John Stanley, C.J. and Burkitt, J.
1. This is an appeal of two persons namely Singhand Nethi, who, were convicted by the learned Sessions Judge of Jhansi of the offence of dacoity punishable under, Section 395 of the Indian Penal Code. The dacoity in respect of which these persons were convicted took place on the 10th of March 1905. The only evidence to connect the appellants with the crime lay in the fact that about six months after the date of the dacoity, namely in September 1905, certain ornaments which were proved to have been, carried away in the dacoity were found in the house of Sughar Singh, and other ornaments were found in an empty house adjoining the house of Nethi. The ornaments found in the house of Sughar Singh consisted of a pair of bangles and a frontlet, and in the empty house adjoining the house of Nethi a pair of earrings and a necklet were also found. The learned Sessions Judge convicted the appellants, of dacoity holding that he was justified under the provisions of Section 114 of the Evidence Act in presuming that they took part in the dacoity from the fact that property proved to have been stolen in the dacoity was found in their possession and was not accounted for. The illustration allowing the presumption which the learned Sessions Judge deemed applicable to the case runs as follows:
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.
2. An important word in the illustration is the word 'soon.' In the case of the appellants the goods which were found in their possession were not found until six months from the date of the dacoity had elapsed. It appears to us that it is impossible to say, particularly having regard to the nature of the ornaments which were discovered, which are of a very common description and would readily pass from hand to hand, that the case is covered by the illustration in question. In view of the length of time which elapsed from the date of the dacoity, we do not think that the appellants ought to have been called upon to explain their possession of the articles. We have not been referred to any case in which the presumption which may be raised under Section 114 was raised where goods were found after such a lapse of time. In the case of Queen-Empress v. Burke (1884) I.L.R., 6 All., 224 it was held that the presumption did not arise in a case in which a stolen pocket handkerchief was found in the possession of the accused more than a month after the date of the theft. Again, in the case of Inas Sheikh v. Queen-Empress (1883) I.L.R., 11 Calc., 160, in which a common brass drinking cup was stolen in October 1883 and was found in the possession of the accused in September 1884, it was held that the possession was not such recent possession as came within the purview of the illustration and that the presumption against the accused was so slight that taken by itself he ought not to have been called upon to explain how its possession was acquired. We consider it unnecessary to consider the question whether in view of the fact that Sughar Singh and Nethi are not British subjects, they could be convicted of an offence under Section 412 in respect of property found in their possession in Gwalior, but actually stolen in British India. We are of opinion that the evidence did not justify the conviction of these two appellants for the offence of dacoity, nor would it, if the charge had been altered into a charge under Section 412, have justified a conviction under that section. We therefore allow the appeal, set aside the conviction of Sughar Singh and Nethi and, acquitting them, direct that they immediately be released.