Krishna Rao, J.
1. This appeal raises a question under Section 403, Criminal Procedure Code, The two appellants have been convicted in Sessions Case No. 3 of 1956 by the Sessions Judge, Nellore under Section 411, Indian Penal Code for having on 23-10-1955 dishonestly retained stolen property belonging to P.W. 1 Kancherla Subbayya of Katrayapadu. The theft took place on the night of 21-10-1955. The charge against the first appellant was in respect of a sari lost by the theft. The charge against the 2nd appellant was in respect of a pair of gold mattelu and another sari lost by the theft.
The incriminating evidence against them was that on 23-10-1956, they offered to P.W. 5 some jewels and clothes for sale surreptitiously and when P.W. 5 detained them on suspicion, they were found in possession of these and other articles, which were traced to be stolen properties. The other stolen articles found in their possession belonged to one Lingamgunta Kondia of Katrayapadu, the theft at whose house took place a few days earlier than the theft at P.W. 1's house.
In respect of those articles, they were previously tried and acquitted in Sessions Case No. 35 of 1953 by the Assistant Sessions Judge, Kavali on similar charges framed under Section 411, Indian Penal Code for dishonest retention. The only ground of appeal pressed by the learned counsel is that by reason of their acquittal in Sessions Case No. 35 of 1955 their trial in Sessions Case No. 3 of 1956 was barred by Section 403, Criminal Procedure Code.
2. I am of opinion that the contention is well founded and has to prevail. It is established by a long catena of decisions of other High Courts that where an accused is found in possession of stolen articles forming the subject-matter of distinct thefts, he cannot be tried and convicted under Section 411, Indian Penal Code more than once, unless there is evidence to show that he had received them on different occasions. The leading case is Ishan Muchi v. Queen Empress, ILR 15 Cal 511 (A) decided by a Division Bench of the Calcutta High Court in 1888. It proceeded on the ground that in the absence of evidence contra, the accused may have received all the goods at the same time and that would constitute only one offence. This decision was followed and the principle applied to cases of dishonest retention in Queen Empress v. Makhan, ILR 15 All 317 (B) and in a number of later decisions Sheo Charan v. Emperor, AIR 1923 All 547 (C); Ganeshi Sahu v. Emperor, AIR 1923 Cal 557 (D); Emperor v. Bishun Singh, AIR 1925 Pat 20 (E). The two decisions last cited related to cases where the previous acquittal was held to bar the subsequent trial.
3. The learned Sessions Judge relied on the decision in Dadlomal v. Emperor, AIR 1927 Sind 53 (F) where a contrary view was taken. The ground of that decision was that where properties were stolen at different places and at different dates, the presumption is that they passed from the hands of the thief to the receiver at different dates also. With great deference, I may observe that the question whether the stolen property was received on one occasion or several occasions is one of fact. There is no presumption of law regarding it and the answer must depend on the particular facts and circumstances of each case.
In the absence of any evidence effect has to be given to the fundamental rule in criminal cases that the burden is on the prosecution and never shifts. This aspect of the matter was discussed in AIR 1925 Pat 20 (E), Bucknill J. who delivered the judgment of the Bench said that the prosecution cannot base its case or justify its procedure upon any presumption or assumption operating against an accused, unless such presumption or assumption is grounded on evidence and that if any presumption is drawn without evidence, it must be in favour of the accused.
I would respectfully agree with the view of Bucknill J. Section 403, Criminal Procedure Code gives effect to the ancient maxim nemo debet his vexari pro una et eadem causa. It is based on the policy of law that no man shall be punished or put in jeopardy twice for the same offence. This object of the section would be defeated if the accused is put on trial on a mere suspicion without evidence forthcoming to support it, that the offences wero distinct. It has to be noticed that in the case of AIR 1927 Sind 53 (F) the learned Judges considered it extremely unlikely that the properties would have been received at the same time, as the thefts occurred at different places at an interval of 8 months. They also relied on two earlier decisions of their Court, the first of which was Ghulamo v. Emperor, 27 Cri LJ 872 (Sind) (G). In Hayat v. Emperor, AIR 1928 Lah 637 (H), Addison J. dissented from Ghulamo v. Emperor (G) and preferred to follow the Allahabad and Calcutta decisions cited above and his view was adopted by Agha Haidar, J. in Jalal v. Emperor, AIR 1932 Lah 615 (1) (I).
4. Another decision relied on by the learned Sessions Judge is Yamanapa v. Emperor, AIR 1947 Bom 467 (J). There the relevant accused were charged in both the cases with dacoities which occurred on 30-4-1943 or in the alternative under Section 412, Indian Penal Code with having dishonestly received or retained stolen property on or about the said date. The earlier case related to the dacoity in the house of one Shiddappa Muddeppa Vader and the later case to three separate dacoities. Stone C. J. who spoke for the Bench said that the retaining or stolen properties is a continuing offence and therefore the acquittal in the earlier case did not create any bar to the trial in the later case in respect of a greater number of articles than were mentioned in the earlier case.
'Continuing offence' means that where an act or omission constituting the offence is continued from day to day, a fresh offence is committed by the accused on every day on which the act or omission continues, State v. A.H. Bhiwandiwalla : (1956)IILLJ153Bom (K). The report of the judgment in AIR 1947 Bom 467 (J) does not set out the facts fully and it does not appear how the principle of continuing offence was applied there.
In any event this consideration does not arise here, because the appellants' act of dishonest retention in respect of all the articles found in their possession was a single act and consisted in their trying to sell them surreptitiously to P.W. 5. The words 'the same offence' in Section 403(1), Criminal Procedure Code mean the same act or omission punishable under the same provision of law. As the charges in Sessions Case No. 35 of 1955 and No, 3 of 1956 refer to a single act of the appellants, the trial in Sessions Case No. 3 of 1956 is directly hit by Section 403(1), Criminal Procedure Code.
5. An argument before the learned Sessions Judge was based on Clause (f) of Section 239, Criminal Procedure Code, which says that persons accused of offences under Sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence may be tried together. But Section 239 refers to the joinder of different accused at a single trial and has no relevance to the point which arises for consideration under Section 403, Criminal Procedure Code.
The learned Public Prosecutor pointed out that under Illustration (d) to Section 235(1), Criminal Procedure Code, a person who is knowingly in possession of several counterfeit seals, intending to commit several forgeries, may he separately charged with and convicted of the nossession of each seal under Section 473. Indian Penal Code. On tie same principle where a person who retains several articles of stolen, property under circumstances showing that his intention was to cause wrongful loss to the different owners thereof, he may be charged and tried separately in respect of articles belonging to each owner. But this cannot be availed of here as there is nothing to show that the accused knew that the articles belong to different owners.
6. I hold that the trial of the appellants in Sessions Case No. 3 of 1956 is barred under Section 403, Criminal Procedure Code owing to their previous acquittal in Sessions Case No. 35 of 1955. Their convictions and sentences are therefore quashed.