1. The petitioner has been convicted of an offence under Section 379, I.P.C. and sentenced to rigorous imprisonment for two months by the Second Magistrate, Chttaldrug. On appeal, the conviction has been upheld but the sentence reduced to rigorous imprisonment for one month by the District Magistrate. This revision petition is preferred against that order.
2. A buffalo and its calf which were said to have been missing from their owner on the night of 15.10.1950, were found in the possession of the accused and seized on 17.10.1950. The plea of the accused is that the complaint was false and in his statement he denied the ownership of the complain-ant and maintained that the cattle belonged to his father who is said to have obtained them from one Hanumantha. Both the courts found that the cattle belonged to the complainant, P.W. 2, and the ownership set up by the accused is false.
3. Sri V. Krishnamurthy, the learned Advocate for the petitioner, contended that the evidence of the theft of the buffalo and the calf is not conclusive, that the mere fact that the accused was found in possession of the cattle alleged to have been stolen is not sufficient to fix the guilt upon him, that the accused has explained the circumstances under which he came into possession and that irrespective of positive proof of the said explanation the accused is entitled to acquittal. In support of his contention he relied upon the decisions in Kabatulla v. Emperor 53 Cal 157 and Istahar Khondkar v. Emperor 62 Cal 956.
In the former case, the Judges observed thatin a case where the evidence of the guilt of the accused rests upon the discovery of the stolen property in his possession and which is tried by the Jury, the proper course is to direct that the Jury are entitled to take the explanation offered by the accused of the possession.
It was found in that case that the Magistrate had directed that recent possession of the stolen property raises a rebuttable presumption that the accused are guilty of theft unless they adduced sufficient proof in establishing their innocence. It was held by the High Court that it is not for the accused to prove positively the explanation of his possession of the property, but for the Jury, as a court of fact, to accept the explanation or not. In that view it was considered that it was a misdirection by the Judge to the Jury.
In the latter case 62 Cal 956 it was laid down that the direction of the Judge to the Jury under Section 114, illustration (a) of the Evidence Act, should be in accordance with the statement of Lord Reading in Reg v. Isac Schama (1914) 11 Cr. App. Rep. 45 which is to the following effect:
Where the prisoner is charged with receiving recently stolen property when the prosecution has proved the possession by the prisoner and the goods Had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given, which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not, that is to say, if the jury think that the explanation Is reasonably true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner's guilt. The onus never changes, it always rests on the prosecution.
These cases establish the principle that it is for the jury to judge as a court of fact whether the explanation offered by the prisoner is reasonably true and accept the explanation or not in the light of the entire evidence adduced in the case.
4. Under Section 114 of the Evidence Act, the Court may presume
that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
The Court is not bound to but may raise the presumption under this illustration. Before the presumption is raised, the prosecution should have proved that (1) the property is stolen; (2) the stolen property should have been found in the exclusive possession of the accused; and (3) that the discovery-should be soon after the theft to make it reasonable to raise the presumption. When these facts are proved, the explanation of the circumstances under which the accused came into bona fide possession falls for consideration.
5. The words 'can account for his possession' in illustration (a) to the section mean that the accused must be able to give an explanation, reasonably convincing so as to cast a doubt on the guilt alleged; but he is not required to adduce substantial evidence to prove his explanation.
6. The crucial question for decision is, the nature of the explanation that could rebut the presumption that may be raised under Section 114 of the Evidence Act. The Calcutta High Court Moktarali v. Emperor : AIR1945Cal421 has laid down that
where the property in possession is identified as being part of the property stolen at the time of dacoity, an explanation by the accused that it was the property of his relation is not an explanation of his possession within the meaning of Section 144, Illustration (a).
In In Re Dhyani Gope AIR 1947 Pat 205, the learned Judges observed that
the presumption permitted by Section 144, illustration (a) does not arise until the prosecution has established three facts, namely, the ownership of the articles in question, the theft of them and their recent possession by the accused. It is not a reasonable explanation on the part of the accused to deny the existence of these facts. The explanation which renders the presumption unavailable to the prosecution is an explanation of how the articles belonging to the complainant are found in the possession of the accused shortly after they had been stolen from the possession of the complainant.
It follows therefore that the explanation of possession given by the accused, whether true or not, must be so reasonably convincing as to throw a doubt on his guilt; but a mere denial of the prosecution story or any assertion inconsistent with facts proved by the prosecution, cannot amount to an explanation to make the presumption unavailable to the prosecution under Section 114 (a) of the Act.
7. In the case under consideration, the prosecution has proved that the cattle were missing from the custody of P.W. 2 who it is established is the owner thereof, and it is not denied that the property is seized from the possession of the accused on the third day after the theft. The only 'explanation' of the accused is his denial of the ownership of the complainant and an assertion of his own right as claimed through his father. This explanation is inconsistent with the proved facts of the prosecution and the explanation has been taken into consideration by the Magistrate, the judge of facts, in holding that it is not reasonably convincing. Consequently he found the accused guilty and the lower appellate court has confirmed the same. In the circumstances, I see no reason to interfere with the concurrent finding. Considering the nature of the offence, the sentence is not severe as it has been reduced from two months co one month and it does not call for any further reduction.
8. This petition therefore fails and is dismissed. The accused, if on bail, will surrender himself to undergo the unexpired portion of the sentence.