AND P. K. GOSWAMI, JJ.J
747
Indian Evidence Act-Section 114---Presumption from recent possession of
stolen property-Nature of.
Criminal Procedure Code, 1898-Secition 342-When explanatidn g;.ven by the
accused under s. 342 i's quite reasonable and 'dredible and supported by other
evidence in defence, Conviction and sentence under s. 411 of the Indian Penal
Code is not sustainable.
On 4-3-1%8, the date of the accident, Kamal Singh, the accused was driving
the truck No. MRS 73 72. purchased out of the loan advanced by the ex-serviceman Co-operative Society to one Sutar who entrusted the vehicle to Balwant
Singh, the brother of the appellant, a co-accused, under a contract for hirn against
a monthly payment of Rs. 2000-2200, after incurring all expenses over the
truck. The payment was regular up to December, 1967,
and,
thereafter,
Balwant Singh avoided Sutar. Though Balwant Singh met Sutar on 9-3-1968
A
B
c
and 12-3-1968, i'e. after the date of accident and promised to meet him later,
D
he actually absconded resulting in the lodging of a First Information Report by
Sutar on 20-4-1968 at 12.30 p.m. against Balwant Singh Uttam Singh for taking appropriate action under s. 408, I.P.C.
Since· Balwant Singh was absconding and the' vehicle was found in the
possession of Kamal Singh, the police apprehended him and filed the charge
sheet.
The Presidency Magistrate, 6th Court, Mazagaon, Bombay, charged the
appellant under s. ·408 read with s. 114 of the Indian Penal Code, but, actually
convicted him and sentenced him to six m01iths R.I. and a fine of Rs. 500/ -
E
under s. 411 Indian Penal Code without appreciating the effect of either the
value of Exhibit Dl dated 12~3-1908 written by Sutar indicating that he was
agreeable to pay the total costs of the repair of the damaged vehicle, with
the admission of its execution by Siutar in cross-examination and failure
to
explain these or of the explanation given by ·the accused in his 342 statement
as to how he came into possession of the lorry for repairing it.
The High Court maintained the conviction and the sentence.
Allowing the
appeal by special .leave, the Court,
HELD : ( 1) The presumption from recent possession of stolen property
is an optional presnniption of fact under s. 114 of the Indian Evidence Act.
It is open to the Court to convict the appelJant by using the presumption whew
the circumstances indicate that no other reasonable hypothesis except the_ guilty
knowledge of the appellant is open to the prosecution.
[751-D]
(2) In fue instant case, tliere was no mention of the appellant's name in the
F.I.R .. there was no charge under s. 411. I.P.C. against him; and he was not
asked to explain his possession of the truck, but still he did explain it.
The
appellant's answer to the omnibus question under s. 342, Criminal Procedure
Code, without giving him an jntimation of th~ offence of which. he was likely .to
be convicted, on the face of it, was quite reasonable and credible.
The prosecution had been unable to repel the effect of this fairly acceptable explanation.
The exp I anation which the appellant had given was good enough to raise
serious doubts abont the sustainability of a charge under s. 411, Tndian Pena\
Code.
The principle of benefit of doubt on questions of fact applies whether
the verdict is of a Jury or the finding is to be given by a Judge or a Magis•
Irate.
[751, AB, E, HJ
O'tto George Gfielle.r v. The King, AIR 1943 PO 211 @ 214 & 215, applied .
F
G
H
A
748
SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
CRIMINAL APPE'LLATE JURISDICTION : Criminal Appeal No. 133
of 1971.
Appeal by special leave from the judgment and order datecl. the
15-2-1971 of the Bombay High Court in Criminal Appeal No. 1354
of 1969.
)-
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S. K. Gambhir and S. M. Sikka for the appellant.
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M. C. Bhandare and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by
BEG, J.
The appdlant before us by special leave was charged as
follows by the Presidency Magistrate of Bombay :
"I, B. P.
Saptarshi, Presidency Magistrate 6th Court,
Mazagaon, Bombay, do hereby charge you :
Karna! Singh S/o Uttam Singh as follows :
"That you on; or about the 20th day of February, 1968
at Bombay along with one Balwant Singh s/o Uttam Singh
who has absconded, at 171, Kazi Sayyed Street, being entrusted with certain property to wit M/Lorry No. 7372
valued at Rs. 52,000/- belonging to the complainant Shankar
Dhondiba Sutar as driver committed criminal breach of trust
in respect of the said property and aided and abetted to the
absconding accused in commission of the said offence and
thereby committed an offence punishable under Sec. 408
r. w, 114 of the Indian Penal Code and within my cognizance.
·
And I hereby direct that you be tried by me on the said
charge".
The prosecution evidence in the case was : One Shankar Dhondiba
Sutar
a member of the Ex-Servicemen Transport Cooperative
Society Ltd., Bombay, had purchased the Truck No. MRS 7372
after taking a loan of Rs. 50,000/- from the Society out of which
he had paid up Rs. 43,000/-.
He had entrusted Balwantsingh
Uttamsingh,. the brother of the appellant, with the truck.
He had a
contract with Balwantsingh Uttarnsingh under which he used to get
a net income of Rs. 2000/- to Rs. 2200/- p.m. from Balwantsingh
Uttamsingh who was running the truck and seemed to be incurring
all necessary expenses over it.
This amount was paid regularly upto
December, 1967.
Thereafter, Balwantsingh Uttamsingh, the driver,
avoided meeting the purchaser of the truck and
was
said
to
be
absconding.
On 4-3-1968, the truck met with
an
accident and
Balwantsingh Uttamsingh is said to have sent information of it to
S. D. Sutar.
On 9-3-1968, according to Sutar, Balwantsingh himself went to Sutar.
And, when the owner asked him to take him
to the truck, it is alleged that he did not comply with this
request.
•
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KARNAL SINGH V. MAHARASHTRA (Beg, !.)
749
As Shankar Dhondi!Ya Sutar had not paid up the whole amount due
for the truck which he had borrowed from the Society, the owner
of the truck, as entered in the Insurance papers, . was the Society
itself.
S. D. Sutar stated that he found the truck at Thana Katha
where he also found the appellant before us, Karnalsingh Uttamsingh,
who had been, apparently, driving the truck. The First Information
Report was lodged on 20-4-1968 at 12.30 p.m. by' S. D. Sutar.
It is against Balwantsingh Uttamsingh and makes no allegations against
the present appellant. It is said that Balwant Singh Uttamsingh had
met S. D. Sutar again on 12-3-1968 and told him that he
would
turn up again.
Vazir Singh Gaya Singh, PW 2, the Secretary of
1>-
the Bombay Ex-Servicemen Transport Co. deposed that S: D .. Sutar
was a shareholder in the Companiy and proved the terms of his contract with Balwantsingh. He also made no complaint
whatsoever
against the present appellant.
All that he said was that the truck
was seen near Kashali Bridge· and the present accused was its driver.
Sub Inspector Ramesh Damodar, PW 3, stated that, on 13-5-1968,
Vazir Singh, PW 2, and a police constable brought the truck
to
Pydho!llie Police Station and that it was being driven by the present
appellant at that time. This is all the evidence against the appellant.
The only question that the appellant was asked. by the learned
Magistrate under Section 342 Criminal Procedure Code and tbe
appellant's reply are :
"Q. What do you wish to say with reference to the evidence given and recorded against you ?
A.
I do not know whether MjLorry No. MRS 7372
was handed over to the complainant on sale-purchase agreement and that the complainant had
paid
Rs. 43,000/-
towards the instalment.
I do not know whether the price
was fixed at Rs. 50,000/-. Balwant Singh is my brother but
I do not know if the complainant had given lorry in his
possessio;: in his capacity as a driver.
I
do
not know
whether Balwant Singh left with MjLorry in Dec. 1967.
I do not know anything about Balwant Singh not meeting
the complainant thereafter.
Mangal Singh told me that this
lorry had met with an accident and that I should invest the
amount over repair, and after the amount is recovered from
the plying of the lorry, the lorry would be returned to him.
It is true that Vazir Singh and one P. C. had told me to
take the lorry at the Pydhonie Police Stn.
I was the driver
on the said vehic1e at that time.
I do not know where is
my brother at present.
He meets me at times.
I have not
spoken to him about the case.
I want to lead defence
witness".
He led
some _evidence
in
defence.
Mangaldas
Purshottam,
D.W. 1, stated that one Kartar Singh the driver of the truck had
sent him a Trunk Call from Jalan that the truck in question had met
with an accident on 4-3-1968 and that he gave this message to S. D.
Sutar.
As the accident was serious and the damage was considera~~
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.750
SUPREME COURT REPORTS
[1976] 2 S.C.R.
S. D. Sutar was unable to ipeet with the money required to repair it.
Accord~ng to Vazir Singh, PW 2, the claim against the Insurance Co.
was of Rs. 11,000/-.
According to Mangaldas, DW 1, the complainant had agreed that the appellant should repair the truck and
, deduct its expenses out of the income he could make from plying
the truck on hire.
He proved Exhibit 1 dated 12-3-1968 containing
a writing, signed by S. D . Sutar. It has been translated as follows :
"Ext. '1'
~
Dated 12-3-1968.
National India Roadways,
"I, Shankar Dhoi1diba give you in writing today that my
Lorry No. MRS-7372 which had met with an accident, I
am bound to pay total costs whatever comes to of its reparation".
Sd./-
Shankar Dhondiba Sutar".
This was put to S. D. Sutar illJ cross-examination.
He
admitted
his signature under the writing a.nd gave no explanation about it.
It is significant that it was executed on the very day on which,
according to an admission of S. D. Sutar, Balwant Singh also saw
S. D. Sutar.
Perhaps the defence has also not come out with the
whole. truth.
It is, however, quite inconceivable that S. D.
Sutar
would be completely unconcerned as to what had happen
to
the
truck if he had not entrusted it to somebody other than Balwantsingh
Uttamsingh for repairs to it.
The matter seems to have been reported to the police only as a result of some quarrel or
differe'11c;es
between parties.
Moreover, 1'obody would repair the truck without
being paid for it.
The explanation given by the appellant was, on
the face of it, quite reasonable and credible. It was
not merely
supported by Mangaldas Purshottam, D. W. 1, whose cross-examination did not elicit anything to show that he was unreliable but also,
indirectly, by Ashok fagannath, DW 2, the Superintendent of
the
Commonwealth Insurance Co., who proved the bills supplied to the
Company on the strength of which the Insurance
Co.
had
paid
Rs. 6078.35.
It was, therefore, clear that somebody had got the truck repaired
and realised the amounts to be paid for repairs from the Insurance
Company.
The beneficiary of the contract of insurance
was
the
Bombay Ex-Service.men Transport Co. of which S. D. Sutar was a
member. Apparently, the amount had been realised by somebody on
behalf of this Company.
The bills could )lave been given by
the
appellant. In the absence of any proof as to who else could have
or had repaired the truck the version of the appellant could not be
said to be quite unbelievable.
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KARNAL SINGH V. MAHARASHTRA (Beg, /.)
7 51
A remarkable part of the case is that the Tryi,ng Magistrate had
convicted the appellant under Section 411. Indian Penal Code and
sentenced him to six months rigorous
imprisonment and to pay a
fine of Rs .. 500/- when he was not eve.n. charged with this offence.
The High Court had maintained this conviction and
the sentence
and haa not even mentioned the defects in the
trial.
There was
neither a charge u.nder Section 411 I. P. C . nor was the appellant
asked to explain his possessio~ of the truck although he did accqunt
for it.
The appellant's explanation
appeared quite
plausible. It
may have been difficult to hold that the appellant could not have
been prejudiced by the omission to frame a charge or by the manner
in which he was put one omnibus question under Sectida 342 Criminal
Procedure Code without giving him an intimation of the offence of
which he was likely to be convicted, if these questions
had been
seriously raised.
However, as these questions do not appear to have
been argued m the High
Court and were not eve,n raised in the
grounds of appeal in this Court, we will not consider them further.
We think that this appeal is b6und to succeed on the view of
the facts we have taken above. The presumption from recent possession of stolen property is an optional presumption of fact
under
SectiollJ 114 Indian Evidence Act. It is open to the Court to convict
an appellant by using the presumption
where
the
circumstances
indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the tprosecution.
In the case before
us, the appellant had given a fairly
acceptable
explanation.
The
prosecution had been unable to repel the effect of it.
The
owner
of the truck, S. D. Sutar, had made admissions
which
indicated
that the prosecutio,n case of an unlawful possession on the part of
the appellant was not likely.
It is more likely that the appellant
had been entrusted with the truck in order that he might repair it
and realise the costs. However, we express no opinion on this aspect
of the matter as the existence :of such a contract may involve a civil
liability.
All we need say is that the explanation which the appellant
had given was good enough to raise serious doubts about the sustainability of a charge under Section 411 Indiani Penal Code on the
strength of what was laid down in Otto George Gfeller v.
The
Ki11g(1), the appellant was entitled to an acquittal.
It was
held
there (at p. 215):
1
"The appeilant did not have to prove his stocy but if his
story broke down the jury might convict.
In other words,
the jury might think that the explanation given was one
which could not reasonably be true, attributing a reticence
or an incuriousity pr a guilelessness to the appellant beyond
anything that could fairly be
supposed".
In that case, the question had to go before the Jury and the charge
was found to be defective.
The principle of benefit of doubt, on
questions of fact, applies whether the verdict is of a Jury or the
finding is to be given by a Judge or a Magistrate.-
The principle
laid down in Gfeller's case (supra) (at p. 214) was :
-- 0) A.LR. 1943-·P.c. 211 @214 & 215 .
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752
SUPREME COURT REPORTS
[1976] 2 S.C.R.
" ... that upon the
prosecution establishing
that the
accused were in possession of goods recently stolen they
may in the absence of any explanation by the accused of the
way in which
the
goods
came into their possession
which might reasonably be true find them guilty, but that if
an explanation were given which
the
jury
think
might
reasonably be true, and which is consistent with innocence
although they were not convinced of its truth the prisoners
were entitled to be acquitted inasmuch as the prosecution
would have failed to discharge the- duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the
accused".
Consequently, we aUow this appeal and set aside the conviction
and sentence of the appellant. His bail bonds are discharged .
S.R.
. Appeal allowed.
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