JUDGMENT
Shearer, J.
1. This is an appeal by five men who have been convicted by the learned Assistant Sessions Judge of Monghyr under Section 412, Penal Code. Three of them have been sentenced to undergo Rule I. for 6 years, while the other two have been sentenced to undergo Rule I. for 3 years. In addition, each has been sentenced to pay a fine of Rules 200 or, in default, to undergo Rule I, for 3 months more. On 1-2-1949, a young Brahmin, Achhutan and Pathak, who is an employee of a firm of cloth dealers in village Bakhri, went to Begusarai to purchase cloth for his firm and for two other firms at Bakhri. An employee of one of the other two firms went to Begusarai with him. A considerable quantity of cloth was purchased, and was put up in eleven bags and afterwards Achhutanand Pathak hired a bullock cart driven by one Bankey Gope. The baga were put on this bullock cart, and Bankey Gope and Achhutanand Pathak set out for Bakhri in the latter part of the night. When the cart had reached a point on the road two miles or so away from Begusarai, it was stopped by a cumber of men armed with lathis. These men assaulted Achhutan and Pathak and took away six of the bags. They also deprived Achhutanand Pathak of his personal belongings and of a not inconsiderable sum of money. Achhutan and Pathak went on along the road for another mile until he met a dafadar, and then went back with this dafadar to Bagusarai where he lodged a first information at 7 A. M. The appellants Mahabir and Basudeo are brothers, and the appellant Balmiki is a son of the former. The other two appellants, Ramautar and Borham, who are also brothers, are related to, and are neighbours of, Mahabir. On 16-2-1949 it is said that the houses of these appellants were searched and the greater part of the property taken away by the dacoits was recovered. It was not, and could not be, denied that Achhuta-nand Pathak was the victim of a dacoity and that the cloth, which was produced in Court at the trial, was part of the property taken away by the dacoits. The defence set up was the very extraordinary one that the cloth had been recovered in quite different circumstances and that the appellants had been victimised by the police at the instigation of one Bishwanath Singh Sharma who is an honorary Magistrate at Begusarai and also a zamindar of Harakh, the village to which the appellants belong. It is true that there has been some litigation between this honorary Magistrate and some of the appellants, and it is also true that some of the persons, who attended as witnesses at the search, were shown to have some connection with Bishwanath Singh Sharma. No fewer than four sub-inspectors of police and an assistant sub-inspector took part in the searches, and the searches were witnessed by as many as four persons belonging to the neighbourhood. There is, dearly, no reason to distrust the evidence of the sub-inspector and of the search witnesses as to what occurred on 16-2-1949, in Harakh. The suggestion that the police, having recovered part of the stolen property, allowed some of the real culprits to go scot free and fabricated a mass of evidence to procure the conviction of men they knew to be quite innocent is preposterous. Assuming, for the moment, that there is evidence to show that each of the two sets of appellants was in possession of so much of the cloth as was recovered from their respective houses, the question that arises is whether or not the learned Assistant Sessions Judge was correct in convicting them of receiving. On this point, the Court below has, in my opinion, misdirected itself. When, soon after the commission of a theft, a person is found in possession of the stolen property, the presumption that ordinarily arises is not that he has received it knowing it to be stolen but that he has stolen it–Reg. v. Langmean, (1864) L. & C. 427: (10 L. T. 350). The inference that he is a receiver ought not to be drawn unless there is some circumstance going to show that he did not obtain it direct from the owner or the person in possession, but from some other person who was himself the actual thief. Such a circumstance may, for instance, be that the person found in possession of it is a woman who is not likely to have been the principal offender or a pawn broker or similar individual to whom the actual thief may have turned for assistance in getting rid of his booty. In this particular case there was no reason why the Court below should have inferred that any of the persona found in possession of the stolen property was a receiver and every reason why it should have inferred that he was one of the dacoity. In the first place, the appellants Mahabir and Balmki were picked out at a test identification by Achhutanand Pathak who said at the trial that he remembered seeing them among the decoity. Mr. S. C. Chakraverty, for the appellants, has said that it must still have been dark when the dacoity was committed and a matter of great difficulty and perhaps quite impossible, for Achhutanand Pathak to have recognized any of his assailants. The first information was lodged at 7 A. M., and, having regard to the distance which Achhutanand Pathak had to travel before reaching the Police station, it looks as if he had made a mistake in saying, as he did in the first information, that the occurrence took place, at i A. M. In point of fact, it must, I think, have taken place, as he said at the trial, somewhat later. The dacoits had, to unyoke the bullocks and upset tha cart, and Achhutanand Patbak was, quite certainly, in close contact with them for an appreciable time. I see no reason why he should not have been in a position to recognize some of the dacoits again, and his conduct in picking Maha-bir and Balmiki out at the test identifications can only be reasonably explained on the assumption that he had in fact seen them among the dacoits. It is true that, at the test identifi. cation at which the appellant Mahabir was put up. Achhutanand Pathak picked out four non-suapects. There were two other suspects besides the appellant Mahabir, and it is not at all clear from the report of the honorary Magistrate, who held it, that the mistakes, which Achhutanand Pathak made, were mistakes as to the identity of Mahabir or as to the identity of the other suspects. In any case, the recovery of part of the stolen property from premises occupied by the appellants Mahabir and Balmiki goes to show that, in picking them out at the test identifications, Achhutanand Pathak can-scar-cely have mistaken them for other persons who were not present at the test identification. If he, in the first instance, picked out a non suspect instead of Mahabir and it is not at all clear to me that he did–the reason, presumably, was that there was some resemblance between the two men. The real question which arises in the appeal, and which has been argued with much ability by Mr. S V. Chakraverty, is as to whether or not there is evidence to show that any of the property which was recovered was in the possession of the other three appellants. Mr. S. C. Chakcaverty, relying on Emperor v. Santa Singh, I. L. R. (1945) 26 Lah. 137: (A. I. R. (31) 1944 Lah. 339: 46 Or. L. J. 1 F.B.), which decision was followed by a Division Bench of this Court in Sahendra v. Emperor, 26 Pat. 46: (A. I. R. (35) 1948 Pat, 222: 49 Cr. L. J. 445), contended that it was not enough for the prosecution to show that the appellants were co-owners of the houses from which the stolen property was recovered. That, in my opinion, is a correct statement of the legal position. The appellant Ramautar was, however, at his house when tha sub-inspector went to search it. The sarees and dhotis, which were recovered, were in a sack which was of such a size, and was found in such a position, that Kamautar must have been perfectly well aware of its existence. Ramautar was the eldest member of the family in the house at the time, and it must. I think, in the circumstances be presumed that he had control over the sack, and was, therefore, in law, in possession of it either exclusively or jointly with other members of his household. There is no reason to suppose that he has at any time said that it was brought into the premises by some other member of the family and, even if he had, one might safely presume that Ramautar had ratified this man’s aotion and had adopted his possession as his own also. At the trial, as I have already said the defence set up by Ramautar and his relations was that tha stolen property was not in fact recovered from them at all. Borham Singh, the brother of Ramautar, was not in the village when the search took place, nor was the appellant Basudeo. There is so far as I can ascertain from the record no evidence to show when they had last been in their respective houses prior to the search, in this situation, while the prosecution can point to oonduct on the part of Ramautar which shows that he was in possession of the stolen property. It cannot point to similar conduot on the part of either Borham or Basudeo. The mere circumstance that these two appellants are co-owners of the premises from which the stolen property was recovered is by itself wholly insufficient to esta-blish any criminal liability. The appeals of Basudeo Singh and Borham Singh ought in my opinion, to be allowed. The convictions and sentence imposed on them ought to be set aside, and the fines, if already paid, ought to be refunded to them. The convictions of the remaining appellants ought, in my opinion, to be altered from one under Section 412 to one under Section 395, Penal Code, the sentences, however, being maintained. The appellant Balmiki Singh must now surrender to his bail and serve out the unexpired portion of his sentence.
2. Mr. S. C. Chakravarty, for the appellants contended that this Court had no jurisdiction to alter an order of acquittal to one of conviction and that, if it was not satisfied that these three appellants were receivers, it had no option but to direct that they should be released and set at liberty forthwith. This would be a most extraordinary result. The decisions on which Mr. Chakravarty relied for this part of this argument were Kishan Singh v. Emperor, A. I. R. (14) 1928 P. C. 254 : (29 Cr. L. J. 828), Mohammad Sharif v. Rex, A. I. R. (37) 1950 ALL 380: (51 Cr. L. J. 1040) and Malah Khan v. Emperor, A. I. R. (33) 1946 P. C. 16: (47 Cr. L. J. 489). These decisions do not, however, support the view for which Mr. Chakravarty has contended. In fact, one at least of the decisions namely Mohammad Sharif v. Rex, A. I. R. (37) 1950 ALL. 380; (51 Cr. L. J. 1040) is an authority to the contrary, Bhargava J. there referred with approval to an earlier Full Bench decision of the Allahabad High Court in Zamir Qasim v. Emperor, A. I. R. (31) 1941 ALL. 137:(46 Or. L. J. 38 F. B.). It was there pointed out that, while a Court of appeal may alter a finding of acquittal into one of conviction, it cannot, in doing so, enhance the sentence and that, in consequence, where a person has been convicted of culpable homicide and ought, in the opinion of the appellate Court, to have been convicted of murder, the appellate Court cannot set aside the conviction for culpable homicide and substitute a conviction for murder. The reason, however, as was there stated, is that, if a conviction for culpable homicide is altered to a conviction for murder, the sentence must be enhanced if the sentence imposed by the trial Court is a sentence o£ imprisonment and not a sentence of transportation for life. Section 423, Criminal P.C., however, while empowering an appellate Court to alter a finding imposes a condition that, in doing so, it should not enhance the sentence, Apart from this, it must, in my opinion, be presumed that the learned Assistant Sessions Judge, in trying the appellants on two charges one under Section 395 and the other under Section 412, Penal Code, was adopting the course sanctioned by Section 236, Criminal P. C. That being so, instead of recording a formal order acquitting the appellants on one of the two charges, the learned Assistant Sessions Judge ought to have stated that, in his opinion, the facts showed that the appellants were receivers and not dacoits. The purely technical error committed by the learned Assistant Sessions Judge in recording a formal order of acquittal cannot possibly, result is a man who, through another error committed by the Court below, has received a far leas severe sentence than he deserved, escaping any punishment at all.
Jamuar J.
3. I agree.
