R.L. Narasimham, C.J.
1. This is a revision against the judgment of the Adaitional Sessions Judge of Cuttack, maintaining the conviction ot the two petitioners under Section 412, I. P. C. but reducing the sentence passed on them by the Assistant Sessions Judge of Cuttack, from three years rigorous imprisonment each to eighteen months rigorous imprisonment each.
2. The two petitioners were tried by a Jury in the Court of the Assistant Sessions Judge of Cuttack tor offences under Section 395 and Section 412, I. P. C. A dacoity was committed in the house of one Khetrabasi Panigrahi during the night of the 15th/16th May 1952 and several valuable ornaments were taken away. On 21-5-1952 some of these ornaments were recovered from the house of the two appellants and they were subsequently identiiied by Khetribasi Panigrahi as some of the properties that had been looted from his house by the dacoits. Some of the witnesses also claimed to have recognised the two petitioners during the commission of the dacoity. Hence alternative charges under Section 395 and Section 412, I. P. C. were framed against them. The two petitioners, however, denied the charges but admitted the recovery of the ornaments from their houses. Petitioner Bama Jena stated that most of the ornaments recovered from his house belonged to him and that the rest belonged to one Atul a minor son of his brother-in-law and that they were kept in his custody. He thus clearly admitted the possession of these ornaments and has given some explanation to account for the same. Similarly, petitioner Poka Jena admitted the recovery of the ornaments from his house, but claimed them as belonging to him.
3. In his charge to the jury the learned Assistant Sessions Judge carefully analysed the oral evidence on the question of identification regarding the actual participation of the two petitioners in the commission of dacoity. He pointed out some of the unsatisfactory features in the test identification parade and rightly left it to the Jury to accept or reject the oral evidence on the question of identification. The Jury gave a unanimous verdict of 'not guilty' in respect of the charge under Section 395 I. P. C. and hence it may be inferred that they were not prepared to accept the oral evidence of the prosecution witnesses regarding the participation of the petitioners in the commission of dacoity.
4. As regards the charge under Section 412, I. P. C. the learned Assistant Sessions Judge rightly drew the attention of the Jury to the principle contained in illustration (a) to Section 114 of the Indian Evidence Act. The Jury held both the petitioners guilty under Section 412 I. P. C.
5. Mr. M.S. Rao on behalf of the petitioners raised the following questions of law in support of tnis revision petition:
(i) The petitioners were called upon to meet a charge of dishonest retention of stolen property and not dishonest receipt of stolen property. Hence the trial court was not justified in directing the Jury to draw the presumption under illustration (a) to Section 114 of the Evidence Act.
(ii) The petitioners were merely heads of their lamilies and there was no further evidence to show that the incriminating ornaments were kept in their house with their knowledge. Hence the tria1 Court should have directed the Jury to hold that the petitioners were not in possession of the incriminating ornaments.
(iii) In any case, in the absence of any other circumstance and from the mere fact that the petitioners were found in possession of stolen property taken way during the commission of dacoity, they should have been convicted only under Section 411 I. P. C. and not under Section 412 I. P. C.
6. In my opinion, none of these three grounds is sustainable.
7. It is true that the learned Assistant Sessions Judge charged the two petitioners with dishonest retention of stolen property and not with dishonest receipt of such property. In his charge to the Jury also he spoke througnout of the petitioners retaining stolen property and not receiving such property. Doubtless there is a real distinction between receipt and retention. In some instances receipt of property may be honest, but subsequently when the offender comes to know that the property is stolen property and yet continues in possession of the same he may be said to ret in the same. But in Sections 411 and 412, I. P. C. the words 'receives' and 'retains' occur side by side and the collocation of receipt and retention of stolen property is obviously intended to do away with the necessity of proving the presence of dishonesty at the time of its possession. In Hari Singh Gour's Penal Law of India, Sixth Edition, at page 1928 it was pointed out:
'As however both receiving & retaining constitute one offence, the accused is not entitled to claim the nature of his possession specified, and it is sufficient if he is charged for receiving or retaining and evidence is adduced to prove guilty knowledge at some period antecedent to its recovery by the Police.'
Hence, I do not think any material prejudice has been caused by the omission to mention that the accused persons dishonestly received, the incriminating stolen articles.
There is however no direct evidence to show that the petitioners knew the incriminating articles to be stolen property. The Jury inferred such guilty knowledge by relying on illustration (a) to Section 114 of the Evidence Act and after taking into consideration the explanation given by the two petitioners to account for their possession. Mr. Rao urged that Illustration (a) to Section 114 of the Evidence Act authorises a presumption about dishonest receipt of stolen property if it is found in recent possession of an accused person and if he is unable to account for the same. But in terms that illustration does not refer to dishonest retention. Hence he urged that where the charge dealt only with dishonest retention and not alternatively with either retention or receipt, the presumption under illustration (a) to Section 114 of the Evidence Act is not available. He has, however, not been able to eite any authority in support of such a too literal construction of this illustration.
The words 'receives' and 'retains' are generally used together and though illustration (a) to Section 114 of the Evidence Act expressly refers to dishonest receipt of stolen property, a presumption about dishonest retention of the stolen property may equally be made by virtue of that illustration. There is an old Calcutta decision reported in Ishan Chandra v. Queen Empress, ILR 21 Cal 328 (A) where such a presumption was made even though in the charge it was stated that the accused dishonestly retained (not received) the stolen property. The first contention of Mr. Rao must, therefore, fail.
8. As regards the second point also the question raised by Mr. Rao seems academic in this case in view of the explanation offered by the two petitioners to account for their possession of the stolen ornaments. Both the petitioners claimed them to be their own and admitted possession of the same. Under such circumstances the question as to how far the head of a joint Hindu family can be held criminally liable for the recovery of stolen property from his house does not arise. The possession of stolen property has been admitted and some explanation has been offered to account for such possession. It is left to the Jury to decide whether to accept this explanation or to reject the same and draw the presumption under illustration (a) to Section 114 of the Evidence Act. It is true that while accounting for the possession of stolen goods, the burden is not cast on the accused to establish beyond reasonable doubt that his explanation is true. Even if it might possibly be true, though the Jury are not convinced that it is true, he is entitled to an acquittal, because the primary burden of proving the entire case beyond reasonable doubt rests on the prosecution. The learned Assistant Sessions Judge properly directed the Jury on this point in the concluding portion of paragraph 28 of his judgment.
9. The third point raised by Mr. Rao requires some consideration. There is a conflict of decisions on the question as to whether when an accused is charged under Section 412 I. P. C. and the only circumstance proved against him is the recovery of stolen property soon after the commission of dacoity, the conviction should be under Section 411 or under Section 412 I. P. C. One view seems to be that in such circumstances the conviction should properly be one under Section 411 I.P.C. only. See Sumer v. Rex AIR 1950 All 398 (B) The other view is that illustration (a) to Section 114 of the Evidence Act is not exhaustive, that it can be taken recourse to even in respect of graver offences like an offence under Section 412 I. P. C., specially because the definition of the expression 'stolen property'' as given in Section 410 I. P. C. will include not only the property which is the subject-matter of theft but also property which was stolen during the commission of dacoity.
The leading decision in favour of this view is In re Dhyani Gope, AIR 1947 Pat 205 (C) where a Division Bench held that the principle of illustration (a) of Section 114 of the Evidence Act applies not only to cases of ordinary theft but also to cognate offences like dacoity and robbery and that
'when the necessary facts have been established from which the presumption may be drawn, the presumption that should be drawn is that the accused knew of the manner in which the articles in question had been taken away from the possession of the owner, that is to say in the case of ordinary theft that they had been stolen and in the case of a dacoity, that they had been stolen in the course of dacoity'.
In Chavadappa v. Emperor AIR 1945 Bom 292 (D) this question also was discussed at some length by a Division Bench of that Court and though the learned Judges rightly did not lay down any general rule, Lokur J. observed that the principle laid down in Section 114 was of wide application and not limited to the illustrations mentioned therein and that the presumption under Section 412 I. P. C. may be made from the recovery of stolen property transferred during the commission of a dacoity from the possession of the accused soon after the commission of the crime. In Chandra Pal v. The State, AIR 1954 All 684 (E) the previous decision of the same High Court reported in AIR 1950 All 398 (B) was critically examined and somewhat dissented from.
It was also held that though no generalization can be made, if an accused is charged alternatively with an offence under Section 395 and Section 412 I. P. C. and the former charge fails, there are usually circumstances to show that applying the presumption under illustration (a) to Section 114 he may be convicted under Section 412 I. P. C.
10. With respect I am inclined to agree with the view of the Division Bench of the Patna High Court in AIR 1947 Pat 205 (C) which. has been reiterated in AIR 1954 All 684 (E). An illustration to a statutory provision merely illustrates a principle & ex hypothesi it cannot be exhaustive. As early as 1918 Sir Lawrence Jen-kins, C. J. pointed out in Emperor v. Neamatullah, 17 Cal WN 1077 (F) that possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with theft. This principle was emphasised in Queen Empress v. Sami, ILR 13 Mad 426 (G) Emperor v. Chintamoni Shahu, AIR 1930 Cal 379 (H), In re Venkataswamy, AIR 1950 Mad 309 (1) and Ramprashad Mukandram v. Crown, AIR 1949 Nag 277 (J). In a recent decision of the Supreme Court reported in Wasim Khan v. State of Uttar Pradesh, (S) AIR 1956 SC 400 (K) these decisions were noticed and applying the presumption under Section 114 along with other circumstances, a person who was found in possession of the property of a murdered person was held guilty not merely under Section 411 I. P. C. but also of robbery and murder.
11. Doubtless, if the only piece of evidence against an accused person is the recovery of stolen property and there is no other circumstances proved against him, the conviction may properly be only under Section 411 I. P. C. as pointed out in Sanwat Khan v. State of Rajasthan, (S) AIR 1956 SC 54 (L).
12. The two petitioners were charged both under Section 395 and under Section 412 I. P. C. Some of the eye-witnesses claimed to have identified them during the commission of the dacoity. The Jury however acquitted them of the offence under Section 395 I. P. C. and this acquittal shows that the evidence on the question of identification of the dacoits was not satisfactory.
But a dacoity of this type gets considerable publicity and even though the petitioners belong to a village situated in a thana different from that in which the victim of the dacoity, Khetrabasi Panigrahi, lives, it may be inferred from the circumstances of the case that the petitioners knew or had reasons to believe that the possession of the property was transferred by commission of dacoity. The evidence of the Investigating Officer (P. W. 15) shows that at about mid-night prior to the recovery of stolen property from the possession of the two petitioners the Police party lay in ambush, near a bush, close to village Kanthipur & saw some Sus-pected persons attempting to sell away valuable gold ornaments. When the police party rushed towards them the culprits ran away but some of them were actually arrested and it was on the basis of the information given by them that the house of the two petitioners were subsequently searched and the stolen property recovered. Moreover petitioner Poka Jena is a resident of village Kanthipur. From these circumstances the Jury were entitled to presume under Section 114 of the Evidence Act, that the petitioners had reasons to believe that possession of the stolen ornaments was transferred by commission of dacoity.
13. I am therefore satisfied that the conviction of the petitioners under Section 412 I. P. C. was correct. The conviction and sentence are accordingly upheld and the revision petition is dismissed.