JUDGMENT
Shyam Sunder Byas, J.
1. The appeal is directed against the judgment of the learned Additional Sessions Judge, Bhilwara dated March 19, 1980 convicting the appellant Sunil Kumar under Sections 394 and 353, IPC and sentencing him to five years rigorous imprisonment with a fine of Rs. 200/- in default of the payment of fine to further undergo four month’s like imprisonment on the first count and two months rigorous imprisonment on the second count.
2. The case relates to an accident alleged to have taken place at about 8.30 p.m. on August 16, 1978, in which the passenger bus No. RRM 8874 was looted on a public highway. The said bus was proceeding from Bundi to Bijoli. When it stopped near mile stone 20, two passengers got down and three persons boarded the bus. When the bus proceeded further, Balkarsingh asked the conductor to take the bus in a lonely side. He also fired the gun towards the conductor. The driver, therefore, took the bus in lonely side. Balkarsingh and his two companions thereafter relieved the passengers of their valuables like ornaments, cash, wrist watches etc. The report Ex.P 2 of this incident was lodged at about 9.30 p.m. on the same day at Police Station, Bijoli by Manu Lal the driver of the bus. The police registered a case and proceeded with investigation. In all, four persons were arrested including the appellant Sunil Kumar. The appellant was arrested on September 19, 1978 vide arrest memo Ex. P 35. In consequence of the information furnished by him, one wrist watch, one torch, one umbrella and one towel were recovered. In consequence of the second information furnished by him, one more wrist watch (Article 3) was recovered from his house. After investigation, the police submitted a challan against the four accused including the appellant. Charges were framed against them, to which they pleaded not guilty and faced the trial. The prosecution examined a number of witness and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, Balkarsingh and Sunil Kumar (appellant) were convicted under Section 394, IPC while accused Sudhir Kumar was convicted under Section 411, IPC. The fourth accused Satya Narain was acquitted. Aggrieved against his conviction and sentence, accused Sunil Kumar has come up in appeal.
3. I have heard the learned amicus curiae and the learned Public Prosecutor. 1 have also gone through the case file carefully.
4. Before dealing with the contentions of the learned amicus curiae, it would be proper to briefly notice the evidence adduced by the prosecution in order to establish the charges against the appellant. The evidence consitts of the following sets:
(1) The accused was identified during test identification and during trial by the prosecution witnesses Manu Lal and Narain;
(2) recovery of one wrist watch (Article 2) and one torch, one umbrella and one towel in consequence of the information furnished by the accused on September 22,1978 whilst under police custody. The information memo is Ex. P 39 and recovery memo of the aforesaid articles is Ex. P 25; and
(3) recovery of wrist watch (Article 3) in consequence of the information furnished by the appellant on September 23, 1978. The information memo is Ex. P 40 and the seizure memo of the wrist watch is Ex. P 11.
5. On the conclusion of trial, the learned Sessions Judge dismissed the evidence relating to the identification of the appellant in the test identification and during trial. He also dismissed the evidence relating to the recovery of wrist watch (Article 3) in consequence of the information furnished by the accused and recorded in Ex.P 40. He further held that the torch, umbrella and towel recovered at the instance of the accused were not proved to be stolen properties. He, however, held that the wrist watch (Article 2) belonging to PW 1 Jeetmal was the stolen property and it was recovered in consequence of the information furnished by the appellant. He drew a presumption under Illustration ‘A’ of Section 114 of the Evidence Act and held that the appellant was one of the culprits who had looted the bus.
6. Mr. S.K. Mathur learned amicus curiae contended that the appellant should not have been convicted under Section 394, IPC simply because a stolen wrist watch (Article 2) was recovered in consequence of the information furnished by him. It was alleged that the occurrence took place in the night of August 16, 1978 where as the appellant was arrested on September 19, 1978 and the recovery of the wrist watch was made on September 22, 1978. Wrist watch is an article which can freely pass from one hand to the other. The long interval of nearly one month between the commission of the robbery and the recovery of the wrist watch does not justify to raise a presumption under Illustration ‘A’ of Section 114 of the Evidence Act that the appellant was one of the persons who had looted the bus. The learned amicus curiae submits that in view of all these facts and circumstances, the appellant, if at all was to be convicted, should have been convicted under Section 411, IPC. In reply, the learned Public Prosecutor strived his best to sustain the judgment of the trial Court. I have taken the respective submissions into consideration. On going through the evidence, it can be safely said that the trial Court was perfectly justified in disbelieving the evidence relating to the idetification of the appellant in test identification as well as in the Court during trial. The trial Court was again justified in dismissing the evidence relating to the recovery of the wrist watch (Article 3) in consequence of the information furnished by the appellant on September 23, 1978. The trial Court was also justified in arriving at a conclusion that the torch, umbrella and towel were not the stolen properties.
7. The only piece of evidence which speaks against the appellant is that the wrist watch (Article 2) was recovered from his possession on September 22, 1978 in consequence of the information furnished by him on the same day. The robbery was committed on August 16, 1978 and the appellant was arrested on September 19, 1978, that is, after one month of the commission of the offence. The recovery of wrist watch (Article 2) in consequence of the information furnished by the appellant from his possession has not been challenged by Mr. Mathur. It has also not been challenged that it is a stolen property. The question which arises for consideration is whether the accused can be connected with the commission of the robbery only on account of this recovery of the wrist watch at his instance. Now, what type of presumption should be raised under Illustration ‘A’ of Section 114 of the Evidence Act, depends upon the circumstances of the case. One of the circumstances is the time factor. If the interval between the commission of the offence and the recovery of the stolen article is of short period, the presumption can be raised that the person in whose possession the stolen property has been found is the thief. But when the interval is a longer one, the safer course is to draw a presumption that he is the receiver of the stolen property. Here in the instant case, the interval between the commission of the offence and the recovery of the stolen wrist watch is of one month. In these circumstances, it would not be legitimate and a proper exercise of the discretion to raise a presumption against the appellant that he was the person who had looted the passengers in the bus. The safer course would be to raise a presumption that the appellant was a receiver of the stolen property.
8. The interval between the commission of the offence and the recovery is so long that the presumption that the accused was involved in the commission of the main offence should not be raised against the appellant. The conviction of the appellant under Section 394, IPC cannot be maintained. Since his presence at the time of the commission of the robbery has not been proved, his conviction under Section 353, IPC is also not established. The conviction of accused should have been that under Section 411, IPC.
9. In the result, the appeal of accused Sunil Kumar is partly allowed. His conviction and sentence under Sections 394 and 353, IPC are set aside. He is, however, convicted under Section 411, IPC and is sentenced to two years’ rigorous imprisonment. Since he has already served out the sentence of full five years, he need not surrender. The appeal is accordingly disposed of.