1. The applicant was charged with having committed an offence under Section 411 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. He appealed to the learned Sessions Judge, but his appeal was dismissed.
2. In this Court, it has been contended that on the facts found and in the circumstances of the case the prosecution has failed to prove a case under Section 411 of the Indian Penal Code.
3. The following facts appear to have bean established. 2-1/2 years before the discovery of the articles at the applicant's house, these had been removed from the houses of the two complainants by means of a dacoity. The articles are four silver ornaments of total value of Rs. 100. The applicant is a goldsmith by caste and profession. He was asked whence he got those articles and he replied that he himself had made them for his wife. The articles were found, except in one case, on the person of the wife of the applicant. There is no evidence that any attempt had been made to conceal the property. On the other hand they were found at places where the goods belonging to the applicant or his wife would be naturally found. It was further found that, the explanation of the applicant that he had made those goods himself was false and that the goods had been really the property of the two complainants Gannu Singh and Govind Singh. The question is whether in the circumstances of the case the prosecution was entitled to raise the presumption that the applicant was in possession of the articles having reason to believe that they were stolen property.
4. It appears to me that it is certainly on the prosecution to prove the guilty knowledge of the person prosecuted. There may, however, be circumstances in which this guilty knowledge may be inferred and may be accepted as conclusive if no explanation is forthcoming on the part of the accused person. Such a case is mentioned by way of illustration in Clause (a) to Section 114 of the Evidence Act. There it is stated that, if a man be found in possession of stolen goods soon after a theft, the presumption would be that the man was either himself the thief or that he knew that the goods were stolen, unless he could satisfactorily account for his possession. It is to be noted that the word 'soon' has been used in this illustration. An illustration only exemplifies the law as enacted in the code and cannot certainly be taken to restrict the sense of the section. But the section itself simply says that, the existence of any fact may be presumed which the Court thinks likely to have happened, having regard to the common course of natural events, human conduct, etc. The question therefore is, can it be said that the person who was found in possession of stolen property 2-1/2 years after the actual offence, by which the owner lost it, must be presumed to be in possession with guilty knowledge, unle3S he can account for his possession? In judging a case, regard must be had to the nature of the property. The property, as I have already mentioned in this case, is silver ornaments - articles which would easily change hands from time to time - and is articles which may, in the common course of events, find their way to a silversmith's shop Speaking therefore of the presumption, it is difficult to say that there is any presumption of the guilty knowledge in this particular case.
5. Several cases have been referred to, and in my opinion, although every case has been decided on the peculiar facts of it, there seems to be a strong opinion against the raising of any presumption in favour of the prosecution where there has been a delay between the loss of the goods and the recovery, of them. I do not propose to discuss any of the cases except one, viz., Emperor v. Sughar Singh (1906) 29 All. 138. In that case the appellant was found in possession of certain ornaments of the ordinary typo and these were found six months after the dacoity by which they were lost, and it was held that no presumption under Section 114 of the Evidence Act could be raised to imply guilty knowledge. Their Lordships laid special stress on the word 'soon' to be found in illustration (a) to Section 114 of the Evidence Act. The other cases are Ram Chandra v. Haji Meah (1913) 17 C.W.N. 1129, King-Emperor v. Rajendra Roy (1918) 22 C.W.N. 1129 and Queen-Empress v. T. Burke (1884) 6 All. 224
6. I hold that the prosecution has failed to prove guilty knowledge on the part of the applicant. I set aside the conviction and the sentence.
7. The applicant is on bail and he need not surrender.