John Beaumont, Kt., C.J.
1. This is an application in revision against the conviction of the accused under Section 411 of the Indian Penal Code by the Presidency Magistrate, II Court, and the question, which arises, is one which comes not infrequently before Magistrates in Bombay. The question is when ought a presumption to be drawn that property shown to have been stolen, and found in the possession of the accused, was received by him knowing or having reason to believe that the property was stolen? In other words, when ought the presumption arising under the first illustration to Section 114 of the Indian Evidence Act to be drawn?
2. The property found with the accused was a bell, and the learned Magistrate has found, and in revision we accept his finding, that the bell was stolen from the Motlabai Hospital on the night of October 12. According to the evidence of the witness Khimji Khoda, he himself stole the bell, and kept it on an otla of a house near his room, and somebody removed it. Apparently the suggestion is that somebody stole it from the original thief. It was found with the accused, who keeps a shop in the Chor Bazar in which he sells old iron, on October 25, that is thirteen days after the date of the theft. The accused in his statement said that he bought this particular bell in August, and if that is so, of course, the bell in his shop could not be the bell which was stolen in October. But the learned Magistrate was not prepared to accept that statement and considered that the accused had fabricated his account. I think the learned Magistrate really convicted the accused largely on his own statement. That is wrong. The prosecution must prove their case. The prosecution have proved that the bell was stolen on October 12, and that it was found in the accused's shop on October 25, and the question is whether in those circumstances the Court ought to presume that the accused received the bell knowing or having reason to believe it to have been stolen. Unless that presumption is drawn, there is no evidence which the accused can be called upon to answer.
3. The first illustration to Section 114 of the Indian Evidence Act directs that the Court may presume that a man who is in possession of stolen goods soon alter the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession, The answer to the question, what period is covered by the expression 'soon after', must, I think, vary according to the circumstances of each case. The Court is not bound to draw this presumption, and the Court must always ask itself whether in the circumstances of the particular case the presumption is one which in fairness to the accused can be drawn. When one is dealing with property of some value, and it is very unlikely that the man, from whom the accused got it, had come by it honestly; or when one is dealing with property stolen in a village where there are not likely to be many dealings in it, the presumption may be drawn more readily than in the case of a theft in a city like Bombay, and in the case of property like this old bell. In my opinion, it is not fair to assume that property of this nature was received by the accused knowing it to have been stolen, when he received it as long as thirteen days after the theft, though in different circumstances thirteen days might be deemed soon after the theft. Old iron, like this, may have been dealt with in Bombay half a dozen times before it reached the accused. According to the thief, the property was removed from his custody, and it may very well have been sold to a hawker for a few annas, and the hawker have sold it to the accused. That is at least as likely as that the accused purchased direct from the thief. In my opinion, it is not right to presume in this case, merely because the accused was shown to be in possession of stolen property thirteen days after the theft, that he had reason to believe that it was stolen. If that is so, the accused was not bound to make any statement, and he ought not to be convicted on the strength of his statement.
4. We must, therefore, set the conviction aside.
5. I agree.