# SHIVAPPA & ORS v. STATE OF MYSORE

- **Citation:** [1970] 3 S.C.R. 720
- **Court:** Supreme Court of India
- **Decided:** 1970-02-19
- **Case number:** Criminal Appeal No. 87 of 1967
- **Bench:** M. HmAYATULLAH, A. N. Ray, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shivappa-ors-v-state-of-mysore-5076
- **Pages:** 4

## Headnote

B
~1rdian Evidence Act, 1872, s. 1 l4-Reco1·ery of properly front posle.HlOn of accused soon after con11nission of a dacoits-fresumption to be
dr~11·11-Whether (.' preJu1nption of participation in dacoity or of lesser
v.(tence •
. T\VO carts loaded ~·ith cloth returning alongwith others from a weekly
village market \\'ere looted by 20 or more pei'sons.
The houses of 20
persons including the 14 _appellants wer:e searched and the looted cloth
\\"<\S "recovered from their possession.
They_ were tried and held guilty
under s. 395 of the Indian Penal Code. The High Court dismissed their
appeals. In appeal by special leave to this Court their only contention was
that in the absence of other evidence conncctini? them. \\Tith the dacoity.
the presumption to be dra\vn frony the possessio~ of stolen clothes ought
to have been one under s. 411 of he Indian Penal Code or at the most
under s. 412 of the Indian Penal Code and not of complicity' in the crime
oi Jacoity. It "as urged that since s. 114 of the Evidence Act did not
lay down definitely the presumption to he dra\l;n in a given set of circumsrances it was neccssarr ahvays to start \\·1th the lesser presumption and
dra\\· the higher presumption only \Vhen there y;as some other evidence to
shO\\' the complicity of the persons in the crime itself.
HELD : Jf there is other evidence to connect an accused
with
the
crin1c itself. hO\\'cvcr small. the finding of the stolen property \\'ith him is
-.~ piece of evidence \\'hich connects him further \vith the crime. There is
then no question of presumption.
The evidence strengthens tfie
other
evidence alread~ against him. It is only when the accused cannot be con·
i" stronger than' if there is a large gap of time.
Disposal of the fruits of
crin1e that the ·presun1ption may he dra\\'n.
fn \vhat circumstances the
one presumption or the other may he dra\\'O \\'ill differ from case to case
[722DJ
\Vhen the discoverv of the fruits of crin1e is made in1mediately after
1hc commission of thC crin1e the presun1ption of compJicity in the ci"ime
ncctcd . with the c'rime except by reason of possession of the fruits of
crime tequires the fiqding of a person ready to receive them an4 the short·
ncss of time. the nalure of the propefty \1lhich is disposed of, that is to
saY. its quality and character deteirn1in.e \vhcrher the person \vho had the
gOods in his Possession received then1
fron1 another or v.'as himself lh·.:
thief or dacoit. [722 FJ
In the present case the offence \Yas con1n1itted at night by as many
as ~O persons or more. Shortly after the offence the houses of 20 person..;
"·ere searched and large quan.tities of the stolen goods \Vere found in their
houo;;es.
It was impossible that these :!O pcn;ons \\·ere n1e.rely receivers ... 1f
~tolen property fron1 some other :!O persons \\"ho v.·ere the Uecoits. It \\"as
lcgirimate therefore to raise the presumption in this case that the persons
,,·ith ~·horn the goods v.·ere found \Vere the dacoits themselves. [723 A-Bl

## Text

720
SHIVAPPA & ORS.
v.
STATE OF MYSORE
February 19, 1970
A
[M. HmAYATULLAH, C.J., A. N. RAY AND I. D. DuA, JJ.]
B
~1rdian Evidence Act, 1872, s. 1 l4-Reco1·ery of properly front posle.HlOn of accused soon after con11nission of a dacoits-fresumption to be
dr~11·11-Whether (.' preJu1nption of participation in dacoity or of lesser
v.(tence •
. T\VO carts loaded ~·ith cloth returning alongwith others from a weekly
village market \\'ere looted by 20 or more pei'sons.
The houses of 20
persons including the 14 _appellants wer:e searched and the looted cloth
\\"<\S "recovered from their possession.
They_ were tried and held guilty
under s. 395 of the Indian Penal Code. The High Court dismissed their
appeals. In appeal by special leave to this Court their only contention was
that in the absence of other evidence conncctini? them. \\Tith the dacoity.
the presumption to be dra\vn frony the possessio~ of stolen clothes ought
to have been one under s. 411 of he Indian Penal Code or at the most
under s. 412 of the Indian Penal Code and not of complicity' in the crime
oi Jacoity. It "as urged that since s. 114 of the Evidence Act did not
lay down definitely the presumption to he dra\l;n in a given set of circumsrances it was neccssarr ahvays to start \\·1th the lesser presumption and
dra\\· the higher presumption only \Vhen there y;as some other evidence to
shO\\' the complicity of the persons in the crime itself.
HELD : Jf there is other evidence to connect an accused
with
the
crin1c itself. hO\\'cvcr small. the finding of the stolen property \\'ith him is
-.~ piece of evidence \\'hich connects him further \vith the crime. There is
then no question of presumption.
The evidence strengthens tfie
other
evidence alread~ against him. It is only when the accused cannot be con·
i" stronger than' if there is a large gap of time.
Disposal of the fruits of
crin1e that the ·presun1ption may he dra\\'n.
fn \vhat circumstances the
one presumption or the other may he dra\\'O \\'ill differ from case to case
[722DJ
\Vhen the discoverv of the fruits of crin1e is made in1mediately after
1hc commission of thC crin1e the presun1ption of compJicity in the ci"ime
ncctcd . with the c'rime except by reason of possession of the fruits of
crime tequires the fiqding of a person ready to receive them an4 the short·
ncss of time. the nalure of the propefty \1lhich is disposed of, that is to
saY. its quality and character deteirn1in.e \vhcrher the person \vho had the
gOods in his Possession received then1
fron1 another or v.'as himself lh·.:
thief or dacoit. [722 FJ
In the present case the offence \Yas con1n1itted at night by as many
as ~O persons or more. Shortly after the offence the houses of 20 person..;
"·ere searched and large quan.tities of the stolen goods \Vere found in their
houo;;es.
It was impossible that these :!O pcn;ons \\·ere n1e.rely receivers ... 1f
~tolen property fron1 some other :!O persons \\"ho v.·ere the Uecoits. It \\"as
lcgirimate therefore to raise the presumption in this case that the persons
,,·ith ~·horn the goods v.·ere found \Vere the dacoits themselves. [723 A-Bl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 87
of 1967.
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SHIVAPPA v. MYSORE (Hidayatul/ah, C.J.)
721
Appeal by special leave from the judgment and order dated
January 24, 1967 of the High Court of Mysore in Criminal Appeal
No. 29 of 19.65.
A. S. R. Chari and R. V. Pillai, for the appellants.
Shyamala Pappu and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C.J. These are 14 appellants
who
appeal
against their conviction under s. 395 of the Indian Penal Code
and sentences of 5 years' rigorous imprisonment and fine of
Rs. 1,000/- passed on them. Originally 20 persons were tried and
convicted for the same offence and received a like sentence.
14
alone have appealed to this Court.
The incident which took
place on July 28, 1962 . was theft by dacoity of certain cotton
pieces from two carts within the limits of Lingsugar Police Station
a! about 11-30 p.m.
The facts are that two traders in cloth sent their wares in
carts for sale. The cartmen halted after the market was over on
the way for food.
Thereafter six carts left for Mudgal at about
10 p.m. When the carts reached a Na/a called Heri Halla about
three miles from Lingsugur at about 11-30 p.m., 20 persons are
said to have approached the carts and pelted stones. It was a
d;irk night and the assailants were not identified. It appears that
four out of the six carts escaped, but two carts were looted. The
police investigated the case and arrested the 20 persons who were
accused in the case as being the culprits involved in this incident.
It is not necessary to go into rest of the case or the evidence
on which the case of dacoity was established, because dacoity as
such is not challenged before us.
The accused were convicted
on the sole evidence of having in their possession pieces of cloth
which were later identified to belong to the traders. Searches took
place between July 30, 1962 and August 17, 1962. In these
searches clot]] which was undoubtedly stolen at the time of the
dacoity was found in their houses.
The High Court and the
Court below drew from this the conclusion that the appellants -
were themselves the dacoits, and convicted them accordingly under
s. 395 of the Indian Penal Code and sentenced them to 5 years'
rigorous imprisonment and fine of Rs. 100/-.
In this appeal, the only contention raised by Mr. A. S. R.
Chari is that the presumption that they w~re dacoits ought not to
have been drawn since the circumstances do not adri1it the drawing of such a presumption in the case. According to Mr. Chari.
the presumption to be drawn ought to have been one under s. 411
722
SUPREME COURT REPORTS
(1970] 3 S.C.R.
of Indian Penal Code or at the most under ~· 412. of th~ Indian
Penal Code but not of complicity in the: cnme of dac01ty. .He
contends that the circumstances under which the one presumption
or the other may be drawn under s. 114 of the Indian Evidence
Act have not been stated by law and therefore it is nece~sary
always to start with the les~er presumption and draw the higher
presumption only whm th~re is so11;1e ot.her evidence t? show t.he
complicity of the persons 1~ the cnme 1ts~lf. A.ccordmg to bun
there is no other evidence m the case which pomts to the complicity of the 14 appellants in the crime of dacoity and therefore
as they cannot be suspected to be dacoits themselves, the only
presumption to be drawn is one of receivers of stolen property
or as receivers of property which was stolen in a dacoity.
In our opinion, the law advocated by Mr. Chari is not corr~ct.
If there is other evidence to connect an accused with the cnme
itself, however small, the finding of the stolen property with him
is a piece of evidence which connects him further with the crime.
There is then no question of presumption. The evidence
strengthens the other evidence already against him.
It is only
when the accused cannot be connected with the crime except by
reason of possession of the fruits of crime that the presumption
may be drawn.
In what circumstances the one presumption or
the other may be drawn, it is not necessary to state categorically
in this case. It all depends upon the circumstances under which
the discovery of the fruits of crime are made with a particular
accused. It has been stated on more than one occasion that if
the gap of time is too large, the presumption that the accused
was concerned with the crime itself gets weakened. The presumotion is stronger when the discovery of the fruits of crime is made
immediately after the crime is committed. The reason is obvious.
Disposal of the fruits of crime requires the finding of a person
ready, to receive them and the shortness of time, the nature of
the property which is disposed of, that is to say, its quantity and
its character determine whether the person who had the goods in
his possession received them from another or was himself the
thief or the dacoit.
In some cases there may be other elements
which may point to the way as to how the presumption may be
drawn.
They need not be stated here for they differ from case
to case.
(In the present case, the goods stolen were a large
quantity of cloth taken ·for sale to the market. These goods were .
not sold and were being taken back to the dealers by the cartmen.)
A large number of persons said to be 20 in number pelted stones
at the cartmen and looted the property.
Immediately afterwards
a n?mber of searches were made and the )!OOds were found with
vanous persons who were prosecuted as offenders and they have
been presumed to be involved in the dacoity itself. It may be
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SHIVAPPA V. MYSORE (Hidayatul/oh, C.J.)
723
noticed that from each person a large number of goods of the same
type such as 20 choli ~ieces or ten pieces of cloth were found.
(It is impossible to think that within the short time available,
these goods could have been easily disposed of to receivers of
stolen property or could be placed in the custody of friends till
such time as the original offenders could take them away.)
The
time gap in some cases is as short as two days and in some others
it is not more than five days. In two cases only the time gap is
about 19 days. Even then we think that the time gap is too short
for original off!lnders to have disposed of the property to these
appellants or to have left the goods in their custody ~ll such time
as the original offenders could have taken them away.
We are; therefore, satisfied that the proper inference was
drawn in this case. It must not be forgotten that the offence
was committed at night by as many as 20 persons or more.
The
houses of 20 persons were searched and large quantities of the
stolen goods were found in their houses. It is impossible to think
that these 20 persons were merely receivers of stolen property from
some other 20 persons who were the dacoits. It is legitimate
therefore to raise the presumption in this case that the persons
with whoin the goods were fo~d were the dacoits themselves.
This presumption has been drawn and in our opinion . rightly in
this case.
The conviction was therefore correct in all the circumstances of the case.
As regards the sentence, the offence no doubt was serious.
But
no injury beyond one appears to have been caused. Therefore
we think that a sentence of three years' rigorous imprisonment
will meet the ends of justice in this case.
The sentence is reduced
to three y_ears' rigorous imprisonment.
The sentence of fine will
starid: The appeal is allowed to this extent'.
G.C.
Appeal partly allowed.